Elysse Zarek
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The Wrong Arm of the Law

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How three investigative reporters, Stevie Cameron, Andrew McIntosh, and Juliet O'Neill, got so close to the story that they became the story

When Juliet O’Neill’s garbage went missing from the curb one Wednesday morning in January 2004, theOttawa Citizen reporter suspected something was up. The night before, like every Tuesday night, she had placed her garbage by the street for the next day’s pickup. When she left for work on Wednesday morning, her garbage was gone – but her neighbours’ bins were still full. That’s strange, she thought. Shortly after, O’Neill was conducting a long interview in a café when she noticed a woman glancing at her from across the room. Three hours later, when the interview finally wrapped up, the woman was still there, still nursing the same cup of coffee and stealing glances at O’Neill.

Julie, don’t be paranoid, O’Neill chided herself. But that night, she went to bed spooked.

“The events made me nervous,” she says. “I was very worried for the next couple of nights.”

On another morning that January, O’Neill awoke to an even more unpleasant surprise: 10 RCMP officers at her front door. They announced they were investigating the identity of a person who had given O’Neill a confidential document that she’d subsequently used for a story. The Mounties confiscated her laptop hard drive, address books, and some interview tapes. They also rifled through her lingerie drawer and pulled back the quilts on her bed. “It felt like a slow-motion robbery,” O’Neill wrote afterwards.

The Canada that O’Neill met at her front door that January day isn’t the Canada that most people recognize. We live in an open and democratic society. Journalists aren’t persecuted and thrown in jail. Other hallmarks of a police state – extrajudicial killings, abductions, widespread fear – are absent, and the press has no fears about embarrassing a sitting government.

Yet the raid on O’Neill is not the only recent incident that suggests the RCMP believes the media are just a bit too free in Canada. Having lost her position as a paragon of Canadian journalism after the RCMP named her as an informant in its Airbus investigation, Stevie Cameron feels “maimed.” And fellow investigative journalist Andrew McIntosh has pulled up stakes and left the country. The Mounties tried to bully McIntosh and theNational Post into turning over a document that embarrassed former prime minister Jean Chrétien. Having established himself as one of Canada’s best journalistic diggers, McIntosh, tired of putting his career aspirations on hold, opted for a change of duties and location. He moved to The Sacramento Bee in March.

Apart from its purely political implications and its effect on these three people’s careers, the outbreak of Mountie mayhem has raised enough bothersome questions about journalistic ethics to prompt plenty of soul-searching and mudslinging among Canada’s journalistic elite.

Why are the Mounties being so aggressive? The RCMP’s own thinking is opaque; press inquiries net only anodyne responses or no-comments. The cops are, after all, in the secrecy game. In the absence of transparency at our national police force, there’s no shortage of theories about its motivations. One is that the RCMP is doing its political masters’ bidding. Another is that it’s scapegoating journalists for its own bungled investigations. In any case, the source of the conflict is clear enough: journalists and the RCMP want the same thing – information. Occasionally, journalists and police share information as they pursue stories and investigations. But ultimately, their interests collide. Journalists want to publish and educate. Police want to arrest and prosecute. That is where the trouble begins.

The most infamous and complex of these three cases – Stevie Cameron’s – can be traced to the arrival in Canada in the mid-1970s of Karlheinz Schreiber, a glad-handing German who was a go- between for companies bidding on government contracts in Canada. In the consulting business, the aircraft industry is a particularly rich slice of the pie, as airlines are often government owned and manufacturers heavily subsidized. Of the three European companies that employed Schreiber to bolster their Canadian business, two were in the aviation sector: Airbus Industrie and Eurocopter, both of which hired him in the mid-1980s. To Airbus, created with massive investments by four European interests, Canada represented an easier entrée to the North American market than going to the U.S., where its primary global competitor, Boeing, was the home-team favourite.

Since it was a Crown corporation, Air Canada’s $1.8 billion purchase of 32 Airbus 320 planes in 1988 was effectively a government purchase. Airbus’s primary lobbyist in Canada was former Progressive Conservative premier of Newfoundland Frank Moores, a friend of former Prime Minister Brian Mulroney (and Schreiber). Moores also sat on the board of Air Canada, an obvious conflict of interest that led – once leaked to the press – to him resigning his board seat. For each Airbus plane that was sold to the Canadian government, Schreiber earned a commission, which he shared with some Canadian politicians. There is absolutely no evidence Mulroney received any form of kickback, despite rumours to the contrary.

There were many such tangles in Mulroney’s Ottawa – enough to fill Cameron’s On the Take: Crime, Corruption and Greed in the Mulroney Years. When it was published in 1994, Tory-weary Canadians were a receptive audience. It became the most successful political book in Canadian history, selling more than 200,000 copies in hardcover and paperback within two years. At the time, Cameron had just finished her stint as a political reporter for The Globe and Mail and was working as a contributing editor to Maclean’s. The book cemented her reputation as one of Canada’s top investigative journalists.

When the book came out, it was early days in the Airbus story – “It may take years for the whole story to unfold,” Cameron wrote with more prophetic resonance than she could have guessed – so the subject filled only eight pages of the nearly 500 in On the Take. It was enough to pique the interest of the RCMP. In January 1995, Cameron met with two Mounties. She says they wouldn’t say why they wanted to meet, but it was known that the RCMP had been investigating Airbus since the deal in 1988. Cameron had loaned her On the Take files to another reporter, but agreed to let the Mounties see them after she got them back.They also requested an electronic version of her book to better plumb its contents. Cameron refused, but her publisher, Macfarlane Walter & Ross, complied as a courtesy.

That is all Cameron and the Mounties agree happened in 1995. They don’t even agree on where they met – whether it was in Cameron’s kitchen or at their office. Cameron says she knew her name would come out in court if Mulroney was tried, but she also knew the chances were slim this would happen. She believed she had nothing to hide – she says everything she told the RCMP was on the public record.

Around September of that year, a Crown prosecutor working on the RCMP investigation into Airbus sent a letter to Swiss authorities, pursuing an allegation that Schreiber had stashed money in a Swiss bank for Mulroney. In 1995, when Mulroney got wind of the Crown prosecutor’s letter, he launched a $50 million libel suit against the federal goverment. He settled for an undisclosed sum out of court the following year.

Meanwhile, in the spring of 1995, the RCMP again called on Cameron. They wanted more details about political corruption, and Airbus in particular. At the time, Cameron was freelancing for Maclean’s and looking to write another book focusing on Schreiber and Airbus. She recalls that both her Maclean’s editor and her book publisher encouraged her to continue the contact: “Maybe we’ll get a great story out of it,” she quotes them as saying. After that meeting, Cameron busied herself as editor of Elm Street magazine, and later began working with CBC producer Harvey Cashore on the Airbus book.

The RCMP, however, considered the relationship far from over. By October 1997, officers were debating whether or not to assign Cameron confidential informant status. According to RCMP files, Cameron asked for a guarantee that she not be revealed as a police source. This is the crux of the dispute between the two parties – whether or not Cameron agreed to be assigned confidential informant status. She says she asked for no such guarantee. She already knew her name would be revealed if Mulroney were charged. “They said, ‘We’ll have to disclose it when it gets to trial.’ And I said fine,” recalls Cameron. “Once I knew that, I thought, ‘Okay, I’m going to be the one to say I talked to them first.’ … I didn’t want to be sandbagged years later and then I never really talked to them again about this.” The Mounties left the question of her confidential informant designation hanging.

At any rate, the Mounties had to document any evidence provided by Cameron, because of a 1991 Supreme Court ruling in the case of a lawyer named William Stinchcombe, who hadn’t been told of Crown evidence that would have been favourable to his defence against breach of trust and fraud charges. The court ruled that Canadians accused of crimes have the right to full disclosure of the government’s case against them. While the intention is to minimize the chances of a wrongful conviction, the upshot for the media is this: if a journalist provides information to the police relating to the alleged crime, then the police could be required to disclose this fact to the defence team when charges are laid. However, those who are identified as confidential informants may still have their identities protected.

At the second meeting between Cameron and the RCMP, in 1995, two officers explained the implications of Stinchcombe. She says she understood the ruling and didn’t take offence to it. But many journalists can easily get caught in its web. That’s because it’s not a ruling in media law, says Dean Jobb, who teaches the subject at the University of King’s College School of Journalism in Halifax. “If a journalist decides, ‘Well, I’ll help the police,’ then chances are it’s going to become known at some level, either in courts or in the media,” says Jobb. “There are no off-the-records with the police.”

In 1997, the RCMP publicly stated that Mulroney was absolved of all charges, but it would continue its investigation into Airbus. The case faded from the public eye, and the RCMP turned its attention to Eurocopter. (The eventual publication of Cameron and Cashore’s book about Airbus, The Last Amigo: Karlheinz Schreiber and the Anatomy of a Scandal, in 2001, though a bestseller, received little media attention.) The German manufacturer had sold helicopters to the Canadian Coast Guard during the Mulroney years, employing Schreiber as a middleman to seal the deal. Relying in part on information from Cameron, the RCMP obtained a search warrant to raid Eurocopter’s Canadian branch office in Fort Erie, Ontario, in December 1999.

By 1999, RCMP Superintendent Alan Mathews had taken over the Airbus-Eurocopter file. That spring, he decided Cameron should have been labelled a confidential informant in 1995 and informally made her one, according to Cameron, though she says she was not aware of Matthews’s decision at the time. In 2001, he formalized the arrangement and filed an affidavit to the Ontario Superior Court in April, stating that Cameron had been asked and she had insisted upon confidential informant status, which she would waive only if Mulroney were tried. From that point, Cameron was known as A2948. Mathews’s affidavit was required for a proceeding brought by Eurocopter’s lawyers, who were seeking disclosure of the search warrant materials so they could attack the search’s validity. The hearing was held in secrecy in a Toronto courtroom until the issue of disclosure could be decided, in view of the Crown’s concern for confidentiality. CBC petitioned for access and was admitted on condition that it maintain secrecy.

In the spring of 2003, Cameron’s lawyer, Peter Jacobsen, corresponded with the Crown prosecutor. The issue was the extent to which information needed to be blacked out in the documents in order to protect Cameron’s identity as a source. This was on the basis that she was a confidential informant. Cameron says she was unaware her lawyer had acted on her behalf and didn’t learn about the letter until later. Jacobsen had attached a copy of the letter in an email to Cameron, but she never opened it.

Then, in October 2003, the judge finally ruled there should be disclosure and made all search materials available. There was a caveat: one person was protected from being disclosed, and that name was blacked out from the documents. Later, it came out that the name was Stevie Cameron’s.

By the end of 2003, the federal government formally called off the Airbus investigation and the Eurocopter case became open to the public. The Globe hired freelancer and lawyer William Kaplan – the author of a 1998 defence of Mulroney, Presumed Guilty: Brian Mulroney, the Airbus Affair, and the Government of Canada – to write a three-part series on the secret hearing. The second installment splashed Cameron’s face across the front page of the Saturday edition, asking, “Could this journalist be the secret informant?”

By January 2004, Cameron had made it clear she’d refused confidential informant status. This led to a hearing in the Eurocopter case. Mathews prepared an affidavit for the court laying out the grounds for the RCMP treating Cameron as a confidential informant. Then, in May, Mathews filed a further affidavit saying that the 686 contacts between the RCMP and Cameron that he had earlier referred to included 680 media references. “The actual number of contacts was tiny,” says Clayton Ruby, Cameron’s lawyer. Cameron has since lodged a complaint with the RCMP about the way she was treated by Supt. Mathews. The investigation continues.

Cameron’s informant status has come to overshadow the original story – the relationship between Schreiber and Mulroney. In his lawsuit, Mulroney described Schreiber as someone he knew only peripherally, yet Schreiber gave Mulroney $300,000 shortly after he had stepped down as Prime Minister, but while still a Member of Parliament. Schreiber and Mulroney have given accounts of the purpose of the payments.

The entire dustup has left Cameron with a stack of legal bills and a journalistic community split into two camps. On one side are detractors who think that by helping the police pursue criminal investigations, she violated a public trust and is now trying to rewrite history. On the other are defenders who think the blame in the Airbus affair has been misdirected, and Cameron is being unfairly maligned. Many of the latter have contributed to fundraising efforts to offset Cameron’s legal bills. Both sides have hammered each other in an acrimonious debate on the Canadian Association of Journalists’s online forum. Kaplan, one of Cameron’s fiercest critics, wrote, “No other journalist to my knowledge became a police informer and provided business, financial and other records to the RCMP. No other journalist asked to become a confidential informant and was designated as such.”

Hamilton Spectator columnist Bill Dunphy, one of the more vocal Cameron defenders in that forum, found that the affair hit close to home. In the early 1990s, he spent six years investigating the white supremacist movement for the Toronto Sun, nurturing contacts among the supremacists and the police. “With the police, I had to get close to them to find out what they were doing, what they were up to, without becoming an agent,” he says. How does a reporter walk that fine line? “It’s very hard.”

But when Dunphy came across proof that police were obstructing justice to avoid exposing Canadian Security Intelligence Service (CSIS) undercover agents embedded with the supremacists, he realized he had to write about it. “In a long-term investigation, you gain information by developing trust,” says Dunphy. But truth is more important than trust. “Here’s where journalists go wrong. You have to be prepared to betray that trust because you have to put your own principles first.”

Victor Malarek, senior reporter at CTV’s W-5, was shocked when he read the Globe‘s story. Malarek has had many conversations with the RCMP over the course of his career. If the RCMP is calling Cameron a source, he thought, then any journalist could be one too. Malarek called her up shortly after. “I asked her point blank, ‘Were you feeding information to the cops?’ and she said no. Well then, there but by the grace of God go I.”

“A lot of journalists met with the RCMP,” says Cameron. “I seem to be the only one who has been maimed.”

In 1988, fromer Prime Minister Jean Chrétien bought shares in the Grand-Mère golf course and the adjacent Grand-Mère Inn, in the riding of Saint-Maurice, where Chrétien had previously been a Member of Parliament. Both businesses did poorly, and in April 1993, Chrétien and his business partners sold the inn to Yvon Duhaime, a man with a criminal record. In November 1993, just after being elected prime minister, Chrétien sold his shares in the golf course. By 1996, he had not been paid for these shares. In 1996 and 1997, Chrétien called the president of the Business Development Bank of Canada, a Crown corporation, and pressured the president to give a loan to Duhaime. In 1997, the BDC gave Duhaime a $615,000 loan.

National Post reporter Andrew McIntosh, who had been one of Cameron’s two research associates for On the Take, had been following the Grand-Mère Inn’s money trail since 1998. In 1999, he wrote a pair of articles about the properties and implied that Chrétien had a financial interest in seeing Duhaime receive a BDC loan. In April 2001, a sealed brown envelope with no return address landed in McIntosh’s hands. Inside was a confidential BDC document about the loan to the inn. What McIntosh found particularly interesting was a footnote showing that the inn owed $23,040 to JAC Consultants, Chrétien’s family holding company.

According to court files, McIntosh made copies of the document and squirrelled away the original. He then forwarded copies to the BDC and the Prime Minister’s Office, asking for comment. The PMO denounced it as a forgery; the bank claimed its original copy had no footnote. In a separate letter, the bank also accused thePost of possessing a confidential bank document. The RCMP then met with McIntosh and requested that he hand over the document. – the officers wanted to dust it for fingerprints and DNA in order to track down the confidential source who had mailed the document. McIntosh refused.

McIntosh gave his analysis of the situation at a symposium, “Democracy and Journalism in the 21st century,” held in March 2004 in Halifax. “When the RCMP came to interview me initially, the officer said, and I quote, ‘My job is, there is a problem. There are confidential bank documents circulating and my job is to put a stop to it.’ And I thought, ‘This gentleman is not here to conduct a police investigation. He is a political plumber. He is here to plug a leak at the bank.'”

On July 4, 2002, the RCMP went to court to ask for a search warrant and assistance order, which made it former Post editor Ken Whyte’s responsibility to find the documents and hand them over to the police. The assistance order was unique – it had never before been used against the media to force them to reveal information. Again McIntosh refused to hand over the document, and the Post took the case to court.

Speculation flew over why the RCMP wanted the document. “It was never just about $23,000. It was about so much more,” said McIntosh. “It was about gross abuse of power. It was about giving away taxpayers’ money to people who weren’t supposed to or didn’t deserve to get it. It was about trying to silence and crush those who dare question and expose what was clearly wrong. It was about engaging in deception and half-truths to cover your tracks, and it’s about using $4 million more of taxpayers’ money [on the investigation] to try to bury and destroy a man who tried to stop it.”

“I knew a lot more about the Grand-Mère Inn and politics and its finances than the RCMP did then and still do now, more than four years later,” said McIntosh.

The Globe and CBC intervened in the case,throwing their support behind the Post, McIntosh, and Whyte, who was also named in the warrants. CanWest Global Communications Corp.’s legal team and corporate wallet also rallied behind McIntosh, covering $500,000 in lawyers’ fees. After more than a year of legal wrangling, the media won. On January 21, 2004, Senior Justice Mary Lou Benotto of the Ontario Superior Court quashed the search warrant and ruled that in this case, maintaining source confidentiality takes precedence over the RCMP’s right to investigate. “Confidential sources are essential to the effective functioning of the media in a free and democratic society,” the Judge said.

McIntosh thinks it was an important case. “At some point there was an understanding that it would be useful, should we win, to have a landmark precedent in which a journalist could shield the identity of a source during a police investigation,” he said. “We had no idea and we couldn’t have dreamed of a better day for that judgment to be delivered as it did. I can only wish it came one day earlier.” The Ontario Attorney General’s office said it would challenge the ruling, but as of March 2005, it had not filed its appeal papers. McIntosh moved to California that month. “I’ve put my career aspirations on hold for a long time and I just couldn’t do it anymore,” he says. His absence should not affect the appeal – McIntosh has agreed that he won’t touch the documents until the case is resolved.

The Benotto ruling set a precedent, but it came a day too late for Juliet O’Neill. The very day of the ruling, January 21, 2004, is also the day O’Neill became a media martyr when the RCMP raided her home.

The article of O’Neill’s that inspired the raid was published in the Citizen on November 8, 2003: “Canada’s dossier on Maher Arar.” Arar’s case was a cause célèbre, turning on the question of how far Canada would kowtow to a security-obsessed United States. It began in September 2002, when Arar was in New York City catching a connecting flight from Tunisia, where he’d been vacationing, to Montreal. American officials suspected Arar had ties to the terrorist group al-Qaeda and shipped him to his native Syria, where Arar says he was jailed for 10 months and tortured.

No evidence of a solid connection between Arar and terrorists has yet been produced. O’Neill’s article, about Arar’s supposed al-Qaeda connections, was based on information contained in the leaked confidential document. The RCMP badly wanted to find the leak.

Having had her lingerie drawer rifled on the authority of the new Security of Information Act, O’Neill became a poster child for the threat to civil liberties posed by post-September 11 security measures. O’Neill hasn’t been charged. If convicted, she faces up to 14 years in jail for possessing official secret information. (That penalty, she points out, is four years longer than for people charged with participating in terrorist acts.)

The officers at her house, including those from the Truth Verification section, tried to get her to reveal her source. (The Truth Verification section specializes in lie-detector tests and forensic hypnosis. “Police call it the reverse – truth verification instead of lie detection,” says O’Neill. “It’s very Orwellian.”) She wouldn’t budge. Public scrutiny had already focused on the force and its role in Arar’s deportation to Syria by the U.S. The raid only made the RCMP look worse – like bullies. In the wake of the outcry, the federal government launched an inquiry into the role the RCMP played in the deportation.

“They should have known that a reporter is much more likely to protect her sources. And they obviously didn’t understand. They didn’t grasp it but they should have, that this was going to become a cause célèbre for the media. It was dumb,” says Reg Whitaker, distinguished research professor emeritus at York University and an adjunct professor of political science at the University of Victoria, who specializes in security issues. (Whitaker is an adviser to the Arar commission.)

Normally, search warrants and the affidavits used to obtain them become public information after the warrant is executed, in part so the person searched knows the reasons for the search. But after the O’Neill raid, the RCMP sealed the warrants. National security was one rationale. This circular logic – the rationale for secrecy is secret – helped inspire Reporters Without Borders to downgrade Canada from 10th to 18th place on its press freedom index. O’Neill says she has felt an effect personally. “I’ve got certain restraints in who I can talk to, what stories I can work on. I feel very silenced,” she says. “I’m not saying, ‘Oh my God, they’re going to come after me,’ but it’s a matter of loss of part of the confidence that you should have in the police in a democratic country.”

Ontario Superior Court Judge Lynn Ratushny agreed when she ruled last November that the sealing order on the search warrants used to raid O’Neill’s home and office was invalid and violated press freedoms. National security claims don’t always trump the principle of open courts, she noted. “Every time the public is excluded from some part of Canada’s court process, there exists the potential that the operation of Canada’s rule of law and its democracy is being secretly undermined,” she wrote. Among the information the judge ordered revealed was such top-secret information as the address of a clearly signed RCMP building in Ottawa and O’Neill’s listed home phone number. But the judge has ordered some information, such as code names and investigation techniques, be kept secret in part for national security reasons.

“The shame of it is that we had to spend eight months and more than $120,000 in legal bills for CanWest Global for a series of court hearings in which the government conducted a disclosure striptease, slowly revealing bits of information,” O’Neill told the Hill Times. (That cost has since soared to $250,000.) O’Neill learned that a municipal employee had indeed snatched her garbage on several occasions and passed it on to the Mounties, and that the woman spying on her in an Ottawa café probably wasn’t her imagination. O’Neill had been under surveillance by the RCMP.

However, the RCMP hasn’t seen O’Neill’s information, either. After the raid, O’Neill’s lawyers obtained an order to seal all of her possessions taken by the RCMP and store them in an Ottawa courthouse. If she wins the whole case, she will get everything back unopened.

Why the RCMP would even need to raid a journalist’s home comes down to one thing: information. O’Neill had information that the RCMP didn’t want her to have. The force wanted it, and O’Neill wouldn’t give it up. “The RCMP brass or someone at the top makes the decision that they’re going to launch an investigation and find out who in their own ranks has behaved this way and do something about it,” says Whitaker. “So what do they do? They decide they’re going to land on Juliet O’Neill and lean on her, scare the hell out of her, threaten her, and get her to divulge the identity of whoever she was talking to.”

And who is to going to oversee the RCMP, which has been known to follow expressly political orders from Ottawa and go a bit overboard pursuing them? Most famously: with Prime Minister Pierre Trudeau’s quell-Quebec-separatism carte blanche tucked into their tunics, the way the Mounties got their man in Quebec in the ’70s was by breaking countless laws and then lying about it. So Canada’s security and spy-agency functions were hived off to the newly created CSIS in 1984, with a separate civilian body to oversee it. The RCMP commissioner now reports to Parliament.

In 2001, the RCMP again got involved in national security. After September 11, 2001, Parliament rushed to pass the Security of Information Act, which handed the RCMP new tools. Some say it is now easier for the Mounties to use electronic surveillance, to arrest suspects before they commit a crime, and to detain suspected terrorists without charges. What the RCMP still doesn’t have are CSIS’s safeguards, resources, or expertise, says James Travers, a Toronto Star columnist who has followed CSIS and the RCMP for years. In those circumstances, Travers says, “it was just a matter of time before an Arar event happened.”

Any effort at oversight will come up against an embedded culture where secrecy is its own rationale. “They sometimes use national security as an expansive and often unjustifiable reason to keep as much as they can out of the public domain,” says Whitaker. “And it’s really at that point that others should take a very critical eye and say, ‘Now wait a minute, maybe this is just covering up embarrassing information that you don’t want out there, that doesn’t make you look good or reveals incompetence or unlawful behaviour.'”

If the three incidents – Cameron’s, McIntosh’s, and O’Neill’s – don’t foreshadow a worrisome trend, then perhaps all that connects them is the competitive and sometimes ultimately conflicting ways that media and police mine various netherworlds for information. “We journalists gather information in order to make it public. That’s our end goal,” says the Spectator‘s Dunphy. “Police gather information for a different end – to increase their knowledge and not to release it.”

Meanwhile, journalists have different motives for releasing information. Yet the RCMP didn’t understand why O’Neill and McIntosh would fight so hard when it pressed them to reveal sources. And Cameron, currently working on a book about Robert Pickton, the pig farmer accused of serial murder in Vancouver, says she’s through with writing about politics.

“I’d take a serial killer over a politician any day.”

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