Canada has enshrined freedom of the press in its constitution through the Canadian Charter of Rights and Freedoms (“the Charter”). This constitutional guarantee has augmented the ability of the Canadian media to maintain the right of access to court proceedings. Thus far, however, this guarantee has not allowed the Canadian media to significantly expand the protection available under Canadian libel laws — which are much less favorable to media defendants than they are in, for example, the United States. Under the guarantee, access to court proceedings and government information has increased and the Canadian media are able to challenge emerging common and legislative laws regarding, among other things, privacy.
While the Canadian media fights against limitations on access to court proceedings and government information, crimes against journalists are not an institutional problem and there is no record of unpunished crimes against journalists.
There has been, however, an increasing number of incidents involving reporters. There have been several instances of violence or threats against journalists, not by government, but by affected members of the public. There has also been an increasing number of journalists who have been arrested while covering public demonstrations, despite being clearly identified as members of the press.
There are various organizations in Canada dedicated to protecting and enhancing the constitutional guarantee of freedom of the press. In addition, an organization of media defense counsel was created in the fall of 1998 to allow coordination of efforts across the country in enlarging freedom of expression on issues affecting the media. Advocates in Defence of Expression in the Media (“Ad IDEM”) focuses on issues of defamation, open courts, access to information and limiting intrusions on the media through search warrants and subpoenas.
Recent amendments to the Canada Criminal Code provide new protections to journalists from intimidation and crimes against them.

Intimidation of a justice system participant
423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in
(a) a group of persons or the general public in order to impede the administration of criminal justice;
(b) a justice system participant in order to impede him or her in the performance of his or her duties; or
(c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.
Prohibited conduct
(2) The conduct referred to in subsection (1) consists of
(a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons;
(b) threatening to engage in conduct described in paragraph (a) in Canada or elsewhere;
(c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway;
(d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and
(e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.
Punishment
(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.

Canadians are demanding an independent inquiry into the death on July 10, 2003 of the Canadian photojournalist, Zahra Kazemi, while in an Iranian prison. Kazemi, 54, an Iranian-Canadian with dual citizenship, was arrested June 23 for taking photographs of a protest outside a prison north of Tehran. Three days later, she was taken to hospital with severe head injuries.
Under common law, journalists currently do not enjoy a constitutional protection against having to reveal sources. Since a case in 1986 in which the attempt to rely on qualified privilege for sources was denied, no constitutional challenge has been brought to the right to protect sources. This issue is now before an Ontario court in an effort to establish a qualified privilege in which writers are constitutionally entitled, unless there is clear and present danger of harm, to protect their sources.
The Supreme Court of Canada clarified that in limited circumstances journalists can claim qualified privilege for their sources of information. The Court found that while there is no group privilege for journalists’ sources, sources could be protected in any case which meets the four-part test: (1) the communication was confidential; (2) confidentiality is essential to the maintenance of the relationship between the journalist and the source; (3) the community has an interest in maintaining the relationship; and (4) the injury to the relationship would be greater than the benefit to the process of revealing the source.
Publication bans may be ordered under statutory authority or pursuant to the common law. The Supreme Court of Canada decision in Dagenais confirmed that publication bans must be consistent with the Charter, and that the media, as interested parties, are entitled to notice of all applications for publication bans and have standing to challenge publication bans. Courts now routinely order notice to the media with applications, and a couple of provinces are working on systems to ensure that the media get notice of issued publication bans.
Recent amendments to the Canadian Criminal Code provide for the court in criminal matters to issue a publication ban to protect the identity of victims and witnesses. Previously, cases decided before and after the Charter emphasized the importance of open justice and refused to allow such publication bans unless necessary for safety.
In 1995, the Supreme Court of Canada refused to adopt the US model from New York Times v. Sullivan regarding libel actions brought by public figures, and ruled that the common law of defamation in Canada complied with the underlying values of the Charter, and that no privilege attaches to statements about public officials. In fact, dicta from several courts, including the Supreme Court of Canada, suggest the judicial attitude is to protect public figures – particularly political figures – so as not to discourage people from pursuing public office.
The defense of justification or truth has traditionally only been available to defendants to be used to prove the truth of the meanings of the words as the plaintiff interprets them. Recently, however, an Ontario court allowed a defendant to plead an alternative meaning to the words complained of and then successfully defend on the basis of the truth of that meaning.
The defense of qualified privilege arises at common law and requires that the defamatory statement must involve a matter of public interest and be a fair and accurate report. There must be a moral or legal duty to publish the defamatory matter and any person receiving the information must have a valid interest in receiving it. The defense is defeated by a finding of malice. The application of this test by Canadian courts has made it very difficult for defendants to successfully rely on the defense of qualified privilege. However, recently there have been a few cases in which this defense has been accepted.
In 1997, the Ontario Court of Appeal widened the previous use of the defense of qualified privilege by accepting a newspaper's assertion that it had a social and moral duty to publish an article about an organization called Fundamentalists Anonymous. A decision in the fall of 1998 may also increase the efficacy of the qualified privilege defense by recognizing that a newspaper had a “social and moral” duty to publish an article which highlighted allegations made by tenants against a building manager. The Ontario Court found that because the newspaper was careful to present words as allegations and not as facts, it was entitled to rely on the defense of qualified privilege notwithstanding that the Court found the words in the article capable of defamatory meaning.
In June 2003 an Ontario Superior Court Justice threw out the Toronto Police Association's $2.7-billion libel lawsuit against Toronto Star Daily Newspapers Ltd. The police association launched the class-action suit on behalf of its 7,200 members after a series of articles in the Toronto Star said police sometimes give blacks harsher treatment than whites. The articles were based on an analysis of police data for the years 1996-2002. In his decision, Mr. Justice Maurice Cullity said that “the whole thrust of the articles is that the evidence suggests that racial profiling occurs and that steps must be taken to identify the causes and remove them.” “In my judgment,” he continued, “the allegedly defamatory comments and innuendoes in the article cannot reasonably be understood as intended to apply to every officer in the TPS (Toronto Police Service).” The Toronto Police are appealing this decision.
The Federal Government is reviewing the entire Copyright Act in 2003. There are a number of issues under review that impact journalists and publishers. For example, the provision which automatically grants copyright in photographs to the person or entity commissioning it is under review and may lead to a new provision which grants copyright to the photographer first as it is with other types of copyright.
Canada Customs and Revenue Agency (CCRA) has agreed to release a shipment of anti-war video tapes it originally “detained.” The two-hour anti-war film, What I've Learned About U.S. Foreign Policy, by American documentary producer Frank Dorrel, was seized by Canada Customs in early March. In a letter to the tape's importer, Global Outlook Magazine, the CCRA said it took the action because “they [the videos] may constitute obscenity or hate propaganda.”

questions or comments? e-mail us

Copyright © 2003 Inter American Press Association. All rights reserved.

.