Canada

CANADA Canada has enshrined freedom of the press in its constitution through the Canadian Charter of Rights and Freedoms ("the Charter"). This constitutional guarantee 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 than they are in, for example, the United States. 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. The Canadian media fight against limitations on access to court proceedings and government information, or on the ability to report fully or protect the information in its control. There have been, however, increasing incidents of backlash against reporters. There have been several incidents of violence or threats against journalists, not by the government, but by affected members of the public. There also has 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. There are increasing examples of individuals utilizing human rights legislation in an effort to regulate press activity. For example, a complaint under the “equal provision of services” provision of the Ontario Human Rights Act was brought against a newspaper in an effort to compel it to refer to Christian Poles in Holocaust or Polish-Jewish stories. Despite the newspaper’s protests, the Human Rights Commission found that it has jurisdiction over newspapers and over Press Councils. However, the Commission did find that an order compelling the newspaper to include content would be inconsistent with the free speech protection in the Human Rights Code. Unfortunately, the Commission refused to address the argument that it does not have jurisdiction over content published in the media. In 1997, the provision in the British Columbia Human Rights Act that prohibits the publication of anything “likely to expose a person or a group or a class of persons to hatred and contempt,” was upheld as constitutional because it is "demonstrably justifiable as a reasonable limit in a free and democratic society." The provision was upheld notwithstanding that, unlike the human rights codes in other Canadian provinces, the B.C. Code does not provide an exemption to the ban on hate literature for truth or fair comment. In the case in which the hate provision was found to be constitutional, the Tribunal found that the article in question was anti-Semitic but not hate literature, and therefore dismissed the complaint against the newspaper and journalist that was brought by the Canadian Jewish Congress. However, the Tribunal heard another complaint against the same journalist and newspaper involving four more articles said to breach the hate provision. The Tribunal found that taken individually the articles did not breach the provision, but when viewed collectively they were “likely to expose a person or a group of persons to hatred or contempt.” Remarkably, the Tribunal ordered the newspaper and the journalist to publish a summary of the Tribunal’s decision and to cease publishing statements that expose Jewish persons to hatred or contempt. The newspaper elected to comply, under protest. Human rights legislation has also been used to lay complaints regarding advertising in newspapers alleged to be discriminatory against homosexuals. In one such case, the complaint was dismissed because its entire content was quotation from the Bible and the Saskatchewan Human Rights Commission found that biblical quotations alone could not form the basis of discrimination. However, the complaint has been allowed by the Saskatchewan Human Rights Commission in a similar case in which, in addition to biblical quotations, two men were pictured holding hands with a red circle and a slash (the universal “no” symbol). The Canadian Government and most provincial and municipal governments are obliged under freedom of information legislation to provide the public with access to information in the control of government. The legislation sets out the procedure for requesting such information, and provides guidelines for how, when and what information can be made available. Documents obtained under freedom of information legislation are "public documents" under defamation legislation, and therefore attract the defense of qualified privilege. The legislation was enacted 16 years ago for the purpose of allowing the public the opportunity to scrutinize government activities. However, after complaints from parliament about the length of time to obtain information or the lack of information being made available, and an unprecedented accusation by the Information Commissioner that the government is threatening careers of Commission staff who tried to uncover hidden government documents, an interdepartmental task force has been set up to study the legislation. A report is due in the fall of 2001. The federal government recently passed the Personal Information Protection and Electronic Documents Act. The purpose of the legislation 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.” The restrictions on the use of information are extensive, requiring, for example, consent of the subject of the information for any use outside that for which it was originally collected. As a result of lobbying by the Canadian Newspaper Association and other representatives of the media, the legislation contains an exemption for personal information collected, used or disclosed solely for journalistic, artistic or literary purposes. The federal government expects all provinces to enact counterpart provincial legislation or be subject to the federal act.