Supreme Court of Canada quashes protections for sources

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Le1bn1z
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Supreme Court of Canada quashes protections for sources

Postby Le1bn1z » Fri May 07, 2010 2:39 pm UTC

In its long history, the Supreme Court of Canada has been notable for making some truly stupid decisions.

There was the time it decalared that "Women are not people." The other time they declared "Indians are not people," (leaving aside that First Nations people are not from India, still pretty offensive) and that corporations, including cigarette companies, should have "freedom of speech" in advertising.

This one though, takes the cake.

The Supreme Court of Canada has declared that Police have the right to demand the identity of any journalistic source, and that protecting confidentiality is a crime.

So, in Canada, a Watergate investigation would be illegal (and impossible). Investigations of criminal activity, poltical corruption and, I suspect, judicial corruption and incompetence, are now just about done with.

Here's the story, spoiled for length. Make my blood boil:

Spoiler:
Kirk Makin

Ottawa — Globe and Mail Update Published on Friday, May. 07, 2010 9:50AM EDT Last updated on Friday, May. 07, 2010 10:27AM EDT

The Supreme Court of Canada slammed the door shut today on a concerted attempt by the press to establish a right to protect confidential sources.

In an 8-1 ruling, the court said that in an age of blogging and Twittering, the media are too amorphous to enjoy such a right and too ungovernable to exercise it properly.

“The bottom line is that no journalist can give a source a total assurance of confidentiality,” the majority said.

“All such arrangements necessarily carry an element of risk that the source’s identity will eventually be revealed.”

Mr. Justice Ian Binnie said it was a “simplistic proposition” to suggest that a journalist should be able to decide on his or her own whether to grant blanket immunity to a source.

To grant blanket immunity “would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.”

The ruling means that the National Post and reporter Andrew McIntosh may now have to hand over an envelope sent by a confidential source, assuming police still wish to learn the source’s identity.

The court recognized that many vital public issues have been enhanced by investigative reporting and that confidential sources in these sort of cases will very possibly win court approval in future for confidentiality arrangements.

In a dissenting view, Madam Justice Rosalie Abella agreed that there should be no blanket privilege but concluded that The Post should not have to hand over the envelope.

Peter Jacobsen, a lawyer for The Globe and Mail, told reporters that while the case is a blow to the press, it should not be seen as eliminating any possibility of protecting confidential sources in important cases where journalists act responsibly. He said that he retains considerable hope that The Globe will succeed in another case the Supreme Court is now considering, in which a Globe reporter who broke the federal sponsorship scandal has been ordered to divulge the identity of sources in a civil lawsuit.

The saga began when Mr. McIntosh received a brown paper envelope in 2001 containing a leaked document that appeared to expose a major political scandal surrounding then-Prime Minister Jean Chrétien.

However, police believe that the document was forged.

Rather than bringing down a government, a police quest to determine the identity of the sender spawned a landmark case involving press rights.

The case was seized upon by media lawyers as a golden opportunity to attach constitutional protection to the right of a journalist to protect confidential sources.

They warned the Court against turning editors into an investigative arm of the police and smothering the sort of enterprising journalism that protects the public good.

However, the court heard strenuous objections from the federal government and six provinces, who maintained that giving blanket protection to journalists will open the door to abuse.

“The fact that a promise is made or that documents are given in the context of ‘investigative journalism’ does not automatically bestow constitutional protection on the promise or the documents,” a federal brief argued.

Had the document Mr. McIntosh received been authentic, it could have unravelled the so-called “Shawinigate” scandal, involving the role that Mr. Chrétien may have played in loans made to a country inn and golf course in his Quebec riding.

The document purported to show that the owner of the golf club owed money to Mr. Chrétien's holding company, and that he planned to repay it with a loan from the Business Development Bank of Canada.

Media lawyers argued that regardless of the source’s authenticity, source confidentiality is a serious undertaking that is now strongly protected in most U.S. states and Commonwealth countries.

“A journalist's credibility would be seriously damaged in the eyes of both sources and the public at large if the journalist were to be conscripted into becoming an investigative arm of the state,” a brief on behalf of the Globe and Mail stated.

Mr. McIntosh has always stressed that he believes that his source sent him the document in good faith.

However, police want to track down whoever created or sent it, possibly through obtaining a saliva sample from the stamp.

In a trial ruling, Ontario Superior Court Judge Mary Lou Benotto initially quashed the police warrant as being an unreasonable restriction on freedom of expression.

The Ontario Court of Appeal later reversed her ruling and ordered the Post to hand over the document in the interests of allowing the police to do their job.


Link: http://www.theglobeandmail.com/news/nat ... cle1560097

Note that even though there may be cause to seek identity in this case (on the basis that fraud nullifies all contracts), there is no possibility of protecting legit sources or of setting up a vetting process for seperating wheat from the chaff.
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Re: Supreme Court of Canada quashes protections for sources

Postby Jessica » Fri May 07, 2010 2:55 pm UTC

Fuck.
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Re: Supreme Court of Canada quashes protections for sources

Postby PeterCai » Fri May 07, 2010 3:00 pm UTC

Fuck

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Re: Supreme Court of Canada quashes protections for sources

Postby BlackSails » Fri May 07, 2010 3:19 pm UTC

Hasnt it always been this way? I thought journalists usually go to jail for contempt for not revealing their sources.

Not that it SHOULD be this way, but I dont think this is really any sort of change.
Last edited by BlackSails on Fri May 07, 2010 3:43 pm UTC, edited 1 time in total.

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Re: Supreme Court of Canada quashes protections for sources

Postby The Reaper » Fri May 07, 2010 3:21 pm UTC

WHAT CAN POSSIBLY GO WRONG? </sarcasm>

Le1bn1z
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Re: Supreme Court of Canada quashes protections for sources

Postby Le1bn1z » Fri May 07, 2010 4:23 pm UTC

BlackSails wrote:Hasnt it always been this way? I thought journalists usually go to jail for contempt for not revealing their sources.

Not that it SHOULD be this way, but I dont think this is really any sort of change.


Nope. Jounralists have always protected their sources.

However, we live in a Common Law system, based on principles and precidents. Which means that any argument will frame itself as "....and its always been thus." The government would never say "and now we're taking away free press....yoink!" instead it says "there never was any free press, and there is no spoon...yoink!"

People seem to forget that 1984 was over 20 years ago. The future is now, and has been here for some time.

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Re: Supreme Court of Canada quashes protections for sources

Postby Silas » Sat May 08, 2010 3:50 am UTC

Le1bn1z wrote:
BlackSails wrote:Hasnt it always been this way? I thought journalists usually go to jail for contempt for not revealing their sources.

Nope. Journalists have always protected their sources.

Yes. By going to jail on a contempt charge instead of revealing their sources.
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Re: Supreme Court of Canada quashes protections for sources

Postby Cleverbeans » Sat May 08, 2010 4:41 am UTC

Le1bn1z wrote:The Supreme Court of Canada has declared that Police have the right to demand the identity of any journalistic source, and that protecting confidentiality is a crime.


Actually this has always been the case and nothing has significantly changed, so I wouldn't go so far as to call it a "declaration". The Canadian Association of Journalists recommends that if the source turns out to be fraudulent they should in fact reveal their source since the supplier of the information hasn't held up their end of the bargain. This ruling does NOT allow the police to demand any source without process. These cases will always been considered individually by the courts.

What the ruling does establish is that no blanket protection will be afforded to sources. So if say a serial killer writes a manifesto, or someone forges a letter for political gain the police are able to properly investigate and journalists will be required to hand over sources. Don't forget the living tree doctrine either, the courts always have the ability to reinterpret the constitution at a later time.

I mean really, it's not like Preston Manning's top advisor is running the country or some other such nonsense. Wait a minute...

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Re: Supreme Court of Canada quashes protections for sources

Postby dosboot » Sat May 08, 2010 7:18 pm UTC

When this issue comes up I always think it is unusual to phrase rights in terms of what journalists can and cannot do. If there is a law it shouldn't care about you being a journalist or not.

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Re: Supreme Court of Canada quashes protections for sources

Postby jestingrabbit » Sat May 08, 2010 9:47 pm UTC

dosboot wrote:When this issue comes up I always think it is unusual to phrase rights in terms of what journalists can and cannot do. If there is a law it shouldn't care about you being a journalist or not.


There are laws that refer to other professions, like doctors and lawyers.
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Re: Supreme Court of Canada quashes protections for sources

Postby Bright Shadows » Sun May 09, 2010 12:48 am UTC

jestingrabbit wrote:
dosboot wrote:When this issue comes up I always think it is unusual to phrase rights in terms of what journalists can and cannot do. If there is a law it shouldn't care about you being a journalist or not.


There are laws that refer to other professions, like doctors and lawyers.

But being someone who reports news can be much more casual than a profession. Being a doctor or a lawyer really can't be.
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Re: Supreme Court of Canada quashes protections for sources

Postby The Reaper » Sun May 09, 2010 1:27 am UTC

Bright Shadows wrote:
jestingrabbit wrote:
dosboot wrote:When this issue comes up I always think it is unusual to phrase rights in terms of what journalists can and cannot do. If there is a law it shouldn't care about you being a journalist or not.


There are laws that refer to other professions, like doctors and lawyers.

But being someone who reports news can be much more casual than a profession. Being a doctor or a lawyer really can't be.

Journalistic professionalism? How dare you suggest such a thing.

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Re: Supreme Court of Canada quashes protections for sources

Postby jakovasaur » Sun May 09, 2010 1:36 am UTC

The Reaper wrote:
Bright Shadows wrote:
jestingrabbit wrote:
dosboot wrote:When this issue comes up I always think it is unusual to phrase rights in terms of what journalists can and cannot do. If there is a law it shouldn't care about you being a journalist or not.


There are laws that refer to other professions, like doctors and lawyers.

But being someone who reports news can be much more casual than a profession. Being a doctor or a lawyer really can't be.

Journalistic professionalism? How dare you suggest such a thing.

Well what about the fact that you have to have a license to be a lawyer or doctor, but not a journalist? I guess that's the real distinction. I'm not sure if there are any such instances, but I guess there could be hypothetical difficulties in determining whether a person is a journalist or not.

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Re: Supreme Court of Canada quashes protections for sources

Postby Thrillho » Sun May 09, 2010 4:31 am UTC

jakovasaur wrote:Well what about the fact that you have to have a license to be a lawyer or doctor, but not a journalist? I guess that's the real distinction. I'm not sure if there are any such instances, but I guess there could be hypothetical difficulties in determining whether a person is a journalist or not.


Despite me having a fairly limited knowledge of the law, I don't believe one must necessarily have to be certified for the courts to declare you a professional. Sure, certification opens one up to plenty of regulatory liability, but this matter is focused on statutory, not reglulatory law.

Back to the overall matter, when I first heard this news story I wasn't as shocked as I am now. My primary understanding was that this could prevent journalists from withholding evidence from authorities in an ongoing criminal investigation. However, I'm now uncertain as to whether this allows police to always request sources, or whether they need a warrant first. If the latter, I'm personally fine with the law. If the former, however... It becomes a slippery slope. I don't really like the idea of losing freedom of speech and my privacy, and I'm afraid that this law makes strong movements toward weakening both of these pillars of our society.

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Re: Supreme Court of Canada quashes protections for sources

Postby dosboot » Sun May 09, 2010 6:05 am UTC

jestingrabbit wrote:There are laws that refer to other professions, like doctors and lawyers.


Yeah, it's merely unusual when one thinks about it that way. However it feels like a special law encourages people to not care because it's not your job. But anyone can spread the word about a scandal, and it should be everyone's job to care.

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Re: Supreme Court of Canada quashes protections for sources

Postby ConMan » Mon May 10, 2010 4:23 am UTC

jakovasaur wrote:Well what about the fact that you have to have a license to be a lawyer or doctor, but not a journalist? I guess that's the real distinction. I'm not sure if there are any such instances, but I guess there could be hypothetical difficulties in determining whether a person is a journalist or not.

Citizen journalism is a good example. For example, I write for Wikinews, and some of the people who write there have in fact used confidential sources - including some references to Wikileaks. Even the people who are "accredited" with Wikinews are still citizen journalists.
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