National Post Responds to Supreme Court Ruling

TORONTO--Today The Supreme Court of Canada released a landmark ruling about whether it is in the public interest for reporters to have a "blanket right" to protect confidential sources. By an 8-1 margin, the Supreme Court ruled that The Canadian media has neither a blanket nor a constitutional right to shield their secret sources.

"While we are disappointed with some aspects of today's ruling the bright spot is in the Court's recognition of the importance of the protection of confidential sources. Today's ruling however leaves the media to bear the onus of proving its privilege rather than on the Crown to prove its claim."
The judges, however, recognized for the first time that journalistic privilege against divulging sources can exist, concluding that each case must be weighed on its own merits.

"For the last decade we have fought this as far as we could go, committing tremendous time and resources, on behalf of journalistic principles in Canada," said Douglas Kelly Editor-in-Chief, National Post. "While we are disappointed with some aspects of today's ruling the bright spot is in the Court's recognition of the importance of the protection of confidential sources. Today's ruling however leaves the media to bear the onus of proving its privilege rather than on the Crown to prove its claim."

The case stems from a series of stories published by the National Post in 2001 into the so-called Shawinigate scandal.

It is the first time the court has been asked to balance freedom of expression guarantees in the Charter of Rights and the power of the state in a criminal investigation.

The stories, written by Andrew McIntosh, outlined potential conflicts of interest in the awarding of federal grants and loans in the riding of Jean Chretien, who was then the prime minister.

The RCMP alleged that one of the documents sent to Mr. McIntosh from a confidential source, was forged. A court order obtained by the RCMP, required the newspaper to turn over the document and the envelope, so DNA tests could be used to try to determine who sent the material.

The investigation could lead to a charge of "uttering a forged document" if the source is identified.

The National Post successfully managed to quash the court order in 2004. Ontario Superior Court Justice Mary Lou Benotto concluded that the ability of the media to do its job would be "eroded" if reporters had to identify sources to police.

The Ontario Court of Appeal overturned Judge Benotto, in a 3-0 ruling issued in March 2008.

The Supreme Court of Canada agreed to hear an appeal filed by the National Post, which was argued nearly 12 months ago. Several journalism and civil liberties organizations were granted intervener status in the appeal, as was the federal Attorney-General.

The Ontario Ministry of the Attorney-General is the Crown in the prosecution of the alleged forged document and it warned the Supreme Court against extending broad rights to the media to protect sources.

It suggested the National Post was trying to use the freedom of expression guarantees in the Charter of Rights to "hide evidence" of a possible crime, in written arguments filed with the court.

"Criminal activity can never be cloaked in protection," said the Ontario Crown, which added that the relationship between a reporter and a source must be examined on a "case-by-case" basis.

Lawyers representing the National Post argued that the Ontario Court of Appeal did not strike the proper balance in its ruling.

"The Court of Appeal allocated the public interest entirely to law enforcement, effectively holding that uncovering wrongdoing and the "truth" for public purposes is the exclusive preserve of the police," wrote Marlys Edwardh and John Norris.

Confidential sources are "intimately connected to the truth-seeking and democracy-fostering purposes," of the freedom of expression provisions in the Charter of Rights.

The protection of confidential sources has been guaranteed in more than 30 states in the U.S., which have enacted "shield" laws. The European Court of Human Rights upheld the right of reporters to protect the identity of their sources, even if there is an allegation they received false information, in a decision issued last fall.

About National Post Inc.

National Post is a wholly owned subsidiary of Canwest Publishing Inc. the largest publisher of English-language paid daily newspapers in Canada and owns and operates more than 50 destination websites.

Douglas Kelly, Editor-in-Chief, National Post is available for interviews.