A judge has dismissed the first attempt by a Canadian police force to make a reporter hand over interview notes under a new Criminal Code provision.
Hamilton police filed a court application in January, seeking notes of interviews Spectator reporter Bill Dunphy conducted with the reputed head of a local crime family. Police argued Dunphy's notes on his talks with Paul Gravelle could help them investigate the 1998 murders of Ancaster lawyer Lynn Gilbank and her husband, Fred. But Superior Court Justice Stephen Glithero, in an 18-page written ruling released yesterday, tossed out the application.
He said the police had failed to prove to him that Dunphy's notes would provide any new evidence. Dunphy and The Spectator insisted most of the material had been printed in the newspaper between 2001 and 2005.
The judge also threw out the application because he was not satisfied police had made all reasonable efforts to obtain information from Gravelle, who had on five occasions between 1999 and 2001 offered to provide information on the murder of the Gilbanks. His offers were rejected or not believed by police.
"In my opinion, the applicant's suggestion that the notes will afford additional information relevant to the murders falls into the category of suspicion, conjecture or hypothesis and is in that sense a fishing expedition," Justice Glithero wrote.
"The information is not sufficient to satisfy me, on the standard of credibility ... that the notes will afford evidence in respect of the commission of these murders. Nor am I satisfied that the alternative source of any information that does exist has been investigated and that all reasonable efforts to obtain the information have been exhausted."
Police sought Dunphy's notes under a Criminal Code provision called a production order. It came into effect in September 2004 and allows a judge to compel a person not under investigation to turn over documents or data relevant to the commission of an offence. Refusal to comply is punishable by a $250,000 fine or up to six months in jail or both.
Spectator lawyer Brian Rogers, who had argued before the judge that granting the order would turn the media into an arm of the police, was pleased by the judge's ruling, including a notation recognizing the "important role and function of the media" in society.
"You shouldn't go knocking on the door of a journalist before you've looked everywhere else and sought out the alternative sources for the same information," Rogers said last night.
Spectator Editor-in-Chief Dana Robbins concurred.
"It's a terrific decision, one that is hugely encouraging to Canadian journalists," Robbins said.
"The judge was eloquent in articulating the vital role a free press plays, along with the court's responsibility for safeguarding that right."
I'm glad the criminal system still sees merit in protecting not only the reporters of this country, but their readers as well. Where would society be if we let the police dictate the contents of our newspapers? We would be characters in a George Orwell novel that's where. Long live free speech!
Later,
Kenaz
