Ontario appeal court hears contempt case
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.