Whatever happened to... confidential sources at the National Post.

Posted By: Peter Bowal

"[N]o journalist can give a secret source an absolute assurance of confidentiality." --Supreme Court of Canada, per Binnie J. Introduction

People who speak to and inform Canadian journalists often ask to be protected by confidentiality. Journalists depend on these tips and will promise not to disclose their sources to police, courts or other legal authorities. The National Post case answered how journalists can guarantee the confidentiality of their sources [R. v. National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII) http://canlii.ca/t/29l77].

Facts

In 1999, Andrew McIntosh, a reporter for the National Post, began investigating what was known as the "Shawinigate" scandal and would over the next decade become the focus of that story. The newspaper wanted to determine Prime Minister Jean Chretien's ownership interest in the Grand-Mere Auberge and Golf Club, and any role he played in that business's acquisition of a federal Business Development Bank of Canada (BDC) loan that was originally declined.

McIntosh first published pieces on the transaction in the National Post on January 23, 1999, and January 25, 1999. In the fall of 2001, a confidential source "Y" contacted McIntosh. Y claimed to speak on behalf of another confidential source, "X". Both of these sources would only provide information if they could be promised confidentiality. McIntosh gave them blanket, unconditional assurances of confidentiality.

On April 5, 2001, McIntosh received a sealed, plain brown envelope with no return address. It contained a copy of a document that appeared to be a bank loan authorization which related to the $615,000 mortgage loan granted to the Grand-Mere Auberge (Inn) by the BDC in 1997. The footnotes showed the Inn owed a debt of $23,040 to "J & AC Consultants". This was a Chretien family holding company.

McIntosh thought if the document was genuine, it could have consequences for the political career of the Prime Minister. So he forwarded copies of the document to the Bank, the Prime Minister's Office, and the Prime Minister's lawyer, requesting their comments on the contents.

The Bank said the document appeared to be a copy of a document from the Bank's record, but it was a forgery. The Prime Minister's lawyer agreed that the document was forged and said the Prime Minister had no debt with the Inn. On April 7, 2001, the Bank asked the RCMP to investigate the document.

A week after receiving the brown envelope, McIntosh was...