Canada

CANADA Several legal cases have challenged the Charter of Rights and Freedoms' provisions regulating public and private rights, among them the right to information and to express opinions. Other issues outside the Charter have also emerged, including the right to privacy and access to information. 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 this constitutional right, but where important interests compete with it, the courts must determine whether a limit on it is justifiable. In May, the Supreme Court of Canada struck down as unconstitutional a provision in the Canada Elections Act that banned publication of opinion poll results within 72 hours of 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. In April, a newspaper cartoonist was ordered to pay $ 7,500 to a former teacher for defamation caused by cartoons depicting the plaintiff as a Nazi which were presented during a meeting of a provincial teachers association. The plaintiff's writings - which included assertions of a worldwide Jewish conspiracy to undermine Christianity and that the Holocaust was exaggerated - caused him to lose his teaching job several years ago. The New Brunswick Court of Queen's Bench found that although the plaintiff may be a racist, he was libeled by the cartoons because there was no evidence that he is a Nazi or that his beliefs are founded on Nazism. The cartoonist is appealing to the Supreme Court of Canada and is being supported by the Canadian Newspaper Association. 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 their control. The legislation sets out the procedure for requesting such information, and provides guidelines for how, when and what information can be made available. In 1997, a ruling in British Columbia held that documents obtained under freedom of information legislation are "public documents" under defamation legislation, and therefore attract the defense of qualified privilege. Concerns were raised about the efficacy of freedom of information legislation in a 1998 study commissioned by the Canadian Newspaper Association. The study suggests that public sector restructuring may undermine the effectiveness of such laws through budget cuts, increased fees, and in particular the out-sourcing of government functions - and therefore the control of information - to the private sector. This fall, the federal government introduced a bill titled "Personal Information Protection and Electronic Documents Act." Central to this bill is a restriction on use of personal information for the stated purpose of providing" Canadians with a right of privacy with respect to information that is collected, used or clisclosed by an organization in an era in which technology increasingly facilitates the collection and free flow of information." The restrictions on the use of personal information are extensive, requiring consent of the subject of the information for any use outside of that for which it was originally collected. As a result of lobbying by the Canadian Newspaper Association and other representatives of the media, the bill contains an exemption for personal information collected, used or disclosed for journalistic, artistic or literary purposes. The right to personal privacy is an emerging legal issue in Canada. There is very little privacy jurisprudence to date, with some cases arising in those provinces which have enacted legislation which protects personal privacy. In April, 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 without her knowledge and then published in a magazine. 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.