Supreme court ruling threatens confidentiality of sources

Reporters Without Borders is disappointed and disturbed by a Canadian supreme court decision ordering the Toronto-based National Post newspaper to surrender documents pointing to a conflict of interest in a loan that a state-owned bank gave to a friend of former Prime Minister Jean Chrétien.

The ruling, issued on 7 May, jeopardises the protection of sources, a fundamental principle without which investigative journalism could not exist, the press freedom organisation said.

The supreme court decided to uphold a warrant requiring the surrender of documents that could enable the Royal Canadian Mounted Police (RCMP) to identify the person who gave them to reporter Andrew McIntosh in 2001, when McIntosh was working for the National Post.

The RCMP has for years been investigating allegations that the documents, which suggested that then Prime Minister Chrétien helped a friend obtain a loan from the bank, were forged. The supreme court ruled that the public interest served by protecting the identity of informants was important, but that in this case it was outweighed by the public interest in getting at the truth.

The case is known as Shawinigate because the friend who, according to McIntosh's story, benefited from Chrétien's support lived in his home town Shawinigan, in Quebec province. Insisting that the documents were forged, the state-owned Business Development Bank of Canada filed a complaint demanding their surrender as evidence. The search warrant obtained in 2002 was declared illegal by an Ontario court in 2004. After an appeal court overturned that decision in 2008, the case went to the supreme court.

Reporters Without Borders agrees with the Provincial Federation of Quebec Journalists (FPJQ) that the supreme court's decision sets a terrible precedent by casting doubt on a journalist's ability to guarantee the anonymity of sources or the confidentiality of documents. Professional ethics, enshrined in the 1971 Munich Declaration of the Rights and Duties of Journalists, require journalists not to reveal their sources.

Reporters Without Borders believes the protection of sources is not something that can be judged case by case. Described by the European Court of Human Rights as the "cornerstone of press freedom," this principle can be restricted only in very few, exceptional situations. The European Court maintains that an "overriding public interest" cannot be used as grounds for violating the confidentiality of sources.

The exceptions envisaged by Belgian legislation, the most advanced in this respect, are limited to the "prevention of crimes constituting a serious threat to the physical integrity of persons." Such circumstances do not apply to this case.

France adopted a law on 4 January that recognises the principle of the confidentiality of sources but nonetheless allows the courts to violate it "when an overriding public interest justifies it and the measures envisaged are strictly proportionate to the legitimate objective sought."