On October 17, 2006, I was served with a subpoena that demanded I turn over to Crown prosecutors all of the research I had used to write my book, No Claim to Mercy. No Claim to Mercy was a detailed investigation and retelling of the Robert Baltovich case, a project that had taken three years to research and more than a year to write.
When the book was first released in 1998, Baltovich was still in prison, where he had been for the better part of a decade after being convicted in 1992 for the murder of his girlfriend, Elizabeth Bain. It was a controversial decision. Not only was the case against Baltovich completely circumstantial - Bain's body still hasn't been found - the alternate suspect presented by the defence was the then-unidentified Scarborough rapist.
The subpoena didn't come as a complete surprise. Baltovich's conviction had been overturned in 2004 by the Ontario Court of Appeal, which had opted for a new trial. The Crown was gearing up for that second trial in 2006, and the two Toronto detectives who'd been assigned to the case had dropped by my office unannounced that summer seeking an interview. I wasn't in that day, but it became clear through subsequent telephone conversations what they were after.
I had conducted many hours' worth of interviews with Baltovich while he was incarcerated and had access to his prison diary and other documents. The detectives, faced with an increasingly tenuous case, were obviously interested in combing through all of that material on the lookout for any inconsistencies that could bolster the prosecution.
I turned away the detectives for the same reasons that I decided to fight the forthcoming subpoena. It is a chilling prospect for a journalist to see his research seized by the state - or a defence attorney, for that matter - for the purpose of determining someone's fate in a court of law. Journalists should not be private investigators for Crown attorneys in a democratic society. There was nothing stopping the detectives from attempting to obtain their own interviews with Baltovich or any of the other 50 or so people I'd interviewed for the book.
My standoff with the Crown became front-page news. Five journalism and writing organizations - the Canadian Association of Journalists, Canadian Journalists for Free Expression, the Writers' Union of Canada, PEN Canada, and the Professional Writers Association of Canada - banded together and obtained intervenor status for the proceedings.
The downside was that, having been a freelance writer when I wrote No Claim to Mercy, I was on the hook for the pricey legal bills that were going to be the grim reality of my principled stand. With the help of many kind volunteers, however, I organized a fundraiser called Write Aid in May of 2007, on the cusp of the hearing that would determine the outcome of the subpoena. There was a huge turnout from Toronto's journalism and literary communities. Much to my (very pleasant) surprise, we raised about $15,000.
In the end, all of the time and money so many people devoted to both the fundraiser and the legal fight were very much worthwhile. On June 28, 2007, Justice David Watt, then of the Ontario Superior Court of Justice, delivered a very important decision for all journalists in Canada, determining that the Crown's subpoena for my research material amounted "to a fishing expedition under a colourable license issued without authority." In this case, fishing season was closed, and Robert Baltovich was ultimately acquitted on April 22, 2008.
This subpoena is far from being an isolated incident. Just two days after receiving my subpoena, Juliet O'Neill, a reporter with the Ottawa Citizen, won a similar court decision and saw documents related to her reporting of the Maher Arar case that had been seized from her home and office three years earlier by the RCMP finally returned. One year ago, a freelance journalist named Lon Appleby was subpoenaed to turn over his notes for a story he'd written for Toronto Life magazine in 1998.
These threats to journalistic independence and integrity are just one important facet of intellectual freedom that Canadians should remain on guard against. The 25th anniversary of Freedom to Read Week (Feb. 22-28) kicks off tomorrow with dozens of events, including public debates and displays of material that have been banned or challenged in this country.
This includes a panel discussion at 6:30 p.m. on Wed., Feb. 25 at Toronto's Gladstone Hotel. I will be joined by Janine Fuller of Little Sisters, the Vancouver gay and lesbian bookstore that has fought a 24-year censorship battle with Canada Customs, and children's author Ken Setterington, who is also the Children and Youth Advocate for the Toronto Public Library. The conversation will be moderated by novelist and Globe and Mail columnist Russell Smith.
Freedom to Read Week is organized by the Book and Periodical Council, which established the Freedom of Expression Committee in 1978 to oppose the attempted censorship of books by Margaret Laurence, John Steinbeck and J.D. Salinger in public schools. The Toronto public school board is currently reviewing Margaret Atwood's The Handmaid's Tale after one parent complained that the 1985 novel depicts brutality towards women, as well as "sexual scenes" and inappropriate language.
Derek Finkle was the recipient of the 2008 Freedom to Read Award, presented by The Writers' Union of Canada.