Daniel Leblanc on 22 October 2010 won his case before the Supreme Court on the right of journalists to protect their sources of information. The source in question was known only as “MaChouette” and she enabled the journalist to reveal a federal sponsorship scandal at the start of the decade. It is however only a partial victory because in May this year, Canada’s highest court made exactly the opposite ruling in another case.
Can you remind us about the story behind the Supreme Court’s jurisprudence ruling in your favour?
The case began with the final referendum on Quebec sovereignty. The narrow “No” vote launched a “war of the flags” between the federal and provincial governments. The federal side launched a major campaign in Quebec to promote Canada’s image costing 50 million dollars a year in fees paid to communications and advertising agencies.
When did the scandal break?
In 2000-2001, the press began to reveal overcharging on the part of the communications agencies. This overcharging led to injections of money going into the coffers of some political parties, foremost of which was the Liberal Party of Canada. There were also incidents of phantom employees. All this was confirmed in 2005 with the opening of a federal investigation.
How did you meet “MaChouette”?
It June 2000 I received an anonymous phone call from a woman – who later did give me her name – who was obviously in the know about these cases. She gave me names, facts, leads on contracts. I never quoted her in my articles. She gave me a line of inquiry to follow and I checked it out. A year after the investigation, in 2006, I published a book called “Codename: MaChouette” that revealed, with her agreement, the existence of the source.
But it should not be forgotten that when the federal investigation was set up, in 2005, the Canadian government, began two kinds of legal proceedings to protect itself. Some of them were civil and another was criminal, headed by the Royal Gendarmerie of Canada (GRC).
And was this when the advertising group Polygone decided to bring a case against you?
The Polygone group was the one that defended itself most vigorously because it had a lot of to lose in this case. Why did it want to get the name of my source? Quite simply because Quebec’s civil law lays down a maximum period of three years to open proceedings from the moment the facts are known. After that it is impossible to continue a case. The federal government took the view that the sponsorship scandal had been known about since 2002. But “MaChouette” got in touch with me in 2000. It was in Polygone’s interest to show that the facts were known from that date on and that, as a result, the deadline for proceedings against it had expired.
Now Canada’s Supreme Court has ruled, the conflict between you and Polygone should go back to the Quebec superior court of justice, which ordered you to identify “MaChouette”. What would be the point since nobody can any longer demand that your name your source?
Indeed, and the big question now is whether Polygone wants to start it up again. The Supreme Court has reaffirmed that protection of sources remains the rule. It is a victory for me but also for the Canadian press in general.
For all that, last May, the Supreme Court made a ruling that was exactly the opposite…
That is true but the case is not at all similar. On 7 May, the Supreme Court ordered the daily National Post to hand over documents to the GRC, that would identify the source of journalist Andrew McIntosh. The case goes back to 2001, when the colleague revealed that the then prime minister Jean Chrétien had helped a friend get a loan from the Business Development Bank of Canada in his home town of Shawinigan. While the bank had sworn that the bank documents that formed the basis of the investigation, were forged. The issue therefore was to establish proof of the forgery by trying if need be to obtain the name of a source.
Canada is a highly-rated country in terms of press freedom. Do you agree with that?
Yes, overall. It is true access to some information has become more difficult since Stephen Harper became prime minister. The press find it harder to get hold of information in cases involving national security. But as for protection of sources, I think that the ruling in my favour confirms a positive trend. Look at the Supreme Court ruling in December 2009 opening up the defence of “responsible communication” in defamation cases. The journalist facing proceedings can now rely on showing that they had done everything possible to give the opposing side a right of reply and thus guarantee their professional good faith.