Canada

CANADA Freedom of speech and freedom of the press are guaranteed in Canada by the constitutional Charter of Rights and Freedoms, which states that everyone possesses the fundamental "freedom of thought, belief, opinion and expression, including freedom of the press and other media communication." Canada does not, however, have a provision akin to the First Amendment in the United States, which explicitly prohibits interference with a free press. In fact, Canada's "guarantee" of freedom of speech and the press is explicitly subject in the nation's Constitution "to such reasonable Iimits prescribed by law as can be demonstrably justified in a free and democratic society." This opens the door to considerable restriction. Canadian governments have put severallimits on freedom of speech and the press that they deem to be justified in law, and which in most cases have been upheld by the courts. They include the broad power of courts to ban publication of events during trials in the broad interest of the administration of justice, a criminallaw forbidding the incitement of hate against identifiable groups, and a new criminallaw prohibiting the publication of fresh public opinion poll data within 72 hours of a federal election. Canada's Official Secrets Act also makes it a criminal offense for any person, including the press, to "retain for any purpose prejudicial to the safety or interests of the state any official document ". or fail to comply with any directions issued by government departments ". with regard to the return or disposal thereof." Against this background, several cases remain before the courts, described in the 1993 IAPA report from Cana da, and new confiicts have arisen. 1. The Supreme Court of Canada has reserved its decision on an appeal by Canadian media against a publication ban in a series of sexual abuse trials in Saskatchewan. The Ontario Court of Appeal has also reserved a decision on an appeai by Canadian media against a publication ban on the conviction of a woman for manslaughter in Ontario (Karla Homolka), pending the trial of her husband (paul Teale) on related murder charges. (That trial has now been delayed until1995.) Mr. Teale also objected to the publication ban on his wife's conviction. The Ontario appeal has heard in ]anuary 1994, and no decision has been rendered, effectively upholding the ban for the last nine months. 2. Several Canadian newspapers have filed an appeal against a new federal law prohibiting the publication of fresh opinion poll results in the 72 hours prior to a federal election. The law prohibits publication of results of professionally conducted polls only, meaning polls that claim statistical validity. The law allows publication of so-called "hamburger polls" - that is, informal polls that do not claim statistical validity. The media argue that this ban is unconstitutional, an unjustified limitation on freedom of speech and the press. The appeal will be heard in 1995. In the cases mentioned abo ve, the speed at which the appeals process moves - or does not move - can be material to the substance of the disputes. Delays in hearing the cases and rendering judgrnents can effectively nullify challenges by the media for relief from publication bans. 3. In August 1994, several Canadian media published the contents of a document leaked from the files of the Canadian Security Intelligence Commission(CSIC). The Taranta Star was ordered by a CSIC official to return the document under Section 4 of the Official Secrets Act, which requires anyone to comply with the direction of any government department to return official documents considered "prejudicial to the safety or interests of the state." The Taranta Star refused to comply with the order and indicated that any effort to enforce it would be met with a court challenge over the constitutionality of that section of the Official Secrets Act. To date, no enforcement of the order has been attempted. 4. In October, an Ontario court heard a criminal case in which the Crown is seeking the forfeiture and destruction of five paintings and 3S drawings seized from an art gallery under Canada's new law against child pornography. Criminal charges against the artist and the gallery were dropped afier complaints by civil rights groups, but the law section on forfeiture was enforced. The defense is arguing that, among other things, the law creates an unconstitutionallimit on free expression. 5. In October, an Ontario judge ruled that a section of Canada's Criminal Code forbidding literature that promotes the use of illegal drugs such as marijuana and cocaine was an unconstitutional restriction of freedom of expression. "It is a statutory provision aimed at censorship," wrote Madame Justice Ellen MacDonald. 6. The practice of seizing printed and illustrative visual material at the Canadian border deemed by customs officials to affront pornography and hate laws continues. Although appeaIs against such seizures are possible, they are difficult and often costly. The prior restraint by the government on the release of books, videos and films from foreign sources continues to elicit opposition among civil liberties groups in Canada. On October 11, in Vancouver, British Columbia, owners of a bookstore began arguments in a court challenge to the constitutionality of the customs laws that permit seizure of written and visual material at the border.