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. While the Canadian media fights against limitations on access court proceedings and government information, or on the ability to report fully or protect the information in its control, crimes against journalists is not an institutional problem and there is no record of unpunished crimes against journalists. Here are some of the most significant developments: -An organization of media defense counsel was created in the fall of 1998 to allow coordination of efforts across the country in enlarging freedom of expression on issues affecting the media. In particular, the new group, Advocates in Defence of Expression in the Media (Ad IDEM) will focus on issues of defamation, open courts, access to information and limiting intrusions on the media through search warrants and subpoenas. -Last year, the Supreme Court of Canada struck down as unconstitutional the provision in the Canada Elections Act that 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 therefore the infringement on freedom of expression could not be justified. But the reasoning of the Court suggests that a provision requiring that methodology be published with every opinion poll would not amount to an unconstitutional infringement on freedom of expression. However, with the 72-hour ban on opinion polls struck down, it is rumored that the federal Elections Act may be amended to include a ban on opinion poll results 48 hours before the election. The media would challenge any such provision under the Charter, and given that it was the ban itself and not the length of the ban that infringed the right to free expression, it too should be found unconstitutional. -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 qualified privilege in which writers are constitutionally entitled, unless 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 these provisions will be challenged under the Charter. -In 1995, the Supreme Court of Canada refused to adopt the U.S. model from the New York Times v. Sullivan case regarding libel actions brought by public figures, and ruled that the common law of defamation in Canada complied with the underlying values of the Charter, and that no privilege attached to statements about public officials. -A decision in the fall of 1998 may also increase the efficacy of the qualified privilege defence by recognizing that a newspaper had a "social and moral" duty to publish an article which highlighted allegations made by tenants against a building manager. The Ontario Court found that because the newspaper was careful to present words as allegations and not as facts, it was entitled to rely on the defense of qualified privilege, notwithstanding that the Court found the words in the article were capable of defamatory meaning. The decision has been appealed by the plaintiff. -There is a growing number of examples of individuals using human rights legislation in a bid to regulate press activity. For example, a complaint under the "equal provision of services" provisipn 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. -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). -In 1997, two new criminal code provisions were enacted which put new restrictions on the ability of the press to report on police activities pursuant to search warrants. 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. Further, access to and disclosure of information relating to a search warrant may be prohibited on the ground that the ends of justice would be subverted by the disclosure or the information may be used for an improper purpose. -Last year, the Quebec Court of Appeal relied on these new provisions to order a publication ban on the information underlying a search warrant that was executed against a judge, on the basis that disclosure of the information would prejudice the accused's right to a fair trial. The Court limited the ban to publication, allowing the press access to the information. -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. Last year, 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. -Last fall, the federal government tabled a draft legislation entitled Personal Information Protection and Electronic Documents Act. Its purpose 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 draft legislation contains an exemption for personal information collected, used or disclosed solely for journalistic, artistic or literary purposes.