Manitoba Press Council

First posted Jan 22, 2008

The case of Ken Peters, a Hamilton Spectator reporter who refused to reveal a source during a 2004 civil trial, is now before the Ontario Court of Appeal. What follows is a Canadian Press account of the proceedings.

TORONTO — Ontario’s highest court was urged Tuesday to seize upon the case of a journalist found guilty of contempt as an opportunity to set an important precedent by considering a reporter’s constitutional right to protect confidential sources.

The Ontario Court of Appeal reserved its decision in the case of Ken Peters, a Hamilton Spectator reporter who refused to reveal a source during a 2004 civil trial.

While all sides agreed the trial judge failed to follow procedure in finding Peters in contempt four years ago, media lawyers squared off against counsel for the Ontario Attorney General on whether there was a constitutional question at stake.

“Cases like this are exceedingly rare,” lawyer John Norris, who represents the Canadian Association of Journalists and Canadian Journalists for Free Expression, told the court. “It would be a tremendous benefit to all for this court to decide those broad (constitutional) issues.”

Not so, Crown lawyers countered. “The appeal can be disposed of on other grounds,” argued Robin Basu. “It is not necessary and it can be a mistake to embark on a (constitutional) analysis.”

The media lawyers took the position that the courts should do their level best to obtain evidence from other sources before compelling a journalist to reveal a source, in light of freedom-of-speech rights enshrined in the Constitution.

The Attorney General argued it wasn’t necessary to drag the Constitution into the appeal as contempt and common law, when followed properly, directs judges to do as much.

Although lower courts have considered freedom-of-speech rights in cases where journalists are ordered to divulge sources, a ruling from Ontario’s top court would “clarify and strengthen” the approach to be taken, said lawyer Brian Rogers, who represents Peters. The courts must “ensure that harm is minimum and infringement of (constitutional) rights is kept to a minimum,” Rogers told the court. “This is a rare case. It will set a precedent… an important precedent.”

Peters was called to testify in a $15.5-million dollar civil suit launched by the St. Elizabeth Villa retirement home against the former Hamilton-Wentworth Region, the city and the former mayor. He was found in contempt after he refused to disclose the identity of a person who was present when he received documents alleging abuses at the retirement home.

Former city alderman Henry Merling eventually admitted to being the source of the information.

Peters could have been sent to jail, but was instead ordered to pay $31,600 in legal costs.

That decision effectively told news organizations, large and small, that the price of protecting a confidential source is roughly $32,000, lawyer Patricia Jackson told the court. “Many will say, unfortunately, it is too high,” said Jackson, who represents the Canadian Newspaper Association. The result would be a form of “self-censorship” in order to avoid the use of confidential sources. “We would all be much poorer for that,” Jackson said.

First posted on Nov. 6, 2007

On Nov. 1, the Manitoba Press Council sponsored a forum for Red River College journalism students. The topic of the forum was a private MP’s bill to amend the Canada Evidence Act, and thereby create a limited shield law for journalists. What follows are excerpts from what press council chairman John Cochrane told the students.

Why is this private member’s bill so important?

The author of the bill, Mr. Serge Menard, said in parliament in Ottawa last week that he has been working on attaining privilege for journalists for 30 years. He was a media lawyer and is now a sitting member of the Bloc Quebecois. He feels the time is right, and he may be right.

He has gained the support of some important organizations in Quebec: the Legal Bar, the Communications Union, the Confederation of Journalists, and the Quebec Press Council. They represent over 31,000 people with direct knowledge of the process of journalism. These organizations jointly support his bill, and that is impressive.

This idea of shield laws has been simmering for about 50 years, mainly in the U.S., Canada and Europe. Legislation has been adopted in 32 states in the U.S., in most European countries, and this year in Japan. Case law has developed in 18 other states in the U.S., in Britain and Canada. There are no federal laws on this issue in these three countries.

Last Friday, Oct. 23, the bill to create federal law in Canada was given second reading. It is interesting to read some of the comments made by MP’s of each political party as reported by Hansard. Here’s a sampling:

“Freedom of the press is crucial in a democracy.”

“It was a foundation of our democracy.”

“The practice of journalism needs to be protected by legislation as it has been in other countries.”

Situations as what happened to Juliet O’Neill of the Ottawa Citizen should be corrected.’

“The reporting of Watergate, the Enron Scandal, and even the sponsorship scandal in Quebec probably wouldn’t have happened without the protection of whistle blowers by reporters.”

It was all very heady stuff, and a lot of it was true. It would make you proud to be a journalist to hear such glowing support in our parliament. However, the granting of privilege or the passing of this bill cannot be considered a done deal.

One MP last Friday suggested that, “freedom of the press is not actually the issue here and what must be determined is whether the provisions improve existing legislation. A change could have far reaching repercussions on the administration of the justice system as a whole.” Many judges, lawyers, legislators and members of the public have voiced similar concerns over the years.

Some MP’s also suggested that the definition of the word “journalist” in the bill was too broad and that there could be a problem in court getting information from sometimes bloggers. One MP said that, in fact, there was no definition of the word “journalist” in any legislation across Canada

The bill will likely be passed on to a parliamentary committee for further discussion and possible amending and it may not see the light of day.

It is a major consideration to grant privilege which is the right not to have to disclose information to a court. Only the doctor-patient and lawyer-client relationships have been granted it. It also may be allowed in some instances for national security and where there is specific statutory law.

Even some journalists do not agree with privilege and special treatment for journalists. In an article in the Ryerson Review of Journalism in 1995, veteran journalist, George Bain, gave the opinion, “There is a spreading tendency in routine journalism to use one unidentified person as the only source, or among the sources, throughout stories. The reader is left to take on faith such persons actually exist and are not the invention of the reporter. Could any reporter make up an anonymous source? Why not? The courts, in their wisdom, give short shrift to anonymous sources because they concede the possibility of any sort of chicanery occurring anywhere.”

Attribution is very important. Consider a letter to the editor published just two weeks ago in the Winnipeg Free Press. A citizen gave the opinion that, “whenever reference sources are omitted the author loses all credibility. The information becomes useless because the audience cannot weigh the source to decide whether it is willing to trust it. If you cannot decide whether a source is trustworthy, by extension the information presented must be rejected as incredible.” While that is a bit tight and doesn’t consider opinion, it is a very good description of the importance of attribution. And the writer wasn’t commenting on journalism, it was in reference to a story where a teen advised classmates not to eat meat.

Two years ago an op-ed columnist in the New York Times commented about three reporters who had recently been ordered to jail for protecting sources, and the results of a survey of the public’s opinion of journalists. He said that federal shield laws could be helpful in such situations but it is crucial to reflect on why this is happening. He suggested a major reason was “that we in the news media are widely perceived as arrogant, out of touch and untrustworthy and we will have to work harder to win back our credibility with the public.”

So discussions about the issue of protecting sources are important because they hit at the heart of what journalism is all about and why it is important to society. And anyone involved in the process of communicating information to others should consider the responsibility that comes with it.

While it may seem complicated, it really isn’t. It is about the importance of attribution and that facts help in the search for truth. It can be managed, and is done so every day by Canadian media. Even if privilege for the protection of sources never becomes enshrined in law, newsrooms will continue to handle tips and protect sources only after careful consideration and discussion.

Privilege may not even be necessary. New whistle blower legislation being contemplated across Canada and elsewhere will be very helpful to journalists.

Consider what happened in the current case here about the off duty policeman who pleaded guilty of causing the death of a young woman driver. Manitoba’s chief provincial court judge praised reporters for their effort to dig up the truth. It is fair to assume that media received tips from individuals with inside knowledge that led to some of their stories. And it was handled by media without the protection of sources. Just to be fair, the defense lawyers called the coverage “scandalous” and “baseless yellow journalism”.

What are your views on shield laws?

First published Oct. 12, 2006

A Senate Report on Media, released in 2006, gave the opinion that Press Councils are an important element of Canada’s news and information system and that they can make a significant contribution to the quality of journalism in Canada.

They also stated that, since Press Councils are not affiliated with a particular newspaper and where council members include representatives of the public, a citizen is more likely to feel that a complaint was judged impartially.

A previous Senate Committee report on media in 1970 suggested that Canada needed Press Councils and that government should have nothing to do with their organization and powers. It also felt that regional Press Councils could meet Canada’s diverse needs.

Many media observers have pointed out that provincial Press Councils are designed to be more receptive to community standards and to be less cumbersome than a government regulatory body with its slow process and change.

It has also been noted that it is appropriate that an industry that sees itself as the eyes and ears of the public should be examined by a council that includes well-informed and independent members of the public.

Self-regulation works because the newspaper industry, for the most part, is committed to it. Although funded by newspaper members, councils are independent bodies with their own objectives and by-laws. In a way, self-regulation is a moral force and it depends on an industry with the
maturity to sign up to independent and reasonable scrutiny by its peers and members of the public.

It costs nothing to complain to a Press Council. You do not need a lawyer or anyone else to represent you. And it means there is no burden on the taxpayer.

–John Cochrane

 First published Oct. 3, 2007
Journalists’ demands for access to information frequently are in collision with privacy rights, which various levels of bureaucracy cite as a reason for withholdling information.

Where do individual Canadians and media fit into this ongoing tug-of-war between privacy and access?

The Privacy Commissioner of Canada has a blog, written by staffers, dealing with an assortment of privacy issues and problems. In its mission statement, the commissioner’s office says “this blog will make a special effort to identify and highlight information and advice that may help Canadians understand their rights under Canada’s privacy legislation. We will be making a special effort to identify and explain material that will help owners, managers and employees of small and medium-sized enterprises to understand their rights and responsibilities under Canada’s privacy legislation.”