Globe
Continued From Page 2
mining if information is privileged—and shielded from efforts
to reveal it to investigators or in
court—applies under the civil
law of Quebec. The Supreme
Court established it as the common law test earlier this year in
its ruling on the National Post’s
effort to protect a confidential
source behind its investigation of
government assistance to businesses in former prime minister
Jean Chrétien’s Quebec riding
(R. v. National Post, [2010]
S.C.J. No. 16).
As in the National Post
decision, the court refused to give
journalists a class privilege to protect sources. Journalists must
establish that sources deserve protection—and, crucially, that the
public interest in protecting them
outweighs society’s interest in
prosecuting crimes and ensuring
civil litigants have the information
needed to prove their claims.
But another aspect of the ruling provides a further boost to
investigative journalism. The
court also overturned a publication ban that barred Leblanc and
the Globe from reporting on negotiations to settle the federal government’s lawsuit to recover millions of dollars paid to a Groupe
Polygone Éditeurs inc., a Quebec
advertising firm, under the sponsorship program.
The two issues are intertwined.
Lawyers for Groupe Polygone
triggered the dispute when they
tried to question Leblanc about
his source as part of a motion to
establish that federal officials were
aware of the sponsorship pro-
gram’s problems more than three
years before filing the law-
suit—and, as a result, were stat-
ute-barred from pursuing the
claim.
Daily Mail Publishing Co., 443
U.S. 97 (1979), which, in his
words, holds that “if a newspaper
obtains truthful information
about a matter of public import-
“Could you imagine
if there was a rule
that would say that
the journalist cannot
publish the information
because he becomes
an accomplice with
the behaviour of
the source?
ance, and does so in a lawful man-
ner, then, absent a higher order
public interest, the state cannot
punish the publication of that
information.”
Lawyers involved in the case
says it’s the first time the High
Court has ruled on whether Can-
adian journalists are bound to
respect the confidentiality of the
information they receive while
gathering the news.
If a journalist publishes infor-
mation obtained from a source
who committed
a wrongful act,
says David
Stolow of Davies
Ward Phillips &
Vineberg LLP,
who also acted
for the Globe,
“that doesn’t
mean the jour-
Stolow
nalist committed a wrongful act
and should be precluded from
publishing the information.”
Christian Leblanc of Mont-
real’s Fasken Martineau DuMou-
lin LLP, who acted for a group of
Quebec media organizations that
intervened in the appeal, said a
ruling to the contrary would have
been a severe blow to investiga-
tive journalism.
“Could you imagine if there
was a rule that would say that the
journalist cannot publish the
information because he becomes
an accomplice with the behav-
iour of the source?” he asked.
“You’re asking a journalist to
become a lawyer and even a
judge.”
But a lawyer for Groupe
Polygone, Louis Bélanger of
Stikeman Elliott LLP in Mont-
real, warns the court has set “a
dangerous precedent” that may
make it difficult in future to pro-
tect solicitor-client secrets and
other confidential information
leaked to the media.
On the source-protection
issue, Bélanger and partner Patrick Girard welcomed the denial
of a blanket protection of journalists’ sources and the court’s
refusal to shift the burden of
establishing privilege from journalists to the party seeking to
identify a source.
The battle to expose the
Globe’s source—known only by
the nickname MaChouette — is
not over. The Supreme Court
remitted the issue to the Quebec
Superior Court for a rehearing
and Bélanger says “the next step
will be to get Mr. Leblanc back in
the witness box” sometime in the
new year.
Under the test established in
the ruling, if Groupe Polygone
hopes to expose the source it will
have to show that the information
sought is central to its case and
there is no other way to obtain the
information. Forcing a journalist
to “out” a source, Justice LeBel
said, must be “a last resort.”
The Globe’s lawyer, William
Brock, is confident those hurdles
are sufficient to protect Leblanc’s
source. “We feel very comfortable
with this test…every criteria
weighs in our
favour.”
Liberties Association, praised
the ruling as “an important vic-
tory for investigative journal-
ism.” But a Canadian version of
the shield laws in place in the
U.S. and other countries may be
needed to give journalists’
sources greater protection and
to remove “the uncertainties of
case by case decision-making”
under the Wigmore test.
“At least we have some clear
guidelines,” added media lawyer
Christian Leblanc.
“Now the only thing that’s
missing is a decision by the
Supreme Court on the merits of a
case, which will give us an indication as to in what circumstances those parameters and
those guidelines will apply.”
Cameron
Reasons: Globe and Mail v. Canada
(Attorney General), [2010] S.C.J. No. 41.
Judge won’t recuse herself for being alleged Freemason
GARY OAKES VICTORIA
A B.C. Supreme Court judge who was a
Crown counsel before her appointment has
thrown out an application to have her disqual-
ify herself from hearing an income tax case
over an apprehension of bias or actual bias.
Justice Miriam Maisonville noted that Eva
Sydel was asking to have her appeal of tax-
evasion convictions—it was dismissed as
abandoned — re-instated.
The applicant argued that there was a sus-
picion that the judge was a member of or
affiliated to Freemasonry and as a former
employee of the provincial Attorney General’s
ministry “I am too close to these matters.”
The judge pointed out that the prosecution
and appeal of the tax matter was handled by
the federal justice department, not her former
employer, and in any event, Crown counsel
operate entirely independently from the
courts and vice versa.
After considering the authorities, she con-
cluded that Sydel “has failed to satisfy me that
a reasonable and informed person would find
my alleged association with the Freemasons
of any relevance in this matter.…No credible
evidence of a conspiracy of Freemasons was
put before me. Given, additionally, the strong
presumption of judicial impartiality, there is
no merit to this argument.
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