CANADA

In pursuit of evidence

Police actions may restrict media freedom

D’ARCY JENISH June 8 1992
CANADA

In pursuit of evidence

Police actions may restrict media freedom

D’ARCY JENISH June 8 1992

In pursuit of evidence

CANADA

Police actions may restrict media freedom

It was one of the most rivetting scenes filmed in the three-day April riot that left Los Angeles a smouldering and shaken city. While a television news crew hovered above them in a helicopter with its camera running, several black men pulled white truck driver Reginald Denny from his vehicle in the evening of April 29 and beat him senseless.

According to Sandi Gibbons, a spokesman with the Los Angeles County district attorney’s office, federal law enforcement agencies obtained the televised portions of that footage and used it to identify and press criminal charges against four men. And last week, federal grand juries were reviewing other TV newscasts of the riots to determine if charges should be laid against other individuals. But in Toronto, where a smaller racially motivated riot occurred on May 4, police have announced that they hope to go even further: they plan to use search warrants to obtain both published and unpublished media film and photographs of the rampage in that city.

According to both legal and media experts, the differences in the ways that police are conducting investigations in the two cities reflect the fact that the American press enjoys greater freedom and independence than the media in Canada. Indeed, executives with both the Los Angeles Times and KCBS-TV, the city's CBS-affiliated station, said that they are prepared to resist if law enforcement agencies try to obtain their unused, photographs or film footage. But in Toronto, newspaper and TV executives said that they

would have no choice but to comply with a search warrant seeking unbroadcast or unpublished material because of two recent Supreme Court rulings in similar cases involving the CBC. Said William Thorsell, editor-in-chief of the Toronto Globe and Mail: “The status of the press in the constitution is much stronger in the United States.”

An editor or station manager has few options when faced with a search warrant. Said Maclean’s lawyer Julian Porter: “Occasionally, a judge will ask the police if there is any other place they can get the information. That’s the only leeway the courts give the press, and it’s not much. In this case, I’m not sure there is any argument for the press.”

For newspaper and magazine readers, TV viewers and radio listeners, court interpretations of constitutional guarantees of press freedom have profound importance. For one thing, they could have a direct impact on whether

journalists can perform their jobs safely and effectively. Peter Desbarats, dean of the graduate school of journalism at the University of Western Ontario in London, said that press freedom could be jeopardized if the public perceives journalists as part of the police investigative apparatus. He added that participants in demonstrations would be more inclined to attack journalists if they believed police had easy access to photographs or film footage.

In order to maintain their independence, representatives of several news organizations in Los Angeles said that they were prepared to fight any police attempts to obtain unused material. Glen Smith, an attorney with the Times, said that the paper complied with a U.S. justice department subpoena by turning over three published photos. But, he added, the Times refused to comply with a second subpoena requesting all unpublished photos related to the riots, and the justice department has decided not to pursue the photos for the time being.

In Canada, CBC TV has been to the Supreme Court twice on the same issue, and lost each time. The network challenged search warrants granted to the Montreal Urban Community Police in 1987 and to an RCMP detachment in New Brunswick the following year. In both cases, CBC cameramen had filmed demonstrators in the process of causing damage to property. Police officers seized all the footage from

the incidents, although it was held in sealed envelopes until the court ruled last November that the search warrants were valid and that the network should surrender the material.

The two rulings triggered a sharp debate among media executives and constitutional experts. Under the court’s ground rules, the police must meet nine conditions, including compliance with the terms of the Criminal Code and the unavailability of alternative sources, before obtaining a search warrant. Thorsell said that the Globe would only challenge a search warrant if it had a good chance of winning, in order to avoid a third unfavorable decision. Jamie Cameron, who teaches constitutional law at Osgoode Hall Law School in Toronto, said that the court rulings clearly put the interests of the police ahead of press freedom. “There is considerable hostility on

the part of the Canadian judiciary towards the press,” said Cameron. “In the United States, the hostility is directed towards the state.” But other experts maintain that the rulings do not restrict the media’s freedom. Alan Shanoff, a lawyer who represents The Toronto Sun and The Financial Post, said that search warrants, which can only be issued after an event, do not prevent media organizations from covering events or publishing their stories. “Freedom of the press relates to what you can publish,” he said. “Nobody stopped anybody from covering the Toronto riot.” Still, Shanoff conceded that the rulings make it much easier for the police to obtain search warrants and allow very little latitude for media challenges. And many Toronto news executives shared that view as they waited last week for the police to arrive with their search warrants.

D’ARCY JENISH