Feature Story
October 2009
Shhh! It's top secret!
Can you insist that negotiations to settle a case out of court be kept secret? What if information is leaked? Isn't it a journalist's job to write about it? Groupe Polygone Éditeurs thought it could rely on a right to confidentiality. The Court of Appeal of Quebec, however, didn’t agree.
Leaks
Groupe Polygone has been sued by the federal government in the wake of the
sponsorship scandal. In a written document filed with the court, Polygone requested a delay in the case to try to negotiate an out-of-court settlement. These negotiations were to remain confidential. However, anonymous sources within the federal government spoke to a journalist from La Presse about how the negotiations were going. Not surprisingly, this information appeared in the newspaper the next day.
Polygone was not pleased this information was made public and asked a judge to prevent La Presse from publishing anything else about the out-of-court negotiations. A Superior Court judge agreed with Polygone. He thought Polygone's privacy should have been respected. The judge concluded the journalist didn’t have the right to use leaked information since the journalist must have known his informant wasn’t authorized to share this information with the media.
What about freedom of press?
La Presse did not appreciate the Superior Court decision. The newspaper asked the Court of Appeal to overturn the judgment. The Court of Appeal ruled in favour of La Presse on the basis that freedom of expression (which includes freedom of the press) must prevail over claims of confidentiality.
During preparation for a trial and the trial itself, a lot of different information is divulged. The general rule is that court files are open to the public.
For example, during a court case, a furniture manufacturer could be obliged to reveal how much it costs to produce its products. But if its clients were to get a hold of this information, negotiating sale prices would be much more difficult. The court could therefore order that this piece of information not be released to the media or that certain documents in the court file be kept in sealed envelopes, away from a prying public.
