That pesky issue: but was it forged?

A key question was lost in the debate over anonymous sources

The Canadian Press

All journalists talk about getting a “brown envelope” in the mail that contains some exciting, hitherto-unpublished revelation. We call them “brown envelopes” even when they’re not brown, or when there’s no envelope at all. But the one that Andrew McIntosh received at the National Post’s Ottawa bureau on April 5, 2001, was the real deal: an honest-to-God brown envelope, bearing no return address.

That envelope and its contents, which touched off eight years of appellate litigation and debate about the civil rights of journalists, are still out there somewhere. It is almost certain that only McIntosh knows their whereabouts, though he will not comment. Although he declined to surrender them to the police, he also refused to destroy them when asked to do so by the sender. He has always maintained that they are in a “secure location” not on the premises of the Post.

On May 7, the Supreme Court upheld a search warrant obtained against McIntosh and the Post by the RCMP in 2002. The explosive document sought by the Mounties was a purported file from the records of the Business Development Bank of Canada (BDBC), a federal Crown corporation that lends to small businesses. In 1997, after personal appeals from prime minister Jean Chrétien, the BDBC had granted a $615,000 mortgage to the Auberge Grand-Mère, an inn on the outskirts of Shawinigan, Que. Chrétien had previously been part-owner of the hotel, officially selling his share in 1993. A footnote in the documents sent to McIntosh, however, indicated that new Auberge owner Yvon Duhaime still owed Chrétien’s company, J. & A.C. Consultants, $23,040 at the time Chrétien was pushing for the inn’s loan application to be approved.

The question, then and now, is whether the documents in the brown envelope are a genuine banking record. Both the BDBC and Chrétien say that the documents are forgeries, and managed to convince the RCMP. In a cross-examination of RCMP investigator Cpl. Roland Gallant, belatedly arranged at the request of lawyers for the Post after the search warrant was granted, the evidence for a charge of forgery took several blows. Two pages were completely missing from the BDBC’s electronic version of the same documents, including the page that, in the version given to McIntosh, contained the footnote about J. & A.C. Consultants. A similar page, whereupon J. & A.C. Consultants might have been expected to appear alphabetically, was also mysteriously missing from a BDBC list of the Auberge’s suppliers.

Every judicial review of the warrant has noted concerns about the “integrity” of the BDBC’s files, but the appellate courts consider that the paper file supplied by BDBC, along with the allegation of forgery by Chrétien and the bank, were enough to create probable cause for an RCMP investigation. That by itself, however, would not always be enough to permit them to compel a journalist to surrender information about a confidential source.

The Supreme Court’s decision formally adopts into Canadian law the American “Wigmore criteria” for deciding when police can get tough with a reporter. To obtain protection under Wigmore, the secrecy link between the journalist and his source must have been imperative to the disclosure of the information in question, explicitly agreed upon, and likely to serve the public good. But it’s the fourth element of the test, as the court says, that “does most of the work”: in any specific case, the public’s interest in the criminal investigation must be weighed against its interest in the existence of a free press that sometimes uses confidential sources.

The Supreme Court majority in R. v. National Post ruled that since forgery is a serious crime, and there exists some reason to believe it took place, the warrant satisfies the Wigmore test. In a solo dissent, Justice Rosalie Abella accepted the Wigmore criteria but disagreed with the majority’s analysis, arguing that “Mr. McIntosh had a sound basis for his confidence in [his informant’s] reliability.” It was, in fact, the same informant who indirectly told McIntosh about Chrétien’s aggressive telephone lobbying of the BDBC on behalf of the Auberge—information that proved accurate, and that might not otherwise have seen the light of day.

Nearly every party to this long politico-legal struggle has moved on. McIntosh lives in Seattle and is investigations desk editor for Quebecor’s QMI Agency. Chrétien is a private citizen, and even the controversial inn itself has had to be partially rebuilt after two 2004 fires. But the forgery investigation is technically still “ongoing,” and at press time the commercial crimes branch of the RCMP’s C Division was conferring over whether to execute the warrant.

Current National Post editor Doug Kelly has been briefed by his newspaper’s lawyers, but won’t say what plan he intends to follow if the police show up. “We have been in touch with Andrew McIntosh,” he adds—but he says he did not ask about the location of that damned envelope.

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