Ontario Press Council Decision – October 16, 2013 In the Matter Regarding: Complaint from Ms.

Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing

Matter Regarding: Complaint from Ms. Connie Harrison regarding an article published by the Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing ______________________________________________________________

Background: The Council received a number of complaints from individuals across the country about the above-noted story. While it focused on one representative complaint, that of Ms. Harrison, it also took steps to ensure that all of the concerns raised by the complainants were covered in the hearing. This was done by setting out the issues in advance for the complainant and the newspaper, and by posing specific questions in the hearing. Council invited Mr. Doug Ford, the main subject of the article, to participate in the hearing, which is available at no cost to complainants. This was to ensure he was aware of the opportunity to be heard. As well, Council recognized that none of the complainants was in a position to contest or comment upon the accuracy of the newspaper’s account of its pre-publication attempts to alert Mr. Ford and other family members and to seek their response to the allegations about to be published, an important issue for the Council. Mr. Ford did not file a complaint and did not attend the hearing. Regarding Ms. Harrison’s complaint, Council determined it was important to hold a hearing , ensuring an open, transparent process, for two reasons: First, the complaints raised important, substantive issues about fairness and balance. The Council only recently set 1 out its view of what constitutes responsible investigative journalism in its decision in Marin v the Toronto Star, [2011]. Ms. Donley’s complaint provided an opportunity to Council to broaden its analysis and to apply standards it has developed in past decisions. In addition, the Supreme Court of Canada, in Grant v Torstar Corp [2009] SCC 61, set out important new guidelines to be considered when determining whether allegations contained in a 2 newspaper article can be justified as responsible communication on a matter of public interest . In the opinion of the Council, this made it important that there be a public discussion of the issues in this case. Second, and equally important, was that the language of the complaints and the language of the newspaper’s response raised the possibility of a fundamental disconnect between the two parties on how to assess the content of the Globe’s article. The complainants, including Ms. Harrison, saw the article as unfair, based as it was on the exclusive use of anonymous sources. For the Globe, the article demonstrated the importance of intensive investigative reporting on a matter of public interest – exposing the inappropriate past behaviour of a public figure

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In the Marin v Toronto Star, the OPC attempted to define investigative journalism as involving the attempt to determine `…what the journalist perceives to be the most credible conclusion to be drawn from an extensive exploration of alleged wrongdoing in business, government or elsewhere….., by definition, an “investigation” is being conducted, and while no explicit finding may be made, the journalist is justified in assessing the information received and making his or her judgment on its credibility and weight when preparing the series of stories.` 2 In Grant v Torstar Chief Justice McLachlin set out the following (although not, according to the court, necessarily exhaustive) questions to be asked in considering whether the newspaper acted responsibly: (1) the seriousness of the allegation; (2) the public importance of the matter; (3) the urgency of the matter;(4) the status and reliability of the source; (5) whether the plaintiff's side of the story was sought and accurately recorded; (6) whether the inclusion of the defamatory statement was justifiable; (7) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (reportage).

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Ontario Press Council Decision – October 16, 2013 In the Matter Regarding: Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing

and his family members. It was important that this difference in perception be acknowledged and discussed in an open hearing. The Council’s review of this and other complaints it has received has led it to conclude that the robust and extensive journalistic standards that good reporting should meet are not well known or understood by the public. Nor is there sufficient awareness of internal codes of conduct, such as the one the Globe uses and has posted on its web site (entitled: The Globe and Mail, Editorial Code of Conduct.) This lack of knowledge is contributing to the disconnect between the parties and should be of some concern to the newspaper. It is certainly of concern to the Press Council whose very existence grew out of a desire to establish and promote good journalistic practices and to hold its members responsible for meeting them.

The Hearing and the Issue to be Decided: The Ontario Press Council held a hearing on September 9, 2013 attended by Ms. Harrison and representatives from the Globe and Mail: John Stackhouse, Editor-in-Chief, Sinclair Stewart, Editor of News and Sports, and Greg 3 McArthur, investigative reporter. In considering Ms. Harrison’s complaint, the Ontario Press Council determined that the broad issue to be addressed in the hearing was whether the newspaper had engaged in irresponsible, unethical investigative reporting. To provide both parties with a better sense of what the Council felt needed to be considered in deciding this broad question, the Council identified three more specific issues: 1. 2. 3. Did the article deal with a matter that is in the public interest? Were adequate efforts made to verify the allegations before publishing them? Was Mr. Doug Ford given adequate notice of the allegations and a reasonable opportunity to respond, and did the newspaper include that response in its reporting?

Analysis: What is it that makes a piece of investigative reporting irresponsible or unethical? While the Supreme Court in Grant v. Torstar identified a number of questions to be considered when deciding whether a newspaper has acted responsibly, in Council's view the three that are set out above are the important ones in this particular case. A basic requirement is to balance the constitutionally protected right of freedom of expression against the need to protect the individual's reputation and privacy. If that is fairly done, deciding to publish a communication that includes allegations against someone is defensible. Even if the newspaper making the allegations is unable to prove that they are “true” it may legally publish them if all three of these requirements ar e met. The capacity for debate on matters of public interest is essential in a democratic society. One result is that we permit communication of facts a reasonable person would accept as reliable, even when absolute proof is lacking.

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A copy of Ms. Harrison’s complaint and the Globe & Mail’s can be found on the OPC website

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Ontario Press Council Decision – October 16, 2013 In the Matter Regarding: Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing

The Council believes that these questions are also important ones to ask when deciding if a newspaper has been both responsible and ethical when it publishes the results of its investigative reporting. They represent the law; more than that, they reflect the principle that the person being written about must be treated fairly. The Council, has expanded on this fairness requirement and makes reference to “commonly accepted ethical standards” when assessing whether a newspaper publication is acceptable. For example, it has rule d that an article may not be “unnecessarily hurtful” to the person against whom the allegations are made. Answering the questions set out by the Supreme Court may be determinative. However, it has also been emphasized in past Council decisions that the legal standard is not the only one that is applicable. The member newspapers know this is the case and many of them have developed codes of conduct to follow – the Globe is one of them. Turning now to the three specific questions identified by the Council: 1. Did the article deal with a matter that is in the public interest?

The complainants regarded the article as defamatory to Doug Ford and his family, injurious to the reputation of the city, and lacking credibility because the sources used were all anonymous. Ms. Harrison was particularly concerned about the use of anonymous sources and she questioned the motives of the editors in publishing the story. The Globe article is based on an extensive period of investigation over several months by its reporters that began as an exploration of the background of what it submitted was one of Toronto’s most powerful political families. Ultimately it became what the article describes as “a portrait of a family once deeply immersed in the illegal drug scene”. The Globe extended the investigation into other members of the family who are not in public life, submitting that Mayor Rob Ford and Councillor Doug Ford made their family a “public entity” through repeated references to the many contributions the family has made to the public health and welfare of the City of Toronto and, in particular, the Etobicoke area, where they live. Much of the article focuses on Mr. Doug Ford’s alleged role as a dealer of hashish in his community over a period of years. It relies heavily on a series of interviews with individuals who purport to have known and associated with Mr. Ford when he was a teenager and into his early twenties. All were persons who stated that they were involved in drugs as either dealers or buyers and they had direct knowledge of Doug Ford’s drug related activities. While the article provides some information about each of the sources, their names are not disclosed. The article also deals with the early years of Doug Ford’s younger brother, now Mayor Rob Ford. There is no suggestion that he was involved in the selling of drugs and much of the discussion focuses on his sports and other community activities, with some reference to a present associate and an arrest in Florida involving possession of a small amount of marijuana that was previously reported in the media. In addition, the Globe story deals with the past behaviour of Mr. Ford’s brother Randy and sister Kathy, relying on the same or similar anonymous sources and upon court and public records. In the case of Randy Ford, the allegation is that he was engaged in the same drug dealing activities as his brother. The references to Kathy are focused on her relationships with persons whose backgrounds included extensive drug use or drug related criminal convictions. The story also includes reference to serious domestic related incidents of violence and to alleged marginal connections to a white supremacist organization led by an individual with a drug related background. Many of the incidents involving both her and Randy have been previously reported in the media. Rob Ford has also answered questions about his siblings’ past troubles.

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Ontario Press Council Decision – October 16, 2013 In the Matter Regarding: Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing

The Globe defended its story about Doug Ford’s alleged drug dealing for a number of reasons: he has a significant and influential role and a voice in Toronto municipal affairs, one that is greater because he is often a spokesperson for his brother the Mayor; Mr. Stackhouse pointed out that this was not a story about recreational drug use by Doug Ford as a teenager but dealt with alleged illegal drug trafficking over a number of years; a former associate of Mr. Ford, who allegedly participated in the drug activities at the time, was hired as an advisor in Mayor Ford’s office. The Council agrees that the nature of the alleged past behaviour and its relevance in understanding and assessing Mr. Ford’s present role in helping to direct the affairs of the City of Toronto on issues that affect public safety and the role of the police, make the allegations against him a matter of public interest. His public position on drugs and drug-related crimes reinforces the relevance of this information. However, his siblings Randy and Kathy do not hold public office, and have had only modest involvement in the political activities of the family. Both the law and the standards of fairness that apply to journalism recognize that private individuals do not give up their privacy simply by being members of a family that includes one or more politically powerful members. For example, the Society of Professional Journalists’ Ethics Code, states that “….private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only over-riding public need can justify intrusion into anyone’s 4 privacy.” The Supreme Court has emphasized the importance of personal privacy; the Council has also spoken of the importance of the press not being “unnecessarily hurtful” in its treatment of individuals and in its choice of what should be reported about them. The Globe’s own code of ethics emphasizes the importance of dignity and respect in dealing with persons who are emotionally vulnerable and unaccustomed to talking with reporters. The Globe and Mail noted that Randy has participated in his brothers’ political events. For the Council this would not be enough to justify discussion about the personal behaviour and activities of private citizens who happen to be related to a Mayor and a City Councillor. All public figures, particularly politicians, refer to their families, and some family members actively assist with their elections; this alone does not make stories about them a matter of public interest. The Council is concerned about the copious amount of detail on the two Ford siblings and believes the Globe came close to crossing the line into what are the problematic, but private affairs of family members. However, the Council believes that the overall theme of the article – which is that a senior public official who has publicly vowed to fight drug-related crime was once himself associated with the world he now finds abhorrent and members of his family have also been associated with drugs, drug dealing and persons with drug related backgrounds - justifies reference to the actions of these other family members.

2.

Were adequate efforts made to verify the allegations before publishing them?

The complainant’s primary concern was that the article put a ‘huge cloud over the city, the council and Doug Ford’, solely on the strength of anonymous sources.

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http://www.spj.org/ethicscode.asp

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Ontario Press Council Decision – October 16, 2013 In the Matter Regarding: Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing

Despite a lengthy investigation that lasted 18 months, the newspaper was not able to identify one source willing to go on the record. The article further notes that it was unable to find anything on the public record showing Doug Ford has ever been charged with possession of or trafficking in illegal drugs; as well, they did not find any public official who corroborated the information received through their anonymous sources. The right to use anonymous sources is set out by the Supreme Court in Globe v Groupe Polygone [2010] SCR 41 and National Post v The Queen [2010] SCR 16. The reasons why it can be in the public interest to allow journalists to use anonymous sources is best described by Justice Binnie: “The public also has an interest in being informed about matters of public importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. There is a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private institutions”. While the Court sanctions the use of anonymous sources, this is not an absolute right. Both the Supreme Court and the Council have determined in recent decisions that while it may be responsible to rely on confidential sources, the fact that they have been relied upon should be taken into account in determining the credibility and weight of the allegations that are contained in a publication. In addition the reason why the newspaper is unwilling or unable to name a source is a relevant consideration. Ultimately, the question is still whether the investigative reporting as a whole and the evidence gathered by the reporters justifies reporting on the conclusions they have reached. The Globe and Mail provided an extensive summary of the efforts it made to establish the credibility of its anonymous sources and to try to persuade one or more of the sources to allow themselves to be identified. On the issue of credibility, it noted the following:         the investigation was not rushed – it occurred over a period of 18 months; A significant number of anonymous sources were interviewed - the article states that the reporters “sought out and interviewed dozens of people who knew (the Fords) in their formative year s”; the reporters conducted multiple interviews with the sources; senior editors as well as the Globe’s legal counsel conducted further interviews to more critically assess the credibility of the information provided by the sources; only sources who had direct knowledge of the alleged drug dealing by Doug Ford were used; the reporters and editors further corroborated various facts and analyzed numerous anecdotes for consistency; Facebook linkages were scrutinized to establish connections; the reporters included information about some sources in their story that seemed to stop just short of identifying them and, in some cases, likely made it possible for those close to the events described in the story to know who they are.

The Globe submitted that their sources’ unwillingness to be identified was understandable, given the fact that the persons with direct knowledge of the alleged drug related activities of Doug or Randy Ford were themselves either dealers or buyers of drugs. While there were concerns of retribution from the Ford family, the primary concern was that they would be admitting past illegal behavior that could cause them serious present difficulties, for

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Ontario Press Council Decision – October 16, 2013 In the Matter Regarding: Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing

example making it difficult for them to enter into the United States. Mr. McArthur stated that extensive efforts were made to persuade one or more sources to give up their anonymity but without success because of this concern. The Council agrees that the use of only anonymous sources, many of whom seem to have been active partners in Doug Ford’s alleged drug activities, is a serious issue to be weighed carefully when assessing whether the reporters were justified in reporting on the conclusions they reached. In this case, the lengthy, extensive efforts made by the Globe satisfied the Council that the information was reasonably reliable and the reporters were sufficiently diligent in their efforts to verify their conclusions. 3. Was Mr. Ford given adequate notice of the allegations and a reasonable opportunity to respond, and did the newspaper include that response in its reporting?

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The complainant did not express a concern on the question of whether the subject’s side of the story was sought and accurately reported in the article. However the requirement to treat fairly the individual who is the subject of investigative reporting includes informing him of the allegations being made and reporting his response in the article. This was well laid out in Grant v Torstar [2009] as part of the responsible communications defence in law. In fulfilling its responsibility to Doug Ford the Globe noted that it had made seven or eight attempts to get him to respond. The Globe also noted Mr. Ford had been aware of the gist of the article for some time. While the Globe was conducting its interviews for the story, details of the allegations began to reach Mr. Ford and in November 2011 he called the newspaper editors to complain about their investigation and the level of detail its reporters nd were seeking. On May 22 , three days before it published its story, the Globe began to provide specific details to Doug Ford. This was done through messages left on his telephone and cell-phone; letters; e-mail messages; and numerous contacts through his staff and letters sent to his city hall office. Mr. Gavin Tighe, Doug Ford’s lawyer responded to a letter from the Globe to Mr. Ford saying the allegations were false. The Globe printed this along with several other comments from Mr. Tighe. Attempts to contact Randy Ford and Kathy Ford seemed to have been more limited. The Globe left Randy voice mails but he did not respond. It reached Kathy Ford once on the telephone and she refused to respond. The Globe reported reaching Dennis Morris, a lawyer who represents members of the Ford family, and included his comments in the story, noting he questioned the allegations surrounding the Ford family’s past: “What’s the point, other than a smear campaign?” While the efforts to contact Doug Ford’s siblings might have been more extensive, the Council is satisfied that overall, the subjects of the story were given an opportunity to respond and the denials given by their lawyers are reported in the story itself.

Decision:

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The concerns of the anonymous individuals is forcefully recognized by Justice Binnie in the National Post case, where he states: "When investigative reporting strikes at those in power it would not be unexpected that those in power, including the police, may wish to strike back."

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Ontario Press Council Decision – October 16, 2013 In the Matter Regarding: Complaint from Ms. Connie Harrison regarding an article published by The Globe and Mail, dated May 25, 2013 entitled Globe Investigation: The Ford family’s history with drug dealing

For the reasons outlined above, the Press Council dismisses the complaint in this case

Conclusion: The Council appreciates both the willingness of concerned citizens to submit their complaints about the Globe article and the attention the Globe’s most senior officers gave to providing a full and consider ed response to the complainants’ concerns. The issues raised in this complaint are similar to a related complaint heard on the same day by the Council: Donley 6 v Toronto Star . These two matters have enabled the Council and others to consider both the important benefits and the potential risks associated with investigative journalism. The opportunity to address this issue in a public forum, at no cost to the complainants, is perhaps the best illustration of the reason why those who established the Council saw it as a means of deepening our collective understanding of the importance of responsible communication. The primary issue in these cases is whether an appropriate balance has been struck between the freedom of the press and the need to safeguard personal reputation and privacy. The complainants’ primary focus has been on what they saw as a lack of fairness in the way the newspapers treated their subjects. The newspapers saw themselves as exposing questionable activities on the part of influential public figures and thereby serving the public interest. The Council believes the principles underlying both perspectives are not inconsistent. Ultimately the question is how to promote and support good journalism that serves the public interest, without losing sight of the commonly accepted ethical standards that apply to all newspaper reporting. At the heart of those standards is the requirement of fairness. Council hopes that this and the companion decision of Donley v the Toronto Star have helped to reaffirm that freedom of expression and freedom of the press are fundamental principles of Canadian democracy, as are individuals' Charter rights and expectations of fair treatment by powerful societal institutions. Council also points out that the complaints have served as a reminder that the onus is on the press to demonstrate that it does balance those interests as it seeks to foster full and open discussion on matters of public interest and to do so in a manner that is transparent to its readers.

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Matter Regarding: Complaint from Ms. Darylle Donley regarding an article published by The Toronto Star, dated May 18, 2013 entitled Rob Ford in ‘crack cocaine’ video scandal

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