OTTAWA—In a landmark ruling, Canada’s highest court says journalists do not enjoy a constitutional right to shield the identity of sources during police investigations.

Yet, in a decision hailed by some media lawyers for recognizing the value of investigative journalism , the Supreme Court of Canada declared Friday sources may be shielded on a case-by-case basis.

The onus, however, is on a media outlet to prove the public interest in protecting a source outweighs the interest in investigating a crime.

The 8-1 judgment upholds a 2001 order against the National Post’s editors to hand over a document – which purported to be bank loan papers—received by former Post reporter Andrew McIntosh while he was researching a series of articles on the so-called “Shawinigate” affair involving then-prime minister Jean Chrétien. The document suggested a conflict of interest in Chrétien’s interventions to support a loan to a beleaguered hotel in his home riding.

RCMP spokesman Cpl. Luc Thibault, in Montreal, said an investigation into the allegedly forged document continues, and commercial crime investigators will soon meet to discuss next steps.

However, McIntosh no longer works for the Post, and had stowed the document in a “safe” place, off the paper’s premises while the paper challenged the police search warrant. The paper’s current editors are unaware of its location. McIntosh had “no immediate comment” Friday.

Lawyer Marlys Edwardh, representing the Post and McIntosh, said in an interview the ruling, released Friday by the Supreme Court of Canada, set out some clear guidelines that will help journalists. “In some senses, this is a huge win,” she said.

The high court rejected the idea that the Charter of Rights’ guarantee of freedom of expression grants a special constitutional privilege to journalists, but it also said, for the first time, that police investigations won’t always trump the media’s interest in protecting sources.

Instead, Justice Ian Binnie wrote that courts would have to weigh “the seriousness of the offence under investigation,” and just how relevant or valuable the evidence sought really is to police. Those factors would be measured against “the public interest in respecting the journalist’s promise of confidentiality,” said Binnie, who wrote that investigative journalism helps fill “what has been described as a democratic deficit in the transparency and accountability of our public institutions.”

The Supreme Court said if the cops are called in to conduct a “contrived” investigation to silence a secret source, a court may well refuse to order a source’s identification or the production of physical evidence that would tip them to a source’s identity.

The high court flatly rejected the Crown’s argument that “the existence of any crime is sufficient” to trump a journalist’s promise of anonymity. “That is too broad a generalization,” the court said.

But the Post’s case is not a “usual one” where a reporter could protect a source, said Binnie. Rather, it is a “serious” matter where the document sought by police may have been deliberately falsified in order to embarrass a sitting prime minister.

Binnie said even a lawyer who receives physical evidence relevant to a criminal investigation cannot withhold it on the basis of solicitor-client privilege, and journalists deserve no greater protection.

The ruling noted that with the proliferation of Internet, media, citizen journalists, bloggers and tweeters, there are no uniform professional guidelines that govern the ethics or practice of those claiming to be reporters, nor their handling of sources and information.

Binnie said “to throw a constitutional immunity” around such an “ill-defined group of writers and speakers and whichever ‘sources’ they deem worthy . . . would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.”

The National Post and McIntosh initially won their challenge of the search warrant at the Ontario Superior Court. But the Ontario Court of Appeal in 2008 ruled the paper had no right to refuse the handover of the documents because it was using journalistic privilege to shield a wrongdoer.

Justice Rosalie Abella dissented with the majority Friday, concluding that confidential sources are key to the “responsible performance of the media’s role” and “ought to be protected.”

“I think it’s a sad day for investigative journalism,” said Toronto Star lawyer Bert Bruser, “because the court has refused to provide constitutional protection for the relationship between a journalist and a source, and that in my view is an incredibly important relationship that needs greater protection.”

Loading... Loading... Loading... Loading... Loading... Loading...

“Although not a win for the National Post on the facts of the case, this decision is the strongest statement yet by our courts as to the basis on which the law protects journalists’ confidential sources,” said Phil Tunley, lawyer and board member of Canadian Journalists for Free Expression.

“It is unfortunate that a journalist who has been scrupulously careful in his dealings with a confidential source is now being put in the position of having to break his promise or face legal consequences,” said Arnold Amber, president of CJFE. “But in the big picture, this has to be seen as a significant step forward for journalists in Canada.”

Friday’s ruling did not deal with a Globe and Mail challenge, still before the Supreme Court of Canada, that seeks to protect sources in the context of civil proceedings.