The police are unfailingly polite. They shake hands, they smile, they never raise their voices. Warrants are presented, searches conducted, materials confiscated—all without a single serious breach of decorum. But good manners aren’t everything. They don’t, for example, guarantee a free press, one of those knobby little principles upon which journalists have a remarkable tendency to insist. And so—civility notwithstanding—the rising incidence of police raids on the newsrooms of the nation has sent a tremor through the fourth estate, and called into question the limits of press freedom in Canada. The media are not alarmed—not yet. But they are wary.
“There are more policemen in more newsrooms in this country now than at any time in the last 25 years,” says Bill Cunningham, Global Television Network’s vice-president of news and current affairs. “This isn’t Nazi Germany; I don’t believe
it’s a sinister conspiracy to muzzle. But you can’t run a news agency looking over your shoulder.” In recent months, however, some journalists have developed a crick in the neck, checking the ownership of approaching footsteps. At every political level, the police have suddenly turned aggressive. The prosecution of The Toronto Sun under the Official Secrets Act, the attempted curb of the Kitchener Waterloo Record (reporters were banned from regional police headquarters and threatened with charges of trespassing if they lingered), the routine demand for tapes, photographs and film taken by newspapers, television and radio stations alike—how many isolated incidents are needed to constitute a trend?*
In some cases, the police have asked not only for documents published or broadcast, but for “outs”—unused portions of film or taped interviews. This is the sensitive zone, for outs (like a reporter’s note-
book) are liable to contain names of confidential sources. The dominant characteristic of confidential sources is their desire to remain confidential. Were they to believe their disclosures would end up in police files, they would never disclose at all. But armed with properly executed search warrants, the police have every legal right to appear in any n&\Vsroom. They have every right to demand any item pertaining to any alleged crime. “That’s what’s worrisome,” says Cunningham. “You don’t know what the hell they’re looking for.”
There is no recourse. “Constitutionally,” notes University of Manitoba law professor Dale Gibson, “there is damn all by way of protection for the press.” The Canadian Bill of Rights mentions it, but the Canadian Bill of Rights has been proved to have all the legal clout of an orphan. “Therefore freedom of the press in Canada,” says Gibson, “is simply free speech that anybody has.” In one landmark case ( Banks vs. The Globe and Mail et al, 1961), the Supreme Court ruled that the range of a journalist’s comment is “as wide as, and no wider than, that of any subject. No
*Recent incidents include seizures, from Global and CBC. offilm of a protest by the Union of Injured Workers in Toronto; from Global and CTV Toronto affiliate CFTO, film of pickets at Fleck Manufacturing Ltd. in Centralia, Ont.; from the London Free Press, photographic negatives of the Fleck strike; from CBC Radio ’s As It Happens, taped interviews with Toronto Sun editor Peter Worthington, charged with violation of the Official Secrets Act; and from CTV Ottawa affiliate CJOH, filmed interviews with Conservative MP (Leeds) Tom Cossitt.
privilege attaches to his position.”
A parallel move seems under way in the U.S.. w here the Supreme Court last month ruled that police may appear unannounced (but with a warrant) in any newsroom. Indeed, the American decision may be more ominous still, an erosion of the First Amendment guarantee of the media’s right to gather new's and the Fourth Amendment ban on unreasonable search and seizure. If these entrenched U.S. constitutional freedoms can be so easily breached. Canadian newsmen blanche at the potential for abuse at home. Global’s policy—the toughest yet taken by a TV network—is to refuse all requests for outs. “But let’s face it.” says Cunningham. “We’re not martyrs. If it went to court. I don’t know how long I’d hold out.”
Most editors are disturbed more by the implications of police searches than by any specific mission. “In effect.” says Robert Miller, senior editor of CTV nightly new's (whose Ottawa bureau was raided by the RCMP in March), “these regular incursions turn the press into de facto agents of the police. That’s not what our role is in a free society. Let the cops get their own film. If they can’t do their job as efficiently as The Daily Timmins Press, they have no right to ask private industry for a hitchhike.” Miller also believes that while the press has no special privileges in law. it does in practice. “We have access to people and information denied to other institutions. In that sense, we are unique.”
If only the world at large would recognize it. In fact, the public often seems to regard the media as a porcupine regards a grizzly—with something less than blind trust. People tire of reading that their water is polluted, their politicians corrupt, their dollar collapsing. People know the truth: they don’t have to read about it. The larger danger of course is that the press would stop telling them. At least one media analyst already considers the press too timid. “In some ways.” says Arthur Siegel, professor of social science at York University, “this conflict with the police is a healthy sign. It means journalists are finally doing something that has the authorities worried. Freedom of the press is a fluid thing, you see; if the media step back, the police and the government will step forward.”
While the pendulum sw'ings. not a few journalists have been thumbing through history, in search of supporting precedents. They are buoyed by the 1835 acquittal of Joseph Howe on libel charges. They are fond of quoting the famous London Times dictum: “The press lives by disclosures” (1851). And they derive special sustenance from Thomas Jefferson’s definitive apothegm: “Were it left to me to decide whether w;e should have government without newspapers or newspapers without government. I should not hesitate a moment to prefer the latter.” “That,” says CTV’S Miller, “is something every Mountie should tattoo on his forehead.” MICHAEL POSNER
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