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"Ma Chouette" Remains Unidentified (For Now)

When Daniel Leblanc was publishing stories in the Globe and Mail newspaper relating to the federal sponsorship scandal, he nicknamed one of his confidential sources “Ma Chouette” (“My Sweetie”). Thanks to a recent Supreme Court of Canada decision upholding the confidentiality of the identity of media sources, “Ma Chouette” will remain unidentified, for now.
 
The case being heard by our highest court pitted Montreal media company Le Groupe Polygone Editeurs Inc. against the Globe and Mail and Mr. Leblanc. Le Group Polygone is one of a number of companies from whom the Attorney General of Canada sought to recover millions of public dollars paid to them by the federal government under the sponsorship program.
 
Leblanc, relying on his sources, wrote a series of articles about the sponsorship program, alleging the misuse and misdirection of federal funds. Le Groupe Polygone sought to force Mr. Leblanc to reveal the identity of his key source.
 
The Quebec Superior Court ordered Leblanc to answer questions about his sources but Leblanc refused to identify the one he code-named, “Ma Chouette”.
 
In its decision, the Supreme Court of Canada echoed its recent statements on the topic of freedom of the press and, in particular, the confidentiality of sources’ identity. It overturned the Quebec court’s order compelling Leblanc to answer questions about his sources.
 
The Supreme Court of Canada reiterated that some form of legal protection for the confidential relationship between journalists and anonymous sources is required. The Court drew an analogy between journalist-source privilege and police-informer privilege, both of which have their roots as judicially created rules of public policy.
 
The Court also emphasized the importance of whether the source’s identity is relevant in the context of the proceedings and whether relevant information can be obtained by means other than by revealing the identity of a confidential source. These requirements act as a buffer against fishing expeditions and unnecessary interference with the important work of the journalists.
 
The Court, while still not recognizing a blanket constitutional protection for the media, concluded that requiring a journalist to breach a confidentiality undertaking with an anonymous source should be done only as a last resort.
 
It did, however, send the case back to the Quebec court to revisit its earlier order in light of this ruling. So, “Ma Chouette” may yet be publicly identified.
 
Leblanc’s use of a confidential, code-named source is one of many instances in which anonymous whistleblowers have sought refuge in the arms of journalists.
 
Perhaps the most famous example of such a scenario was that of an American insider source code-named “Deep Throat”. He was partially responsible for the downfall of President Richard Nixon’s administration in the midst of the Watergate scandal.
 
“Deep Throat” was the source relied upon by Washington Post reporters Bob Woodward and Carl Bernstein for critical leads. This information led to the revelation of the direct knowledge and involvement of the Nixon administration in the cover-up of the break-in to Democratic National Committee headquarters at Washington’s Watergate Hotel.
 
In June, 1972, when the Watergate break-in occurred, it wasn’t immediately apparent that anyone in the republican-held White House had any involvement. But this was no ordinary break-in, as the burglars were found to have been carrying a large amount of cash, a police radio scanner, cameras, a large supply of film, and electronic listening and recording devices.
 
Over a period of a couple of years, Woodward and Bernstein and many other journalists searched for information identifying the conspirators behind the break-in and subsequent cover-up. The media coverage served to keep the matter in the public eye and to increase pressure on the conspirators behind the break-in and subsequent cover-up.
 
Woodward and Bernstein’s articles in the Washington Post contained insider information that was not available to other journalists and which closely replicated the F.B.I.’s own investigative reports. Their source, a highly placed F.B.I. official (with whom Woodward would occasionally meet late at night in an underground parking garage) was dubbed “Deep Throat”.
 
“Deep Throat” was, 30 years later, revealed to have been F.B.I. Associate Director, Mark Felt. Woodward had repeatedly refused to identify Felt, stating that the anonymous source would only be identified after his own death or upon coming forward voluntarily (which Felt did, in 2005).
 
In part as a result of Woodward and Bernstein’s (and Felt’s) efforts, Nixon eventually resigned from the presidency and key Watergate conspirators John Mitchell, Robert Haldeman, and John Erlichman (and others) were convicted and imprisoned. Nixon escaped impeachment and criminal prosecution as a result of his resignation from the presidency and subsequent full and unconditional pardon by his successor, President Gerald Ford.
 
It appears that the tradition of journalists’ protection of their confidential sources is alive and well in Canada, too. From “Deep Throat” to “Ma Chouette”, anonymous whistleblowers can take comfort that our highest court views the protection of their identity very seriously.
 
Robert Smithson is a labour and employment lawyer. For more information about his practice, or to view past “Legal Ease” articles, go to www.pushormitchell.com.