Canada

CANADA Canada's Charter of Rights and Freedoms provides constitutional protection to freedom of expression, including freedom of the press, "subject to such 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 test applied by the courts considers 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 June, the Alberta Court of Appeal struck down as unconstitutional provisions in federal election legislation which limited the spending of third parties in an election (Le. other than the established political parties) to $1,000. The elections officer for Canada has issued a press release advising that similar provisions in the federal legislation will not be enforced. In British Columbia, a challenge has been brought to a substantially similar provision in its provincial legislation with a limit of $5,000. In addition, the B.C. challenge attacks the constitutionality of another provision that requires polling information to be included with every opinion poll published. This provision is being challenged not only on the basis that the reporting requirements are too onerous and thereby place too heavy a burden on a publisher, but because it amounts to forced speech. The Ontario Court of Appeal ruled in August that the provision of Canada's election legislation imposing a publication ban on opinion poll information during the last 72 hours before an election is constitutional. The Court found that although the research that has been conducted could not show that opinion polls unduly influenced the public, the "widespread perception" that they are misleading and that there can be inadequate time to respond makes it a sufficiently pressing interest to justify the infringement of freedom of expression. The Court also found that opinion poll information does not fall within the constitutional right to information for the purposes of casting an informed vote. Appeal of this decision to the Supreme Court is being considered. In sexual assault cases, courts are obliged, if asked by the complainant, to ban publication of the identity of the complainant and any information that would identify the him or her. Recently, several civil cases have been successfully brought against the media by persons entitled to the protection of a publication ban for damages resulting from the breach of such a ban. The courts have held that the offending newspaper should have known of the publication ban orders and obeyed them in full. While Canadian courts are presumptively open to the public, television cameras are as a general rule not allowed in courtrooms. The courts have upheld their power to determine how proceedings are to be conducted, including the conduct of the public and the press in the courtroom. Further, the Supreme Court held in 1991 that it is open to the legislatures to determine whether or not television cameras should be allowed in court rooms. Last year, the Supreme Court considered the constitutionality of Canada's defamation laws and refused to adopt the U.S. model from New York Times and Sullivan regarding libel actions brought by public figures. The Court found that the common law of defamation complied with the underlying values of the Charter with no privilege attached to statements about public officials. 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 guidelines for how, when and what information can be made available. The police may - and do - execute search warrants on newsrooms in order to obtain information about a crime. For example, this year the Royal Canadian Mounted Police executed a search warrant on a newspaper in British Columbia in order to obtain pictures of a rock concert at which there was a riot. The Supreme Court made clear in 1991 that search warrants on the media will be valid if the execution of the warrant does not "unduly impede the publishing or dissemination of the news." Recently, provincial litigation rules in several provinces have been changed to allow for greater pre-trial discovery in the early stages of a civil proceeding. Relative to libel proceedings, this development has raised questions about the privilege of reporters, accepted up to now in several provinces, not to reveal a confidential source at the discovery stage. This issue has been considered in some provinces in light of the expanded rules for discovery. Where this issue has been litigated, the net effect has been the removal of any such privilege for reporters. In August, 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 its own Charter of Rights, which includes the right to privacy. The Court found that people have 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.