© David F. Sutherland 1998
David F. Sutherland & Associates
Vancouver, B.C.
All of the wisdom in journalism, and certainly in media law, can probably be reduced to 30 or 40 cryptic editor’s sayings. One of these is "Rumour of criminal charge is never a story."
When an editor’s rule is broken, especially in a high profile case, journalists watch with special interest to see if the exception proves, or remakes, the rule.
Under the rule, the Airbus-kickback-to-Mulroney story that broke in the Financial Post in November of 1995 wasn’t a story. That cops are investigating the possibility of a crime is never a story, never mind that the quarry was prominent. The Canadian public was very interested in the story, wondering "did he do it?" The media shared the public’s interest but also wondered if the rule, or an exception, would prevail. The story is rich with lessons for editors and lawyers alike. By all appearances, it is over now, ending in the fall of 1997.
Immediately after the initial story, Brian Mulroney launched his preemptive libel suit against the government, the RCMP and its employee, Sgt. Fraser Fiegenwald. Some thought the Airbus kickback had actually happened ("Mulroney got $5 million, Ottawa says" – Toronto Star, p. A1, Nov. 21, 1995). Perhaps the libel case would expose the truth, take the case away from the backroom spin-doctors. Perhaps, for once, Canadians would actually learn what happened.
Among this school there was an anxiety. Perhaps Mulroney would out-maneuver the Feds. Perhaps he’d not only get away with it, but also recover the damages he was claiming - $50 million more of taxpayers’ money. Perhaps Justice lawyers would be outsmarted. Perhaps Mulroney had covered his tracks. In effect, many Canadians were getting a taste, usually reserved for journalists, of Canadian libel law – the fear that the proof of truth might not be enough, and a culprit might be rewarded – solely because someone tried to bring his wrongdoing to the public’s attention, i.e., to the victims’ attention. Libel law had done that before. Take the broadcasted allegations in the 50’s that Hall Banks, head of the Seafarers’ International Union, was a thug, with connections to organized crime, who was holding the St. Lawrence Seaway and western grain shipments hostage. All of that was true, but Banks won his libel suit and substantial damages, paid by the CBC, that is, Canadian taxpayers.
Later, Canadians realized that Mulroney’s case might not turn on truth. The leaked letter was part of an investigation. Surely a prosecutor could disclose suspicions in the course of an investigation? How else could an investigation be conducted? The Request for Assistance ("RFA") had to give the Swiss authorities a context. Wouldn’t there be some kind of privilege protecting investigators, even though the kickback couldn’t be proved?
Still later, Canadians felt cheated by the settlement. Without a trial they would never know the truth about the kickback or the investigation.
On October 6, 1997, an arbitrator set the amount to be paid:
Journalists continued to dig. Why was there a settlement? The Feds’ excuse was that, on the even of trial, they discovered for the first time that our RCMP Sergeant had improperly leaked the RFA to the press. There could be no privilege for a leak. That was not to further any legitimate Crown purpose. The RCMP was at risk of being found financially responsible, as the employer. So it settled.
Enterprising journalists wanted to speak to Sgt. Fiegenwald, the "fall-guy", and it turned out he wanted to sing. However, he was promptly charged under the RCMP’s Code of Conduct. The formal hearing would be closed to the public under s. 45.1(14) of the RCMP Act, which states that the "hearing . . . shall be held in private".
The media brought a Charter challenge before Mr. Justice Rutherford in Ontario. The Charter’s s. 2(b) affords everyone the fundamental freedom of expression, including freedom of the press. The blanket ban on access was an unjustified infringement of that freedom, the media argued. However, after the Charter argument, and before any Charter decision, the Sergeant abruptly decided to resign from the force. There would be no discipline hearing.
It seemed that everything had been swept under the rug. Threat of public trial or hearing appeared to be the only visible part of a larger drama. Were the spin-doctors running everything? Didn’t the public have a right to know? Didn’t the handling of the Airbus purchase, the police investigation, the settlement, the leak, involve millions of our dollars and the public interest? Mulroney spent more than $1/2 million on PR flacks. What about the Feds? How much did they spend? Fiegenwald wanted to talk until charged and then he wanted an open hearing. What happened?
Do you suppose the editor’s saying is correct? Is rumour of criminal charge always an inappropriate police leak – seeking to use newsworthiness to pressure the Crown? Do you suppose journalists should investigate such leaks, but hold off on publishing until charges are laid?
There’s one small silver-lining affecting the public’s right to know. On November 5, 1997, despite learning of the Sergeant’s resignation, Mr. Justice Rutherford went ahead anyway and decided that the blanket ban was an unjustified infringement. It was struck under the Charter, ensuring access for journalists to RCMP discipline proceedings, for the future.
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