Judge distinguishes between true whistleblowers and partisan pretenders in ordering disclosure of confidential source

8 Jan

We’ve published here before about former Minister of Parliament Blair Wilson’s defamation lawsuit, part of which rests on an allegation that former British Columbia politician Judi Tyabji distributed an anonymous and defamatory letter.

On December 31st, Mr. Justice Williamson of the British Columbia Supreme Court ordered Elaine O’Connor, a reporter to whom the letter was provided under a condition of confidence, to disclose her source. His decision turns heavily on the characterization of the relationship between the confidential source alleged to be Tyabji and O’Connor. His Honour says:

I am satisfied that if the source is an arm’s length person disclosing information to a member of the media out a sense of civic responsibility grounded in a desire to foster accountability and responsibility in Members of Parliament, the public interest in protecting the identity of such a source outweighs the public interest in ensuring the proper administration of justice. But I also am satisfied that if the source is a participant in a scheme to favour the interests of one side in an acrimonious family dispute, or is a participant in a politically motivated scheme to defame and discredit an elected politician, then the public interest in fostering the proper administration of justice outweighs the public interest in protecting a journalist’s anonymous source.

Mr. Justice Williamson said that he was unable to find which of the two categories into which the anonymous source alleged to be Tyabji fell, and therefore held that O’Connor had failed to meet her burden of establishing the privilege she claimed.

This puts journalists in a particular dilemma given the evidence available to prove a source’s motive will always be limited if anonymity is to be maintained. The Globe and others report that the decision will be appealed. It seems like one that may have some legs.

Lougheed v. Wilson, 2010 BCSC 1871.

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