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Opinion: Court's decision leaves security of anonymity for the press and the public unclear

"It is reasonable to ask now: Why would any source step forward with information if we cannot protect their identities?"
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Journalists and the public need to know the ground rules for information sources in this country.

A journalist’s protection of a source is vital for the public interest.

Many crime victims and whistleblowers would not step forward with sensitive information without a commitment to shield their identities. When they have well-placed fears of the consequences of speaking out, it requires the security of anonymity.

But a new ruling on this issue in the British Columbia Supreme Court, upheld by the B.C. Court of Appeal, ought to worry journalists, their organizations, their sources and the general public.

The ruling relates to the trial of former Vancouver Canucks player Jake Virtanen, found not guilty in the last week of sexual assault.

Before Virtanen was charged early this year, before he was the object of a civil suit in 2021, a woman stepped forward and told her story to Glacier Media reporter Alanna Kelly.

Theirs was a common pact in journalism. She and Kelly had every expectation that their communications, even their recorded video conversation, would conceal her identity. 

Our position was and is that the unpublished recorded exchange was no different than if Kelly had taken notes. It needed to be protected.  

After all, the 2017 federal Journalistic Sources Protection Act was expressly created within criminal law to allow “journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.”

For his trial, Virtanen’s counsel asked for, and was granted access to, not only the video of the conversation but Kelly’s email and text exchanges with the complainant and her lawyer. The B.C. Supreme Court judge, Catherine Wedge, concluded that these were important for his access to a fair trial and that the impact on press freedom would be “minimal.”

We strongly disagree.

This is a troubling new roadblock on the rights of journalists to research in confidence many of our most delicate issues, particularly crimes and abuse of power. The implications for society are profound.

While it is true that many sources provide errant information, some of the most significant journalism of our age has been due to credible sources providing important information that would otherwise not surface.

It is reasonable to ask now: Why would any source step forward with information if we cannot protect their identities?

The appellate court upheld Justice Wedge’s order and Virtanen’s defence counsel used in court what had been chronicled and considered at that time to be a privileged discussion.

This dual onus in the 2017 law – to look everywhere else to build your legal argument, and for that argument to outweigh the public interest of preserving confidentiality – should be a strong check on casual warrants and other means to break the journalist-source relationship. Even though the new law on the surface accords considerable protection of confidential informants, the B.C. courts decided that in this case, the rights of the accused outweighed those of the journalist – and by extension, the source.

Given that the law is new, it hasn’t been tested with many cases to define its place in our Charter of Rights and Freedoms. Glacier Media has sought leave to appeal to the Supreme Court of Canada. We are awaiting the high court’s decision on whether to entertain the case, which would be the law’s most significant test yet.

Journalists and the public need to know the ground rules for information sources in this country.

We and others have argued, and courts have sometimes asserted, that an accused ought to exhaust all other avenues of gaining information before turning to a journalist’s material from a source.

In Virtanen’s case, we were unsuccessful in persuading the court that there were other ways to gain what the defence wanted. Instead, we were ordered to disclose. And that is where the new line was drawn that could, left unchanged, haunt case after case to come.

To leave this case to stand, the state has inserted itself into the relationship between journalist and source despite the 2017 protections. Our reasonable expectation of privacy in newsgathering is damaged, as it will be now for others who depend on confidential sources of information to bring their stories forward.

Which is not to say those stories are given legal immunity. Far from it. They already have to stand up against laws of defamation or national security. But it is fair to say now we can expect far fewer of them to be told if sources know their identities, conversations and exchanges are no longer shielded.

The law prevented us from writing about this matter until the Virtanen case concluded. The proceedings, even the pre-trial ones involving the decisions on evidence, were the subject of statutory publication bans.

We hope the public will understand the impact of this decision and agree that the consequences are dire for the craft of journalism if the high court does not address these concerns.

Kirk LaPointe is publisher and editor-in-chief of BIV and vice-president, editorial, of Glacier Media.

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