Truth, sexy issues and audiotape: How a wayward recorder impacts privacy law

The court battle to make Natural Resources Minister Lisa Raitt’s unguarded comments public suggests how far a journalist can go to get a story without breaching privacy law, writes Dean Jobb.

Dean Jobb

Dean JobbThe misadventures of Canada’s most famous voice recorder have helped to clarify a grey area of the law, and suggest where the media should draw the line between what’s private and what the public has a right to know.

The recorder in question, of course, belongs to Jasmine MacDonnell, former press secretary to Natural Resources Minister Lisa Raitt. The pesky device inadvertently recorded more than five hours of chit-chat as minister and aide drove through British Columbia back in January. It then jumped ship in a Parliament Hill washroom and made its way into a journalist’s hands.

The journalist is Stephen Maher, The Chronicle Herald’s Ottawa correspondent. Maher had recently interviewed Raitt and, since aides often make their own recordings of media interviews, a colleague who recognized his voice on the device thought it belonged to him.

Maher notified MacDonnell and arranged for her to pick it up at his nearby office. In early June, five months and several reminders later, the recorder was still in his desk when MacDonnell lost her job after misplacing Raitt’s confidential briefing notes at a television station. That prompted Maher, after consulting his editors, to find out what was on the machine.

Raitt is heard describing the medical isotope shortage — caused by the shutdown of a troubled reactor her department oversees — as a “sexy” issue. What’s more, she predicted she would get credit for solving the problem and questioned the abilities of her colleague on the isotope file, Health Minister Leona Aglukkaq.

The Herald’s publication of the comments last week set off a political storm in Ottawa. Raitt resisted opposition demands for her resignation, but apologized to cancer patients who do not consider it “sexy” to have diagnostic tests delayed or cancelled due to the isotope shortage.

But were the minister’s unguarded comments fair game for the media? Can a journalist report the contents of what Raitt and MacDonnell thought was a private conversation?

That was the issue placed before Justice Gerald Moir of the Nova Scotia Supreme Court when MacDonnell sought an injunction to prevent the Herald from reporting what was said. She claimed invasion of privacy and improper use of her property — the recorder and its contents.

In refusing to block publication, Justice Moir ruled this was a case where the public interest trumped any claim to privacy. “It is wrong to deprive the press, and the public it serves, of remarks made privately … after those remarks became available because of poor record keeping or management.”

Privacy law is not well developed in Canada — Justice Moir cited one legal precedent that describes invasion of privacy as an “embryonic” claim under the civil law. Several provinces have passed legislation to protect privacy, and these include exemptions for the media’s news-gathering activities. Nova Scotia is not among them, leaving the courts to formulate the rules on a case-by-case basis.

And this is where Justice Moir’s ruling may have the most impact. With no Nova Scotia precedents to guide him, he drew on a 2001 Ontario ruling for a definition of what amounts to a breach of privacy. Evidence of “harassing behaviour” could support a claim for damages, he noted, as would “an intentional invasion of privacy.”

The Herald’s conduct did not fall within either category. Lawyer Rob Grant, who acted for the Herald with colleague Nancy Rubin of the firm Stewart McKelvey Stirling Scales, says Maher’s attempts to return the recorder and The Herald’s restraint — including an agreement to delay publication so both sides could prepare for the injunction hearing — weakened the allegation of invasion of privacy and strengthened the paper’s claim of acting in the public interest.

“Where there’s that level of indifference as to whether the device is in (a journalist’s) possession and … whether he listens to it or not, you can’t say there’s a reasonable expectation of privacy,” he notes.

Grant and Rubin caution that Justice Moir’s ruling came on a preliminary motion and the strange tale of MacDonnell’s well-travelled recorder may make the case unique. But we now have a better idea of when a journalist’s actions could be seen as an invasion of privacy.

Dean Jobb, a former Herald reporter and editor, is an associate professor of journalism at the University of King’s College and author of Media Law for Canadian Journalists.

This column originally appeared in the Halifax Chronicle-Herald

(Image by courosa, used under Creative Commons license.)