Canada

CANADA The courts have dealt with a number of free press issues that have an impact on freedom of expression. In October, the Supreme Court of Canada reqUired the province of Quebec to amend certain aspects of its law governing the conduct of a referendum in Quebec, induding on sovereignty, on the basis that certain limitations imposed by Quebec on third party advertising and participation were unduly restrictive. However, the Supreme Court appears to be willing under Canada's Charter of Rights and Freedoms to condone some significant legislative limits on third party spending in the course of elections. An appeal was heard by the Supreme Court in October and a decision is pending regarding the 1996 Ontario Court of Appeal ruling upholding the validity, under the Charter, of a provision that prohibits the publication of public opinion poll results within n hours of a federal election. The Ontario Court of Appeal this year widened the use of the defense of "qualified privilege" by accepting a newspaper's assertion that it had a social and moral duty to publish an artide about an organization calling itself Fundamentalists Anonymous. Previously, the ability to defend a libelous publication on the basis of a duty to the public to publish, which underlies a defense of qualified privilege, had been available only in very limited circumstances. In 1995, the Supreme Court of Canada had refused to adopt the U.S. model from The New York Times vs. Sullivan case regarding libel actions brought by public figures, ruling that no privilege attached to statements about public officials. In July this year, a Quebec Superior Court ordered a newspaper to pay $24,900 to a woman because it published a photo of her accompanying her husband to court without her permission. The Supreme Court of Canada has granted leave to several Quebec media outlets to appeal the 1996 ruling, in which the Court of Appeal in Quebec awarded a woman $2,000 in damages on the basis that her privacy was violated when her picture was taken without her knowledge and then published in a magazine. Unlike other Canadian provinces, Quebec has it own Charter of Rights, which includes the right to privacy. The Court found that a person has a right to privacy even in public places, as long as he or she is not engaged in public life through artistic, cultural or professional activities. The ruling amounted to a right to remain anonymous, whether or not the published image harms the individual. This year, the Human Rights Tribunal of British Columbia heard a complaint by the Canadian Jewish Congress that a 1994 op-ed piece in a Vancouver newspaper was hate literature. Unlike the Human Rights codes in Canadian provinces, the B.C. code does not provide an exemption to the ban on hate literature for free expression of opinion. If the Tribunal rules against the journalist, the decision is expected to be challenged under Canada's Charter. 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. This year, 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. In another area, the police may - and do - execute search warrants on newsrooms to obtain information about a crime. Canada's Charter of Rights and Freedoms 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 measures serves this interest and whether there is another means of serving the competing interests which would be less restrictive to freedom of expression.