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Journalists’ Sources – Lessons from Canada?

Former Canadian Prime Minister Jean Chretien, via the CBC website.Not only will the Irish Supreme Court have the opportunity on the appeal in Mahon v Keena [2007] IEHC 348 (23 October 2007) (discussed here and here by Daithí) to discuss the constitutional protections, if any, for journalists’ sources, but I learn from The Court that the Supreme Court of Canada will also have a similar opportunity this term on the appeal in R v The National Post 2008 ONCA 139 (CanLII):

When does freedom of the press cede to investigating crime?: R. v. National Post

The Supreme Court is set to decide whether confidential sources for newspaper reporters are entitled to a claim of privilege similar to that of confidential police informants. The case of National Post v. R. … will settle a long-standing grey area in Canadian media law, but to get there, the SCC will be asked to mediate between the conflicting public interests of investigating crime on the one hand, and the freedom of the press on the other. …

The Canadian case turns on whether a journalist can assert privilege over a bank document received from a confidential source which disclosed highly incriminating evidence of a conflict of interest by Prime Minister Jean Chrétien in a property scandal which the bank and M Chrétien claimed was fabricated. In R v McClure 2001 SCC 14 (CanLII), (2001) 151 CCC (3d) 321 the Supreme Court said that the confidentiality of the relationship between a journalist and the journalist’s source may be protected on a case-by-case basis. However, in applying the test set out in McClure, the Ontario Court of Appeal held against the privilege in The National Post case; in particular, on the question of whether the injury to the relationship between journalist and source from the disclosure of the communications is greater than the benefit gained from the correct disposal of the litigation, the Court focussed on

the fact that his document was potentially fabricated to stir up controversy surrounding the Prime Minister of Canada, … [and] found that the benefits of getting to the truth were ‘overwhelming.’ The interest in protecting confidential sources, meanwhile was ‘attenuated’ by the fact that in this case the media was “shielding a potential wrongdoer from prosecution for a serious crime.”

The outcomes of the appeals will make for an interesting pair of cases, not just in relation to the similarities of fact but in particular in relation to the law on journalists’ sources.

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6 Responses to “Journalists’ Sources – Lessons from Canada?”

  1. […] relating to the protection of journalists’ sources in the Supreme Courts in Ireland and Canada, to say nothing of a new movie inspired by the travails of Judith Miller (pictured above left), a […]

  2. I’m always a supporter of free rights and privacy but when the powerful politicians are involved, you can bet they will do anything to make sure you don’t show the world the truth of their corrupt dealings (if they have any).

  3. […] an Irish perspective, we must await the decision of the Supreme Court on the existence (and, if it exists, the extent) of a journalists source […]

  4. […] reasonably good health. Whether that is true of Ireland will be decided by the Supreme Court in its forthcoming decision in the appeal in Mahon v Keena [2007] IEHC 348 (23 October […]

  5. […] in Ireland and Canada, cases are pending in both countries’ Supreme Courts on the question of the nature […]

  6. […] the Supreme Court is determined to make us all virtuous. As we eagerly await their decision in the appeal from the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007), it appears […]

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Welcome

Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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