October 2, 2012
Week 4, Tuesday
Journalists and their sources
identifying sources and the law
Courts, public inquiries and legislatures have the power to hold journalists in contempt of court for
reefusing to provide evidence including the names of their sources.
Generally, such bodies are hesitant to use such powers.
• In libel suits, plaintiffs have the right to demand that journalists identify their sources so they
can be called to testify
• Ontario's “Newspaper rules”: journalists can withhold sources' names during pre-trial phase of a
The McIntosh Case:
• R v. National Post
• In 2001, National Post reporterAndrew McIntosh received a business development bank of
canada loan authorization
• It suggested Prime Minister Chretien stood to benefit from a $615,000 loan to the Grand-Mere
Inn in Shawinigan.
• Bank officials said it was a forgery and called the RCMP
• An ontario judge granted the RCMP a search warrant to seize the document and envelope for
DNAevidence to determine who sent it.
• The documents arrived anonymously but McIntosh learned they had come from a confidential
source he had already promised to protect.
• The post fought the warrant and in 2004 Justice Benotto quashed it
• The was the first time in Canada a judge recognized that journalists havs a legal rights,
entrenched in the charter guarantee of freedom of the press, to protect the identities of their
sources in certain circumstances.
• Justice Benotto: Not to protect sources and privilege employee confidentiality would be a
'licence for corporations, governments, and other employers to operate without accountability'.
• Justice Benotto rejected blanket protections for journalists sources, arguing that journalists
shouls have to prove that their relationships must be protected.
• She accepted McIntosh's arguments for protection as it passed the Wigmore Test
Wigmore: invented be american judge- to determine if correlation between two individuals
should be privileged.
• McIntosh has promised to protects the identity of his source (Did someone offer to keep the info
• That promise was crucial to their relationship and the source's willingness to provide
• It was in the public interest to foster this kind of confidential relationship.
• Protecting the confidential relationship was more important than the potential benefits of
forcing the journalist to identify his source.
• Benotto said because the original jugde (who administered the warrant) did not apply the
wigmore test, the seizure was ruled invalid and both the document and the sources identity were deemed protected.
Ontario Court of Appeal:
Reversed Benotto's decision in 2008, Ordering McIntosh to give h