Reporters have no constitutional right to offer their sources blanket confidentiality, Canada’s Supreme Court said in a landmark ruling on Friday.
In the first pronouncement of its kind, the court ruled by an 8-1 majority that journalists could offer sources protection, but that if prosecutors subsequently demanded to know who those sources were, the courts would decide the merits of confidentiality promises on a case-by-case basis.
“No journalist can give a secret source an absolute assurance of confidentiality,” the judges said.
The ruling is a defeat for the National Post newspaper, which had demanded the quashing of a police search warrant for a document and an envelope given to one of the paper’s journalists by a confidential source in 2001.
The Canadian Association of Journalists said the ruling was “a significant blow to every journalist’s ability to protect whistleblowers.”
The document purported to show former Canadian prime minister Jean Chretien had leaned on a federal bank to approve a loan to an ailing hotel that owed his family money.
Chretien and his lawyers said the document was forged and complained to police.
The judges said promises to keep sources secret had to be balanced against other important public interests, including the investigation of a serious crime.
“In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence,” they said.
The National Post had argued that in cases where there was a dispute over whether a source could remain secret, the onus should be on prosecutors to show why a criminal probe was more important than a promise of confidentiality. The court disagreed.
The court did make clear that in some situations the public interest in protecting a secret source from disclosure could conceivably outweigh other competing public interests.
“In those circumstances the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised,” it said.
Police wanted the document and the envelope to look for evidence such as fingerprints or DNA that could help identify the source.
The National Post, which estimates it has run up a legal bill of C$850,000 (US$820,000) on the case so far, said the battle had been worth fighting.
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