Lawrence Martin
When police raided the home of Ottawa journalist Juliet O'Neill in January of 2004, an editor said it constituted one of the blackest days for freedom of the press in this country. It still does. It does until Ms. O'Neill is totally cleared. It does until a verdict is posted that drives a stake through those who believe that intimidation of this sort has any place in Canada.
To refresh the memory, Ms. O'Neill, a scrupulous reporter of long and good standing, was spied on and her home and office raided after she wrote an article in the Ottawa Citizen about Maher Arar, a Canadian citizen deported to Syria by U.S. authorities in 2002 on the basis of alleged terrorist ties. The article said the RCMP had identified Mr. Arar as a possible member of an Ottawa-based al-Qaeda support group. The Mounties obtained search warrants under the post-9/11 Security of Information Act, maintaining that the journalist's story was based on secret government information.
The matter is before the courts this week, with the Ottawa Citizen seeking to have the search warrants declared unconstitutional. Under the Security of Information Act, Ms. O'Neill could face criminal charges and the possibility of up to 14 years in prison if found guilty.
Ms. O'Neill's article cited "a security source" and a leaked document offering details of what Mr. Arar allegedly said under torture in Syria. The use of leaked information is what journalism often thrives on, to enlighten the public on what is going on behind closed doors. In this great democracy of ours, that's a crime?
Ms. O'Neill's lawyers made the point in court this week that the Security of Information Act is so vague as to contain no definition of "secret" information. Conceivably, the police could pursue any journalist receiving government information if that information were not sanctioned for release. That's the type of thing that used to go on in police states such as the Soviet Union. That's why the case against Ms. O'Neill needs to disappear.
The Citizen was right to publish Ms. O'Neill's story. When the press starts withholding information for reasons of "national security" -- which can be defined so as to include most anything -- look out. The slippery slope? You're on it.
The New York Times got on that slope a while ago -- and went all the way down it. The Times withheld a story for a year on the Bush administration's secret program of warrantless domestic eavesdropping. It did so at the urging of the White House: reasons of national security. The Times's decision had potentially huge consequences. Had the story, uncovered just before the 2004 election, been printed, the damage might have been enough to tip the vote to the Democrats. All the Democrats needed was a changeover of 60,000 votes in one state (Ohio) to win. But the Times was under the gun for previous transgressions. It lost its nerve. It failed the public interest.
A case similar to the one involving Ms. O'Neill occurred when the RCMP went after reporter Andrew McIntosh to find out his sources and to retrieve a document in connection with a story he wrote on the Shawinigate controversy. Ironically, on the very day that Ms. O'Neill's home and office were being raided, an Ontario Superior Court judge ruled in favour of Mr. McIntosh, saying a search warrant that would have forced him to reveal a confidential source should never have been granted. "Freedom of expression is a cornerstone of our society," wrote Madam Justice Mary Lou Benotto. "Confidential sources are essential to the effective functioning of the media in a free and democratic society."
This week, the Crown filed an ominous-sounding factum in the O'Neill case. The Crown appeared to be arguing that the media's publication of any security-related information beyond what is authorized under the government's Access to Information Act can be grounds for criminal charges. Disclosure under the 1983 act can take months or years and, at that, large portions are often blacked out. But try to get around it, the Crown seems to be telling journalists, and you risk being charged with a criminal offence.
That's how serious this whole thing is getting. That's the type of intimidation that the post-9/11 environment has wrought. That's why the O'Neill case is so important. That's why the courts must respond with a clarion declaration that this is a free society.