A privilege I don't deserve
by George Jonas
National Post
May 15, 2010
Some colleagues in the media will disagree, but I think the Supreme Court of Canada came to the right decision last week about confidential sources. The court broke no new ground; it simply affirmed the law, spelling out in the process some of the law's rhymes and reasons.
The case, widely reported, involved the identity of a source. The authorities wanted to know it, and former National Post reporter Andrew McIntosh didn't want to give it up. Principled media people do their best not to reveal their confidential sources.
We assure contacts of confidentiality for numerous reasons. Not all coincide with the public interest, but many do. To mention the most obvious, without assurance of confidentiality, vital sources of information, especially from corporate or government whistle-blowers, would diminish. Reducing the media's ability to dig up stories and maintain the flow of information would obviously not benefit society, so protecting sources has become a universal journalistic practice.
However, if anyone with a legitimate reason for withholding evidence acquires a presumptive privilege to do so, it becomes impossible for the police to investigate, the prosecution to prosecute, aggrieved parties to sue and defendants to defend themselves. Without compellable witnesses, tribunals can't adjudicate disputes, civil or criminal. If enough occupational groups that have valid confidentially interests were to claim such a privilege, the legal process would break down. Having the administration of justice grind to a standstill is definitely not in society's interest.
The 8-1 majority decision written by Justice Ian Binnie held that judges could weigh the question of journalists protecting their sources on a case-by-case basis, but there was no public interest in giving journalists a blanket right, or even a presumptive right, to refuse to do what other competent and compellable witnesses must, namely testify when requested. The majority wouldn't have excused the National Post's reporter from giving evidence in this instance; dissenting Madame Justice Rosie Abella would have.
Eight years ago, a team of CBC broadcast journalists was asked to get on the witness stand with their unedited video tapes, to help a judge determine in a sexual assault case if the stories of some complainants on TV were different from their evidence in court. The CBC refused, on the basis that compelling journalists to give evidence under these circumstances would violate their rights under the Canadian Charter of Rights and Freedoms.
"The public is entitled to every person's evidence," I wrote at the time. "This is a basic principle. It would be impossible for tribunals to resolve disputes if witnesses wouldn't have to tell them what they know. We could never hope to arrive at the truth in any matter.
"The only absolute privilege protecting a person from this duty is between a solicitor and a client. The clergy has no such absolute privilege. Neither do physicians. Police officers don't have it, nor do government officials. Even spouses and family members are compellable witnesses against one another in many jurisdictions.
"It's a different matter that tribunals generally try to balance the public's legitimate need for evidence with other legitimate social needs, from official secrets to personal privacy. That's why priests are rarely asked to tell a court what they've heard at confession. And that's why it's uncommon for courts to force journalists to reveal their sources.
"But lately various groups started demanding enshrined privileges against having to stand up in court. The police claim it to protect their informers. Complainants in sex cases claim it to protect their privacy. Security bureaucrats claim it for the 'overriding' interests of the state. And journalists claim it for press freedom, saying that without it their sources might dry up.
"To call this trend dangerous is an understatement. It leads to the immunity of special groups against the truth itself. The media should be the first to oppose it, instead of trying to hitch a ride on it."
My column appeared in the Ottawa Citizen eight years ago. It's unlikely that the justices of the Supreme Court read it and it wouldn't have influenced them if they had (more is the pity). Still, sometimes they come to the right decision without my guidance, as they did last week.
Priests, doctors, security officials, crime victims, parents, children, spouses may all face hard choices or conflicting duties at times. Why should journalists be exempt, automatically or even presumptively? We wouldn't like cops to be able to arrest people without having to tell a court why, offering as an excuse that they've sources to protect. Yet we're asking for a similar privilege.
Can't promise sources protection without it? Oh, yes we can -- we just can't promise sources that we won't go to jail for it.
Would I reveal my sources? I hope not -- certainly not if it meant breaching an undertaking on which a source relied in talking to me. Anyway, that is my lookout. The law isn't Lloyds of London. I can't expect judges to reinsure my ethical choices as a journalist. I must seek immunity for doing the right thing, not from the courts or the constitution, but from my conscience.