Taking Up the Shield
The vindication of the Hamilton Spectator reporter from the biggest
written by LAURIE WILSON
When Ken Peters saw the document that exonerated him from civil contempt, he had to go back and take a second and third look.
He re-read the ruling that came down March 17 not only to fully digest the weighty legal jargon, but also to wrap his head around the fact a battle that had caused so much stress, worry, time and money had been won.
“It was an incredibly difficult time, and an incredibly stressful time, but I am pleased with the ruling and I take the approach that I do believe that something positive for the industry came from all of this.”
What began as a series of stories for the Hamilton Spectator in 1995 lead to a lengthy court battle almost a decade later – a position he says he could have never imagined himself in at the time the articles were written. The case between the former region of Hamilton-Wentworth and St. Elizabeth Villa nursing home saw Peters facing the possibility of jail time or hefty fines when he refused to identify a source he used for his articles. The source subsequently came forward, but the damage was already done. He was eventually found in civil instead of criminal contempt, but the result was the heftiest fine ever issued to a journalist in Canada.
The widely publicized $31,600 contempt finding and subsequent overturning upon appeal have re-energized the debate regarding the rights journalists have in keeping sources confidential.
Peters sees the decision as precedent-setting in its scope.
The panel referred to article 2(b) of the Charter of Rights and Freedoms, which guarantees a free press and acknowledged that Justice David Crane’s actions in finding Peters in contempt were unwarranted.
“I think that the courts set out very clearly a very careful, cautious procedure to be followed where a journalist is trying to protect a confidential source,” Brian Rogers, Peters’ lawyer says. “And I think that’s very clear and very helpful and also very respectful in protecting the rights that are involved.”
Though he is happy for Peters and respectful of the ordeal he went through, veteran media lawyer Alan Shanoff, has some issues with the case. In his opinion the ruling does little more than pay lip service to the industry.
“The court of appeals didn’t deal with any issue other than contempt and they specifically didn’t deal with the privilege issue,” Shanoff says. “They’ve given . . . a lot of nice motherhood statements. They’ve restored justice to Mr. Peters and his newspaper.
“But still, at the end of the day look what happened here: this journalist was dragged through the mud. His employer has to pay a ton of money in legal fees, for which they will not be compensated by anybody. So what message does that give?”
Shanoff points to former National Post reporter Andrew McIntosh, who was forced to give up confidential documents in February, to show how unpredictable the courts can be when dealing with journalists.
He wonders what the end result might have been had the Peters case unraveled differently.
“What would’ve happened if the source hadn’t outed himself, and ask yourself what would’ve happened if not only did he not out himself, but his identity was germane to the civil suit. Privilege still? I don’t know.”
Some members of the craft are calling for stricter tests in court to allow journalists more freedom and confidence to use confidential sources.
The so-called ‘shield law’ would theoretically give blanket protection to journalists, allowing reporters to function without worry of being pressured in court to give up sources. The idea is that the legal system would have to follow stricter tests before looking to reporters for evidence.
Such laws are gaining steam in the United States, where 33 jurisdictions have implemented shield laws.
Canadian Association of Journalists president Mary Agnes Welch sees shield laws as a better way to protect journalists on a national level.
And they are causing a blip, albeit a small one, on the Canadian political radar.
Bloc Quebecois MP and former journalist Serge Menard’s private members bill has brought the issue to the House of Commons.
However, opponents of shield laws point to the difficulty in defining a “journalist.”
Menard’s Bill C-426’s definition of a journalist is “a person who contributes regularly and directly to the gathering, writing, production or dissemination of information for the public through any media, or anyone who assists such a person.”
The bill emphasizes that a judge may not order reporters to divulge a source unless,
“(a) the person has done everything in the person’s power to discover the source of the information and (b) the disclosure is in the public interest, having regard to (i) the outcome of the litigation, (ii) the freedom of information, and (iii) the impact of the journalist’s testimony on the source.”
While the CAJ does not fully endorse the bill, Welch sees Menard’s efforts as a step in the right direction.
“We’ve had a look at it and we don’t think it goes far enough, so we’re withholding our support for it, but we absolutely support the attempt to come up with a shield law,” Welch says.
Shanoff sees the implementation of shield laws in Canada as little more than a pipe dream and does not expect Canadian journalists to be protected by them any time soon.
“Governments don’t like that. Governments want to force journalists to answer, because when there’s a leak, the government wants to know where the leak came from,” he says. “They don’t want to be met by shield law. So no government will introduce shield law.”
For his part, Peters says he would like to see most cases fought out on a case-by-case basis to further outline what privileges journalists should have.
He says cases like his raise awareness and serve the industry in a positive way.
“I’m a little reluctant to invite more government intervention into how we practice journalism in Canada and I’m not so sure that shield laws would create more problems than they would solve,” he says. “I like to think that the courts are moving in the right direction and that sooner or later we will get the kind of clarity that we seek.”
Peters says he would not wish the legal odyssey he went through on anybody, nor does he see himself as a martyr or crusader for journalistic rights in Canada. He does however acknowledge the importance and implications of the case.
Looking back, he is grateful for the Spectator’s willingness to get behind him in covering legal costs and providing moral support, helping him through what he refers to as the darkest period of his career.
“They very well could have shut this down after the David Crane (contempt) ruling,” Peters says, “But they saw that this was an unjust ruling and decided to fight it and appeal it.
“There’s a lot bigger newspapers out there and for a medium sized daily newspaper to take this on and be victorious with it, I think it speaks very well to our paper and to its commitment to journalism in this country.”
Personally, Peters says there was never any grey area in his decision to stay true to his source, even when he faced the possibility of jail time.