Bob Barnes stood near Runway 06-R, at what was then known as Toronto International Airport, and watched the DC-3 descend. It was June 22, 1983-the second day of summer-and, though not yet nine in the morning, already hot. Barnes and his maintenance crew had been grading a road near the runway when they stopped to watch the plane approach.
In his 12 years at the airport, Barnes had seen thousands of planes land. As the DC-3 was coming in, he realized something was wrong: “It was making a peculiar noise and going too slow.” When the plane passed 250 feet above his head, its engines suddenly thrust and it climbed another 350 feet. For a moment the DC- 3 hung motionless. Then it plummeted, crashed on its belly and burst into flames.
Even before the plane hit the ground, an air traffic controller, seeing the erratic approach, had pressed the alert button in the tower. Flight information was quickly relayed to emergency crews: DC-3 owned by Sky craft Air Transport in Oshawa… two on board.. .no hazardous cargo… carrying parts for Ford Motor Company. ..inbound from Cleveland. Airport firefighters doused the flames within minutes, but the ambulances that arrived shortly after were not needed. Half an hour later, a priest performed last rites over the bodies of the pilot and copilot of the Skycraft DC-3.
At 9:50 a.m., Canadian Press reporter Eaton Howitt and Richard Crabb from Broadcast News were in a cab on Highway 427, heading north toward the airport. They had been assigned 20 minutes earlier to cover the plane crash. Howitt had to file a story by 10 if it was to be carried in that day’s southern Ontario papers.
Howitt is an inveterate newsman with 38 years in the business. He knew they would be late if they drove through heavy traffic to the far side of the airport to receive the official public relations welcome. Aware that the crash had occurred on airport property not far from Highway 401, the two reporters decided on a shortcut. They told the cabbie to turn on to the 401, pull off to the side of the road and wait. As Howitt approached the airport fence-a seven-foot high barrier topped with three strands of barbed wire-he noticed a gap beneath the fence through which he could just squeeze. But he knew that the fence, dotted with No Trespassing signs, was also a legal obstacle. To enter airport property there was to break the law. Howitt, a firm believer in the credo that the story is all-important, slipped under the fence. “A reporter has a job to do and he does it. You don’t draw the line,” he says. Crabb followed him.
Still half a mile from the crash site, the two reporters began to run through the tall grass. Howitt slowed when he saw a figure walking toward them from the direction of the crash. The figure was an RCMP officer. “He came up and asked us who we were and if we had any identification. Then he told us we were under arrest for trespassing.”
Despite having committed similar transgressions “many times” in his career, Howitt had never before been arrested. “As long as you stay out of the way, there usually is no problem. It never would have happened if we had been alone.”
But Howitt and Crabb were not alone. Eight other journalists were also being rounded up by the RCMP. They had all chosen a shortcut, some because they had heard that airport public relations officials had inadvertently escorted reporters to the wrong end of the airport after a previous crash. Several had even climbed the fence. At 10 a.m., Howitt’s deadline, he and his nine colleagues were being loaded into a van and taken to the RCMP’s airport headquarters. Outside the fence, a cabbie waited with his meter running.
On September 24, 1984, seven reporters, photographers and cameramen-Jonathon Craven, Al Clouston, Stan Coulton and Danny Cook from the CBC, Jim Russell from The Toronto Star, Richard Crabb from Broadcast News and Eaton Howitt from the Canadian Press-were convicted of trespassing in Peel Provincial Court and fined $200 each. Three others-Kenneth Kerr of The Toronto Sun and John McGhie and Al Hogan of The Brampton Daily Times-were acquitted when they could not be properly identified in court. In his decision, Judge Kenneth Langdon noted that “each of these gentlemen has an obligation to gather and disseminate news. …The media has a recognizable interest in getting to it [the news] quicklyThese people are not criminals. “
The story of the plane crash was front-page news in Toronto, reported, ironically, by members of the press who were escorted to the site just after the others had been taken away by the RCMP. The coverage given the subsequent court proceedings was less prominent. Yet the case of the “Skycraft Seven” raised some interesting questions about the media’s place within the law. Are there instances in which journalistic trespass can be justified? Do members of the press, as self-proclaimed champions and informers of the public, enjoy any special treatment if they are charged with trespass or similar offences? Should they?
When asked about breaking laws to get a story, many members of the media exhibit a paranoia worthy of a Mafia informer. They become suspicious, lower their voices and, if in a public place, glance furtively around them. Reporters prefer to remain silent, fearing both legal entanglements and reprimands from their editors, who say they do not encourage their staff to break the law.
Nevertheless, most editors and newsgathering agencies are tacitly supportive of reporters who defy laws in pursuit of a story. The case of the airport trespass was no exception. Lawyers from the prominent Toronto firms Blake, Cassels & Graydon, and McCarthy & McCarthy, as well as John 1. Laskin, son of the late Chief Justice Bora Laskin, were retained by The Toronto Star, the Canadian Press and the CBC to defend the staff members charged.
Moral support was equally forthcoming. When Eaton Howitt returned to CP after his arrest, editor Michael Brown backed him up “100 percent,” excusing Howitt’s actions by saying he was “simply trying to get the story.” For Brown, the problem was not his reporter but an overzealous RCMP officer. Similarly, Toronto Star deputy managing editor John Miller thinks photographer Jim Russell was justified in taking extraordinary measures because the plane crash was a “legitimate case of public interest.”
Globe and Mail editor emeritus Richard Doyle believes reporters should sometimes “interpret” laws that might restrict access to newsworthy events. “There is a role that the press has played at its peril in which it makes the police force more sensitive to the public’s right to know. In certain situations, a reporter must consider whether the importance of the information to be gathered is greater than the risk involved in gathering it.”
Doyle considers the scales were tipped on the side of the information when Globe reporter Robert Stephens visited the Carswell Printing Company’s Don Mills plant on the evening of May 4, 1983, and removed some bags of garbage. The bags contained proofs of the soon-to-be-released Ontario budget, portions of which the Globe published. The legality of Stephens’s actions has never been determined. Though Carswell, contractually responsible for shredding such proofs, did sue the Globe for $18 million in damages, the two sides settled out of court in May, 1984, for $10,010. Whether technically legal or not, Doyle contends the reporter’s actions were justified. “I felt in that instance the question of whether budget secrecy was being maintained was an important one. Once you set up a system for disposal of budget material, it must function effectively.”
While many journalists would agree that, on occasion, the end justifies the means, some would go further, arguing the end can necessitate the means. In 1983, media critic Barrie Zwicker told his CBC radio audience that reporters not only have the right but the duty to occasionally break such laws as the Trespass to Property Act. According to Zwicker, this duty exists when a perceived good exceeds a known wrong, especially in cases where “government, industry, organized crime or any organization or person is plotting against the public good.”
Though journalists sometimes trespass when they believe the public good requires it, few are charged, according to Stuart Robertson, a Toronto lawyer and author of Courts and the Media. Robertson attributes this immunity to special treatment often accorded members of the press. Those with identification are regularly allowed past official barricades. Others are permitted, even invited, to visit restricted areas. But while such privileges are understood to exist by reporters, they are not officially recognized, as the Skycraft Seven discovered. Journalists who climbed a fence to cover a protest at the Darlington Generating Station in 1980 were similarly enlightened. Police arrested demonstrators and reporters alike as they passed through the main gate after the protest.
Some media analysts in the United States have expressed concern that prosecution for trespass could become an effective weapon in denying the media access to events of public interest. There have been more cases of reporters being charged for trespass in the U.S. than in Canada because, as Robertson explains, “the right to enjoyment of property is more firmly entrenched there.” David Rubin, chairman of the Department of Journalism and Mass Communications at New York University, predicts it won’t be long before a reporter charged with trespass employs a defence of freedom of the press. Such a case would test how far the First Amendment goes in protecting the newsgathering rights of the media.
Canada’s sickly cousin of the First Amendment is the brief reference to the freedom of the press in the Canadian Charter of Rights and Freedoms. Media lawyers can cite few cases in Canadian judicial history in which considerations for a free press affected the outcome of a trial. Pacific Press Limited v. the Queen et al., heard by British Columbia Supreme Court’s Mr. Chief Justice Nemetz in 1977, is a rare example. In ruling that a warrant could not be issued for the search of newspaper offices until “reasonable steps” ha,d been taken to obtain the desired information elsewhere, Nemetz acknowledged that the newspaper deserved protection not given other businesses or the general public. In his decision, Nemetz referred to a judgment by Lord Denning of the English Court of Appeal: “Next there is the special position of the journalist or reporter who gathers news of public concern. The courts respect his work and will not hamper it more than is necessary.”
Respect for the work of the reporter has been at best subdued in cases of journalistic trespass. After the trial of Eaton Howitt and the six other reporters, CBC lawyer G. Michael Hughes, who did not act on the case, wondered if the court had not been harder on the members of the press than it might have been on others. “They were fined $.200 each. The normal trespass fine is $50 to $100 for a first offence.” Stuart Robertson believes the judge may have been giving the media a message.
Does the threat of prosecution for trespass hamper a reporter’s work and limit the freedom of the press? For those who believe the freedom to publish becomes meaningless without the freedom to gather the news, the answer is yes. Thus far, no journalist in Canada charged with trespassing has used a defence of freedom of the press. In defending Howitt and his co-accused, lawyers argued primarily that the provincial Trespass to Property Act could not be applied to the airport, an area of federal jurisdiction. Torstar lawyer Blair Mackenzie says the case was not a good one for invoking the Charter of Rights because the reporters were confronted by No Trespassing signs.
But Bert Bruser, a Toronto lawyer who specializes in media law, predicts it is only a matter of time before a case of journalistic trespass is defended on constitutional grounds. Such a case could be critical in determining the media’s limits in pursuit of a story and in resolving the conflict between the public’s right to know and the rights of privacy and security. With the present judicial attitude toward the press, it is unlikely a decision would favor the media unless the information gathered by the journalist proved to be of exceptional public interest. If it is anything less, a precedent might be set that would make subsequent defences of journalistic trespass even more difficult. As Bruser says, “Bad cases make bad laws.” The result could be that freedom of the press would be even further restricted.