Commentary
A legal precedent on the disclosure of evidence means what a journalist tells the police or other investigators could wind up as Exhibit A in court. A word to the wise – remember, anything you say or do could be used against you. By Dean Jobb.

By Dean Jobb

Few journalists have heard of the Stinchcombe ruling, and that’s not surprising – the case has nothing to do with media law. Yet it has plenty to say about how journalists do their jobs.

R. v. Stinchcombe is the Supreme Court of Canada’s landmark 1991 ruling on the disclosure of evidence to defendants in criminal cases. The court has decreed that a person charged with a crime has the right to see any information the police have collected – witness statements, investigators’ notes and logs, forensic reports and the like – that may be relevant to the charges.

A wide net is cast, and information that points to innocence as well as guilt must be disclosed. In the words of one of the court’s follow-up rulings on the issue, the Crown has a “constitutional and ethical duty to disclose all information in its possession reasonably capable of affecting the accused’s ability to raise a reasonable doubt concerning his innocence.” The goal is to uphold every citizen’s Charter right to make full answer and defence to charges, ensuring defendants are not ambushed with a surprise witness or kept in the dark about evidence that might exonerate them.

Such trial tactics were once common. But in the late 1980s, a Nova Scotia inquiry into Donald Marshall Jr.’s wrongful murder conviction – which was based in part on the suppression of evidence implicating the real killer – recommended new laws to require disclosure. When Ottawa was slow to comply, the Supreme Court took matters into its own hands and used its Stinchcombe ruling to make disclosure the law of the land.

As journalists who cover the courts can attest, disclosure has become a major battleground in many criminal cases as defence lawyers demand more information and judges are called on to decide what evidence is relevant as what is not. Police forces keep meticulous records of what they find as an investigation unfolds and, if charges are filed, the defendant has a right to see who was interviewed and what each person said. This right of disclosure applies to other types of prosecutions, whether it be a company charged with polluting a river or a stockbroker accused of insider trading.

And that’s why every journalist needs to understand how the Stinchcombe ruling affects the way they deal with police and other investigative agencies. Any information you exchange with a police source – no matter how informal the setting or trivial you may consider the information – could wind up as evidence in a court case or in the hands of a defendant with a score to settle with the media.

The law of disclosure gave Edward Greenspan, the lawyer for embattled lobbyist Karl-Heinz Schreiber, the RCMP records he used last fall to attack investigative journalist Stevie Cameron over her dealings with the police during the Airbus investigation. Other journalists have endured the discomfort of having their actions and motives questioned in the courtroom, based on police files disclosed to the defence. Some of the reporters who investigated allegations of sexual misconduct by Gerald Regan found themselves on the hotseat a few years ago when the former Nova Scotia premier’s lawyer – Greenspan again – put the police on trial.

Cameron spoke to a symposium at the University of King’s College School of Journalism in Halifax last spring and offered journalists some blunt advice: “Never talk to the police.” She said she has adopted that credo as she researches her latest book, on the case of accused B.C. serial killer Robert Pickton.

But abstinence is not always an option. A journalist investigating organized crime or a major political scandal is unlikely to get very far without cultivating good police sources. Reporters on the crime or court beat deal with the police on a daily basis – it’s the only way to keep tabs on investigations, searches and arrests.

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The Stinchcombe ruling does not mean that journalists should avoid the police. It’s our job to ask questions, and no one will be surprised if a report surfaces that shows reporters were pumping the police for information about a case. The real risk is in sharing information – even information that’s already on the public record – with police or other investigators.

There are solid ethical reasons to avoid helping – or appearing to help – the police. It’s the reason media organizations shell out tens of thousands of dollars in legal fees to challenge search warrants and subpoenas when the authorities come after journalists’ notes and tapes. As Nick Russell notes in his textbook Morals and the Media, “journalists do not exist to make the work of the police easier” and it would be “highly detrimental for the media to be seen as an arm of the law.”

In April a committee of the Canadian Association of Journalists produced a code of ethics for investigative reporters, which calls on journalists to maintain “strict independence” from the police, justice officials and governments. An exception is made if a journalist becomes aware of an “impending public risk” and, like any other citizen, has a duty to warn the authorities.

But few journalists will ever stumble upon a terrorist plot or get wind that a murder is about to be committed – information that would obviously fit the definition of an “impending public risk.” For any other dealings with the police, the lesson of Stinchcombe is simple: don’t say or do anything that you are not prepared to have exposed, at some future date, for all to see.

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Dean Jobb, an assistant professor of journalism at the University of King’s College, is author of Media Law for Canadian Journalists, published by Emond Montgomery Publications

www.emp.ca/books/093-4.html

This article originally appeared in Media, the magazine of the Canadian Association of Journalists.