Derek Finkle meets the press earlier this year
This afternoon, Toronto writer Derek Finkle goes before a judge to stand at the top of a slippery slope. All of us in the journalism business stand there with him, shivering in the chill wind of state censorship.
When Elizabeth Bain disappeared on June 19, 1990, it wasn’t long before her boyfriend, Robert Baltovich, became the Toronto homicide squad’s prime suspect. Although there was evidence pointing to the then-unknown Scarborough rapist (Paul Bernardo), the police were relentless in their pursuit of Baltovich. They secretly taped hundreds of Baltovich’s conversations, but, in them, Baltovich confessed to nothing but his innocence. Elizabeth’s body was never found but despite only circumstantial evidence, he was convicted of second-degree murder, and sentenced to life in jail.
That was a busy summer for sex crimes and under tremendous pressure to make an arrest for something, anything, Robert Baltovich was the designated stray kitten in the path of an 18-wheeler Rush To Judgement.
On March 31, 2000, eight years to the day after his conviction, and eighteen months following the publication of Derek Finkle’s book, No Claim To Mercy, Baltovich, with an enormous number of national and local media in attendance, was released on bail pending his appeal hearing. The general feeling both in the court and without was that factual elements brought to light in the book were central to the release and subsequent retrial of Robert Baltovich.
In short Finkle did a better job of sleuthing than the police forces involved and some have never been able to let it go.
Over the next two days, a judge will decide if Derek Finkle is to hand over 10 years worth of original source materials gathered for No Claim To Mercy, some given with the understanding of strict confidentiality.He's being asked to do this based only on the police department's faint hope they'll find something in the material to prove Robert Baltovich guilty.
They're talking smoking gun and it's coming across all smoke screen .
These are the same trained investigators holding hundreds of hours of their own taped conversations with Baltovich, so it's easy to imagine a scenario down the squad room with detectives sitting around scratching their heads going; " Geez, this Finkle guy. Where does he come up with these questions?"
" Basically, I feel they're going on a fishing trip", says Finkle, " At no point have they said expressly what items they're looking for and it's my understanding that's all I'm legally required to do.
"This all started up last year. Detectives started coming around, expressing keen interest in where some of my sources came from and at that point talked about looking at the source material.
" I offered to answer any written questions they cared to submit but that didn't suit them.
Both the Canadian Association of Journalists and Canadian Journalists for Free Expression are hoping to weigh in against Crown attempts to access Derek Finkle's material.
"It can be quite a chilling and terrifying experience to have the power of the state come down upon you as a result of work that you've done as a professional journalist," said lawyer John Norris, who represents the two organizations.
"It can make you second-guess your work, make you doubt whether you're doing the right thing in engaging in that work, and it can make publishers very reluctant to support this type of work."
Finkle's lawyer Iian MacKinnon said important free-speech principles are being put at risk if reporters cannot keep their raw source materials private.
"You're down a slippery slope where journalists then are simply not just doing stories, but they're gathering evidence and essentially becoming investigative arms of the state or an arm of the police," MacKinnon said.
Most ominously, there's a growing list of precedents to this kind of jackbooted action, despite the 2004 court ruling deeming the police raids on the offices of the Ottawa Citizen and home of reporter Juliet O'Neill in violation of the constitutional guarantees of a free press, freedom of expression and the public right to an open court system.
During the raid on ONeill's home the RCMP seized notebooks, files, hard drives and other materials and this kind of precedent is worrying to Finkle.
" They've done it before and will do it again because in spite of constitutional guarantees, there remain a number of gray areas where freedom of expression shades into the way the criminal justice system operates.
"It's a gray area where there's no hardcore protection if someone says something on the record. From what I've seen so far I've no faith in how this material I'm supposed to turn over will be used.
" I'm concerned as fairly innocuous evidence can often be stressed, shaped and misinterpreted by Crown prosecutors and police officers,often to fit preconceived positions"
Understandably, considering the original conviction was secured not only without a shred of physical evidence pointing to Mr. Baltovich's guilt but among strong indications police actively suppressed evidence supporting his innocence, including damming eyewitness testimony of Ms. Bain being a terrified passenger in her own car as it was driven east on Highway 401. At that moment, eyewitnesses testified Baltovich was working out at his regular gym. Later it would come out that according to the Crown's theory, by then Elizabeth Bain was already dead
Today, Mr McKinnon will be seeking to quash the subpoena issued by the Ontario Superior Court to Derek Finkle. He's trying to stem an attack on the very core of free expression, something affecting us all. If the authorities can get away with this in the mainstream arena, it's only a matter of time before censorious and intimidating attention is turned to all the Digital Journals in the online world.
This is everybody's fight. Get into it before you need a weatherman to know which way the wind blows.
