Don Butler, National Post
An Ontario Superior Court judge has struck down a law used to obtain search warrants that authorized controversial RCMP raids on Ottawa Citizen journalist Juliet O’Neill’s home and office in January, 2004.
Judge Lynn Ratushny ruled yesterday parts of Section 4 of the Security of Information Act are unconstitutional because they violate the Charter of Rights and Freedoms.
She also found the RCMP abused proper process by using the warrants to threaten Ms. O’Neill with criminal prosecution unless she revealed the source of leaked information in a Nov. 8, 2003 story about Maher Arar, a Syrian-born Canadian citizen whom U.S. authorities arrested and deported to Syria in October, 2002.
Ms. O’Neill has never been charged, but the Crown had held out the possibility charges could be laid. That ended, however, with yesterday’s ruling.
In her judgment, Ms. Ratushny quashed the two search warrants authorizing the raid and ordered the return of material seized from Ms. O’Neill.
In a highly unusual move in a criminal case, she also ordered the government to pay the newspaper’s legal costs, expected to run into hundreds of thousands of dollars.
The ruling was applauded as a vigorous affirmation of the importance of press freedom.
“It was a black day when they raided Julie’s home and office,” said lawyer Richard Dearden who, along with University of Ottawa law professor David Paciocco, argued the case for the Citizen. “Now the sun is shining again on the importance of free press in this country.
“The judge has said point-blank that the RCMP can’t threaten a reporter with criminal charges to try to uncover a confidential source. The judge has said point-blank that you can’t treat the media as an investigative arm of the police.”
Ms. O’Neill, who called the ruling “a powerful statement against the criminalization of communication,” was delighted, but not yet ready to celebrate.
“I feel like I’ve been holding my breath for two-and-a-half years and I can finally exhale,” she said. “But I won’t until I hear the Minister of Justice say the Crown will not appeal this ruling.”
Ottawa Citizen Editor Scott Anderson said he was particularly pleased the judge found the RCMP “abused their authority when they ransacked Julie’s house and office in a sloppy attempt to ferret out the source of the Arar leaks.”
Ms. Ratushny found this abuse can have “the very real potential to ‘chill’ the pursuit and enjoyment of the right to freedom of expression by the public and by the press.”
Justice Minister Vic Toews, who had criticized the sections of the secrecy law the judge struck down as too “broad” when he was an opposition MP, was noncommittal on the government’s appeal intentions.
The Crown has 30 days to decide whether to appeal.
Pressed by reporters, Mr. Toews said he was “quite aware” of his past criticism of Section 4 of the Security of Information Act.
But he said he had not yet read the court ruling and that he would wait to see “what the departmental lawyers tell me.”
Irwin Cotler, who was Liberal justice minister at the time of the raids, said he was not surprised by the court ruling. He also speculated the Crown would not win on appeal.
“Unless there is a clear error of law in the judgment, I would think that this would be a judgment that would be sustained on appeal,” Mr. Cotler said in an interview.
The Security of Information Act was enacted as part of the omnibus Anti-Terrorism Act three months after the Sept. 11, 2001, attacks on the United States.
The law is largely identical to the old Official Secrets Act, which had long been seen as badly drafted and vulnerable to constitutional challenge. But this is the first time its provisions had been challenged in court since the passage of the Charter of Rights and Freedoms in 1982.
In her ruling, Ms. Ratushny found Section 4 of the Act violates Section 7 and 2(b) of the Charter, which guarantee the right to life, liberty and security of the person, and freedom of thought, belief, opinion and expression.
Section 4 violates those constitutional rights, she found, because it is so vague and broadly worded the government could use it to arbitrarily protect whatever information it chooses.
In addition to ruling the section unconstitutional, Ms. Ratushny also found the RCMP used the search warrants and the threat of charges to gain access to Ms. O’Neill “for the purpose of intimidating her into compromising her constitutional right of freedom of the press, namely, to reveal her confidential source or sources.”
She agreed with Ottawa Citizen lawyers that Ms. O’Neill was never the true focus of the RCMP investigation.
Rather, she was targeted and threatened with prosecution in an effort to discover the source of embarrassing leaks, the judge wrote in her ruling.
By using the threat of criminal charges to extract information it wanted, the RCMP used the Security of Information Act in an abusive fashion, she said.
“The RCMP did treat O’Neill as one of its investigative arms to uncover the source of the leaks. Given the importance of freedom of expression and the press in our democracy, this is conduct that has caused great prejudice to those freedoms.
“This is conduct, in my view, that does offend the public’s sense of decency and fairness and undermines the integrity of of the judicial process.”
Ottawa Citizen lawyers had also argued the search warrants were issued invalidly because, among other things, the justice of the peace had failed to impose conditions minimizing their intrusion on freedom of the press.
However, Ms. Ratushny dismissed that argument, saying the issuing justice knew Ms. O’Neill was a journalist and had limited the scope of things to be searched for to those related to the Nov. 8, 2003 article.
Recent Comments