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As part of our occasional review of cases from other Supreme Courts around the world, we draw attention to a important case,  Globe and Mail v Attorney General of Canada, et al, regarding the disclosure of sources coming before the Canadian Supreme Court tomorrow, 21 October 2009. The hearing will, of course, be available on Webcast – UKSC please take note.

The facts are somewhat complicated. The best account of the history appears in the Factum of the Attorney General.

In 2005, the Attorney General of Canada commenced procedings for some C$63 million dollars against various parties, including Groupe Polygone Éditeurs inc. (“Polygone”).  There were serious allegations of fraud in sponsorship contracts provided to the Canadian Government.  Polygone argued that the Canadian Government knew about the illicit activity all along.

Meanwhile, Daniel LeBlanc, a journalist on the Globe and Mail newspaper, took time off to write a book ont he scandal.  The book when it was publsihed in November 2006 contained a myriad of sources, including a key source identifed only as “MaChouette”. 

In May 2007, in the proceedings, Polygone (in a move which appears somewhat alien to English legal eyes) applied for and was granted an order requiring certain persons, including several employees of the Government of Canada, to answer a series of questions including whether they had spoken to Mr LeBlanc and more specifcally if they were “MaChouette”.  In June 2007, similar orders were made in respect of other persons.  It appears that in most cases, the persons so questions duly submitted their answers.

Somewhat belatedly, in January 2008, the Globe and Mail became aware of these orders and, even more belatedly, in April 2008, applied to have the orders made in May and June 2007 revoked (the purpose of the application, given that the answers had already mainly been already given).  In the course of the hearing of the application, Polygone sought and was granted the right to cross examine Mr LeBlanc (again somewhat strange to English legal eyes).  During the cross examination, Mr LeBlanc was asked a series of questions by Polygone’s counsel regarding when he had contact with MaChouette, which he refused to answer.  However, the Court dismissed his objections and required him to answer.  The Globe and Mail sought leave to appeal on this issue but this was refused by the Court of Appeal.  This is the first issue to come before the Supreme Court in this case.

After the Court of Appeal decision, the Globe and Mail decided to withdraw its application for revocation, to save Mr LeBlanc from having to answer these questions.  However, the Court refused to allow the withdrawal of the application saying, “control [by the Globe and Mail of its own application] is … limited [and] must not be exercised to the prejudice of the other parties… Considering that the objections raised by the Globe were dismissed, Mr Leblanc must answer the questions about MaChouette to allow the suit initiated by the Attorney General of Canada to continue”.  This is the second issue to come before the Supreme Court.

Undeterred by this, in October 2008, Mr LeBlanc wrote a piece, published in the Globe and Mail, which referred to the litigation and settlement discussions taking place between the parties.  Polygone then sought and were granted an order restraining Mr LeBlanc publishing any matter concerning settlement negotiations in the case.   The Globe and Mail once again sought to appeal this but the Court of Appeal again refused to hear it.  This is the third issue to come before the Supreme Court.

Finally, in April 2009, the Court issued an order against another journalist, Joël Bellavance of La Presse, and any other person having knowledge of the order, restraining the publication of any settlement negotiations in the matter.  This time, the order was discharged by the Court of Appeal.

The other submissions appear here.

This article by Dean Jobb, an associate professor of journalism at the University of King’s College in Halifax, notes that the protection of journalistic sources has not been fully established by the Canadian Supreme Court and this may be an opportunity to do so.  It also notes that another sources case, McIntosh, (this time where it is the police rather than the courts seeking disclosure) is due before the Supreme Court.

We would like to thank Mr Benjamin Pell for reminding us of this upcoming hearing.

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