What To Do
When The Mounties
Drop In For Tea - Revisited
By Harold J. Levy
Under Canadian law, journalists are compellable witnesses. Under
Canadian law, obtaining a warrant to search a newsroom is no different
than obtaining a warrant to search an abbatoir. And under Canadian
law, journalists' telephones can be tapped the same as anyone else's.
In other words, little has improved for the protection of journalists'
sources, notes, out-takes or other possibly confidential information
since I dealt with the issue in this publication almost ten years
The one significant change is that the Canadian Charter of rights
and freedoms - with its constitutional protection from unreasonable
search and seizure - was proclaimed in April 1982. But journalists
should not be blinded by this one development from the continuing
necessity to safeguard confidential documents.
Police officers remain free to go shopping from one justice of
the peace to another for a search warrant until they get one. And
even though application of the Charter may block introduction in
a court of evidence they illegally seize, the police remain able
to use the material in other nefarious ways.
In recent year's there's been a disturbing number of searches of
television newsrooms in the province of Quebec by police officers
seeking out-takes - the TV equivalent of print reporters' unused
notes or quotes.
This is particularly disturbing because the Quebec courts have
largely sided with the authorities. There's growing concern that
police forces are increasingly trying, in effect, to use news camerapersons
to gather police evidence.
Montreal CBC television journalist Julian Sher notes in an article
published in the Winter 1988 Bulletin of the Centre for Investigative
Journalism Bulletin that the Quebec raids in the past year have
related to the Stanley Cup riots in Montreal Streets, a labour protest,
the trashing of a post office by striking mailmen and an anti-war
Private television stations have been visited by the police too.
Last August, police raided Quatre Saisons, Montreal's newest french
language TV station, in search of outs by a small demonstration
of some young people. The station's news director, Jean Rivard,
reluctantly handed over the tape in spite of his concern that the
police interventions would impede the capacity of TV news to cover
any kind of demonstration.
Rivard says his station now keeps outs for just a few hours. "I
don't see a problem. If the police don't like it that's too bad.
We don't have enough money to store our tapes like the CBC."
CBC policy is to keep outs, with constraints of space and costs,
for sound journalistic reasons.
Magazines continue to remain vulnerable to searches which may impede
their capacity to publish. The classic case is the prosecution of
the now defunct Body Politic for publishing an article titled,
"Men Loving Boys Loving Men". In 1980, a police raid netted
a copy of the magazine's computerized subscription list and other
materials. To continue publishing, the magazine had to seek a court
order to gain access to copy its own list, then reconstruct it.
Ironically, the subscription materials were never used in evidence.
In spite of aquittals on all charges, the police did not return
the materials until eight years after they had been seized. Says
former publisher Ken Popert: "When the documents were returned,
we weren't sure whether we had received everything which had been
seized because of the passage of so much time."
Clayton Ruby, the Body Politic's lawyer, says that if the
police could effectively close the Body Politic, they can
close any publication. Ruby points out that since the subscriber's
list had no evidentiary value the seizure only served to terrorize
Ruby is skeptical of claims made by some publications that they
can protect themselves by having subscription services conducted
by computerized fulfillment houses which only provide access to
the computerized lists upon entry of a secret code. Says Ruby: "When
push comes to shove the subscription services are commercial organizations
which will co-operate with the police. They say yessir, nosir."
Managers of several Toronto subscription services say they have
never been raided by the police. If a search occurred, they uniformly
agreed that before honouring a warrant they would contact the magazine,
and seek advice from a lawyer. Some indicated that total security
would be illusory because of the documents which must be on hand
when lists are being revised on a regular basis.
Popert notes that vulnerable materials can be removed from the
office and hidden. He cautions to make sure you remember where the
materials have been hidden!
Another area of concern is the time-honoured practice of governments
to launch police investigations aimed at discovering the source
of leaked documents.
Globe and Mail reporter Peter Moon is always careful to
shred the original of a leaked document so that the authorities
cannot conduct forensic analysis which will connect the document
to the date the copy was made and the particular copy machine on
which it was duplicated. To ensure maximum safety, Moon may only
retain a "copy" which he himself has copy-typed from the
original. Where the document has already been used in a story, Moon
is not concerned about handing over the copy-typed version. He acknowledged
that he is careful to store valuable materials "elsewhere."
Newsrooms may be vulnerable to theft of documents because of the
ready availability of photocopy machines. All a security agent or
thief has to do is wait for an opportune moment, grab the document,
duplicate it on a nearby photocopy machine, restore the original
to its place, and fade away. The journalist may never find out that
the document is, effectively, gone.
This risk has lead to the development of Nocopi paper, which, as
a result of a secret technique, makes paper and /or ink reflect
the light of a photocopy or a fax machine, making the copying of
the document impossible. After Apple computer learned about the
leak of a 160-page document detailing a possible version of its
upcoming lap-top computer, the company began printing its top secret
documents on the highly visible burgundy Nocopi paper. A word of
caution. The type of Nocopi paper must be compatible with the particular
photcopier which would likely be used.
Nocopi also markets a word guard/word guard scrambler, which can
be used for high security documents. Nocopi claims it will distort
or screen copy produced by most photo-copiers. Nocopi products may
be obtained from Myncet Canada Security Technology, 50 Avenue Road,
Toronto, M5R 2G2. Telephone 928-6888.
Increased use of personal computers by writers and journalists
raises computer security concerns. Even where access to the system
is protected by a code, the protection may well be illusory. Somewhere
there is a master list of codes, and your top secret code is probably
Those who insist on storing top secret documents in a computer
should consider software that restricts access to particular files
to those who know a secret code.
The WordPerfect word processing program, for instance, offers a
"file manager" which offers password protection to a file.
This feature is designed to lock a file so that only the user has
access, on either the hard or floppy disc. But don't forget the
password! Lots of people have. If you do, it will remain locked
from everyone forever.
Stephan van Heerden, a computer security consultant who also happens
to teach use of the WordPerfect program, cautions that the password
may not offer protection against a sophisticated intruder such as
an RCMP computer expert.
Van Heerden handcrafts electronic barriers to provide the higher
degree of security which can be required. In addition to preventing
or controlling access to confidential material, his systems can
prevent that material from being erased, altered or otherwise sabotaged.
Van Heerden often advises his clients to set up directories, of
which only they are aware, for the storage of sensitive information.
Although the existence of the directory may be ascertainable, the
electronic paths which must be taken to get to it will be known
only to the user.
Dissembling the dissemblers is a challenging pursuit. Van Heerden
notes that computer security is an ever evolving field. Computer
hacks - and law enforcement computer experts - are constantly trying
to keep one step ahead of the efforts to keep them out of forbidden
territory. But for most writers and journalists, James Bond techniques
are not required, he suggests.There are reasonably priced devises
which will do the trick.
One computer "utility" can be purchased which will jumble
files stored on a disc. An intruder can summon only a mass of hieroglyphics
to the screen. It is called encrypting a file. It can be decrypted
only by the user. The utility can also be used with fax transmissions.
Another utility recommended by van Heerden hides sub-directories
from view when a directory of the drive is called. Also, certain
DOS (disc operating system) commands can be invoked in creating
directories that will deny the casual user access to those directories
and all the files they contain.
The quest for unbeatable computer security should not become an
unhealthy preoccupation. Most material can be protected by standard
techniques. Users might be advised to store super-sensitive materials
in more technically secure ways - such as deep within Aunt Emily's
"If something is highly confidential, keep it in your head,"
van Heerden suggests. Van Heerden can be reached at CCS Associates
Inc., 261 Davenport Road, Toronto, Ont. M5R 1K3. Messages can be
left at (416)964-1126.
The Globe's Jock Ferguson has developed a variety of techniques
for protecting important information including the identities of
sources. As he is often digging into political and corporate corruption,
Ferguson doesn't worry just about the police. He is also concerned
that one of the subjects of his investigation may try to find out,
through hiring a private investigator, the extent of exposure he
or she is facing.
Here are some of Ferguson's techniques:
* Use of code names for sources. Imaginative code names can deflect
the overly inquisitive. They should be used in all records including
notebooks, phone number books, and computer entries. But you must
be careful not to include information which might identify the source.
* Keeping notebooks and phone books on your person. Notebooks and
phone books can give a great deal away. They therefore exercise
a magnetic attraction for police officers exercising search warrants.
As the warrant does not in itself justify a search of the person,
documents are safer in a jacket pocket than in a desk drawer.
* Take valuable files home. This will often work because it is
easier to get a warrant to search a business address than a man's
private castle. Besides the police don't often think of searching
a reporter's residence. But a free-lancer working out of a residence
might prefer to keep the documents in someone else's home.
* Throw many names into the notes. As some stories involve many
sources, throwing a multitude of names - real or fictitious - may
help put the chasers of the scent.
* Take the documents to a lawyer's office. This is an excellent
technique where you are extremely nervous and there is a strong
likelihood of a police raid. Arrange for the lawyer to open up a
file in contemplation of possible seizure, thereby establishing
the solicitor-client relationship which will permit the assertion
of a legal privilege if the documents should happen to be seized.
A Supreme Court of Canada decision has established firm rules for
the conduct of raids on lawyers' offices. The police should be accompanied
by a representative of the respective provincial law society to
ensure the search is properly conducted and that only the files
in question are seized. And the files in question would be placed
in a sealed envelope so as not to be examined by the authorities
until a justice determines in court whether they are in fact privileged.
* Be particularly protective of notes which may be evidence for
a party in a libel case and the subject of examinations for discovery
(a procedure in which parties to a civil action are permitted to
question each other in order to pin down the relevant facts, and
clarify issues, before trial.) If, however, it's clear the notes
will not help the police - or any other party seeking them - there's
no need to make an issue of withholding them. Show them and end
the matter then and there. But any attempt to demand access to all
your notes should be vigorously resisted.
Author John Sawatsky witnessed a mountie search first hand after
publication of For Services Rendered. Sawatsky says that
it is quite unlikely that a police search will be conducted while
a work is in progress. But he says that after a book has been published
it is necessary to have a precautionary system in place. When dealing
with a great deal of material, the sensitive documentation which
might reveal sources must be separated from the mass of clippings
and public record documents. Sawatsky says that sensitive materials
must be kept off the premises and suggests that a very careful examination
be conducted to ensure that some sensitive materials are not inadvertently
left where they may be found by police.
Sawatsky cautions that a search can be a very traumatic experience.
If you can keep a cool head, it is advisable to ask to see the warrant
in order to determine what specific objects the justice has permitted
the police to seize. In his case, the mounties took a manuscript
of the book, which clearly fell beyond the confines of the warrant.
He says that it is helpful to show the authorities that you are
acquainted with the basics of search and seizure law so that they
do not try to get away with something they are not entitled to.
Sawatsky suggests that during a search one should try to be polite
while sending the message that if pushed too far one could turn
nasty. This induces the authorities to avoid potential confrontation.
Says Sawatsky: "The police will try to use their psychological
tricks on you. Why not try a few on them?"
When the mounties came to visit Jo Ann Gosselin in 1980 she actually
served them tea - and decaffeinated coffee. Gosselin had written
five articles for Southam News based on a leaked memo relating
to the fierce battle for Canada's lucrative fighter aircraft contract.
The conversation with the two officers was cordial until she refused
to produce the memo or identify her source. One of the officers
indicated his displeasure by whipping out a walkie-talky, muttering
a few words, and welcoming four or five of his colleagues who began
to swarm through the house. Since her mother had taught her always
be gracious to guests, Gosselin served them too and tried to look
after their needs as they conducted the search. "This was my
raid," says Gosselin proudly, noting that she asked her son
to take photos of their newly extended family, so that the moment
would be recorded for posterity.
(In fact, the mounties had packed up the memo without realizing
what it was. Gosselin, after consulting with a lawyer, agreed to
provide the mounties with the document and identified for them which
one it was. The matter never came to trial.)
Veteran CBC reporter Gerry McAuliffe has also been on the receiving
end of police searches. McAuliffe had reported that the Niagara
Regional Police had performed illegal wiretaps. He was rewarded
for his efforts by becoming the subject of investigation by the
Ontario Provincial Police team which was supposed to be investigating
the regional force.The police were interested in searching the records
of his home and office telephone. As a result of this experience,
McAuliffe has sworn never again to use his home telephone for those
rare but crucial matters of the utmost sensitivity. His policy is
to use public telephones for these calls and if possible never use
the same pay phone twice. (McAuliffe also is concerned that the
reason most journalists want to conceal their notes is that they
would be thoroughly embarrassed if anyone saw them. He says the
attention to the proper taking of notes has been noticeably lacking
in Canadian journalism schools.)
Mick Lowe, author of the recently published Conspiracy of Brothers:
A true story of Murder, Bikers and the Law, doesn't worry very
much about seizure of his notes. "No one can read my writing,"
he says. But Lowe thinks that a confrontation with the authorities
is inevitable. And when it comes he is worried that as a free-lancer
he will neither be protected by law nor by any powerful news organization.
But Lowe is certain that he will protect his sources to the fullest
extent."After all," he says. "when the source talks
to me he's talking to me as a journalist, and I'm talking to him
as a source. I owe him the protection he requires."
Precautions to be taken during a raid:
* Ask to see the warrant. (If there is no warrant a lawful search
cannot be conducted unless you give your consent.)
* Check the warrant for obvious defects. (But remember that if
your arguments fall upon deaf or uninterested ears you cannot obstruct
the police in the execution of their lawful duties).
* Say as little as possible.(There is no obligation to give the
police information or to point out the location of any documents
which they are seeking during the course of the search.)
* Protect sensitive material by asking the authorities to place
such material in a sealed envelope until it can be examined by a
justice--and duplicate whatever material you can before the officers
leave so that you can carry on business and start preparing a legal
challenge to the search.
* Co-operate with the authorities where you can but be prepared
to draw the line where the act of co-operation could chill others
from providing the news organization with information.
Finally, a poem:
When the mounties come to tea
Make sure they have a warrant.
Ask them to leave their horses outside
Horse droppings in houses are abhorrent.
Remember you can have the last laugh
If you've thought your security through.
By having nothing at home they can seize
Apart from a bottle or two.
So protect your sources vigorously
Nail down your stories all.
Think how good a host you can be
When the mounties come to tea.
Harold Levy is a lawyer and member of the editorial board of
The Toronto Star.
This article originally appeared in Sources 21, Summer
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