Fight continues to protect public interest

A decade after he first broke stories on the federal sponsorship scandal, you would not think journalist Daniel Leblanc would still be fighting to protect his best source.

But there he was last week, smiling in the Art Deco halls of the Supreme Court of Canada as he learned he and his newspaper, The Globe and Mail, would be headed back to a lower court to resume his struggle to protect his confidential source -- known as MaChouette.

The reason for Leblanc's smile -- and the "Victoire machouette" Tweet he sent -- was that he will go back armed with a Supreme Court ruling that allows journalists to protect confidential sources in Quebec if it serves the public interest.

It seems obvious that the anonymous person who provided key information to uncover the Liberal kickback scheme was acting in the public interest.

But the Supreme Court did not go so far as to say this.

Instead, the court simply ruled that certain common law principles used to evaluate whether journalists can keep sources confidential should also apply in Quebec.

The principles are not new. John Henry Wigmore, the American jurist who developed them, died in 1943. Journalists have been fighting to protect sources for a long time, with limited success.

In the Leblanc case, the high court once again declined to recognize any blanket protection for confidential sources, but said there could be protection on a case-by-case basis. This puts the onus on any journalist faced with being compelled to reveal a source to prove why the source should remain confidential.

MaChouette is a shadowy figure akin to Woodward and Bernstein's Deep Throat of Watergate fame. She provided unauthorized information to Leblanc to write articles on the misuse and misdirection of public funds in the federal sponsorship scandal.

She was so key to his work that Leblanc titled his 2006 book on the scandal, Nom de code: MaChouette: l'enquête sur le scandale des commandites.

The federal government subsequently went after companies implicated in the scandal to try to get back some of the money. As part of the lawsuit, one of the companies, Groupe Polygone, attempted to force Leblanc to answer questions that would identify MaChouette.

That set the stage for the battle to the Supreme Court over the issue.

The court said there could be protection for a journalist's confidential source if it meets these tests:

-- The relationship must originate in a confidence that the source's identity will not be disclosed.

-- Anonymity must be essential to the relationship in which the communication arises.

-- The relationship must be one that should be sedulously (constantly, persistently) fostered in the public interest.

-- The public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

The criteria may very well protect the identity of MaChouette. The Globe's lawyer will be able to argue that the case involved clear public interest in millions of dollars in government spending and illegal kickbacks.

The ruling, however, is of less comfort to many other journalists and would-be sources whose individual revelations are less high-profile and who lack the resources to go to court to prove they are acting in the public interest.

The high court very specifically said, as it has in the past, that there is no broad constitutional protection for journalist-source privilege.

That means journalists as a group cannot claim the protection that clergy and professionals such as doctors and lawyers can when they have confidential relationships.

In essence, the court has refused to recognize a blanket protection for people who wish to keep their identity private while making public, through the media, any manner of wrongdoing, incompetence or simple bad practices in companies and organizations, big and small, public and private.

After all, the protection of journalists' confidential sources is not for the benefit of the journalists; it is for the benefit of the people who take risks to identify what they think is wrong.

Despite all the attention that whistleblower laws get, there is very little protection for someone who blabs to the public.

Most whistleblower laws protect people who go to appropriate authorities in appropriate circumstances to complain about wrongdoing -- an employee who reports financial misdeeds at a company to police, or who reports a breach of anti-pollution laws to environmental officials.

Whistleblower laws often specifically do not protect people who go to the media or some other outside organization to make information public.

Journalists' efforts to protect such people have been going on for a lot longer than a decade -- and, after last week's Supreme Court ruling, they will continue.

bob.cox@freepress.mb.ca

Republished from the Winnipeg Free Press print edition October 29, 2010 A14