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University of Wisconsin–Madison

The Law and Confidential Sources: A Cautionary Tale

Confidential sources have been of enormous value to journalists and the public at large.

The information they have brought to light has helped expose truths such as the corruption of a U.S. president, unethical business practices by a Canadian prime minister and health violations in restaurants and other public facilities. At the forefront of these stories have been hard-nosed investigative reporters eager to reveal truths that would otherwise remain hidden. At the heart of them, however, are people whose fear of reprisal forces them to hide their identities.

The courts and the press can often be seen to share the pursuit of truth and justice, but they meet head-on where anonymous sources are involved – the former wishes to uphold the authority of the justice system, while the latter is eager to bring truth to light. The use of an anonymous source to make that happen, however, often forces these purposes into conflict.

This article examines Canadian laws as they affect the use of confidential sources in news stories. It aims to provide a cautionary framework for journalists looking to use confidential sources in their stories and examine the ethical responsibility that a journalist should have to a source under Canadian regulations.

Breach of Trust

Breach of trust is a law often encountered in situations where a public servant discloses secret information to a journalist. The law is outlined in section 122 of the Criminal Code, which says that any public official who commits fraud or breach of trust in connection with the duties of his office can be subject to a prison term of up to five years.

A recent case helps illuminate the risks inherent in coming forward with such information. Dennis Bueckert, a now-deceased reporter with The Canadian Press, broke a story in April 2007 about a secret government document that outlined a spending plan for numerous environmental initiatives, including $230 million to develop clean energy technologies. Bueckert’s story noted that the plan would fall short of the government’s emissions targets under the Kyoto Protocol, a topic of vigorous discussion at the time the story was printed.

Three weeks after the story was published, an Environment Canada employee was arrested for breach of trust in connection with the leak, however reports from that day said he was released and not charged. Two days later, the leak revealed himself as Jeffrey Monaghan, a temporary employee with the ministry.

Describing himself as an anarchist, he said the proposed breach of trust charges were “a profound threat to the public interest” and that his arrest was “an extension of a government-wide communications strategy pinned on secrecy, intimidation and centralization.” It was later revealed that Monaghan was the drummer for the Suicide Pilots, a punk band whose songs drew parallels between Stephen Harper and Adolf Hitler.

As of May 2007, no charges have been laid against Mr. Monaghan, but his antics drew fire from a Carleton University business professor, who said that the episode displays the risks of laying government work on temporary employees.

Contempt of Court

Contempt of court is the law that many reporters fear where confidential sources are concerned. It is the only remaining common law offence in Canada and is defined as a “breach of a court order or other interference with the proper administration of justice.” In this context, it can affect reporters who refuse to disclose the identities of confidential sources to the courts.
          
Ken Peters, a municipal affairs reporter for the Hamilton Spectator, encountered this very situation in 1995 when an anonymous source provided him with documents that detailed municipal investigations into health and safety concerns at St. Elizabeth’s Villa in Hamilton, Ontario. Peters wrote three stories about the investigations, articles that prompted the St. Elizabeth’s Home Society to sue the City of Hamilton and various other parties for “defamation, negligence and abuse of public office for releasing documents to the media.”

Peters was subpoenaed to testify at the trial and bring all documents related to the stories. He said that he received the documents from a confidential source while another individual was present. Justice David S. Crane, the presiding judge, ordered Peters to reveal the identity of that individual, but he refused, saying that doing so could lead to identifying his source. Justice Crane nevertheless asked Peters to reveal the identity anyway, but he protested, telling the judge, “With all due respect, your Honour, I can’t do that.”

Justice Crane then scheduled a show cause hearing after citing Peters for contempt of court. To him, refusing to reveal the identity of the second individual was contemptuous, saying that his refusal to identify the individual presented “defiance to the authority of the Supreme Court and an obstruction to the administration of justice.” As a result, Peters was fined $31,600 after his refusal to identify the individual.

The case was appealed, however, and Justice Robert Sharpe of the Ontario Court of Appeal overturned this decision after considering a series of legal precedents. The first was the “Wigmore Criteria,” a four-part test to determine whether a journalist-source relationship can enjoy protection. The test must determine the following:

The communications must originate in a confidence that they will not be disclosed

This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between parties

The relation must be one which in the opinion of the community ought to be sedulously fostered

The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation

Justice Sharpe went on to cite numerous precedents establishing the importance of source confidentiality. Among them was the decision of the Supreme Court of Canada in Canadian Broadcasting Corporation v. Lessard, a case in which police obtained a warrant to seize videotapes at the CBC’s head office in Montreal. Justice Sharpe quoted Justice Beverley McLachlin of the Supreme Court in his decision: “[C]onfidential sources of information may be fearful of speaking to the press and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities.”

That Court decided in favour of the press, ruling that the search of CBC offices impinged on Charter s. 2(b) (freedom of the press) because the justice of the peace that issued the warrant did not provide evidence that the sought-after information could have been obtained elsewhere.

Justice Sharpe also cited the “Dagenais/Mentuck test,” a series of criteria that arose out of cases involving publication bans. The test asks courts to approach cases in a way that avoids prioritizing one Charter right over another and minimizes the impact on the affected rights and values. This test was also used in Vancouver Sun (Re), a Supreme Court decision in which the newspaper sought access to an in camera hearing related to the Air India trial. The judges argued in that case that the Dagenais/Mentuck test should apply to all judicial decisions that could limit the press’ freedom of expression.

Sharpe thus argued that the Dagenais/Mentuck test should likewise apply to journalist-source confidentiality and ruled that the charge of contempt against Ken Peters did not comply with the criteria under either test. He argued that Peters should have received an opportunity to seek other avenues to produce the information and thereafter set aside the finding of contempt and its associated penalty. The Canadian Association of Journalists (CAJ) hailed the decision but argued that Canada needs a shield law to protect journalists from charges of contempt.

Bill C-36

September 11, 2001 brought a chill to the hearts of westerners when two planes collided with the World Trade Centre. The fear reached Canadian legislators when they introduced Bill C-36 – the Anti-Terrorism Act – a sweeping legislation that would amend the Criminal Code, the Canada Evidence Act and several other Acts in order to provide government and security agencies with expanded capacities to combat terrorism. Those capacities included regulations that can affect the media’s use of confidential sources.

Bill C-36 accorded new powers to Communications Security Establishment Canada (CSEC), an agency that gathers foreign signals intelligence and protects electronic information. The agency, which reports to the Minister of National Defence, drew criticism in the past for allegedly monitoring two ministers in Margaret Thatcher’s cabinet on behalf of the British Secret Service, but despite this controversy it was given enhanced powers to gather foreign intelligence through intercepted communications.

Section 273.65 of the deemed that the Minister could, for the purpose of gathering foreign intelligence, give authorization to CSEC to “intercept private communications in relation to an activity or class of activities specified in the authorization,” meaning that the agency could tap any communication signal interacting with a foreign entity when authorized by the Minister of National Defence. The Minister could provide this authority to the agency if it met the following criteria: the interceptions targeted individuals and associations outside Canada; the desired information could not be obtained any other way; the interception justified the intelligence to be gathered; sufficient measures were taken to protect Canadians’ privacy and ensure private communications are retained only if essential to international affairs, defence or security.

This section could affect journalists who communicate electronically with confidential sources from foreign countries. Those sources, if deemed salient to foreign intelligence, thus cannot be given credible assurances that they will remain anonymous. There is likewise nothing in the Act to suggest that Canadians should be notified if their phones are being monitored, which means that journalists can give sources whatever assurances they want, but the authority accorded to CSEC by Bill C-36 has rendered such assurances moot.

The Canadian Bar Association filed a submission to the government about Bill C-36 shortly after it was tabled in the House of Commons. It argued that section 273.65 “removes any ability for journalists to keep their sources confidential.” The CBA said the section was problematic because it “relies on the Minister’s discretion to weigh the government’s interests and privacy rights.” The submission ultimately argued that the reference to the Minister in section 273.65 should be amended to read “a judge” instead of conferring that level of authority on the Minister. 
In the end, however, the CBA’s efforts were not fruitful. The Act received Royal Assent on December 18, 2001, and the provision allowing CSEC to monitor calls as the Minister pleases remains in effect.

No Protection

Wherever a journalist opts to use a confidential source, they must first recognize that they are putting that person at risk in an environment that affords them no legal protections. Kim Bolan, an investigative reporter at the Vancouver Sun, said in an interview that journalists must seriously consider whether they can really guarantee anonymity to a source.

“I have to make absolutely sure that I can make the promise and commitment that I have made to the person,” she said. “If they do have concerns about the information eventually being linked to them, I try and figure out other ways to get the same information, and I think that is kind of the best way to protect somebody.”

At a time when no protections are offered for journalist-source relationships, a primary ethical test should weigh potential consequences to themselves against those that could befall their sources. In general, the risks to the source should outweigh those to the journalist, as revealing a source because of the risks involved in keeping someone confidential could ultimately lead to various ulterior consequences: sources could dry up; a reporter could lose his ability to be trusted; his media outlet could lose the ability to breakk exclusive stories about malfeasance by public officials. When considering the consequences to themselves, journalists should also remember that Canadian press agencies have a history of successfully fighting back against infringements on freedom of the press, as in the cases of CBC v. Lessard and Vancouver Sun (Re).

Where Bill C-36 is concerned, however, this test cannot apply. In cases where a journalist deals with a confidential source who is also a foreign entity, the reporter must inform the source that they will not personally disclose their identity, though the source should be warned that there is nothing the reporter can do to guard against the government intercepting their phone call and thus identifying the source.

The onus on a journalist to protect sources’ identities could soon be lifted in the legislative and judicial branches of government. In the case of the latter, the National Post is appealing an Ontario Court of Appeal decision to turn over to police a document that allegedly contains details of a loan application for the Auberge Grand-Mère, a hotel in former prime minister Jean Chretien’s riding. The document was obtained by investigative reporter Andrew MacIntosh while he worked for the Post in 2001.

When news of the document first surfaced, it appeared to implicate Chretien in a conflict of interest. Now the RCMP is hoping to obtain the document in order to do forensic tests to determine who leaked it. The Post is challenging the ruling, saying in an editorial that the effect of the judgment is that officers can “waltz right on in” on journalists and obtain their materials.

Even if the SCC does not rule on behalf of the National Post, a landmark piece of legislation currently circulating in the House of Commons could go a long way to cementing protection for confidential sources in Canadian law. Bill C-426, an “Act to amend the Canada Evidence Act (protection of journalistic sources)” has been put forward by Bloc Quebecois MP Serge Ménard and is now being studied by the Standing Committee on Justice and Legal Affairs.

It proposes an amendment to Section 39.1 that reads, “No journalist shall be compelled to disclose the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media or to disclose any information or record that could identify the source.” It also contains a provision that judges cannot issue search warrants or compel the disclosure of any information relating to an anonymous source unless it is in the public interest.

“[The amendments] will be very useful in practice for police that want to know what they can do,” Ménard said in an interview. “It will be good, I think, for justices and judges… because then they will have in two pages what the must check before issuing a warrant.”

Despite an endorsement from the Fédération professionelle des journalistes du Québec (FPJQ), Ménard’s bill has not won the support of the Canadian Association of Journalists, which feels it does not go far enough to protect sources, according to CAJ president Mary Agnes Welch.

“There’s still a way for courts to say, ‘This is one of those very important times where a journalist has to hand over a document,’” she said. “We think that, for us, that would compromise a fundamental belief of the CAJ, that journalists ought to have pretty blanket protection.”

Welch added that she is not confident the bill will pass into law.
Ménard, however, is optimistic about its future. He believes that the Liberals and the NDP will support it when it goes to a vote which, combined with the support of his own party, would give it enough votes to pass.

“This kind of bill, we love it when we’re in opposition, we hate it when we’re in power,” he said.

Whether the bill passes or not, it comes at a time when people are asking serious questions about whether anonymous sources should have legal protections. In the past reporters have run the risk of being found in contempt when using a source, and the sources themselves have faced legal reprisal if found out. R v. National Post and Bill C-426 are two situations that could enshrine source protection in Canadian law.

For now,  however, journalists must continue to weigh carefully the prospect of committing a common law crime against revealing a source’s name – either of these trials could alleviate, if not remove entirely, the weight of that choice.

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