Ontario court orders newspaper to hand over sensitive documents

Globe and Mail Update – National
February 29, 2008 at 12:08 PM EST

The Ontario Court of Appeal has ordered the National Post newspaper to hand over a document and envelope that could reveal the identity of an individual who tried to “undermine the authority” of former Prime Minister Jean Chrétien.

The ruling came as a blow to several media organizations – including The Globe and Mail – who had argued that handing over the documents would put a chill into the relationship between journalists and their sources – regardless of whether the material in the National Post case was a forgery.

In the ruling under appeal, Ontario Superior Court Judge Mary Lou Benotto prevented police from seizing a forged document in a package that had been mailed to the National Post. Purportedly issued by a bank, the document indicated that former prime minister Jean Chrétien had improperly used his influence.

Police hoped that forensic analysis of the package would yield fingerprints or DNA from saliva on the postage stamp that would identify the sender. However, Judge Benotto ruled that seizing it would violate freedom of the press.

Today, the Court of Appeal emphatically disagreed. It said that “the considerations favouring disclosure of the document and the envelope sharply outweigh those favouring confidentiality. Indeed, as we view the case, the law enforcement interest in disclosure is overwhelming.”

The crime that the perpetrator was attempting to commit was “an especially grave and heinous crime,” the court said.

“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 said. “The National Post itself admitted that if the document was forged, it would be evidence of a criminal conspiracy to force a duly elected Prime Minister from office.”

For good reason, it said, the right of journalists to gather and disseminate the news – and to protect their sources – are protected. However, it said this right “loses much of its force when journalists use it to protect the identity of a potential criminal or to conceal possible evidence of a crime.”

It said that society experts the press to relax its insistence on maintaining a privileged position when it comes to solving serious crimes.

“We do not diminish the press’ important role in uncovering and reporting an alleged wrongdoing,” Mr. Justice John Laskin wrote, on behalf of Madam Justice Janet Simmons and Madam Justice Eileen Gillese. “But in our society it is the police who are charged with the crucial role of investigating and prosecuting crime.

Journalists have a valid concern about seeing their sources “dry up” if they are not protected, Judge Laskin said. However, he said that journalists can never off a blanket guarantee of confidentiality.

“There will be some cases – and this is one of them – where the privilege cannot be recognized,” he said.“ Refusing to recognize the privilege in appropriate cases will not, in our view, cause media sources to “dry-up”.

“When viewed at a broad level, we agree with the reviewing judge that the relationship between a journalist and a confidential source should be diligently fostered for the public good. As we have said, some matters of public interest could not be thoroughly investigated or investigated at all without confidential sources of information.”

In ordering the documents to be disclosed, the court disagreed with Judge Benotto that “there is only a remote and speculative possibility that disclosure of the document and envelope will identify the forger; and disclosure of the document and envelope will minimally, if at all, advance the investigation.”

It said that her conclusions were unreasonable and “unsupportable.” Judge Laskin said that Judge Benotto considered the presence of fingerprints on the envelope, but failed to consider the possibility that DNA on the stamp would be a valuable investigative lead.

Judge Laskin also said that Judge Benotto wrongly deferred to Mr. McIntosh’s belief that the person who sent the letter did not realize it was a forgery.

“Like her, we accept the sincerity of his beliefs,” Judge Laskin said. “But the police, not McIntosh and not the court, should determine whether the document and envelope will provide evidence to identify either the forger or the person who uttered the forged document.”

Ontario lawyers argued that freedom of the press does not exist to benefit shysters who manipulate journalists for their own criminal purposes.

In urging the court to overturn Judge Benotto’s 2004 landmark ruling, Ontario prosecutor Robert Hubbard said that law enforcement ranks ahead of press freedom any time the two principles collide.

“This has nothing to do with whether journalism is a good thing and serves society’s interests,” Mr. Hubbard argued. “If it is a case of crime, it matters not. There is no free-standing right to protect evidence of crime.”

In counter-arguments, The Globe and Mail, the CBC and National Post asserted that journalists cannot do their jobs properly if they are unable to promise anonymity to confidential sources.

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