Be Careful… Your Dog May be on Bob Fife’s Speed Dial, Ready to Spill About You

Actually, that’s likely not true. The Ottawa bureau chief of the Globe and Mail and your dog may not have an anonymous source relationship.

But these days, you never know. Anonymous sources are all the rage now. And Fife is very good at what he does. As for your dog, you’ve seen what she’ll do for food.

The use of anonymous sources by both sides in the Jody Wilson-Raybould/SNC Lavalin affair has caused grief to all sides in the debate. Someone tipped Fife to the fact Wilson-Raybould was angry about being moved out of her Minister of Justice job. She blamed the shuffle on her refusal to give in to pressure from Prime Minister Justin Trudeau to give SNC Lavalin a Deferred Prosecution Agreement, rather than prosecute them for bribing Libyan officials.

Fife used that to break a story that has vapour-locked federal Canadian politics for more than two months, which is dozens of political dog years.

Later, someone leaked a story to the Canadian Press saying Trudeau and Wilson-Raybould’s real dispute was over the choice of a new western Canadian judge for the Supreme Court of Canada and her candidate for a new Chief Justice.

(For what it’s worth, I liked the idea of a DPA. It’s restorative justice. The company must make amends, fire its bad apples, and is on a sort of probation. As for the fight-over-the-judge scenario, my own sources say it wasn’t true.)

There was a lot of finger-pointing at journalists for using anonymous sources. Who were they? (Quick answer: they’re anonymous). Do they have an axe to grind? (Quick answer: Yup. Or they wouldn’t take that risk. Think of Mark Felt – Deep Throat, the most famous anonymous source in history, who leaked the Watergate story because he was passed over for promotion to Director of the FBI ) Are reporters being used? (Yes, but they like it. Kind of like sex partners.)

Some media outlets tried to explain their policy about the use of anonymous sources. (Here’s another, from last fall, when the anonymous source issue was big in the U.S.)

But not all anonymous sources are legit. And sometimes the use of them is just silly.

Journalists who quote anonymous sources ask their readers and listeners to take a leap of faith. Does the source know what she’s talking about? Does she tell the truth? Does she even exist, or is the reporter filling in the gaps of his story with what he thinks is real but cannot prove?

Getting back to Fife, it’s clear his source gave him a solid version of Raybould-Wilson’s take on events. So, even if – as I do – you think poorly of her, you can’t think badly of Fife for doing his job well.

Canada has a law protecting journalists’ sources. Lawyers who go after reporters’ sources are unlikely to get far, and they’re also risking damage to their own case and costs against their client. This Montreal Gazette article written by a lawyer is an interesting perspective on the issue.

The Supreme Court of Canada in R v Vice Media Canada Ltd and Ben Makuch  2018 SCC 53  did leave the door open somewhat, at least to the police. Like so many other legal questions, the forced revelation of sources involves a test that’s a balancing act: the public interest of a successful prosecution weighed against the public interest in knowing the facts. There’s one problem with this decision: it dealt with the situation before the passing of the new federal source protection law.

(Update, April 18: A new analysis of this decision from the CANLII legal web site.)

The previous law was explained in R v National Post, 2010 SCC 16, [2010] 1 S.C.R. 477 ,which came out at the same time as the seminal case Grant v Torstar (which gave media greater protection against libel claims).  The underlying principles were in the Wigmore analysis, which balanced the interests of the community. Would the community be harmed more if a court case failed because media confidentiality was maintained,   or would the harm to the community be greater if a case went ahead after a court forced the source to be named?

In R v Cote, 2018 QCCQ 547 evidence gathered in a police investigation was leaked to journalists. The Quebec provincial criminal court did a long, detailed analysis of the media’s source protection rights and found in favour of the reporters. And the judge did it despite the obvious disdain for journalists that is all over the decision.

In Ontario, a Superior Court judge recently ruled, in an ex parte hearing, that investigators of a sexual assault has the right to force the CBC to hand over evidence that the CBC claimed was protected by the new law. (The journalists were not allowed to make their case at the hearing, but the judge did consider a letter from the CBC’s lawyers.) (R. v. Canadian Broadcasting Corporation, 2018 ONSC 5856)

The judge made this decision for two reasons: police couldn’t get the material any other way, and the public’s interest in knowing the CBC’s information did not outweigh the public’s interest in the investigation and prosecution of the sexual assault.

So it’s a tough world out there. Anonymous sources have their place, but reporters need to ask themselves whether the use of these sources is in the public interest, and if they can risk being unmasked in the rare cases like Makuch when justice will only be served if that anonymity is lost.

As for Fife, well, Bob, enjoy that National Newspaper Award. You earned it, even if I wished you never wrote the story.

(Since this was first posted, I’ve done some copy edits, some bridging material and fixed some case citations.)