By Janice Tibbetts, Postmedia News
OTTAWA — The Supreme Court of Canada reinforced freedom of the press Friday in a ruling that gave Quebec journalists the right to keep their sources secret provided they can show that the public interest in shielding confidantes does not threaten the administration of justice.
The ruling provides ammunition to reporter Daniel Leblanc, who now will go to court in Quebec to argue against divulging the name of a source who tipped him off about the sponsorship scandal, a major national story about federal misspending that is widely believed to have contributed to the former Liberal government's defeat in the 2006 federal election.
The Supreme Court, in a 9-0 decision, refused to rule on Leblanc's case, sending it to the Quebec Superior Court with instructions to consider an established legal test that can give the media a special privilege, on a case-by-case basis, to remain silent on their informants.
The ruling affirms for that journalistic privilege, which the Supreme Court recognized for the first time earlier this year for the rest of Canada, can also apply in Quebec, which has a separate legal system in civil matters.
Leblanc, a veteran Globe and Mail reporter and winner of an international press freedom award in recognition of his protracted legal battle, code-named his source "ma chouette," which translates as "my sweetie."
He predicted Friday that the decision will give him a valuable boost as he continues his battle to defend his source.
"The big victory is the recognition of journalistic work, the protection of sources that has to weigh in the balance when these issues are raised in court," Leblanc told reporters in the Supreme Court foyer.
The established legal test is a stringent balancing act, which puts the onus on journalists to show that the public interest in keeping sources confidential outweighs the importance of disclosure.
"It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalistic-source confidentiality outweighs the public interest in the disclosure that the law would normally require," wrote Justice Louis LeBel.
He stressed, however, that there is "a high societal interest in investigative journalism."
The ruling is only a partial victory for Leblanc. While it overturned an earlier ruling that ordered disclosure of his source, the decision fell short of the class privilege the Globe was seeking and it failed to produce a declaration that Leblanc's confidante is protected.
The case stems from a Quebec Superior Court ruling permitting lawyers for Groupe Polygone, an advertising firm that is being sued by Ottawa in hopes of retrieving some of the $35 million it allegedly over-billed the government, to question Leblanc about the identity of his source.
The decision came at a time when debate persists internationally on whether there should be a sweeping or qualified privilege for journalists to shield their confidantes — just as police informants enjoy protection from exposure.
More than three dozen American states have enacted "shield laws" for journalists in recognition that stories would go untold in the absence of source confidentiality, including matters of significant public importance involving government or corporate wrongdoing.
Dean Jobb, a leading media law expert, described Friday's ruling as an "extremely strong" confirmation of the value of investigative journalism and the importance of giving unnamed sources — particularly in cases where their disclosures are key to the public interest — some expectation that their identities won't be revealed.
Jobb predicted the decision will bode well for Leblanc when he takes the Supreme Court's marching orders back to the Quebec Superior Court for a ruling, given that the whistleblower in question helped blow the lid off the sponsorship scandal, dealing with misspent millions that went to Liberal-friendly advertising firms in Quebec.
"As a journalist, you have to step back and say, 'If not in this case, well then when'? " said Jobb, a journalism professor at University of King's College in Halifax and author of Media Law for Canadian Journalists.
The latest Supreme Court ruling is among several in the last year dealing with press freedom.
In a landmark decision in May involving the National Post newspaper, the bench refused to elevate protection of secret sources to a constitutional right, ruling against a journalist who refused to surrender a confidential document to police for a forgery investigation.
The court concluded that the press — in a world of tweeters and bloggers — is too much of an ill-defined group to give wholesale immunity.
The judges, however, declared for the first time that journalistic privilege can exist, ruling that each case must be weighed on its own merits.
Globe lawyer William Brock said Friday that the Supreme Court decision "is a very substantial protection" for journalists and their sources because the bench concluded that names should only be revealed when it is "vital to the integrity of the administration of justice."
The Supreme Court on Friday also lifted a judicial gag order imposed on talks between the government and Groupe Polygone to reach an out-of-court settlement.
With files from Randy Boswell
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