Ryerson University j-prof John Miller takes a contrarian stance on the recent court decision ordering the National Post to turn over a 'Shawinigate' scandal.
Which is more important — fighting crime or writing about it?
Judging from the overwrought reaction of Canada's largest association of journalists, you'd think freedom of the press should always come first, even trumping the legal tools that police 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 to turn over leaked secret documents to police investigating former prime minister Jean Chrétien's role in the so-called Shawinigate affair.
CAJ president Mary Agnes Welch said: "Police are on a witch hunt to root out a whistle-blower 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 that the judges got the balance between press freedom and crime detection just about right. ...
... In this case, an RCMP forgery investigation was more important than Mr. 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, was never able to verify if it was genuine or forged and, in fact, did not publish the damaging allegation against Mr. Chrétien. It was published first by other media in the context of Mr. Chrétien's denial. So you'd think the newspaper would welcome the chance for the police to do a thorough investigation to find out whether the newspaper was duped.
This case should also cause journalists to be wary about giving sources blanket, unconditional promises to protect their identities, which Mr. McIntosh, an award-winning investigative journalist now working in the United States, did in this case.
Addendum
In a March 5 editorial, the Globe urged the National Post to keep up the legal fight:
The Ontario Court of Appeal may have thought itself very clever last week when it said, in upholding the validity of an RCMP search warrant served on the National Post, "it is not necessarily better to write about crime than to do something about it." But the line trivializes the right to free expression. While the court acknowledged that journalists have a right to protect their confidential sources, in appropriate cases, its words suggests that it is dismissive of that right.
The full quote, which the court was paraphrasing, came in a 1972 ruling by Justice Byron White of the U.S. Supreme Court, in a landmark case in which three reporters refused to testify at a grand jury hearing when subpoenaed, in order to protect their confidential sources, and were found in contempt. By a 5-4 margin, the court ruled against the reporters. "Thus," Judge White wrote, "we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it." That was two years before Watergate, a story that brought down a president. The police didn't do that; two reporters did. To write about wrongdoing, to expose it, is to do something about it. That's what reporters in a free press do. And to do so, they may need to rely on confidential sources. It's understandable that Judge White would say such a thing pre-Watergate. It's less so for Mr. Justice John Laskin and Madam Justice Janet Simmons of the Ontario appeal court, 34 years post-Watergate.
Addendum 2
In late March, the N-P announced it would seek leave to appeal to the Supreme Court of Canada.