Blog by John Miller

<< back to article list

Journalism has limits

Which is more important - fighting crime, or writing about it?

Judging from the overwrought reaction of Canada's largest journalists' association, you'd think freedom of the press should always come first, even trumping the legal tools police may need to find out whodunit.

The Canadian Association of Journalists, representing 1,500 members, says it is dismayed by an Ontario Court of Appeal ruling, released on Feb. 29, that ordered the National Post newspaper to turn over leaked secret documents to police investigating former prime minister Jean Chretien's role in the so-called Shawinigate affair.

CAJ president Mary Agnes Welch said: "Police are on a witch-hunt to root out a whistleblower who exposed important and embarrassing information ... If that isn't an attempt to subvert the relationship between journalists and confidential sources, I don't know what is."

The CAJ believes that journalists should have the unfettered right "to protect the identity of their confidential sources, period."

I disagree. A closer look at the facts of this case show the judges got the balance between press freedom and crime detection just about right.

They decided to overturn a lower court ruling that quashed an RCMP search warrant for documents Post reporter Andrew McIntosh received from an anonymous source. According to the documents, a hotel in Chretien's riding, L'Auberge Grand-Mere, had an outstanding debt of $23,040 to "JAC Consultants" during the time Chretien admitted lobbying the Business Development Bank of Canada to approve a loan to the inn. "JAC Consultants" is a Chretien family holding company.

If genuine, the document proved that Chretien had a conflict of interest. But both the prime minister and the bank claimed the document was a forgery. The RCMP asked for a warrant so it could determine whether it was or not. Their way was blocked when Justice Mary Lou Benotto of the Ontario Superior Court ruled in 2004 that the request violated press freedom guarantees in the Charter of Rights.

A key fact accepted by both Benotto and the three-judge appeals court panel was that police had reasonable and probable grounds to suspect the document was a forgery. It was also no trivial crime. As Justice John Laskin wrote in the 3-0 opinion overturning Benotto: "This is an especially grave and heinous crime. Assuming the document was forged, either the forger or some other person sent it to the National Post to create controversy and undermine the authority of a sitting Prime Minister of Canada."

It follows then, Laskin wrote, that "as a starting point, press organizations and journalists, like everyone else, owe a duty to give relevant evidence in a case before the courts."

(In Charter cases like this, the courts must always carefully balance journalistic rights with other rights, and two weeks later the Court of Appeal decided the other way and dismissed a contempt conviction against Hamilton Spectator reporter Kenneth Peters, who refused to reveal his source in a lawsuit filed by a nursing home against the City of Hamilton. The CAJ hailed that decision as a significant victory for protection of sources, although in fact it, too, was decided on more technical grounds unique to that case. Mr. Justice Robert Sharpe found it "inappropriate" for the trial judge to initiate contempt proceedings against Peters on his own, especially since the court already had the information it sought from him.  "This was not a situation of open defiance of a court order requiring an immediate sanction to uphold the court’s integrity," he wrote on March 14.)

What the CAJ and some other critics of the appeals court ruling fail to acknowledge is that Laskin wrote a strong statement acknowledging the importance of reporters being able to protect their sources, even though there is currently no right in law for them to do so in all cases.

"If the journalist-informant relationship is undermined," Laskin said, "society as a whole is affected. It is through confidential sources that matters of great public importance are made known. As corporate and public power increase, the ability of the average citizen to affect his or her world depends upon the information disseminated by the press. To deprive the media of an important tool in the gathering of news would affect society as a whole.  The relationship is one that should be fostered."

"However," he continued, "this does not mean that press organizations or journalists are immune from valid searches under s. 8 of the Charter. And s. 2(b) does not guarantee that journalists have an automatic right to protect the confidentiality of their sources. The court must ensure that the privacy interests of the press are limited as little as possible. But the court must also balance against the privacy interest of the press the state or other societal interests in getting at the truth."

In other words, in this case, an RCMP forgery investigation was more important than McIntosh and the Post protecting the identity of their anonymous source. It's hard to imagine many Canadians arguing strongly against that concept.

The Post, which has had the document since 2001, never was able to verify if it was genuine or forged and in fact did not publish the damaging allegation against Chretien. It was published first by other media in the context of Chretien's denial. So you'd think the newspaper would welcome the chance for the police to do a thorough investigation to find out if the newspaper was duped.

This case should also cause journalists to be wary about giving sources blanket, unconditional promises to protect their identities, which McIntosh, an award-winning investigative journalist now working in the United States, did in this case.

Read the full text of the Ontario Court of Appeals ruling here