Of Scandals, Sources, and Secrets: Investigative Reporting, National Post and Globe and Mail

Abstract

Twice in 2010 the Supreme Court of Canada considered whether to protect a journalist’s confidential source. In both instances, well-known reporters from national newspapers relied on confidential sources to expose ethical breaches and wrongdoing at the highest levels of the federal government: while Andrew McIntosh of the National Post wrote about “Shawinigate,” Canadians learned the details of the Quebec sponsorship scandal from reports by Daniel Leblanc of the Globe and Mail. Rather than constitutionalize the journalist-source relationship, as an aspect of newsgathering under s.2(b) of the Charter of Rights and Freedoms, the Court applied the pre-Charter common law standard, which is Wigmore’s general test for privilege. In rejecting McIntosh’s claim in R. v. National Post, the Court showed little or no awareness of the vital connection between his reporting on Shawinigate and s.2(b)’s core values of transparency and accountability. And despite adopting a more source-protective approach in Globe and Mail v. Canada, the Court failed to recognize that the common law Wigmore test is inadequate to protect the confidential sources newsgathering depends on to promote transparency and accountability in public affairs. This article provides a detailed analysis of National Post and Globe and Mail, and then concludes that Canada needs legislation, in the form of a shield law, to protect the confidentiality of anonymous newsgathering sources.

Keywords: supreme court, confidential, Shawninigate. Globe, Mail, newsgathering, s.2(b), charter, National Post

JEL Classification: K00, K40, K41, K42