A decision Thursday by the Supreme Court of Canada has left British Columbia as the province where it is perhaps the most difficult for journalists to protect their confidential sources.
The High Court dismissed an application for leave to appeal by our parent company, Glacier Media, aimed at fortifying a principle of journalism that sources ought to be able to come forward without fear of being publicly identified.
It might not have been the aim of the B.C. courts for its rulings to affect journalism in that way in requiring us to provide our organization’s research last year to the defence counsel in the sexual assault trial and eventual acquittal last July of former Vancouver Canucks player Jake Virtanen – but it is the result.
It ought to make B.C. journalists wary about developing confidential sources and may make confidential sources wary about entrusting journalists.
It might steer B.C. journalists away from taking any kind of notes for fear that unpublished material could be ordered by a court to be disclosed. The days of the furtive parking lot verbal encounters with Deep Throat and Watergate would be safer.
And it ought to leave the door open to successful libel cases against individuals and organizations that choose not to create those notes in the first place and are left rather defenceless in chronicling their research.
The Supreme Court gave no reason Thursday for dismissing our appeal, consistent with its practice in such matters. But in choosing not to hear the appeal, it has left in place disquieting circumstances for the craft of journalism and those who might otherwise wish to tell us their stories.
It is also worth wondering today if the circumstances of this and other cases are failing to fulfill the wishes of Parliament when in 2017 it created a law, the Journalistic Sources Protection Act, with the objective of shielding journalistic sources.
The law had a dual purpose: to require the state and others to look everywhere else to build their legal arguments, and for those arguments to outweigh the public interest of preserving confidentiality. It was designed as a check on warrants that sought to break the journalist-source covenant.
The law was described at the time as a sea-change for media in their efforts to investigate and publish what are typically the most challenging and sensitive stories and to safeguard those who alerted us to them. Today it is more of a shipwreck than a sea-change.
Before Virtanen was charged and acquitted in July 2022, before he was the object of a civil suit in 2021, a woman stepped forward to tell her story to Glacier Media reporter Alanna Kelly.
Like every source and every journalist, she and Kelly expected information that could identify the complainant could be shielded from disclosure. Instead, when Virtanen was charged and the case came to trial, the B.C. Supreme Court sided with a disclosure application by Virtanen. We were compelled to provide Kelly’s unpublished communications with the complainant and a video recording of an interview, which it might bear noting was never broadcast by Glacier.
We argued that these records amounted to research, were the equivalent of note-taking, and deserved their historic protection unambiguously. But the court decided our protection of them must yield to Virtanen’s right to a fair trial. B.C. Supreme Court Judge, Catherine Wedge ruled that the impact on press freedom was “minimal” because the source had herself gone to police. Her ruling was upheld by the B.C. Court of Appeal.
We asked the Supreme Court of Canada to weigh in. We argued that those B.C. rulings have left journalists and their sources in a precarious position that ill-serves the public interest.
Given that our work product had already been turned over to the defence, the Supreme Court would have had to deal with a “moot” issue to define the protections. It rarely engages in moot matters, so it might not have come as a large surprise to some of those watching that our application for leave was dismissed. Still, it doesn’t leave us in a good place.
On the basis of my four decades of experience, I think it will be a lot less likely now that sources will agree to tell their stories if these conditions stand and journalists cannot with greater certainty commit to shield their identities.
As a result of Thursday’s decision that declines to bring the High Court’s interpretation on the boundaries of how journalists can protect sources under the federal law, we are left with living under the B.C. court’s limitations.
It is hard to see how this environment will not provide a chill on daily journalism.
Any B.C. journalist now must wonder if it will be credible to commit to protect the anonymity of a source. All Canadian journalists also have to wonder whether their province’s courts will look to the B.C. judgments for guidance if a similar case emerges there. (It might be a good strategy to conduct research in Quebec, where an earlier court ruling was more generous to the protection principle.)
The functioning of a democracy depends on the service of the public interest by journalism. We have adequate legal guardrails in such fields as defamation and national security to prevent or penalize journalistic abuse of information. But we find ourselves in an environment that appears to impede our pursuit of that service, and we will need someone, somewhere in authority to set the problem straight.
Kirk LaPointe is the publisher and executive editor of Business in Vancouver and vice-president, editorial, of Glacier Media.