Janice Tibbetts (Canwest News Service) – A critical test of press freedom reaches the Supreme Court of Canada this week when it considers for the first time whether journalists have an explicit right to protect confidential sources from the police.
The National Post, backed by civil libertarians and a coalition of media groups, will ask the court on Friday to overturn an Ontario Court of Appeal ruling that the public interest in police investigations trumps the Charter guarantee of free expression.
The case will be argued at a time when debate persists internationally on whether there should be a sweeping or qualified privilege for journalists to shield their confidants — just as police informants enjoy protection from exposure.
More than 36 U. S. states have enacted “shield” laws. Australia is intensely debating whether to rewrite existing legislation to strengthen protection for reporter sources.
“This case provides an opportunity for this court to consider the extent to which the state may compel an innocent third-party media organization to assist in a police investigation,” Marlys Edwardh, lawyer for the Post, says in arguments filed in the Supreme Court.
“The stories that would go untold in the absence of source confidentiality are likely to concern matters of significant public importance involving government or corporate wrongdoing.”
The long-standing legal battle was ignited in the spring of 2001, when Post investigative reporter Andrew McIntosh received a plain brown envelope from a source.
Police want the envelope because they say it is integral to a forgery investigation.
The case is the latest in a long line of clashes between police and journalists –battles that have in several cases led to reporters being jailed for refusing to disclose their sources.
The National Post wants the court to overturn an order to surrender to the RCMP the unmarked envelope and a loan document that Mr. Mc-Intosh received while writing stories about possible conflict of interest involving federal grants and loans in the Quebec constituency of then-prime minister Jean Chretien.
Police suspect the document, which appears to be from the Business Development Bank of Canada, is a forgery, and they want the package to track down the source, possibly through securing a saliva sample from the stamp.
The Attorney-General of Ontario, supported by six provinces and the federal government, will urge the Supreme Court to exercise “great reservation” in considering whether there should be a “quasi-class privilege” for journalists, particularly when the group is difficult to define.
The Ontario government also rejects the media’s argument that sources will dry up if the court does not impose limits on journalists revealing their sources.
“While journalist-source relations have never been the subject of an absolute class privilege in Canada, sources have continued to come forward,” says a legal brief from lawyers Robert Hubbard and Susan Magotiaux.
Ontario contends that even class privilege is not absolute and that the court must to “draw a clear line in the sand” in this case.
“Regardless of the scope of journalist-source privilege, it simply cannot be that it operates in a manner that would turn the journalist-source relationship into a safe haven for crime,” the brief says.
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LEGAL BATTLE: A TIMELINE
1988 Jean Chretien and business partners purchase the Grand-Mere Golf Club and adjacent Auberge Grand-Mere.
April, 1993 Mr. Chretienand partners sell the Auberge Grand-Mere to Yvon Duhaime
Oct. 25,1993 Mr. Chretien is elected Prime Minister of Canada
Nov. 1, 1993 The Chretien family holding company sells its shares in the golf club to businessman Jonas Prince
September, 1996 The Business Development Bank of Canada rejects a $1.4-million loan application filed by Mr. Duhaime to expand the hotel.
August, 1997 The BDC approves a $615,000 loan to Mr. Duhaime.
September, 1999 Mr. Beaudoin resigns from the BDC a month after suggesting the loan to Mr. Duhaime should be recalled. Three months later, the BDC repeals the severance agreement it made with him.
November, 2000 Mr. Beaudoin sues the BDC for wrongful dismissal. In response, it alleges he misused company funds.
In the fall of 2000 Mr. Chretien reveals he previously called then-BDC president Francois Beaudoin on two occasions to discuss the loan applications by Mr. Duhaime. Mr. Chretien explained later that he was fulfilling his duties as an MP.
April 3, 2001 Internal BDC loan-approval documents are mailed anonymously to the National Post in a plain brown envelope. A footnote in the documents indicates that Mr. Duhaime had a $23,040 debt to J. & A. C. consultants, a holding company for the Chretien family. The Prime Minister’s Office and a lawyer for Mr. Chretien deny there was a debt owed by Mr. Duhaime and state the documents are forged. BDC lawyers later accuse Mr. Beaudoin of illegally possessing bank documents and of mailing them to the newspaper. The BDC also says the information in the footnote is false and has been forged.
April 7, 2001 The BDC obtains a court order to carry out an emergency search of the residence and office of Mr. Beaudoin. At the time, the senior vice-president for corporate affairs at the BDC is Jean Carle, a former senior aide to Mr. Chretien. The BDC declines upcoming Superior Court hearing. It is revealed that the RCMP investigation found that a key page in the BDC’s Grand-Mere loan file disappeared “sometime” before
Jan. 1, 2001. The key page may have shown whether there ever was a debt owed by Mr. Duhaime to the Chretien family holding company. RCMP Corporal Roland Gallant also concedes that in his affidavit to obtain the search warrant, the officer did not disclose that the manager of the BDC branch that approved the loan to Mr. Duhaime said she would not have done so if Mr. Chretien had not intervened. Cpl. Gallant says the RCMP has concluded that the $23,040 debt never existed and the loan document was a forgery.
April 25, 2001 A Quebec Superior Court justice quashes writs (issued by court clerks) that allowed bailiffs retained by the BDC to seize and destroy documents obtained from Mr. Beaudoin.
June 7, 2001 Cpl. Gallant asks the National Post to produce what police allege is a forged document. The newspaper declines.
July 4, 2002 The RCMP obtain a search warrant and assistance order issued by a provincial court judge, which requires the editor-in-chief of the Post to locate the document (and envelope it was mailed in) and turn it over to police.
Aug. 6, 2002 The Post obtains a court order staying the execution of the search warrant.
Spring, 2003 Cpl. Gallant is questioned by lawyers for the National Post.
Jan. 21, 2004 Ontario Superior Court Justice Mary Lou Benotto quashes the search warrant and assistance order. The judge finds the order violated freedom of expression guarantees in the Charter of Rights. The documents are privileged, writes Judge Benotto, because they may reveal a confidential source. “The eroding of the ability of the press to perform its role in society cannot be outweighed by the Crown’s investigation,” she concludes. The Ontario Attorney-General appeals the ruling.
February, 2004 A Quebec Superior Court judge reinstates the severance payment and annual pension owed to Mr. Beaudoin. The judge is critical of the trial testimony of Mr. Carle and his attempts to discredit Mr. Beaudoin.
June 5, 2007 A three-judge panel of the Ontario Court of Appeal begins hearing two days of arguments in the Crown appeal of Judge Benotto’s decision.
Feb. 29, 2008 The Ontario Court of Appeal, in a 3-0 ruling, overturns Judge Benotto’s decision. “Journalists can never guarantee confidentiality,” the justices write. “There are some cases and this is one of them, where the privilege cannot be recognized.” The Court of Appeal concludes that reporters who do not want to disclose information that might reveal a confidential source must show that this outweighs the “law enforcement interest” in investigating crime.
March 25, 2008 The National Post announces it is seeking leave to appeal the ruling to the Supreme Court of Canada.
Sept. 25, 2008 The Supreme Court agrees to hear the appeal.
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