A Canadian documentary maker whose film helped police crack one of the art world’s biggest fraud cases has been forced to surrender his source material to the Ontario Provincial Police as part of a production order.
Jamie Kastner is the director of “There Are No Fakes,” a 2019 documentary that uncovered an art fraud ring that passed off fake paintings as originals by the celebrated Indigenous artist Norval Morrisseau, known for his vibrant paintings of the natural world and First Nations mythology. The eye-opening film, which premiered at Hot Docs in Toronto, revealed there were up to 10 times more Morrisseau forgeries on the market as there were real works, and that the artist’s own nephew may have been complicit in helping to produce the fakes.
The film’s release inspired investigators in Thunder Bay, Ontario, to pursue the case, and in early March, police made eight arrests and 40 charges in addition to seizing 1,000 fake Morrisseau paintings. However, as part of the ongoing investigation, investigators also slapped Kastner with a production order, a legally enforceable order that compelled the filmmaker to hand over all of his source material. The director and his lawyer are now fighting to keep the documents — which haven’t yet been opened — sealed.
“We have to fight this because it goes against basic journalistic freedom and the need to protect our sources,” Kastner tells Variety. “If talking to doc makers and journalists becomes synonymous to talking to police, no one would ever talk to us.”
Variety understands that authorities carried out a 2.5-year investigation into the case, involving more than 90 police officers over multiple jurisdictions. They’re believed to have taken 271 statements — dwarfing the 17 interviews Kastner completed for the film.
“They have interviewed the vast majority of the people who are in my film independently,” says Kastner. “I don’t see how they can claim they can’t get the information any other way when they did their own interviews.”
The likely scenario is that police want to cross-reference statements made to them with the material secured by Kastner years prior in order to ensure consistency. Both Thunder Bay Police and Ontario Provincial Police, also known as the OPP — who are jointly conducting the investigation — declined to comment on this story or elaborate on their reasoning for seizing the footage.
Kastner’s lawyer, Iain MacKinnon, a partner at Toronto law firm Linden & Associates specializing in media and intellectual property law, tells Variety the case will likely be an “uphill battle,” particularly as Kastner’s sources are not confidential, and were interviewed openly in the film.
The team is challenging the production order, and hoping to get hold of an affidavit from police that set out their reasons for the production order to the court. (A court must be satisfied that there are good, legal grounds for a production order in order to grant an affidavit.) MacKinnon is also hopeful that the Journalistic Sources Protection Act, a crucial amendment to Canada’s Criminal Code that came into effect in 2017, will help the filmmaker’s case.
The JSPA serves to protect the confidentiality of journalistic sources, and to help protect a journalist’s right to privacy in gathering or disseminating information. The act also presents a two-part test: firstly, it requires the police and the Crown to establish no reasonable alternative way to get the information, and secondly, that the public interest in prosecuting the crime for which materials are being sought outweighs the journalist’s privacy interest in protecting their work.
Nonetheless, MacKinnon — citing two recent Canadian media cases, R. v. CBC and R v. Virtanen, that tried to leverage the JSPA and lost — acknowledges that “more often than not, courts favor the police because they think that if it’s at all relevant to the prosecution of the accused, they give short shrift to journalists’ rights.”
The lawyer warns, however, of the “chilling” effect that production orders against journalists and documentary makers can have on the media landscape.
“Interviewees may willingly give an interview to a journalist, but they may not want to talk to police for their own good reasons,” says MacKinnon. “If people start thinking that every time they talk to a journalist, [the journalist’s] notes and tapes will be handed over to police and used against them, they may be less willing to talk.”
The other major concern is that police will begin looking at journalists as another investigative tool to prosecute crimes, and reporters won’t be viewed as independent watchdogs of the police.
“Journalists may need to start destroying notes and recordings, which they need for their own protection if someone comes back and sues them,” says MacKinnon. “It puts journalists in a very difficult position.”