Today marks the 30th anniversary of Canada’s Charter of Rights and Freedoms.
For journalists, the big section is 2(b): “Freedom of thought, belief, opinion and expression (FOE – Bill D.), including freedom of the press and other media of communication.”
This related to “Shawinigate,” and the efforts of then-National Post reporter Andrew Macintosh to look into the affairs of then-prime minister Jean Chretien. The case itself relates to the protection of sources’ identities by journalists.
Macintosh received a “brown envelope” containing documents that were later alleged to be fraudulent. The police wanted to obtain the document and envelopes for forensic testing.
The National Post opposed this.
Here is part of what the Supreme Court of Canada (SCOC) said:
In appropriate circumstances, accordingly, the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor. The public’s interest in being informed about matters that might only be revealed by secret sources, however, is not absolute. It must be balanced against other important public interests, including the investigation of crime. In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence.
In a May 8, 2010 editorial, the N-P’s Matt Gurney wrote:
On one hand, the Supreme Court of Canada recognized the existence of a case-by-case privilege for journalists seeking to protect confidential sources and materials from police and other agents of government. On the other hand, the court defined this privilege too narrowly. If investigative journalism is to remain a viable avenue for holding the powers that be to account, this is a problem that our lawmakers must remedy.
2010: Globe and Mail v. Canada (Attorney General) 2010 SCC 41
This case was seen as expanding the rights of journalists to protect the identity of sources, but only applies in Quebec.
Here’s my Oct. 22, 2010 blog post: SCOC rules on public-interest source protection in Quebec.
This case, along with Grant vs. Torstar Corp., created a new libel defence in Canada known as the “defence of responsible communication.”
From the judgment:
The defence of responsible communication on matters of public interest recognized in Grant v. Torstar Corp. is applicable where the publication is on a matter of public interest and, having regard to the relevant factors, the publisher was diligent in trying to verify the allegations. The public interest test is clearly met here, as the Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. The defendants’ liability therefore hinges on whether they were diligent in trying to verify the allegations prior to publication, and it will be for the jury at a new trial to decide whether the articles met this standard of responsibility.
Here’s an archived blog post from Dec. 23, 2009 – Unwrapping the SCOC’s Christmas present for journalists. Another related post, from Dec. 27, 2009 – What the court gods giveth, the economic gods taketh away.
From the judgment:
Although this is a private law case that is not governed directly by the Canadian Charter of Rights and Freedoms, the evolution of the common law is to be informed and guided by Charter values. The law of fair comment must therefore be developed in a manner consistent not only with the values underlying freedom of expression, including freedom of the media, but also with those underlying the worth and dignity of each individual, including reputation. A court’s task is not to prefer one set of values over the other, but rather to attempt a reconciliation.
The events leading to a defamation lawsuit against WIC Radio and Rafe Mair, a high-profile broadcaster of the time, date back to 1999.
Mair took a bombastic run at Kari Simpson, known for having anti-gay views. Words such as Nazi were thrown around.
Simpson sued. Mair claimed fair comment. The trial judge agreed, the B.C. Court of Appeal did not, and the SCOC ultimately agreed with the trial judge.
From the June 27, 2008 CTVNews.ca story on the ruling:
“In order to defeat fair comment, malice must be the dominant motive for expressing an opinion,” said the ruling. “There was no evidence of malice on the facts of this case.”
The court also modified a key component of the fair comment defence that the person making the comment must honestly believe in it.
My June 30, 2008 blog post on the ruling: Supreme Court expands fair comment defence.
This was seen as a landmark ruling on publication bans. Read the Wikipedia article Dagenais v. Canadian Broadcasting Corp. for full background.
From the ruling:
This case deals with an error of law challenge to a publication ban imposed under a common law discretionary rule. Discretion conferred by a common law rule must be exercised within the boundaries set by the Charter; exceeding these boundaries results in a reversible error of law. The traditional common law rule governing publication bans — that there be a real and substantial risk of interference with the right to a fair trial – emphasized the right to a fair trial over the free expression interests of those affected by the ban and, in the context of post-Charter Canadian society, does not provide sufficient protection for freedom of expression. When two protected rights come into conflict, Charter principles require a balance to be achieved that fully respects the importance of both rights.
More to come
I got off to a late start on this post. If anyone knows of any significant rulings dealing with freedom of expression — particularly freedom of the press — since the Charter came into effect, please leave a comment and I’ll expand the post.
I’ll also do a bit more research over the coming days.
In the meantime, read this J-Source post: Why the anniversary of the Charter – and with it, press freedom – is important.