Tight-lipped reporter vindicated

By Tracey Tyler
Legal Affairs Reporter
Toronto Star

Toronto (March 18, 2008) — Courts should be extremely cautious about using their contempt powers against journalists who refuse to identify a confidential source, the Ontario Court of Appeal said yesterday in setting aside a trial judge’s hefty sanctions against a Hamilton Spectator reporter.

“I think it’s an important decision,” said veteran journalist Ken Peters, who once faced the possibility of being imprisoned for refusing to name names. “I’m really quite pleased by it.”

The decision is the court’s second in recent months that widens protections for journalists.

In 2004, Peters was found in contempt and ordered to pay a $31,600 penalty after declining to identify one of two individuals present in 1995 when he obtained documents outlining health and safety concerns at a Hamilton nursing home.

He later wrote three stories on the matter. The nursing home sued the city and Peters’ source of information was an issue at the civil court proceedings.

Former Hamilton alderman Henry Merling later identified himself as the source who was promised confidentiality by Peters.

Merling also identified another former alderman, David Wilson, as being present when the documents were turned over. Peters had not promised anonymity to Wilson, but when ordered by the court to identify him, Peters refused on the grounds it would inevitably unmask his primary source.

Trial judge David Crane said he believed that by staying silent, Peters was doing his job “as he honestly believes it should be done” but his stance had placed the trial in “crisis” and amounted to defying the court’s authority. The judge cited Peters for contempt.

Crane should never have done so, said Justice Robert Sharpe, writing yesterday for a unanimous three-judge appeal panel.

A judge who moves quickly to sanction a journalist in such circumstances risks running afoul of constitutional principles and – from a practical standpoint – risks depriving the court of vital evidence and “making a martyr of the defiant journalist,” Sharpe said.

“By raising the stakes and presenting the journalist with an immediate all-or-nothing choice, there is a risk the court’s actions will foreclose the exploration of alternative means of securing the information,” he said, with Justices Eleanore Cronk and Eileen Gillese agreeing.

Rather than treating the situation as a “head-on clash” between the rights of the media and the rights of a litigant, judges should apply the same constitutional principles as when ruling on a publication ban, Sharpe said.

That requires a court to balance the interests of all parties and look for ways to get through the trial without intruding on the media’s Charter rights.

At minimum, Peters should have got a chance to reconsider his position, Sharpe said.

The reporter should have also had an opportunity to consult with Merling to determine whether confidentiality was still desired, Sharpe said, adding it would have been “preferable” to postpone the contempt hearing until trial’s end.

The case is one of several to recently come before the appeal court raising questions of media freedom.

Last November, the court expanded the range of defences available to journalists in libel actions.

Yesterday’s ruling was the second in as many weeks dealing with journalist-source confidentiality.

While ordering the National Post on Feb. 29 to surrender an envelope that could reveal a reporter’s source, the court noted a police investigation was at stake and that in other circumstances, journalists have a constitutional right to protect sources.

“We’re seeing the Court of Appeal recognize that when you’re dealing with journalists and journalism, which involves both collecting information and publishing information … this must always involve a Charter analysis reflecting the importance of freedom of expression,” said Paul Schabas, a Toronto lawyer who frequently represents the media, including the Star.

In an interview yesterday, Peters, a former city hall reporter who now covers the Hamilton Tiger Cats, said the experience was ” a real ordeal I wouldn’t wish on anybody.”

“It was hard on me. It was hard on my family,” he said. “We didn’t know if I was going to be jailed. My kids were young. They didn’t really understand why their father was in trouble.

“Now, taking a look at the ruling, I can at least say maybe something good has come of it.”

As it turned out, Merling came forward and identified himself as the confidential source nearly a week after Peters refused to answer – and one day before his scheduled contempt-of-court hearing.

“I knew from the get-go that I wasn’t going to reveal the confidential source, so if that meant going to jail, that meant going to jail,” Peters recalled.

“I just knew that was the decision I had to stick with.”

But had Justice Crane given him a chance to go back to Merling, as the appeal court suggested, Peters said “there may have been an opportunity for the source to say `I don’t need my confidentiality protected any more.'”

Reprinted from the Toronto Star. Used by permission.

Read the Hamilton Spectator and The Canadian Press reports.  The Canadian Association of Journalists issued a press release welcoming the ruling but calling for a shield law to protect journalists and their sources.