Canada

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CANADA In the past year, freedom of expression and of the press in Canada has been restricted by unusually aggressive actions by courts and governments. Canadian media are engaged in broad and intense struggles against laws and practices that inhibit freedom of expression in the country. Awareness of these laws and practices, and cooperation among media to oppose them, are increasing. Freedom of expression and freedom of the press are protected in Canada by a long tradition of common law, and by specific traditional guarantees. However, Canada is a child more of British than American jurisprudence, and many traditional practices and even new laws establish limits on freedom of expression. The government this year introduced several new laws restricting freedom of expression during national election campaigns: • One amendment prohibits anyone except registered political parties from expressing views on public issues during an election campaign through paid advertising or any other commercial means (up to a $1,000 limit). This is known as the "Third Party" law. • A second amendment prohibits the publication by media of any new public opinion poll data in the 72 hours before the closing of the polls in a federal election. This is known as the "Poll Law." Other election laws establish strict limits on the amount of television and radio advertising time allotted to each political party. Large established parties are allotted far more time for electronic media ads than smaller or new parties. This is known as the" Ad Law." Federal law also prohibits the publication of election advertising in the 48-hour period immediately preceding election day, or the publication of any election results or exit polls before polls close in each time zone, of which there are five and one half. Many newspapers have editorialized against these limits on free expression during election campaigns. In addition, two legal actions have been initiated: • A private lobby group, the national Citizens Coalition, challenged the Third Party Law last spring in the Province of Alberta. The court threw out the law, saying it was an unreasonable limit on free expression. The government of Canada is appealing this court decision, but the law was not enforced during the October federal election pending the outcome of this appeal. • An alliance of newspapers - The Globe and Mail, st. John's Evening Telegram, Winnipeg Free Press, Victoria Times-Colonist and the Southam newspaper group - challenged the Poll Law in October in an Ontario court. The newspapers argue that the law is an unreasonable limit on free expression and freedom of the press. The case will be heard in 1994. • Federal law prohibits the importation of obscene printed and visual matter into Canada. Unlike domestic material, however, imported material is subject to prior restraint by customs officers at the Canadian border. Many books, magazines, videos and other material are seized by customs, and thus denied to retailers or individuals. Appeal of these seizures is possible, but expensive and time-consuming. Customs officers, who are effectively interpreting the Criminal Code, tend to target certain kinds of bookstores and retailers in their actions. International PEN, the world organization of writers, has passed a resolution denouncing this practice, and has been joined by many Canadian newspapers in their editorials. A sustained editorial campaign against customs censorship is underway. Canadian courts have wide discretion under the law to uphold what they consider to be the proper administration of justice by prohibiting publication of information relating to ciminal charges, and to prohibit the reporting of events in court, or entire trials. Recently, the lower courts have been exercising this discretion with increasing vigor at substantial cost to freedom of expression and of the press. • Last September, a Quebec court banned the publication of mobile-telephone conversations between government officials that had been overheard and recorded. The case was resolved when the complainants withdrew (although the Globe and Mail was ordered to appear in court to explain how its publication of this material outside Quebec did not constitute contempt). Newspapers brought court actions against the publication bans in each of the other cases. 2. Last November, an Ontario court banned the broadcast by the Canadian Broadcasting Corp. of a drama based on earlier court trials in Newfoundland on the grounds that it might affect upcoming trials in Ontario of a similar nature. The court also banned newspapers, ex parte, from publishing any information about the content of the scheduled broadcast, including the fact that a ban against the broadcast had been sought and granted. The publication bans were overturned on appeal, but the broadcast ban was upheld and is currently under appeal at the Supreme Court of Canada. 3. In May, an Ontario court banned publication of the plea and facts surrounding a manslaughter conviction in advance of a related murder trial, despite the plea of the person charged with murder that no such ban be imposed. The publication ban is under appeal, but its progress has been slowed by technical arguments. 4. Last winter, a Saskatchewan court imposed a reporting ban on evidence and identities of witnesses in a child sex-abuse trial until the trials are concluded. The publication has been appealed and the ban substantially retained. 5. In August, a New Brunswick court imposed a reporting ban on a civil suit between two brothers over control of McCain's food. The ban was dropped when challenged. 6. In September, a British Columbia court banned the reporting of a case in which a man was seeking a ban on another CBC news program, and also imposed a ban on reporting the existence of the ban. The bans were overturned on appeal. To date, newspapers have generally complied with these court injuctions on the groundS that recourse is available in law and through the democratic process. Higher courts have been more sensitive to the need for free expression and access to the courts than lower courts. Newspapers and other media are seeking rulings from the Supreme Court of Canada that will impose more disdpline on lower courts. Some newspapers are also campaigning editorially for changes in federal law that would impose tighter limits on the discretion of judges to close courts.

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