Canada

57th General Assembly Washington, DC October 12 – 16, 2001 CANADA There have been increasing incidents of backlash against reporters, including violence or threats against journalists by affected members of the public. There have also been an increasing number of incidents in which journalists have been arrested while covering public demonstrations, despite being clearly identified as members of the press. The law in Canada provides for freedom of speech and of the press, and the government respects these rights in practice. However, the Supreme Court has ruled that the government may limit free speech in the name of goals such as ending discrimination, ensuring social harmony or promoting gender equality. The Court ruled that the benefits of limiting hate speech and promoting equality are sufficient to outweigh the freedom of speech clause in the Charter of Rights and Freedoms. In June 2001, the federal information commissioner accused the prime minister and his most senior officials of subverting the federal Access to Information Act. A similar accusation was made by the Ontario information commissioner. A report from a federal task force on the reform of the Freedom of Information Act is due in the Fall. Restrictions on the press’s ability to report on police activities pursuant to search warrants have created burdens on the press. Where a charge has not been laid, it is now a criminal offense to publish or broadcast the location of a search or the identity of those connected with the location or the offense for which the search warrant was issued, unless the consent of all those parties is obtained. In addition, access to and disclosure of information relating to a search warrant may be prohibited on the grounds that the ends of justice would be subverted by the disclosure or the information might be used for an improper purpose. The constitutional guarantee of freedom of the press has augmented the ability of the Canadian media to protect the right of access to court proceedings. Thus far, however, this guarantee has not allowed the Canadian media to significantly expand the protection available under Canadian libel laws – which are much less favorable to media defendants. Under the guarantee, access to court proceedings and government information has increased and the Canadian media are able to challenge emerging common and legislative laws regarding, among other things, privacy. Journalists occasionally are banned from reporting some specific details of court cases until a trial is concluded, and these restrictions, adopted to ensure the defendant’s right to a fair trial, enjoy wide popular support. Some restrictions on the media are imposed by provincial-level film censorship, broadcasters’ voluntary codes to curb graphic violence, and laws against hate literature and pornography. The Charter of Rights and Freedoms provides for free speech and free press, but both the Criminal Code and human rights legislation have established limits. Inciting hatred (in certain cases) or genocide is a criminal offense. The Supreme Court has set a high threshold for such cases by specifying that these acts must be proven willful and public. The Broadcasting Act, which prohibits programming containing any abusive comment that would expose individuals or groups to hatred or contempt, has not yet been challenged in the courts. The federal government tabled a new provision for the Canada Elections Act to ban opinion poll results (and advertising) 24 hours before an election. Such initiative attempted to revive the electoral ban of 72 hours struck down by the Supreme Court in 1998 . Publication bans may be ordered under statutory authority or pursuant to the common law. A Supreme Court of Canada decision confirmed that publication bans must be consistent with the Charter and that the media, as interested parties, are entitled to notice of all applications for publication bans and have standing to challenge publication bans. Courts now routinely order notice to the media with applications, and a couple of provinces are working on systems to ensure that the media get notice of issued publication bans. The right to personal privacy is an emerging legal issue in Canada. There is very little privacy jurisprudence to date, with case law arising primarily in those provinces that have enacted legislation protective of personal privacy. The Canadian Civil Liberties Association has protested the implementation of the Canadian Security Intelligence Service Act, which empowers law enforcement agencies to intercept and read e-mails, intercept private conversations and record them, and pry into confidential information without a warrant. Also, the federal government recently passed the Personal Information Protection and Electronic Documents Act. Its objective is to impose restrictions on the use of personal information in order to provide “Canadians with a right of privacy with respect to information that is collected, used or disclosed by an organization in an era in which technology increasingly facilitates the collection and free flow of information.”