“I’ve never encountered this,” says Fred Kozak, president of the Canadian Media Lawyers Association, of being called this summer to defend one reporter’s journalist-source privilege against another media outlet. Kozak was hired by the CBC in a case involving the Yukon News and Watson Lake physician Said Secerbegovic, who alleges the paper defamed him in a November 2004 editorial.
The editorial was based on CBC reporter Nancy Thomson’s coverage of drug and alcohol abuse in Watson Lake, including federal documents she had obtained that revealed that claims for Tylenol 3 and Ativan in the community had more than doubled and tripled respectively between 2002 and 2003. Her series caused a stir. Secerbegovic, who owns Watson Lake’s only private pharmacy, dismissed Thomson on a phone-in show as a National Enquirer journalist. On another show, Yukon Premier Dennis Fentie (also Watson Lake’s MLA) repeatedly challenged her “to make your accusation,” before walking out of the studio. The Yukon News editorial that came out shortly after defended Thomson’s report as a public service and criticized Fentie’s response. It also noted that Fentie’s wife worked for Secerbegovic, and the doctor had a contract to buy property from Fentie.
Secerbegovic didn’t sue the CBC. His lawsuit, launched in 2005, alleges the Yukon News editorial implied he benefited financially by over-prescribing medication and that he was “the cause of or related to the death of two men, a domestic assault, and an alleged person being charged with second-degree murder,” and so on. The Yukon News says that to mount its defence of “fair comment, responsible communication on matters of public interest and justification,” it needs Thomson’s “notes and records, tapes of her interviews, and a tape of the CBC broadcasts.”
Thomson is adamant about protecting the identities of her sources. She interviewed 11 people in the community in 2004. To date two have been identified: one found dead with a combination of prescription drugs in his system and another convicted of manslaughter charges. As the May 2011 defamation trial date nears, Kozak said he will “vigorously defend” Thomson’s decision. In her submission to the court, Thomson argues that revealing her sources’ names would not only destroy her ability to work in the community, but also other journalists’.
True, the Yukon News editorial, titled “The messenger hit again,” praises Thomson’s “masterful bit of journalism,” but her lawyer said that’s hardly a game-changer. “Just because [they] said nice things about you, doesn’t mean you have to give up your principles,” said Kozak, who views the recent Supreme Court decision on Globe and Mail reporter Daniel Leblanc’s confidential source “MaChouette”—the leak in the scandal involving Groupe Polygone, the Montreal ad firm being sued by the Canadian government to recoup millions in federal money—as favourable for Thomson. In Groupe Polygone’s quest for “MaChouette,” Canada’s highest court maintained that journalist-source privilege must still be determined on a case-by-case basis, but it instructed lower courts that privilege should be denied only when all other avenues have been exhausted, and the identities of sources are essential in the quest for justice.
“People say, ‘why don’t you release the information?’ ” Kozak said. “But the media don’t take sides, and that golden rule doesn’t change just because one of the sides is another media outlet.” Yukon News publisher Steve Robertson and its editor and the author of the editorial, Richard Mostyn, declined to comment on the case.