Groupe Polygone will, with any luck, go down in Quebec legal history as one of the most brazen companies to darken the door of a courtroom.
But "Polygone" also seems destined to become the short name for a textbook law case in which the Quebec Court of Appeal vigorously and unambiguously upheld the public right to know.
The recipient of millions of dollars from the catastrophically mismanaged federal sponsorship program, Groupe Polygone went to court several months ago to protect its "privacy" from media coverage.
La Presse and the Globe and Mail made public details of Polygone's negotiations with the federal government over how much sponsorship money it was prepared to return. The information was obtained from confidential government sources. Years back, secret source within government, known as "ma chouette," had supplied Globe and Mail reporter Daniel Leblanc with information about the sponsorship program, information that ultimately led to the Gomery commission.
In an astonishing decision in the La Presse case, Superior Court Judge Jean-François de Grandpré sided with Polygone, ruling that journalists could not use information provided by a source who had broken an oath of secrecy or promise of confidentiality.
This month, Quebec's Court of Appeal quashed de Grandpré's ruling, writing that forbidding the use of such sources amounted to seriously limiting if not crushing the media's ability to gather information. (This fall, the Supreme Court will hear the Globe and Mail's challenge to a gag order similar to La Presse's, also by Judge de Grandpré.)
In a clear and forcefully worded judgment, the Court of Appeal ruled in the La Presse case that freedom of the press must be allowed under certain circumstances to prevail over other freedoms. The paramount right in those cases is the public's right to be informed.
A ban on confidential sources, the court wrote, would have made impossible journalistic investigations such as Watergate or the Rainbow Warrior affair in which the French government carried out illegal operations against Greenpeace, or the sponsorship scandal here at home.
In a true democracy, the court said, freedom of the press is not limited to publishing the occasional government press release. As long as journalists themselves do not break any law to obtain information, they are free to make use of any information that comes their way.
No law in Canada forbids the publication of information which a journalist's source may have gotten by breaking a confidence.
Groupe Polygone argued that all it was seeking in court was to prevent outside meddling. But the Court of Appeal recognized the request for a gag order: "Just because Groupe Polygone's motion is titled 'Request for an order of non-interference ...' that doesn't mean it's not a request for publication ban.")
The Court ruling set out in detail a stringent test for a gag order. Polygone's claim that public outrage could derail its negotiations for a favourable settlement did not meet it.
Gag orders choke off the free flow of information in a democracy. They should be a last recourse in the courts. It's time lower courts understood that.