Canada

CANADA Canada has enshrined freedom of the press in its Constitution through the Canadian Charter of Rights and Freedoms. 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 information has increased and the Canadian media are able to challenge emerging common and legislative laws regarding, among other things, privacy. The Charter provides constitutional protection to freedom of expression, including freedom of the press, “subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Any government action that limits expression infringes the constitutional right, but where important interests compete with this right, the courts must determine whether a limit on the right is justifiable. The courts will consider the importance of the competing interest, the extent to which the infringing measure serves this interest, and whether there is another means of serving the competing interests which would be less restrictive to freedom of expression. In 1998, the Supreme Court of Canada struck down as unconstitutional the provision in the Canada Elections Act, which banned publication of opinion poll results 72 hours preceding a federal election. The Court rejected the argument that voters are unduly influenced by opinion polls, and found therefore that the infringement on freedom of expression could not be justified. Despite this finding, the federal government introduced a proposed provision for the Canada Elections Act to ban opinion poll results – and advertising – 48 hours before an election. In the fall, this proposed provision was changed to reduce the ban period from 48 hours to 24 hours prior to an election. A challenge to this provision under the Charter would likely be successful as it was the ban itself and not the length of the ban that was found by the Supreme Court of Canada to infringe the right to free expression. The reasoning of the Supreme Court of Canada suggests that a provision requiring that methodology be published with every opinion poll may not be an unconstitutional infringement of freedom of expression. However, this year a trial court struck down as unconstitutional a provision in the British Columbia Elections Act that required the publication of methodology with opinion polls. The decision will likely be appealed by the attorney general to the British Columbia Court of Appeal. Under common law, journalists currently do not enjoy a constitutional protection against having to reveal sources. Since a case in 1986 in which the attempt to rely on qualified privilege for sources was denied, no constitutional challenge has been brought to the right to protect sources. This issue is before an Ontario court in an effort to establish a there is clear and present danger of harm, to deny to reveal their sources. Recent amendments to the Canadian Criminal Code provide for the court in criminal matters to issue a publication ban to protect the identity of victims and witnesses. Previously, cases decided before and after the Charter emphasized the importance of open justice and refused to allow such publication bans unless necessary for safety. It is likely that these provisions, or orders made under them, will be challenged under the Charter. There is a growing number of 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 them 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. 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 a 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 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 protecting personal privacy. In 1998, the Supreme Court of Canada upheld a decision of the Court of Appeal in Quebec awarding a woman $2,000 in damages on the basis that her privacy had been violated when her picture was taken and published without her knowledge. The Court found that a person has a right to privacy even in public places, as long as they are not engaged in public life through artistic, cultural or professional activities. The ruling amounts to a right to remain anonymous, whether or not the published image harms the individual. This decision is not a binding precedent in Canada outside Quebec because, unlike other Canadian provinces, Quebec has its own Charter of Rights, which includes the right to privacy. In 1997, a Quebec Superior Court ordered a newspaper to pay $24,900 to a woman because they published without her permission a picture of her accompanying her husband to court. The decision has been appealed to the Quebec Court of Appeal but, due to the Court’s case load, will not likely be heard for several years. In 1998, the federal government tabled draft legislation entitled “Personal Information Protection and Electronic Documents Act.” The purpose was 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. Therefore, the Canadian Newspaper Association is closely watching the development of provincial counterpart legislation, such as the initiative in British Columbia, to ensure that a similar exemption for the media is included.