A journalist recently reacted to the length of the independent investigation into the UPAC (Permanent Anti-Corruption Unit) concerning the leak of “highly confidential material, illegally transmitted to the media”. With his long attendance at the courthouse, he recalls an old trick: “It’s not yesterday that the police use controlled escape to make suspects react, put pressure on prosecutors, get revenge, etc. . Classic. » Is it legal to do so?
Lack of immunity
No one disputes the usefulness of investigative journalism in a free and democratic society. Freedom of the press and the legal protection of the confidentiality of journalistic sources cannot exclude the application of the Criminal Code.
On this minefield, the journalist-police collaboration risks losing its innocence. Indeed, the public use by a journalist of confidential police information may, depending on the circumstances, engage his criminal liability.
Generally, the liability of persons associated with criminal offenses takes two forms: primary culpability for the offender and secondary culpability for the participant.
Concretely, whoever — knowingly — participates in the commission of an offence, ie. provides assistance, advice, encouragement or contribution, incurs its own criminal responsibility. The intention of a third party to assist in the commission of an offense presupposes knowledge of the offense committed by the principal author.
No need for a journalist to know the modus operandi of a police officer attached to a leak of information during the course of an investigation. The legal standard of willful ignorance imputes knowledge to the person who doubts, but deliberately chooses not to inquire further.
obstruct justice
According to the Chamberland Commission of Inquiry (on the protection of the confidentiality of journalistic sources), the oath of discretion taken by a police officer is a fundamental act in the performance of his work.
The journalist who knowingly disseminates confidential information resulting from a police investigation participates in or contributes to the offense committed by an offending police officer.
The Chamberland report recalls that the “fact that a police officer has committed indiscretion for the benefit of a journalist does not give him immunity with regard to a possible criminal prosecution or disciplinary charge, or both”.
A prohibited indiscretion relates to information gathered within the framework of a police investigation. For example, anyone commits a criminal offense who transmits to a journalist documents full of information resulting from clandestine listening.
Under penalty of sanction, the law prohibits anyone from using or disclosing voluntarily — totally or partially — a private communication intercepted with judicial authorization. This prohibition targets the substance, meaning or object of said communication.
The Supreme Court has broadly defined the offense of obstruction of justice. The description of the “course of justice” is not limited to existing or proposed legal proceedings, but also includes investigations.
Journalists interested in justice and news items forge links with police officers. In the wake of daily news, discreet relationships are forged between investigators and investigative journalists or court reporters.
Everyone finds their advantage in this: the police officer uses the journalist, and the latter benefits from confidential — even secret — information coming from police sources. This dangerous liaison puts the police-journalist tandem at risk.
Toxic Bond
Let’s hope that the interminable process carried out by the Office of Independent Investigations sheds light on the perils underlying a toxic affair.
A police officer who flouts his duty of discretion exposes himself to criminal proceedings and disciplinary measures. The same goes for any journalist who knowingly becomes an accomplice or conspirator in a leak of confidential information during a police investigation.