TORONTO — The Supreme Court of Canada ruled today that journalists do not have a blanket right to shield confidential sources.
The court ruled 8-1 against the National Post and former reporter Andrew McIntosh, who sought to quash a search warrant issued almost a decade ago in a case dealing with a possibly forged document from a secret source linked to a political scandal.
In finding there is no broad protection for journalists to shield sources, the justices said claims of immunity can be argued on a case-by-case basis.
“The law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests — including criminal investigations,” Justice Ian Binnie wrote on the court’s behalf.
“In those circumstances, the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised.”
But Binnie wrote that in this situation, the needs of a police investigation trumped the right to keep sources confidential.
In 2000, McIntosh was investigating allegations that then-prime minister Jean Chretien had profited from real estate deals in the 1990s.
McIntosh reported that Chretien had called the Business Development Bank of Canada to promote a loan for the Grand-Mere Inn, a resort in his home district in Quebec.
McIntosh had promised confidentiality for a source known only as X, who sent the reporter a document containing what appeared to be a 1997 internal loan document from the bank. It said a loan of 615,000 Canadian dollars was granted to Grand-Mere, which allowed the company to pay an outstanding CA$23,000 debt to a Chretien family corporation.
The bank said the document was a forgery. McIntosh testified that X told him the document had arrived by mail anonymously and X had forwarded it to the reporter, believing it to be genuine.
In 2001, the Royal Canadian Mounted Police were called in. They wanted to test the document and envelope for DNA or fingerprints — which would likely have identified X.
They obtained a search warrant and an assistance order. The order required the National Post to help find the document, which McIntosh said he had hidden in a safe place, not in the newspaper’s offices.
The newspaper went to court to fight the warrant and order.
The Ontario Superior Court quashed the warrant, but the provincial court of appeal reinstated it.
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