Absolute protection not necessary

Many years ago, when your correspondent was a daily columnist at Queen's Park, a young reporter for another newspaper used to regularly regale his colleagues with stories the things he managed to include in his "news" stories.

"Do you think they'll (editors) notice this one," he'd ask? Usually, they didn't, no doubt assuming that whatever was being filed by their reporter was always on the up and up.

That same reporter is now a columnist himself for a major Canadian daily and every time I read his column I confess to wondering whether any of it has been manufactured for greater impact or not.

And here's the thing. He isn't close to being the only journalist I dealt with over the years who didn't hesitate to spice up a quote, or make one up altogether, if the actual facts didn't fit the story he or she wanted to write.

Most journalists aren't particularly dishonest, at least no more or less dishonest than most other people.

But some are notorious and usually their colleagues know who they are.

All of which brings us to an issue which the vast majority of journalists are watching closely, a case involving a brown paper envelope sent anonymously in 2001 to National Post reporter Andrew McIntosh.

Let's be clear here. McIntosh is absolutely not the type of journalists who would make things up. He's as solid as they come. An absolute professional.

But here's the thing. The Post - and most media outlets - believe that McIntosh, and all journalists, should have the absolute right to protect their secret sources from the prying eyes of the police and/or the courts.

The document in that envelope - now thought to be a forgery (although McIntosh does not believe it is) - could have linked then prime minister Jean Chretien to a messy conflict-of-interest scandal. This was big, big stuff.

When the police attempted to seize McIntosh's envelope, the newspaper went to court to argue that media freedom trumps crime detection. The newspaper won the first round when in 2004 Ontario Superior Court Madam Justice Mary Lou Benotto quashed the police warrant demanding the document on the grounds that confidentiality agreements are in the public interest, citing Watergate as an example. But Ontario Court of Appeals Mr. Justice John Laskin, in a 3-0 decision, overruled her. Among other things, he said police might have collected DNA from the envelope. That court found that journalists don't have an absolute right to protect their sources.

And late last week, the Supreme Court of Canada agreed to hear the case which, most journalists hope - although not this journalist - could result in a landmark decision giving journalists the right to always protect their sources.

The argument is, of course, that if journalists are routinely forced to reveal their sources, their sources will dry up, and stories which would serve the public interest would never see the light of day.

The truth is that court orders for journalists to reveal their sources are rare indeed. There isn't exactly a flood of journalists being dragged in front of the courts and forced to chose between jail or revealing their sources. It happens. But not often. And when it has happened, there has always been a justifiable legal reason for it.

Say, for example, that a partisan opponent of Prime Minister Stephen Harper slipped a forged document to a journalist which purported to show that Harper is taking bribes from certain companies to push legislation which is friendly towards them. If Harper had no way of seeing this document, and no way of discovering where it came from, how would he defend himself from this lie?

Journalists - like everybody else - are not infallible. They too make mistakes. Some, as mentioned earlier, are also unethical.

The Supreme Court reference - which surely won't agree that journalists should have an unfettered right to protect their sources - could still be useful, however.

Globe and Mail lawyer Peter Jacobsen says "The issue of what test the state has to meet before it can force a journalists to reveal the identity of a confidential source is of profound importance to the many journalists who rely on trust confidential sources to get important information into the public realm as soon as possible."

Absolutely. That's the real issue here. When should the police and/or the courts be able to force a journalist to reveal a source. Obviously it shouldn't be done lightly. It should only be done when there is no other way to either prove or disprove the information or when there is reason to think the document is either a forgery or that the "source" doesn't really exist at all.

It happens. And giving journalists absolute protection would only encourage it.