The Unfulfilled Promise of Press Freedom in Canada 9781487510848

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THE UNFULFILLED PROMISE OF PRESS FREEDOM IN CANADA

Canadian news reports are riddled with accounts of Access to Information requests denied and government reports released with large swathes of content redacted. The Unfulfilled Promise of Press Freedom in Canada offers a vast array of viewpoints that critically analyse the application and interpretation of press freedom under the Charter of Rights. This collection, assiduously put together by editors Lisa Taylor and Cara-Marie O’Hagan, showcases the insights of leading authorities in law, journalism, and academia as well as broadcasters and public servants. The contributors explore the ways in which press freedom has been constrained by outside forces, such as governmental interference, threats of libel suits, and financial constraints. These intersectional and multifaceted lines of inquiry provide the reader with a 360-degree assessment of press freedom in Canada while discouraging complacency among Canadian citizens. After all, an informed citizenry is a free citizenry. lisa taylor,

a former lawyer, is a faculty member in the School of Journalism at Ryerson University. She spent more than a decade as a CBC Radio & Television journalist where her work was recognized by the Gemini Awards, the Atlantic Journalism Awards, and the B’nai Brith Media Human Rights Awards.

cara-marie o’hagan is the director of policy for the office of the Ontario

Minister of Finance. She is formerly the director of the Ryerson Law Research Centre.

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The Unfulfilled Promise of Press Freedom in Canada

Edited by LISA TAYLOR AND CARA-MARIE O’HAGAN

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press 2017 Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-1-4875-0037-5 (cloth)  

♾

ISBN 978-1-4874-2024-3 (paper)

Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks.

Library and Archives Canada Cataloguing in Publication The unfulfilled promise of press freedom in Canada / edited by Lisa Taylor and Cara-Marie O’Hagan. Includes bibliographical references and index. ISBN 978-1-4875-0037-5 (cloth) ISBN 978-1-4875-2024-3 (paper) 1. Canada. Canadian Charter of Rights and Freedoms. 2. Freedom of the press − Canada. I. Taylor, Lisa, author, editor II. O’Hagan, Cara-Marie, 1957−, editor KE4422.U54 2017 342.7108’53 KF4483.C524U54 2016

C2016-906731-9

This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

Funded by the Financé par le Government gouvernement du Canada of Canada

Press freedom is one aspect of the broader debate about the nature and scope of our right to free expression. Given the ambit and potential power of expression, it is a debate of deeply held views; it is also a debate that is challenging and leaves many feeling vulnerable and deeply uncomfortable. Free speech proponents are often, wrongly, accused of espousing views they themselves don’t hold, because believing in free speech sometimes requires its champions to support expression they may find troubling. For that reason, this collection is dedicated to anyone who has ever stood up for another person’s right to expressive freedom, despite the content of the expression.

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Contents

Acknowledgments  xi Introduction. Press Freedom in Canada  3 lisa taylor

Part One: Press Freedom and Internal Pressures   1 The Real Danger to Press Freedom  15 tony burman

  2 Exploring How Emerging Digital Business Models and Journalistic Innovation May Influence Freedom of the Press  31 leigh felesky

  3 Strategic Lawsuits against Public Participation and Freedom of the Press in Canada  47 normand landry

  4 Process Journalism and Responsible Communication: Establishing Real-Time Reporting Practices That Defend against Defamation  66 tim currie

  5 Freedom of Expression, Entertainment, Hate Speech, and Defamation: Where Do We Draw the Line?   84 anne-marie gingras

viii Contents

Part Two: Press Freedom and Court Processes   6 Free Expression at Thirty: The Search for Respect  101 daniel henry

  7 Has Dagenais-Mentuck Seen Its High-Water Mark?  121 ryder gilliland

  8 How the Criminal Code “Protects” Sexual Assault Complainants from Themselves and Constrains Their Participation in the News Media  132 lisa taylor

  9 Must News Reporters Be Guerilla Lawyers to Protect Their Rights? Covering the Canadian Justice System in Small Communities  146 robert koopmans

Part Three: Press Freedom and Institutional Secrecy 10 Freedom of Information: How Accountability to the Public Is Denied  157 fred vallance-jones 11 Municipal Access to Information, Delays, and Denials: An Insider’s View  167 suzanne craig

12 Unfettered Social Media versus Government Censorship: Mona Eltahawy’s Twitter Escape as a Test Case for Press Freedom  175 gavin adamson

13 Media Whining or Democratic Crisis? How Institutional Secrecy Is Contextualized in National Newspapers  186 bruce gillespie

Part Four: Press Freedom and the Charter 14 Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012  201 jamie cameron

Contents ix

15 The View from Down Under: Freedom of the Press in Canada  220 james allan

Conclusion. Use It or Lose It: Do Canadians Deserve Press Freedom?  233 ivor shapiro

Bibliography  243 Contributors Index

267

263

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Acknowledgments

Thanks, first and foremost, to the authors whose work appears in this collection, both for their time and patience as well as for their intellectual contributions to press freedom discourse. Thanks also to Aleksandra Acimovic, Kira Domratchev, Kalia Garcia-Rojas, and Aseel Kafil for pitching in on both the editorial and administrative fronts, as well to Beth McAuley and Melissa MacAulay of The Editing Company for their invaluable editing assistance and insightful suggestions; your work has added greatly to this collection. I truly enjoyed collaborating with my co-editor, Cara-Marie O’Hagan, the former director of the Ryerson Law Research Centre. The idea for this collection was born of a conference co-sponsored by Ryerson’s law and journalism research centres; thanks to the wise counsel of Siobhan McMenemy (formerly of the University of Toronto Press, now a senior editor with Wilfrid Laurier University Press), Cara and I left that conference with a clear vision of what a contemporary press freedom collection should encompass. Thanks to my partner, Peter Kenyon, and my son, Leo Kenyon, who missed me (I hope) on the weekends I devoted to this collection. Finally, I owe a debt of gratitude to my colleagues, Ivor Shapiro, the former chair of Ryerson’s School of Journalism, and April Lindgren, director of the Ryerson Journalism Research Centre, for supporting and championing this collection on many fronts.

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THE UNFULFILLED PROMISE OF PRESS FREEDOM IN CANADA

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Introduction: Press Freedom in Canada l i s a tay l o r

Judicial interpretation of the Canadian Charter of Rights and Freedoms transformed many aspects of Canadian media practice in the years immediately following the Charter’s enactment. Those of us who care deeply about free and democratic media and who came of age during that time followed developments in Charter jurisprudence in much the same way our peers might have followed a hit TV drama. At that time, judicial decision-making under the Charter appeared to offer the promise of a new chapter for Canada, one that affirmed and recognized the value of press freedom. Back then, if you had told me that I would live to see an era in which popular opinion often opposed a free press, I simply would not have believed it. Today, however, as a professor in a school of journalism, I regularly encounter young adults who, despite their apparent desire to practise journalism, are nonetheless troubled by journalists’ efforts to shine a bright light on aspects of society others would prefer to keep cloaked in darkness. Recently, during a class discussion about impediments to media coverage of the Canadian judicial system, one upperyear journalism student questioned the public’s right to know. “A criminal trial is about one person,” she said, “so why should we have the right to pry into the details of that person’s life?” Dear student, I’m so glad you asked. The courts are a vital component of a democratic society and, as such, they must be open to public scrutiny; in that regard, yes, it may be that privacy is sacrificed at the altar of the public interest. “Where there is no publicity there is no justice,” wrote Jeremy Bentham, the eighteenth-century philosopher. “Publicity is the very soul of justice.”1 More recently, the Chief Justice of the Supreme Court of Canada observed that the news media “acts as

4  Lisa Taylor

the agent of the public in monitoring and reporting on governmental, legal and social institutions.”2 This answer may not be self-evident to the journalism students I teach today. In their lifetime, there has always been a Charter, and its very existence, while not a panacea, has served to blunt some of the more egregious ways in which those in positions of power may try to prevent us from receiving information that will enhance our participation in civil society. But the threats to journalists’ raison d’être are real, our victories have often been partial, and those gains we have made under the Charter often appear to be at risk. A free press is a democratic cornerstone and, for that reason, “measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom.”3 This collection aims to contextualize the first decades of press freedom under the Charter, reflect on the developments in Canadian press freedom law since 1982, critically interrogate the current state of affairs, and advance possible remedies to the ongoing challenges related to access to information and freedom of expression faced by both traditional and emerging media. Part One: Press Freedom and Internal Pressures While press freedom faces opposition from a range of interests, such challenges are not always external; in fact, as the chapters in part one of this collection explore, the most insidious threats to press freedom sometimes come from within the industry itself. In his chapter, “The Real Danger to Press Freedom,” Tony Burman explores the decisions made within news organizations to suppress, rather than disseminate, information. In this exploration, Burman carefully elucidates both the noble and not-so-noble reasons why journalists create and succumb to internal pressure to withhold information, and argues that news organizations must be far more transparent about such choices. Among the more ignoble reasons Burman addresses in the chapter is the temptation to bow to financial interests, an issue further dissected in “Exploring How Emerging Digital Business Models and Journalistic Innovation May Influence Freedom of the Press.” In that chapter, Leigh Felesky explains that digital journalism’s evolving business models may make online news particularly vulnerable to self-censorship in the name of financial interests. Another compelling motivation to self-censor is to avoid the threat of a lawsuit. Normand Landry’s chapter, “Strategic Lawsuits against Public Participation and Freedom of the Press in Canada,” contemplates

Press Freedom in Canada  5

the chilling effect that threats of libel action have on journalism. Such civil actions – more commonly known by the acronym SLAPPs – are lawsuits launched for the sole purpose of intimidating or silencing journalists, almost always by powerful and well-resourced plaintiffs. Landry traces the history of SLAPPs in Canada and analyses nascent legislative responses advanced by some Canadian jurisdictions in reaction to lawsuits designed to silence journalists and others. In his chapter, “Process Journalism and Responsible Communication: Establishing Real-Time Reporting Practices That Defend against Defamation,” Tim Currie also addresses considerations specific to the law of defamation, and arrives at a decidedly optimistic conclusion. Currie posits that real-time reporting via social media – a key characteristic of news in the digital sphere – may not be as vulnerable to claims of defamation as other commentators have previously suggested. In outlining how journalists practising real-time reporting – also known as “process journalism” – can better inoculate themselves from libel actions, Currie draws heavily on the seminal Supreme Court of Canada judgment in Grant v. Torstar,4 and applies the principles elucidated in that case to the type of incremental reporting that, in recent years, has become standard operating procedure for many journalists. The final chapter in part one – a case study exploring the legal and public battles surrounding Quebec’s now-defunct CHOI-FM – effectively presents a necessary rejoinder to many of the chapters in this collection: What limits should a democratic society place on free expression? Should we – and, if so, how do we – draw a line between expressive freedom and hate speech? Does it matter if that hate speech exists, at least in part, to bolster commercial interests, an area considered peripheral to the core of free expression? In “Freedom of Expression, Entertainment, Hate Speech, and Defamation: Where Do We Draw the Line?” Anne-Marie Gingras calls on us to consider the content of an expressive utterance, an approach that is commonly opposed by some free expression proponents, who consistently advocate a “content-neutral” approach to the adjudication of s. 2(b) disputes. Gingras’s thoughtful approach articulates an inherent tension that underpins most freedom of expression debates. Part Two: Press Freedom and Court Processes If one venue were to be singled out as fertile ground for press freedom battles, it would be the courtroom – and not just because of the key

6  Lisa Taylor

press access challenges discussed in this collection that were adjudicated by courts. Rather, journalists have long fought for full and meaningful access to the courtroom, with limited success. Despite the fact that openness is the presumptive starting point for Canadian courts, journalists are often thwarted in their efforts to access and disseminate information related to judicial processes. The second part of the collection examines a range of challenges faced by journalists seeking to report on court and quasi-judicial proceedings, starting with a chapter written by Daniel Henry, a leading Canadian media lawyer who was counsel to the Canadian Broadcasting Corporation for more than three decades. In that time, the CBC was on the front lines of many pivotal legal challenges that helped define the ambit of media access to the courts. In his chapter, “Free Expression at Thirty: The Search for Respect,” Henry chronicles many of those battles, tracing access issues from both the pre- and post-Charter eras, and makes a compelling argument that increased media scrutiny of the courts has the power to improve the administration of justice for all Canadians. Henry’s chronicling of key media access cases does, of course, include reference to Dagenais v. CBC,5 the Supreme Court of Canada case standing for the proposition that an accused person’s fair trial rights do not automatically trump the media’s Charter rights. Dagenais, along with the Court’s decision in R. v. Mentuck,6 form the basis of the Dagenais-Mentuck test, which asserts that, in order to justify any judicially imposed discretionary publication ban under the Charter, there must be clear evidence that such a limit is necessary to prevent real harm to an accused person’s fair trial interests. Underpinning this balancing of rights is a commonly held, intuitive belief that any negative pre-trial publicity will almost certainly prejudice a jury against an accused. The establishment of the Dagenais-Mentuck test was vitally important to press freedom, as was clearly evidenced by subsequent challenges to discretionary publication bans; that being said, discretionary publication bans are still considered necessary to protect fair trial rights, as Ryder Gilliland points out in his chapter, “Has Dagenais-Mentuck Seen Its High-Water Mark?” Gilliland traces a series of cases in which discretionary bans have been imposed, despite the prima facie breach of the media’s Charter rights, and concludes by calling on the Supreme Court of Canada “to address head-on the difficult question of defining what puts fair trial interests at risk to the extent that a publication ban is truly necessary to protect those fair trial interests.”7

Press Freedom in Canada  7

Another type of publication ban commonly ordered in trials, and widely assumed to be in the best interests of the administration of justice, is the publication ban on the identity of a sexual assault complainant; this assumption is one of my core areas of research, and one that I interrogate in my chapter, “How the Criminal Code ‘Protects’ Sexual Assault Complainants from Themselves and Constrains Their Participation in the News Media.” My work on this front is not intended to suggest that those who desire such a ban should be denied the protection it affords; rather, like Gilliland, my preoccupation is with the intuitive (read: not evidence-based) belief that is at the core of the wide application of this law. I also address the paternalism that is inherent in this ban, given that it, at times, negates sexual assault complainants’ agency and self-determination and may actually impede their healing and ultimate emotional well-being. Part two of the collection concludes with a chapter by a journalist who was determined to fully and effectively cover court proceedings in a small community despite the routine, Charter-violating indifference and opposition he faces from other participants in the justice system. “Must News Reporters Be Guerilla Lawyers to Protect Their Rights? Covering the Canadian Justice System in Small Communities” is Robert Koopmans’s dispatch from the courtrooms of Kamloops, British Columbia, where discretionary publication bans were often sought for reasons that suited the interest of one of the parties to the court proceeding but not the public interest. Lawyers asked for bans to protect the names of victims and witnesses, or to keep specific kinds of information from the public. Koopmans brings us back again to the Dagenais-Mentuck test. He explains that, like so many other press freedom advocates, he expected that Dagenais-Mentuck would effectively end the granting of bans that offended the Charter. In fact, it did – Koopmans did witness a significant decrease in the number of unconstitutional bans – but only after he started acting as his own media lawyer. Part Three: Press Freedom and Institutional Secrecy Part three takes us beyond the confines of the courtroom to look at a category of impediments to press freedom that has significant implications for news organizations’ ability to provide citizens with information to enhance their public participation: access-to-information requests. In “Freedom of Information: How Accountability to the Public Is Denied,” Fred Vallance-Jones provides an overview of provincial

8  Lisa Taylor

and federal access to information regimes, chronicling examples of ways in which the troubling realities of the access process – fees, delays, and even outright interference by officials – fall far short of the lofty, optimistic spirit of access legislation. These problems are not just manifest at the provincial and federal level; access legislation guides the disclosure of information by municipalities as well, where those familiar with the system see problems consistent with those described by Vallance-Jones. In “Municipal Access to Information, Delays, and Denials: An Insider’s View,” Suzanne Craig, a former municipal director of access and privacy and current municipal integrity commissioner, offers an insightful perspective on the challenges seemingly inherent in access processes. Craig acknowledges the range of impediments to access, which she attributes to a system that is under-resourced at every turn, one that needs increased funding, better systems, and improved staff training to be able to respond to requests in an appropriate, timely fashion. Given her “insider” status, Craig’s frank assessment of the system and recommendations to resolve its chronic issues is a significant contribution to the discourse. As both Craig and Vallance-Jones make clear, entrenched institutional secrecy represents a formidable obstacle to free expression – formidable, but not unassailable, despite the assertions we have heard in recent times in the context of Twitter’s use as a tool of democracy. In “Unfettered Social Media versus Government Censorship: Mona Eltahawy’s Twitter Escape as a Test Case for Press Freedom,” Gavin Adamson does not simply herald social media’s democracy-enhancing function; he tempers widespread, perhaps guileless, excitement about social media’s freedom-enhancing potential by enumerating the ways in which the state can temper or even sidestep completely the reach of the social sphere. He observes that, through social media, information can spread via Twitter quickly and widely with little or no aid from traditional media. On the other hand, those messages, and their effect on the state, are limited in the same way that traditional media are: by the laws and media culture in the country where the user lives. Twitter is subject to surveillance and censorship in some authoritarian states and completely banned in others. Businesses such as Facebook and Twitter that own the social media technology regularly cooperate with censoring authorities in some of the countries in which they operate.8

There is widespread (and perhaps unduly credulous) acceptance of the notion that social media is the true media of the masses, whereas it

Press Freedom in Canada  9

seems that citizens often lose sight of the fact that working journalists exercise their craft in furtherance of public – not personal – interest. In that regard, media requests for access to information are distinct from those made by other members of the public in that a media request for information is the exercise of the media’s public function in society, in which journalists act as a surrogate for the general public. So what happens when a media request for information is blocked or rejected? How do journalists convey these developments to the public, in whose name they are – ostensibly – acting? In “Media Whining or Democratic Crisis? How Institutional Secrecy Is Contextualized in National Newspapers,” Bruce Gillespie explores the issue in a novel fashion. Gillespie analyses how coverage of the Harper government’s actions and attitudes towards journalists was framed by journalists’ reporting on access challenges. It is no secret that the Harper government was not media-friendly; the type of access to Cabinet ministers and government staff that was once routine for journalists became rare during Prime Minister Harper’s time in office, a sweeping shift that twice earned the Harper government the Canadian Association of Journalists’ Code of Silence Award, a dubious honour bestowed upon Canada’s “most secretive government or publicly-funded agency.”9 Gillespie acknowledges the myriad ways, and the degree to which, the Harper government shut out members of the news media; he also observes that, given the media’s role as surrogate for the public, “the democratic freedoms accorded to journalists under s. 2(b) of the Canadian Charter of Rights and Freedoms can be seen as an extension of the freedoms accorded to all citizens.”10 However, he takes issue with the language journalists use – or fail to use – to report on the access impediments they face, criticizing journalists for presenting the problem “in an us-versus-them manner that personalizes the issue and pits journalists against the Harper government without clearly articulating why the public should be concerned about the federal government’s lack of openness and transparency,” and encourages journalists to reframe stories that detail the Harper government’s roadblocks to access. Part Four: Press Freedom and the Charter Every chapter in this collection, to a greater or lesser degree, draws from, reflects on, and is informed by the Charter of Rights and Freedoms; in this final part, however, the role of the Charter in defining the scope of press freedom is the primary focus of two insightful chapters. In the

10  Lisa Taylor

first, Jamie Cameron traces section 2(b) jurisprudence, noting apparent judicial hesitance to define a right to press freedom separate and distinct from the more general right of expressive freedom. In “Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012,” Cameron parses 2(b)’s guarantee, and questions the Supreme Court of Canada’s apparent hesitance to distinguish press freedom from the broader expressive freedoms guaranteed by section 2(b): It is puzzling that there have been only a few Supreme Court decisions on the press and troubling that it remains uncertain whether freedom of the press is an independent entitlement, with distinctive content, or is subsumed in expressive freedom … At key moments in s. 2(b)’s formative period, the Court not only refused to grant this core function constitutional status, but in so doing skirted s. 2(b) altogether. Engaging the guarantee is an obvious first step in granting the press protection under the Charter.11

Cameron concludes by calling on the Supreme Court to explicitly afford constitutional protection to the journalistic news-gathering process under s. 2(b) of the Charter (as opposed to under another section of the Charter or under the common law). Even as she does so, however, Cameron acknowledges the practical challenge inherent in attempting to distinguish journalism professionals from “an undifferentiated group who may exercise their right of expressive freedom in ways that overlap with, mimic or claim to engage a press function.”12 Or, to put it another way, it may be that the necessary conditions precedent to establishing distinct constitutional protection for news gathering – the establishment of a constitutional concept of “the press” – have become a practical impossibility, given the blurring of the lines between journalism professionals and citizens who, at times, may function in a manner markedly similar to those institutional and professional journalists. These are provocative, challenging, nuanced questions; equally provocative is the question posited by James Allan in his chapter, “The View from Down Under: Freedom of the Press in Canada,” in which the author queries whether the enactment of the Charter was even necessary to achieve the press freedoms we currently enjoy. Allan contextualizes this question by enumerating the many ways in which Canada and Australia are similar – in history, geography, and political structure – but for the fact that, while Canada has the Charter, Australia does not have any national bill of rights whatsoever. Allan compares and contrasts Canadian and Australian protection for free expression vis-à-vis hate speech, defamation, and press freedom, before concluding that

Press Freedom in Canada  11

the Charter has not necessarily changed anything on the freedom-ofexpression front: “Put more bluntly, bill-of-rights-lacking Australia does every bit as well as Charter-dominated Canada in terms of defamation law. Precisely the same goes for hate speech laws as they relate to freedom of the press … Canada’s entrenched Charter of Rights and Freedoms adds nothing to freedom of the press.”13 His thesis, while perplexing – perhaps even unsettling for those of us who view the Charter as a profound legislative achievement – is inherently interesting, given that Allan essentially asks us to conceive of a Canada absent the Charter. It is a challenging theory, and not a tremendously uplifting conclusion: What if the Charter is actually peripheral to the development and enhancement of press freedom? Could it be that much of the rhetoric surrounding the Charter is tantamount to a preoccupation with a false idol? It is a difficult question, and Allan’s argument is very persuasive – regardless of whether one likes it. This collection’s stirring conclusion, written by Ivor Shapiro, asks those of us who care about press freedom to take action, as evidenced by the title, “Use It or Lose It: Do Canadians Deserve Press Freedom?” Shapiro offers a specific plan on how to strengthen societal commitment to press freedom, and, as did Gillespie in “Media Whining or Democratic Crisis?” Shapiro admonishes journalists to make efforts to help their audiences engage with and appreciate the societal value of a free press. Perhaps because of how journalists tend to frame access issues, or perhaps because of misrepresentation of the issues by those who are opposed to press freedoms, freedom of the press is, all too often, seen as a concern of just the press. But it seems many Canadians don’t see it that way, which is not to suggest that indifference or even opposition to press freedom is uniquely Canadian – a recent survey by the Newseum Institute’s First Amendment Center in Nashville, Tennessee, found that one-third of Americans think the First Amendment goes too far in protecting freedom of the press and other rights.14 Given those attitudes, it is incumbent upon us to make clear the degree to which press freedom is about the right of the public to receive information from the press, and that, while the actual rights are extended to the press, it is merely a means to that end. What is at stake is the public’s access to information, which is required if we are to participate in society; as the economist and Nobel laureate Amartya Sen argues, “no substantial famine has ever occurred in any independent and democratic country with a relatively free press.”15 This is, of course, because journalists would sound the alarm, hold those in power to account, and seek to answer the question “Why?”

12  Lisa Taylor

This collection, I hope, will inspire you to sound the alarm. These chapters contain recommendations for strengthening press freedom and free expression in many spheres, from conventional newsrooms and courtrooms to the digital public sphere – and, they will, I believe, give those of us committed to a free press the information we require to refocus our efforts, and the spirit we will need to sustain us as we work to enhance press freedom. NOTES 1 Quoted in A.G. (Nova Scotia) v. MacIntrye, [1982] 1 S.C.R. 175 at 183, per Dickson J. (as he then was). 2 McLachlin J. (as she then was) (dissenting) in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421. 3 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at 876. 4 Grant v. Torstar Corp., [2009] 3 S.C.R. 640. 5 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. 6 R. v. Mentuck, [2001] 3 S.C.R. 442. 7 See page 130 in this volume. 8 See page 182 in this volume. 9 Hugo Rodrigues, “Harper Government Wins Code of Silence Award, Again,” Canadian Association of Journalists, 28 April 2012, http://www. caj.ca/harper-government-wins-code-of-silence-award-again/. More recently, in the days leading up to the October 2015 federal election, Canadian Journalists for Free Expression released its Free Expression Report Card, in which it gave the Conservative Party of Canada a D– for its “weak record of protecting the public’s right to know,” 15 October 2015, http://www.cjfe.org/resources/features/ free-expression-report-card-2015-federal-election-edition. 10 See page 187 in this volume. 11 See page 202 in this volume. 12 See page 214 in this volume. 13 See page 230 in this volume. 14 Newseum Institute’s First Amendment Center, The State of the First Amendment: 2014, retrieved 15 January 2015, from http://www.newseum. org/wp-content/uploads/2014/08/State-of-the-First-Amendment-2014report-06-24-14.pdf. 15 Amartya Sen, “Democracy as a Universal Value,” Journal of Democracy 10, no. 3 (1999): 7–8.

PART ONE

•

Press Freedom and Internal Pressures

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1 The Real Danger to Press Freedom tony burman

The debate about press freedom in the twenty-first century is often high-minded and stirring. At its core is the complex relationship between politics and journalism, reflecting the heartbeat of a modern democracy: politics in its noblest form empowers citizens to shape their societies in the public interest, and journalism in its noblest form ensures this happens in a fair, open, and accountable way. Surely, protecting the integrity of the two is why defending press freedom from external interference is so essential. But it is not that simple. What about the issue of internal media self-censorship? Where does the selfserving behaviour of journalists and their media executives – often done for questionable political or commercial motives in the dead of night with no one watching – fit in with the sweeping, soaring narrative of an evolving democracy where freedom of speech and diversity of viewpoints are cherished? Yes, in this hallowed context, media selfcensorship can appear very grubby, because it often is very grubby, and is seen as such by the wider public. By reinforcing a growing public belief that the news media cannot be trusted, self-serving media self-censorship encourages and empowers external forces in society – whether from government, the courts, or special interest groups – to curtail press freedom in overt and covert ways. For the media, I believe this is becoming a self-inflicted and grievous wound, and many essays in this volume detail this curtailment. Robert Koopmans and Daniel Henry, in their respective essays, “Must News Reporters Become Guerilla Lawyers to Protect Their Rights? Covering the Canadian Justice System in Small Communities” and “Free Expression at Thirty: The Search for Respect,” outline how judges impose publication bans in many situations contrary

16  Tony Burman

to well-established case law.1 Fred Vallance-Jones and Suzanne Craig, in their pieces, “Freedom of Information: How Accountability to the Public Is Denied” and “Municipal Access to Information, Delays, and Denials: An Insider’s View,” discuss how freedom-of-information legislation is sometimes thwarted by politicians.2 Self-Censorship George Orwell once wrote, “If liberty means anything at all, it means the right to tell people what they do not want to hear.”3 But how the media exercise that right is another question. Irresponsible media selfcensorship is not always easy to detect. The dictionary definitions of “self-censorship” are vague: “the exercising of control over what one says and does, especially to avoid criticism,”4 or “control of what you say or do in order to avoid annoying or offending others, but without being told officially that such control is necessary.”5 But how do you assess what is in one’s mind when such a decision is made? In journalism, that can be either a decision to publish or broadcast, or a decision not to. Either decision can be made in the public’s interest or, conversely, for nefarious corporate or political reasons that run counter to the public will and an audience’s interests. This is certainly not easy to determine. A decision by a journalist to withhold information may be due to various reasons that are neither nefarious nor dishonourable. A particular focus of a story can dictate what information is included, or left out. A lack of access to information or credible sources may also be a factor. Regardless of their reasons, these decisions merit public scrutiny and – if found wanting – public accountability. In 1922, distinguished American journalist Walter Lippmann wrote that the news media should be “like the beam of a searchlight that moves restlessly about, bringing one episode and then another out of darkness into vision.”6 But where do the media direct that “searchlight,” and when do they turn it on and turn it off – and why? With those questions in mind, let me celebrate some media self-censorship – even exult in it, if only for a moment – because I confess that, like all professional journalists, I have been a serial self-censorer all of my career, and a proud one at that. So let me count the ways: • In September 2005, a Danish newspaper published twelve cartoons of the Prophet Muhammad that were regarded by Muslims, and

The Real Danger to Press Freedom  17

many others, as offensive and demeaning. Violent protests engulfed the Middle East and Europe several months later when they were reprinted by a handful of European newspapers. I was editor-inchief of CBC News at the time, and in our extensive coverage of the controversy, we decided not to show the actual cartoons. In a column for the CBC News website in February 2006, which generated hundreds of responses, I wrote, “We felt that we could easily describe the drawings in simple and clear English without actually showing them … Why should we insult and upset an important part of our audience for absolutely no public value? We wouldn’t have done that if it involved overt examples of racism, or antiSemitism or libel.”7 • In April 2007, a senior student at the Virginia Tech institute went on a rampage in the deadliest shooting incident by a single gunman in US history. The tragedy occurred shortly after similar shootings at Montreal’s Dawson College in September 2006 and other US college campuses. Before his death, the mentally disturbed Virginia Tech killer prepared a multimedia “press kit” that glorified his actions in dramatic and ghoulish ways. News organizations that broadcast excerpts of the killer’s deranged message were widely condemned. At the CBC, we made the decision to report the essence of what the killer was saying but not broadcast any video or audio from his bizarre collection. In a column on the CBC News website at the time, I explained: Do you remember when airplane hijackings in the 1970s and 1980s were common events? … These hijackings gradually dwindled when people – including those in the news media – realized that giving them little publicity would reduce them. And they were right. Do you remember when outrageous acts of pedophilia, pornography, and racism were rampant in our TV and radio newscasts and newspapers? Of course you don’t. That never happened. Most professional journalists long ago concluded that this type of coverage … would surely serve only to legitimize and encourage this kind of garbage. And that would be wrong, wouldn’t it?8

As journalists and as news organizations, our daily editorial choices define who we are. That is, after all, what matters most to the public. They could not care less about our aspirations or rhetoric, about our promises or special pleading. In the end, what matters most to the public are our actions as journalists and news organizations – what we

18  Tony Burman

freely choose to cover and emphasize, what we freely choose to ignore or downplay, how we do it, and why. And it is in this crucial area where journalists are experiencing a growing credibility crisis. Although most journalists and their bosses are still probably loved by their children, all bets beyond that are off. In most industrialized countries, the credibility of journalism is taking a battering. A 2012 Gallup Poll in the United States showed that 60 per cent of Americans said they trust the news media “not very much” or “not at all.”9 In a 2011 survey, the Pew Research Center reported that only 25 per cent of Americans believed the news media “get the facts straight.”10 Instead, 80 per cent believed journalists are “often influenced by powerful people and organizations.” In Britain, where a phone-hacking scandal involving journalists engulfed tabloid newspapers owned by Rupert Murdoch, the mood is even more dire. In a poll in February 2013, only 21 per cent of Britons indicated they trust journalists to tell the truth.11 This mood appears contagious. In October 2011, an Ipsos Reid poll conducted on behalf of the Canadian Journalism Foundation indicated that 40 per cent of Canadians believe that incidents such as phone hacking and paying for tips are happening in the Canadian media.12 Close to four in ten people think this happens “all the time,” while a majority (53 per cent) thinks it happens “some of the time.”13 If this were the case, these acts would be breaking Canadian law, but there is absolutely no evidence that they are occurring in Canada. But what is remarkable from this poll is that many Canadians seem to believe they are. A major study of the American news media in March 2013 portrays a profoundly changing media landscape. The Pew Research Center’s annual State of the News Media Report suggests that a continuing erosion of news reporting resources is being matched by increasing opportunities for those in politics, government, and the corporate world to circumvent traditional news media outlets and get their messages directly to the public.14 The report reveals that in local TV, a mix of sports, weather, and traffic now accounts for 40 per cent of the content produced for newscasts.15 On CNN, which has traditionally focused on conventional newsgathering, actual news items were cut nearly in half between 2007 and 2012. The report’s conclusions were stark: “This adds up to a news industry that is more undermanned and unprepared to uncover stories, dig deep into emerging ones or to question information put into its hands.”16 The competitive pressures in today’s media are changing what journalists themselves are prepared to provide their audiences, as Leigh

The Real Danger to Press Freedom  19

Felesky explores in her chapter in this volume, “Exploring How Emerging Digital Business Models and Journalistic Innovation May Influence Freedom of the Press.”17 The end result is that self-censorship in different ways is commonplace in the news media. That was the conclusion of a major survey of nearly three hundred journalists and news executives by the Pew Research Center and the Columbia Journalism Review.18 The report revealed that one-quarter of local and national journalists say “they have purposely avoided newsworthy stories” while “nearly as many acknowledge they have softened the tone of stories to benefit the interests of their news organizations.”19 The report goes on to explore the principal causes of self-censorship: “More than a third say that news that would hurt the financial interests of a news organization often or sometimes goes unreported.”20 In the public debate after the Danish cartoons controversy in 2006, and the uproar in 2007 over the videos of the Virginia Tech killer, the holy principles of “free expression” and “the public’s right to know” were widely invoked, particularly by those well-resourced, multimillion-dollar news organizations that had broadcast or published the material. What received little notice was the fact that these same outlets – by cutting back on news bureaus and reducing the number of journalists covering stories at home and abroad – had been effectively “censoring” stories from entire regions of their country and the world each and every day without any sense of guilt. In this self-censored media environment, where does the public’s genuine “right to know” fit in?21 In February 2007, shortly before his death, former CBS news anchor Walter Cronkite warned that pressures from media companies to generate ever-greater profits threaten the very freedom the United States was built upon.22 No longer could journalists count on their employers to provide the necessary resources, he said, “to expose truths that powerful politicians and special interests often did not want exposed.”23 A Case Study: Post-9/11 Self-Censorship in the Canadian Media In terms of global affairs, the most egregious example of media selfcensorship in recent years, in my view, was the aftermath of the 9/11 attacks in 2001. In March 2013 – the tenth anniversary of the American and British invasion of Iraq – it was revealing how the major American news organizations displayed so little self-criticism about their shabby role in the period leading up to the war. Looking back now, it is obvious that the Bush administration was determined to use the horrific

20  Tony Burman

events of 11 September 2001 as an excuse to topple the Iraqi regime of Saddam Hussein, even though there was no evidence he had anything to do with 9/11. Led by the New York Times and the Washington Post, America’s broadcast and print media – with only a few exceptions – became loyal soldiers in the fight against Saddam. Bill Keller, a former executive editor of the Times, was an op-ed columnist and a supporter of the Iraq invasion at the time, a view he now regrets. In an interview with the MSNBC news network in March 2013, Keller reflected on that period: There was a mainstream view that this [threat] was real. Add to that the competitive urge that motivates newspaper reporters – the desire to get stories first, to get stories exclusively, to get stories on the front page. All of those came into play. In fact, the Times wrote a number of really bad stories, inadequately sourced, unskeptical stories – particularly about Saddam’s weapons capabilities – and those stories were awarded with lavish front page display.24

In the lead-up to the Iraq invasion, the mood in Canada was different. Public opinion polls indicated that a majority of Canadians opposed direct military action against Saddam Hussein. Jean Chrétien, the Liberal prime minister at the time, shared that view. Canada’s opposition leader, Stephen Harper, who was to become prime minister three years later, felt differently. He wrote in the Wall Street Journal that it was “manifestly in the national interest of Canada” to participate in the invasion, declaring that the government’s decision “is a serious mistake … The Canadian Alliance – the official opposition in Parliament – supports the American and British position because we share their concerns, their worries about the future if Iraq is left unattended to, and their fundamental vision of civilization and human values.”25 For their part, the Canadian media were divided, although more sceptical than their American counterparts. But Canada’s conservative press, led by the National Post, expressed support for the Iraq invasion. I was head of CBC News and Current Affairs at the time, and I recall the unrelenting criticism from the National Post that Canadian news organizations such as the CBC were virulently “anti-American” by questioning the US military effort in Iraq. If Canada resisted a role in Iraq, it had no such qualms about the conflict in Afghanistan. It supported American and NATO efforts to pursue Osama bin Laden in Afghanistan and rid the country of the

The Real Danger to Press Freedom  21

Taliban. When first elected in 2006, the Harper government in particular saw opportunity in Afghanistan. It discarded Canada’s historic role as a “peacekeeping nation” and replaced it with a new self-image, Canada as a “warrior nation.” This transformation was well portrayed by Canadian journalist Noah Richler in his 2012 book, What We Talk about When We Talk about War. Richler was scathing about how much of the Canadian media, which were largely supportive of the mission, bought into this new self-image of Canada: “War makes reporters feel useful, that their job and their broadcasts might actually be helping. War is the once-in-a-lifetime opportunity that makes careers and reputations. It offers the academic and the stay-at-home columnist the opportunity to opine on matters of grave importance.”26 In his book, Richler was particularly critical of the way Canadian television portrayed Canada’s role in the Afghanistan conflict, calling it “little more than a channel of propaganda.” He said CBC’s senior correspondent Brian Stewart was an exception. I recently asked Stewart whether he felt that some in the Canadian media had pulled their punches in their coverage of Canada’s role, and this was his reply: I believe one of the biggest acts of self-censorship was the media reluctance to examine the whole “selling of the war” by Canada’s Defence headquarters, which used the “Support Our Troops” movement to essentially crush critical comment on the war. This reached its summit at Don Cherry’s desk on Hockey Night in Canada. The atmosphere in Ottawa became such – at a time when NDP leader Jack Layton could be denounced by a Tory in Parliament as “Taliban Jack” for dare suggesting peace talks with the Taliban – that much of the media showed little taste for pursuing stories that brought controversial attention to issues such as treatment of detainees (i.e., torture) or confusion over the purpose of the mission.27

The 9/11 attacks and the subsequent invasions of Afghanistan and Iraq as part of the US “war on terror” triggered aftershocks well beyond the borders of the affected countries. A central flashpoint was the always-explosive Israeli-Palestinian conflict. The 9/11 attacks occurred towards the beginning of a period of intense Palestinian-Israeli violence, known as the Second Intifada, or the second Palestinian uprising. This created heightened anxiety within Israel, and among supporters of Israel in North America and Europe, about the country’s security. Aware of that, the government of Israel worked closely and successfully with the Bush administration in Washington to align Israel’s own

22  Tony Burman

national security interests with the post-9/11 American “war on terror.” But for this notion to be accepted throughout North America and Europe, it required an intensive pressure campaign on the media and policymakers by those interest groups and prominent individuals who had traditionally lobbied on behalf of the State of Israel. Following 9/11, the media’s coverage of the deepening IsraeliPalestinian violence took on a new prominence. Major news organizations such as the BBC, the New York Times, and, in Canada, the CBC were assailed by pro-Israeli groups for allegedly supporting the Palestinians in coverage of the Second Intifada. Accusations of “anti-Israeli bias” and even “anti-Semitism” dominated the discourse, and few news outlets escaped the criticism. In Canada, the Israeli lobby at the time had the full-throated support of the late Izzy Asper, founder of the country’s largest media empire, CanWest Global Communications, which then owned the Southam chain of daily newspapers, including the flagship National Post, as well as the television stations in the Global network. Asper’s aggressive support of Israel constituted an editorial framework about the Israeli-Palestinian conflict that he wanted to be reflected in all of his media assets, particularly the National Post.28 This approach created turmoil in many of the Asper newspapers. Shortly after 9/11, CanWest decided to publish national editorials that all its daily newspapers were required to run. Those regarding the Middle East were stridently pro-Israel. Local newspapers were not allowed to publish dissenting editorials or columns. The controversy exploded in January 2002 when Stephen Kimber, a columnist with the Halifax Daily News, resigned over what he regarded as censorship by the Asper family, who owned the paper. A few weeks earlier, Kimber had written a column critical of Israel’s response to acts of terror and concluded that George Bush’s “war on terror” would also fail. In the published version, this comment was deleted from his column. Upset at the many other examples of censorship by the Aspers in their papers across the country, Kimber then wrote a column calling on readers to demand that the federal government create a public inquiry into the “increasingly dangerous” concentration of ownership of Canada’s news media, stating that the Aspers “appear to consider their newspapers not only as profit centres and promotional vehicles for their television network, but also as private, personal pulpits from which to express their views.”29 Kimber knew the column would not be published and that it would result in his resignation. He was right. But even though the ensuing

The Real Danger to Press Freedom  23

uproar gained national and even international attention, triggering headlines in Canada, Australia, and the United States, this did not deter the Aspers. One of their favourite targets was CBC Television and its long-time Middle East correspondent, Neil Macdonald. As head of CBC News and Current Affairs at the time, I had to spend considerable time responding to the wild but often detailed criticisms coming from Asper’s National Post and other pro-Israeli interests. Invariably, their charges proved inaccurate or distorted, but they attracted attention by being amplified in the noisy echo chamber of Canada’s Israeli lobby and conservative press. From the beginning, my approach was to be aggressive and proactive in defending CBC’s journalism in general, and Macdonald in particular, against these slurs. I regard Macdonald as a brilliant correspondent who has challenged the prevailing orthodoxy at every stage of his reporting career, whether in Ottawa, Washington, or Jerusalem. His reporting can be controversial, but it is always fairminded. As the debate about his Middle East coverage flared, we tried to keep him out of the public spotlight as much as possible so that his on-air reporting, ultimately, would be the CBC’s most effective defence. But that was not easy. In September 2003, Leonard Asper, the head of CanWest Global Communications at the time and son of founder Izzy Asper, gave a speech distorting Macdonald’s reporting of Lebanon’s Hezbollah movement and accused him of exhibiting “hints of antiSemitism.” It was an inaccurate and scurrilous attack, and we allowed Macdonald to respond to Asper directly in a letter to the Globe and Mail. This is part of what he wrote in October 2003: “I’ve remained silent for the past year as the Aspers and their editorials have relentlessly attacked me and the CBC, but enough is enough. This latest salvo is inaccurate, loathsome, and defamatory. It merits an apology.”30 The post-9/11 media aftershocks in Canada, the United States, and beyond were powerful and long-lasting. The pretext of “national security” was used to promote policies that otherwise would not have obtained public support. It was used to intimidate journalists and pressure media bosses to fall into line. And, too often, it succeeded. As I reflect back on the CBC’s battles with the Aspers and the Israeli lobby, I believe the CBC emerged from them with our journalism – and integrity – intact. But as the person ultimately responsible at the time, I would think that, wouldn’t I? In truth, I was aware that, from the reporting front line, the landscape could appear a bit more uneven. I recently asked Neil Macdonald, who has been the CBC’s senior Washington

24  Tony Burman

correspondent for the past ten years, to reflect back on those days and this was his reply: For the most part, CBC did not buckle to the pro-Israel lobby during the controversies of the 2000s. But that is not to say the relentless pressure did not have an effect. A decision was taken that any story regarding Israel was to be “red-flagged” and treated with extra caution. Editors and reporters were left to decide for themselves what that meant. In my view, the same level of rigour and caution should be exercised no matter what the topic, but then I am not a news manager. Ultimately, some reporters and editors simply decided the subject was radioactive, and was better avoided. And of course, the public grew fatigued with the story, and other topics ascended. Since those days, CBC has educated reporters on the subject, and written a rigorous style guide on the subject. But ultimately, the lesson was clear: Organized, relentless pressure works on news organizations. CBC, being a public broadcaster, is probably more susceptible than others, but most news organizations felt the heat, and dealt with it in their own fashion. To some extent, at least, the pro-Israel lobby succeeded.31

I take Macdonald’s reference to Israeli stories on the CBC being “redflagged” and “treated with extra caution” as criticism of CBC senior news management, and I respect that. He believes that “the same level of rigour and caution should be exercised no matter what the topic, but then I am not a news manager.” I understand his view, but, as he notes, Macdonald is not a news manager and I was – for many years. Not surprisingly, my perspective is different; I believe it is a fantasy to think that every story can receive the “same rigour and caution.” We need to make priorities. Stories that are more important, or more sensitive or complex, or higher-profile and subject to greater public or political scrutiny should inevitably be treated with greater care. If you blow the small ones, you live again; if you blow the big ones, you don’t deserve to. I realize that, in this case, this may have increased the stress level among CBC reporters and desk editors, but such is life in the big leagues. No one said it would be easy. Looking back, it is difficult to assess precisely what impact this campaign by Asper and the National Post against the CBC had on the public consciousness during those years. How many of these slurs stuck to the CBC among the general population? Beyond the noise, I suspect not many. In January 2003, the CBC commissioned a national poll with the Ekos firm about whether there was bias in media reporting of the

The Real Danger to Press Freedom  25

Middle East.32 According to this poll, Canadians believed there was “moderate but not excessive bias” in the national media’s reporting on the Middle East, but that the CBC was seen as “significantly less biased” than the rest of the national media. Even more revealing, the poll showed that the media “bias” perceived by Canadians tended “to lean to a pro-Israel rather than a pro-Arab slant.”33 Overcoming Self-Censorship Ironic though it may be, there is no one better suited to protecting the Canadian public from internal self-censorship than journalists themselves. Every country is different, and media self-censorship is a universal challenge, but some issues are particularly evident in Canada. When American media critic A.J. Liebling wrote in the New Yorker in 1960 that “freedom of the press is guaranteed only to those who own one,”34 he wasn’t referring to Canada, but he could have been. The ownership of Canadian media is in the hands of a small number of companies, and for decades this lack of diversity in Canada has raised alarms about the corrosive impact that media monopolies have on press freedom. A report in 2012 by the Boston-based Analysis Group revealed that Canada has the most concentrated TV industry ownership of any industrialized country.35 In percentage terms, Canada’s degree of concentration is more than twice that of the second-place country, Japan, and more than three times that of the United States. Given the reality of self-censorship and the nature of Canada’s distinct media landscape, what can journalists and their bosses do to mitigate the insidious effects of media self-censorship in a way that would enhance their standing with the public? Let me count the ways:

Proactivism News organizations in Canada should be far more proactive in creating a national body for strong, independent media self-regulation, such as a national press council. The recent revelations of phone hacking by Britain’s tabloid press have led to an urgent soul-searching in that country over journalistic ethics. But it has been a divisive debate. Britain’s news media have largely resisted the government’s proposals for an independent system of media self-regulation that would have power over publishers to impose fines and order apologies. Some Canadian journalists have

26  Tony Burman

argued that such a system is also unnecessary in Canada, particularly since no similar phone-hacking scandal has occurred.36 I disagree. The credibility of Canadian journalism among the general public is also under siege in Canada, and there are no provisions in place to give Canadians comfort if – or, as I would argue, when – a homegrown news media scandal does erupt. Provincial press councils in Canada are largely floundering, if they exist at all, and few news organizations have embraced the role of “public editors” or “ombudsmen.” I share the concerns outlined in the recent report of the Ryerson Journalism Research Centre, commissioned by the organization Newspapers Canada, which represents more than eight hundred daily and community newspapers. The Ryerson study, which recommended that a national press council be considered, issued this warning: “It seems clear that the current national framework for journalistic self-regulation and selfmanaged accountability is broken in many respects ... The time has come for Canadians either to accept that the country’s system of media self-assessment is neither comprehensive nor consistently effective, or for steps to be taken to reform the system.”37

Training News organizations should place far greater emphasis on the development and training of specialist reporters to bring more depth and context to today’s journalism. In today’s media environment, journalists are becoming far outnumbered by those in government and the corporate world whose job it is to manage the media message. In a world of spin, information is power, and journalists need to be freed up to obtain that information. As former CBC and NBC senior correspondent Brian Stewart put it to me, “as Afghanistan showed so clearly that inexperience and lack of confidence contributed to the problem, a return of ‘specialist reporters’ in key areas might guard against journalists being overwhelmed by material they don’t know – as higher standards of solid fact-based reporting would be established.”38

Transparency News organizations should be far more transparent – and humble – about their practices and their flaws both with their audiences and among their colleagues.

The Real Danger to Press Freedom  27

News organizations often talk publicly about their openness, but they rarely deliver on it. The most common response to criticism is either arrogance or defensiveness if they feel their reputation is on the line. How can this be changed? Here is a recommendation from Brian Stewart: “On a daily basis, editorial story conferences should be on guard against tendencies to fall into ingrained program bias that so often sets the overall tone of “soft bias” that encourages self-censorship. If reporters know their peers and the news teams are sensitive to this issue and value professionalism, they will be much more inclined to monitor their own output for potential favouritism or animosity.”39 If an incentive is needed for reluctant news organizations, here is one from John Owen, professor of international journalism at City University in London, England, and a former head of CBC News in Canada: “If newspapers and broadcasters aren’t transparent about their own failings, then we know that social media will catch them out. However vigilant media owners are about policing internal emails, there are countless ways for disgruntled staffers or freelancers to share or leak information that then gets tweeted or posted on Facebook or LinkedIn.”40 Conclusion The most serious threats to press freedom in Canada obviously do not stem only from internal media self-censorship. There are considerable external threats and they are genuine. In spite of the Charter of Rights and Freedoms, many judges are unwilling to provide journalists with the rights that are granted to them in law, as compellingly described in this volume by Danny Henry and Robert Koopmans.41 In spite of freedom-of-information laws, many government officials and bureaucrats will often use the flimsiest excuses to deny journalists public information to which they are entitled, as Fred Vallance-Jones and Suzanne Craig highlight in their essays.42 And, in spite of assurances of “transparency,” the Harper Canadian government has made it increasingly difficult for journalists to get access to documents, politicians, and policymakers. It has created an atmosphere of virtual secrecy around its activities that is arguably more extreme than in most other democratic countries. All of these external threats must be resisted by news organizations – with force, with fearlessness, but with a laser focus on the public’s interests, not their own. However, we should never forget

28  Tony Burman

that the growing number of external threats to press freedom is not occurring in a vacuum; rather it is happening at a time when the public credibility of journalists and that of their news organizations is at an alltime low. In Canada in particular, judges, bureaucrats, and politicians have correctly sensed this, and that has provided them with an opening to undermine press freedom, sometimes inadvertently, without fear of public backlash. For this to be stopped, journalists and their bosses need first to get their own house in order so the public truly knows in whose interests they are acting. NOTES 1 See chapters 9 and 6 in this volume, respectively. 2 See chapters 10 and 11 in this volume, respectively. 3 George Orwell, “The Freedom of the Press,” Orwell’s Proposed Preface to “Animal Farm” (1943), retrieved 3 November 2014, from http://www. orwell.ru/library/novels/Animal_Farm/english/efp_go. 4 Oxford Dictionaries Online, s.v. “self-censorship,” retrieved 13 April 2013, from http://oxforddictionaries.com/definition/english/ self-censorship?q=self-censorship. 5 Cambridge Dictionaries Online, s.v. “self-censorship,” retrieved 13 April 2013, from http://dictionary.cambridge.org/dictionary/british/ self-censorship?q=self-censorship. 6 Walter Lippmann, Public Opinion (New York: Free Press, 1922). 7 Tony Burman, “Cartoons and Religion: Why CBC News Drew the Line,” CBC News, 6 February 2006. 8 Tony Burman, “A Story of Victims and Issues, Not Only the Killer,” CBC News, 19 April 2007. 9 Lymari Morales, “U.S. Distrust in Media Hits New High,” Gallup, 21 September 2012, http://www.gallup.com/poll/157589/distrust-mediahits-new-high.aspx. 10 “Press Widely Criticized, but Trusted More Than Other Information Sources, Views of News Media: 1985–2011,” Pew Research Center for the People & the Press, 22 September 2011, http://www.people-press.org/2011/09/22/ press-widely-criticized-but-trusted-more-than-other-institutions/. 11 Andrew Beaujon, “As BBC Strikes, Brits Trust Journalists Less Than Americans Do,” Poynter Institute, 18 February 2013, http://www. poynter.org/2013/as-bbc-strikes-brits-trust-journalists-less-thanamericans-do/204599/.

The Real Danger to Press Freedom  29 12 “Four in Ten Canadians Believe Media Engage in Phone Hacking,” Ipsos North America, 18 October 2011, http://www.ipsos-na.com/news-polls/ pressrelease.aspx?id=5378. 13 Ibid. 14 “The State of the News Media 2013: An Annual Report on American Journalism, Overview,” Pew Research Centre for the People and the Press, 18 March 2013, http://www.stateofthemedia.org. 15 Ibid. 16 Ibid. 17 See chapter 2 in this volume. 18 “Self-Censorship: How Often and Why,” Pew Research Centre for the People and the Press, 30 April 2000, http://www.people-press.org/2000/04/30/ self-censorship-how-often-and-why/. 19 Ibid. 20 Ibid. 21 Tony Burman, “World Perspectives: Ignoring the World at Our Peril,” in John Owen and Heather Purdey, eds., International News Reporting: Frontlines and Deadlines (London: Wiley-Blackwell, 2009), 127–43. Here I explore the implications of the dramatic cutbacks of international coverage in recent years by Western news organizations. 22 Walter Cronkite, “Media Reform: Is It Good for Journalism?” (keynote address, Columbia University School of Journalism, New York, 8 February 2007). 23 Ibid. 24 Bill Keller, “Why Didn’t Media Dig Deeper in the Rush to War?” NBC News, March 2013, MSNBC video excerpt, http://www.nbcnews.com/ video/msnbc-news/51295274#51295274. 25 Stephen Harper and Stockwell Day, “Canadians Stand with You: Letter to the Wall Street Journal,” Wall Street Journal, 28 March 2003. 26 Noah Richler, What We Talk about When We Talk about War (Fredericton, NB: Goose Lane Editions, 2012). 27 Brian Stewart (senior correspondent for CBC News, The National), in discussion with the author, April 2013. 28 Reg Whitaker, “Israel Is the New Jew: The Canadian Israeli Lobby Today,” Studies in Political Economy 74 (2004): 191–213. This is a very informative essay for background on Canada’s Israeli lobby. Professor Whitaker is Distinguished Research Professor Emeritus at York University and Adjunct Professor of Political Economy at the University of Toronto. 29 Stephen Kimber, “Canned Column: You Can’t Say That in My Newspaper,” website of Stephen Kimber, 9 September 2009, http:// stephenkimber.com/bio/journalism/canned-column/. Here

30  Tony Burman Kimber discusses the proposed column that eventually led to his resignation. 30 Neil Macdonald, letter to the editor, “Mr. Asper, You Owe Me an Apology,” Globe and Mail, 3 October 2003, http://www.friends.ca/news-item/5570. 31 Neil Macdonald (senior Washington correspondent for CBC News, The National), in discussion with the author, April 2013. 32 Ekos Research Associates, “Ekos/CBC News Sunday Poll: Bias in Middle East Media Reporting?” (presentation to CBC News, 19 January 2003), retrieved 4 November 2014, from http://www.ekospolitics.com/articles/ CBCSundayNews11.pdf. 33 Ibid. 34 A.J. Liebling, “Do You Belong in Journalism?” New Yorker, 14 May 1960. 35 Daniel Tencer, “Concentration of Media Ownership in Canada Worst in G8 for TV Industry, Study Says,” Huffington Post Canada, 13 August 2012. 36 Kathy English, “On the Canadian Road to a National Press Council: Public Editor,” Toronto Star, 10 May 2013. 37 Ivor Shapiro, Lisa Taylor, and Edward Tubb, “Press Councils in Canada: Models of Practice and Prospects for Alternatives” (report for Ryerson Journalism Research Centre, Newspapers Canada, October 2012), http:// www.scribd.com/doc/139826701/Press-Councils-Report-Final. 38 Stewart, discussion. 39 Ibid. 40 John Owen (visiting lecturer and honorary visiting professor, Department of Journalism, City University London), in discussion with the author, April 2013. 41 See Daniel Henry, “Free Expression at Thirty: The Search for Respect,” and Robert Koopmans, “Must News Reporters Be Guerilla Lawyers to Protect Their Rights? Covering the Canadian Justice System in Small Communities,” in this volume. 42 See Fred Vallance-Jones, “Freedom of Information: How Accountability to the Public Is Denied,” and Suzanne Craig, “Municipal Access to Information, Delays, and Denials: An Insider’s View,” in this volume.

2 Exploring How Emerging Digital Business Models and Journalistic Innovation May Influence Freedom of the Press leigh felesky

In the first chapter of this volume, Tony Burman highlights the overt pressures on the media to self-censor, including political lobbying and the human inclination to conform to popular opinion in times of crisis. In this chapter, I explore an insidious pressure to self-censor: the growing influence of advertisers created by the media’s digital business model. The need to create business models that support sustainable journalism and quality content has been a focus of my research. In 2000, this issue brought me face to face with ten editors of some of the largest magazines in the English-speaking world, including Harper’s Bazaar, Vogue, and InStyle. Through my research at that time I sought to make further sense of the publishing formula by exploring the relationship between advertising and editorial in mainstream women’s magazines. As I sat in the New York offices across from the tastemakers of the day, then-esteemed editors told me details of how they worked to ensure that advertising did not influence editorial in their publications. At the same time, as I dug deeper, my research showed that many of the magazines, not surprisingly, were created to attract and fulfil advertising needs. Since then, my career from editor to producer, general manager, and content marketer has been focused on building digital products that constantly evolve storytelling, journalism formats, and digital media. Through the creation and launch of mainstream digital products, I have continued to see first-hand how new business models shape journalism. Never before has discussion of these still-emerging models been more important as new journalism workflows influence mainstream digital media.

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As digital technology evolves, decision makers influenced by business, technology, and audience factors are responsible for creating approaches and determining revenue models that ultimately impact what journalists do on a daily basis. No surprise to anyone in the daily grind of the industry, some of the current, prevalent, mainstream digital business models do not support journalism as we once knew it – and, therefore, one could argue press freedom – sustainably. This is particularly true in relation to the cost-per-impression model and resulting editorial approaches that have developed. In this model, for larger sites, the cost for advertisers is often based on the cost-perthousand-impressions (CPM) model, or simply costs per impression (CPI), meaning that more views result in higher advertising revenues and, therefore, a more sustainable digital publication. The amount of traffic that articles receive, therefore, can have significant business implications for the sustainability of digital publications and portals. The current prevalent digital business model, which relies on the technical ability to carefully monitor audience numbers, has the potential to affect the content mix of digital publications and, in turn, press freedom. To meet traffic demand, journalists and/or publishers may choose to focus on high-traffic topics and to avoid stories that are more time intensive and require deeper research and audience engagement while they are busy traffic chasing. In the context of freedom of the press, journalists need to be working within a structure that allows for investigation and research on a range of topics in order to create articles that do what journalism is ultimately meant to do in a democratic society: empower the informed so that they can make the best decisions about their lives, communities (global and local), and government. Importantly, and worth noting, digital platforms in general have allowed for a democratization of voice where many citizens, not just journalists, have the opportunity to be heard, but one could argue that this is much different than journalism, which is based in research and fact checking. What follows in this chapter is a further discussion of this landscape in which I will outline the development of still-emerging digital business models, and increased competition (“Digital Development and Business Models”). The digital media industry has been evolving rapidly, making analysis a moving target, but there are current common themes worth exploring to make sense of the landscape and evolution. I will explore the advertising cost-per-impression digital business model, its impact on media operations, and how journalists and editors work

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within the model on a daily basis. I will then evaluate the limitations of the digital model in relation to journalism, as opposed to self-publishing platforms that have flourished digitally, and freedom of the press (“The Day-to-Day: Limitations of the Digital Model”) and explore possible methods that may be commercially sustainable without limiting journalistic freedom (“Tough Business Gets Tougher: Expanding Emerging Digital Business Models”). Importantly, this chapter concludes with suggestions for how journalists can take advantage of digital opportunities through innovation and work to shape new approaches that allow for strong digital journalism and experiences that are not driven by an underlying pressure to self-censor. Digital Development and Business Models The prevalent CPI, and, specifically, the CPM, digital business model was originally modelled on traditional print sales. Importantly, however, the model plays out differently in the digital space. In print, the fee generally relates to the overall number of copies distributed, and some fees may vary based on advertising placement. In the case of digital publications, each page view and click, as well as time spent on the page, can be tracked. In the print world, just knowing that people had the newspaper in their hands, and that their copies might be passed on to friends or left in a coffee shop for others to read, was sufficient to generate revenue from advertisers. In the digital world with advanced audience tracking, the reader must view the page that the advertisement lives on and, ideally, click on the advertisement. More specific measurement demonstrates the exact level of engagement from audiences, which was not measurable to the same accuracy in a traditional model. New digital monetization streams beyond advertising are being explored widely, including paywalls and syndication partnerships; however, a Columbia Journalism Review survey found that, among profitable magazine websites, 83 per cent reported advertising as their largest revenue source, and 44 per cent of that is cost-per-impression (CPI) pricing, according to the report published in March 2010.1 Given that digital advertising has been growing and was expected to be in the billions in Canada for 2014, advertising will likely continue to be an important source of revenue.2 As a result of a CPI business model, in wide-reaching mainstream media portals, the editor’s role can include a type of marketing function,

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measuring audiences by the hour, using up-to-the-minute statistical tools to track how many people visit a page and how long they stay. From experience, an editor responds to the statistics through immediate or longer-term content tweaks, such as changing a headline or photograph or reworking the lineup altogether, with the goal of increasing site traffic. Editors know the impact that the clickability of a photo can have on revenue and that traffic building is an expectation of their jobs. Well-researched, journalistically solid articles often aren’t the winners in this traffic game. Experience tells us that high-traffic articles are easily consumed and focus on lighter topics such as celebrities or weight loss. Using this model, digital journalists may be potentially limited as to the kind of content exploration available to them, based on the perceived return on investment within their organizations. In summary, the digital capability to know precise traffic patterns, combined with the CPI model, can create a precarious situation for those trying to build sustainable journalism with mainstream digital portals that attract large audiences. However, the fact that editors are not granted a model that allows them to explore a range of issues within a wide-reaching platform has the potential to threaten press freedom. For digital journalists, the pressure to produce articles that “perform” (and to produce them quickly) can collectively create a trend towards rehashing information and publishing light, must-click pieces. To truly understand the impact on freedom of the press, more research needs to be done that explores journalists’ daily tasks and decision-making influences. While chasing readers or viewers has always been a part of the business of journalism, never before has the medium allowed for such precise measurement and an ability to respond with different content so quickly. The Day-to-Day: Limitations of the Digital Model Newsroom managers, publishers, and editorial departments are aware that current digital revenue CPI models can have limitations. As a result, teams will in some cases arrange staff and workflows to compensate for the business model. The popular US-based website Gawker, for example, tried a new editorial approach in 2012. The editorial team assigned a writer on traffic duty to ensure high-traffic-driving editorial was produced, while at the same time provided an opportunity for journalists on the team to engage in other more thought-provoking projects.3 The editor explains:

Emerging Business Models and Journalistic Innovation  35 Each day, a different staff writer will be forced to break their usual routine and offer up posts they feel would garner the most traffic. While that writer struggles to find dancing cat videos and Burger King bathroom fights or any other post they feel will add those precious, precious new eyeballs, the rest of the staff will spend time on more substantive stories they may have neglected due to the rigors of scouring the internet each day to hit some imaginary quota. The writers not relegated to traffic-whoring duty will still post, just less frequently than many of them are probably used to. The purpose of this is to make it perfectly clear to the staff of Gawker (and to the readers, hopefully) that just because this is technically a “blog,” there is plenty of room for other pieces that aren’t aggregated and repackaged with block-quotes and snappy snarky snarking snark-snark shit. Those posts still have their place on the site and Gawker’s traffic is still a priority, but as we go through this molting period, it’s time to let the writers take their time and think beyond their personal news feeds. They deserve it. So do you. My hope is that while half the site is being rocked with SEO4 bomb-throws, the others will all be doing, oh … more.5

While this may be one way to do “more,” one could argue that this is also a workaround for a flawed business model. On the other hand, a document titled “The AOL Way” was leaked in 2011, showing four potential considerations for editors: “traffic potential,” “revenue/profit,” “turnaround time,” and “editorial integrity.”6 The document, which was never formally verified by the company, suggests that writers should “produce content as quickly as possible while maintaining quality.” All content according to this document is expected to be “margin positive.” Content creators need to think about the “profitability consideration” and deliver five to ten pieces of content each day. To support this approach, blogging software tools can calculate the cost of each article, including the fee to the freelancer and the ad revenue delivered from the article, based on the amount of page views. Along the same lines, according to the leaked document, site leaders are expected to have eight ideas for packages that could generate at least $1 million in revenue on hand at all times.7 This business model doesn’t just affect journalists who work at mainstream portals. The desire for traffic-generating content can have a ripple effect through syndication, affecting many more publications. Most writers and editors at digital publications are keenly aware that if an article ends up on a large portal through syndication, it will benefit

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from a large audience. Portals not surprisingly can influence editors at other publications seeking to get stories featured with related links back to their sites in order to increase traffic needed for revenue generation. Portals will feature only those third-party articles predicted to be hightraffic drivers. Traffic can be monitored on a minute-by-minute basis, and if a particular article doesn’t perform, the story will be removed or relegated to the “back page.” Given the demand to publish a high volume of content in order to keep sites fresh and search engines maximized, editors may choose to produce must-click, traffic-loving gems, as opposed to larger exploration pieces, again potentially creating a way of working and prioritizing that affects press freedom. Based on my experience, some journalists thrive in this environment, as the digital model can be extremely rewarding for those who love statistics, and for writers who want to know exactly what people want to read. Further, content can be produced quickly and made easily digestible with numerous digital tools. On the other hand, digital tracking can be terrifying for a journalist who has written on a particular beat for many years that doesn’t have a large audience. The content may still be valuable but requires a different strategy that involves attracting a smaller but more engaged audience base, something a mainstream CPI model does not measure accurately or value. Journalists who want to do investigative work may find themselves frustrated, undervalued, and lacking time in a busy digital publishing environment where volume and high traffic are valued above all else. None of this will come as a surprise to those who have worked in the digital space in the last decade. The root of the issue becomes the digital business model, which, although constantly evolving, has the potential to limit journalistic exploration and can influence the digital content mix. A new, sustainable approach that allows for more engaging content and has less potential to influence freedom of the press would be worth exploring. Tough Business Gets Tougher: Expanding Emerging Digital Business Models When looking for solutions to create digital business models that support journalistic exploration, one must consider the competitiveness of the market given that content fuels the digital experience. Content makes the digital world possible, and, with a small investment, anyone

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can now be a publisher, which means competition has increased while advertising dollars for mainstream publications have decreased. A global shift in marketing means that brands are choosing to spend money publishing proprietary content programs and building their own connection with audiences. The head of marketing for Nike explained in 2007, “We’re not in the business of keeping media companies alive. We’re in the business of connecting with consumers.”8 In other words, they are choosing to focus on marketing models that connect with consumers and that may not include paying high advertising rates in traditional publications. One marketing model that does connect with consumers is brand journalism, where brands support and in some cases create their own successful content and publishing vehicles. For example, BabyCenter. com, a leading parenting website which recently won a Webby Award for “Best Parenting Website” in 2012, is owned by Johnson & Johnson. The Liquor Control Board of Ontario (LCBO) publishes a successful print magazine and website. Retail clothing stores, such as Anthropologie’s online magazine featuring the “best of the best,” are becoming more common and use editorial storytelling approaches. Potentially spending money on content marketing leaves a smaller portion of the marketing budget to spend on advertising, which in the current model may affect websites supported by advertising. Many journalists have taken advantage of these branded website opportunities and found jobs in brand journalism. In 2011, Canadian digital marketing visionary Mitch Joel, in his blog Six Pixels of Separation, talks about the idea of brands hiring a journalism department: “The idea here is to see if a tactic like this could lead to an entire department of journalists that are publishing the most relevant and interesting stories about the industry you serve. It’s about becoming the de facto recognized authority for your industry. It’s about adding so much value that your clients (and potential clients) need you in their lives because the insights and information that you’re providing are so valuable.”9 In some cases, the publications created by brands are not simply advertisements for the brands, but can also produce high-quality content that competes with more traditional journalistic content in the space. Although brand journalism by its nature may be restrictive in terms of press freedom, and journalists may not have carte blanche in these environments, they may be able to write solid journalistic pieces on a range of topics. Many of the established publications have become respected and sizeable media properties with their own advertising

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models and win Webby Awards alongside publications such as the New York Times. However, many others are simply clogging the information highways with lighter, brand-serving pieces. All media of course have owners and interests. We could be seeing a shift in the ownership of media based on the realities of sustainable digital business models. At the same time, this focus on publishing for brands could be just a trend for marketers. The restrictions and journalistic impacts have yet to be clearly defined. Regardless, brand publications could be viewed as competition to traditional media if the money used to create the publications means less money in the budget for traditional advertising or if brand publications mature to become advertising vehicles themselves but are backed by bricks-and-mortar businesses that don’t rely on advertising as a revenue stream. Still, in this context, there is a need for the kind of work that journalists are trained to do: find and tell compelling stories. In fact, these brand efforts depend on well-trained journalists and content providers to put together compelling content. Another rising trend in media is the growth of native advertising, which means that instead of website banners or big boxes, the advertising matches the form of the platform that it appears on. The article often feels as though it’s written by editorial staff. To meet the demand for this type of advertising, the Toronto Star, for example, launched Star Content Studios in 2012 offering digital and print services, from editorial to video content for a brand’s website. Amanda Hale, vice-president of Advertising and Creative Solutions at Talking Points Memo, explains why native advertising is important in her Predictions for 2015 Neiman Journalism series: “Native helps pay for news … We’ve got a class of advertisers who value things like storytelling, engagement, and time spent with content … these [native] ads perform much better than traditional banner advertising … again, in a digital environment where every view and the path to that view is trackable, performance matters to marketers.”10 As a result, beyond the Toronto Star, many media outlets have created their own content studios to support the trend of content marketing. The Globe and Mail has developed the Custom Content Group, “the Globe’s full service, integrated content-marketing team.” The New York Times and the Wall Street Journal also recently launched content marketing and/or native advertising departments. This appears to be more than a trend and has resulted in increases in revenue for many of these publications.11 While a new business model, or further development of an existing one, appears to be a positive development in being able to create

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sustainability, the danger with native advertising is potential collusion with journalism. In many cases, publications are aware of this pitfall and have been careful to keep journalists separate from this type of branded content. The New York Times has a native advertising disclaimer saying, “This page was produced by the Advertising Department of The New York Times in collaboration with [brand]. The news and editorial staffs of The New York Times had no role in its preparation.” The Toronto Star, according to John Cruickshank, claims to have developed a model that will “keep commercial content out of the newsroom.”12 It’s hard to predict how this rise in native advertising and content marketing will influence journalists and, ultimately, freedom of the press. Considering that the content budgets are often larger for a commercial story than for the average newsroom story, watching how this may change journalists’ focus and interests will be worth exploring in the years to come.

New Revenue Streams: Building Paywalls In a world where the importance of content increases but readers don’t pay to obtain it, changing the way readers get access to content can create an obvious revenue stream. Paywall strategies, where a reader is asked to subscribe to the publication after approximately ten article views, can potentially help to augment existing revenue and create a new digital business model. While not always successful in the past, the New York Times reported a quarter-million paying digital subscribers as of October 2011 after they introduced a paywall strategy.13 This success appears to keep growing as some reports show that the New York Times now has close to 800,000 subscribers.14 Canadian newspapers have also followed suit. The Globe and Mail introduced a paywall strategy in late October 2012. Then Globe editorin-chief, John Stackhouse, explained further at the World Editors Forum in June 2013 that good journalism drives readership and the publishing brand is the primary reason people subscribe. Readers also want personalization tools, which the Globe and Mail now offers to subscribers.15 Notably, Stackhouse also said that paywalls work when they have great content behind them and that journalists can thrive behind the wall, with Globe and Mail journalism driving readership. Postmedia Network, which publishes the National Post as well as a collection of metropolitan dailies, including the Montreal Gazette, the Vancouver Province, and the Ottawa Citizen, expanded its digital

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subscription to its entire chain in May 2013. And in November 2012, Quebecor’s Sun Media division added paywalls to its dailies in Toronto, Calgary, Winnipeg, Edmonton, and Ottawa. The Toronto Star, however, decided not to go the paywall route.16 Instead, the Star launched a free tablet edition, aimed at getting younger readers and boosting its advertising revenue. From a business perspective, it may be hoping to get more revenue through advertising to this audience than through an audience-paid paywall. The jury is still out regarding these Canadian efforts. In response to other successes in the United States, Bill Mitchell of the Poynter Institute noted in a recent article that some portion of the audience is willing to pay for content and, echoing the Globe’s Stackhouse, that putting a price on the content is encouraging newsrooms to step up the quality and ensure that there is value for the reader: Charging today for something that was free yesterday is fundamentally a non-starter. The user really needs to see evidence of new value. And new value means changing the way that the content is presented and gathered and the way that publishers enable their customers to put that content to use. Yet paywalls can work if papers invest in flexible systems, exploit their journalists’ expertise in niche areas, and, crucially, offer readers their money’s worth in terms of new value.17

Encouraging quality and expertise creates a much different landscape than that of the CPM model. The current favoured paywall approach allows social traffic and casual readers in for free and charges regular, engaged viewers. “It’s getting tens of millions of dollars from hardcore readers while letting in enough Google traffic and casual readers to continue boosting its online readership and collecting ad revenue off of those eyeballs,” explains Ryan Chittum, a former Wall Street Journal reporter and now deputy editor of “The Audit,” the business section of the Columbia Journalism Review.18 One could expect these paywalled publications to evolve significantly with unique offerings and branding for success to meet the expectation of paying readers. More engagement and segmentation of the audience by interests has the potential to define more journalismfriendly business models, especially if advertisers see the higher value in this engaged audience. At the same time, this allows further opportunity for tabloids, bloggers, and brands as these publishers likely continue to provide enough free digital content that getting the average

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reader to pay for content through subscription may continue to be a challenge.

Teaching Media Literacy and Supporting Publicly Funded Media One of the most obvious digital business models for those seeking to preserve freedom of the press may be publicly funded media. By minimizing the dependency on advertising revenue, a broader range of content should technically become possible. While not every journalist can find a home in public media, a survey of sites will show that public funding as an avenue for strong journalism has proven important to the health of digital journalism. Most importantly, publicly funded journalism provides an alternative to other digital business models, which ideally will help to enhance all models. However, relying on publicly funded media to develop journalism and press freedom is limiting and not sustainable given that government cuts can devastate a journalism department very quickly. Further, given that public media should be accessible to all, there is danger that without audience revenue needed through paywalls, public journalism will undercut private subscription drives. In this predicament, both public and private models need to work to find and serve their engaged readers with strong journalism. Another potential way to augment business models is to change demand. Teaching media literacy and educating people about the value of media may be a cause of interest suitable for some journalists. Author Clay Johnson’s Information Diet, for example, suggests a type of “info-veganism” to change the type of content that people are clicking on.19 Educating people on media approaches is key to developing momentum around this approach. “Just as junk food can lead to obesity, junk information can lead to new forms of ignorance,” Johnson explains.20 Johnson thus encourages people to adopt a prescribed information diet in this digital age. While an interesting concept, this is not likely to make widespread change within prevalent business models that focus on mass reader engagement to increase revenue.

Innovation and Opportunities Creating profitable digital business models that support freedom of the press is key to the future of journalism and our democratic process. Given the rapid changes in the industry, constant evaluation of existing business models and development of new models that support the

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day-to-day activities that allow for press freedom sustainably is critical. Journalists know the realities best because they’re affected on a day-byday basis. Therefore, journalists need to join the discussion and lead with solutions. For this to happen, there needs to be an understanding and appreciation of all involved, including business, marketing, advertising, and journalism, then a plan to find innovative partnerships and solutions. Some universities have taken on this challenge and have started teaching the business of media, with one example being Tow-Knight Center for Entrepreneurial Journalism at the Graduate School of Journalism of City University of New York (CUNY). At CUNY, students learn about entrepreneurial skills and develop for-profit journalism start-ups to pitch to a jury of venture capitalists, technologists, and publishers. Program director Jeff Jarvis says he wants students to think about creating journalism for new digital platforms, sustainable journalism business models, or content businesses. “Profit is not a dirty word in our school,” says Jarvis.21 The approach and experimentation have the potential to build a new business model that will support a range of journalistic content exploration and, ultimately, freedom of the press. At the same time, opportunities that emerge need to be highlighted and taken advantage of as business models evolve. Recently, with the increase in mobile traffic, native advertising, and paywalls, there are potentially new possibilities. In fact, Cory Haik, executive producer and senior editor for digital news at the Washington Post, sees 2015 as “the year of the reader and a fantastic journalistic opportunity” that goes beyond a CPI-style type of storytelling. In her contribution to Neiman Lab Predictions for Journalism 2015,22 she explains: Purely chasing page views is a fool’s errand. In the short term, it gets you a bigger comScore number. But those calories are empty. Readers come back because they value what happened when they were there last … The only thing we should be chasing in 2015 is news. Readers are here, especially on the phone. [Mobile readership from ages eighteen to thirty-four is growing year over year by almost 25 per cent.] The challenge is to engage them even further. This is a fantastic journalistic opportunity, one that is different than begging them to come once. If we do what we love, journalism and the creation of excellent experiences to deliver that, the signs point to these readers sticking around for more. So let’s give them our best. They deserve it, and so do we.23

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In order to take advantage of these opportunities, journalists need to do three things: (1) they must be able to translate their skills to new opportunities as they arise; (2) they must understand aspects of the media business in order to take advantage of opportunities and help to shape them; and (3) they need to be open to partnering with new disciplines and ways of doing things, including new ways of paying for journalism. With this mix, journalists can innovate their way to creating strong digital storytelling, allowing them to influence new business models that support the exploration of topics, inform audiences, and ultimately preserve press freedom. Conclusion Press freedom needs to be protected regardless of the disruption to business models and the media industry. The hallmark of journalism, especially in times of industry disruption – and one could easily argue that we’re in a time as disruptive as the introduction of the printing press – is the need to ensure and sustain a voice that doesn’t become silenced or beaten to a whisper based on the day-to-day requirements needed to pay the bills. One could argue that, as a leading business model, a CPI approach has the potential to influence a journalist’s day-to-day work enough that it would affect the ability of journalists to explore beyond lighter, must-click stories. Fortunately, many other models are being tested, including paywalls and native advertising, that have the potential to support journalistic activities and be more sustainable than the prevalent CPI model. All of these models, however, have pitfalls. Regular discussion and innovation need to continue in order to find the right mix that supports journalism and press freedom sustainably. It’s important to recognize that in many ways now is an exciting time for both journalism and press freedom. Anyone can be a publisher, and never before have text and stories fuelled so much: everything from social media to digital portals and the business of search marketing. With an overwhelming amount of content on the airwaves, a great deal of it is not professional and does not have the potential to provide information that can inform and enrich. One could argue that a writer or journalist’s skill set to date has not been overly valued in this landscape, but as the system matures this may change. It’s too early to tell, but one example of this may be native content studios, where advertisers value strong storytelling and are paying for quality content written

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by professionals. Further, as digital evolves and with the growth of mobile, many long-form digital formats are getting traction, and this may be another opportunity. In general, with a keen eye for evolution and innovation, opportunities to do good work and create content that meets the standards will arise. Journalists need to make it a priority to understand or create a formula that will allow them to practise their craft and be in a position to create a day-to-day workflow that sustains freedom of the press. Any content model should be seen as another place to create a winning formula for journalism. In today’s environment of shrinking newsroom budgets, journalists may find opportunities far from the presses or traditional media outlets that prove more valuable than ever expected. At the same time, they may find them right in their own backyards as digital businesses continue to change and evolve. NOTES 1 Victor Navasky and Evan Lerner, Magazines and Their Websites: A Columbia Journalism Review Survey and Report (report for Point Five, Columbia University, March 2010), http://cjrarchive.org/img/posts/CJR_Mag_ Web_Report.pdf. 2 “2014 Actual + 2014 Estimated,” Interactive Advertising Bureau (an industry survey conducted by Ernst and Young, 2014), http://iabcanada.com/files/ Canadian-Internet-AdRev-Survey_2013-14.pdf. 3 Andrew Phelps, “I Can’t Stop Reading This Analysis of Gawker’s Editorial Strategy,” Nieman Journalism Lab, 21 March 2012, http://www.niemanlab. org/2012/03/i-cant-stop-reading-this-analysis-of-gawkers-editorialstrategy/. 4 “SEO” refers to search engine optimization, the process of ensuring that a page is optimized to show up in the search engine rankings, such as Google. The higher the page in search rankings, the higher the traffic and visibility. 5 A.J. Daulerio, “Gawker Will Be Conducting an Experiment, Please Enjoy Your Free Cute Cats Singing and Sideboobs,” Gawker, 23 January 2012, http://gawker.com/5878065/gawker-will-be-conducting-an-experimentplease-enjoy-your-free-cute-cats-singing-and-sideboobs. 6 Nicholas Carlson, “LEAKED: AOL’s Master Plan,” Business Insider, 1 February 2011, http://www.businessinsider.com/the-aol-way.

Emerging Business Models and Journalistic Innovation  45 7 Ibid. 8 Louise Story, “The New Advertising Outlet: Your Life,” New York Times, 14 October 2007, http://www.nytimes.com/2007/10/14/business/ media/14ad.html. 9 Mitch Joel, “Will a Brands Next Big Move Be a Journalism Department?” blog entry at Six Pixels of Separation, 14 May 2011, http://www.twistimage.com/blog/archives/ will-a-brands-next-big-move-be-a-journalism-department/. 10 Amanda Hale, “Native Helps Pay for the News,” Nieman Journalism Lab, December 2014, http://www.niemanlab.org/2014/12/ native-helps-pay-for-the-news/. 11 Ibid. 12 John Cruickshank, “Internal Memo: Star Content Studios,” posted by Steve Ladurantaye on his website, 7 May 2012, http://www.steveladurantaye. ca/internal-memo-star-content-studios/ (site discontinued). 13 Josh Halliday, “New York Times Digital Subscribers Up 40,000,” Guardian, 20 October 2011, http://www.guardian.co.uk/media/2011/oct/20/ new-york-times-digital-subscribers. 14 Felix Richter, “The New York Times Paywall Is Paying Off,” statista, 3 November 2013, http://www.statista.com/chart/886/ circulation-revenue-of-the-new-york-times/. 15 Sarah Marshall, “#editors13: Paywall Lessons from Canada’s Globe and Mail,” journalism.co.uk, 3 June 2013, https://www.journalism.co.uk/news/editors13-paywall-lessons-from-canada-s-globe-and-mail/s2/a553140/. 16 Richard Blackwell, “Toronto Star to Scrap Paywall, Launch Free Tablet Edition,” Globe and Mail, 5 November 2014, http://www.theglobeandmail.com/report-on-business/ torstar-swings-to-profit-on-boost-from-harlequin-sale/article21452577/. 17 Hanna Vinter, “Bill Mitchell on Paywalls: How to Shape the Paid Experience,” World Association of Newspapers and News Publishers, 30 September 2011, http://www.wan-ifra.org/articles/2011/09/30/ bill-mitchell-on-paywalls-how-to-shape-the-paid-experience. 18 Ryan Chittum, “NYT Paywall to Other Papers: Copy Me!” Columbia Journalism Review, 20 October 2011, http://www.cjr.org/the_audit/ nyt_paywall_to_other_papers_co.php. 19 Clay A. Johnson, The Information Diet: A Case for Conscious Consumption (Sebastopol, CA: O’Reilly Media, 2011). 20 Ibid.

46  Leigh Felesky 21 David Silverberg, “Should Journalism Schools Include More Entrepreneurial Courses?” Digital Journal, 15 February 2012, http:// digitaljournal.com/article/319685. 22 Cory Haik, “The Year of the Reader,” Nieman Journalism Lab, December 2014, http://www.niemanlab.org/2014/12/the-year-of-the-reader/. 23 Ibid.

3 Strategic Lawsuits against Public Participation and Freedom of the Press in Canada n o r m a n d l a n d ry

On 24 September 2009, broadcast journalist Alain Gravel, reporting for Société Radio-Canada (SRC), claimed that businessman and suspected fraudster Tony Accurso benefited from favouritism in winning investment contracts from the Solidarity Fund of the Quebec Federation of Labour.1 Accurso and his company, Construction Louisbourg, promptly sued for defamation and breach of privacy. Justice Jean-Pierre Sénécal of Quebec’s Superior Court dismissed the lawsuit and concluded that the news broadcast by the SRC was “of high public interest” at the time of its release.2 The SRC previously stated that it considered the proceedings to be a poursuite-bâillon (or SLAPP suit), with the intention of “silencing journalists and preventing the spread of new reports” on Construction Louisbourg or its owner, Tony Accurso.3 The SRC further announced that it intended to use the newly adopted provisions of the Civil Code of Quebec, aimed at protecting freedom of expression from abusive lawsuits.4 While commenting on the Superior Court ruling, Brian Myles, president of La Fédération Professionnelle des Journalistes du Québec, claimed that such lawsuits were always “a risk” and that “media with solid financial resources and courage were needed to withstand attacks against freedom of the press.”5 This particular case is by no means an isolated one. Over the last two decades, concern has grown in various regions of Canada with regard to lawsuits aimed at silencing citizens’ voices, chilling public debate, and retaliating against whistle-blowers. These lawsuits have been shown to expressly target socially and politically active citizens, academics, journalists, and media institutions. This particular form of legal intimidation, known as the strategic lawsuit against public participation (often referred to by the acronym SLAPP), implies the

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deliberate use of judicial procedures as tools for intimidation, censorship, and political reprisal in the context of social and political debates. The powerful metaphor associated with the acronym is often invoked in the titles of books, academic articles, and journalistic treatments of the issue and is intended to grab the reader’s interest. For example, the strategy is considered a “SLAPP in the face of democracy,”6 an action aimed at “SLAPPing resistance,”7 and a call for the development of legislative countermeasures in order to deliver “the final knockout punch.”8 By all appearances, the origins of this phenomenon are American, although it is likely that certain elements associated with SLAPPs have appeared in parallel elsewhere.9 In the mid-1990s, American experts demonstrated that thousands of SLAPPs had been pursued in court during the previous twenty years and that tens of thousands of Americans had been victims of SLAPPs and, ultimately, had been kept silent by the threat of political reprisal.10 The problem had thus been identified as serious and of an epidemic proportion; therefore, the response to the phenomenon needed to quickly stem its pathological spread from the judicial system into social and political domains. As a result, more than thirty American states are today equipped with the legislation required to combat SLAPPs.11 These “anti-SLAPP laws” vary considerably in their mandates and the mechanisms they propose in order to fight this form of judicial intimidation. Nevertheless, they share a certain number of common objectives: assuring the prompt rejection of lawsuits judged to be illegitimate; offering juridical (and at times financial) protection to the potential victim of judicial intimidation; dissuading the adoption of this sort of juridical strategy; and financially compensating the individuals or groups that have been illegitimately sued in such a manner. While many jurisdictions in the United States have taken action against attempts to mobilize the judicial system in ways that are detrimental to the First Amendment guarantee of free speech,12 Canada has remained hesitant to act on issues of legal intimidation. This article will argue that SLAPP suits constitute a particular threat to the exercise of freedom of expression and of the press, requiring Canadian provincial authorities to adopt countermeasures in legislation. In the first section, the concept of the strategic lawsuit against public participation will be documented and analysed. The following section will discuss and criticize attempts that have been made in various Canadian provinces over the course of the last two decades to pass anti-SLAPP legislation. The

Strategic Lawsuits against Public Participation  49

conclusion will provide a critical assessment of the notion of a SLAPP and argue that remedies to legal intimidation should rely more heavily on protecting the public sphere from legal interference than on providing better tools for the judiciary to identify and deal with abusive lawsuits. SLAPP: Context and Processes In Canada, the emergence of strategic intimidation can be traced to the early 1990s. The first court filings to be documented as SLAPPs appeared in British Columbia and were primarily concerned with environmental or residential conflicts.13 The phenomenon has since spread to other Canadian provinces.14 Before entering into details of the Canadian social and political context, it is important to clarify what is meant by a strategic lawsuit against public participation and how this particular form of legal intimidation fits into the legal landscape of the country.

Definitions and Mechanisms of the SLAPP Strategic lawsuits against public participation can be characterized as follows: (1) responding to the mobilization or expression of citizens with regard to an issue of public interest; (2) purposefully manipulating the judicial process; (3) limiting the range of individuals’ and organizations’ freedom of expression in order to neutralize their activity or to limit, circumscribe, or end public discussion and mobilization regarding the initial litigious issue; and (4) appealing to the courts for the purposes of intimidation, coercion, or political reprisal.15 Put otherwise, “Strategic Lawsuits Against Public Participation, or ‘SLAPP suits’ as they have become known, are defined as civil lawsuits filed with the dual intention of punishing those who have exercised their political rights ... and discouraging the same from engaging in similar conduct in the future.”16 Some elements of this definition beg for clarification. Note, for instance, the emphasis placed on the strategic nature of the lawsuit: this implies a deliberate approach on the part of the instigator. It is therefore not an undertaking based upon a legal right – upon which one might rely, in good faith, as a just means of recourse – but it is based upon the abusive manipulation of the judicial process in order to limit, prevent, or punish popular mobilization. Thus, two essential characteristics

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demarcate a strategic lawsuit against public participation: first, it is a deliberate strategy of judicial intimidation; second, the objectives of this strategy are essentially political. According to Professor Penelope Canan, the motivations and objectives behind this sort of lawsuit are essentially the following: • To punish social opposition by successfully imposing oneself upon an issue of public interest; • To prevent future social opposition around issues of public policy; • To intimidate adversaries; and, • To mobilize the judicial system as a supplementary arena that may be manipulated in order to win a political or economic battle.17 The invocation of harm suffered by the plaintiff thus conceals intentions other than obtaining a legal victory based on merit. This is something that tends to be extremely difficult to demonstrate before the courts, especially because such cases are typically well crafted. According to Susan Lott, “the key aspect of the SLAPP, to force individuals into costly litigation, suggests that overall success of a SLAPP does not necessarily require a legal victory but a political one: to intimidate and to suppress criticism.”18 The general motives evoked by plaintiffs (also known as “SLAPPers”) include slander, libel, interference with contractual obligations, conspiracy, and nuisance.19 Despite their harm, SLAPPs do not always appear to be abusive, at least from the point of view of the courts. Strategic lawsuits against public participation can, in this way, be considered masquerades: a juridical mask disguises illegitimate political intentions, allowing for a semblance of legal grounding and/or legitimacy.20 The most efficient SLAPPs are in fact those that best hide the political intent of their instigators. Unmasking a SLAPP is therefore a difficult endeavour: “The problem of retaliatory lawsuits is an extremely complex one, particularly because of the various forms these suits take. They range from obvious frivolous allegations which involve blatant attacks on constitutionally protected free speech and the right to petition the government for redress of grievances, to much more subtle attacks involving allegations of malicious prosecution or interference with business relationships.”21 A principle of prudence, solidly established in the jurisprudence, ensures that judges generally reject only those lawsuits that are manifestly abusive. While easily justified – the judiciary must not infringe upon the fundamental Canadian right to access the courts – it is this

Strategic Lawsuits against Public Participation  51

careful practice that frequently enables the long-term suffering of the victims of judicial abuse. Further, Vincent Pelletier notes: While the common law provides theoretical remedies for abuse of process, in the inherent jurisdiction of the courts, in the court statutes and rules, and in the law of tort, the practical application of these remedies provides small comfort to those being sued by strategic litigation and other persons the plaintiff wishes to intimidate. Either a way must be found to overcome the reluctance of courts to characterize such suits as abusive at early stages, or other remedies must be created for the harm these suits cause.22

SLAPPs thus have a significant chilling effect on freedom of expression.23 This term evokes the wall of auto-censorship behind which one generally finds SLAPP victims, their families, colleagues, and supporters. The consequences of SLAPPs are multiple. A feeling of terror and the reality of financial disaster often accompany an independent court defence, while the need to conduct oneself with restraint and extreme care are long lasting.24 An example of the chilling effect of legal proceedings can be found in this collection’s chapter by James Allan, “The View from Down Under: Freedom of the Press in Canada.”25 It details the impact of human rights proceedings described by Allan as the Maclean’s-Steyn “saga.” While the complainants’ intent was not at issue, Allan argues that the cost and effort required to defend the proceedings had a profound chilling effect on the publication of controversial opinion.

SLAPPs and Freedom of the Press Journalists, publishers, public intellectuals, and academics regularly come into conflict with private interests in the course of their everyday affairs. Research results often conflict with commercial interests. Critical academic research exposes relations of power and domination, as well as dubious practices and behaviours, questioning the status quo and the interests that it serves. Playing the role of the “watchdog” of democracy, journalism serves a similar function, exposing embezzlement, conflicts of interest, collusion, corruption, and unethical behaviour. It’s not surprising then that news organizations, journalists, academics, and publishers are regularly the targets of abusive lawsuits.26 Participation in public debate and the circulation of pertinent information are activities essential to democracy. Nevertheless, these activities

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expose the individuals and groups undertaking them to considerable judicial risk. In terms of freedom of the press and other media, SLAPPs pose a triple threat: 1 Judicial intimidation or the threat of a lawsuit – usually communicated through formal notice – is a powerful deterrent to publication exerted upstream and may lead to the abandonment or alteration of content. 2 Mounting a legal defence is extremely costly and can push journalists or independent media groups into bankruptcy or force the defendants to submit to the demands of the plaintiff in a settlement. 3 These legal and financial risks encourage self-censorship, both in small and mainstream media.27 As with all actors in society, news and research institutions are responsible for their actions. Errors of judgment, breaches of acceptable behaviour, and the reputational damage committed by these actors can be legally sanctioned in court. That being said, lawsuits targeting academics, journalists, and their respective institutions pose certain problems. First, it is often difficult for a court to promptly determine if a lawsuit is abusive, legitimate, or founded in law. The time-consuming process of court filings often drains the resources of litigious parties and can be quite costly. The judicial process itself therefore constitutes a severe economic sanction against the party targeted by the lawsuit.28 In addition, it is rare that an unsuccessful court filing is determined to be abusive, thus warranting the reimbursement of expenses to the defendant.29 Second, the current structuring of the judicial system allows relationships of economic domination to be integrated into the judicial mechanism itself. Economic disparities between parties allow better-financed individuals or organizations to make multiple court filings, carry out enquiries, and hire experts, to the detriment of opponents who do not have the financial resources to provide an equivalent defence. Consequently, those actors who have access to juridical capital – financial resources, expertise, and the experience required to pursue litigious conflict – enjoy a fair amount of leeway that allows them to take advantage of the economic inequalities between themselves and their opponents. The threat of judicial intimidation, where less-prepared defendants are pressured by a team of highly competent lawyers into a judicial arena that is excessively slow and costly, leads competitors, political opponents, news organizations, and private citizens to comply

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with the requests of the opponent who enjoys an unjust advantage. The inability of the judicial system to promptly reject these abusive lawsuits supports the continuation of such strategies of judicial intimidation.30 Remedies While considering the remedies to SLAPP suits, three things bear consideration: the role of the Charter of Rights and Freedoms in protecting individuals and institutions against legal intimidation; provincial legislation aimed at countering abusive lawsuits; and the manner in which the objectives of these legislative mechanisms should be defined.

The Charter and Judicial Intimidation The incorporation of the Charter of Rights and Freedoms into the Constitution in 1982 made freedom of expression a foundational juridical principle in the country.31 The Charter stipulates that every Canadian citizen enjoys “freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and other media of communication.”32 As the cornerstone of rights culture for the country, the Charter’s framework is nonetheless restrictive. As section 32(1) specifies, the Charter applies only to the following institutions and actors: • To the Parliament and Government of Canada in respect of all matters within the authority of Parliament, including all matters relating to the Yukon Territory and Northwest Territories; and, • To the legislature and government of each province in respect of all matters within the authority of the legislature of each province.33 Section 32(1) has been interpreted by the courts as offering Canadians protection from the occasional authoritarian tendencies of public institutions, and it thus serves as a central marker around which the Charter is defined as applicable only to governmental activities and actors. As such, pleadings invoking the Charter must demonstrate the participation of public authorities or institutions covered by the Charter. It follows that the Charter of Rights and Freedoms cannot be applied to litigious battles between strictly private parties. Peter Sankoff explains: “The Charter was expressly designed as a tool to restrain government action against individuals and was not created with the intention of

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altering the conduct of non-government actors who are the primary participants in civil proceedings. As such, the Charter’s impact will understandably be less significant in this arena.”34 Since SLAPPs emerge as civil lawsuits, generally (but not always) between private parties, there is no guarantee that the constitutional freedom of expression may be used as a defence against them.35 Thus, in the current context, the constitutional principle of freedom of expression as defined in jurisprudence flowing from the Charter is not concerned with private – or corporate – censorship. With the exception of Quebec, where it has been applied on a larger scale, freedom of expression in Canada is a normative principle whose application remains limited to litigation implicating public authorities and their proxies.36 (For a further discussion of freedom of expression in Quebec, see AnneMarie Gingras in chapter 5, “Freedom of Expression, Entertainment, Hate Speech, and Defamation: Where Do We Draw the Line?”) This absence of constitutional protection in the face of attempts by private actors to judicially repress the freedom of expression, along with ineffective provincial protections against SLAPPs, have made problematic the concrete exercise of freedom of expression and freedom of the press in Canada. Citizens, progressive lawyers, intellectuals, and journalists therefore mobilized in the 1990s and 2010s around SLAPP suits, requesting that parliaments adopt anti-SLAPP legislation.

SLAPP Legislation: Failures and Success As Table 3.1 shows, anti-SLAPP legislation has been proposed in the legislative assemblies of New Brunswick (1997),37 British Columbia (2001),38 Nova Scotia (2003),39 Quebec (2008–9),40 and Ontario (2008,41 201242). British Columbia enacted the first Canadian anti-SLAPP law in 2001, only to repeal it a few months later following a change of government. Quebec adopted in June 2009 what remains to this day the only anti-SLAPP legislation in force in the country,43 although the Ontario government recently introduced an anti-SLAPP act, Bill 83, the Protection of Public Participation Act, 2013.44 This is the third time that an antiSLAPP bill has been brought forward to the Legislative Assembly of Ontario. One can only speculate about the reasons behind the repeated inability of provincial legislatures to pass anti-SLAPP legislation. Politics has certainly played a major role in this situation. In New Brunswick, Nova Scotia, and Ontario in 2008 and 2012, the anti-SLAPP bills submitted to the provincial legislatures were brought forward by members from opposition parties and not by members of the government.

Table 3.1  Anti-SLAPP legislation in the legislative assemblies Bills and Law

Titles

New Brunswick (1997)

Public Participation Act (Bill 102)

British Columbia (2001)

Protection of Public Participation Act (Bill 10) Protection of Public Participation Act (Bill 25) An Act to Encourage Participation in Public Debate, and to Dissuade Persons from Bringing Legal Proceedings or Claims for an Improper Purpose (Bill 138) An Act to Amend the Code of Civil Procedure to Prevent Improper Use of the Courts and Promote Freedom of Expression and Citizen Participation in Public Debate (Bill 9) Protection of Public Participation Act, 2012 (Bill 132)

Nova Scotia (2003) Ontario (2008)

Quebec (2009)

Ontario (2012)

Ontario (2013)

Protection of Public Participation Act, 2013 (Bill 83)

Objectives

Status

To protect citizen participation in the process of government To protect “public participation” from lawsuits hiding “improper purpose” To protect “public participation” from lawsuits hiding “improper purpose” To protect “public participation” from lawsuits hiding “improper purpose”

Died on the order paper

To amend the Code of Civil Procedure to promote freedom of expression and prevent improper use of the courts, in particular if it thwarts the right of citizens to participate in public debate

Passed as law

To amend the Courts of Justice Act, the Libel and Slander Act, and the Statutory Powers Procedure Act in order to protect expression on matters of public interest To amend the Courts of Justice Act, the Libel and Slander Act, and the Statutory Powers Procedure Act in order to protect expression on matters of public interest

Died on the order paper

Passed as law in 2001 and repealed in the same year Died on the order paper Died on the order paper

Bill introduced in June 2013

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It is also worth noting that, given the absence of judicial archives that expressly demarcate SLAPPs (this is a rarity even in jurisdictions with anti-SLAPP legislation), it is difficult to measure the severity of this phenomenon in Canada in more than anecdotal terms. The number of cases that have been identified as SLAPPs by Canadian courts remains small. Furthermore, numerous judicial conflicts associated with SLAPPs are settled out of court, therefore avoiding definitive judgment.45 Canadian anti-SLAPP bills can be categorized according to three different models. Bill 102 from New Brunswick remains the legislative draft most influenced by American legislation.46 As such, it was aimed at “protecting the right of citizens to participate freely in the process of government, the freedom of speech, association, and demonstration on matter of public policy,” and emphasized the necessity to ensure protection for activities such as petitioning and communicating with public authorities.47 The British Columbia legislation was influential, both in Canada and internationally, and was emulated in Nova Scotia and Ontario. The Protection of Public Participation Act was aimed at protecting “public participation” from lawsuits hiding “improper purpose.”48 “Public participation” was defined as “communication or conduct aimed at influencing public opinion, or promoting or furthering lawful action by the public or by any government body, in relation to an issue of public interest,” while “improper purpose” was defined as: a. Trying to dissuade the defendant from engaging in public participation; b. Trying to dissuade other persons from engaging in public participation; c. Trying to divert the defendant’s resources from public participation to the proceeding; or, d. Trying to penalize the defendant for engaging in public participation.49 Finally, Quebec’s Bill 9 amended the Code of Civil Procedure “to promote freedom of expression and prevent improper use of the courts.”50 The bill was introduced with the following preamble: • As it is important to promote freedom of expression affirmed in the Charter of Human Rights and Freedoms;

Strategic Lawsuits against Public Participation  57 • As it is important to prevent improper use of the courts and discourage judicial proceedings designed to thwart the right of citizens to participate in public debate; • As it is important to promote access to justice for all citizens and to strike a fairer balance between the financial strength of the parties to a legal action.51

To date, the Quebec legislation has been invoked in half a dozen cases associated with strategic lawsuits against public participation.52 In the majority of cases, the court ruled in favour of the defendants. Nevertheless, legislative choices made in the crafting of Bill 9, and the persistent hesitation of the judiciary to properly intervene in cases demonstrating established signs of judicial abuse, have effectively limited the power of this legislation.53 In each of these three models, emphasis was placed on the need to protect a right to participation in government processes, public participation, or freedom of expression. Whether these concepts overlap to a certain extent, their meaning nevertheless remains distinct and highlights diverging interpretations of the fundamental issues associated with SLAPP suits. Furthermore, the legislative mechanisms adopted in different international jurisdictions to counteract strategic lawsuits against public participation are generally of two sorts: there are those that essentially protect the freedom of expression, the right to petition, and the right of public participation from the judicialization of social and political conflict, and those that limit themselves to simply identifying and dealing with instances deemed to be abusive.54 The first kind of anti-SLAPP legislation grants the status of qualified privilege to public intervenors if their actions are judged to be pertinent and are undertaken in good faith and in the public interest. They also aim to promptly reject civil suits that interfere with their activities. The second sort emphasizes mechanisms for exposing and penalizing abusive lawsuits, while permitting lawsuits that may seriously affect the organization of public debate, and yet are not judged to be abusive in the juridical sense of the term.55 The central problem, from this point of view, is the need to institute mechanisms that facilitate the rapid separation of the good from the bad and, in this case, equip the courts to make them better able to identify instances wherein abusive political intentions are well-hidden or where the judicial process is misused. The Canadian and American

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experiences show that legislative models dedicated to lawsuits of abusive intent or actions are of limited efficacy. Bill 1056 from British Columbia and Bill 957 from Quebec fall within the second category. Recently, Ontario’s Anti-SLAPP Advisory Panel concluded: Judging the motive of a plaintiff is likely to be difficult, and often impossible, in an expedited proceeding. In the Panel’s view, a finding of bad faith or improper motive should not be necessary to dismiss an action without substantive merit brought against expression on a matter of public interest … In the Panel’s view, a focus upon the presence or absence of bad faith or an improper motive, in addition to being unnecessary, is not well suited to expedited adjudication. … The Panel prefers to make the threshold test for application of the special procedure a consideration of the effect that the action is likely to have on expression on matters of public interest. If the action is likely to have an adverse effect on the ability of the defendant or others to participate in discussions on matters of public interest, the special procedure should apply. This question does not require the judge to read anyone’s mind; it is more readily supported by evidence.58

This approach, which is codified in Ontario’s Bill 83,59 emphasizes ensuring that public debates do not get inappropriately judicialized. It is aimed not so much at identifying and countering abusive lawsuits that silence public opposition (which is, nonetheless, the intended outcome), but more towards establishing robust protections against the interference of the judicial system in the political life of the community. The Ontario panel thus echoed the argument of Pamela Shapiro that the very notion of the SLAPP needs be revisited and expanded beyond its current interpretation: SLAPPs are a problem because of their effect on public speech, and not principally because of the intent of the SLAPP plaintiff. While it is common to say that the SLAPP plaintiff sues specifically to prevent the interested party from intervening further, and the inclusion of the word strategic encourages this belief, it is more relevant that the lawsuits are often unfounded and that they have the effect rather than the aim of silencing the intervenor. As such, although the catchy acronym has perhaps garnered SLAPPs more attention, the inclusion of the word “strategic” may be less than ideal. The acronym “LAPP,” for Lawsuit Affecting Public Participation, may have been more accurate, if not quite as catchy.60

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Following from this revised definition, the most effective anti-SLAPP laws are those that create “de-judicializing” zones or the “nonjudicialization” of public debate, thus refusing the judicialization of controversy at the expense of fundamental public debate in democracy. Such laws, therefore, must aim to “assure that differences of opinion between parties do not find themselves unnecessarily judicialized,”61 and that they restore avenues of public debate as soon as possible.62 Efficient, reliable, and satisfactory anti-SLAPP measures in Canada need to be established according to this precise interpretation of the core issues raised by these lawsuits. While it is important that the courts be given further powers and tools to act effectively against legal intimidation, the fundamental problem relies less on the “abusive” or “improper” character of these lawsuits than on the negative outcomes generated by the judicialization of public debates. Therefore, satisfactory anti-SLAPP mechanisms must be developed with the intention of protecting freedom of expression and public participation, as well as current channels of communication between public authorities and the general public, from the legal privatization of public controversies and debates. The legislation introduced in Ontario in June 2013 supports this kind of anti-SLAPP approach, in accordance with the recommendations of the Advisory Panel.63 However, it remains to be seen if Ontario’s minority government has the capacity and the will to steer the bill through the legislative process and see it enacted. Conclusion Lawsuits aimed at chilling public participation are a significant threat to the judicial system; they foster doubt in the processes through which justice is served in Canada and make the courts complicit in violations of the political rights that they are, paradoxically, charged with protecting. SLAPPs further illustrate the limit of the Charter of Rights and Freedoms in providing an efficient legal framework against private censorship. Nevertheless, the concept of the SLAPP is itself limited with regard to its judicial applications. While a strategic lawsuit against public participation assumes that the intent or behaviour on the part of the plaintiff is abusive, it can be difficult to expeditiously convince a court that this is the case. Legislation aimed at providing courts with greater power to identify, reject, and penalize legal cases hiding “improper purpose” is of limited efficiency and application. What is needed is a re-evaluation of the law’s treatment of public debates that will lead to the establishment of legal protections against the judicial system’s undue interference in public processes through which

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opinions are expressed, information circulated, and ideas, beliefs, and values debated. This requires greater trust to be invested in the idea of deliberative democracy and in the capacity of the citizenry – and not the judiciary – to determine truth and public interest. NOTES This chapter regroups, rearticulates, and translates extracts from a book published in French in 2012. It also revisits certain elements of a doctoral research project published in a special journal edition dedicated to SLAPPs in Canada and internationally. See Normand Landry, SLAPP. Bâillonnement et répression judiciaire du discours politique (Montreal: Écosociété, 2012); Normand Landry, “From the Streets to the Courtroom: The Legacies of Quebec’s anti-SLAPP Movement,” Review of European Community and International Environmental Law 19, no. 1 (2010): 58–69. 1 Claude Picher, “Parfum de scandale à la FTQ,” La Presse, Itée, 26 September 2009, http://affaires.lapresse.ca/opinions/chroniques/claudepicher/200909/25/01-905695-parfum-de-scandale-a-la-ftq.php. 2 Constructions Louisbourg ltée c. Société Radio-Canada, [2012] J.Q. No. 1618; translated by the author. 3 Ibid. 4 Ibid. 5 Stéphane Baillargeon, “Le journaliste Alain Gravel peut protéger ses sources,” website for Le Devoir, 1 March 2012, http://www.ledevoir.com/societe/medias/344039/ le-journaliste-alain-gravel-peut-proteger-ses-sources. 6 Fiona J.L. Donson, Legal Intimidation: A SLAPP in the Face of Democracy (London: Free Association Books, 2000). 7 Andrew Rowell, “SLAPPing Resistance,” Ecologist 28, no. 5 (1998): 302–3. 8 Dora A. Corby, “Clearing Up Civil Procedure Section 425.16 – Delivering the Final Knockout Punch to SLAPP Suits,” McGeorge Law Review 29 (1998): 459–67. 9 George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (Philadelphia: Temple University Press, 1996); Roderick A. MacDonald, Daniel Jutras, and Pierre Noreau, Les poursuits stratégiques contre la mobilisation publique – Les poursuites-bâillons (SLAPP) (Ste-Foy: Ministère de la Justice du Québec, 16 March 2007), http://www.justice. gouv.qc.ca/Francais/publications/rapports/pdf/slapp.pdf; James A. Wells, “Exporting SLAPPs: International Use of the U.S. ‘SLAPP’

Strategic Lawsuits against Public Participation  61 to Suppress Dissent and Critical Speech,” Temporary International and Comparative Law 12, no. 2 (1998): 457–502. 10 However, the methods used by these authors to calculate the number of SLAPPs in the United States have been subject to important methodological criticism. See Joseph W. Beatty, “The Legal Literature on SLAPPs: A Look behind the Smoke Nine Years after Professors Pring and Canan First Yelled ‘Fire!’” University of Florida Journal of Law and Public Policy 9 (1993): 85–110. 11 See Public Participation Project: Fighting for Free Speech website, accessed April 2012, http://www.anti-slapp.org/. 12 United States Constitution, amend. I. 13 Chris Tollefson, “Strategic Lawsuits against Public Participation: Developing a Canadian Response,” Canadian Bar Review 73, no. 2 (1994): 200–33. 14 Mayo Moran, Peter Downard, and Brian MacLeod Rogers, Anti-SLAPP Advisory Panel Report to the Attorney General (Toronto: Ministry of the Attorney General, 28 October 2010), http://www.attorneygeneral.jus.gov. on.ca/english/anti_slapp/anti_slapp_final_report_en.pdf; Elizabeth Weir, “SLAPPing the Citizenry,” Rabble, 7 April 2004, http://rabble.ca/news/ slapping-citizenry; Landry, “From the Streets to the Courtroom.” 15 This definition is largely inspired by the work of three Québécois university researchers; see MacDonald, Jutras, and Noreau, Les poursuits stratégiques, 7. 16 John C. Barker, “Chapter 338: Another New Law, Another SLAPP in the Face of California Business,” McGeorge Law Review 35 (2004): 410. 17 Penelope Canan, “SLAPPs from a Sociological Perspective,” Pace Environmental Law Review 7, no. 1 (1989): 23. 18 Susan Lott, Corporate Retaliation against Consumers: The Status of Strategic Lawsuits against Public Participation (SLAPPs) in Canada (Ottawa: Public Interest Advocacy Centre, 2004), 81. 19 David J. Abell, “Comment: Exercise of Constitutional Privileges: Deterring Abuse of the First Amendment – Strategic Lawsuits against Political Participation,” Southern Methodist University Law Review 47 (1993): 95–130. 20 Geoffrey Paul Huling, “Tired of Being Slapped Around: States Take Action against Lawsuits Designed to Intimidate and Harass,” Rutgers Law Journal 25, no. 2 (1994): 401–32. 21 Robert Abrams, “Strategic Lawsuits against Public Participation (SLAPP),” Pace Environmental Law Review 7, no. 1 (1989): 33. 22 Vincent Pelletier, Strategic Lawsuits against Public Participation (SLAPPs) (and Other Abusive Lawsuits) (Quebec City: Uniform Law Conference of Canada, Civil Section, August 2008), 7, http://www.

62  Normand Landry ulcc.ca/en/2008-quebec-city-qc/235-civil-section-documents/448strategic-lawsuits-against-public-participation-slapps-report2008?showall=1&limitstart. 23 Pring and Canan, SLAPPs: Getting Sued for Speaking Out. 24 Gordon v. Marrone, [1992] 155 Misc. 2d 276 [590 N.Y.S. 2d 649, 651]. Appreciating the impact of SLAPPs on public debate, Judge Nicholas Colabella of the New York State Supreme Court characterized the situation as follows: “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” 25 See chapter 15 in this volume. 26 The following cases illustrate this point: Constructions Louisbourg ltée v. Société Radio-Canada, [2011] J.Q. No. 12820; Accurso v. Gravel, [2011] J.Q. No. 327; 3834310 Canada inc. & Ugo Lapointe c. Pétrolia inc., [2011] J.Q. No. 9903; Barrick Gold Corporation c. Éditions Écosociété inc., [2011] J.Q. No. 10666. 27 Kristina Börjesson, Black List: Quinze grands journalistes américains brisent la loi du silence (Paris: Les Arènes, 2003), 10–18; Alexandra Pasca, “Les poursuites-bâillons: frontière entre liberté d’expression et droit à la aéputation,” Lex Electronica 14, no. 2 (2009): 1–17. 28 Fiona J.L. Donson, “Libel Cases and Public Debate – Some Reflections on Whether Europe Should Be Concerned about SLAPPs,” Review of European Community and International Environmental Law 19, no. 1 (2010): 83–94. 29 See Lott, Corporate Retaliation against Consumers, as well as sources listed in note 10. 30 Pelletier, Strategic Lawsuits. 31 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 32 Ibid. 33 Ibid. 34 Peter Sankoff, “The Application of Section 24(2) of the Charter of Rights and Freedoms in a Civil Action,” Advocates Quarterly 28 (2004): 103–30, 103. 35 Tollefson, “Strategic Lawsuits.” 36 The reality is much different in Quebec, which has its own Charter of Human Rights and Freedoms. Essentially, the protections afforded to the freedom of expression by the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms are the same. They offer similar guarantees and establish similar measures. That said, the Quebec Charter distances itself from the limited range of the Canadian Charter, moving towards a much broader application. Contrary to the Canadian Charter of Rights and Freedoms, the Quebec Charter is used not only as a legal tool to protect Quebec residents from governmental abuses, but also “to harmonize the relationships of citizens with one

Strategic Lawsuits against Public Participation  63 another and with their institutions, in the respect of human dignity.” The Quebec Charter serves to define general rules applying to collective life in Quebec. Consequently, it applies not only to government but also to every individual, every group, and every legal person in the province with the exception of federal bodies. Thus, the application of freedom of expression in Quebec is much more broad than elsewhere in the country because it can be used in defence against legal entities (private corporations) and individuals (neighbours, employers, etc.), as well as the provincial government. See the Charter of Human Rights and Freedoms, Chapter C-12, retrieved from http://www2.publicationsduquebec.gouv.qc.ca/ dynamicSearch/telecharge.php?type=2&file=/C_12/C12_A.html. 37 Bill 102, Public Participation Act, 2nd sess., 53rd Legislature, New Brunswick, 1997. 38 Bill 10, Protection of Public Participation Act, 5th sess., 36th Parliament, British Columbia, 2001, retrieved from http://www.leg. bc.ca/36th5th/3rd_read/gov10-3.htm. 39 Bill 25, Protection of Public Participation Act, 1st sess., 59th Gen. Assembly, Nova Scotia, 2003, retreived from http://nslegislature.ca/legc/ bills/59th_1st/1st_read/b025.htm. 40 Bill 9, An Act to Amend the Code of Civil Procedure to Prevent Improper Use of the Courts and Promote Freedom of Expression and Citizen Participation in Public Debate,1st sess., 39th Legislature, Quebec, 2009, retreieved from http://www2.publicationsduquebec.gouv.qc.ca/ dynamicSearch/telecharge.php?type=5&file=2009C12A.PDF. 41 Bill 138, An Act to Encourage Participation in Public Debate, and to Dissuade Persons from bringing Legal Proceedings or Claims for an Improper Purpose (Protection of Public Participation Act), 1st sess., 39th Legislature, Ontario, 2008, retreived from http://www.ontla.on.ca/bills/ bills-files/39_Parliament/Session1/b138.pdf. 42 Bill 132, An Act to Encourage Participation on Matters of Public Interest and to Dissuade Persons from Bringing Legal Proceedings that Interfere with Such Participation (Protection of Public Participation Act), 1st sess., 40th Legislature, Ontario, 2012, http://www.ontla.on.ca/bills/billsfiles/40_Parliament/Session1/b132.pdf. 43 Landry, “From the Streets to the Courtroom.” 44 Bill 83, An Act to Amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act In Order to Protect Expression on Matters of Public Interest, 2nd sess., 40th Legislature, Ontario, 2013, retreived from http://www.ontla.on.ca/bills/bills-files/40_Parliament/ Session2/b083.pdf.

64  Normand Landry 45 Michaelin Scott and Chris Tollefson, “Strategic Lawsuits against Public Participation: The British Columbia Experience,” Review of European Community and International Environmental Law 19, no. 1 (2010): 45–57. 46 Bill 102, Public Participation Act. 47 Ibid. 48 Bill 10, Protection of Public Participation Act. 49 Ibid., section 1(2)(b). 50 Bill 9, An Act to Amend the Code of Civil Procedure. 51 Ibid. 52 Lucie Lemonde and Marie-Claude P. Bélair, “Premières interprétations des nouvelles dispositions sur les poursuites abusives et les poursuitesbâillons: La confusion des genres,” La Revue du Barreau du Québec (2012): 271–321. 53 Constructions Louisbourg ltée v. Société Radio-Canada, Accurso v. Gravel, 3834310 Canada inc. & Ugo Lapointe c. Pétrolia inc., Barrick Gold Corporation c. Éditions Écosociété inc. 54 Ramani Nadarajah and Renee Griffin, “The Failure of Defamation Law to Safeguard against SLAPPs in Ontario,” Review of European Community and International Environmental Law 19, no. 1 (2010): 70–82. 55 This is, notably, the case in Quebec: “The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate.” Bill 9, An Act to Amend the Code of Civil Procedure, article 54.1. 56 Bill 10, Protection of Public Participation Act. 57 Bill 9, An Act to Amend the Code of Civil Procedure. 58 Moran, Downard, and MacLeod Rogers, Anti-SLAPP Advisory Panel Report, 8. 59 Bill 83, An Act to Amend the Courts of Justice Act. 60 Pamela Shapiro, “SLAPPs: Intent or Content? Anti-SLAPP Legislation Goes International,” Review of European Community and International Environmental Law 19, no. 1 (2010): 16, emphasis in original. 61 Michel Bélanger, Assemblée Nationale du Québec, Commission des Institutions, “Consultations particulières sur le Projet de Loi no 99 – Loi modifiant le Code de Procédure Civile pour prévenir l’utilisation abusive des tribunaux et favoriser le respect de la liberté d’expression et la participation des citoyens aux débats publics,” Journal des Débats 40, no. 63 (2008).

Strategic Lawsuits against Public Participation  65 62 Guy Lessard, Assemblée Nationale du Québec, Commission des Institutions, “Consultations particulières sur le Projet de Loi no 99 – Loi modifiant le Code de Procédure Civile pour prévenir l’utilisation abusive des tribunaux et favoriser le respect de la liberté d’expression et la participation des citoyens aux débats publics,” Journal des Débats 40, no. 64 (2008). 63 Bill 83, An Act to Amend the Courts of Justice Act.

4 Process Journalism and Responsible Communication: Establishing Real-Time Reporting Practices That Defend against Defamation tim currie

In January 2011, a sports reporter for the Associated Press issued a tweet that was both surprising and unsurprising at the same time. The reporter, Jon Krawczynski, was covering a National Basketball Association (NBA) game between the Houston Rockets and the Minnesota Timberwolves. He stated in a tweet that he overheard referee Bill Spooner promise Timberwolves coach Kurt Rambis that he would intentionally call a foul on the Rockets as compensation for blowing a call against the Timberwolves earlier. Krawczynski tweeted: “Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks.”1 The tweet was unremarkable in that it merely echoed a widely held view that payback calls in the NBA are common.2 It was unusual, however, in that prior to the advent of social media, it would have been rare to see a reporter from a mainstream news organization comment on a matter of ethical integrity with no verification. Spooner sued the Associated Press and Krawczynski for defamation and asked for damages of more than US$75,000.3 An NBA investigation found no evidence that Spooner had made the comment, while Krawczynski maintained his tweet was “true or substantially true.”4 The parties settled out of court less than a year later, with AP paying US$20,000 towards Spooner’s legal costs and Krawczynski agreeing to delete his tweet.5 In the settlement, Krawczynski acknowledged “the possibility that he misunderstood” Spooner.6 This was the first case in North America of someone suing a reporter for defamation over a tweet. This case underscores the changing landscape journalists are navigating as they increase their use of social media. They are exploring

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the real-time, conversational aspect of the medium and challenging expectations – among the audience and within the newsroom – of published content. Freed from layers of editorial oversight associated with slow and cumbersome publishing technologies, journalists are relaxing their self-censorship in response to a medium that welcomes timeliness and humanity. In particular, their use of Twitter is testing the traditional journalistic practice of verify first, publish later. These journalists are influenced by a growing number of scholars and bloggers who argue that social media are fundamentally distinct from print and broadcast. These voices call for different approaches to publishing, but not necessarily different ethical standards. They advocate for journalism conducted as a process, not just as a product. Many news organizations, however, have reacted with unease at the prospect of letting the public see how the sausage is made – especially in breaking-news situations – even though individual reporters are already inviting the public to help make the sausage themselves. The threat of defamation lawsuits hangs over news organizations’ efforts to increase audience participation online, even if actual legal action is rare.7 One threat is users posting defamatory content on a news organization’s own site. Another is journalists – like Krawczynski – making errors themselves in real-time reporting using a social media service. But the Supreme Court of Canada has strengthened the defence against libel actions in recent years, ruling on the use of hypertext links and the creation of the responsible-communication defence. In particular, the Court has ruled that hypertext links are not a form of publishing. As well, it has allowed a defence for publishing inaccuracies when care was taken in pursuit of the public interest. The rulings have strengthened the freedom-of-expression protections under the Charter of Rights and Freedoms for journalists and non-journalists alike. Thirty years after the Charter was signed, they have shaped its provisions for the digital age, beyond its initial assumptions of a print and broadcast world. These rulings point the way for journalists to leverage the functionality of social network services to build a model of publishing that works in real time and that strengthens protection against defamation suits. In this chapter, I first describe the threat posed to journalists by libel risk and the policies news organizations are issuing as guidance. Then, I elaborate on the concept of process journalism and the kinds of stories that are suitable for it. Finally, I consider some steps that journalists can take in order to reduce risks related to libel, using the recent Supreme Court rulings as guidance. I conclude by revisiting

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the Krawczynski case and suggesting the use of specific practices that leverage the power of the Internet to limit those risks. In Newsrooms: Unease over Libel Risk Social media use is now widespread among news organizations. However, while journalists are adopting the tools, they are immersing themselves in participatory culture with caution. News outlets are using their main Twitter accounts in limited ways that mimic traditional publishing,8 while journalists themselves have deep worries about libel as they work in participatory media. A study of journalists worldwide found “the word ‘libel’ strikes fear in the hearts of almost every journalist around the Western world,” with one Canadian editor stating, “I kind of live in perpetual fear” of the risk from user-generated content.9 Two contributors to this collection, Normand Landry and James Allan, describe the paralysing impact of litigation on the media and public discourse.10 Landry explores the use of so-called SLAPPs, or strategic lawsuits against public participation, which are used mainly by deeppocketed organizations to silence poorer defendants with the threat of unmanageable legal fees and awards. Lyn Millner, a journalism professor at Florida Gulf Coast University, suggests “defamation suits will settle the matter” with the threat of punitive damages for Twitter users who engage in the bald retweeting of potentially libellous information. “If journalists are not questioning the wisdom of unverified retweets, surely (their organization’s) general counsel is,” she argues.11 Some large news organizations have gone as far as to advise their employees against using social media to break news to their followers. Krawczynski’s own organization, the Associated Press, had a policy at the time of his NBA game tweet that admonished its employees: “Don’t report things or break news that we haven’t published, no matter the format.”12 The policy expressed enthusiasm for social media use generally. In its Q&A section it had this guidance: “Is it OK for AP employees to have accounts on such social-networking sites as Facebook and Twitter? Absolutely.” However, it stated only that social networks “have become an important tool for AP reporters to gather news,” the suggestion being that journalists use the service primarily for listening and not participating in the distribution of news.13 The edict lives on in AP’s 2012 social media guidelines for employees, which has the stated aim of making breaking news available to AP partners first.14 The guidelines state, however, that journalists are free to share “cutting room

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floor” content that “meets our standards for quality and accuracy.”15 The American Society of News Editors similarly advises its members to “break news on your website, not on Twitter” and to shun the “great temptations and added incentives to break news on Twitter or Facebook instead of waiting for it to move through the editorial pipeline.”16 Indeed, the editorial pipeline has been the core vehicle for journalistic accuracy in the modern era. Bill Kovach and Tom Rosenstiel, longtime journalists and media observers, refer to “skeptical editing” in their book The Elements of Journalism. Such editing is a primary technique in confronting fallible human traits such as “the limits of one’s knowledge and the power of one’s perceptions.”17 Any reduction of editorial oversight, then, is fraught with risk, and “a medium that thrives on speed and ‘sharing’ creates the potential for great harm.”18 The sources of libel risk online, however, extend beyond journalists simply erring in their own observations. Even with the protections afforded by the recent Canadian Supreme Court rulings, they include retweeting injurious opinions and repeating erroneous information, leading to the prospect of financial loss or damage to reputation.19 The stakes can be high. Harm to an individual – though inflicted in an instant – can be serious and long-lasting. News organizations, in general, have found it a challenge to allow journalists to explore social media without circumscribing their behaviour in a fearful tone.20 Furthermore, explicit policies are often too open to interpretation. For instance, was Krawczynski’s comment a breaking news alert or an offhand “cutting room floor” observation? The tweet remains an awkward fit with AP’s policy. Other organizations have approached the issue by applying different standards of verification to various employees. For the BBC’s main, branded accounts, “the golden rule for our core news, programme or genre activity is that whatever is published – on Twitter, Facebook or anywhere else – must have a second pair of eyes prior to publication.”21 For other BBC-branded accounts with an employee’s name on it, the restrictions are looser; they need only be consistent with “official BBC News output” and subject to live oversight by a senior editor.22 In Canada, news organizations have spent considerable effort training reporters and editors in the use of social media. They still struggle, however, to integrate social media practices into editorial routines.23 Major news organizations in the country have avoided placing heavy restrictions on employees’ use of social media, instead pushing them generally to use social media responsibly within the existing practices of the organization. The Toronto Star’s policy, for example, focuses on “building

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trust” and being “seen to be transparent.”24 The Montreal Gazette’s social media policy, on the other hand, calls on employees to “conduct journalism in the open” but “consult with the digital news editor before posting unverified news on Gazette accounts.”25 The New York Times is one of the few major US news organizations to eschew formal social media guidelines.26 In general, it is smaller news organizations with liberal approaches, such as the Pennsylvania-based Journal-Register company, that have made their aversion to guidelines publicly known.27 In addition, outlets such as the Milwaukee Journal Sentinel and blogs such as BuzzFeed actively encourage employees to post breaking news in social media without editorial oversight.28 These policies represent polarized approaches to the question of who should get breaking news first – social media followers or editors? This question is currently “being raised in newsrooms around the world.”29 Process journalism may be a way to bridge those approaches – to react to the information circulating in social media conversations, while turning the process of verification outward. Process Journalism The organizations with more liberal policies are relying on a stillemerging body of literature that aims to define the differences between online culture and print or broadcast. Former Nieman Journalism Lab contributor Megan Garber argues that social media platforms are a new category of communication, halfway between text and speech: “Social media is its own thing: with neither ‘the heft of deliberation’ of print nor the ‘ephemeral’ nature of speech.”30 As a result, she argues, a social media post does not easily fit into the mould of “publication,” making it unfit for applications of the traditional definitions of libel: “Text is no longer simply a repository of thought, composed by an author and bestowed upon the world in an ecstasy of self-containment. Writing is newly dynamic. It talks. It twists. It has people on the other end of it.”31 Felix Salmon, a finance blogger at Reuters who comments frequently on new media issues, also likens Twitter to speech. People use the service to acknowledge emerging claims and evaluate their truth as new information becomes available. “Twitter behaves in many ways more like a newsroom than a newspaper,” he states. “Rumors happen there, and then they get shot down – no harm no foul.”32 This concept of journalism as involving dynamic interactions is reflected in writer Dan Gillmor’s influential observation that online audiences are “transforming

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the news from a lecture into a conversation.”33 This new way of thinking about journalism is advanced by a growing group of advocates, including scholars and bloggers. Foremost among them is academic Jeff Jarvis, who remarks that “newspaper people see their articles as finished products of their work. Bloggers see their posts as part of the process of learning.”34 Jarvis, a journalism professor at the City University of New York, characterizes print as being produced to near perfection and delivered “each day in a box with a bow on it.”35 He contrasts that with the quick, interactive nature of online journalism, where “the story, the reporting, the knowledge are never done and never perfect.”36 The public already sees journalists as fallible; the difficult part, argues Jarvis, is getting reporters and editors themselves “to trade in their hubris and recapture their humanity and humility” by acknowledging that they will inevitably make mistakes. “This is about new and better ways to gather, share, and verify news. And it is about a radically different and improved relationship between journalists and the public they serve.”37 The practice of process journalism has been advanced in recent years by Andy Carvin, the National Public Radio senior strategist who has invented “a brand-new kind of journalism on the fly and in full public view.”38 Carvin became the iconic face of the Arab Spring by crowdsourcing social media posts from Tunisia and Egypt and verifying them in real time. He was “fact-checking in full view,” often reposting unconfirmed reports following his single-word inquiry: “Source?”39 His stock-in-trade is a key component of process journalism: telling the audience the status of what is known and unknown during a breaking news event. Steve Buttry, a digital journalism trainer and advocate of process journalism, states: “With care, we can engage the community in helping us verify (or refute) some reports faster and more reliably than we can by controlling the process entirely ourselves. As Andy Carvin of NPR has demonstrated on many occasions this year, we can raise questions as we repeat unverified reports, enlisting the crowd in our quest to verify facts and report the truth.”40 Indeed, a dynamic editing environment has evolved to include a “responsive and active external factchecking body” consisting mainly of news consumers.41 This approach references Kovach and Rosenstiel, who advise that journalists be candid with the audience concerning the “different levels of knowledge” in a story: “The more honest the journalist is with the audience about what he or she knows and doesn’t know, the more trustworthy the journalist is. Level with people. Make no claims to an omniscience you

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cannot justify. Acknowledging what is not known is a claim to more authority, not less.”42 Critics of process journalism point to published errors and inaccuracies, which they say lower public trust. On 28 June 2012, CNN mistakenly interpreted the US Supreme Court’s ruling on health-care legislation while editorial staff pored through the complex legal ruling in real time.43 Staff initially pronounced the wrong verdict – that the court had struck down the individual mandate – on air, online, by email, and on Twitter. Steve Myers, managing editor of the Poynter Institute for journalism training, argues the mistake was a failure of process journalism: “Fox and CNN’s mistakes stemmed from their decisions to report what they knew, or thought they knew, as soon as they knew it. In other words, it stemmed from their embrace of process journalism: publish what you have now, figure out the story as you go, correct your mistakes as you update. These reporters knew little and figured wrong. But that’s not necessarily a strike against you when practicing process journalism.”44 Jarvis defends process journalism by arguing that one cannot practise process journalism with every story.45 Process journalism is a method of discovery and reporting to be used only when facts are not yet knowable. It is not to be used, for example, for reporting one’s progress in sorting through information at hand, such as at a news conference or a budget lockup – events suitable to product journalism: “In true process journalism, the news itself is a process, not a fait accompli like a court decision. Process journalism is about news itself as a process and journalism following that process – again, with due caveats. Process journalism is about covering a truly breaking story – a storm, a riot, a revolt, say – and recognizing that fact in how we cover it. This was a matter of TV news making bad assumptions on too little information and speaking too soon.”46 Salmon rejects the notion of speaking too soon but suggests that public tolerance for process journalism missteps depends on who is posting the information.47 He suggests the public has a higher expectation of product information, for example, in Reuters’s main branded social media accounts. Alternatively, the audience may be more forgiving of errors from a journalist’s personal account used in the process of newsgathering: “I think that big flagship Twitter accounts like @Reuters or @WSJ should be held to a higher standard. But for the rest of us, we’re conversing on Twitter just like we converse in real life.”48 Process journalism, as viewed in this way, is about inquiry – the pursuit of individual journalists – not production, the output of

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organizations. It is a method of adding value in newsgathering, even if it’s as simple as asking a question, rather than simply transmitting unfiltered statements. In this context, process journalism is not unlike the traditional journalism practice of “matching stories,” whereby news organizations have historically required reporters to call a source to confirm a competitor’s scoop (and thereby avoid crediting the rival news organization for its reporting).49 The second story repeats much of the same information but often introduces one or two new pieces. Process journalism, too, adds originality, albeit in tiny chunks, soliciting audience contributions and building on facts as they become known in real time. Given the value of process journalism, what can journalists do to protect themselves from its inherent risks? Practices Protecting Process Journalism What might a real-time process-journalism defence of libel look like? Three landmark Canadian court decisions in recent years support practices that could be effective in establishing a defence of libel. Key elements of these practices involve being transparent through the use of links, showing efforts at inquiry, and being clear that published updates are about ongoing discovery. In 2009, for instance, the Supreme Court of Canada offered a defence against defamation based on matters of public interest. Two decisions – Grant v. Torstar Corp.50 and Quan v. Cusson51 – introduced the defence of responsible communication. In essence, a person – not just a journalist – can use this defence to fight a charge of defamation if the person acts in a responsible manner set out by the Court – one that demonstrates inquiry, fairness, and balance. In what seemed to be a nod to the advocates of process journalism, the Court alluded to the Charter provision of free expression, arguing that people in public life are not “entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose.”52 In his analysis of the ruling, University of King’s College journalism professor Dean Jobb states: “In essence, it grants journalists reporting on issues of public importance the right to be wrong. [But] not completely wrong, of course.”53 He notes further: “The court has simply taken many of the elements of good journalism and recognized them in law.”54 But according to the Court, the elements of “good journalism” are clearly the elements of good traditional journalism.55 The wording of the ruling includes references to bloggers as well as journalists, but

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it repeatedly refers to the format of journalism as an “article” or a “story,” and states that these are to be read “broadly as a whole.”56 It also includes references to the “fairness and accuracy of the report.”57 Is a Twitter post a “report”? Many would suggest it is not, and perhaps even fewer would call it a “story” or an “article.” As suggested by Chief Justice Beverley McLachlin, who delivered the ruling on Grant v. Torstar, some deep concerns remain with the Court: “Will accuracy and fairness be casualties of the social media era? … How can a medium such as Twitter inform the public accurately or adequately in 140 characters or less? … Overarching all these questions is the essential one – what steps can members of the media or the legal profession take to ensure responsible reporting?”58 For journalists using social media in a real-time environment, these steps appear to be of the utmost importance. The ruling in Grant v. Torstar outlines the eight elements of the responsible-communication defence, which is available to members of the media if the publication in question is proven to be in the public interest. In general, the defendant must show “that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.”59 The eight elements of the defence are as follows: • The seriousness of the allegation; • The public importance of the matter; • The urgency of the matter; • The status and reliability of the source; • Whether the plaintiff’s side of the story was sought and accurately reported; • Whether the inclusion of the defamatory statement was justifiable; • Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and, • Other relevant circumstances.60 The first four elements of the defence pertain mainly to the subject matter, timing, and sourcing of the published statement in question. Consequently, there is little there that is directly applicable to an instance of process journalism. The comments in the majority ruling that concern the third factor – urgency – are instructive, however. These comments specifically point out that a journalist’s or blogger’s desire for a scoop would be unlikely to factor as a defence for irresponsible reporting.

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Instead, “if a reasonable delay could have assisted the defendant in finding out the truth … this factor will weigh in the plaintiff’s favour.”61 The court is suggesting that defamation in circumstances similar to the CNN episode – where a journalist rushes to be the first to publish when verification is readily at hand – might be difficult to justify. There appears to be a more substantial application to process journalism in element five – whether the plaintiff’s side of the story was sought. In the ruling, Chief Justice Beverley McLachlin states, “In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond.”62 Jarvis, too, acknowledges this point, arguing that we “need to investigate new ways to make even the subjects of investigation part of the process of investigation, so it is clear they have the opportunity for correction and clarification earlier on.”63 In fact, Twitter has this functionality with its built-in notification system for people mentioned by username. A Twitter post containing another username generates, by default, an alert in the target account – an action that could be interpreted as an invitation to respond. Consequently, a published tweet alleged to be defamatory might be seen by the courts as “giving the target an opportunity to respond” in real time, that is, if it references a username, instead of a real name.64 The sixth element of the responsible-communication defence is whether inclusion of the defamatory statement was justifiable. In the majority’s comments, “the ‘repetition rule’ holds that repeating a libel has the same legal consequences as originating it.”65 But what constitutes repetition? In 2009, the majority ruling of the Supreme Court of Canada in Crookes v. Newton held, “Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content … A hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers.”66 Since a successful libel action requires publication, the ruling effectively removes the threat of libel on the basis of using a hypertext link alone. Journalists might apply the logic of this ruling by merely linking to relevant content rather than restating it. This practice is likely to significantly reduce the risk of defamation. Since Twitter’s early days, users have developed a convention for forwarding tweets with the text prefix “RT” (for retweet) preceding the username of the original author (e.g., “RT @cbcnews: Former Libya PM extradited from Tunisia http://bit.ly/Oft1oo”).67 However, since 2009, Twitter itself has been pushing users to adopt its native retweet function, which, similar to embedding a YouTube video on a website,

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simply captures the original tweet and places it in other users’ timelines without duplicating the content. It is, in essence a link to the originating tweet, even if it isn’t rendered in hypertext. Poynter contributor Jeff Sonderman argues, “This type of retweeting editorializes the least.”68 Consequently, it may provide an effective defence against defamation. A potential drawback is that this native functionality prevents retweeters from adding their own words to the content – a limitation conceptually at odds with the values of process journalism. However, the functionality of native retweets theoretically allows for users to issue a correction to a previous retweet, tie that correction to the original statement, and distribute it to the same people who saw the original tweet. Twitter already offers the core features that would be required: it tracks interactions, issues notifications, and displays posts in conversation threads. Twitter has not implemented a function for delivering corrections, but Sonderman has explored how this might work.69 In any case, linking, embedding, or referencing content – not repeating it – would appear to substantially reduce the risk of defamation for people partaking in process journalism. The seventh element of the responsible-communication defence is acting in the public interest. It introduces the defence of “reportage” for statements “whose public interest lies in the fact that they were made rather than in their truth or falsity.”70 In essence, it can protect statements that serve the public interest, even if they are untrue. The reportage defence, itself, has four sub-elements: • Attributing the statement to a person; • Indicating that truth has not been verified; • Setting out both sides of the dispute fairly; and, • Providing context.71 It would be nearly impossible to meet all of these conditions in a single tweet. These sub-elements, however, suggest specific practices that could aid a defamation defence. Keeping in mind these four sub-elements, a journalist working in real time could do the following: • Attribute the source of a statement not (only) to a real name but also to a @username. When a Twitter user makes such an attribution, it refers to a specific user, not just anyone who happens to go by that particular name. Stronger verification increases accountability – a factor named in the ruling.

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• Use a hashtag as a convention for indicating “here’s what we know, here’s what we don’t know.”72 An example might be #unverified or #werelookingintoit to indicate that the post represents a process, not a product. • Tie tweets together to create adequate space to address an issue fairly. A limit of 140 characters can be restricting. One could denote that a tweet is one of a series of related thoughts by including “1/2” or “2/2” in the tweet itself. • Include URLs to other sources to provide context. Finally, the eighth element of the defence simply references “other” considerations. Although the ruling does not specify what these other considerations might be, the ethos of process journalism suggests that evidence of further inquiry would likely be important. The ruling stated explicitly that “the ‘bald retailing of libels’ is not in the public interest.”73 That is, the law should not protect people who are “willing to wound, and yet afraid to strike” by repeating a libel under the guise of attributing it to someone else. So evidence of having sought clarification of facts by mentioning specific users by username could bolster a defence. Conclusion Was the Krawczynski tweet an instance of process journalism? The definition of “process journalism” as articulated by Jarvis and Buttry would suggest not.74 First, the event itself was not conducive to process journalism. Like a court decision, a professional sports game supplies a barrage of already-available information, with sources readily at hand. As Jarvis argues, this type of event lends itself to product, not process coverage.75 Second, the tweet did not indicate the “status of what is known and unknown,” in Buttry’s76 words, nor was it candid in proclaiming Kovach and Rosenstiel’s “levels of knowledge.”77 The common perception may be that payback calls are widespread, but the alleged fact of Spooner having made such a comment is both surprising and significant – qualities that ought to lead us to question the “knowability” of such a report. An addition such as #unverified might have added clarity for the audience. Third, the tweet did not exhibit any evidence of inquiry, although it is difficult to determine if other tweets issued by Krawczynski before or after did. As suggested by process journalism advocates, publication of incomplete or unverified information must necessarily be accompanied by a tacit – if not

78  Tim Currie

explicit – invitation to see it completed and confirmed. For example, Krawczynski might have issued a prior tweet asking other reporters nearby if they heard what he (thought he) did. This third aspect, evidence of inquiry, would appear to be the most important aspect of process journalism. When someone states something surprising – whether in person, in a tweet, or on a webpage – a journalist who references it in real time might exhibit scepticism and a desire for verification. In this way, the restatement would add value, showing evidence of moving towards establishment as fact. Subsequent tweets or posts would add clarification and ideally be linked together for seamless reading in a conversation. It seems likely that an effective defence against a real-time defamation would borrow heavily from these practices, leveraging the fundamental technologies of the Internet.78 The responsible-communication defence in Canada coupled with the recent ruling on linking suggests specific methods for limiting the risk of defamation online. Linking aggressively to source statements, using hashtags, mentioning people by username, and using native retweets could serve in strengthening a defence against defamation and building stronger reporting. Social media policies at news organizations already provide insightful guidance for working in real-time breaking news situations. The Toronto Star guidelines state, “When reporting breaking news through social media, the source of the information should be included and readers must be told if the information has not yet been verified by the Star.”79 Guidelines and policies at other news organizations – as well as emerging practices or individual reporters – show that process journalism methods are already taking hold and are evolving quickly. There is already an emerging trend of newsroom guidelines requiring everlooser restrictions on journalists’ conduct in social media. In addition, news organizations are revising their codes with increasing frequency to accommodate editors’ changing perspectives. Fifteen years after the dawn of the World Wide Web, the 2009 Supreme Court rulings brought nuance and strength to the Charter’s freedom-of-expression provisions. Crookes v. Newton, the hypertext ruling, brought clarity for journalists who work online even if, in total, the rulings offer no direct instructions regarding social media specifically. Still, their relevance to journalists using social media is considerable – if journalists can effectively tap the functionality of social media services to address the legal imperatives outlined in the rulings. Journalists have won important protections for Charter rights, but clarity for the social media age is still incomplete.

Process Journalism and Responsible Communication  79 NOTES 1 The tweet no longer exists but the screenshot from twitter.com is available on numerous websites. See Chris Richardson, “NBA Referee, AP Settle Twitter Beef,” Web Pro News, 8 December 2011, http://www.webpronews. com/nba-ap-settle-twitter-beef-2011-12. 2 Ryan M. Rodenberg and Choong Hoon Lim, “Payback Calls: A Starting Point for Measuring Basketball Referee Bias and Impact on Team Performance,” European Sport Management Quarterly 9, no. 4 (2009): 375–87. 3 Mallary Jean Tenore, “What Journalists Need to Know about Libelous Tweets,” Poynter Institute, 14 August 2011, http://www.poynter.org/2011/ what-journalists-need-to-know-about-libelous-tweets/141987/. 4 Ed Stych, “NBA Ref and AP Settle Suit over Reporter’s Tweet,” Minneapolis/St. Paul Business Journal Online, 7 December 2011, http://www. bizjournals.com/twincities/blog/law/2011/12/nba-ref-ap-reporter-settleover-tweet.html. 5 Associated Press, “NBA, AP Reach Settlement in Lawsuit over Reporter’s Tweet,” NBA News, 7 December 2011, http://www.nba.com/2011/ news/12/07/nba-twitter-lawsuit-settlement.ap/index.html. 6 Ibid. 7 Jane B. Singer, “Taking Responsibility: Legal and Ethical Issues in Participatory Journalism,” in Participatory Journalism: Guarding Open Gates at Online Newspapers, by Jane B. Singer, Alfred Hermida, David Domingo, Ari Heinonen, Steve Paulussen, Thorsten Quandt, Zvi Reich, and Marina Vujnovic (Oxford: Wiley-Blackwell, 2011), 121–38. 8 Jesse Holcomb, Kim Gross, and Amy Mitchell, “How Mainstream Media Outlets Use Twitter,” Pew Research Center’s Project for Excellence in Journalism, 14 November 2011, http://www.journalism.org/2011/11/14/ how-mainstream-media-outlets-use-twitter/. 9 Singer, “Taking Responsibility.” 10 See Normand Landry, “Strategic Lawsuits against Public Participation and Freedom of the Press in Canada,” and James Allan, “The View from Down Under: Freedom of the Press in Canada” (chapters 3 and 15, respectively, in this volume). Of course, for the rare news organization with deep pockets, defamation actions may not have a “paralysing effect”; rather, as Anne-Marie Gingras observes in chapter 5, they may simply be seen as the cost of doing business. 11 Lyn Millner, “A Little Bird Told Me,” Journal of Mass Media Ethics 27, no. 1 (2012): 61. 12 David Kravets, “AP Issues Strict Facebook, Twitter Guidelines to Staff,” Wired, 23 June 2009, https://www.wired.com/2009/06/facebookfollow.

80  Tim Currie The AP policy was an internal document. It was not published publicly but it was reported on. 13 Ibid. 14 Associated Press, Social Media Guidelines for AP Employees, last modified in January 2012, http://www.ap.org/Images/SocialMediaGuidelinesforAPE mployees-RevisedJanuary2012_tcm28-4699.pdf. 15 Ibid. 16 James Hohmann and the 2010–11 ASNE Ethics and Values Committee, “10 Best Practices for Social Media: Helpful Guidelines for News Organizations,” American Society of News Editors (ASNE), May 2011, http://asne.org/Files/pdf/10_Best_Practices_for_Social_Media.pdf. 17 Bill Kovach and Tom Rosenstiel, Elements of Journalism: What Newspeople Should Know and the Public Should Expect, rev. ed. (New York: Three Rivers Press, 2007), 103. 18 Stephen J.A. Ward, “Digital Media Ethics,” Center For Journalism Ethics: School of Journalism and Mass Communication, University of WisconsinMadison, retrieved 24 June 2012, from http://ethics.journalism.wisc.edu/ resources/digital-media-ethics/. 19 Bert Bruser, Tim Currie, Kirk LaPointe, and Ellen Van Wageningen, “Guidelines for Re-Tweeting or Re-Posting Information Found in Social Media,” Canadian Association of Journalists, 7 June 2010, http://www.caj. ca/?p=743. 20 Steve Buttry, “ASNE Offers Good Advice on Social Media, but Too Much Fear and Not Really ‘Best Practices,’” Buttry Diary, 12 May 2011, http:// stevebuttry.wordpress.com/2011/05/12/asne-offers-good-adviceon-social-media-but-too-much-fear-and-not-really-best-practices/; Mathew Ingram, “Newspapers and Social Media: Still Not Really Getting It,” GigaOM, 5 April 2011, http://gigaom.com/2011/04/05/ newspapers-and-social-media-still-not-really-getting-it/. 21 “News: Social Media Guidance,” BBC News, last modified in June 2011, http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/14_07_11_news_social_ media_guidance.pdf. 22 Ibid. 23 Tim Currie, “Social Media Editors in the Newsroom: A Survey of Roles and Functions” (paper presented at the Annual Meeting for the Association for Education and Journalism and Mass Communication, Chicago, Illinois, 9–12 August 2012). 24 “Toronto Star Newsroom Policy and Journalistic Standards Guide,” Toronto Star, 7 December 2011, https://www.thestar.com/opinion/public_editor/ 2011/12/07/toronto_star_newsroom_policy_and_journalistic_standards_ guide.html#social.

Process Journalism and Responsible Communication  81 25 “The Gazette’s Social Media Policy,” Montreal Gazette, last modified 4 May 2012, http://www.montrealgazette.com/news/Gazette+social+media+pol icy/6566517/story.html. 26 Jeff Sonderman, “Why the New York Times Eschews Formal Social Media Guidelines,” Poynter Institute, 11 July 2012, http://www.poynter. org/2012/why-the-new-york-times-eschews-formal-social-mediaguidelines-for-staff/180455/. 27 John Paton, “JRC Employee Rules for Using Social Media,” Digital First, 30 April 2011, http://jxpaton.wordpress.com/2011/04/30/jrc-employeerules-for-using-social-media/ (login required). 28 Carl Straumsheim, “Who Gets It First: Twitter or the Editors?” American Journalism Review, 16 March 2012, http://www.ajr.org/Article.asp?id=5271. 29 Ibid. 30 Megan Garber, “Is Twitter Writing, or Is It Speech? Why We Need a New Paradigm for Our Social Media Platforms,” Nieman Journalism Lab, 2 June 2011, http://www.niemanlab.org/2011/06/is-twitter-writing-or-is-itspeech-why-we-need-a-new-paradigm-for-our-social-media-platforms/. 31 Ibid. 32 Felix Salmon, untitled blog post, Felix, 28 July 2011, http://felixsalmon. tumblr.com/post/8176279226/theres-been-a-lot-of-shamefacedness-and. 33 Dan Gillmor, We the Media: Grassroots Journalism by the People, for the People (Sebastopol, CA: O’Reilly Media, 2004). 34 Jeff Jarvis, “Product v. Process Journalism: The Myth of Perfection v. Beta Culture,” BuzzMachine, 7 June 2009, http://buzzmachine.com/2009/06/ 07/processjournalism/. 35 Ibid. 36 Ibid. 37 Ibid. 38 Mathew Ingram, “Andy Carvin on Twitter as a Newsroom and Being Human,” GigaOM, 25 May 2012, http://gigaom.com/2012/05/25/ andy-carvin-on-twitter-as-a-newsroom-and-being-human/. 39 Brian Stelter, “Twitter Feed Evolves into a News Wire about Egypt,” Media Decoder (The New York Times), 13 February 2011, http://mediadecoder.blogs.nytimes.com/2011/02/13/ twitter-feed-evolves-into-a-news-wire-about-egypt/. 40 Steve Buttry, “Digital First Journalists: What We Value,” Buttry Diary, 20 December 2011, http://stevebuttry.wordpress.com/2011/12/20/ digital-first-journalists-what-we-value/. 41 Joseph L. Nicole, “Correcting the Record: The Impact of the Digital News Age on the Performance of Press Accountability,” Journalism Practice 5, no. 6 (2011): 704–18.

82  Tim Currie 4 2 Kovach and Rosenstiel, Elements of Journalism, 100. 43 Katherine Fung and Jack Mirkinson, “Supreme Court Health Care Ruling: CNN, Fox News Wrong on Individual Mandate,” Huffington Post, 28 June 2012, http://www.huffingtonpost.com/2012/06/28/cnn-supreme-courthealth-care-individual-mandate_n_1633950.html. 44 Steve Myers, “Were CNN & Fox News’ Mistakes on Supreme Court Ruling Part of ‘Process Journalism?’” Poynter Institute, 29 June 2012, http://www. poynter.org/2012/were-cnn-fox-news-mistakes-on-supreme-court-rulingpart-of-process-journalism/179341/. 45 Jeff Jarvis, “The Scoop Is Dead and Deserves to Be,” BuzzMachine, 28 June 2012, http://buzzmachine.com/2012/06/28/the-scoop-dead-deserves/. 46 Ibid. 47 Salmon, “Untitled Blog Post.” 48 Ibid. 49 Kovach and Rosenstiel, The Elements of Journalism. 50 Grant v. Torstar Corp., [2009] 3 S.C.R. 640. 51 Quan v. Cusson, [2009] 3 S.C.R. 712. 52 Grant v. Torstar Corp. 53 Dean Jobb, “The Responsible Communication Defence: What’s in It for Journalists?” Canadian Journalism Project, 23 December 2009, http://jsource.ca/article/responsible-communication-defence-whats-it-journalists. 54 Ibid. 55 Grant v. Torstar Corp. 56 Ibid. 57 Ibid. 58 Beverly McLachlin, “The Relationship between the Courts and the Media,” Supreme Court of Canada, last modified 21 February 2012, http://www. scc-csc.gc.ca/court-cour/judges-juges/spe-dis/bm-2012-01-31-eng.aspx. 59 Grant v. Torstar Corp. 60 Ibid. 61 Ibid. 62 Ibid. 63 Jeff Jarvis, “The Risk of Reporting,” BuzzMachine, 29 December 2008, http://buzzmachine.com/2008/12/29/the-risk-of-reporting/. 64 Grant v. Torstar Corp. 65 Ibid. 66 Crookes v. Newton, [2011] 3 S.C.R. 269. 67 CBC News, Twitter post, 24 June 2012, https://twitter.com/CBCNews/ status/216948609051140096.

Process Journalism and Responsible Communication  83 68 Jeff Sonderman, “The Problem with Retweets and How Journalists Can Solve It,” Poynter Institute, 9 November 2011, http://www.poynter.org/ 2011/the-problem-with-retweets-how-journalists-can-solve-it/152448/. 69 Ibid. 70 Grant v. Torstar Corp. 71 Ibid. 72 Jarvis, “Product v. Process Journalism.” 73 Grant v. Torstar Corp. 74 Jarvis, “The Scoop Is Dead”; Buttry, “ASNE Offers Good Advice.” 75 Jarvis, “The Scoop Is Dead.” 76 Buttry, “ASNE Offers Good Advice.” 77 Kovach and Rosenstiel, Elements of Journalism. 78 The author of this chapter is not a lawyer and does not intend this analysis to serve as legal advice. 79 “Toronto Star Newsroom Policy and Journalistic Standards Guide.”

5 Freedom of Expression, Entertainment, Hate Speech, and Defamation: Where Do We Draw the Line? anne-marie gingras

Introduction Freedom of thought, belief, opinion, and expression, including freedom of the press and communications media, resonates strongly in liberal democracies. It helps to enlighten the body politic by publicizing conflicting points of view on diverse issues. It facilitates opinion formation, political participation, and the building of social bonds. It is a key principle in the Canadian political system and one of the four fundamental freedoms that ameliorate democracy set out in section 2 of the Constitution Act, 1982.1 Freedom of expression is closely associated with not only the health but the birth of democracy. Indeed, freedom of the press and freedom of expression2 were instrumental in creating the “public sphere,” as Habermas found in his study of seventeenth- and eighteenth-century England, France, and Germany.3 Through the development of these freedoms, public conversations about cultural matters and tariffs and trade opened the way to the formation of “public opinion” that could challenge the state. The people replaced the monarchy as the main source of legitimacy. The passing of sovereignty from the monarch to the people led to the creation of the institution of representative democracy, in which legislators are chosen by the people. The function of the press as an intermediary between elected officials and the people is illustrated by its active role in the public conversation: it puts issues in the public eye, assigns them an order of priority (agenda setting), and presents an array of points of views (using diverse frames). In short, the press is one of the main tools for freedom of expression. But the implementation of freedom of expression, and of the Canadian Charter of

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Rights and Freedoms more generally, is fraught with paradoxes. While the Charter has been conceived of as an instrument for improving the state of democracy by enhancing the people’s rights, conflicting rights might sometimes spoil the atmosphere of a city. This is what happened in Quebec City in 2004 following a landmark decision by the Canadian Radio-television and Communications Commission (CRTC) not to renew the licence of the radio station CHOI-FM, owned by Genex. This followed the granting of a two-year licence only and more than sixty complaints about the station’s spoken-word programming from 1999 onwards. Genex appealed the decision and was involved in a libel lawsuit during the same period. In this chapter, I will describe the events surrounding the non-renewal of the licence and the libel suit in the context of the period from 1999 to 2007, and then explain the results of the administrative procedures at the CRTC and the legal disputes involving CHOI-FM. Second, I will take a look at the limitations of the field of freedom of expression and freedom of the press and ask when the boundaries of freedom of expression have been overstepped. Although a lively public sphere may encompass shocking remarks, irony, and challenges to official discourse, institutions, and public figures, the line between controversial speech and illicit behaviour on air needs to be clarified. Context and Events In 2004, when the CRTC decided not to renew CHOI-FM’s licence, shock radio had been part of the Quebec City area media landscape for almost thirty years. This was due in large part to André Arthur, radio host from 1970 to 2006, one-time radio station owner, independent Member of Parliament who supported the Conservative Party (2006–11), and bus driver for trips between Quebec and Florida (on the side). As a radio host, he faced numerous libel suits, most of them privately settled. His trademark included regular personal attacks on public figures, insults to and denigration of callers, and a strong rightwing discourse targeting women, teachers and professors, unions, gays and lesbians, Montrealers (those living in the Plateau Mont-Royal neighbourhood), civil servants, and immigrants.4 In the fall of 1993, for example, using swear words, he expressed the wish that Quebec finance minister Gérard D. Lévesque, who was terminally ill, would die more quickly.5 In a Supreme Court case involving racial slurs directed at all Haitian and Arabic taxi drivers in Montreal, Arthur was called an

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“aboyeur public” – literally, someone who barks in public − an expression translated as “rabble-rouser” by the court.6 The taxi drivers lost their class-action suit against him in the Supreme Court because individual injury to each Haitian and Arabic taxi driver had not been proven, but the court nevertheless wrote that Arthur’s comments were “wrongful, scornful and racist.”7 Jean-François Fillion became the host of the CHOI-FM morning show Le monde parallèle in 1998. This show was the station’s generator of profitability; well behind in the ratings in 1997, CHOI-FM was the most popular station in the Quebec City area a few years later.8 Le monde parallèle attracted 64,000 listeners per quarter-hour in 2002, and 100,100 in 2004. The ratings race was the major motive for making the morning show as “entertaining” as it was, the owner suggested.9 Raising the ratings was also what drove the creation, in August 2002, of the half-hour program jointly hosted by Fillion and Arthur during the peak listening period of 8:30 to 9:00 a.m.,10 a segment that was aired on both CHOI-FM and Arthur’s CKNU-FM Donnacona, another station owned and operated by Genex.11 As soon as Fillion became host of the morning show on CHOI-FM, complaints regarding hate speech, offensive on-air contests, and personal attacks and harassment were filed at the CRTC.12 After receiving forty-seven complaints, the CRTC called Genex to a public hearing because of CHOI-FM’s apparent non-compliance with some radio regulations, among them “the spoken word content and the quality of CHOI-FM’s programming in light of section 3(1)(g) of the Broadcasting Act (the Act) which declares as part of the broadcasting policy for Canada that the programming originated by broadcasting undertakings should be of high standard.”13 During the hearing, CHOI-FM did not use freedom of expression as a justification for its spoken-word programming, but contended that it was humour and showbiz, and that eighteen- to twenty-five year olds – implicitly believed to appreciate this kind of talk radio − were targeted. The company accepted some responsibility for speech that violates the CRTC regulations (hate speech based on race, sex, ethnic origin, age, and handicap; violations of privacy; personal attacks; use of vulgarity; and so on).14 The radio station proposed to take four measures to conform to the CRTC regulation: the adoption of a code of ethics; the creation of a three-person advisory committee to evaluate complaints from listeners and give advice on implementation of the code of ethics; membership in the Canadian Broadcast Standards Council (CBSC); and

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daily airing of a message informing listeners that they have a right to respond if they feel wronged.15 The CRTC decided to renew the radio station’s licence for two years instead of seven, thus sending a clear message that sanctions would be applied if corrective action was not implemented.16 From 2002 to 2004, more complaints against CHOI-FM were filed at the CRTC, the Quebec Press Council, and the CBSC. A lawsuit for libel and violation of privacy was also launched; a television host on the TVA television network and two specialty channels, MétéoMédia and Canal Vie, alleged that numerous personal attacks were made against her during the licensee’s morning show on 10 September 2002 and 8 October 2002. Comments about her body had in fact been made regularly during Le monde parallèle since 1999. In 2004, CRTC called Genex to a second public hearing because of the licensee’s apparent non-compliance with the radio regulations; a number of serious complaints had been filed.17 Genex hired Guy Bertrand, a high-profile and confrontational lawyer who came up with freedom of expression as the main defence before the CRTC. He later used the same argument before the Quebec Superior Court and the Federal Appeal Court. Bertrand himself was called to order by the Quebec Bar Association18 when he claimed a libertarian conception of freedom of expression, very out of step with his profession: “In a democracy, people can do whatever they want if they are ready to pay the price for it. I can burn your house down if I am ready to go to jail. I can kill someone if I am ready to go to jail. If my speech is libellous there is recourse: radio stations, journalists, or radio hosts … will be able to defend themselves.”19 In the summer of 2004, the CRTC denied Genex’s application for renewal of the broadcasting licence for the French-language commercial radio station CHOI-FM and ordered that the station cease broadcasting by 31 August 2004: Ultimately, in view of the licensee’s inflexible behaviour, its lack of acceptance of its responsibilities and the lack of any demonstrated commitment to rectify the situation, the Commission cannot reasonably conclude that Genex will comply with the Act, the Regulations and its Code of Ethics if its licence is renewed. The Commission also concludes that the measures available to it, such as another short-term renewal, the issuance of a mandatory order, or the suspension of the licence, would not be effective in overcoming the problems that have been identified.20

88  Anne-Marie Gingras

The CRTC cited Genex for on-air remarks that were offensive, degrading, disrespectful, and contemptuous of persons with mental disabilities; for racist comments; for harassment; for having ridiculed ordinary citizens; for having shown disregard for the right to privacy; for having made personal attacks; for having engaged in the relentless and gratuitous denigration of some individuals; and for having adopted malicious and abusive behaviour.21 With regard to the MétéoMédia host, the CRTC explained that CHOI-FM deliberately ridiculed and insulted the complainant by broadcasting numerous abusive remarks about her physical and sexual attributes and claiming that they are the only reason she is popular and that she otherwise has no talent or intelligence … [The remarks] were clearly intended to denigrate and demean the complainant in the eyes of the public. Moreover, the Commission considers that the remarks made about [the MétéoMédia host] exposed women in general to contempt on the basis of sex.22

The Federal Appeal Court allowed the station to operate while waiting for the appeal on the merits of the case, and the appeal was dismissed in 2005. The station was later sold to Radio-Nord, and the CRTC issued a licence to the new owner. When the CRTC’s 2004 decision was made public, the radio station’s very vocal and enthusiastic supporters wore CHOI pins, put bumper stickers on their cars, and circulated petitions in public places. Thirty thousand people demonstrated in the streets of Quebec City in support of the station.23 Meanwhile, people happy with the CRTC decision kept quiet, as an atmosphere of intimidation prevailed. In Langlois’s view, the “sociological success” of the station was due to a “class and generation malaise.” He identified most of the station’s fans as being of lower-middle-class origin and described them as “angry young white males” disappointed by the system and of the opinion that women, immigrants, and handicapped people had more employment opportunities than they did and were blocking their upward social mobility.24 Furthermore, it seemed clear that the sociological success of the station was fuelled by love of rock music and consumer culture, as illustrated by a wide range of giveaways and small gifts – such as caps, pins, and free and reduced-price tickets to shows − used by popular shows to attract people to the station. Marcoux and Tremblay saw this consumer culture as outweighing the ideological aspect for

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the station’s fans. These researchers’ investigation of CHOI-FM fans at the peak of the affair, in 2004, demonstrated that although fans could repeat specific arguments that they had heard the very same morning, they did not know the ins and outs of the matters discussed.25 As for freedom of expression, it was an issue very much in line with a libertarian attitude, in that any restrictions imposed on individuals were tantamount to censorship. The two opposing expressions, (unqualified) freedom of expression and censorship, constituted a false dilemma used by Genex’s lawyers, hosts, and fans; the many intermediate positions were invisible to CHOI-FM and its supporters.26 On-air contestation of the CRTC’s legitimacy was grounded in the superiority of every CHOI supporter’s opinion over the CRTC’s.27 Fillion was fired from CHOI-FM in March 2005 and went to work for the Internet station Sirius. In April 2005, the Quebec Superior Court ordered Genex, Fillion, and his co-hosts to pay $340,000 to the MétéoMédia host who had filed a libel lawsuit for events related to the spoken-word programming of Le monde parallèle. This sum was reduced to $306,000 by the Appeal Court in April 2007. Other libel lawsuits were launched and won in 2005. The Federal Court of Appeal dismissed CHOI-FM’s appeal of the CRTC decision in 2005. Finally, the Supreme Court also dismissed the appeal in 2007. Freedom of Expression and Entertainment Shock radio, also called “extreme radio,” is a variant of talk radio that thrives on entertainment and confrontation in every way possible, including with profanity, sexual remarks, irony, humour, breaking taboos, rumours, exaggeration, insults, repetition,28 tricks, insinuations, duplicity,29 and pre-recorded noises (such as farts, burps, and imitations of sexual sounds).30 It is more showbiz than public affairs programming, although current political and social affairs are discussed on air. This kind of radio is seldom defended through freedom of the press, as it was in Quebec City in 2004. If freedom of expression includes shocking remarks, irony, and challenges to official discourse, institutions, and public figures, then where do we draw the line between controversial speech and illicit behaviour on air? As explained above, Genex lost all the proceedings in which CHOIFM was involved. There are various reasons for this, most of which are not related to freedom of expression. As the Federal Appeal Court wrote, dealing with the non-renewal of the station’s licence, the Genex

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appeal “cannot be transformed into a crusade for freedom of expression without substantially distorting it.”31 Nevertheless, freedom of expression must be taken into account here since Genex used it as an argument in its legal cases from 2004 to 2006. This case study, unique because it combines many aspects of illicit speech, sheds light on the limits to freedom of the press and freedom of expression. The CRTC has dealt with numerous cases in which freedom of expression and freedom of the press have been evoked. It has recognized the importance of the principle of freedom of expression, within legal limits.32 For instance, it recognizes the right of licensees, through their employees, to criticize and question on air the actions of individuals, groups, and institutions in the community. However, it deems that the right to criticize does not give anyone the right to degrade others, to be unduly fierce in his or her criticism, or to use the airwaves to make personal attacks.33 In considering freedom of expression and other issues at stake on air, the CRTC identifies three components of illicit speech: the abusive nature of the comments; the fact that, taken in context, the comments tend, or are likely, to expose an individual or a class of individuals to hatred or contempt; and the fact that the comments are based on an individual’s or a group’s race, national or ethnic origin, colour, religion, sex, sexual orientation, age, or physical or mental disability.34 The literature on freedom of expression and the rulings by the courts and the CRTC shed light on four specific distinctions between illicit remarks and protected speech. The first is cruelty. Although this is a difficult word to define, a comparison with the Holocaust is out of line with speech protected by freedom of expression. For example, radio host Fillion made the following comment about a patient in a psychiatric hospital on 8 May 2003: Why don’t they just pull the plug on him? He doesn’t deserve to live. The guy’s a freaking burden on society … What I think they should do in the zoo (where serious cases are kept) is fill up the rooms, and then there’d be a switch, and once every four months, they press the button and just a little bit of gas comes out, and then you go in and pick it all up and put it in bags.35

The second distinction between illicit remarks and protected speech is personal attacks. This type of comment is well beyond harsh criticism,

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as it often involves degradation, distortion, and false facts. For example, during a broadcast of Le monde parallèle, the parents of African students at Université Laval were described as “cannibals.” Fillion attacked one of his competitors, who filed a complaint with the CSBC. Quoting this body,36 the CRTC wrote that “host Fillion was anything but deft. He was crude and offensive. He spouted ugly and generalized epithets, comprehensible only in their flailing nastiness and not because a serious listener might have actually understood what his competitor did, if anything, to merit criticism.” The CBSC identified particular attacks in contradiction with the Code of Ethics, such as “conceited asshole,” “that worthless piece of trash,” a “loser,” a “piece of vomit,” a “shit disturber,” and a “tree with rotten roots.”37 In December 2002, a police investigation, called “Operation Scorpion,” into a juvenile prostitution network in Quebec City ended with the arrest of presumed pimps and clients. Further covert action would have resulted in illegal action taking place and having more girls join the network. Some businessmen and public figures were involved, but no politician was. Thereafter, CHOI-FM repeatedly made unfounded allegations that some politicians – provincial ministers as well the mayor of Quebec City – had had sex with underage women and had pressured the police to end the investigation. The degrading character of speech was amplified by comments about people’s bodies or sexuality. Women were the favourite target for Fillion, who invented a “smelly odour” for a Montreal columnist who had supported the CRTC decision. He ridiculed the clothes women wore, or criticized the fact that they were not wearing some items of clothing (such as a g-string). Fillion began to target the MétéoMédia host in 1999. The CRTC wrote that the Commission identified several remarks about the complainant related to her physical attributes, and sexual attributes in particular. There are multiple references to the size of her breasts; “[translation] her incredible set of boobs” and suggested that “the size of the brain is not directly proportional to the size of the bra” and that, “in her case, it might actually be inversely proportional.” The participants [of the morning show] even wondered about the texture of the complainant’s breasts and whether anyone has asked the gropers about them, and whether they “[translation] defied gravity.” The host said, “[translation] it’s all in the breasts” and that

92  Anne-Marie Gingras that pair of breasts “did the job on [a hockey player]” which is why the host said [he] chose the complainant over [an American singer and actress].38 The participants also referred to the complainant as “[translation] a consummate liar,” “a cat in heat” and “a leech on [the hockey player]” and “an airhead; it’s all well and good to have big boobs, a tiny waist and a tight ass, but it doesn’t mean a thing,” “there are some seriously sick people at MétéoMédia”; “the girls that are attractive and look good, are always idiots” and “an idiot could do the weather.” They also said that the complainant “[translation] had been around” and that “it happens behind the scenes” and made a number of remarks which suggested that she used personal relationships and even sex to land contracts as a television host.39

Personal attacks were aggravated by unfounded insinuations. According to Fillion, the MétéoMédia host who came to the station to ask that Fillion stop harassing her had “possibly” made sexual advances to him, as well as to a whole range of men. The third distinction between illicit remarks and protected speech is the duration of attacks or degrading comments. Although a one-time comment could be hate or denigrating speech or personal attack per se, the length of time during which remarks are made add to the wrongdoing and the suffering inflicted on the victims. The MétéoMédia host who was targeted by Fillion was subjected to verbal attacks from 1999 to 2005, having her name, her body, her pronunciation, her job, and her friends mocked. The CRTC noted the repetitive offensive behaviour of CHOI-FM: “The spoken word content … does not reflect isolated incidents, but appears to be part of a pattern of behaviour by the licensee that continued and even grew worse, over the course of two consecutive licence terms despite clear, unequivocal warnings from the Commission, the CBSC and even, on occasion, its own advisory committee.”40 Arthur, speaking on CHOI-FM, made repeated personal attacks against Robert Gillet, a host at a rival station (owned by Cogeco), and the company’s general manager and shareholders, contending that they were involved in the juvenile prostitution network. The CRTC called the whole thing a “smear campaign.”41 Although Gillet was arrested and accused of having sex with a seventeen-year-old girl, persistent comments about his trips to Thailand suggesting that he was a pedophile were incitement to contempt. The fourth distinguishing feature is the denigration of ordinary people. Public figures are fair game for harsh criticism to a certain degree;

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the more highly visible an individual is, the more she or he has to put up with unpleasant comments. Ridiculing and insulting ordinary people, however, is another story. Among the accusations made against CHOI-FM, one involved clear attacks on anonymous people. Fillion organized a contest to find the most disgusting and despicable house; “he asked listeners to denounce, on air, neighbours who did a poor job of maintaining their property.” Then, a CHOI-FM team “carried out a live remote broadcast without ever revealing to the occupants the true nature of the contest and the fact that both the hosts and persons calling the station were ridiculing their way of life” on air.42 Conclusion Discussions about freedom of expression seldom take a libertarian tone, as was the case with CHOI-FM. This is particularly true within the journalistic community, in which an impulsive reflex leads to a blind defence of freedom of the press, without knowledge of the specifics of a case. When Reporters Without Borders,43 the Globe and Mail, and the National Post defended CHOI-FM, some wondered if they had ever heard a CHOI-FM broadcast. The Fédération Professionnelle des Journalistes du Québec (FPJQ) deplored the CRTC decision, without supporting the specific use of the airwaves by CHOI-FM.44 The president of FPJQ, Anne-Marie Dussault, told a Le Soleil journalist that she felt like a lawyer for a serial murderer.45 The Canadian Association of Broadcasters refused to support CHOI-FM. The federal minister of communications, Liza Frulla, used her arm’s-length relationship with the CRTC as a reason not to intervene. The Quebec Press Council said that it was sorry that the CRTC could not act other than by not renewing the licence. This body was among the interveners who tried “to reconcile the notion of freedom of expression in a free and democratic society with the need to prevent some radio personalities who use the airwaves, which are public property, from undermining those same values.”46 The Quebec Press Council nevertheless contended that it was very difficult to make CHOI-FM change: “The Quebec Press Council acknowledged the Commission’s efforts to bring civility to CHOIFM’s airwaves by making it subject to a Code of Ethics, but noted that those measures have not always, and, indeed only rarely, produced the desired results and that more stringent measures may be required.”47 The Quebec City daily Le Soleil supported the licence renewal,48 even though one of its journalists had been harassed three years before and

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had had to hire a bodyguard after some of the station’s fans went to the premises to attack her. Le Soleil explained that “Genex has not satisfied its conditions of licence,” suggested that clearer guidelines and a stronger code of ethics be imposed on the station, and argued for a short-term renewal of twenty-four months.49 Some Montreal columnists applauded the CRTC decision.50 The implementation of freedom of expression, and of the Canadian Charter of Rights and Freedoms, is complicated and fraught with paradoxes. In a society where the people are sovereign, some might be tempted to believe that the interpretation of their rights, and the interpretation of freedom of expression more specifically, “goes without saying.” But section 2 of the Charter has become such a powerful symbol in Canada that offensive, injurious, racist, and sexist speech is easily legitimized in its name. Restrictions established in the law and by the courts (limits on time and place; limits on libellous speech, on security matters, on pedophilia; protection of reputation and privacy; and others) are not easily interpreted with what is thought to be “common sense.” As the 2011 Supreme Court decision51 illustrates, society is prepared to tolerate a generous conception of freedom of expression in the name of democracy. But neither civil society nor the political system thrives with a libertarian conception of freedom of expression. NOTES 1 The others are freedom of conscience and religion, freedom of peaceful assembly, and freedom of association. 2 See chapter 14 by Jamie Cameron, “Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012,” for the distinctions between the two. 3 J. Habermas, L’espace public. Archéologie de la publicité comme dimension constitutive de la société bourgeoise (Paris: Payot, 1978). 4 For a detailed analysis of André Arthur’s and Jean-François Fillion’s speech, see Diane Vincent and Olivier Turbide, eds., Fréquences limites. La radio de confrontation au Québec (Montreal: Éditions Nota Bene, 2004), and Diane Vincent, Olivier Turbide, and Marty Laforest, eds., La radio X, les médias et les citoyens. Dénigrement et confrontation sociale (Montreal: Éditions Nota Bene, 2008). 5 When no reference is given for a particular remark by a radio host, it is because the author heard the comments on air.

Freedom of Expression, Hate Speech, and Defamation  95 6 Bou Malhab v. Diffusion Métromédia CMR Inc., [2011] 1 S.C.R. 214, para. 75. 7 Ibid., summary. Also: “Mr. Arthur made accusations of uncleanliness, arrogance, incompetence, corruption and ignorance of official languages. By referring to Creole as speaking [translation] ‘nigger,’ he disparaged and expressed contempt for the language primarily used by Haitians to communicate with one another. As well, when he called drivers of Arab origin [translation] ‘fakirs,’ he made fun of and even ridiculed them. His comments were scornful and racist, as has been found by all the courts that have had to consider them” (para. 82). 8 Chiasson c. Fillion, [2005] Québec Cour Supérieure, no. 200-17-003269-032, paras. 90–1. 9 Ibid., paras. 125 and 132, and CRTC, Broadcasting Decision 2004-271, para. 132. 10 For a more in-depth discussion of the growing influence of advertisers, see Leigh Felesky’s chapter 2, “Exploring How Emerging Digital Business Models and Journalistic Innovation May Influence Freedom of the Press.” 11 CRTC, Broadcasting Decision 2004-271, para. 44. 12 CRTC, Broadcasting Decision 2002-189, para. 2. 13 Ibid., para. 7. 14 Ibid., para. 15. 15 Ibid. 16 Ibid., para. 72. 17 “As stated earlier, during the previous five-year licence term from 1997 to 2002, the Commission received 47 complaints about CHOI-FM. By contrast, the Commission received 45 complaints about the spoken word content in the first 17 months of the current licence term. Twelve complaints were forwarded to the CBSC and 29 were reviewed by the Commission … Prior to the 18 February 2004 public hearing, the Commission staff raised serious concerns or identified possible violations related to 11 complaints” (CRTC, Broadcasting Decision 2004-271, para. 42). 18 Pierre-André Normandin, “Me Guy Bertrand sous enquête,” Le Soleil, 20 February 2004, A8. 19 Quebec Bar Association, “Propos de Me Guy Bertrand en marge des audiences du CRTC. Le Barreau du Québec réagit,” press release, 19 February 2004 (author’s translation). For a discussion on how journalists might defend themselves against libel claims, see Tim Currie’s chapter 4, “Process Journalism and Responsible Communication: Establishing RealTime Reporting Practices That Defend against Defamation.” 20 CRTC, Broadcasting Decision 2004-271, para. 141. 21 Ibid., paras. 56 to 90.

96  Anne-Marie Gingras 2 2 Ibid., paras. 64 to 65. 23 Vicky Boutin, “La saga CHOI-FM,” in Michel Venne, ed., L’annuaire du Québec (Montreal: Éditions Fides, 2004), 94–5. 24 Simon Langlois, “Jeunes hommes en colère à Québec: Malaise de classe et de génération,” in Michel Venne, ed., L’annuaire du Québec (Montreal: Éditions Fides), 92–4. 25 Jean-Michel Marcoux and Jean-François Tremblay, Le néopopulisme de CHOI-FM: De l’expansion de la logique consumériste. Profil socio-économique et socio-politique des auditeurs mobilisés (Quebec City: Centre d’Études sur les Médias, 2005). 26 Anne-Marie Gingras, “Freedom of Expression and Shock Radio: Quebec CHOI-FM as a Case Study,” World Political Science Review 4, no. 3 (2008), doi:10.2202/1935-6226.1052. 27 Ibid. 28 In a typical day on CHOI-FM, this kind of argumentation was taking place: “What do I think about L’Actualité [the French-language equivalent of Maclean’s]?” asked Fillion in 2004. “C’est mauvais [bad], mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais, mauvais.” This was his “answer,” and nothing more. 29 When Auditor General Sheila Fraser reported that Immigration Canada had lost track of 40,000 refugee claimants, CHOI-FM exclaimed with outrage that there were currently 40,000 active criminals on Canadian soil. 30 Some have called CHOI-FM “trash radio.” See Normand Provencher, “Adieu radio-poubelle!” Le Soleil, 12 April 2005, A1. 31 Genex Communications v. Canada (Attorney General) (F.C.A.), 2005 FCA 283, [2006] 2 F.C.R. 199, para. 41. 32 CRTC, Broadcasting Decision 2004-271, para. 31. See the section called “Freedom of Expression: A See-Saw of Rights and Limits,” in chapter 14 by Jamie Cameron. 33 CRTC, Broadcasting Decision 2002-189, para. 20. 34 CRTC, Broadcasting Decision 2004-271, paras. 31 and 48. 35 Ibid., para. 49. 36 CBSC, Decision 02/03-0115, 17 July 2003, finding the licensee in violation of the Canadian Association of Broadcasters’ Code of Ethics. 37 CRTC, Broadcasting Decision 2004-271, para. 103, emphasis in original. 38 Ibid., para. 61. 39 Ibid., para. 62. 40 Ibid., para. 129.

Freedom of Expression, Hate Speech, and Defamation  97 4 1 Ibid., para. 79. 42 Ibid., para. 88. 43 Denys Duchêne, “Le curieux appui de Reporters sans frontières à CHOI-FM,” Le Devoir, 26 July 2004, A7. Reporters Without Borders did not have a journalist in Quebec City. 44 Fédération professionnelle des journalistes du Québec, “Non renouvellement de la licence de CHOI-FM,” press release, 14 July 2004. 45 Pierre-André Normandin, “Je me sens comme une avocate qui doit défendre un tueur en série. Le retrait du permis de CHOI, un dangereux précédent selon la présidente de la Fédération professionnelle des journalistes du Québec,” La Presse, 14 July 2004, A5. 46 CRTC, Broadcasting Decision 2004-271, para. 14. 47 Ibid. 48 Alain Dubuc, Demande 2003-1399-0. Soumission du quotidien Le Soleil, 13 July 2004, http://www.crtc.gc.ca/eng/archive/2004/db2004-271.htm. 49 Ibid. 50 André Pratte, “Le droit au lynchage,” La Presse, 24 July 2004, A16. 51 Bou Malhab v. Diffusion Métromédia CMR Inc.

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PART TWO

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Press Freedom and Court Processes

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6 Free Expression at Thirty: The Search for Respect d a n i e l h e n ry

My career as a lawyer began a few years prior to the adoption of the Canadian Charter of Rights and Freedoms in 1982. I have witnessed first-hand the operation of the law of free expression in both the preand post-Charter eras.1 While the principles behind the protection of free expression have been much better acknowledged and articulated by Canadian judges since I started, the attitudes of many of those in the legal system applying those principles have not kept pace. The result is that free-expression interests continue to get short shrift when they deserve considerably more deference. Free Expression B.C. (Before the Charter) In the courts, where democracy’s tenets are constantly tested, arguments for free expression did not have a firm, readily identifiable foundation. They did not always prevail. In 1938, the Supreme Court of Canada considered the constitutionality of Alberta’s Accurate News and Information Act, a statute that the Social Credit government of the day wanted to use to ensure accurate reporting of provincial government business.2 The government gave itself the right to demand a newspaper’s sources, and the right to force newspapers to print government replies. Newspapers failing to comply would lose the right to publish. Writers could be barred from publication and sources could be prevented from having their information published. The Supreme Court of Canada could not rely on a Charter right of free expression. They had to rely on a written constitution – the British North America Act (BNA Act)3 – which divided powers between

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the federal and provincial governments, and an unwritten constitution imported from England through the preamble to the BNA Act. The Supreme Court found ways to strike down the statute, but only half the judges addressed free expression. Justice Cannon characterized the statute as an attempt to invade federal territory dealing with “criminal law,” in this case the crime of seditious libel, and found it was an attempt to override protection built into that crime for good-faith comments aimed at showing that the government had been misled or mistaken in its measures.4 He held that overriding that protection interfered with “free public opinion and free discussion,” and the “foundation” of democracy.5 Chief Justice Duff relied instead on the unwritten constitution, which contemplated a Parliament that “derives its efficacy from the free public discussion of affairs,” and later characterized this practice as “the breath of life for parliamentary institutions.”6 Pre-Charter common law did clearly recognize free expression about court proceedings in principle, though not always in practice. Judges often quoted the philosopher Jeremy Bentham: “Where there is no publicity there is no justice. Publicity is the very soul of justice … It keeps the judge himself while trying under trial.”7 It was also clear, though, that whenever fair-trial interests seemed to conflict with free expression, fair trial would almost always win out. Media lawyers were constantly on guard to ensure that reports of court proceedings would not be considered “contempt of court” on the basis that they might pose “a real risk of prejudice” to fair trial rights. In my experience, in case after case, publication bans would be requested by the Crown prosecutor or the defence lawyer, and the bans would be quickly granted, without any opportunity for a media lawyer’s response. When a media lawyer did show up after the fact to ask the court to consider open-justice principles, the court and the other lawyers had to be convinced the media had a right to be represented there at all, and often expressed resentment at the interruption of their case. The media did have some success prior to the Charter with openjustice arguments, and the one case from that period that continues to resonate involved CBC journalist Linden MacIntyre. Linden was researching kickbacks from liquor sales to the ruling provincial Liberals in Nova Scotia, and he wanted to access search warrant documentation, filed by police in court, which would give him their justification for the search, along with an insight into the evidence the police were

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hoping to find. His access request, which was summarily denied by the court officer in charge of the records, launched him on a legal battle that ended with a Supreme Court of Canada ruling in January 1982, just months before the adoption of the Charter.8 The MacIntyre case illustrates how principles of open justice had evolved to that point. Justice Dickson, as he then was, wrote for the majority: “Many times it has been urged that the ‘privacy’ of litigants requires that the public be excluded from Court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the Court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.”9 The court concluded that the sworn “Information to Obtain” a search warrant should be publicly accessible, unless the premises were searched and nothing was found.10 Publication Bans and Access to Court Exhibits after the Charter When the Charter came into force in April 1982, we could finally point to a simple constitutional distillation of the free-expression right, contained in s. 2(b), but it took many years for it to bear useful legal fruit. In the Charter’s first decade, the Supreme Court of Canada set out a wide sphere of activity protected by s. 2(b): all but violent expression,11 filming,12 expression in public places,13 public access to information about court pleadings and proceedings,14 and the right to gather news and other information without undue governmental interference.15 As Justice Cory said in the Edmonton Journal case, “It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression … the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.”16 The more difficult issue is whether any given restriction on s. 2(b) meets the test of s. 1 of the Charter, the one that permits “such reasonable restrictions as can be demonstrably justified in a free and democratic society.” Jamie Cameron’s chapter in this collection, “Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012,” cites many cases where restrictions were found to meet that test, and were upheld.17 It would take until 1994 for the Supreme Court to rule, in the case of Dagenais v. CBC, that free expression and fair trial rights were equal

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under the Charter, and both would have to be respected as much as possible.18 According to Dagenais, restrictions on freedom of expression could be imposed only when necessary, and only to the extent necessary to accommodate fair-trial interests. Subsequent cases buttressed the Dagenais test. To justify a restriction on free expression, the risk to the justice system had to be “wellgrounded in the evidence” and “pose a serious threat to the proper administration of justice.”19 Speculation would no longer suffice. In 2005, Justice Fish, writing for the Supreme Court, seemed to be admonishing lower courts to apply the Dagenais test, using the judicial equivalent of, “If we’ve told you once, we’ve told you a thousand times,” with the following words: “Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades.”20 His message: “In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.”21 So far, so good. But then came the Ashley Smith series of cases. CBC’s the fifth estate learned about the unfortunate teen who had become enmeshed in the prison system and couldn’t get out. In fact, she acted out so often, and bothered her guards so much, that eventually guards were directed not to enter her cell until she stopped breathing. The result: guards watched her kill herself at age nineteen and couldn’t revive her when they finally entered her cell. She died on 19 October 2007.22 Most of her life behind bars was captured on prison video, key portions of which became exhibits in court proceedings. CBC wanted to get access to those exhibits, to copy them and present them to the public. What should have been a simple request for access to exhibits filed in a public court became a fight with the coroner, Corrections Canada, and its guards that took years to play out. The access process was simple enough for CBC in New Brunswick. Ashley Smith’s case was the subject of a report by the New Brunswick Ombudsman into the time she spent in custody in the New Brunswick Youth Centre. CBC’s access-to-information request to the New Brunswick minister of public safety was filed on 2 July 2009, and by early September, with no argument, the minister of public safety and solicitor general agreed to release the video, with the faces of the guards blurred to protect their rights under privacy legislation. However, the access process was considerably more complicated for CBC in other Canadian jurisdictions. In July 2009, counsel for CBC appeared in the

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Ontario Court of Justice to apply for a copy of Ontario detention centre videos that were filed as exhibits at a two-week preliminary inquiry into charges of criminal negligence against four prison guards. The application was heard by the same judge who had presided eight months earlier over that preliminary inquiry, which ended with the withdrawal of all charges. By the time of CBC’s application, the exhibits had been transferred from Waterloo to the Toronto police, for use in a coroner’s inquest that had been called to look into Smith’s death. Smith’s mother consented to CBC’s application, but Corrections Canada and the Office of Ontario’s Chief Coroner opposed it. By September 2009, the judge agreed with the coroner’s counsel that he had no authority to force the coroner to give CBC a copy, especially in the face of the coroner’s concern that releasing the exhibits prematurely could have an impact on the upcoming inquest and denied CBC’s application (the coroner’s inquest began in early 2013, over three years later and after many delays).23 A judicial review of that decision yielded limited success: the judge ruled CBC could have only access in principle to the portions of cell block tapes that were seen and heard in court at the preliminary inquiry (on the basis that the public in attendance would have seen those portions), and even then, not the portion that showed Smith’s death. He wrote: “The gruesome image of a person dying is not something that I feel needs to be broadcast to the general public. By allowing the CBC access to the recording, will permit a verbal description to be broadcast, which in my view is sufficient.”24 CBC’s access to the video of her death, and video of guards entering the segregation unit, was limited to three “viewings” of the portion of that video that had been played in open court, with no right to copy or broadcast it. As for the other video played in court at the preliminary inquiry, CBC could access it and copy it for broadcast, but there was a practical problem. It was now over a year later and it was hard for the parties to agree on what portions of the tapes that were filed in court had actually been shown. The inability to agree led to further delays, with the effect that CBC’s access to the disputed portions of the video was denied until that issue could be settled. Three days after the judicial review ruling, in January 2010, CBC broadcast its first documentary on the Smith case, using portions of the limited video the parties agreed had been played in court, with pixelated images of the guards.

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Again, CBC appealed, this time to the Ontario Court of Appeal. In November 2010, Justices Sharpe, Laskin, and Epstein delivered their judgment. It was a resounding restatement of the principles of open justice that, in my view, should have been understood and respected all along. The court pointed out that “there is a very long line of cases that permit the media to make copies of exhibits.”25 Justice Sharpe wrote the following: When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a part of the record in the case. While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whether judge or jury, is not limited to considering only those portions when deciding the case. A party who introduces an exhibit without restriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses to read out or play in open court.26

As to the video of Ms Smith’s death, he held as follows: We have viewed the contested portion of the video and it is certainly disturbing. However, I am not persuaded that there is anything in the record before us that can be invoked to justify the limitation imposed by the application judge, whether under the Dagenais-Mentuck test or under any other legal rule or principle … With respect, absent any finding of potential harm or injury to a legally protected interest, there is nothing in the law that permits a judge to impose his or her opinion about what does not need to be broadcast to the general public. That would be inconsistent with the constitutional protection our legal order accords freedom of expression and freedom of the press. In this case, there is no finding of harm or injury capable of overriding a constitutional guarantee, and I would set aside that part of the application judge’s order.27

The court was also clear that there was nothing in the record to show that CBC’s request would interfere with the coroner’s mandate. In other words, there was never any justification for delaying CBC’s access. Days later, CBC broadcast a more complete report, including the new video. The Court of Appeal was clear that access to copy exhibits goes hand in hand with access to see them, and pointed to two Supreme Court of

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Canada decisions supporting that proposition: “The open court principle and the media’s right of access to judicial proceedings must extend to anything that has been made part of the record, subject to any specific order to the contrary.”28 While CBC was fighting for access to the exhibits in Ontario, CBC was also trying to get similar cell block footage of Ashley Smith from a criminal trial court in Saskatchewan, where a prison guard at the Regional Psychiatric Centre in Saskatoon was on trial for assaulting her in that institution. Again, the video exhibits were filed in a public court proceeding. It should have been a fairly straightforward application, but it was not. CBC’s application in early November 2009, during the late stages of the judge-alone trial, was opposed once again, this time by the Correctional Service of Canada, with the provincial Crown and the accused taking no position, and Smith’s mother consenting. Many flimsy objections were raised29 and all rejected by the court, but it still decided that CBC could get access only to those portions of the exhibits that had been played in open court. Large portions of video filed in court were unavailable.30 In July 2010, CBC sought judicial review of that ruling to the Saskatchewan Court of Queen’s Bench, which upheld it on the same basis – that is, that only video shown in court could be accessed.31 After the Ontario Court of Appeal’s ruling in the Smith case in November, a final appeal in Saskatchewan to the Court of Appeal was unopposed and successful. Ultimately, after six court applications in all, with lengthy delays, it was pre-existing Supreme Court of Canada open-justice principles that prevailed – principles that should have been recognized by all as valid and binding from the outset. In the interests of speeding up the hearing process, CBC decided early on not to argue for its right to show video images of the guards’ faces to the public, even though their identities were already public, of public interest, and legally accessible. As it turned out, that decision didn’t speed up the process much, if at all, and in the programs that followed, use of the video as recorded, including the guards’ images, would have helped the public sort out who was responsible for what, much more easily. Not many media organizations would have fought so hard, on principle, to open up a case, and now, given diminishing media resources, the pool of ready media applicants may get smaller. Access delayed can be, and often is, access denied.

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It is understandable that some of those involved in contentious proceedings might want to hinder public access to information about them that shows them in a less-than-favourable light. What is troubling is that courts so readily give in to their transparently self-serving submissions, at the cost of real and immediate transparency, not to mention fidelity to well-established open-justice principles. In most cases, we rely on our judges alone to uphold open justice. The Supreme Court of Canada and the Ontario Court of Appeal have noted that a presiding judge should always have the open-court principle in mind, whether the media are there to demand it or not.32 As my fellow contributor Robert Koopmans explains in “Must News Reporters Be Guerilla Lawyers to Protect Their Rights? Covering the Canadian Justice System in Small Communities,” the judge’s role in proactively applying the open-justice principle is crucial, even when the media are present in the courtroom but without the resources to make legal arguments.33 Even in the hands of the Supreme Court of Canada, though, open justice is not completely secure, as we’ve recently learned. In 2010, in a media challenge to the almost total publication ban on bail hearings, which is automatic and mandatory at the request of the accused in all criminal cases, no matter how minor or serious, the Supreme Court bypassed the Dagenais test completely, on the basis that what was at issue was not a discretionary ban.34 In the process, it seemed to abandon the principles underlying that test, downplayed the importance of free expression, and relied on old instincts to protect the fair-trial interest first, with very thin evidence that it was even at risk. Given Ryder Gilliland’s extensive review of this decision in his chapter “Has Dagenais-Mentuck Seen its High-Water Mark?”35 I won’t dwell on it. I would only add that a majority of the Court seemed to uphold the constitutional validity of the ban reluctantly as a “reasonable compromise,” though “not a perfect outcome,” leaving considerable room for Parliament to improve on the law in a manner more in keeping with open-justice principles. The mandatory ban’s serious flaws were well outlined in a strong dissent by Justice Abella, and thorough and thoughtful rulings earlier in the same case in the Ontario Court of Appeal.36 The fact that the ban is regularly ignored in social media could be further impetus for a parliamentary review of it. In 2011, the Supreme Court of Canada ruled on two cases involving court bans in Quebec. In Canadian Broadcasting Corp. v. The Queen37 (also known as the Dufour case), it upheld a ban on access to an audiovisual exhibit in an unusual case,38 but it strongly reinforced the Charter right

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to get access to such material and the presumption in favour of such access generally. Years earlier, in a case denying CBC journalist Claude Vickery’s application to get access to a police video interrogation of a person who was first convicted and then acquitted of murder, the Supreme Court of Canada had set out a process requiring a formal application for access to exhibits, with all the notice and legal argument that goes with that.39 Now, the Supreme Court held that that earlier decision no longer applies, because of the Charter. The Dagenais-Mentuck test governs, and the onus is on the party that would restrict public access to apply to do that, and prove that the restriction sought is necessary. In the second case, discussed below, the Supreme Court broached new ground in the media’s battle to open judicial proceedings to the public through cameras and microphones. Cameras in Court Buildings For years, most courts across Canada refused to allow television camera access to the buildings in which their proceedings took place. In 1974, in the pre-Charter environment, Ontario’s Chief Justice Gale successfully lobbied the Ontario government to pass a statute severely limiting camera access to courts and court buildings. He had been offended by a media scrum in the corridors of Osgoode Hall, the home of the Court of Appeal, and he felt such scrums were undignified for all concerned.40 The government quickly obliged, and the prohibition is now in Ontario’s Courts of Justice Act.41 In 1992, in the Squires case, the Ontario Court of Appeal ruled 5–0 that there was a s. 2(b) right to have cameras in court buildings, but held 3–2 that the ban on cameras in the doorway of a courtroom was a justifiable restriction.42 In a couple of provinces at least, there were different practices. In Newfoundland and Labrador, reporters could bring cameras into the court building, and even into courtrooms until the judge sat down to begin proceedings. In Quebec, camera access to the corridors of courthouses was effectively unrestricted, though broadcasting from court was prohibited. A much more complete review of camera access to court buildings and court proceedings can be viewed in my earlier papers on the subject.43 In 2011, in Canadian Broadcasting Corp. v. Canada (Attorney General),44 the Supreme Court of Canada released a second media law decision on the same day as the Dufour decision discussed above (which dealt with access to video exhibits). This second ruling was on a challenge by Quebec media to new restrictions: cameras could

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be used in the court building, but only on spots designated by the chief justice, and official court audio of proceedings could no longer be used for broadcast. The Supreme Court confirmed that reporting from courts is indeed protected by s. 2(b) of the Charter, but the restrictions were upheld as justifiable under s. 1.45 Even with the filming restriction, camera access to court corridors in Quebec remains more permissive than in most other provinces, and the constitutional analysis leaves room for hope in those other jurisdictions. Televising Courtroom Proceedings I’ve canvassed this subject at length in my earlier papers, which cover developments up to 2005. Since then, there have been more televised cases, practical experience, experiments, and proposals; however, we have yet to see routine television camera access to trials. In August 2006, a select panel on Justice and the Media,46 reporting to Ontario’s attorney general, made its recommendations on camera access to courts.47 It proposed that cameras should be presumptively permitted in all court proceedings (apart from trials), subject to a judge’s discretion exercised in accordance with the presumption of openness – that is, the Dagenais test.48 So far, no legislative steps have been taken to implement this recommendation. For trials, and parts of other proceedings where witnesses are present, the panel recommended that obtaining the consent of the judge, parties, and witnesses should remain the rule, as before. In 2007, the Ontario Court of Appeal permitted CBC to broadcast live coverage of the reference into the Stephen Truscott case,49 and in a later experiment the court’s website hosted live and on-demand webcasts of many of its proceedings, including testimony in the Mullins-Johnson case.50 That experiment lasted months, and the vast majority of those canvassed recommended expanding camera use to all Ontario courts. Cost was a factor in the experiment not being immediately made permanent. In early February 2009, the Supreme Court of Canada began live webcasting of its hearings, and making webcasts of them available on demand.51 In early 2011, the Supreme Court of British Columbia began live webcast and news coverage of closing arguments in its trial court reference on the constitutionality of Canada’s Criminal Code prohibition on polygamy.52 Also in 2011, in the ruling in the second Canadian Broadcasting Corp. v. Canada (Attorney General) case53 referred to above, the Supreme Court of

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Canada offered a few comments worth reviewing in this context while upholding the new restriction in Quebec on the broadcast of all official court audio. Justice Deschamps first acknowledged that the activity was protected by s. 2(b) of the Charter. She noted that testimony and argument can be broadcast in many different ways: I agree … the informative content conveyed by the method of expression the media organizations wish to use is not the same as when a transcript is used or even when the most accurate possible description is given. Indeed, it is the privileged position of the trial judge, who is able to see and hear the witnesses while they testify, that justifies the deference shown him or her by appellate courts. Sound and tone of voice are not always linked to the content, but I must find that in the context of a trial, the value they add to the message is such that the content of the message and the method by which the message is conveyed are indissociable. Thus … the method of expression cannot be considered separately from the content and cannot serve as a basis for excluding the expressive activity from the protection of s. 2(b) of the Charter.54

While Justice Deschamps found that audio added significant value to judges, it is interesting that later on she downplayed its value to electronic reporters and their audiences: “Although I accept that the broadcasting of official audio recordings would add value to media reports and make them more interesting, I cannot find that the prohibition against broadcasting these recordings adversely affects the ability of journalists to describe, analyse or comment rigorously on what takes place in the courts.”55 Here, Justice Deschamps is applying editorial judgment, and not in a way that broadcast editors, who work in the medium on a daily basis, would accept. Of course, the exercise of free expression is not supposed to be something that has to be justified – it’s a constitutional right. It can be balanced against harms but should not be discounted by courts on the basis of editorial preference. Justice Deschamps went on to express concern that any impact on witnesses’ testimony could translate into a change in the official court record, risking justice itself: To broadcast the audio recordings of hearings would be to alter the forum in which the testimony is given … Audio recordings of hearings are made to conserve evidence … Journalists have a right to use those recordings

112  Daniel Henry to enhance the accuracy of reports they are preparing, but they cannot use them in a way that would have an impact on the testimony itself … To broadcast them in the name of freedom of the press would undermine the integrity of the judicial process, which the open court principle is supposed to guarantee.56

On the surface, these comments may appear damaging to the argument for camera access to trials, but they have to be understood in context. Media lawyers will recognize quickly that the effect of these comments can be contained and limited. To begin, the comments above simply do not fit with the common law open-justice jurisprudence over the last couple of centuries, which holds unequivocally that a witness’ knowledge that his or her testimony will be made public outside the courtroom improves justice, rather than undermining it, because they are less likely to tell lies that members of the public can hear and correct. It should be noted that Justice Deschamps also relied mostly on what she perceived to be adverse effects on witnesses, not lawyers or judges. The Supreme Court proceedings themselves demonstrate that professionals can handle it, with significant public benefit. The BC polygamy reference mentioned above, in fact, was televised after the Supreme Court of Canada decision in the Quebec case. The notion that witnesses – such as public figures, police officers, expert witnesses, and many others who have given television interviews on the subject matter of court cases in which they are scheduled to appear – are too delicate to participate in public court proceedings with a camera and microphone in the courtroom becomes more and more unsustainable with each passing day. As a society, we already know – in practice, through a lot of audiovisual coverage, over decades, of many, many public inquiries, appellate proceedings, and occasional trial proceedings and motions – that audiovisual coverage of court proceedings works, and is important to informed public discussion of court cases. As time goes on, and smartphones which can record and transmit high-quality audio and video are found in everyone’s hands, and universally used in that manner, comfort levels with sounds and images will improve dramatically, and corresponding concerns will diminish. Audiovisual communication is fast becoming the new language of everyday communication. Courts cannot long stand as the sole bastion attempting to stem this societal tide, nor should they if they intend to remain relevant to the Canadians they serve.

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In the wake of this court decision, future applications for camera access to courts will benefit from the fact that the question of whether s. 2(b) mandates camera access to courts has clearly been answered in the affirmative. For media lawyers, the lesson of the decision is that future applications to record and transmit court proceedings should focus on specific cases and concerns, and not be distracted by all the potential concerns in all proceedings that are covered by a subject as extensive as all official court audio. It is worth noting that camera access to court was not the focus of this case, nor the subject of the evidence led in it. As well, the court did not analyse the issue from the point of view of the Dagenais test, given that the case was not a challenge to a discretionary ban. Any future challenges of an exercise of judicial discretion against camera access in any given case would have to be analysed in that manner. The balance set out in that test, which calls for free expression to be limited only where and to the extent necessary, would have a better chance of success in such a challenge than was the case here. Routine camera access to court will come. It’s just a question of where and when. Tweeting from Court More recently, the courts have become preoccupied with whether to permit reporters to use their computers and smartphones in court, including for the purpose of sending instant communications from court via Twitter or other social media. While speaking to students at Carleton University in January 2012, Beverley McLachlin, the Chief Justice of the Supreme Court of Canada, identified some judges’ concerns, and asked: “What will be the consequences for public understanding of the administration of justice and confidence in the judiciary? How can a medium such as Twitter inform the public accurately or adequately in 140 characters or less?”57 Tweeting had been permitted, on application to the court, in the following cases: in the Bandidos murder trial in London, Ontario,58 the 2009 corruption trial of then-mayor Larry O’Brien of Ottawa,59 the sentencing hearing of former Colonel Russell Williams for multiple sexual offences,60 and the Schertzer police corruption trial.61 Tweets were not permitted from the Shafia murder trial,62 though one reason for that was potential interference with the court’s simultaneous translation equipment.

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In theory, tweets should be treated no differently than any other means of making public court proceedings public. Justice Pardu of the Ontario Superior Court, for example, agreed: As to transmission of information from inside the courtroom, defence counsel object on the ground that it would make an order for exclusion of witnesses futile. Journalists could transmit “blogs” relating accounts of testimony which any potential witness could read if it were published. The reality is that the trial is an event open to the public. There is nothing to prevent any person from telling others what he or she heard witnesses say in the courtroom, and there is an expectation that any matters which take place in front of the jury may be reported in as much detail and at such time as the journalist thinks appropriate. Whether the journalist steps into the hall for a moment to transmit the information, or does so unobtrusively in the courtroom will make no difference to the degree of publicity the trial receives. Provided that the proceedings are not disrupted, I authorize transmission of data from within the courtroom. There is a qualitative difference in the nature of the reporting, in this era of newspapers accessible on the internet, but I see no reason why this should be treated differently as a matter of principle.63

In the Williams case, the court order ensured that publication bans over certain exhibits shown in open court were respected by everyone permitted to use electronic devices.64 Only journalists from recognized Canadian media organizations, or journalists from other countries willing to attorn to our jurisdiction, were permitted to bring their devices into court. Members of the public were not. In recent months, a number of provinces have introduced policies on the subject.65 As of 15 April 2013, Quebec courts have banned electronic communication from courts completely, though a judge has the discretion to make exceptions.66 As of 1 February 2013, Ontario courts presumptively allow journalists, lawyers, and self-represented parties to electronically communicate from court, but presumptively deny that right to members of the public, who have to ask permission each time.67 Some jurisdictions require media accreditation, while others do not. In order to qualify for accreditation, some jurisdictions require members of the media to attest to the fact that they’ve read a guidebook prepared for the Canadian Judicial Council on media law issues. The fact that these jurisdictions are favouring some journalists over others

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strikes me as a very direct interference with freedom of the media, one that is neither reasonable nor justifiable. In September 2012, the Canadian Centre for Court Technology submitted a draft proposal on uniform rules for tweeting from court for adoption across Canada, recommending that tweeting be generally permitted, as long as users respect publication bans.68 Like others dipping into this subject, though, their proposal contains a ban on taking photos or videos. Twitter is a fact of current life. It and other social media provide public information for their users in timely and useful ways. While tweets are only 140 characters long, they can offer links to more information. Conclusion: The Way Forward In our world of modern communications, the judges’ blind spot to audiovisual coverage is approaching the absurd. With the ubiquity of audiovisual recording equipment, and widespread acceptance of it, courts should embrace all of this technology to improve public understanding of what takes place in court, while concentrating their efforts on what information should not be published, rather than by what means. “Other media of communication” are explicitly protected in s. 2(b) of the Charter. Courts may have the right to impose reasonable limits on it, but not the right to put a pen through it completely. As a practical matter, it’s in the interest of justice for court proceedings to be available in the places and in the forms the public uses to get its information on virtually everything and every place in our society. Judges should be webcasting their proceedings – at least those that they believe would be of public interest. The cost is now minuscule in comparison to the amounts already devoted to justice. Courts should also facilitate media applications to make their proceedings more accessible. Perhaps a warning could be offered to all who take part: “These proceedings may be recorded for quality assurance.” We’ll all understand. Freedom of expression is the key to all other rights, arguably as central to being as breathing. Its protection should be as absolute as our system can make it. Limits on it must be extraordinary, and necessary, and even then should go only as far as necessary to achieve a valid government objective. It is not a right simply to be balanced on any scale. As Dagenais notes, it is a right to be respected as fully as possible in the process.

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It is up to advocates for free expression to continue to press for that respect, and our courts to continue to honour it. NOTES 1 This chapter builds on earlier papers I’ve written on the development of free-expression law since the Charter. In 1985, I wrote “Electronic Public Access to Court: A Proposal for its Implementation Today,” recapping pre- and post-Charter cases and developments on open justice in Canada and around the world. In 1994, I updated that paper with another one: “Electronic Public Access to Court – An Idea Whose Time Has Come,” this time adding a perspective as to why judges ought to want to permit such access. In my most recent paper on open justice, “Free Expression and Publication Bans: Towards a More Open Criminal Justice System,” published in 2005, I reviewed what was new to that point in the jurisprudence, and noted the improvements in the field since my pre-Charter experience. This chapter will build on the last paper, and review free-expression developments since 2005, with a perspective on what challenges remain. See Daniel J. Henry, “Electronic Public Access to Court: A Proposal for Its Implementation Today,” Canadian Media Lawyers Association, 1985, http://www.adidem.org/Electronic_Public_Access_to_Court:_A_Proposal_ for_its_Implementation_Today; Daniel J. Henry, “Electronic Public Access to Court – An Idea Whose Time Has Come,” Canadian Media Lawyers Association, 1994, http://www.adidem.org/Electronic_Public_Access_ To_Court__An_Idea_Whose_Time_Has_Come; Daniel J. Henry, “Free Expression and Publication Bans: Towards a More Open Criminal Justice System,” National Journal of Constitutional Law (2005): 337. 2 Reference Re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act, [1938] S.C.R. 100. 3 British North America Act, 1867, 30–31Vict., c. 3 (UK). 4 Reference Re Alberta Statutes. 5 Ibid. 6 Ibid., 133. 7 Ibid., 30. 8 A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175. 9 Ibid., at 185. 10 Ibid. 11 R. v. Keegstra, [1990] 3 S.C.R. 697.

Free Expression at Thirty  117 1 2 R. v. Butler, [1992] 1 S.C.R. 452. 13 Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139. 14 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326. 15 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459. 16 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, 1331. 17 See chapter 14 in this volume. 18 Dagenais v. CBC, [1994] 3 S.C.R. 835. 19 R. v. Mentuck, [2001] 3 S.C.R. 442. 20 Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, paras. 1, 2, 7. 21 Ibid. 22 The Ashley Smith Report (Fredericton, NB: Office of the Ombudsman and Child and Youth Advocate, June, 2008), http://www.gnb.ca/0073/PDF/ AshleySmith-e.pdf. 23 Canadian Broadcasting Corporation v. Her Majesty The Queen, Info. # 07-6764, Sept. 16 2009, OCJ, Carr J. 24 R. v. Canadian Broadcasting Corporation, [2010] O.J. No. 526, (Can.) para. 49, Taylor J. 25 R. v. Canadian Broadcasting Corporation, [2010] O.J. No. 4615. 26 Ibid., para. 43. 27 Ibid., paras. 47, 50. 28 Ibid., para. 44, emphasis added. 29 R. v. Tarala, [2009] S.J. No. 785. The objections included: 1) trial fairness as the criminal trial remains ongoing; 2) that the proprietary interest of CSC in the exhibit must be recognized; 3) that the security of the institution may be jeopardized; 4) that privacy rights of CSC employees are to be respected; 5) that the release of the exhibit without explanation gives the matter a lack of context; and, 6) that there are ongoing proceedings, disciplinary, as they relate to Mr Tarala and civil, as they relate to Ms Smith’s estate, which may be affected. 30 Ibid. 31 R. v. Canadian Broadcasting Corporation, [2010] S.J. No. 628. 32 Vancouver Sun (Re), [2004] 2 S.C.R. 332, para. 48. 33 See chapter 9 in this volume. 34 Toronto Star Newspapers Ltd. v. Canada, [2010] 1 S.C.R. 721. 35 See chapter 7 in this volume. 36 Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59 (CanLII), 94 OR (3d) 82. 37 Canadian Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65. 38 The accused by that point had been acquitted, and was under an intellectual disability, making him particularly vulnerable, according to the

118  Daniel Henry court. The exhibit sought was video of a police interrogation of him, for assisting his uncle to commit suicide. 39 Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671. 40 George A. Gale, “The Problems of Television in the Courtrooms,” Law Society Upper Canada Gazette 8 (1974). 41 The Ontario Courts of Justice Act, R.S.O. 1990, Chapter C. 43. 42 R. v. Squires, [1986] O.J. No. 3081 (Ont. Prov. Offences Ct.), Vanek J.; aff’d [1989] O.J. No. 1256 (Ont. Dist. Ct.), Mercier J.; aff’d [1992] O.J. No. 2738 (Ont. C.A.); leave to appeal to Supreme Court of Canada refused [1993] 3 S.C.R. ix. 43 See note 1. See also “Electronic Public Access to Court – Background,” Canadian Media Lawyers Association, last modified 26 March 2011, http://www.adidem.org/Electronic_Public_Access_to_Court_-_ Background. 44 Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19. 45 Ibid. 46 The panel had eminent representation from the Ontario Association of Chiefs of Police (Chief Paul Hamelin), the Ontario Court of Appeal (Justice James MacPherson), the Criminal Lawyers Association (Ralph Steinberg), the Advocates Society (Benjamin Zarnett), the attorney general (Paul Lindsay, Asst. Deputy), the Toronto Star (John Honderich), and a broadcaster (Trina McQueen). 47 Report to the Attorney General for Ontario (Toronto, ON: Panel on Justice and the Media, August 2006), http://www.attorneygeneral.jus.gov.on.ca/ english/about/pubs/pjm/rpjm-EN.pdf. 48 Ibid., recommendation #3: “Cameras in the Courtroom”: “The Panel recommends that: The Courts of Justice Act should be amended to permit cameras for proceedings in the Court of Appeal and Divisional Court, and for applications or motions in the Superior Court of Justice and the Ontario Court of Justice, where no witnesses will be examined at the hearing, subject to the discretion of the panel or judge, which discretion should be exercised recognizing the primacy of openness. Further, on those unusual occasions where witnesses are called to testify in any of the above appeals, applications or motions, cameras for such proceedings would be permitted where the presiding judge, the parties and witnesses agree.” 49 R. v. Truscott, [2007] O.J. No. 3221. 50 R. v. Mullins-Johnson, [1998] 1 S.C.R. 977. 51 “Webcasts by Session,” Supreme Court of Canada, last modified 3 December 2012, http://www.scc-csc.gc.ca/case-dossier/info/webcastswebdiffusions-eng.aspx?ya=2009&ses=02&submit=Search.

Free Expression at Thirty  119 52 Michael McKiernan, “Eyes to the Soul of Justice,” Canadian Lawyer Magazine, March 2012, http://www.canadianlawyermag.com/4071/eyesto-the-soul-of-justice.html?print=1&tmpl=component. 53 Canadian Broadcasting Corp. v. Canada (Attorney General) [2011] 1 S.C.R. 19. 54 Ibid. 55 Ibid., para. 92. 56 Ibid., para. 83. 57 Chief Justice Beverley McLachlin, “The Relationship between the Courts and the Media” (speech, Carleton University, Ottawa, ON, January 2012). 58 R. v. Sandham, Oct. 29, 2009, OCJ, Jury Conviction. 59 R. v. O’Brien, [2009] O.J. No. 5357. 60 R. v. Williams, Oct. 22, 2010, OCJ, Scott J. 61 R. v. Schertzer, [2012] O.J. No. 51, 2012 ONSC 227. 62 R. v. Shafia, Jan. 29, 2012, OCJ, Maranger J. 63 R. v. Schertzer, para. 7. 64 R. v. Williams. 65 For example, BC, Nova Scotia, New Brunswick, Nunavut, and Saskatchewan. See Policy on Use of Electronic Devices in Courtrooms (Victoria, BC: Supreme Court of British Columbia, 17 September 2012), http://www. courts.gov.bc.ca/supreme_court/media/PDF/Policy%20on%20Use%20 of%20Electronic%20Devices%20in%20Courtrooms%20-%20FINAL.pdf; Use of Electronic Devices in Nova Scotia Courthouses (Halifax, NS: The Courts of Nova Scotia, 2007), http://www.courts.ns.ca/Media_Information/ electronic_devices_policy.htm; Directive Respecting Electronic Devices in the Courtroom (Fredericton, NB: The Courts of New Brunswick, 29 June 2012), http://www.documentcloud.org/documents/400441-court-directiveelectronic-devices.html#document/p1; Media Use of Technology in the Courtroom and Courthouse (Iqaluit, NU: Nunavut Court of Justice, 18 July 2012), http://www.nucj.ca/rules/Media_TechnologyUse_Courtrooms. pdf; Electronic and Wireless Devices Policy (Regina, SK: Saskatchewan Law Courts, 2012), http://www.sasklawcourts.ca/images/documents/ Resources/Electronic_Wireless_Devices_Policy.pdf and http://www. sasklawcourts.ca/images/documents/Resources/Twitter_Protocol_2012. pdf. 66 Mark Cardwell, “Quebec Judges Give the Bird to Tweets,” Canadian Lawyer Magazine, 9 April 2013, http://www.canadianlawyermag.com/ legalfeeds/1405/quebec-judges-give-the-bird-to-tweets.html. 67 Protocol on the Use of Electronic Devices in the Courtroom (Toronto, ON: Superior Court of Justice, 1 February 2013), http://www.ontariocourts.ca/ scj/en/policies/electronic-devices.htm.

120  Daniel Henry 68 Draft National Guidelines Regarding the Use of Electronic Communication Devices in Court Proceedings (Toronto, ON: Canadian Centre for Court Technology Working Group, September 2012), http://www.adidem. org/member/images/e/eb/September_2012_Draft_Use_of_Electronic_ Communication_Devices_in_Court_Proceedings.pdf.

7 Has Dagenais-Mentuck Seen Its High-Water Mark? ry d e r g i l l i l a n d

The Canadian Charter of Rights and Freedoms has had a profound impact on journalists’ ability to report on proceedings in Canadian courts. Since well before the Charter was enacted, Canadian courts paid lip service to the principle that courts should be open to the public, although, in practice, the open-court principle was easily displaced by competing interests. In cases where there was a conflict between the right to a fair trial and the right to freedom of expression, for instance, without exception courts preferred the right to a fair trial. As a result, when the accused facing criminal charges requested publication bans, they were rarely refused. This state of affairs was reversed by a series of bold decisions by the Supreme Court of Canada invoking the constitutional right to freedom of expression as a basis for guaranteeing open access to the courts. The upshot of these decisions, the first of which was Dagenais v. CBC,1 is that in modern times, if participants in the criminal justice system wish to obtain a publication ban, they must bring a formal application grounded in evidence as to why a publication ban is necessary in the circumstances. Applications that are not supported by the requisite evidence will fail. It took some time for the principles enunciated in Dagenais to take root. As a result, there was a steady stream of Supreme Court of Canada decisions repeating, in a variety of different circumstances, that the Dagenais test (or the Dagenais-Mentuck test as it later became known) applies to all discretionary court orders that limit freedom of expression by curtailing openness. Today, however, the Dagenais-Mentuck test is firmly entrenched and, as a result, publication bans are issued infrequently and, for the most part, only on a strong evidentiary record.

122  Ryder Gilliland

Not surprisingly, as the Dagenais-Mentuck test has been developed and refined, it has bumped up against the limits of the open-justice principle. Specifically, recent cases have forced courts to consider the assumption underlying all publication bans in criminal proceedings, which is that the release of negative information about an accused before trial will prejudice fair-trial interests. There are a number of reasons to question this basic assumption: the availability of alternative measures to protect fair-trial interests; the fact that jurors receive complex instructions about what use to make of evidence tendered at trial; and the fact that in other jurisdictions publication bans (or “prior restraint,” as it is referred to in the United States) are very rarely used. On the other hand, in some circles there is an intuitive, deeply held view that the dissemination of negative information about accused persons cannot help but prejudice their fair-trial interests. The Dagenais test does not resolve this tension; it simply says that a publication ban must be necessary. But when is it truly necessary? The courts have been faced with this question in the context of recent cases that fall into one of two categories: media challenges to mandatory publication bans at bail hearings, and cases involving multiple coaccused who are being tried separately. Despite the scrutiny brought about by these cases, the question remains largely unanswered. This chapter examines these two distinct areas of uncertainty and concludes that, until the Supreme Court of Canada tackles head-on the question of what type of information will prejudice an accused’s fair-trial rights, there will be uncertainty and a high degree of deference to decision makers. The Dagenais-Mentuck Test It is not immediately apparent from the language of the Charter that it could be applied to safeguard open access to court proceedings. According to s. 2(b) of the Charter, everyone has the fundamental right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” A restrictive interpretation of this provision would suggest that the Charter protects only the rights of the speaker. Fortunately for journalists, the Supreme Court recognized quite early that there is a constitutional dimension of the right of the listener to hear information. In Edmonton Journal v. Alberta,2 the Court acknowledged that, as a practical matter, it was impossible for most Canadians to attend court proceedings themselves,

Has Dagenais-Mentuck Seen Its High-Water Mark?  123

but that it was essential to a functioning democracy that the public be able to understand and scrutinize court proceedings: It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.3

The breakthrough decision regarding publication bans was made in Dagenais v. CBC.4 The case arose when the CBC advertised the upcoming broadcast of a docudrama called The Boys of St Vincent, a fictionalized rendition of the story of Catholic priests who sexually abused young boys in their care at the Mount Cashel Orphanage in Newfoundland. The intended broadcast was to take place in the midst of criminal proceedings in Ontario against Catholic priests charged with sexual assault unrelated to the Mount Cashel incidents. The accused in the Ontario trials obtained a publication ban from the trial judge prohibiting the CBC from airing the broadcast. The CBC appealed the decision to the Supreme Court, which overturned the ban in a decision that placed resounding emphasis on the importance of open courts. The Court in Dagenais expressly overturned the existing common law approach, which placed the fair-trial rights of the accused above the principle of open courts. The Court found that such a hierarchy of rights was inconsistent with the equal status of the rights protected by the Charter. The Court found that there should be a presumption of open courts, and that publication bans should be imposed only where the applicant can convince a judge that they are necessary (the word “necessary” was italicized in the original decision). The Court set out a stringent test for the imposition of a ban. Following Dagenais, a party applying for a publication ban must show that 1 Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and 2 The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.5

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The Court emphasized that this test sets a high threshold; an applicant could not rely on a speculative or theoretical risk of harm, but had to demonstrate a risk that is “real and substantial.”6 The Court also mandated that, in considering whether to issue a publication ban, courts should consider the availability of reasonable alternatives to a ban. According to the Court, those reasonable alternatives include the following: jury directions that include instructing jurors to disregard any information which they may have heard outside of the courtroom; the challenge for cause process, which allows counsel to remove a juror from a trial where the juror has demonstrated bias against the accused; adjournment of the trial to a later date when the publicity has died down; and changes of venue to a location that has not been saturated with media coverage of a given issue. This Dagenais decision was reinforced by the Supreme Court in R. v. Mentuck.7 In that case, the Crown sought to impose a ban on the specifics of a common undercover police technique that had been used to gather evidence against the accused; the Crown argued that reporting on these tactics would compromise their effectiveness in future investigations. Justice Iacobucci emphasized that, in order to justify such a ban, the applicant must show that there is a risk that “is well-grounded in the evidence” and that poses a serious threat to the proper administration of justice.8 In other words, a mere advantage to the administration of justice is insufficient to justify the imposition of a ban; rather, there must be evidence of a serious danger to be avoided. The significance of this evidentiary requirement cannot be overstated. As a result of Mentuck, a party seeking to obtain a publication ban must provide evidence to show that absent a publication ban it will suffer serious harm. This opened the door for many publication ban applications to be dismissed on the basis that the moving party did not provide such evidence. The Dagenais-Mentuck test, as it is now known, has become a fixture in Canadian law. It has been reaffirmed and extended by a long line of subsequent Supreme Court decisions. In most of those cases, the party seeking a publication ban either failed to lead any evidence, or provided only superficial evidence of harm. Thus, once it was decided that the Dagenais-Mentuck test applied, the denial of the publication ban was almost a foregone conclusion. While this development on its face was a significant step forward for journalists, these decisions left largely unexplored a question that is in fact at the heart of the Dagenais test: What information, if disseminated to the public, will harm fairtrial interests?

Has Dagenais-Mentuck Seen Its High-Water Mark?  125

Two lines of cases have pushed the envelope by challenging courts to delve into the questions of what type of information must be suppressed from public dissemination. First, there are cases in which statutory bans have been challenged; and, second, there are cases that consider the necessity of publication bans in trials involving multiple co-accused who are being tried separately. Statutory Bans Several pre-Dagenais cases had upheld the constitutionality of statutorily imposed publication bans. For example, in A.G. (Nova Scotia) v. MacIntyre,9 the Supreme Court upheld restrictions on access to the contents of search warrants prior to their being executed. Similarly, in Canadian Newspapers Co. v. Canada,10 the Court upheld a statutory publication ban on the names of complainants in sexual assault cases that applied automatically at the request of the complainant. However, in light of Dagenais and Mentuck, the continuing authority of these cases was in doubt. The categorical approval of classes of the publication ban seemed inconsistent with the case-by-case analysis adopted by the Supreme Court in cases such as Dagenais. Simply stated, how can a law that imposes a blanket publication ban be constitutional if it does not appear to be necessary to protect a risk to a countervailing interest such as fair-trial rights? In other words, why could the legislation impose publication bans that would be unconstitutional at common law applying the criteria in the Dagenais-Mentuck test? This question was raised forcefully and directly in the cases of Toronto Star v. Canada11 and R. v. White,12 which were heard together in the Supreme Court of Canada in 2010. The legislation at issue in each of these cases was the mandatory publication ban imposed on bail hearings in accordance with s. 517 of the Criminal Code when requested by the accused (if requested by the Crown, the issuance of a publication ban is at the discretion of the presiding judge). The publication ban under s. 517 of the Criminal Code is broad, extending to the “evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice.” Practically speaking, this restricts journalists to reporting whether the accused was released and, if so, on what terms. Bans under s. 517 apply in all cases when requested by the accused, even when there is no prospect of a jury trial. The Toronto Star case concerned publication bans on pretrial hearings of the so-called Toronto 18, who were arrested for their alleged

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involvement in a 2006 terrorist plot to carry out attacks across southern Ontario on targets, including the CN Tower and Parliament.13 At the time of the arrest, law enforcement officials announced that the “homegrown terrorists” posed a “real and serious threat” to the public.14 It therefore came as a surprise when five of the accused were released on bail. However, because of a publication ban, the public was denied the right to know why they were released. Canadian media organizations challenged the publication bans, insisting that the bail hearing process must be open to public scrutiny. News media applicants also argued that there could be no further prejudice to the accused as they had already been cast in a very negative light by law enforcement officials (which, given that they were released on bail, suggested that the allegations levelled by police might have been exaggerated), and that reporting the reasons why some were released could in fact counter that perception. R. v. White involved a single accused charged with murdering his wife.15 He was released following his initial bail hearing, which was subject to a publication ban at the request of the accused. The Crown subsequently appealed the original bail decision to the Alberta Court of Appeal. Remarkably, due to a gap in the legislative scheme, the judicial review of the show-cause hearing was not subject to a mandatory publication ban. Instead, the Court of Appeal had to consider and apply the Dagenais-Mentuck test to determine whether to issue a publication ban under its common law jurisdiction. Because the accused had not led any evidence to support a ban, the Court of Appeal reluctantly concluded that the publication ban was not justified. Given the fact that the case was a clear illustration of a mandatory ban having been imposed in circumstances where a discretionary ban could not be justified, it seemed tailor-made for a constitutional challenge of s. 517 of the Criminal Code, so a media coalition appealed the original mandatory publication ban. Despite the compelling facts in both Toronto Star and White, the Supreme Court dismissed the appeals and upheld the constitutionality of the mandatory statutory publication ban under s. 517. The Court considered that greater deference must be shown to a statute than to judicial discretion, and so declined to impose the rigorous DagenaisMentuck test. The Court held that requiring the accused to prove harm before obtaining a ban would lead to delay in the bail hearing process and would distract the accused from preparing his defence. The ban was deemed a minimal impairment of the right to free expression because it was only temporary. This is a troubling finding, which

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departs markedly from the Court’s previous recognition in 2007 that “news is often a perishable commodity” – that is, that if news is not reported promptly, it can be of no real value. The Court also expressed concern that the information presented at a bail hearing is inherently one-sided and less reliable than the information that comes out at trial, and that the information is often not directly relevant to culpability (e.g., prior criminal record). These considerations led the Court to find that the limitations on freedom of expression were minimal, since the information was of no great value to begin with. This last finding is difficult to comprehend; for example, information about the release of people deemed by law enforcement to be a danger to the community would appear to be of great value to the public. It is interesting to note that the Court effectively side-stepped the question of whether dissemination of information disclosed at the bail hearing would prejudice fair-trial interests if communicated to the public. Instead, the Court characterized fair-trial interests broadly in such a way as to include not only the narrow interest of preventing jurors from being influenced by prejudicial material before trial, but also the broader interest in preventing delay and diversion of the accused’s resources towards fighting a publication ban. As the Supreme Court elected not to delve into what particular facts released at a bail hearing would prejudice fair-trial interests if published or broadcast months (if not years) in advance, the Toronto Star decision does not give guidance for lower courts as to what evidence meets the Dagenais-Mentuck test. As the cases involving multiple accused facing staggered trials illustrate, there is no judicial consensus in this regard. Multiple Accused Cases involving multiple accused facing separate trials raise a unique challenge for the open-court principle. In such cases, the co-accused in the later trial will often seek a publication ban on evidence presented at an earlier trial on the basis that their fair-trial rights could be prejudiced by revelations made during those proceedings. Two lines of authority emerge from the cases to have considered this issue. One line of authority has stressed the overriding importance of freedom of expression. In R. v. J.S-R., a young person was one of several accused facing charges relating to the notorious “Boxing Day shooting” of 2006, where a teenaged bystander, Jane Creba, was killed in a shootout on Yonge Street near the Eaton Centre in Toronto.16 The Crown

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intended to try J.S-R. first, then try G.C., and finally try the seven adult accused together. The adult accused sought a publication ban on the trial of J.S-R., on the basis that, due to the overlapping evidence, unrestricted reporting of the J.S-R trial would prejudice their subsequent trial. The Ontario Superior Court refused to grant a publication ban. The Court found that, while there was a risk of prejudice to the accused, it was not real and substantial, as required under the Dagenais test. The Court held that, as there had already been a media frenzy around the shooting, any additional coverage of the trial would not have made much difference. Further, there was a scheduled delay of several months between the J.S-R trial and later trials, such that negative impressions arising from media coverage of the J. S-R trial would have faded by the time the later trials began. The Court also noted that the challengefor-cause procedure would allow the defence to be reasonably satisfied that jurors were without bias. Notably, the Court also acknowledged that in an age of the Internet and social networks, which lie outside the effective control of the Court, publication bans are increasingly ineffective, concluding that an ineffective measure could not be said to be “necessary” in accordance with the Dagenais test. In R. v. Puddicombe,17 the Court took this analysis one step further. That case involved a sensational murder, where the Crown’s theory of the case was that a woman having a same-sex affair conspired with her lover to murder her long-time boyfriend, who was found naked in bed with axe wounds to his head. Both the victim’s girlfriend and her lover were charged with murder. Unlike J.S-R., the cases had not attracted significant media publicity (although, to the extent that there was coverage, it was sensational – the case was reported by some media as the “Lesbian Axe Murder” case). There was also no delay between the trials, which were scheduled to be heard one after the other. Still, the Court held that a properly instructed jury would be able to carry out its duty to fairly decide the case on the facts before it. While there may have been a speculative risk to the rights of the co-accused in the form of subconscious jury bias, this risk did pass the threshold of being “real and substantial.” The application for the ban was thus denied. Both J.S-R and Puddicombe set the “real and substantial” bar high. Another line of cases, however, offers a different view of the risks posed to trial fairness. One of the more recent of these was the publication ban imposed on the proceedings in relation to the guilty plea of TerriLynne McClintic in connection with the murder of eight-year-old Victoria Elizabeth Stafford.18 As is standard practice, when Ms McClintic

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pleaded guilty to first-degree murder, an agreed statement of facts was read in open court. It contained detailed agreed facts respecting the crime, including the alleged involvement of Michael Rafferty (who would later also be convicted of first-degree murder following a jury trial).19 Mr Rafferty intervened to seek a publication ban on the proceedings and a media coalition opposed the ban.20 Although the Court did not order a complete ban as sought by Mr Rafferty, a publication ban was also imposed on Ms McClintic’s sentencing hearing. In particular, the Court ordered that large portions of the agreed statement of facts would be subjected to a publication ban, a decision the judge justified on the following basis: Each case must be decided on its own facts and in the context of all the circumstances that apply in a particular case. Some of the information that was adduced before me … will be the subject of evidence led at Mr. Rafferty’s preliminary inquiry and trial. I find that if that information were published in advance of his trial there would indeed be a substantial risk to the fairness of his trial and that there are no reasonably available alternative measures that would prevent the risk. In my opinion, it is no answer and entirely illogical to suggest … that because evidence will be led at a preliminary inquiry there is no prejudice to an accused person by publishing it in advance of the preliminary inquiry or trial. To the contrary, the purpose of the publication ban imposed at a preliminary inquiry or at an application for judicial interim release [a bail hearing] is to prevent the dissemination of information that might prejudice the right of the accused to a fair trial and contaminate the impartiality of prospective jurors.21

In his bullet-point summary of the reasons why the salutary benefits of the publication ban outweighed its deleterious effects, the judge offered the following: • The ban is temporary; • It withholds from the public only matters that in my opinion are likely to create an indelible and prejudicial impression in the minds of members of the public that is unlikely to be dispelled by judicial instruction or alternative measures; • The ban permits the publication and broadcasting of the huge majority of what was contained in the Agreed Statement of Facts upon which the guilty plea was founded; and, • It preserves Mr. Rafferty’s right to a fair trial.22

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As these passages show, there is a genuinely held view that publication of details of allegations against an accused before trial will prejudice the right to a fair trial. This view is supported, as is alluded to in the above passages, by the fact that the Criminal Code itself includes prohibitions on the publication of this type of information. Conclusion There is no question that the Charter as interpreted by the Supreme Court in Dagenais and its progeny has entrenched the open-court principle in Canada. The practical result is that the judicial process has been more open in modern times than it was pre-Charter. Absent a change in the long-held view that fair-trial interests are prejudiced by negative pretrial publicity, the role of the Charter in this area may have reached a high-water mark. The statutory challenges in the Toronto Star and White cases failed, despite facts that were well-suited to a constitutional challenge. Meanwhile, as seen in the cases involving multiple accused, while some courts have rejected publication bans by emphasizing the faith in the jury system and the availability of alternative measures such as challenges for cause, others stand by the long-held view that pretrial publicity harms fair-trial interests. Either finding would be hard to appeal due to the fact they are discretionary decisions, and because an appeal would require seeking and obtaining leave to the Supreme Court of Canada, which grants leave in a fraction of cases. For the law to advance in this area the Supreme Court will need to address head-on the difficult question of defining what really puts fairtrial interests at risk to the extent that a publication ban is truly necessary to protect those fair-trial interests. Until then, the complicated cases where the result remains in doubt, such as cases involving multiple co-accused, will continue to be decided on a case-by-case basis, with the result turning on the presiding judge’s exercise of discretion. It would be naive to think, in these circumstances, that the pre-existing views of the presiding judge on the impact of pretrial publicity on fair trial rights will not have an impact on the result. NOTES 1 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. 2 Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326.

Has Dagenais-Mentuck Seen Its High-Water Mark?  131 3 Ibid. 4 Dagenais v. Canadian Broadcasting Corp. 5 Ibid. 6 Ibid. 7 R. v. Mentuck, [2001] 3 S.C.R. 442. 8 Ibid. 9 A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175. 10 Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122. 11 Toronto Star Newspapers Ltd. v. Canada, [2010] 1 S.C.R. 721. 12 R. v. White, [2010] 3 S.C.R. 374. 13 Toronto Star Newspapers Ltd. v. Canada. 14 Ibid. 15 R. v. White. 16 R. v. J.S-R., [2008] 237 CCC (3d) 305 (ONCA) 544. 17 R. v. Puddicombe, [2009], ONSC, Benotto J, on appeal to CA. 18 R. v. McClintic, [2010], ONSC 2944. 19 R. v. Rafferty, [2012], ONSC, jury conviction. 20 Ibid. 21 Ibid. 22 Ibid.

8 How the Criminal Code “Protects” Sexual Assault Complainants from Themselves and Constrains Their Participation in the News Media l i s a tay l o r

I think the publication ban should be lifted. It is my understanding that the ban is put in place to protect his victims. I am 37 years old, and a functioning adult – I do not agree that it is in my best interests to leave the ban in place – I should have the right to use my name or his name if I write a book or to help other victims. I have already suffered as a result of the abuse – I shouldn’t be forced into silence. I resent being silenced once again. We hoped that by being open and sharing our story with the press … other victims would be encouraged to “break the silence.” The secrecy is perpetuating the crime – the victims often feel shame, and criminals feel secure in the knowledge that their names will not be published.1

The passage above is from a letter read in a courtroom during a sexual assault trial. It was written by Jill Ladouceur, who, along with her two sisters and a childhood friend, was sexually abused by her father when she was a child. The trial judge rejected the four complainants’ joint request to have the ban on their identities rescinded. While the complainants were ultimately successful in having the ban lifted, it was an arduous battle (and one that will be discussed further in this chapter). Sexual assault complainants who want to speak publicly after becoming the subject of a publication ban are often surprised to discover that the ban does not merely prevent the media from broadcasting or publishing their identity. In fact, the ban prevents complainants themselves from publicly identifying themselves as sexual assault victims. Provided in s. 486.4 of the Criminal Code is an important safeguard to protect (insofar as it can) the identity and privacy interests of complainants in sexual assault proceedings. However, once a complainant accepts the protection

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of the ban, she is not legally able to speak publicly about the fact that she is/was a sexual assault complainant, unless she is successful in having the ban rescinded.2 The ban is imposed automatically if sought by either prosecutor or complainant, and it is permanent in nature, regardless of the outcome of proceedings, remaining in place even after the death of the complainant. Those who drafted the ban, as well as those who subsequently interpreted it, appear to have given careful consideration to a broad possible range of circumstances save one: What happens when a complainant does not want the protection of the ban? This possibility was probably too far outside ordinary contemplation at the time the ban was first enacted in 1976. However, we live in a very different world today. Whether you attribute this shift to Oprah or YouTube or reality TV programs like Intervention, the evolution of both technology and societal norms have exerted significant influence on the way issues such as sexual assault may be framed, with the opportunities presented by the former (technology) serving to amplify the latter (changes to societal norms). Such shifts in what is suitable for public consumption have served to bring topics like sexual assault into the public sphere: These storied voices of rape victims called into question prevailing stereotypes of rape and female sexuality and clarified a woman-centered understanding of sexual assault. Here, we have the possibility of a feminist narrative where women speak for themselves and where the unrepresentable, rape, is finally voiced and no longer “unspeakable.”3

It is unlikely that those who lobbied for laws to better protect the interests of sexual assault complainants could have envisaged circumstances in which a complainant might want to tell her own story. This was long before we knew what a blog was, long before the Internet afforded ordinary citizens the opportunity to share their thoughts with countless millions of people. Publishing and broadcasting were, with few exceptions, the domains of corporate giants, not regular folks. At that time, those interested in protecting complainants focused on how to protect a woman from having her story told by others (read: the media) without her consent or participation. They did not consider what might be required to allow a complainant to speak freely about her own lived experience. People often speak of what will help sexual assault complainants, or of what sexual assault complainants need. While undeniably wellintentioned, implicit in this commentary is the notion of a prevailing “complainants’ view,” or even a discrete number of perspectives that,

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taken collectively, can be fully inclusive of all complainants. Postmodern feminism and critical-race feminism have highlighted the dangers of such essentialism, and have been justly critical of the tendency to treat women as a single analytic category, since this practice ignores “important differences among women and among feminists, especially differences in race, class, and sexual orientation, that ought to be taken into account.”4 Clearly, there can be no single, “essential” answer to whether it is in a complainant’s best interests to speak openly about her experience. However, as the following paragraphs show, complainants who seek to overturn the ban face a process that is so confusing, expensive, and unpredictable that the process can be a barrier to freedom of expression and press freedom. Complainants’ Efforts to Overcome the Ban It is my observation that proceedings to rescind the ban on complainants’ identities are often mired in misconceptions, dubious assumptions, and well-intentioned protectionism that is ultimately harmful to complainants. Complainants who want to be identified in the mainstream media have often found journalists willing to give effect to that desire, and both journalist and complainant have done so under the mistaken belief that either the complainant’s consent is sufficient, or the exercise of prosecutorial discretion will ensure that no charges are laid. This second perspective – that no criminal prosecution would flow from circumstances in which the complainant was complicit in revealing her identity – featured prominently in a recent case that considered this issue. In R. v. Canadian Broadcasting Corp. (2003), a complainant attended the sentencing of the man who had been convicted of sexually assaulting her and several other individuals.5 The assaults, which had occurred during the late 1960s and early 1970s, were committed by Jack Ramsay, a former member of Parliament, while he was an RCMP officer in rural Saskatchewan. On the day of Ramsay’s sentencing, one of his victims told a CBC TV reporter that she would consent to an interview only if her identity was revealed – an act she said was “part of her spiritual healing journey.”6 After conducting the interview in accordance with the victim’s wishes, the CBC was charged with breaching the ban. Significantly, the complainant who initiated the publication of her identity was not charged. A trial in Saskatchewan Provincial Court resulted in an acquittal, with the trial judge finding the ban to be an infringement of a complainant’s right to freedom of expression.7 Unfortunately, this

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judgment was later overturned on appeal to a single judge on grounds unrelated to the constitutionality of the ban.8 The broadcaster was subsequently unsuccessful in convincing either the Saskatchewan Court of Appeal or the Supreme Court of Canada to grant leave to appeal.9 Given the fact that neither of the appellate courts heard the case, and that the judge who heard the appeal grounded his decision in arguments unrelated to the validity of the ban, this case does not offer any appellate-level analysis of the ban. There has been precious little exploration or analysis of the problem I have identified. One notable exception, however, is the work of an individual known publicly only as Jane Doe. Despite the fact that we do not know her real name, this particular Jane Doe is nonetheless familiar to many Canadians. She is the sexual assault victim who launched a landmark civil suit in 1998 against the Toronto Police Service after they failed to warn women in a Toronto neighbourhood that a serial rapist was active in their community. More recently, Jane Doe has undertaken a scholarly investigation into the question of whether the publication ban “does in fact protect the privacy of sexually assaulted women, or instead keep the crime of sexual assault private and hidden.”10 As part of that inquiry, Doe conducted interviews with sexual assault complainants and front-line sexual assault centre staff, all of whom are identified in her work only as “Jane Doe,” although she does distinguish between “experiential Jane Does” (women who have been sexually assaulted), “key informant Jane Does” (women who work in front-line sexual assault crisis centres), and “reporter Jane Does” (journalists who are able to comment on how the ban affects media coverage of related court proceedings).11 Doe found that there is widespread confusion regarding the nature, scope, and operation of the ban: “My survey resulted in some notable revelations: no one really understands the publication ban specific to sexual assault, not the lawyers, judges, anti-violence advocates nor the media, and certainly not the women to whom – or against whom – the publication ban is applied.”12 I have found ample evidence to support this contention. In the case involving the complainant Jill Ladouceur, after the trial judge refused to rescind the publication ban, the complainants retained counsel to represent them at a Crown appeal of the defendant’s sentence.13 The Ontario Court of Appeal gave effect to the complainants’ request that a ban not be imposed on their identities as part of the appeal. This was insufficient to entirely resolve the issue, however, because the court did not make any explicit reference to the original publication ban imposed

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in provincial court. This apparently left some uncertainty regarding whether that ban was still in effect.14 The complainants’ counsel then brought the matter before another judge, who found that the Court of Appeal had fully resolved the issue and that, as a result, the matter was res judicata and the complainants could be publicly identified. In so doing, the judge observed that the uncertainty in part stemmed from the fact that the Criminal Code “is silent on how a non-publication ban may be lifted,”15 and that other authorities who considered general procedure relating to publication bans “[did] not speak to the unusual circumstances of this particular case.”16 The judge further observed that “bans present many unresolved procedural problems.”17 While the complainants in that case were ultimately successful in having the ban lifted, the process took approximately eight months and necessitated retaining counsel to represent their interests before two separate courts. In another case in which a complainant had to retain private counsel to give effect to her wishes, she later testified that she spent more than $3,000 to be free of the ban’s constraints.18 Even after one invests time, money, and emotional resources in the effort, there are no guarantees a complainant will ultimately be able to exercise her right to speak freely, given that “[each] case must be considered on its own facts”19 and “an application for cancellation must be examined with great caution.”20 A particularly troubling case is R. v. R.J.S.,21 in which three women who had been victims of childhood sexual abuse at the hands of their grandfather were unsuccessful in their bid to have the ban on their identities rescinded. Although the judge acknowledged that their interest in speaking publicly was part of their “attempt to bring some closure and some healing to this sad and tragic event in their lives,” he ultimately declined to lift the ban on the basis that doing so might expose “their grandfather and other members of their family, including their grandmother … to closer inspection, and possibly ridicule, by the greater community.”22 What is most bothersome about this ruling (which was not appealed) is the fact that there was no authority offered in the judgment to support the notion that potential embarrassment for a perpetrator or his family is a valid or relevant consideration in response to a request by a sexual assault complainant to have the ban on her identity rescinded.23 If rescinding the ban is so fraught with difficulty, why bother? What happens to complainants who choose to break the ban, rather than seek the remedy of having the ban lifted? The statute tells us that “any

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person” who violates the ban may be found guilty of an offence punishable on summary conviction; practically speaking, however, it appears that nothing at all happens. I am unaware of any instance in which a complainant has been charged in relation to revealing her own identity and, while some may see this as a sound exercise in prosecutorial discretion, I contend it is one more way in which the complainant is treated as something less than a competent adult, able to appreciate and accept the results of her actions and choices. This law impedes a woman’s Charter rights (by preventing her from exercising her right to free speech) in order to save her from herself – a degree of protectionism that borders on the absurd. The fact that no complainant has been charged with violating the ban that protects her own identity offers little comfort to those who value free expression. We must be mindful of the law’s chilling effect, particularly since we don’t know how many complainants have been dissuaded from even trying to have the ban rescinded. Dr Ingrid Sochting,24 an expert witness called by the defence counsel in the CBC case, testified that, while almost all sexual assault complainants want the ban’s protection at the onset of criminal proceedings, as many as 30 per cent ultimately feel constrained by the ban and want to be free of it.25 Further, in her investigation of the ban, Jane Doe interviewed a complainant whose anecdotal account of her attempt to have the ban rescinded provides a harsh illustration of the degree to which a complainant may be infantilized by the legal system: “I had the ban at first and then tried to have it removed before the trial ended but the judge completely patronized me. He said ‘we know what’s good for you; there are laws in place to protect you. I don’t believe you’re prepared for the fall-out’ and he said no.”26 At the core of this protectionism is the following proposition: it may be better for a victim of sexual assault to refrain from doing what she feels is in her own best interests now, in order to avoid the possibility of future regret. This amounts to accepting real harm, in real time, to avoid later harm that is merely hypothetical, since there is no way of knowing whether a complainant would ultimately regret the decision to speak freely and openly. If a person in a position of authority encourages a complainant to remain silent lest she regret it later, it undermines and negates a complainant’s own autonomy and self-determination, and serves to infantilize all complainants by implying that these individuals should not trust their own judgments. It is undoubtedly true that many decisions we make in life cannot be undone – none of us has the

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ability to go back in time, after all – but this truism should not prevent a complainant from making her own autonomous choices about what information she shares with the world. Overcoming the Ban: Some Common Themes Based on my research, complainants’ reasons for seeking rescission of the ban fall into one or more of the following three categories: 1 Sexual assault complainants who wish to be publicly identified often seek to be free of the ban because they feel its continued existence is an impediment to their healing and recovery. 2 Sexual assault complainants who wish to be publicly identified often seek to be free of the ban because they feel that sharing their experience as a “survivor” will set an example for, and provide comfort to, other sexual assault victims. 3 Sexual assault complainants may wish to speak publicly about systemic problems they have identified during their involvement with the criminal justice system, or about other injustices peripheral to the assault. This is not to suggest that all accounts of attempts to overcome the ban fit neatly into one of these three categories. In one case, for example, a family successfully sought to have the publication ban on their daughter’s identity rescinded following a violent sexual assault that left the woman in a coma. The family was seeking public donations to help pay for an experimental therapy in a US hospital and felt that their fund-raising efforts would be more successful if they could publicize personal details about the young woman and her injuries without the constraint of the ban.27 In another instance, a young man whose female teacher was convicted of sexual exploitation as a result of a sexual relationship between the two when he was just seventeen years old was successful in having the ban on his identity lifted. His stated reason for not wanting the ban was because he felt he could capitalize on the attention the criminal case garnered in order to promote his selfproduced rap album, which included a song entitled “Teacher’s Scandal.”28 Leaving aside these rare exceptions, my research suggests the vast majority of complainants seek to be free of the ban to assist with their emotional healing, to serve as a role model for other sexual assault victims, and/or to call attention to problems they’ve identified within

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the criminal justice system. In the following sections I will explain, and provide examples of, these oft-cited reasons for stepping about from behind a court-ordered publication ban. Speaking Out to Heal For many complainants, the ban that protects their identity is integral to their healing and recovery. Yet there is evidence to suggest that, for some, the ban may ultimately impede the recovery process,29 a theory that finds a foothold in the small body of case law that speaks to instances in which complainants have clearly not wanted to be protected (or constrained) by the ban. One judge who addressed this concern observed, in obiter, that any court considering this issue would need to interrogate “the detrimental consequences that may flow from [a complainant] being prevented from speaking openly,” a line of inquiry the judge deemed to be “important, if not essential.”30 In a high-profile Quebec case,31 the judge who agreed to lift the ban on a sexual assault complainant’s identity is reported to have written that “if the publication bans helped her get through some difficult times, they prevent her today from getting on with her life.”32 In another high-profile sexual assault case involving historical allegations of sexual abuse committed by a high school teacher, three of twelve complainants successfully had the ban on their identities rescinded.33 One of them, Laura Anderson, says that, for her, the decision to forgo anonymity was not a difficult choice: “My husband’s a United Church Minister and being from a Christian tradition for many years, a name has power for me … To say your name and say, ‘This is who I am and I’m standing with my name beside my truth,’ has an element of power to me. It’s a taking back of power. And I just felt for me there wasn’t a big cost to pay in releasing my name.”34 Given the evidence in support of the contention that, for some sexual assault complainants, speaking publicly is an integral aspect of healing from violence and trauma, any impediment to such a free-speech act seems, at best, indifferent or insensitive. At its worst, it is akin to further victimizing a victim. Speaking Out to Help Others In Carnal Crimes: Sexual Assault Law in Canada, 1900–1975,35 legal historian Constance Backhouse devotes a chapter to the story of sexual

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assault survivor Velma Demerson. While incarcerated in a facility run by the Ontario government in 1939, Demerson was “subjected to painful repeated internal gynecological examinations and repeated medical treatments.”36 Those “treatments” were more akin to torture, in that they were not established medical practice, offered no apparent therapeutic benefit, and were conducted without Demerson’s consent. Decades later, she served the province with a civil suit, which was settled in 2004. Subsequent to that settlement, Demerson emerged as one who typifies the complainant who speaks out in order to benefit others. “The eighty-one-year-old advocate for social justice has begun to speak in public about her case, hoping to encourage others who experienced similar abuse to come forward,” observes Backhouse. “She receives standing ovations wherever she speaks.”37 Of course, Backhouse is able to identify Velma Demerson, and Demerson is able to speak publicly about her experience, only because no charges were ever laid in relation to the abuse Demerson endured. Because there was no criminal charge, there was no publication ban. It makes one wonder how many other remarkable social justice advocates like Demerson might share their stories, if only they were not constrained by a publication ban. This desire to serve as a positive role model for other sexual assault victims has been observed by Dr Ingrid Sochting in her private practice. Sochting says that for some of her clients “the motivation (to speak publicly) was very much to set an example for other people … hoping that other people would find the courage to kind of follow in their footsteps.”38 And so it was for the victim known as A.B., who said that she wanted “to help other First Nations people who had been victims in the past.”39 That sentiment is echoed by other sexual assault survivors, including Heather Howdle of Winnipeg, who asked a court to rescind the ban on her identity so that she could speak publicly about the abuse she suffered at the hands of her father. “Refusing to remain silent empowered Howdle, who went on to use her media profile to tell other victims they shouldn’t feel ashamed,” journalist Penni Mitchell wrote, also observing that, for Howdle, the choice to do so “became an important part of her healing process.”40 Criticizing the System and Setting the Record Straight Societal scrutiny of the criminal justice system is widely seen as integral to a properly functioning democratic society, in part because “public surveillance of the components of the justice system … keeps the

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process intellectually honest.”41 A sexual assault complainant is not entirely precluded from criticizing the criminal justice system or speaking about her experience. It is apparent, however, that it is more difficult to do so when one is constrained by a publication ban, at least in part because “the very act of removing [identity] disables us from looking at that individual woman, her experience and needs.”42 Quite often, key details of a victim’s narrative cannot be revealed, lest they have the effect of identifying the individual. In this regard, publication bans in the context of sexual assault prosecution may be likened to the judicial granting of anonymity for those seeking remedies under s. 15 of the Charter of Rights and Freedoms (which provides that everyone is entitled to equal benefit and protection of the law without discrimination). Such a decision on its face appears sensitive to the concerns and interests of litigants, but it has the potential effect of “further reinforcing the unimportance of the individual.”43 A complainant’s first-hand account of her experience with the criminal justice process has the potential to offer rare and significant insights into the inner workings of the justice system, and as such may illustrate the need for reform, both within the justice system generally and, specifically, in relation to the systemic problems associated with the prosecution of sexual assault cases and the treatment of alleged victims of crime. As Canadian media executive Esther Enkin explained to the Standing Senate Committee on Legal and Constitutional Affairs, “Frequently, when a victim comes forward and wants to be identified, it is because there are issues concerning the criminal justice system or other issues about how the case was handled.”44 In 2003, the Canadian Resource Centre for Victims of Crime advocated that the law be changed to give added flexibility to victims insofar as publication bans were concerned, in order “to ensure victims can apply to have the bans lifted and that the process not be onerous.”45 Currently, however, that is not the case – in at least some instances, the process is both onerous and uncertain – not just for complainants, but also for some judges and lawyers. Overcoming the Ban: Concluding Thoughts “As metaphors for privilege and oppression, to speak and be heard is to have power over one’s life,” writes Courtney Ahrens. “To be silenced is to have that power denied.”46 Complainants who want to speak out are silenced by parties often operating under the misguided belief that they

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know what’s best for all sexual assault complainants. These complainants deserve better – they ought to have access to a quick, simple, and predictable process for rescinding publication bans. As for the complainant who speaks publicly, what might the act of public speech mean for her? Perhaps the act of speech will help her heal. Perhaps it will give her an opportunity to criticize our system of justice insofar as it responds to the problem of sexual assault. Perhaps she will offer support and comfort to other victims of sexual violence. A revised, more flexible ban that respects individuality, choice, and selfdetermination will ensure that the complainant who wants to have the protection of the statute will still have that opportunity, while the complainant who chooses to speak out will be able to exercise the rights she is guaranteed under the Charter. NOTES 1 McNall v. R., [1992] O.J. No. 1920. 2 Throughout this work, I use the pronoun “she” to refer to a sexual assault complainant. I understand that both women and men, as well as individuals who identify as gender-fluid or gender non-conforming, may be either victims or perpetrators of sexual assault, and do not wish this choice to be seen as one that has the effect of negating or denying the experience of sexual assault complainants who are not female. The challenges associated with quantifying and better understanding the impact of sexual assault are well known, given that an estimated 91 per cent of sexual assaults go unreported; see Shannon Brennan and Andrea Taylor-Butts, Canadian Centre for Justice Statistics Profile Series: Sexual Assault in Canada 2004 and 2007 (Ottawa: Statistics Canada, 2008), 8. That same report later suggests that “police-reported data for 2007 indicate that female rates of sexual victimization were 5.6 times higher than male rates” (12). This statistic speaks only to incidents of reported sexual assault and does not take into account the possibility that males are less likely than females to report a sexual assault. Leaving aside the many unanswerable questions about the prevalence of sexual assault and the characteristics of sexual assault victims, however, it is nonetheless clear that the best evidence available to us strongly suggests that women are more likely than men to be sexual assault complainants. For this reason, I have chosen to use the gendered language that most accurately reflects what we know about the majority of sexual assault complainants, and refer to an individual sexual assault complainant as “she.”

How the Criminal Code “Protects” Sexual Assault Complainants  143 3 Sujata Moorti, “Cathartic Confessions or Emancipatory Texts? Rape Narratives on the Oprah Winfrey Show,” Social Text 57 (1998): 83–8. 4 Katherine T. Bartlett, “Feminist Legal Methods,” Harvard Law Review 103, no. 4 (1989–1990): 834. 5 R. v. Canadian Broadcasting Corp., [2003] S.J. No. 400 (Prov. Crt.). 6 Ibid., para. 13. 7 Ibid., para. 83. 8 R. v. Canadian Broadcasting Corp., [2004] S.J. No. 473 (Sask. Q.B.). 9 R. v. Canadian Broadcasting Corporation, [2007] S.C.C.A. No. 110. 10 Jane Doe, “What’s in a Name? Who Benefits from the Publication Ban in Sexual Assault Trials?” in Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society, ed. Ian Kerr, Valerie Steeves, and Carole Lucock (Oxford: Oxford University Press, 2009), 265. 11 Ibid., 268. The author further observes that “the issue of anonymity itself makes studies about raped women’s experiences difficult to design and complete”; she also explains that her focus “is not on individual stories of victimization that keep sexual assault in the realm of the normative, confessional, or depoliticized as it is often reflected in what is referred to as ‘Survivor Discourse’ or viewed through mainstream pop psychology such as that of Dr. Phil or Montel.” 12 Ibid., 272. 13 McNall v. R. 14 Ibid. 15 Ibid., para. 18. 16 Ibid. 17 Ibid., para. 19. 18 R. v. Canadian Broadcasting Corp., [2003]. 19 R. v. Ireland, [2005] O.J. No. 5244, para. 20. 20 Éditions des Intouchables (Quebec: CarswellQue, 2004), 2385, R.J.Q. 2734 (Que. S.C.), headnote, cited in James Rossiter, The Law of Publication Bans, Private Hearings and Sealing Orders (Toronto: Carswell, 2006). 21 R. v. R.J.S., [1998] O.J. No. 6519 (Gen. Div.). 22 Ibid. 23 R. v. Robinson, [1991], P.E.I.J. No. 77, at para. 3, in which MacDonald C.J.T.D. observes, “While there is certainly justification for protecting the children of the accused from the publicity of the criminal acts of their father, I do not see the Criminal Code as providing any means for protecting the best interest of the children of the accused in this situation.” 24 Sochting works as a clinical psychologist in the British Columbia health care system and maintains a private practice specializing in post-trauma problems, including sexual abuse.

144  Lisa Taylor 2 5 R. v. Canadian Broadcasting Corp., [2003], para. 30. 26 Doe, “What’s in a Name?” 27 “Banff Assault Victim Identified,” Ottawa Citizen, 7 March 2007. 28 Ian Bailey, “Teacher’s Student Lover Wins Bid to Reveal Identity,” National Post, 7 May 2003. 29 R. v. Canadian Broadcasting Corp., [2003]. 30 R. v. Canadian Broadcasting Corp., [2004]. 31 Simard c. Cloutier, [2005] J.Q. No. 6729. 32 Ingrid Peritz, “Assault Victim ‘X’ Steps into the Light: Entertainer Nathalie Simard Reveals She Was Abused by Mogul,” Globe and Mail, 25 May 2005. 33 R. v. Ellison, [2006] B.C.J. No. 3241 (Prov. Ct.). It should be noted that Ellison and other cases of institutional abuse in which one or more (but not all) complainants do not wish to be subject to the ban present an additional challenge for those complainants: in speaking about their own experience, they must nonetheless ensure that they do not inadvertently identify another complainant whose identity is still subject to a publication ban. 34 Jennifer Chrumka, “The Quiet Revolution of Sexual Offence Victims: What Are the Consequences When Victims Tell Their Personal Stories Publicly?” (unpublished M.J. thesis, University of British Columbia Graduate School of Journalism, 2007), 12. 35 Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 (Toronto: Irwin Law, 2008). 36 Ibid., 289. 37 Ibid. 38 Trial transcript of R. v. Canadian Broadcasting Corporation, [2004] 1 W.W.R. 482 (Prov. Ct.), 84. 39 Ibid. 40 Penni Mitchell, “Courage to Seek Justice,” Herizons Magazine, 1 July 2000. 41 Dean Jobb, Media Law for Canadian Journalists (Toronto: Emond Montgomery, 2006), 74, citing Willard Estey, “Freedom of Expression vs. The Individual’s Right to Privacy,” in Media & Society, ed. Frederic L.R. Jackman (Toronto: Canadian Journalism Foundation and Empire Club of Canada, 1994). 42 Doe, “What’s in a Name?” 273. 43 Daphne Gilbert, “Substance without Form: The Impact of Anonymity on Equality-Seeking Groups,” University of Ottawa Law and Technology Journal 3, no. 1 (2006): 225–47. 44 Proceedings of the Standing Committee on Legal and Constitutional Affairs (Ottawa: Parliament of Canada, 9 June 1999), http://www.parl.gc.ca/ Content/SEN/Committee/361/lega/72ev-e.

How the Criminal Code “Protects” Sexual Assault Complainants  145 45 Courtney Ahrens, “Being Silenced: The Impact of Negative Social Reactions on the Disclosure of Rape,” American Journal of Community Psychology 38, nos. 3–4 (2006): 263. 46 Ibid.

9 Must News Reporters Be Guerilla Lawyers to Protect Their Rights? Covering the Canadian Justice System in Small Communities r o b e rt k o o p m a n s

In 2001, the Supreme Court released one decision in a string of cases that have defined (and redefined) the right of freedom of expression as it pertains to journalists’ ability to cover court proceedings. R. v. Mentuck provided authority for the notion that police forces could not expect judges to prohibit journalists from reporting about their investigative techniques when those methods surfaced as evidence in public trials. The decision set aside a publication ban ordered in the murder trial of a man who had confessed his crime to undercover police officers posing as gangsters.1 These “Mr Big” investigations are controversial, as they use extensive, expensive ruses intended to convince suspects that they should come clean with past wrongdoings to gain the trust of “the gang.” Police typically want to keep confidential the methods of “Mr Big” investigators, arguing the investigations lose effectiveness and put officers at risk when targets come to learn of other similar investigations by reading about them in newspapers. The Supreme Court ruled, however, that Canada is not a police state and citizens are entitled to know the methods employed by police forces, even if the knowledge threatens the efficacy of those methods. It was a significant victory for press freedom. In paragraph 38 of the judgment, Justice Iacobucci introduced another meaningful element: In some cases, however, most notably when there is no party or intervener present to argue the interests of the press and the public to free expression, the trial judge must take account of these interests without the benefit of argument. The consideration of unrepresented interests must not be taken lightly, especially where Charter-protected rights such as freedom of expression

Covering the Canadian Justice System in Small Communities  147 are at stake … In cases where the right of the public to free expression is at stake, however, and no party comes forward to press for that right, the judge must consider not only the evidence before him, but also the demands of that fundamental right. The absence of evidence opposed to the granting of a ban, that is, should not be taken as mitigating the importance of the right to free expression in applying the test.2

As a reporter covering the Kamloops, British Columbia, courthouse for the now-defunct Daily News, those words offer a potential solution to a trend that had negatively affected my ability to fully cover many trial proceedings. At the time, in the courthouse where I worked, publication bans were often sought for reasons that suited the interest of one of the parties to the court proceeding, but not the public interest. Lawyers asked for bans to protect the names of victims or witnesses, or to keep specific kinds of information from the public. In the most extreme cases, judges sometimes banned publication of the entire proceedings; for example, in cases when an accused person intended to plead guilty to an offence while his or her co-accused did not, the ban would often protect the trial rights of the second individual. The Mentuck case would solve such problems, I hoped. No longer would reporters in small towns, working for small newspapers (like mine), with even smaller legal budgets, be prevented from covering evidence in trials or sentence hearings simply because we could not afford to hire a lawyer. Judges would intervene on the media’s behalf, I hoped, and implement the questioning found in Mentuck, leading to fewer publication bans. Naively, I expected judges would begin to demand fuller explanations from lawyers about why the bans were needed, and that the public interest would be considered by the court before a ban was imposed, so that I, as a working reporter, would not need to seek the advice of a lawyer every time a ban was sought. It did not happen. Rather, paragraph 38 disappeared into the legal wilderness and has not had the impact it seems it should have had. Although Mentuck’s central themes have prevailed – the legal test that judges now follow when considering freedom of expression is known as the “Dagenais-Mentuck test” – some of its subtleties have not, such as the ruling’s requirement that judges weigh the media’s interests in the absence of argument. In hindsight, the reasons for this are evident: in a kind of catch-22, Canada’s leading media lawyers had no reason to raise paragraph 38 with judges, since they were acting on behalf of the media and so were pressing for the right to free expression in the first

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place. As a result, I suspect front-line trial judges simply never learned of paragraph 38’s existence. Nonetheless, Mentuck and paragraph 38 sparked in me the realization that the media were not powerless in the justice system, and that regardless of whether or not these principles were championed by others, they had been established. It made me realize that there is a distinction between having rights and fighting for them. Mentuck raised in me the possibility that I had a voice. Taking a Stand In 2006, I exercised that voice. I was covering the first appearance in provincial court of a woman charged with murdering her husband. It was not a bail hearing, but simply her first appearance after being arrested. The woman’s lawyer began to comment on the way the police were treating her in custody, suggesting that officers were badgering her for a confession despite her repeated assertions that she did not want to speak with them. The prosecutor asked the judge to impose a ban on publication. For the first time, I stood in response and sought standing from the court to address the Crown’s application. Citing the principles in Mentuck and other cases, I argued that the Crown’s request for a ban was unwarranted in the circumstances and did not meet the legal test put forth by the Supreme Court of Canada. The judge agreed, and refused to impose a ban. As a result, I was able to report on the concerns of a lawyer about the treatment of his client at the hands of the investigators. It was a powerful moment for me when I realized that I had this recourse, even as a small-town reporter working for a newspaper without the financial resources to challenge threats to freedom of expression in the traditional fashion. The Supreme Court of Canada had given me the tools to assert my Charter-protected rights, as well as the confidence to use them. In the months that followed, I stood up in court many times to oppose publication bans sought by either the Crown or defence lawyers, sometimes both, in various legal proceedings. These experiences always left me feeling like a kind of “guerrilla lawyer,” catching the “real” lawyers off guard. They did not expect resistance, and underestimated my knowledge and understanding of the issues when I stood up to oppose requests for publication bans. It was a strong position to be in. Backed by my increasing arsenal of media law cases, I was able to swing a balance in Kamloops courtrooms. Local

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counsel no longer presumed that requests for publication bans would be granted. In fact, the opposite proved to be true; when presented with requests to impose bans, judges showed an almost enthusiastic willingness to refuse them. This was not always the case, however. My toughest fight – and ultimately, my biggest “victory” – came in 2007, after a British Columbia Supreme Court judge granted a Crown request for a ban on publication in the pretrial stages of a major criminal conspiracy case without giving me the opportunity to argue the issues. Appealing the decision of a Superior Court judge in this kind of situation required filing leave to appeal directly to the Supreme Court of Canada, following the jurisprudence set out in Dagenais v. Canadian Broadcasting Corporation.3 Again, my newspaper had no budget for such legal work. My editor gave me his blessing (and a $300 budget), however, to take on the task of appealing the judge’s ban. Three months after it was imposed, I filed leave to appeal to the Supreme Court of Canada, capping off an intensive period of legal research, writing, and document preparation, including the photocopying of more than four thousand pages on the little photocopier located between our newsroom and the advertising department. It was an almost ludicrous undertaking, but in the spirit of all such guerrilla endeavours, it proved to be successful. On the evening of the Crown’s required response, it folded. A prosecutor went into court in Kamloops and asked that the original ban be set aside. As a result, the Daily News published the story it should have been allowed to write three months before. No matter how much I at times enjoyed fighting for my rights, I would have preferred never to have stood in court to argue for the right of freedom of expression. Faced with such challenges, I would have preferred to call our lawyer and pass on the task to her or him. I would have always preferred to be in the gallery taking notes for a story instead of taking notes in response to a lawyer’s argument. It was only when faced with the realization that I had more to lose by silence that I chose to make a stand. Until judges recognize the intent of Mentuck’s paragraph 38, and implement its direction, I will always weigh the cost of saying nothing, and I urge every small-town reporter in a similar position to do the same. The media perform an important task when it comes to ensuring the efficacy of Canada’s court as a democratic institution. The cost of doing nothing when faced with a challenge to your right to cover court proceedings is too high.

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Becoming a Guerrilla Lawyer The process of becoming a “guerrilla lawyer,” however, should not be taken lightly. There are skills to learn and risks to face. The law creates opportunities – nothing more – and it is easy to fail. Media law, however, is not tax law; the legal principles are straightforward and commonsense, and acquiring the necessary skills requires nothing more than an inquisitive mind, a willingness to read, and a keen awareness of court procedure. Most reporters are amply equipped for the task. The starting point for any beginning guerrilla lawyer must be a thorough reading of certain key decisions, especially the canonical court ruling in Dagenais v. CBC, the 1994 decision that, along with refinements in Mentuck, set out the basic legal test for the justification of publication bans: A publication ban should only be ordered when: a. Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and b. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.4

This test is the basis for almost all media law today, and applies to all attempts to curtail, restrain, or limit the media, in all stages of court proceedings. Learn it by heart, and absorb its language; it is the cornerstone of all that follows. The Mentuck case is the next of the important cases to be read. It confirms the principles in Dagenais, but reformulates them slightly. The legal test that emerged is known as the Dagenais-Mentuck test. The third case to ponder is the 2005 decision of the Supreme Court of Canada in Toronto Star Newspapers Ltd. v. Ontario.5 It sets out important ground regarding standing – in other words, when and how the media can expect to have the right to argue issues related to freedom of expression in legal proceedings. There are scores of other cases, of course, and more being written all the time, but these three judgments encompass much of the argument that has guided the Supreme Court of Canada in relation to media law, as well as many subsequent decisions. It is an

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extremely rare decision that does not refer to the Dagenais-Mentuck test in consideration of issues related to the media, the courts, and freedom of expression. It is always wise, however, to stay abreast of the ever-growing body of media law decisions. For example, this collection has two excellent analyses on recent decisions and their impact on covering court proceedings. The first, “Has Dagenais-Mentuck Seen Its High-Water Mark?” written by Ryder Gilliland, discusses the current scope of the Dagenais-Mentuck test.6 The second, “Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012,” written by Jamie Cameron, deals with the Supreme Court’s approach to press freedom when it conflicts with other Charter values.7 Another excellent resource in this regard can be found at Ad IDEM (adidem.org), the website of the Canadian Media Lawyers Association, as well as the Canadian Legal Information Institute (CanLII), a non-profit organization managed by the Federation of Law Societies of Canada. CanLII’s goal is to make Canadian law accessible via the Internet, providing free access to court judgments, tribunal decisions, statutes, and regulations from all Canadian jurisdictions. Once you are armed with this knowledge, the next step requires opportunity. In most courthouses, such opportunities arise regularly. A reporter need only become aware of a lawyer’s intent to seek a discretionary ban on publication to exercise this new-found knowledge.8 In a perfect world, a reporter becomes aware of this intention before the application is made. In such a case, talk to the Crown lawyer responsible for the hearing and signal to her or him the desire to oppose the anticipated ban on publication. Have a copy of Toronto Star Newspapers Ltd. v. Ontario handy to convince reluctant counsel that you have the right to make such a request. If the lawyer refuses to cooperate, or if you are in court and unexpectedly hear a lawyer ask for a ban on publication, stand in court. Walk to the front of the public gallery, near the bar. Get the court clerk’s attention, or the attention of the judge. Introduce yourself, and let the process follow its course. Be bold; don’t be intimidated by robes and glowering silence. Relish that adrenalinecharged moment, and the process that follows, however it comes out. You are fighting for your rights, both as a journalist and as a citizen. Of course, exercising a voice in protection of our rights comes with risks, the first of which is the risk of failure. What happens if we stand in opposition and lose? Are we not setting the stage for a new precedent that could set back the cause of journalism? In short, no. In almost all instances, decisions made by judges are based on facts pertaining to

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individual cases. The general principles have long been decided, and as such, there is no loss to the greater journalistic community if a judge fails to accept your argument. There is more to be gained than lost by requiring judges and counsel to engage in a process that weighs and examines these important freedoms. A greater risk, perhaps, is that which relates to notions of journalistic independence that come with our direct involvement in the very processes we cover. I have felt uncomfortable at times becoming part of the court story by opposing bans, but such is the price to be paid. It is better to enter the fray and leave with the ability to write the full story than sit on the sidelines and let others decide how much is to be printed. Yet another risk is that when you begin to act like a lawyer, your company is likely to expect you to continue to do so, making it unlikely that the company will ever devote money to this legal work. Moreover, guard against becoming too preoccupied with your new role as “guerilla lawyer.” The law is heady territory and can fill a reporter with misguided notions of grandeur. It is easy to get carried away, to lose perspective, to immerse oneself so deeply in the principles of law that we lose sight of the fact that we are not lawyers. We are journalists, with our own distinct role to serve. Don’t allow legal reasoning to displace journalistic thinking. Above all else, one rule should guide your actions: do not become involved in a legal proceeding in any capacity when there is the potential for consequences, either for you or your employer. In other words, step up to argue only when there is nothing to lose by doing so. I will never act or speak in court or seek to represent my employer when there are real stakes. In issues related to defamation and libel, for example, my employer and I always seek the advice of legal counsel. I might think I know the law, but if I am wrong the consequences can be high. Similarly, I would never seek to represent myself or my employer in court should we ever inadvertently breach a publication ban or be cited for contempt. There are times when journalists need lawyers. There is another area in which “guerrilla lawyers” can have a meaningful effect and can work for the interest of the public. Accessing court records, including expert reports and exhibits, often requires applications to the court. Although such material is often crucial to full reporting, many times sentencing reports prepared for the courts by psychiatrists or probation officials are filed as evidence but not read into the record. Such reports contain much detail about accused individuals, their crimes, and, often, the risk that they may reoffend. The

Covering the Canadian Justice System in Small Communities  153

reports guide judicial decision making; how, then, can a reporter fully understand and explain a judge’s decision without reading the reports? The process by which journalists can access court records varies across Canada, as each province has its own guidelines, practices, and restrictions. In British Columbia, the Provincial Court in 2010 created policies requiring media to file written requests for access to exhibits and reports, and to serve all affected parties with the request.9 Such requests are often opposed by counsel and require a great deal of preparation and legal work to be successful. The legal principles that govern access to court materials are the same as those that generally govern freedom of expression, but there are complexities that can make requests difficult. There are often issues surrounding third-party privacy, for example, that must be addressed. Attempts to gain access to court materials require a keen sense of the current case law. It is always useful – but especially in these kinds of situations – to find instances when other judges have allowed journalists access to the kind of materials you seek. Again, Ad Idem and CanLII can be a guerrilla lawyer’s best friends. Conclusion Daring to stand and speak out in court for the media’s right of free expression can be daunting. In every instance, however, remember that Canada’s highest court has long recognized the importance of the media to the proper functioning of the justice system. In Toronto Star Newspapers Ltd. v. Ontario, for instance, Justice Fish, writing for a unanimous panel, asserted the following in the opening paragraphs of his judgment: In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy. That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.10

These are powerful words that demonstrate how journalists have a role to play in the administration of justice. Until our judges come to realize

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they have been directed to weigh key concepts of freedom of expression without media representation in every instance, we should feel no fear in doing what we must. NOTES 1 R. v. Mentuck, [2001] 3 S.C.R. 442. 2 Ibid., emphasis added. 3 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. 4 Ibid. 5 Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188. 6 See chapter 7 in this volume. 7 See chapter 14 in this volume. 8 This applies only to discretionary bans in particular; many bans imposed in court, such as at bail hearings and preliminary inquiries, are statutory and must be imposed at the request of defence counsel. Discretionary bans, on the other hand, are not based on statute and rely on the court’s inherent jurisdiction to control its own processes or protect the administration of justice. It is these kinds of bans that are subject to the Dagenais-Mentuck test. 9 Policies Regarding Public and Media Access in the Provincial Court of British Columbia (Vancouver: Office of the Chief Judge, Provincial Court Judiciary, Provincial Court of British Columbia, November 2012), http:// www.provincialcourt.bc.ca/downloads/pdf/Media%20Policy%20 Regarding%20Public%20and%20Media%20Access.pdf. 10 Toronto Star Newspapers Ltd. v. Ontario.

PART THREE

•

Press Freedom and Institutional Secrecy

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10  F  reedom of Information: How Accountability to the Public Is Denied f r e d va l l a n c e - j o n e s

Freedom-of-information (FOI) laws give the public formidable rights to obtain records held by government agencies. In theory, subject to limited and specific exemptions, those making a request (requesters) have a right to any record held by a public agency covered by one of Canada’s seventeen statutes that allow them access to information. With a few exceptions, such as municipalities in Prince Edward Island and the Yukon, the acts cast a wide net across the government at all three levels: municipal, provincial, and federal. The focus here will be on the latter two. In the oft-quoted Dagg v. Canada case from 1997, the Supreme Court of Canada said: “The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.”1 More recently, in Information Commissioner v. National Defence, the Court said: “This Court’s position is consistent with the view that access to information legislation creates and safeguards certain values – transparency, accountability and governance – that are essential to making democracy workable.”2 While some acts (such as those enacted in Nova Scotia and British Columbia)3 include references to accountability in their preambles, many citizens who have actually resorted to these processes have discovered that reality can be at odds with these apparent commitments to accountability. When requests are made for sensitive or controversial materials, the process can slow to a crawl, and governments can seem as secretive as ever. In this chapter, I will explore the various ways in which the fine intentions enunciated in access legislation are thwarted

158  Fred Vallance-Jones

by specific legal restrictions on access written into the laws, by process barriers such as delays and fees, and even through blatant interference with requests by political officials who, with an obvious conflict of interest in that release of negative information can produce unwanted political side effects, should have no part to play in whether the public can obtain government records. The right to freedom of expression in the Charter, and especially freedom of the press and other media, is seriously undermined if citizens and journalists cannot obtain timely and complete information about the activities of their governments. It could well be argued, and the Supreme Court seems to have endorsed the idea, that a core reason for having access laws is to facilitate the right to vote that is contained in s. 3 of the Charter. The Stats behind the Denials Canada’s open-records statutes contain many exemptions to access, under which officials can refuse a request for access to part or all of a record. Some are discretionary, in that officials can choose to refuse access; others are mandatory, and the information must be withheld. For example, internal advice given by civil servants is typically subject to a discretionary exemption, and information about identifiable individuals (with narrow exceptions such as civil servants’ salary ranges) falls under a mandatory exemption. In 2012, the government of Newfoundland and Labrador moved to widen the bases on which it could refuse to disclose records under that province’s legislation. The Progressive Conservative government of Kathy Dunderdale pushed through legislation to broaden some exemptions and give bureaucrats new justifications to refuse to process some requests, including the power to deem requests trivial, or an abuse of the right of access.4 Dunderale has since stepped down, and her successor, Tom Marshall, initiated an extensive review of the legislation after public outrage over the changes. That review, led by former premier Clyde Wells,5 was released in March 2015 and led to new legislation passed later that year.6 Even when records don’t fall under the exemptions, a variety of administrative barriers exist, such as delays, fees, and special handling processes for “contentious” requests.7 What should be a simple and straightforward process can drag out into months of correspondence, extensions, and ever-increasing frustration for everyone involved. In the 2012 Newspapers Canada Freedom of Information Audit, the eleven federal departments and agencies that were sent FOI requests

How Accountability to the Public Is Denied  159

were able to answer only half of them within the statutory thirty-day response period, a figure that closely parallels official statistics for all requests.8 Nine of the audit requests, or 16 per cent, had not been answered after four months. The failure of the acts to work as well as they should is often obscured in the official statistics. Those who process the requests typically group all requests together, producing overall numbers that suggest the system works pretty well. But on closer examination, the cracks become evident. It is probably in the handling of accountability requests that the acts have failed most often. Ask any journalist who uses freedom-of-information legislation and you will be told the acts can be made to work, but it is often a frustrating experience. One of the reasons the official statistics can be misleading is that so many requests come from those who have private reasons for seeking information, reasons that have little to do with holding governments accountable. Media and other accountability requesters, such as politicians and interest groups, are a smaller part of the overall pool of requesters. In Ontario in 2012, requests from the media, associations or groups, governments (including opposition politicians), and academics or researchers, under the provincial FOI regime, accounted for just under 7 per cent of all requests filed, according to official statistics from the Information and Privacy Commissioner of Ontario.9 At the federal level, the media and organizations were responsible for about 17 per cent of requests in 2011–12.10 Conversely, requesters with purely private interests, such as businesses, account for a far greater proportion. The 2011 Newspapers Canada Freedom of Information Audit found that almost all general records requests made to the Ontario Ministry of the Environment were from businesses seeking information on contamination of properties.11 The requests are so common, the ministry has a special form for them and much of the time charges a standard search and processing fee. These requests comprise about half of all general records requests in Ontario, dwarfing the numbers in any other ministry and making Ontario’s performance appear a lot better than it would otherwise.12 So a lot of time is spent dealing with requests that have little or nothing to do with the kinds of accountability requests we typically think of when we think about access. And even though accountability requesters such as journalists, opposition politicians, and interest groups are doing the very work the Supreme Court has said is the purpose of freedom-of-information legislation, their requests seem to face the greatest obstacles, the longest delays, and the most painstaking scrutiny before release.

160  Fred Vallance-Jones

The 2011 audit research for Newspapers Canada showed that, for requests submitted to fifteen high-volume ministries and agencies in Ontario, 82 per cent from businesses and consultants and 77 per cent from private individuals were completed within the thirty-day statutory period. For the much smaller number of requests filed by the media, just 42 per cent were completed within the thirty-day period.13 So journalists who feel their requests take a long time are right. Accountability requests from journalists and others are also more likely to be designated as contentious and subject to extra processing steps under Ontario’s contentious issues management process. Among requests filed to the high-volume institutions, 89 per cent of all media requests were designated as contentious.14 Requesters from lobby groups and associations were also very likely to be labelled as contentious, while those from lawyers, businesses, and the public were much less likely to have their requests labelled as such. Under the contentious-issues process, the staff members who process FOI requests flag those that may prove controversial once the records are released. As Suzanne Craig discusses in her chapter, “Municipal Access to Information, Delays, and Denials: An Insider’s View,”15 once a request is put onto the contentious-request processing track, extra steps are put in place. These can include writing a briefing note to anticipate possible questions from the media or opposition politicians.16 And while the process is not supposed to extend processing times, evidence suggests that it has. Between 2008 and 2010, data from the high-volume ministries and agencies revealed that about 45 per cent of contentious requests were completed after their due date.17 This compares to about 18 per cent of requests overall that were completed after the due date.18 Contentious requests were also more likely to be abandoned. There is compelling evidence that processes such as Ontario’s contentious issues management regime allow political staff, who are not supposed to be involved, some influence over the FOI process. The Processes That Add to Delays In 2011, after an NDP MPP wrote to her office seeking an investigation, Ontario’s information and privacy commissioner reviewed the handling of two contentious requests in the Ministry of Finance.19 A final decision on one of the requests was delayed by more than seven months after a legislative assistant in the minister’s office intervened and staff in the FOI processing office put the request on hold twice, feeling they had been given direction to do so by the minister’s office.

How Accountability to the Public Is Denied  161

The commissioner’s report concluded that the staff’s belief they had been directed to put processing on hold was understandable, and the delay after the legislative assistant intervened was the responsibility of the minister’s office. While the commissioner did not find that there had been actual political interference, she said the contentious-issues management process had acted to give political staff “de facto control over the timing of the FOI process.”20 The report went on: “The process allowed the initiative or authority for responding to the request to be transferred from Ministry staff to the Minister’s Office. This is cause for concern, since it provided political staff with greater control over the processing of the FOI request than was appropriate, and gave the appearance that political considerations were influencing the timing and nature of the response.”21 Similar processes exist at the federal level and, after a complaint by the Canadian Newspaper Association (the precursor organization to Newspapers Canada), the federal information commissioner said, while there was no evidence of special rules for media requests, protocols on handling sensitive requests did unacceptably slow down requests.22 Sometimes top officials simply do not want a record to come out and may pressure coordinators to withhold it. The most egregious example of the latter was the email order sent in 2009 by the director of parliamentary affairs of the Minister of Public Works to “unrelease” records that were then sitting in the mailroom on their way to the Canadian Press. The director had wanted some of the information to be withheld and the release package was subsequently retrieved from the mailroom and delayed for months.23 In this case, the federal commissioner did find there was political interference.24 It’s not just these kinds of special processes that are eating away at the accountability mission of FOI legislation. Another enormous barrier is administrative process, with long delays and high fees as key factors that can stand in the way of access. I have called these barriers “quasi exemptions” because they have come to rival the formal exemptions as barriers to access.25 An example of this is the explosion of extensions at the federal level. In 2011–12, the official statistics show that there were almost five thousand extensions claimed to allow time for consultations with other departments.26 There were also 6,500 extensions because officials deemed the requests so large that processing them in thirty days would interfere with operations.27 Longer extensions are the rule. In 2011–12, about two out of three extensions were for more than thirty days, and more than one in six were for more than four months.28

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As Craig points out in “Access to Information,” some of the delay is being caused by understaffing in the offices that process access requests. Staff members are often overloaded, and there are constant deadlines. It’s a high-pressure environment, where staff must get the stuff from the inbox to the outbox, while trying to balance all of the internal and structural interests somehow, get the right sign-offs, keep the right people in the loop, and get it all out within the statutory deadlines. Is it any surprise that in this environment, the ideal of the FOI coordinator whose intent is to work with requests in a spirit of openness often morphs into “Take a number. We’ll get to you when we’re ready”? Add to this the fact that, with notable exceptions such as British Columbia’s FOI regime, the system still operates much as it did back in 1983, when the federal act came into force. Requests must be in writing and submitted physically; fees have to be paid using cheques; and records are very often released as paper copies, meaning the responses also have to be sent by mail. This is at a time when many other government services, such as motor vehicle registration, can be done online using a credit card. In the fall of 2012, the federal government announced it would launch a pilot project that would see three departments accept requests online, with online payment.29 Other departments are to be added to the project until requests to most departments and agencies can be filed online through a centralized portal.30 Notwithstanding developments such as these, the system is ill. As discussed earlier, it effectively gives priority to the least important requests. The ones at the heart of the purpose of access as enunciated by the Supreme Court (i.e., requests designed to encourage accountability) are perversely forced to clear the highest hurdles, take the longest to process, and are more likely to be abandoned. The result is a diminishment of accountability and enhancement of secrecy. There are not that many accountability requests, so the effort that would be required to give them the priority they should have would not be that great. But there has been a singular lack of action by governments to fix the problems of delay and other administrative hurdles, such as large fee estimates or excessive claims of exemptions, which says to me that there is no real will to fix the problem. FOI on the Public’s Terms There is scant evidence that Canadian bureaucracies – at least at the senior levels – have been infused with the idea that public access to

How Accountability to the Public Is Denied  163

government information, on the public’s terms, is a genuinely desirable thing. As a result of that tepid commitment, the part of the bureaucracy that deals with access requesters exists in a kind of grey zone within the broader bureaucracy, neither wholly welcome nor wholly unwelcome. But what could be done to fix these problems? In 2012 then–federal information commissioner Suzanne Legault set out to answer that question at the federal level, launching a consultation on the functioning of the Access to Information Act.31 More than forty individuals and organizations (including myself) made submissions to the consultation process.32 The commissioner asked for input from the public and stakeholders, and planned to submit a report to Parliament in the fall of 2013. One of Legault’s predecessors, John Reid, proposed a series of legislative changes to the act.33 Stephen Harper’s Conservatives initially promised to reform the act, but it later eschewed most of Reid’s proposed changes. The government did, however, expand the number of institutions covered by the act, adding such bodies as the CBC and Canada Post, as well as putting in place some additional exemptions and exclusions to disclosure.34 While the emphasis is often on legislative changes, such as the introduction of penalties, there is much that can be done without enormous changes to the law. Some possible measures could include the following: • Eliminating contentious-issues management in Ontario and similar processes in Ottawa. If a contentious request is going out, there is no reason that communications officials cannot be given notice well in advance of release so that any briefing notes and media lines can be created. • Giving priority to media and other accountability requesters, to reflect the importance put on this work by the Supreme Court. • Ensuring the offices that process requests are adequately staffed. • Expanding routine disclosure, to get as many frequently requested records out of the request processing stream and clear the way for the requests that genuinely need to go through the formal channels. • Allowing electronic filing of requests and payment of fees, to get rid of the delays associated with the back-and-forth of letter mail. Reforms such as these could go a long way to making the system work more smoothly, as could giving access coordinators full authority to make decisions.

164  Fred Vallance-Jones

The problems have existed for a long time, and the fact that little has been done suggests a weak will to fix them. Everyone pays homage to openness and accountability, but little is done to enhance it, and in cases such as that in Newfoundland and Labrador, the momentum is in the direction of more secrecy. Only when governments are ready to match their rhetoric about openness with action will Canada’s access statutes live up to their promise and the theoretically formidable rights given to the country’s citizens become formidable in practice. NOTES 1 Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403. 2 Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306. 3 Freedom of Information and Protection of Privacy Act, 1993, Chapter 5, 2nd sess. (Nova Scotia), http://nslegislature.ca/legc/statutes/freedom. htm; Freedom of Information and Protection of Privacy Act, R.S.B.C., 1996, Chapter 165 (British Columbia), http://www.bclaws.ca/EPLibraries/ bclaws_new/document/ID/freeside/96165_00. 4 Belinda Alzner, “Newfoundland Passes Bill 29 to Amend Access to Information Legislation,” Canadian Journalism Project, 15 June 2012, http://j-source.ca/ article/newfoundland-passes-bill-29-amend-access-information-legislation. 5 Clyde Wells, Doug Letto, and Jennifer Stoddart, Report of the 2014 Statutory Review, Access to Information and Protection of Privacy Act, http://ope.gov. nl.ca/publications/pdf/ATIPPA_Report_Vol1.pdf. 6 Access to Information and Protection of Privacy Act, 2015, SNL2015, Chapter A-1.2, http://www.assembly.nl.ca/legislation/sr/statutes/a01-2.htm. 7 Fred Vallance-Jones, “Access, Administration and Democratic Intent,” in Brokering Access: Power, Politics and Freedom of Information Process in Canada, ed. Mike Larsen and Kevin Walby (Vancouver: UBC Press, 2012), 287–313. 8 Fred Vallance-Jones, “National Freedom of Information Audit 2012,” Newspapers Canada, 26 September 2012, http://www.newspaperscanada. ca/sites/default/files/Freedom-of-Information-Audit-2012-FINAL.pdf. 9 2012 Access and Privacy Statistics (Toronto: Office of the Information and Privacy Commissioner of Ontario, 2013), http://www.ipc.on.ca/site_ documents/ar-12-statistics-e.pdf. 10 Government of Canada, Info Source Bulletin Number 35B – Statistical Reporting (Ottawa: Treasury Board of Canada Secretariat, 19 December 2012), http://www.infosource.gc.ca/bulletin/2012/b/bulletin35btbeng.asp.

How Accountability to the Public Is Denied  165 11 Fred Vallance-Jones, “National Freedom of Information Audit 2011,” Newspapers Canada, 26 September 2011, http://www.newspaperscanada. ca/sites/default/files/FOIAudit%202011%20ReportFINAL%20.pdf (for the supplemental Ontario report, see http://www.newspapers canada.ca/sites/default/files/FOI%20Audit%202011%20 Ontario_1.pdf). 12 Ibid. 13 Ibid. 14 Ibid. 15 See chapter 11 in this volume. 16 Ann Cavoukian, Report into Contentious Issue Management in the Ministry of Finance (Toronto: Office of the Information and Privacy Commissioner of Ontario, 27 May 2011), http://www.ipc.on.ca/images/Findings/rptcontentious%20issues%20mgmt.pdf. 17 Vallance-Jones, “National Freedom of Information Audit 2011.” 18 Ibid. 19 Cavoukian, Report into Contentious Issue Management in the Ministry of Finance. 20 Ibid., 15. 21 Ibid., 14–15. 22 Vallance-Jones, “Access, Administration and Democratic Intent.” 23 Ibid. 24 Suzanne Legault, A Special Report to Parliament Number 1: Interference with Access to Information (Ottawa: Office of the Information Commissioner of Canada, 14 February 2011), http://www.oic-ci.gc.ca/eng/rp-pr_spe-rep_ rap-spe_rep-car_fic-ren_2010-2011_interference-with-ati-interference-avecati_2.aspx. 25 Vallance-Jones, “Access, Administration and Democratic Intent.” 26 Government of Canada, Info Source Bulletin Number 35B – Statistical Reporting. 27 Ibid. 28 Ibid. 29 Canadian Press, “Access-to-Information Requests to Go Online,” CBC News, 7 October 2012, http://www.cbc.ca/news/politics/ access-to-information-requests-to-go-online-1.1166317. 30 Ibid. 31 Government of Canada, Access to Information Act, R.S.C., 1985, c. A-1, Justice of Laws Website, http://laws-lois.justice.gc.ca/eng/acts/a-1/. 32 “Submissions,” Office of the Information Commissioner of Canada, 25 June 2013, http://www.oic-ci.gc.ca/eng/modernization-atia_2012_allsubmissions-tous-soumissions.aspx.

166  Fred Vallance-Jones 33 Kristen Douglas, Élise Hurtubise-Loranger, and Dara Lithwick, “The Access to Information Act and Proposal for Reform,” Background Paper, No. 2005–55-E (Ottawa: Library of Parliament, 2012), http://www.parl. gc.ca/Content/LOP/ResearchPublications/2005-55-e.pdf. 34 Ibid.

11  Municipal Access to Information, Delays, and Denials: An Insider’s View suzanne craig

In Ontario, the public’s basic right to access government information has often been delayed or denied, as Fred Vallance-Jones discusses in his chapter “Freedom of Information: How Accountability to the Public Is Denied.”1 While he looks at the reasons behind these delays and denials at a provincial and federal level, I want to take a closer look at the cause of these delays at a municipal level, using examples that I experienced while serving as the director of access and privacy for the City of Toronto. As members of the public, we have a right to make informed decisions about whom we choose as our elected representatives and can only do so through timely access to government-held data. When this does not happen, we should ask ourselves why there are such delays. Why is this fundamental right and cornerstone of democracy denied to the public and, in particular, to the media? Above all, the public needs to know that their role in the democratic process is strengthened by their right to know, and if this critical right is denied, the public must fight for this information. How our government manages records, and what staff are assigned to develop updated records management and electronic data holdings systems – in short, how information, one of the public sector’s largest assets, is managed – is an issue that directly impacts the right of public access to information. While it may be true that sometimes the government does not want its information or secrets out, all too often access denial is the result of the presence of extraordinarily high search and copy fees and obsolete information-management systems.

168  Suzanne Craig

Exercising the Public’s Right to Know: The First Steps of a Request For quite some time now, the Information and Privacy Commissioner (IPC) of Ontario has called for the government institutions to develop a renewed culture of openness, conduct a review of fees charged for access requests, and reform the “contentious issues management” process. As far back as her 2003 annual report, Information and Privacy Commissioner Ann Cavoukian called for the Ontario premier to issue an open letter to all ministers and deputy ministers emphasizing the government’s direction that a culture of openness and transparency within government must underlie decision making under our access laws. This letter, the commissioner stressed, should set expectations that information will be disclosed as the normal course of business and that only in limited circumstances, where there are clear and compelling reasons, can the act be used to deny access.2 On the books, the rules of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)3 set out a straightforward process for the public to access government-held information. The first step is to identify where and what you are seeking to obtain through MFIPPA. After deciding on the “what” (e.g., all emails to and from the director of planning in relation to the XYZ project), and the time frame (e.g., between 1 and 30 December 2014), an individual must complete an access request form and send it with the five-dollar fee to the access and privacy department of the municipal government organization that holds the records. When an FOI officer receives a request, he/she must identify what department holds the records and send out a request to the department. The department is given a time frame within which it must let the FOI office know if it has the records and the approximate number of pages of responsive records it holds. This enables the FOI office to let the requester know what he/she will have to pay to receive the records. An institution can charge $7.50 for each fifteen minutes spent by any person in the institution searching for the record. If more than one person is conducting the search, each person’s time can be charged. Search time does not include the time spent photocopying the records, the time it takes an employee to go from one area in the institution to another to locate responsive records, or the time it takes to drive to an off-site storage location to retrieve records (unless costs are invoiced by an outside firm).

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The letter and the spirit of MFIPPA have the same intent: to get the requested records to the individual within thirty days. The reality for most individuals, however, is delays. I have worked as a government-access professional in Ontario for over fifteen years, and I have come to believe that there are two primary reasons for delays. First, governments at every level have not allocated sufficient resources to freedom-of-information (FOI) offices. These offices do not have sufficient staff or adequate systems in place to collect, hold, and manage information record holdings, or to be in a position to disclose the information in a timely manner as requested by the public and as required by law. Moreover, they do not have the funds to train staff to respond promptly and appropriately to the information requests. In 2004, the City of Toronto received 3,346 access requests and responded within thirty days to only 65 per cent of those requests. In 2005, when I joined the City of Toronto, working with the city clerk, the city solicitor, and under the leadership of then-mayor David Miller, the city received 3,706 access requests and improved its thirty-day response rate to 82 per cent. As the director of corporate access and privacy for the City of Toronto from 2005 to 2009, I saw first-hand the city’s vast record holdings. Records were and still are being archived on floppy discs and microfiches, and they are held in various locations throughout the city. It is often a challenge even for the individuals who work at the city to locate records in response to an access request given the sheer number of different formats within which the records are being stored. It can take days or weeks just to identify the locations of the information. Even when an FOI request is received by a government office, the first challenge for an FOI coordinator is to locate where that information is being held. While MFIPPA stipulates that the institutions holding the information have thirty days to provide the information to the individuals who are requesting it, that deadline is often difficult to meet due to antiquated records systems, lack of resources, understaffing, and lack of education on the requirements of the act. The disconnect between the rules of MFIPPA and the individual’s right of access is caused not only by insufficient dedicated resources to the FOI office. Sometimes, those who work in FOI offices are told that there is a “procedure” that must be followed before information can be disclosed. This direction acts as an impediment to the professional independence of FOI officers and an obstacle to timely disclosure. Often, this process is adopted for requests from the media.

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In her 2011 annual report, former commissioner Cavoukian strongly reiterated her message against institutions adopting a contentiousissues management process.4 “Issues management,” “contentious requests,” or “red-flagging” refers to situations in which internal processes raise the profile of an FOI request that might embarrass the government. As part of the contentious-issues management process, the FOI coordinator will say to the branch in possession of the records: “Please let me know if the records are there, how many of those records you hold and in what format those records are held.” Once a response is received by the coordinator, the FOI office must then identify how quickly the branch can photocopy the original requested documents or take those out to a third party to have them copied. What follows is a running tally of how many people are involved in culling the records and a summary of whether anything sensitive is contained in the documents. This process of back-and-forth communication with the branch may take up to twenty-eight days; at that point, a letter is sent to the requester saying that more time is needed to answer the request. Often with the contentious-issues management process, the FOI office will receive a communication from a political office or a government lawyer saying: “This particular issue is sensitive and please tell the requestor that we need time to consult with other departments.” As a result, the thirty-day deadline is virtually impossible to meet when the request is flagged as contentious. While there is a legitimate reason for an extension under the legislation, to paraphrase Dr Cavoukian, a contentiousissues management process is legitimate as long as it does not slow down the access process, because access delayed is access denied. This process was put in place by the Ministry of Government Services to ensure that the disclosed information was clarified in the package being released to the public. For several years, the premise was that information released through an access-to-information decision had to be “massaged” in a way that the requesters would be able to use it “properly” to exercise their democratic rights.5 Dr Cavoukian found that it is acceptable for an institution to have a “heads-up” process but not a “sign-off” process. She said that this problem was raised in her 2000, 2003, and 2004 annual reports and that her position was that although it is not a problem for a government institution to have a heads-up process about the disclosure of potentially controversial records under FOI, MFIPPA does not allow political interference in when and what records go out.

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However, as noted above, the delay is not always the result of the insertion of an issues-management process. Sometimes, due to the volume and complexity of the records, more time is needed to simply process the request and prepare the records for disclosure. If the institution is looking at four hundred pages of documents in response to the request or documents are held in various formats, the institution even in the best-case scenario of total compliance with the act will still need the time to copy and redact those records. When faced with legitimate delays or obstruction, what can a requester do? There are several things that a requester can do to make the process work. Making the Process Work

Managing Delays In order to fully exercise their right to know, the public must arm themselves with knowledge when making a request. Learn about the accessto-information laws that underpin the public’s right to know and understand that the information held by government is held in trust for the public. Close to twenty years ago, the Supreme Court of Canada ruled in Dagg v. Canada that the purpose of access-to-information legislation was to make government information available to the public – not some information, not only information that may not appear embarrassing, but all government information, save for limited and specific exceptions. We can all agree that there are situations in which the information being requested contains personal and confidential information of an identifiable individual or other prescribed exemption to the rules of disclosure. Government institutions are required to respect privacy and confidential deliberations. However, outside of these very specific exceptions, access is the default. In fact, the Dagg decision is as relevant today as it was in 1997.6 The next step is to get to know the professionals within the government who are the experts on access and privacy rights and learn to work with them. Sometimes the solution is readily available through communication with the FOI professionals. Municipal institutions have web pages that list the contact information for all departments, as well as a 311 information line to help the public find the department and staff that can assist them. This information is for the benefit of the public, and those seeking access to information should feel free to call

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municipal staff for guidance through the access process. Let me illustrate the benefits of this approach. A few years ago, Toronto Star reporter Rob Cribb came to my office and asked to meet with me because he had filed an FOI request and had waited a very long time without receiving a response. I agreed to meet. Rob and I talked about what he should take out of his request and decided he should remove personal information that was likely exempt from disclosure under the act. He decided that he could reframe the wording of his request after having discussed with staff how the institution held records and the names of the records that contained the information he was seeking. The result of our meeting was that he was able to get the answers he sought within a reasonable time frame. I later learned that my agreement to meet with a reporter was an oddity in the world of FOI and journalism. But it is such an obvious way to deal with the “us against them” mentality that can plague and delay the FOI process, which only results in a further impediment to the public’s right to know.

Managing Denials There are times when requests are denied. When this is the case, we the public, and in particular the media, must be prepared to hold elected officials to account for denying access to information. But more than three decades after FOI legislation was enacted, we have not moved forward and access to information is often denied. Sometimes it is denied because improperly funded FOI offices simply cannot manage the request. This underfunding is the responsibility of the government. But what has become alarmingly more frequent are denials made through outright political interference. A recent example was the fight between a daily newspaper and the former Toronto mayor’s office over how long FOI requests for his itinerary schedules had been taking. The mayor’s office said it couldn’t meet a thirty-day deadline, but the privacy commissioner’s office did not accept this. One FOI request was for calendar pages up until 31 October 2011. The reply from the mayor’s office outlined the delay and offered a one-sentence explanation: “The reason for the time extension is that a more extensive search is required along with time needed to process the records, and meeting the time limit would unreasonably interfere with the operations of the institution.” The mayor’s office cited privacy issues, but the assistant privacy commissioner called that

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“inconceivable”: “It seems highly unusual that the mayor would only have one professional engagement a day and that there’s not a record some place within the city that reflects what his daily activities are,” he said, adding that every meeting or event Mr Ford attended in a mayoral capacity should be subject to disclosure.7 The political and the administrative will need to change. The public’s right to know will be fully exercised only when there is an understanding of both the intent of FOI legislation at both the political and administrative levels and the strength of leadership to give the FOI professionals the ability to work free from interference. Instances of this awareness and commitment at the political and administrative level have been few and far between. It’s not all bad news, though. I have worked at institutions where the mayor and city manager or deputy minister believed in openness and the letter and spirit of FOI legislation. This happened at the City of Toronto in 2005 under the leadership of former mayor David Miller. Where there is a political will towards greater transparency, access to information can and does work. If we want the information that is ours by right, we must be prepared to insist on receiving it promptly and efficiently through news stories, academic conferences, and the ballot box. Currently, records relating to a councillor’s constituency records are not subject to the MFIPPA rules regarding the custody or control of the municipality. In IPC Order MO-2750 (Vaughan) 2012, the municipality received a request for invoices and copies of all furniture purchases of a councillor. Originally, the city withheld portions of the responsive records citing sections 10 (third-party information), 11 (economic interests), and 14(1) (personal privacy), and based on the municipal policy that it was the responsibility of the member of council to retain only supporting documentation. While the IPC decision found the 407 toll invoices were not in the custody of the city, it did find that they were in the control of the city, using the two-part National Defence test (i.e., whether the record relates to a departmental matter, and whether the institution could reasonably be expected to obtain a copy of the record in question upon request).8 In the IPC decision, the adjudicator stated that “the City is a public institution and publicly funded. Accordingly, it has a duty to account for the expenditure of public funds.” There has been an increasing trend in public requests for access to councillors’ records. While constituency records remain the private information of an elected official, seeking records that hold public officials accountable for the decisions they

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make and the funds they spend is not a private matter to be cloaked in the guise of “personal information.” Ultimately, the strength of our right to information depends on the strength of our will to demand it. Delays and denials impede the public’s right to access to information. Knowledge is the key. NOTES 1 See chapter 10 of this volume. 2 Ann Cavoukian, Electronic Records and Document Management Systems: A New Tool for Enhancing the Public’s Right to Access Government-Held Information? (Toronto: Office of the Information and Privacy Commissioner of Ontario, 2003), http://www.ipc.on.ca/images/resources/up-erdms_e. pdf. 3 Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Chapter M. 56. 4 Ann Cavoukian, Report into Contentious Issue Management in the Ministry of Finance (Toronto: Office of the Information and Privacy Commissioner of Ontario, 27 May 2011), http://www.ipc.on.ca/images/Findings/rptcontentious%20issues%20mgmt.pdf. 5 Cavoukian, Electronic Records. 6 Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403. 7 Patrick White, “Privacy Watchdog Queries Ford’s Penchant for Secrecy,” Globe and Mail, last updated 6 September 2012, http://www.theglobeandmail.com/news/toronto/ privacy-watchdog-queries-fords-penchant-for-secrecy/article4180540/. 8 Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306.

12  U  nfettered Social Media versus Government Censorship: Mona Eltahawy’s Twitter Escape as a Test Case for Press Freedom g av i n a d a m s o n

On 23 November 2011, Mona Eltahawy, an Egyptian-born American freelance columnist, sent this message to her followers via Twitter (@ monaeltahawy): “Beaten arrested in interior ministry.”1 It had been eight months since Hosni Mubarak had been ousted as the president of Egypt. The new government was unstable, and Eltahawy was in her birth country, not for the first time, reporting on conflict between protesters and security forces for the Supreme Council of the Armed Forces.2 The message Eltahawy sent moments after her arrest set in motion a wave of international support for her via Twitter. She was freed within twenty-four hours. This incident represented the literal use of the medium as a tool to exercise press freedom and was heralded as a coming-of-age event for Twitter as a journalism medium.3 The platform, and others like it, has famously been associated with the organization of social protests against autocratic and democratic governments globally. The immediacy of the platform and its ability to allow its users to broadcast messages freely across the globe – with at least the possibility for viral amplification – are promising. In some countries, where there are favourable legal and cultural circumstances, that ideal is possible. Still, many authoritarian and autocratic regimes will not allow social media platforms to operate in their countries freely, and even governments in Western democracies have shown a casual commitment to keeping the medium unfettered at critical moments. Complicating matters deeply is the apparent reality that technology is indifferent toward freedom; what makes it work conceptually for press freedom can work in reverse. The World Wide Web, social media’s underlying distribution mechanism, can spin state-produced

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disinformation efficiently. The cogs and wheels underlying it offer media surveillance and censorship (indeed, much of it is express-built for those purposes) on a platter to any states wanting to use it as a radio dish. Moreover, that same enabling hardware and software tends to be owned by for-profit ventures whose owners are obliged to cede to state requests to supply personal information about users or impede the flow of information in tacit exchange for the right to do business in that marketplace. In the year of the thirtieth anniversary of the Charter of Rights and Freedoms, social media have entered the conversation about press freedom as it is defined in the Charter. Greater press freedom, it can be argued, moves in lockstep with technological advances that entail wider distribution for the media. The Charter itself anticipates new technologies in s. 2(b), stating that citizens have the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Mona Eltahawy’s case, although international in its origins, offers a moment to consider the pressures modern media, government, and lawmakers apply on the Charter. Twitter as a Tool for Press Freedom Today, journalists writing for all major news organizations, including the CBC, the BBC, the New York Times, the Daily Yomuiri, the Times of India, and USA Today, use Twitter accounts. They have established, and continue to tinker with, newsroom policies that govern how reporters use the platform. In Canada, the possibility that reporters may be able to use the platform in courtrooms is a positive development, discussed more fully in Daniel Henry’s chapter “Free Expression at Thirty: The Search for Respect.”4 The broader public also uses the medium to connect with traditional news media. Describing the ubiquity of the combined ears and eyes of its users, Alfred Hermida describes Twitter and other similar microblogging platforms as “ambient journalism” with a “collective intelligence.”5 A 2012 report estimated that more than 500 million accounts were registered globally and about 2 per cent of them, or about 10 million, were in Canada.6 The platform’s presence and user numbers in countries that historically have ranked very low on the press freedom rankings are a promising development for the use of Twitter as a means to exercise press freedom.7 Another consideration for press freedom in any state is accessibility to the technology that allows for transmission.

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In this respect, Twitter’s user demographics, as something of a proxy for greater accessibility, is worth noting. The media platform’s usage appears to be reflective of US demographics when compared to broader Internet usage. By 2013, it was reported that Twitter’s users are more likely to be female, almost twice as likely to be African American, and about a third as likely to be Hispanic as regular Internet users.8 It is worth considering whether social media have made an impact on government policy. In 2000, Piers Robinson, a political science researcher and author, argued that the US government’s policy on international affairs may be affected by media coverage, particularly in instances where the government does not already have a stated policy and media sentiment is clearly one-sided. Furthermore, broadcast journalism can act as an accelerant for political decisions when content is produced and distributed quickly.9 Eltahawy’s story is a compelling illustration of both Twitter’s status as a press freedom tool and its limitations. Arguably, Eltahawy’s single message from the platform was the first step towards her release. Zeynep Tufecki, a sociologist friend of Eltahawy’s, noticed Eltahawy’s hastily written tweet, “Beaten arrested in interior ministry,” in her Twitter stream and the fact that the account had fallen silent afterwards.10 Tufecki, along with Andy Carvin, a journalist at National Public Radio with close to 100,000 Twitter followers, decided to create the “#freemona” hashtag for the message. Within hours, the term was trending worldwide on Twitter. About twelve hours after her arrest, Eltahawy tweeted, “I AM FREE.”11 To have even tried to accomplish what she did before the era of social media, Tufecki says, she would have had to own a “broadcast station or two.”12 Twitter in this light could be described as a lightweight hyper-accelerant. Press freedom is an extension of free speech in that it widens individual freedomof-speech rights for distribution to a broader audience. Traditionally, there is a distinction between a lonely complaint on a scrap of paper and mass distribution. In the realm of social media, there is sometimes no distinction between the two concepts at all. Part of what makes the Eltahawy story enticing from a press freedom perspective is that her tweet in a foreign country drew international attention. Despite the impression that the incident made on her, Tufecki admits in her blog that we cannot know exactly how Twitter influenced Eltahawy’s release. Eltahawy’s nationality and the legal jurisdiction of her Twitter account are critical to the way events unfurled. In her discussion about the incident on her blog, Tufecki wrote that scholar and

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Internet sceptic Evgeny Morozov argued that Twitter was incidental and that Eltahawy’s release was ultimately due to the efforts of the US government, which will always aid citizens jailed abroad.13 However, if Eltahawy had been an Egyptian dissident, intervention by US foreign affairs would have been unlikely and, at best, muted. One might question what, if anything, an Egyptian-led international Twitter campaign for a local dissident would have accomplished. Of course, it’s impossible to know, but Ekaterina Balabanova tested a similar question in pre-Twitter Bulgaria, which ranks among the lowest in Europe in Reporters Without Borders’ annual survey of the independence of news media.14 In contrast to Robinson, her analysis of the country’s media coverage of the Kosovo conflict shows no evidence of the media’s effect on state policymaking. “It could be the case that the assumptions on the basis of which the policy–media interaction model is built are not necessarily equally valid for Eastern Europe,” she writes.15 Her research considers the quality and quantity of the reporting, the power of the media, and their ability to provide dissenting voices to affect government policy. The study articulates that the assumptions we make about the way in which traditional media operate within the free market state cannot be transposed elsewhere. The same can be said for social media. In his article “Googling Freedom,” Anupam Chander catalogues the extent to which states like China, Cuba, and Iran recalibrate social media to suit their own laws and customs.16 Most famously, China blocked Facebook completely and with finality after unrest in the province of Xinjiang. As much as it is an indictment against those regimes, Chander’s argument is an appeal to corporations globally to take greater responsibility for freedom of expression in the countries in which they do business. Since Chander’s paper was published, Twitter announced it would abide by local media laws in all of the countries in which it has offices, allowing governments to censor home-country accounts.17 Similarly, the hardware companies that facilitate social media distribution (via the mobile versions of their applications) have capitulated to state requests when important markets are at stake. As reported by the Wall Street Journal, Canadian-owned Research In Motion Inc. (now BlackBerry Inc.) agreed to give the Indian government access to messenger service surveillance, a deal BlackBerry also struck with other countries in the Middle East and Asia.18 It is not surprising that it’s not the goal of business interests to advance free speech, or that authoritarian regimes generally eschew

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freedom of expression. Moreover, it is not known how governments in putatively open democracies will handle social media in tough circumstances. The trend among democratic states is to strongly support open Internet policies globally – except when it makes them nervous. In 2012, then secretary of state Hillary Clinton, in remarks about Internet freedom, stated emphatically that the Internet should remain fetterless, especially in times of dissent: “Open debate about real issues presents governments with opportunities and ideas for reform, if they’re willing to accept them. And those reforms, in turn, can help reinforce economic and political stability.”19 Yet in 2011, Egyptian leader Mohamed Morsi found an ally in US President Barack Obama at the United Nations when he argued that YouTube should remove the infamous “Innocence of Muslims” video that sparked protests in his country.20 Morsi argued that the video should be removed on religious grounds, and while Obama rejected that justification, the US president later invoked “the heckler’s veto” at the UN, “urging for the film’s removal because of its potential to invoke riots,” according to journalist Jeffrey Rosen in the New Republic.21 Similarly, British Prime Minister David Cameron suggested a clampdown on various platforms during the “BlackBerry riots” that arose in August 2011 after London police shot and killed a resident in a northern borough of the city.22 Various media reports said that government officials and representatives of Facebook, Twitter, and BlackBerry Messenger held meetings to establish guidelines for regulation of social media and general Internet communication to avoid use of networks by riot “flash mobs” or to counter online social-influence mechanisms.23 A study of state intervention surprisingly concludes that democratic governments are every bit as likely to infringe on social media distribution as autocratic or authoritarian states.24 The paper’s methodology includes a cataloguing of incidents by governments that have imposed surveillance or Internet-dampening technologies for various reasons, including child pornography or suspicion of civil disobedience. The study ranks countries on a scale of “democratic” to “authoritarian” based on various public press freedom scales. Archie Dick, Lilian Oyieke, and Theo Bothma suggest one conclusion: “Tougher legislation, calls from across the party political spectrum to curb or shut down the social media, and the rise in number of actual censorship actions such as banning, blocking, filtering, blacklisting, and cyber-attacks in the democracies of Australia, the UK, the USA, Chile, South Africa, and Finland show more similarities than differences from authoritarian regimes.”25

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Dataveillance The technology that enables social media makes both expression and surveillance easier.26 Citizens in a free state can send messages far and wide and make use of predictive technology about where they want to go or what they might want to buy; yet this same digital information may also be used for investigation and surveillance. Yohko Orito describes “dataveillance” as the system of oversight for policing that makes use of the data that individuals knowingly make available and visible through using digital applications every day.27 Sometimes the policing is only a matter of searching social media platforms for information. For example, in 2011, the rioting in Vancouver that broke out after the city’s hockey team lost in the Stanley Cup finals left a digital database on Facebook by which police were able to charge vandals.28 As post-9/11 policing aims to pre-empt criminal acts (instead of investigating them after the fact), the digital data trail left by citizens interacting with each other are critical to crime prevention. Data like GPS signals are tracked, sometimes in real time, to detect threatening activity by feeding it into predictive software programs that can trigger investigations.29 As reported by the Guardian, the reach of the National Security Agency and various programs that allow the US federal government to monitor all citizens’ digital lives with the use of a massive data-monitoring program implicated most major telecommunications companies in the US.30 At issue is not whether the companies have allowed government access to user data, but by what legal means, how often, and what volume of data is readily available. Doubt has not been cast on the capacity of the technology to perform these tasks, nor on its wide deployment. Several studies note that a precondition for surveillance is the enactment of new laws and policies making it easy to track individuals with available technology.31 Following this logic, the right to unfettered electronic distribution of news has arguably been under legislative pressure since May 2010 in Canada. Since then, the federal government has tabled Bill C-29 and B-12, the same bills under different parliaments, plus Bill C-30 and most recently Bill C-13. Bill C-30 would have required, in the government’s own words, “the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capabilities within their systems” for capturing customer data.32 The government permanently shelved Bill C-30, which was sponsored by Vic Toews, then minister

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of public safety.33 Bill C-12 saw only a first reading. It described alteration of the Personal Information Protection and Electronic Documents Act to allow for the collection of personal information for any “lawful authority,” with collection “not limited to a subpoena or warrant from a court or to rules of court related to the production of records.”34 The bill would have changed two elements in the government’s security efforts. First, it would have extended the clear need for surveillance beyond national security issues and it would have extended the activity to “police service,” while leaving the means of executing it in the vague term “lawful authority.”35 In any event, Arthur Cockfield argues that the Personal Information Protection and Electronic Documents Act was already “toothless” to prevent the sharing of information between policing authorities where matters of security are involved.36 Finally, Bill C-13 reached royal assent on 9 December 2014.37 The bill, as described by legal and information technology academics in the Toronto Star, creates new warrants for law enforcement for investigations on standards of suspicion that “fall below the usual requirements for a search warrant: reasonable grounds to believe that an offence has been committed and that the search will produce evidence of it.” The writers raise concern that the technology that makes the modern investigations possible, called “deep packet inspection” (DPI), is “potentially invasive.”38 Civil libertarians have complained about DPI for some time. The technology, deployed by Bell Canada, is the subject of privacy concerns outlined in an article by Ralf Bendrath and Milton Mueller.39 The authors describe how DPI dismantles the “end-to-end” non-interventionist delivery system that defined the Internet up until now. What replaces it, in their analogy, is a postal service that can open up all packages, read them, check them against databases, alert police authorities, destroy prohibited content, and also slow down packages from market competitors. They classify six categories of DPI applications once the technology is in place: network security, bandwidth management, governmental surveillance, content regulation, copyright enforcement, and ad injection.40 The Canadian Internet Policy and Public Interest Clinic also filed a complaint to the country’s privacy commissioner regarding the use of DPI. The organization was concerned about the breadth of the technology, arguing that it allowed for tracking of “browsing habits, media streaming consumption, (and) email communications” and that the capability “raises privacy concerns an order of magnitude greater than before.”41 The Office of the Privacy Commissioner of Canada

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agreed that the technology could be used in the ways described, but concluded that it was satisfied Bell was using DPI for the sole business purpose of monitoring and limiting bandwidth usage and that it was incumbent upon the company to disclose to customers the technology’s usage for any purposes.42 Conclusion This chapter has aimed to analyse the potential for Twitter and other social media to advance the cause of press freedom. The analysis shows that information can spread via Twitter quickly and widely with little or no aid from traditional media. On the other hand, those messages and their effect on the state are limited in the same way that traditional media are: by the laws and media culture in the country where the user lives. Twitter is subject to surveillance and censorship in some authoritarian states and completely banned in others. Businesses such as Facebook and Twitter that own the social media technology regularly cooperate with censoring authorities in some of the countries in which they operate. The analysis shows that democratic countries and their leaders that have been tested by social media have shown no commitment to maintain the platforms at critical times during civil unrest. Meanwhile, the technology that enables these platforms is indifferent toward freedom of expression; they can be, and easily are, used for surveillance. Post-9/11 approaches to security and policing in democracies, including Canada, make use of digital technology, including social media, to the extent that the information is publicly available. Many governments, including Canada, have either put into place laws or have tabled legislation that enables police access to more of the digital information that citizens generate every day with their telecommunications activity. NOTES 1 Mona Elthahway, Twitter post, 23 November 2011, https://twitter.com/ monaeltahawy/status/139519769010380800. 2 Peter Beaumont and Bel Trew, “Journalist Mona Eltahawy Tells of Sex Assault in Cairo Ministry,” Guardian, 24 November 2011, http://www.guardian.co.uk/world/2011/nov/24/ journalist-mona-eltahawy-sex-assault-cairo.

Mona Eltahawy’s Twitter as a Test Case for Press Freedom  183 3 Mathew Ingram, “How Twitter Helped Rescue Mona El Tahawy,” GigaOM, 28 November 2011, http://gigaom.com/2011/11/28/ how-twitter-helped-rescue-mona-el-tahawy/. 4 See chapter 6 in this volume. 5 Alfred Hermida, “Tweets and Truth: Journalism as a Discipline of Collaborative Verification,” Journalism Practice 6, nos. 5–6 (2012): 659–68. 6 Knowlton Thomas, “Twitter Passes 500 Million Users, Study Reveals; Canada Accounts for 2% of All Users,” blog, Techvibes, 30 July 2012, http:// www.techvibes.com/blog/twitter-passes-500-million-users-study-revealscanada-accounts-for-2-of-all-users-2012-07-30 (no longer posted). 7 “Press Freedom Index 2011/2012,” Reporters Without Borders: For Freedom of Information, 15 June 2013, http://en.rsf.org/press-freedomindex-2011-2012,1043.html (no longer posted). 8 “Rankings,” Quantcast, February 2013, https://www.quantcast.com/ twitter.com?country=US (no longer posted). 9 Piers Robinson, “The Policy-Media Interaction Model: Measuring Media Power during Humanitarian Crisis,” Journal of Peace Research 37, no. 5 (2000): 613–33. 10 Zeynep Tufekci, “The #freemona Perfect Storm: Dissent and the Networked Public Sphere,” Technosociology: Our Tools, Ourselves, 25 November 2011, http://technosociology.org/?p=566. 11 Mona Eltahawy, Twitter post, 24 November 2011, https://twitter.com/ monaeltahawy/status/139651065837662208. 12 Tufekci, “The #freemona Perfect Storm.” 13 Ibid. 14 Ekaterina Balabanova, “‘The CNN Effect’ in Eastern Europe – Does It Exist? The Representation of the Kosovo Conflict in the Bulgarian Print Media,” Perspectives on European Politics and Society 5, no. 2 (2004): 273–304. 15 Ibid. 16 Anupam Chander, “Googling Freedom,” California Law Review 99, no. 1 (2011): 1–45. 17 Associated Press, “Twitter’s Censorship Plan Rouses Global Furor,” CBS News, 27 January 2012, http://www.cbsnews.com/8301-205_162-57367843/ twitters-censorship-plan-rouses-global-furor/. 18 Amol Sharma, “RIM Facility Helps India in Surveillance Efforts,” Wall Street Journal, 28 October 2011, http://www.wsj.com/articles/SB100014240 52970204505304577001592335138870. 19 Hillary Rodham Clinton, “Internet Freedom and Human Rights,” Issues in Science and Technology 28, no. 3 (2012): 45.

184  Gavin Adamson 20 Jeffrey Rosen, “The Delete Squad: Google, Twitter, Facebook and the New Global Battle over the Future of Free Speech,” New Republic, 29 April 2013, http://www.newrepublic.com/article/113045/ free-speech-internet-silicon-valley-making-rules#. 21 Ibid. 22 Josh Halliday and Juliette Garside, “Rioting Leads to Cameron Call for Social Media Clampdown,” Guardian, 11 August 2011, http://www. guardian.co.uk/uk/2011/aug/11/cameron-call-social-media-clampdown. 23 Antonio A. Casilli and Paola Tubaro, “Social Media Censorship in Times of Political Unrest –A Social Simulation Experiment with the UK Riots,” Bulletin of Sociological Methodology/Bulletin de Méthodologie Sociologique 115, no. 1 (2012): 5–20. 24 Archie L. Dick, Lilian I. Oyieke, and Theo J.D. Bothma, “Are Established Democracies Less Vulnerable to Internet Censorship than Authoritarian Regimes? The Social Media Test,” International Federation of Library Associat­ ions and Institutions, 5 October 2012, http://www.ifla.org/files/assets/ faife/publications/spotlights/2%20FAIFE_Dick_Oyieke_Bothma.pdf. 25 Ibid. 26 Evgeny Morozov, “Whither Internet Control?” Journal of Democracy 22, no. 2 (2011): 62–74. 27 Yohko Orito, “The Counter-Control Revolution: ‘Silent Control’ of Individuals through Dataveillance Systems,” Journal of Information, Communication and Ethics in Society 9, no. 1 (2011): 5–19. 28 Daniel Trottier, “Policing Social Media,” Canadian Review of Sociology/Revue Canadienne de Sociologie 49, no. 4 (2012): 411–25. 29 Arthur Cockfield, “Surveillance as Law,” Griffith Law Review 20, no. 4 (2011): 795–816. 30 Glenn Greenwald and Ewen MacAskill, “NSA Prism Program Taps in to User Data of Apple, Google and Others,” Guardian, 7 June 2013, http:// www.guardian.co.uk/world/2013/jun/06/us-tech-giants-nsa-data. 31 Cockfield, “Surveillance as Law.” 32 John Ibbitson, “Harper Government Kills Controversial Internet Surveillance Bill,” Globe and Mail, 12 February 2013, http://www.theglobeandmail.com/news/politics/harpergovernment-kills-controversial-internet-surveillance-bill/ article8456096/. 33 Postmedia News, “Online Surveillance Bill ‘Will Put an Electronic Prisoner’s Bracelet on Every Canadian,’” National Post, 14 February 2012, http://news.nationalpost.com/news/canada/online-surveillancebill-will-put-electronic-prisoners-bracelet-on-every-canadian; Bill C-30, An Act to Enact the Investigating and Preventing Criminal Electronic

Mona Eltahawy’s Twitter as a Test Case for Press Freedom  185 Communications Act and to Amend the Criminal Code and Other Acts, 1st sess., 41st Parliament, Canada, 2012, http://s3.documentcloud.org/ documents/292611/bill-c-30.pdf. 34 Bill C-12, An Act to Amend the Personal Information Protection and Electronic Documents Act, 1st sess., 41st Parliament, Canada, 2011, http:// www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode= 1&DocId=5144601&File=24#1; Christian Paradis, “Bill C-12: Safeguarding Canadians’ Personal Information Act,” Party for Accountability, Competency and Transparency, 20 June 2012, https://www.onlineparty.ca/issue. php?ISSUEID=619 (site discontinued). 35 Library of Parliament, “Legislative Summary of Bill C-12: An Act to Amend the Personal Information Protection and Electronic Documents Act,” Parliament of Canada, 19 October 2011, http://www.parl.gc.ca/ About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c12&Parl=41& Ses=1. 36 Cockfield, “Surveillance as Law.” 37 Bill C-13, An Act to Amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, 2nd sess., 41st Parliament, Canada, 2013, http://www.parl.gc.ca/ LEGISINFO/BillDetails.aspx?Language=E&Mode=1&billId=6301394. 38 Lisa M. Austin, Hamish Stewart, and Andrew Clement, “Bill C-13 Has Little to Do with Cyberbullying,” Toronto Star, 22 November 2014, http:// www.thestar.com/opinion/commentary/2014/11/22/bill_c13_has_little_ to_do_with_cyberbullying.html. 39 Ralf Bendrath and Milton Mueller, “The End of the Net As We Know It? Deep Packet Inspection and Internet Governance,” New Media and Society 13, no. 7 (2010): 1142–60. 40 Ibid. 41 Philippa Lawson, “Re: Request for an Investigation and Development of Guidelines Re: ISP Use of Deep Packet Inspection Technology for Behavioural Targeted Marketing Purposes,” 25 July 2008, The SamuelsonGlushko Canadian Internet Policy and Public Interest Clinic, https://cippic.ca/ sites/default/files/CIPPIC_RequestforIndGuidelines-DPI-BehTarg_ 25July08.pdf. 42 Findings under the Personal Information Protection and Electronic Documents Act (PIPEDA) Case Summary #2009-10 – Report of Findings: Assistant Commissioner Recommends Bell Canada Inform Customers about Deep Packet Inspection (report from the Office of the Privacy Commissioner of Canada, 3 September 2009), https://www.priv.gc.ca/en/opc-actions-anddecisions/investigations/investigations-into-businesses/2009/2009_010_ rep_0813/.

13  M  edia Whining or Democratic Crisis? How Institutional Secrecy Is Contextualized in National Newspapers bruce gillespie

In October 2007, Toronto Star reporter Tonda MacCharles revealed in a front-page story that Stephen Harper’s Conservative government had secret plans to build a $2-million government-controlled media briefing centre.1 According to documents from the Privy Council Office and the Prime Minister’s Office (PMO) that MacCharles obtained through the Access to Information Act,2 the plan, known as the Shoe Store Project, called for a venue to be built in the Sparks Street pedestrian mall that would include a stage, seating for as many as eighty reporters, electronic audio feeds, soundboards, and space for translation services.3 Effectively, this new media centre would replace the National Press Theatre, which, MacCharles noted, had been “used by prime ministers and cabinet ministers since Lester B. Pearson opened it in 1965, [and] is a venue with simultaneous translation where on-the-record news conferences are moderated by press gallery executive members – not Harper’s political staff.”4 This revelation came less than two years into Harper’s first term as prime minister, after he had already dramatically reduced reporters’ traditional access to himself and to cabinet ministers and diplomats. He even tried to bar reporters from covering the repatriation ceremonies of soldiers killed in Afghanistan. As such, news that Harper was planning to open his own press gallery was of great concern to members of the media. “It is fascinating, if not chilling to see his shrewd acts unfold,” wrote the Globe and Mail’s Lawrence Martin of the prime minister’s freezing out of reporters.5 “There are many who think his strategy, a sort of reverse glasnost, is succeeding. There are others who think that building his version of the Kremlin in Ottawa is not what the people had [in] mind.”6 But for all of the media’s concerns, readers and the

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public-at-large seemed not to care. Apart from a brief surge of letters to the editor after the government’s attempt to keep reporters from covering repatriation ceremonies, the response from the public to this affront to press access was an echoing silence. Journalists regarded Harper’s carefully managed strategy of institutional secrecy as an affront to democracy, the values of which they are primed to defend, and as unnecessarily complicating their jobs. The Harper government’s efforts to avoid or circumvent journalists twice earned it the Canadian Association of Journalists’ Code of Silence Award, “recognizing Canada’s most secretive government or publicly funded agency,” first in 2009, and again in 2012.7 Both are issues of genuine concern, but as Toronto Star reporter Susan Delacourt has noted, “there has been a tendency to view stories and anecdotes about Harper’s secret capital as mere media ‘whining.’”8 If that is the case, we must ask why the public sees this issue of the restriction of journalistic access to public institutions and figures as nothing more than a workaday nuisance for reporters and what may be keeping it from becoming an issue of wider public concern. Readers are the ultimate stakeholders in this issue. Journalists do their work on behalf of readers – who are citizens, first and foremost. The democratic freedoms accorded to journalists under s. 2(b) of the Canadian Charter of Rights and Freedoms can be seen as an extension of the freedoms accorded to all citizens. If readers fail to appreciate or understand the importance of the democratic freedoms accorded to journalists, then those rights are rendered impotent. For example, this collection contains several cautionary tales about public indifference to the lack of access to government information (Suzanne Craig, “Municipal Access to Information, Delays, and Denials: An Insider’s View”)9 or inadequate transparency in court proceedings (Daniel Henry, “Free Expression at Thirty: The Search for Respect”),10 leading to the diminishment of fundamental democratic rights. This chapter is an analysis of how reporters with the Globe and Mail and the Toronto Star wrote about the Harper government’s actions and attitude toward journalists. In particular, I argue that journalists frame these issues in a way that ends up alienating readers instead of engendering their support for the key democratic role that journalists play. Drawing on an analysis of articles published during a five-year period, I suggest that reporters often framed their articles in an us-versusthem manner that personalized the issue and pitted journalists against the Harper government without clearly articulating why the public

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should be concerned about the federal government’s lack of openness and transparency. Finally, I propose that journalists may be able to reengage their audiences in this important issue by contextualizing these issues more clearly within the larger framework of journalism’s relationship to democracy. Methodology First, a few words about the methodology I have utilized. I analysed articles from Canada’s two largest and most influential daily newspapers, the Globe and Mail and the Toronto Star, between 1 January 2006, the year in which Harper first became prime minister, and 31 December 2011, by which point Harper had earned his first majority government. LexisNexis (a legal database featuring news articles) was used to retrieve all articles that contained the terms “Harper” and “media” and “privacy,” as well as any of the following: “privacy,” “secre*” or “transparen*” (the asterisks are used for “wild card” searches, so that any articles containing words with these roots, such as “secret” or “secrecy” or “transparent” or “transparency,” would be identified). The initial search produced 251 articles in the Globe and 229 articles in the Star. Both sets of articles were then analysed manually to remove duplicates, and winnowed to include only articles that directly addressed Harper’s attitudes towards press freedom and journalists. Additionally, articles that did not include commentary about Harper and press freedom in the reporter’s own words (e.g., articles that only quoted other sources about the prime minister’s relationship with the press) were excluded, resulting in 55 articles from the Globe and 65 articles from the Star, for a total of 120 articles. The types of articles included news stories written by staff, wire service, and freelance reporters, as well as editorials, letters from the editor, columns, and op-ed pieces; letters to the editor were subsequently excluded. Discourse Analysis In terms of theoretical context, this project relied upon two types of content analysis: discourse analysis and frame analysis. Discourse analysis involves looking past the surface meanings of texts to discern deeper meaning. For the purposes of this study, I employed the principles of critical discourse analysis (CDA). The basic principle of any discourse analysis is to examine a text’s words, phrases, and structure

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for emerging themes. CDA differs from other forms of discourse analysis in that it is firmly grounded in the examination of power. This method looks at “discursive structures, but also [shows] how discourse is shaped by relations of power and ideologies, and the constructive effects discourse has upon social identities, social relations, and systems of knowledge and belief, neither of which is normally apparent to discourse participants.”11 Such a methodology was well suited for this study because it situated the work that journalists do within a larger social and political context and highlighted the power that journalists had in helping to shape how issues become conceptualized in the media and by the public. Frame Analysis As discourse analysis examines the small-scale elements of a text, frame analysis examines the large-scale elements. The concept of frames was first introduced by Erving Goffman12 and later elaborated upon by Todd Gitlin.13 As Gitlin explains: “Frames are principles of selection, emphasis, and presentation composed of little tacit theories about what exists, what happens, and what matters … Media frames are persistent patterns of cognition, interpretation, and presentation, of selection, emphasis, and exclusion, by which symbol-handlers routinely organize discourse, whether verbal or visual.”14 In other words, media frames are the intellectual, ideological, and philosophical underpinnings of a story. Although the metaphor of a picture frame is often used to explain this concept, it is not entirely apt. A media frame is more than a wooden frame that houses a painting – it also includes the underpainting that informs the work in a subtler way that is only apparent upon closer inspection. In analysing media frames, one examines not only what is on the page in terms of content and style but also what is left out, with an eye towards identifying some of the unspoken assumptions and motives that inform the writing. Results In terms of results, the discourse analysis revealed that journalists often used provocative, even inflammatory, language in their articles to characterize Harper as an arrogant, obsessive, paternalistic bully who sought to micro-manage and limit his government’s interactions with the press. Of the 120 articles analysed, 33 of them, or 28 per cent,

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included such characterizations. Of the 55 articles from the Globe, 15 of them, or 27 per cent, included such negative characterizations. Some of those instances were short, offhand descriptions of Harper, referring to him as a “control freak”15 and “he who must be obeyed.”16 Others were longer descriptions, such as found in these examples: If Big Daddy Harper is a control freak – and no one denies it, even if they won’t speak for attribution – he is a control freak on purpose, in order to come across as a firm and fatherly leader … Ministers who break these rules are spanked by Mr. Harper, hard – and in public.17 But Mr. Harper has never quite shaken his inner high-school nerd. He looked down on the popular crowd. He was three times smarter than them. Popularity was for superficial idiots. After that, he spent years on the sidelines, a deeply unpopular figure who was scorned and demonized by the fashionistas in mainstream Canada. And now he’s beat them. He’s the one on top now. But he can’t be magnanimous about it. He still thinks they’re idiots, and he lets it show.18 Since Mr. Harper wears his arrogance like neon on the Las Vegas strip, no one’s exactly been offering the guy solace.19 There are good reasons for an election this fall. Everybody’s patience has been tried long enough. But this week’s show of flim-flam20 should not be allowed to be the trigger. It was crybaby stuff. If the Harper boys don’t get their own way, they stamp their feet and start bawling at bad treatment from others and make big-time threats – forgetting all the while what they had put down in their own playbook.21

Of the 65 articles from the Star that were analysed, 18 of them, or 28 per cent, contained the same sort of negative characterizations of Harper and his actions and attitudes towards the press. Some were short, passing mentions, including descriptions of Harper as “the partisan bully who hits below the belt,”22 references to his “fatherknows-best discipline [that] was imposed on a fourth estate that Harper clearly considers childlike,”23 and his “obsessively controlling, fiercely combative inner circle.”24 One article described a training session for young Conservatives, at which Rosie DiManno had joked to her editor that getting arrested at the event might make for a better column. She was on the phone and was overheard by security guards

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or event organizers. She had already been told that “media scruffs are not welcome – will, in fact, be jack-booted from the premises … Within minutes, [my phone] conversation had been reported to Prime Minister Stephen Harper’s office and a PMO harridan was on the blower to the Star, alleging that I was trying to provoke an arrest, which would presumably make the Harpies look bad.”25 Others instances of negative characterizations included more involved descriptions, such as: Harper avoided meeting with [the ethics commissioner] during the notorious Grewal affair26 – insisting, incredibly, that he was unavailable at any time during a four-month period. What was he hiding? Where was his transparency? Leadership requires modeling one’s behaviour. He demonstrated contempt for Parliament’s officer and behaved like a miscreant … More humility and less sanctimony from this Prime Minister and all around are in order.27 But if Harper seeks the same sort of unquestioning obedience from the head of the military that he demands of cabinet ministers, civil servants and, increasingly, independent parliamentary officers, his search may prove tougher.28 The communications style of the Harper government that sees cabinet ministers muzzled, the Prime Minister remain aloof from the media during trips abroad and details about government initiatives hard to come by … That kind of zeal for message control is taking a political toll on the minority Conservatives.29 It has been a bad week for a government that prides itself on secrecy and communications control … the pressure cooker of Harper’s message control is starting to show signs of wear and leakage.30

Individually, it might be easy to dismiss one of these negative characterizations in a longer news article about the Harper government. But the fact that such depictions appeared in more than one-quarter of all articles about the prime minister’s attitudes toward press freedoms could certainly leave readers with the impression that reporters held a personal grudge against him. The tone of these descriptions was markedly childish (e.g., referring to his “spanking”31 of ministers who go offmessage, his tactics as “crybaby stuff,”32 and his staff as “harridans”33 and “Harpies,”34 as well as calling Harper himself a “nerd”35 and a

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“miscreant”36) and petty, with their focus on Harper as a controlling and arrogant figure. The tone was combative and derisive, characterizing the prime minister as a vengeful nerd, a sore loser, and a paternalistic overlord. This sort of critique is not unexpected in columns and op-ed pieces, but the volume of this kind of characterization in news articles does suggest either a bias or a personal grudge on the part of journalists, which may contribute to the impression among readers that reporters are simply “whining” about the prime minister’s actions and attitudes without any real merit other than the fact that his policies make their jobs more difficult. The frame analysis produced similar results. What stood out most was how few of the articles examined why Harper’s attitudes towards the press and his government’s overall lack of openness and transparency might have larger implications for democracy and freedom of the press. Without making this link, journalists’ concerns about how challenging it is to speak to Harper or someone in his government or to gain access to documents without having to file an access-to-information request come across as parochial and self-interested instead of as an important call to arms to protect citizens’ democratic interests. Of the 120 articles analysed, only five made a direct link between Harper’s institutional secrecy and the larger concerns of the public’s democratic right to information about and access to their elected representatives. The first was an editorial in the Star that outlined how often journalists had to file access-to-information requests to obtain government documents that used to be more readily available: Canadians have a right, enshrined in law, to information of this sort. That right is a cornerstone of our democracy. And officials have an obligation to release such data, rather than scramble to alert their political bosses to uncomfortable questions or attempt to do damage control … this isn’t a problem only for journalists whose job it is to shine a probing light in dark corners. Businesses have legitimate needs for government information. So do ordinary citizens. Interest groups. The list is endless … The public’s right to know must not be subverted by protective bureaucrats, politicians and spin doctors who would prefer controversial issues to remain out of sight. Canadians own the information government vaults contain. Openness must be the order of the day.37

The second article, also from the Star and which appeared without a byline, was also concerned with the government’s perceived lack of

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accountability and openness when dealing with the press and the public: “Canadians shouldn’t spend sleepless nights fretting about reporters climbing over obstacles to do their jobs. Despite the authoritarian whiff clinging to Conservative command-and-control tactics, it ultimately rests on the press and its corporate barons to defend democratic freedoms enshrined in the Constitution.”38 The other three articles that made a clear link between the democratic implications of Harper’s attitudes toward the press appeared in the Globe. The first was a letter from then editor-in-chief Edward Greenspon, who addressed the issue head on: Truth be known, having to write about ourselves makes us squirm. We recognize it never looks good, but we also believe that in cases like these our particular interests are fully aligned with the broader public interest. The powers of the press are, by and large, mere extensions of the power of individuals. Our most basic tool is the fundamental freedom of expression that belongs to everyone residing in democratic society … Like it or not, when you bar the press you bar the community.39

Another was a column by Mark Entwistle, former press secretary to former prime minister Brian Mulroney: The PM’s decision to effectively try to prevent national media access to him and his government feels ironic, given Canada’s long-standing belief in foreign and development policy that a free and active press is an essential building block of democracy and good governance. It is a right of a free people. This is what we preach around the world. After all, the Canadian International Development Agency and the Department of Foreign Affairs spend millions of taxpayer dollars each year supporting press freedom projects in Iraq and the Middle East, Afghanistan, Ukraine, South Asia, Nepal, Cambodia, Sri Lanka and elsewhere … An open and transparent government is what Mr. Harper campaigned on. Like it or not, the national media are one of the means of ensuring that transparency.40

The final piece was a news article by Gloria Galloway about a journalist’s identity being revealed to politicians in an access-to-information request, which quoted Ann Kothawala, president of the Canadian Newspaper Association: “the problem with such disclosures ‘is that these important stories that have to do with how our tax dollars are being spent, how government is managing resources, don’t end up

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getting out to the public because the full information doesn’t end up being disclosed because it is flagged as a request that is sensitive.’”41 Each of these articles clearly links Harper’s attitudes and actions toward the press to the larger issue of his attitudes towards reporters’ and citizens’ democratic rights and freedoms. The question that must be asked is: Why is this type of contextualization provided so seldom in news articles? In my opinion, journalists can and should do a better job of linking the work they do to Canadians’ basic democratic rights and freedoms in order to engage greater public support. Doing so on a more regular basis should not be seen as self-serving or a contravention of journalists’ objectivity. As Adam and Clark argue: “journalism springs from a fundamental democratic freedom. It is a democratic practice bound up with the continuous creation, renewal, and maintenance of democratic institutions, culture, and civil society … Put differently, journalism is not value-neutral or value-free. Conceived as artifice, journalism is value-laden. The values are those that promote the vitality of democratic life.”42 The rights and privileges afforded to journalists and protected by s. 2(b) of the Charter are derived from journalism’s function as a democratic tool, a key system of checks and balances through which citizens may keep abreast of the actions and attitudes of their elected representatives. By neglecting to provide this meaningful context in their articles, journalists were in effect working on Harper’s behalf to depoliticize the issue. Instead of calling out the government’s actions as antidemocratic, they passively accepted and perpetuated the government’s framing of the issue instead of identifying it as a legitimate issue of public concern. Conclusion Providing this larger context in articles need not be an onerous task. As with Galloway’s story in the Globe, the easiest way to do this would be to provide commentary in articles about a leader’s press freedom issues from journalism or media professors, industry leaders, or media lawyers, any of whom could provide a clear explanation of why the public should be concerned about the leader’s lack of openness and transparency with journalists. It need not be long; simply a paragraph or two near the end of the article. Similarly, editors and publishers should write regularly about this issue and provide an overview to readers about how this lack of openness not only makes their jobs

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unnecessarily difficult but interferes with the democratic responsibility they have to readers and citizens. It is also an issue that public editors and/or ombudsmen could write about. Providing this context and commentary on a regular basis would not compromise a newspaper’s or a journalist’s integrity; indeed, as Adam and Clark assert, the values of journalism are to protect and encourage democracy, a cornerstone of which is open communication with elected representatives.43 No one is better positioned to educate the public about these issues than journalists themselves. If they fail to do so, they risk perpetuating the government’s framing of the issue as one of self-interested, whining journalists and further eroding the trust that the public has in the press. NOTES 1 Tonda MacCharles, “PM Plans Own Media Centre,” Toronto Star, 15 October 2007, http://www.thestar.com/news/canada/2007/10/15/pm_ plans_own_media_centre.html. 2 Access to Information Act, R.S.C., 1985, c. A-1, http://laws-lois.justice. gc.ca/eng/acts/a-1/. 3 MacCharles, “PM Plans Own Media Centre.” 4 Ibid. 5 Lawrence Martin, “A Prime Minister at the Top of His Imperious Game,” Globe and Mail, 22 October 2007, http://www.theglobeandmail. com/opinion/a-prime-minister-at-the-top-of-his-imperious-game/ article1084932/. 6 Ibid. 7 Hugo Rodrigues, “Harper Government Wins Code of Silence Award, Again,” Canadian Association of Journalists, 28 April 2012, http://www.caj. ca/?p=2657. 8 Susan Delacourt, “The Big Stuff Gets Away from PM,” Toronto Star, 30 May 2008, http://www.thestar.com/news/canada/2008/05/30/ the_big_stuff_gets_away_from_pm.html. 9 See chapter 11 in this volume. 10 See chapter 6 in this volume. 11 Sara Mills, Discourse (New York: Routledge, Taylor and Frances Group, 1997), 133. 12 Erving Goffman, Frame Analysis: An Essay on the Organization of Experience (New York: Harper and Row, 1974).

196  Bruce Gillespie 13 Todd Gitlin, The Whole World Is Watching: Mass Media in the Making and Unmaking of the New Left (Berkeley: University of California Press, 1980). 14 Ibid., 6–7. 15 John Ibbitson, “Who Is Stephen Harper?” Globe and Mail, 14 January 2006, A1. 16 Bob Robertson, “He Who Must Be Obeyed,” Globe and Mail, 21 April 2006, A21. 17 Ian Brown, “In Harper’s Regime, Big Daddy Knows Best,” Globe and Mail, 13 May 2006, http://www.freedominion.ca/phpBB2/viewtopic. php?f=53&t=59730 9 (login required). 18 Margaret Wente, “The PM and the Media Throw a Hissy Fit,” Globe and Mail, 27 May 2006. 19 Lawrence Martin, “Odours from Out of the Blue Thwart Our PM,” Globe and Mail, 10 April 2008, http://www.theglobeandmail.com/news/ politics/odours-from-out-of-the-blue-thwart-our-pm/article719028/. 20 Here, Martin was referring to how Conservative Doug Finley had to be removed from a House of Commons ethics committee hearing after insisting that he would decide when he would testify, instead of doing so at the committee’s request. That same week, a number of Conservative members of Parliament refused even to appear to testify before the committee, despite summonses issued for them to do so. 21 Lawrence Martin, “Cry Us a River, Tories, but Who Wrote the Book on Chaos?” Globe and Mail, 16 August 2008, http://www.theglobeandmail.com/news/politics/ cry-us-a-river-tories-but-who-wrote-the-book-on-chaos/article715582/. 22 James Travers, “Guy Next Door One Day, Partisan Bully Another,” Toronto Star, 24 March 2007, http://www.thestar.com/opinion/ columnists/2007/03/24/guy_next_door_one_day_partisan_bully_ another.html. 23 James Travers, “Conservatives Know It’s True Because They Say So,” Toronto Star, 26 May 2007, http:// www.thestar.com/opinion/columnists/2007/05/26/ conservatives_know_its_true_because_they_say_so.html. 24 James Travers, “Voters See What Tories Are Up To,” Toronto Star, 22 April 2008, http://www.thestar.com/opinion/columnists/2008/04/22/ voters_see_what_tories_are_up_to.html. 25 Rosie DiManno, “Tory Training Camp: No Welcome Mat Here,” Toronto Star, 17 March 2007, http://www.thestar.com/opinion/ columnists/2007/03/17/tory_training_camp_no_welcome_mat_here. html.

How Institutional Secrecy Is Contextualized  197 26 The so-called Grewal affair refers to when former Conservative member of Parliament Gurmant Grewal released taped conversations with then Liberal health minister Ujjal Dosanjh and PMO chief of staff Tim Murphy in which he claimed that they offered to reward him and his wife, fellow member of Parliament Nina Grewal, if they crossed the floor to join the Liberals. Ethics commissioner Bernard Shapiro’s investigation into the matter cleared Dosanjh and Murphy but criticized all involved for appearing to put their own interests ahead of the public interest. Shapiro sparked controversy when he decided not to release the unflattering report until after the election. 27 Neil Wiseman, “Cleaning Up the House,” Toronto Star, 13 April 2006. 28 Allan Woods, “Gen. Rick Hillier Hard Act to Follow,” Toronto Star, 3 May 2008, http://www.thestar.com/news/canada/2008/05/03/gen_rick_ hillier_hard_act_to_follow.html. 29 Bruce Campion-Smith, “How Harper Controls the Spin,” Toronto Star, 26 May 2008, http://www.thestar.com/news/canada/2008/05/26/how_ harper_controls_the_spin.html. 30 Delacourt, “The Big Stuff Gets Away from PM.” 31 Brown, “In Harper’s Regime, Big Daddy Knows Best.” 32 Martin, “Cry Us a River, Tories, but Who Wrote the Book on Chaos?” 33 DiManno, “Tory Training Camp: No Welcome Mat Here.” 34 Ibid. 35 Wente, “The PM and the Media Throw a Hissy Fit.” 36 Wiseman, “Cleaning Up the House.” 37 “Let the Sun Shine In,” Toronto Star, 18 October 2006, A28. 38 Travers, “Conservatives Know It’s True Because They Say So.” 39 Edward Greenspon, “The First and Other Casualties,” Globe and Mail, 29 April 2006, A26. 40 Mark Entwistle, “Even Brian Mulroney Met the National Press,” Globe and Mail, 26 May 2006, A21. 41 Gloria Galloway, “Baird Receives Lesson in Privacy Law 101,” Globe and Mail, 22 September 2006, A10. 42 G. Stuart Adam and Roy Peter Clark, Journalism: The Democratic Craft (New York: Oxford University Press, 2006), xviii. 43 Ibid.

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PART FOUR

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Press Freedom and the Charter

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14  S  ection 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012 jamie cameron

The Early Charter Legacy The Charter’s thirtieth anniversary was a muted affair. Against the outline of its early landmarks, the Charter has now settled into the rhythm of Canadian life. The power to command, surprise, and shift the landscape may not have changed, but today the Charter is workmanlike, seeming to busy itself more at the margins than at the core of debate about rights. Anniversary years like 2012 pay homage to the erstwhile days of blockbuster decisions as reminders of the journey to this point and dramatic steps taken along the way. A consensus draws around vitalizing decisions that gave life to the rights of the accused, gender equality, gay rights, and the rights of Aboriginal peoples, among others. It is revealing that when the Charter’s finest moments are on parade, freedom of expression and the press is scarcely mentioned, much less heralded. Why these entitlements have not fired passions in the same way as others is thought-provoking, and forms the backdrop to this reflection on s. 2(b)’s journey from 1982 to 2012. Section 2(b) identifies freedom of expression, including freedom of the press and other media of communication, as fundamental freedoms guaranteed by the Charter. To protect freedom is to pose a test of courage – the courage of a democracy, its communities and individuals. Section 2(b) of the Charter calls for fear and prejudice to be set aside in the name of freedom for all ideas, no matter how fiercely or strenuously they should be opposed. Tolerance for the intolerable means that those who are disgruntled, objectionable, and mean-spirited will offend us, including, and especially, those who are vulnerable, sensitive, or fearful. Yet it is unavoidable that expressive freedom can only thrive when

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judgment of its exercise is suspended. Rather than condemn society to a fate of unrequited conflict and darkness, an open process of freedom is a mark of progress and a testament to democracy’s essential humility.1 Though the temptation to judge the message must be suspended, freedom is not absolute, and judgment is not suspended absolutely. The exercise of freedom can be judged and is subject to limits when it causes harm. In the case of expressive activity, the link to harm can be difficult to show because words and opinions are more likely to change attitudes and influence views than to prompt immediate or violent action. That is why it is no easy task to pinpoint the moment when expression crosses the line and is no longer free because it has become dangerous enough to prohibit. When controversial or unpopular expression was at stake under the Charter, the Supreme Court adopted a risk-averse approach and invariably chose limits on expression over freedom. The question that s. 2(b)’s early legacy raises is whether restrictions were upheld because harm was shown, or because expression like hate propaganda, obscenity and pornography, child pornography, tobacco advertising, defamation, and discriminatory messages offend mainstream sensibilities. This legacy leaves it unclear whether freedom of expression is stronger now than it was before the Charter. Meanwhile, the relative insignificance of freedom of the press in this period raises other concerns. It is puzzling that there have been only a few Supreme Court decisions on the press, and troubling that it remains uncertain whether freedom of the press is an independent entitlement, with distinctive content, or is subsumed in expressive freedom. This jurisprudence, which is modest by any standard, pivots on the Charter status of newsgathering. At key moments in s. 2(b)’s formative period, the Court not only refused to grant this core function constitutional status, but in doing so skirted s. 2(b) altogether. Engaging the guarantee is an obvious first step in granting the press protection under the Charter. If the Supreme Court’s early jurisprudence has not met expectations, still it should not be viewed as an unvarnished disappointment. There is a crowning achievement in the first thirty years of the Charter, and that is the open-justice principle. With little hesitation, the Supreme Court adopted a confident and vigilant approach to measures that excluded the press and public from judicial proceedings or imposed publication bans to prohibit reporters and others from disclosing information learned in such proceedings. The press played a leading role in developing this constitutional concept of transparency, which is distinctive because it blends s. 2(b)’s twin expression and press guarantees. The Charter jurisprudence on open justice stands apart but should not be

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thought of as singular; to the contrary, the Supreme Court’s approach to open justice offers a model for all of s. 2(b). The Charter’s thirtieth anniversary is a checkpoint – an opportunity to take stock of s. 2(b)’s journey to date. Though a broader reflection would examine the Supreme Court’s conception of fundamental freedoms – including freedom of religion, assembly, and association, as well as expression and the press – the focus here is on freedom of the press. A short introduction to expressive freedom in general under the Charter – in the section titled “Freedom of Expression: A See-Saw of Rights and Limits” – provides a preface to that discussion. In turning to the press in particular, the central concern that emerges is the Supreme Court’s avoidance of s. 2(b) and its reluctance to grant newsgathering activities status under the Charter, which is discussed in the section titled “The Press, Newsgathering, and the Charter.” Insisting that the press can be protected in other ways is unconvincing in the face of the Court’s unwillingness to engage the Charter’s explicit guarantee of a free press. At the same time and as noted, the open-justice principle – discussed in the section titled “Open Justice: A Section 2(b) Model” – muddles this narrative by providing a shining example of s. 2(b)’s promise. By demonstrating how the guarantee’s freedoms can be protected when expression and the press work in tandem, the open-justice jurisprudence to some extent offsets the newsgathering cases. Looking to the future, the Supreme Court should harmonize the disparate strands of the s. 2(b) jurisprudence and, in particular, should apply the open-justice methodology to questions of expressive and press freedom. As for the press, two obstacles stand in the way of robust protection for this freedom: one is theoretical and calls for a conception that explains the constitutional status of the press; the other is definitional and as such seeks an answer to the challenge of identifying who the press is at this moment in time. I address these obstacles in the concluding section, titled “The Press: In Its Own Right under the Charter.” Addressing these obstacles will not only enable but also require the Supreme Court to protect the press and its newsgathering activities under s. 2(b). If and when that happens, the status of the press under s. 2(b) should be much improved at the Charter’s next checkpoint. Freedom of Expression: A See-Saw of Rights and Limits Freedom of expression is the dominant force in the s. 2(b) jurisprudence, and interpreting that guarantee has been the Supreme Court’s primary concern since 1982. Meanwhile, it has not been well understood that

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freedom of the press is an independent guarantee, and perhaps for that reason, the Court’s concept of this entitlement is not well developed. Given the Court’s asymmetrical treatment of the two, a scan of expressive freedom under the Charter can offer insight into its view of the press. In considering expressive freedom, the Supreme Court adopted a definition of the right that is beyond reproach, and then turned away from it in upholding restrictions on expressive activities. In like manner, and despite supporting the role of a free press in democratic governance, the Court has refused to engage the press guarantee under s. 2(b). In the space of thirty years, the Supreme Court has embedded a fundamentally ambivalent conception of expressive freedom in the jurisprudence. To explain, this ambivalence is grounded in the Charter’s logic, which sets up an equation, or see-saw, between the guaranteed rights and freedoms on one side, and the countervailing concept of reasonable limits on the other. In terms, s. 1’s idea of reasonable limits allows Charter violations to be “saved,” or upheld, when it is justifiable in the broader interests of the democratic community. Though the equation seeks equilibrium between the two sides, the Charter mandates that the guarantees prevail unless the state can prove under s. 1 that limiting its rights and freedoms is demonstrably justified.2 On the entitlement side of the equation, the Supreme Court was uncompromising in defining the scope of expressive freedom. In interpreting s. 2(b), the judges resisted the temptation to limit the guarantee and consistently refused to exclude offensive and objectionable expression from the Charter. Instead of passing judgment on the activities at stake, the Court declared that, in principle, s. 2(b) protects all content of expression without regard to its merit, value, or virtue.3 Treating expression initially as equal under s. 2(b) took courage because it meant that objectionable expression, such as hate propaganda, pornography, and child pornography, would be protected by the Charter.4 It would be difficult to overstate the importance of this development in the s. 2(b) jurisprudence. The Court’s commitment to equality between ideas, or “content neutrality,” rests on the assumption that whenever the state singles certain messages out for restriction it necessarily engages in a form of discrimination, and an act of censorship.5 Generally speaking, any interference with expressive freedom prima facie violates s. 2(b) and will be permitted only when the evidence supports reasonable limits under s. 1.6 In embracing a broad and open process of freedom, the Court accepted it both as right in principle and

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as imperative in democratic terms that undesirable messages have the same voice, the same place in the public domain, and the same stake in the debate as mainstream points of view. Unfortunately, that concept of freedom was fleeting and the Court’s discomfort with the implications of protecting freedom quickly took flight under s. 1. There, against the proposition that expressive activity is protected unless harm can be shown, it turned out that the evidence of harm in many instances was either incomplete or inconclusive. Faced with the prospect of protecting mean-spirited, hurtful, and unpleasant expression, the Court chose to abandon s. 2(b)’s hard-earned concept of content neutrality. Instead of asking whether expressive activity was harmful enough to be limited, it developed a methodology that considered whether the content was valuable enough to be protected. After being rejected from s. 2(b) as inappropriate and, in essence, a tool of censorship, value paradoxically became the pivot for the s. 1 analysis. This “core values” approach allowed the Court to lower the standard for limits on “low value” expression and uphold restrictions on a range of controversial activities.7 The Charter’s protection was withheld in these cases not because the evidence could show in empirical terms that expression caused harm, but rather because the Court found that the messages in question were not valuable. In the briefest of accounts, this then is the genesis of a methodology that rests on a fundamental incompatibility between its underlying assumptions about expressive freedom and its permissible limits. This methodology not only rendered the jurisprudence incoherent but also made a mockery of s. 2(b)’s concept of freedom.8 In overview, an inventory of the first thirty years reveals that decisions upholding limits on expressive freedom outstrip those protecting the right by a margin of about 2 to 1. Whether that ratio is out of step in comparison to other Charter guarantees or not, what stands out is the Supreme Court’s willingness to bless restrictions on difficult and marginal expressive activity. Under s. 2(b), it adopted a principled definition of expressive freedom which was open and egalitarian, and as such guaranteed all points of view a right of access to the process of discussion and debate. Yet the Court lacked strength of conviction and the gesture did not count for much once s. 1 grafted a values-based analysis onto s. 2(b)’s concept of freedom. The Court’s lack of selfconsciousness about this contradiction, along with its willingness to turn its back on the meaning of freedom under s. 2(b), must be seen as profound compromises. In broad terms, the pattern in the press cases

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would be similar: the Court gave a free press strong endorsement in the abstract but would not grant newsgathering, its core function, status under s. 2(b). The Press, Newsgathering, and the Charter The Supreme Court’s press jurisprudence has two branches: while one deals with issues that relate exclusively to the press, the other addresses questions that involve overlap between press and expressive freedom. While the Court supported the entitlement when the two were joined in the open-justice setting, it was more reluctant to do so when newsgathering was at stake on its own.9 That question was squarely posed on two occasions, several years apart. In 1991, the CBC sought relief under the Charter from search warrants seeking access to film footage that belonged to the broadcaster.10 Then, in 2010, reporters from two national newspapers claimed a privilege to protect the identity of confidential newsgathering sources.11 Both times the Court proclaimed its support for a free press but refused to engage s. 2(b). The 1991 search warrant cases gave the Supreme Court the opportunity to address the Charter status of the press. At different times and places, the CBC had attended demonstrations to gather news and report these events to the public. To advance their investigation, law enforcement officers sought access to the CBC’s newsgathering material after the fact, which included raw footage as well as clips that had been broadcast. In challenging the warrants, the CBC maintained that the warrants violated its rights under s. 2(b) and argued that to protect the integrity of newsgathering, the threshold had to be raised substantially in the case of any search of the press. The Supreme Court did not hesitate to acknowledge the vital role of a free press and its connection to democratic governance.12 But rather than address the constitutionality of the warrants under s. 2(b), it deflected the issue to s. 8 of the Charter, which prohibits unreasonable search or seizure. Doing so enabled the judges to diffuse the direct violation of press rights and recast it under s. 8, where it could be treated in much the same way as any other search. Instead of making the warrants contingent on conditions or requirements being met, the Court identified press-specific variables that should be taken into account to determine the reasonableness of the search.13 In upholding the search warrants in both cases, the Court held that the CBC’s newsgathering was not compromised, in large part because the footage had already

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been broadcast and the CBC therefore could not claim that the material was private or confidential.14 In such circumstances, the CBC had no further legitimate interest in withholding this footage, and its refusal to release it to the police accordingly constituted an unreasonable demand for accommodation. Only one member of the Court realized what was at stake and spoke up for freedom of the press.15 Then Justice McLachlin, now the Chief Justice of Canada, wrote a dissent which held that the state’s interference with newsgathering activities violated s. 2(b) and could not be deflected to s. 8 and its criteria for reasonable search. McLachlin J. gave a vigorous account of press freedom in Canada, recognized that it is the prospect of interference with newsgathering that creates a chilling effect on the press function, and rejected the suggestion that the press and public should be governed by the same standards for search.16 To protect newsgathering, she proposed a press-specific Charter standard that would make search warrants contingent on certain conditions being satisfied.17 She would have invalidated these warrants because the police did not show that the evidence being sought from the CBC was unavailable from other sources, or explain why it was necessary to search a member of the press. Justice McLachlin rejected a presumption in favour of law enforcement goals, and stated that the press should only be searched when the warrants explain why access to the evidence is more important than freedom of the press. The CBC search cases are troubling on several levels. In sidelining s. 2(b), the Supreme Court took the Charter’s explicit guarantee out of the calculus. Despite the celebratory references, the Court’s endorsement of a free press was abstract and represented little more than a gesture. The resulting gulf between an abstract conception and a commitment to freedom is reminiscent of the pattern in the expression cases, where the Court supported the principle of freedom but surrendered it to the concept of reasonable limits under s. 1. In this instance, the Court focused on the question of search at the expense of freedom of the press and, in doing so, placed newsgathering at the mercy of s. 8’s malleable standard of reasonableness. Despite acknowledging the need for vigilance when the press is searched, the Court refused to impose conditions on police access to newsgathering materials. Perhaps most disappointing of all was the Court’s suggestion that there is little or no difference between the press and members of the public. In scolding that the CBC ought to be as willing to volunteer its evidence as any citizen, the Court missed the point that the press cannot discharge its

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democratic responsibilities unless it is free from interference from the state and independent in its newsgathering activities.18 Years would pass before the Court considered the Charter status of newsgathering again, and when it did, the issue arose in the highstakes setting of confidential newsgathering sources. Twice in 2010 the Supreme Court was asked to protect a source when investigative reporters from the National Post and the Globe and Mail received damaging information about explosive political scandals – respectively, Shawinigate and the Quebec sponsorship scandal – in exchange for a promise of confidentiality.19 In deciding whether to protect the journalist’s source, the Supreme Court was once again invited to engage the Charter and grant newsgathering constitutional status under s. 2(b). Following the pattern of the jurisprudence, the Court was quick to confirm its commitment to freedom of the press. Both decisions acknowledged the importance of confidential sources, the role they play in newsgathering, and the vital link between newsgathering and democratic functions.20 Despite doing so, the Court resisted a press-specific solution under the Charter and claimed, instead, that the general rule of evidence at common law – which recognizes a privilege for confidential relationships in some circumstances – is sufficient to safeguard the constitutional interests at stake.21 The slightly remodelled common law rule that emerged from these cases may afford confidential newsgathering sources protection in many circumstances. Even so, there are significant differences between a Charter solution, which explicitly constitutionalizes newsgathering and sets a high threshold for the violation of confidential newsgathering relationships, and a common law standard that nudges a generic rule for privilege in a more press-protective direction. It is the difference between a common law regime that places the onus on a journalist to prove that her source should be protected, and a constitutional framework that protects the relationship, and places the burden on anyone seeking disclosure to justify the violation of a confidential relationship pursuant to stringent Charter-specific requirements.22 By suggesting that the press enjoys particular rights and privileges, s. 2(b) entrenches a form of exceptionalism. As the newsgathering cases show, the Supreme Court is sympathetic to freedom of the press but uncomfortable with the implications of constitutionalizing those sympathies. At root, the problem in these cases was that the newsgathering activities could not be protected without creating exceptions for the press, or exemptions from the rules that ordinarily apply. The demand

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for special treatment put the Court on guard because any claim that the press is above the ordinary law conflicts with the rule of law and the primordial principle that all are equal in the eyes of the law. Though s. 2(b)’s exceptionalism is grounded in a democratic conception of the press, the Court’s scepticism reflects well-founded concerns about the legitimacy of singling this class out for special treatment under the Charter. Absent a theory to bridge that gap, the Court’s willingness to treat the press somewhat differently, but not to formalize that difference in constitutional doctrine, is not so surprising. Open Justice: A Section 2(b) Model A fair summary of the section 2(b) jurisprudence points to significant victories in some cases, as well as to the Supreme Court’s steady recognition of the critical role expressive and press freedom have played in our democratic tradition. Less positively, it had few qualms in discounting freedom principles at the point of decision. As discussed, the Court allowed restrictions on controversial expression by designating the messages as low in value and distant from s. 2(b)’s core. Meanwhile, in the context of search warrants and confidential sources, the jurisprudence failed to recognize a constitutional entitlement for the press or protect newsgathering activities from interference by the state. One part of the narrative remains to be told, concerning the area in which the Court has given s. 2(b) singular protection, and that is on open-justice or open-court questions. This jurisprudence unquestionably represents the pinnacle of success for s. 2(b) in the first thirty years of the Charter. The issue in these cases concerns judicial proceedings that are closed to the public, and publication bans that prohibit the disclosure of information that is revealed in such proceedings. In a series of cases, the Supreme Court developed and applied a methodology that made it difficult to impose publication bans or close proceedings to the public. Not only did the Court develop a customized standard to deal with this issue, but in applying that standard the judges made it clear that any limits that were permitted would have to be evidence-based.23 The profound impact of these decisions is compellingly described by other contributors to this collection, most notably by Robert Koopmans in his chapter, “Must News Reporters Become Guerilla Lawyers to Protect Their Rights? Covering the Canadian Justice System in Small Communities,” and by Daniel Henry in his chapter, “Free Expression at Thirty: The Search for Respect.”24

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This branch of the jurisprudence is distinctive in part because it rests on a synergy between s. 2(b)’s expressive and press freedoms. Most of the key decisions were either initiated by or involved media litigants who played a leadership role in bringing open justice forward under the Charter. The Supreme Court validated the central role of the press as the public’s agent in advancing s. 2(b)’s goals of transparency and accountability in matters relating to the justice system. In addition, it located the public’s right to know about and comment on such matters at the core of s. 2(b) and its vital link to democratic process. Although Dagenais v. CBC is rightly regarded as the watershed, the closed-court decision of Canadian Broadcasting Corporation v. New Brunswick (Attorney General) stands out for its insight on s. 2(b)’s press guarantee. When a judge closed his courtroom for about twenty minutes during sentencing in a sexual assault trial, the violation of open justice was relatively brief. Though he closed the court to protect those involved, including the young victims, the Supreme Court responded with a strict and uncompromising view of open justice. Justice La Forest developed the links between public engagement and democratic process that are protected by s. 2(b) by emphasizing the “democratic function of public criticism of the courts” and confirming the Court’s view that “it is difficult to think of a guaranteed right more important to a democratic society than freedom of expression.”25 Having established that the transparency and accountability of the justice system are core values, he turned to the press and tied the newsgathering function to the public interest in access to information about the justice system. Thus he declared that “the full and fair discussion of public institutions, which is vital to any democracy, is the raison d’être of the s. 2(b) guarantee,” and added that “debate in the public domain is predicated on an informed public, which is in turn reliant on a free and vigorous press.”26 He also emphasized that the press cannot inform the public and equip it to discharge its democratic responsibilities without having access to courts and court proceedings. The synergy between the public and press entitlements reached full momentum in his announcement that “freedom of the press not only encompassed the right to report news and other information, but also the right to gather this information.”27 The strength of this principle was reinforced by the Court’s admonition that exceptions to open justice must be evidence-based and satisfy a strict standard of justification. The Supreme Court’s commitment to open justice continued to evolve, reaching its apex in a case involving the Vancouver Sun, a secret

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hearing under the post-9/11 terrorism laws, and the Air India trial.28 There, a reporter discovered by chance that, while the Air India trial was taking place in an open courtroom, an investigative hearing relating to the same case was being held behind closed doors in another part of the courthouse. Were it not for the fortuity of that discovery, the hearing might have forever remained a secret. Against the compelling interest in investigations aimed at preventing and punishing acts of terrorism, the Supreme Court found the danger of secret judicial proceedings even more threatening, because of their serious implications for the integrity of justice.29 As a result, the Court held that the presumption of open access to judicial proceedings applies even to sensitive investigative hearings under Parliament’s anti-terrorism laws. According to Vancouver Sun (Re), proceedings can only be closed if the state rebuts the presumption with evidence showing that it was imperative to the investigation that the hearing be conducted in camera, or behind closed doors. The investigative hearing was one of the most controversial provisions at the time Canada’s anti-terrorism provisions were adopted. In imposing a constitutional requirement of openness the Court made it difficult, if not close to impossible, for the government to conduct this kind of investigative hearing. At first impression it is difficult to square open justice with the newsgathering decisions on search warrants and confidential sources. It is especially indicative that the Court expressly constitutionalized newsgathering when open justice was at stake, and then refused to engage s. 2(b) when the issue arose in the journalist–source cases. That said, its responsiveness to claims that sounded in access to justice drew strength from the synergy between s. 2(b)’s twin freedoms, and open justice’s pedigree in the common law tradition. First, and despite the close involvement of the press, the open-justice principle takes its cue from s. 2(b)’s guarantee of expression. In the Court’s view, that principle serves public interests and belongs to the public, as members of a democratic community who have a direct interest in access to information bearing on the integrity of the justice system.30 Transparency and accountability in the public interest are dominant themes, and help to explain the Court’s willingness to support the press and media in this context but not in others. The same values were also at stake when the press sought protection for newsgathering and investigative reporting practices. There, however, the claims took the form of a demand for special treatment through an exemption from the usual rules for search, and a privilege

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to protect a source by withholding vital information. It seemed, though, that rather than preserve its status as an agent of the public, the press was seeking to protect its own interests in these instances. Though a theory could have forged the link between newsgathering, independence from the state, transparency and accountability, and the public interest, what the Court saw instead was a claim for preferred treatment. By contrast, open justice could be enforced without giving the press special recognition under the Charter. Common law tradition also explains why the Supreme Court’s response to open justice and investigative newsgathering was so different. The pedigree of the open-court principle was established long before the Charter created constitutional protection for freedom of expression and the press. It is a creation of common law which evolved over the centuries and is vitally linked to the fairness, integrity, and legitimacy of the justice system.31 From that perspective, openness is not per se a press entitlement but has its roots in common law’s recognition that the integrity of justice depends, in large part, on the transparency of the system. This principle is deeply embedded in the jurisprudence and, despite derogations under statutory provisions and common law doctrine, is bedrock in the Anglo-Canadian system of justice. Tradition and a concept of openness as a public entitlement enabled the Court to single out this principle for Charter protection without addressing the status of the press under s. 2(b). As Ryder Gilliland discusses in his contribution to this collection, “Has Dagenais-Mentuck Seen its High-Water Mark?”32 the open-justice principle has been set back in a few recent Supreme Court decisions.33 It is unclear, at present, what the future holds in store. Rather than retreat from principle and a Charter methodology that sets a positive example for s. 2(b), the Court should regard its open-justice precedents as a model. Specifically, the attachment to principle, creation of a sound methodology, and principled demand for evidence-based limits are hallmarks of this jurisprudence which could and should be followed in other branches of s. 2(b). The Press: In Its Own Right under the Charter Section 2(b)’s journey to this point can be thought of as a quixotic combination of zigs and zags, victories and disappointments, and pronouncements of principle which have been brushed aside to accommodate limits on freedom. In the case of the press, particular obstacles

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stand in the way and must be addressed. One is the lack of a theory or set of rationales that speak to the role of the press; realistically, the perception that special treatment and exemptions are the issue will not change until it is established under s. 2(b) that the press serves distinctive democratic purposes and has constitutional status for that reason. The second concerns a definition of the press, which has been a challenge before but never more than at present. At least in the abstract, the Supreme Court has consistently demonstrated that it understands the value of a free press. Despite doing so, it has balked when asked to enforce entitlements under s. 2(b)’s explicit guarantee. Rather than engage the guarantee, the Court has sidestepped s. 2(b) and proclaimed that it is able to accommodate press interests in other ways. In doing so, the Court has processed its apprehension about the implications of constitutionalizing newsgathering activities in open and vocal terms.34 That apprehension makes it incumbent on those who support Charter protection for the press to allay those concerns. Some preferential or distinctive treatment is necessary to enable the press to discharge its democratic responsibilities. The press function is directly linked to democratic governance because it provides the means for the public to hold government and other sources of power, whether corporate, institutional, or individual, up to scrutiny. The kind of transparency that promotes accountability can only be achieved through robust reporting and commentary by a press that operates free from government interference and functions independent of the state. This function is distinctive and institutional in nature, and cannot be served unless newsgathering is free from interference by the state. The constitutional status of the press is grounded in a function that recognizes transparency and accountability as core principles of our democratic tradition, and looks to the press as an agent of the public in preserving and protecting those values. To its credit, the Court had no difficulty with this concept on openness questions, but did not respond the same way in the newsgathering cases. There, it failed to grasp the need for the press to be scrupulously independent from the state in its newsgathering function. Co-opting the press as an arm of the government in the investigation of crimes undermines its authority as an investigative institution in its own right. To discharge its own democratic responsibilities, the press must have control over its newsgathering material; its capacity for reporting in the public interest will otherwise be compromised. Along similar lines, investigative reporting depends on access to confidential sources;

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although the Court recognized the role of sources and acknowledged that journalists must be able to protect their sources, it failed to grasp in systemic terms that compelling a journalist to disclose a source – including the threat of forcing disclosure – fundamentally undermines the newsgathering function. The integrity of the newsgathering process must be recognized and protected by the Charter. Rather than address the issue through s. 8 or the common law, the focus should be on s. 2(b) and should take the form of a presumption against interference with newsgathering. A principled approach would require judges to find a violation of s. 2(b) when a search warrant is issued or disclosure of a confidential source is sought and to set a high evidentiary threshold of justification for any derogation from freedom of the press. It is simply a matter of adopting the open-justice methodology and applying it to these issues. Under this approach, derogations would be permissible under s. 1, but only under a standard for reasonable limits that is designed to protect press freedom. This approach would grant newsgathering constitutional status and restrict interferences to exceptional circumstances where a compelling case for access to newsgathering materials has been made. A second problem concerns the press itself, and the way technology has democratized the gathering, dissemination, and sharing of information. Defining the press was not a significant issue in the first thirty years of the Charter when the institutional press was actively engaged in much of the s. 2(b) jurisprudence. Conventional conceptions of the press have been destabilized in recent years by transformative technological change. This change has eroded the boundary between the institutional press and journalism professionals, and an undifferentiated group who may exercise their right of expressive freedom in ways that overlap with, mimic, or claim to engage a press function. Yet there are consequences for s. 2(b) if newsgathering and the dissemination of news are no longer the exclusive precinct of the institutional press. In such circumstances, the question that demands urgent attention is whether a constitutional concept of the press is sustainable at this time, or must give way – in the face of technology’s equalizing consequences – and fold press interests into the general guarantee of expressive freedom. To avoid that prospect it is incumbent, once again, on those who seek constitutional status for the press to make the case for an independent Charter guarantee that stands apart from, and is protected in different ways than, expressive freedom.

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To survive and claim its own space under the Charter and shift the narrative at the Charter’s next checkpoint, the press guarantee must meet this challenge; to avoid being collapsed into expressive freedom, s. 2(b)’s other fundamental freedom must accommodate technological change in a way that preserves continuity with the democratic purposes and responsibilities of a free press. NOTES I would like to thank Cara-Marie O’Hagan for inviting me to participate in the Ryerson Law Research Centre’s Conference, “Press Freedom in Canada: A Status Report on the 30th Anniversary of the Charter of Rights and Freedoms,” and also for her perceptive comments and feedback on an earlier draft of this chapter. I make similar arguments about freedom of expression and the press under the Charter in a more detailed article; see Jamie Cameron, “A Reflection on Section 2(b)’s Quixotic Journey, 1982–2012,” Supreme Court Law Review 58 (2012): 163–94. 1 The hallmark of this humility is the power of self-government, with its expectation and aspiration that members of the community will participate, collectively and equally, in social and political decision making, and its faith that democratic society will evolve through an open process of engagement and debate. 2 Section 1 states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”; emphasis added. 3 Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, p. 968 (stating that “freedom of expression is entrenched … so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream”). 4 Under this view of expressive freedom, the Supreme Court granted s. 2(b)’s protection to hate propaganda (R. v. Keegstra, [1990] 3 S.C.R. 697), obscenity and pornography (R. v. Butler, [1992] 1 S.C.R. 452), and child pornography (R. v. Sharpe, [2001] 1 S.C.R. 427). 5 Irwin Toy Ltd. v. Quebec (Attorney General), p. 969 (stating that “we cannot … exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed,” and adding that

216  Jamie Cameron “if the activity conveys or attempts to convey a meaning it has expressive content and prima facie falls within the scope of the guarantee”). 6 Ibid., 978–9. Here a two-step test is proposed under s. 2(b): step one asks whether the activity is expressive, as a matter of definition; and step two applies the “purpose-effect” distinction to determine whether there is an infringement requiring justification under s. 1. 7 These include, among others, hate propaganda (R. v. Keegstra), discriminatory messages (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892), obscenity and pornography (R. v. Butler), child pornography (R. v. Sharpe), tobacco advertising (Canada (Attorney General) v. JTI-Macondald Corp., [2007] 2 S.C.R. 610), and defamation under the Criminal Code (R. v. Lucas, [1998], 1 S.C.R. 439). 8 For a longer comment, see Cameron, “A Reflection on Section 2(b)’s Quixotic Journey,” Supreme Court Law Review 58 (2012): 163–94. 9 The law of defamation also engages expressive freedom and press interests, and though it is beyond the scope of this article, it is worth noting that there, as well, the Supreme Court rejected a Charter solution in rethinking the way the common law balances the protection of reputation against expressive and press freedom. See Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, and Grant v. Torstar Corp., [2009] 3 S.C.R. 640. 10 Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, p. 436; Canadian Broadcasting Corp. v. New Brunswick (AG), [1991] 3 S.C.R. 459. 11 R. v. National Post, [2010] 1 S.C.R. 477; Globe and Mail v. Canada (Attorney General), [2010] 2 S.C.R. 592. 12 Canadian Broadcasting Corp. v. New Brunswick, 475 (stating that the media “have a vitally important role to play in democratic society” and that it is the media which, “by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being”). 13 Canadian Broadcasting Corp. v. New Brunswick, 481. The Court generated a checklist of nine variables, four of which reference the circumstances of the press: the first indicates the need to balance the demands of law enforcement against the privacy rights of the press; the second considers whether the information is available from other sources and whether reasonable efforts to obtain it have been taken and exhausted; the third indicates that the warrant will generally be available when the information has been disseminated; and the fourth states that any search of premises should minimize the interference with press operations. 14 Canadian Broadcasting Corp. v. Lessard, 441 and 446–7 (stating that “the crucial factor is that, prior to the application for the warrant, the media had

Section 2(b)’s Other Fundamental Freedom  217 broadcast portions of the videotape … on two occasions, both in French and English” and that “once the media have published the gathered information, that information then passes into the public domain”). Even so, the police seized five videotapes, four of which contained raw footage that had never been broadcast. 15 Ibid., 432. La Forest J. wrote of the need to protect newsgathering, because “the press should not be turned into an investigative arm of the state,” but upheld the warrants on the facts of the cases. 16 Ibid., 450. In her words, “the history of freedom of the press in Canada belies the notion that the press can be treated like other citizens or legal entities when its activities come into conflict with the state.” 17 Ibid., 455. Specifically, she would have required the police to show that a search warrant is necessary because there are no alternative sources for the information required, to explain why the importance of the search outweighs the damage caused by infringing freedom of the press, and to demonstrate that the search will interfere with press freedom as little as possible. 18 Ibid., 446 (stating that “all members of the community have an interest in seeing that crimes are investigated and prosecuted” and suggesting that “the media might even consider voluntarily delivering their videotapes to the police”). See also Canadian Broadcasting Corp. v. New Brunswick, 477 (stating that “the media, like any good citizen, should not be unduly opposed to disclosing to the police the evidence they have gathered”; emphasis added). 19 R. v. National Post, and Globe and Mail v. Canada (Attorney General). 20 National Post, para. 41. See also paras. 30, 31, and 33 (recognizing that “the appellants and their experts make a convincing case that unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression in debate on matters of public interest would be badly compromised” and “important stories will be left untold, and the transparency and accountability of our public institutions will be compromised to the public detriment”). 21 Ibid., paras. 54 and 64 (commenting, additionally, on the common law standard at para. 64 that “the public interest in free expression will always weigh heavily in the balance” and noting that “while confidential sources are not constitutionally protected, their role is closely aligned with the role of ‘freedom of the press and other media of communication,’ and will be valued accordingly”; emphasis in original). 22 For a longer discussion of the common law Wigmore rule of privilege and the Charter, as well as an analysis of Shawinigate and the newsgathering function, see Jamie Cameron, “Of Scandals, Sources and Secrets:

218  Jamie Cameron Investigative Reporting, National Post and Globe and Mail,” Supreme Court Law Review 54 (2011): 232–72. 23 The key cases are A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175 (access to search warrants), Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (publication bans), Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (publication bans), Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (closed courtroom), R. v. Mentuck, [2001] 3 S.C.R. 442 (publication bans), and Vancouver Sun (Re), [2004] 2 S.C.R. 332 (closed hearing). 24 See chapters 9 and 6 in this volume, respectively. 25 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), paras. 17 and 19 (also stating, at para. 18, that “the freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule”). 26 Ibid., at para. 23. 27 Ibid., at para. 24. In doing so, he relied on his concurring opinion in Canadian Broadcasting Corp. v. Lessard and its conclusion that “the freedom to disseminate information would be of little value if the freedom under s.2(b) did not also encompass the right to gather news and other information without undue government interference”; emphasis in original. 28 Vancouver Sun (Re). The other key open-justice decisions from this era are R. v. Mentuck and R. v. O.N.E., [2001], 3 S.C.R. 478, both of which concerned judicial publication bans. 29 Vancouver Sun (Re), para. 26. The Court’s commitment to open justice could hardly have been stronger (stating that “the open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein”; that, “the freedom of the press to report on judicial proceedings is a core value”; that, “equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression”; that, “the press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions,” and, “consequently,” that “the open court principle, to put it mildly, is not to be lightly interfered with”). 30 The Court began to develop this view in Edmonton Journal v. Alberta. 31 The Court first celebrated the values that attach to openness in A.G. v. MacIntyre, where Dickson CJC’s majority opinion laid the groundwork for the Charter jurisprudence. Famously, he stated, at 185, that “covertness is the exception and openness the rule” and commented further that “public confidence in the integrity of the court system and understanding of the

Section 2(b)’s Other Fundamental Freedom  219 administration of justice are fostered by openness.” At 189, he declared that “the curtailment of the traditionally uninhibited accessibility of the public to the working of the courts should be undertaken with the greatest reluctance.” 32 See chapter 7 in this volume. 33 The setbacks include Toronto Star Newspapers v. Canada (Attorney General), [2010] 2 S.C.R. 721 (upholding a statutory publication ban on bail hearing proceedings), Canadian Broadcasting Corporation v. Canada (Attorney General), [2011] 1 S.C.R. 65 (concerning press access to evidence), and Canadian Broadcasting Corporation v. Canada (Attorney General), [2011] 1 S.C.R. 19 (access to courthouse premises). 34 R. v. National Post, paras. 37–41 (explaining why the constitutional model should be rejected and emphasizing, in particular, that newsgathering could not be constitutionalized without creating expectations for other techniques – such as chequebook journalism – and claiming that to protect “a heterogeneous and ill-defined group of writers and speakers” would “blow a giant hole in law enforcement and other constitutionally recognized values such as privacy”).

15  T  he View from Down Under: Freedom of the Press in Canada james allan

In this chapter I will look at the scope of press freedom in certain respects under Canada’s entrenched, constitutionalized Charter of Rights and Freedoms, and do so through Australian eyes.* I am only a transplant to down under; I was born and raised in Toronto, educated at Queen’s University in Kingston, Ontario, and worked as a lawyer on Bay Street in Toronto. Then I moved to London, England, to work at the bar. From there I moved to Hong Kong for four years, New Zealand for eleven years, and finally to Australia for the last nine years – always one step ahead of extradition, as I like to say. In Hong Kong, New Zealand, and Australia, I taught public law in universities. My birthplace and education notwithstanding, I have more experience in constitutional law in the Antipodes than in Canada, and the advantage of seeing Canadian constitutional law from an offshore perspective. I also hope to give you a taste of that foreigner’s perspective by comparing the scope of freedom of the press in Canada, with its Charter of Rights and Freedoms, to that of Australia, where (almost uniquely in the democratic world) there is no national bill of rights of any sort. To lay my cards on the table, I admit that I dislike all types of bills of rights – on democratic grounds – a view shared by a more or less invisible category of legal academics in Canada. However, before I move on to that Canada–Australia comparison of the scope of press freedom I need to do three things. First, I would like to give you at least a basic account of why free speech and free press matter. Second, I want to show, briefly, just how constitutionally similar these two countries are in terms of * The editors note that this paper was written in 2012 and reflects a legal perspective prevalent at that time. Since then, much has changed in Australia. Regardless, this essay remains of particular interest and an important contribution to the discussion of press freedom under constitutional law.

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history and political structure. Third, I will outline some of the international responses to Canada’s Charter of Rights and Freedoms. Regarding the first point, my answer falls squarely in the utilitarian John Stuart Mill tradition, which argues that, in the long term, the best consequences for any society flow from allowing the vigorous, untrammeled competition of ideas and views and speech, however hurtful or offensive or character-impugning they might be to some listeners and readers.1 The sort of free speech that matters is the kind that offends, disturbs, unsettles, and bothers people. A protection or guarantee of free speech is worthless if the topic is one upon which everyone agrees; in such a context, that protection doesn’t do anything. Rather, you need protections for speech when the content is not something with which you already agree – when it offends you, when it challenges you, when you would rather not hear it at all. The main reason I think this sort of speech needs protecting is the one, as I said, that John Stuart Mill gave: the best alternatives or social solutions – or perhaps sometimes the least bad ones – will emerge from the cauldron of vigorous, heated debate, mockery, and exchange of views. Most speech, most of the time, ought to be tolerated. A corollary of free speech is the obligation of all of us living in free, democratic societies to grow thick skins, to toughen up. We do not get the misguided luxury of playing the victim, of stifling talk and words that we find hurtful. We do not get that luxury because every once in a while – no one knows when – those hurtful words will make a powerful point, as they did, for example, in the 1950s and 1960s about the injustice and inhumanity of the Jim Crow laws ubiquitous in some states in the United States.2 No one can expect good long-term consequences to flow when government and bureaucrats and two-bit, puffed-up human rights commissioners become the arbiters of what can and cannot be said. It matters that citizens in a democracy have plenty of scope to speak their minds, however seemingly misguided, erroneous, or distasteful their words might be. Saying that is wholly consistent with accepting that no society will ever be able to make the entitlement of free speech an absolute right. There are limits on free speech even in the United States, where, at least in formal legal terms, there is more protection of free speech than anywhere else on the planet. For example, there is no protection for speech that counsels murder or details how to make some virulent biological weapon. We are looking at relative values. We may trade the right to free speech against the clear need to stop counselling a likely murder, or even prevent a knowingly false statement aimed at character assassination, but we want the line drawn with as much protection for speech as we can stomach when it comes to words

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we merely disagree with or find offensive. The long-term consequences of this are simply too clear and too valuable; and a free press lies at the very heart of any tolerably functioning social system that protects free speech. Indeed, in practical terms, a free press is the most important aspect of living in a society that affords plenty of scope for free speech. As to my second point, pick the country in the world most similar to Canada and it would be Australia, and vice versa. Why? They are both products of the British Empire, with all the shared history that entails. In particular, that means they share the common law, a Westminster parliamentary system of government, a myriad of shared political conventions, and the same head of state. They are also both unusually large countries with federal (not unitary) systems, though when the Australian founders came to choose what sort of federal system to have in the 1890s, they opted for the American model over the Canadian one. Likewise, both Canada and Australia are bicameral systems (having two legislative chambers), though again the Australian founding fathers shunned the Canadian/UK model of an unelected upper house in favour of the American model of an elected genuine upper house of review that looks palatable in the democratic era. While mentioning these differences, I might add that Australia’s constitutional amending formula requires a Swiss-style national referendum,3 the founders having rejected a Canadian-style “ask-the-politicians-only” model.4 Furthermore, Australia operates a compulsory voting system, while Canada does not. Yet, despite those differences, Australia is clearly and undoubtedly Canada’s closest cousin in overall constitutional terms. That brings us to the last of my preliminary points – namely, a few words about the Charter of Rights and Freedoms. Whatever wellfounded patriotism might incline you to think, the Charter has not travelled particularly well. Canada’s model of a bill of rights was explicitly rejected by New Zealand in 1990 and by the United Kingdom in 1998. It was seen as too potent in terms of transferring power to unelected judges with power to draw debatable, disputed policy lines over a host of social issues about which smart, well-informed, nice people simply disagree. Put more bluntly, the Charter was seen as just as counter-majoritarian as the US Bill of Rights, despite the notwithstanding clause,5 which almost everyone now realizes has not once been used at the federal level – not one single time, ever – in three decades. Whether one happens to agree with that democracy-enervating characterization of the Charter or not (and I do), the fact remains that it is not a much-copied model – or, if you find that claim too provocative,

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then let us say that the power to strike down or invalidate legislation is not much copied in the Commonwealth. When it comes to Australia, the Charter and its judicial power-enhancing effects were regularly cited by opponents during recent attempts to adopt or enact some sort of bill of rights.6 In fact, Australia’s history of attempts to achieve some sort of bill of rights is basically this: there have been two constitutional amendment referenda asking the voters if they want one, the most recent in 1988. Both lost badly, with the 1988 one losing in every single state in Australia. With any Canadian or US-style constitutional bill of rights thereby off the table (and it would be a fun counter-factual to wonder if Mr Trudeau could have got the Charter through if he had had to achieve the equivalent of the Australian amending requirement, which would mean getting the agreement of a majority of voters nationally and in a majority of provinces), proponents shifted to arguing for a New Zealand–style statutory bill of rights, especially after the 2007 election of a seemingly pro–bill of rights Labour government. But public opposition was too great to proceed even with that model. A Canadian audience may well find the concept of opposing a bill of rights sufficiently unfathomable to want to ask why anyone would do such a thing, so let me highlight the main grievances. The core of the case against a bill of rights is that all rights in it – and none more so than the right to free speech – embody vague, amorphous moral abstractions pitched at such a high level of indeterminacy that they effectively finesse all disagreement. Bills of rights are articulated in the Olympian heights of moral abstractions (the “right to free speech,” the “right to equality”) where all is consensus and agreement, but they have real effect down in the quagmire of detail (where we must draw the lines in a defamation regime or campaign finance system or setup that outlaws speech that is hateful, to stay only within the confines of a free-speech entitlement). And down in that quagmire of social-policy line-drawing details, there is inevitable disagreement between people just as nice and as smart and as well-meaning as you – or as some committee of ex-lawyer judges. So, if you believe in democracy, a bill of rights is highly problematic – unless you just suppose that the 5–4 decision of a top court has some mystical correlation with what actually is the timeless, fundamental rights-respecting answer. In other words, it is problematic unless you make the dubious assumption that unelected ex-lawyer judges have superior moral antennae to your average voter’s, and that their judicial verdict on rights issues is better – morally better – than the electorate’s

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majority verdict. If you are inclined to think that, I suggest you read Jamie Cameron’s chapter, “Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012,” in this volume,7 to see how the Supreme Court of Canada has missed one chance after another to protect freedom of expression and press freedom in particular. Of course, there are further difficulties about not according people a right to participate in key public decisions (think issues pertaining to same-sex marriage, when tobacco companies can advertise, or any other major Charter decision since 1982). This right to participate seemingly lies at the core of treating individuals as autonomous, respect-deserving agents – a core presupposition of the modern human rights movement. So there are all the variants of objections related to how judges garner too much power under these instruments, and how they themselves decide rights issues on a procedural, count-heads, majority-rules basis. Furthermore, there is the straight-out consequentialist objection to bills of rights that says that, in a well-functioning democracy, legislators (on average, over time) do at least as well as unelected judges in achieving rights-respecting outcomes – which happens to be my view – and that such legislators have considerably more legitimacy to be making these decisions than judges – a procedural buttressing point that is also my view. For the rest of this chapter, it is only that last consequentialist claim that will be my focus – that elected legislators do at least as well as unelected judges in producing rights-respecting outcomes. Furthermore, I will confine myself to freedom-of-the-press issues, or at least to the subset of such issues that covers hate speech and defamation. My claim will be that Australia, without any sort of national bill of rights at all, has at least as much press freedom as does Canada with its Charter. Press Freedom and Hate Speech Laws Let me start with hate speech laws. Even a passing acquaintance with the saga of Mark Steyn–Maclean’s8 and s. 13 of the Canadian Human Rights Act9 (and various provincial equivalents) would suffice to show that hate speech laws can, and do, have an effect on the press and on what it might or might not be able to publish. These laws have what can be thought of as the “chilling effect” of the mere threat of being dragged before some human rights commission where the complainant has every single dollar of his or her legal costs paid for by the taxpayer while the accused – the party alleged to have transgressed these hate speech provisions – has to pay his or her own way.

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Put more bluntly, even if you end up winning you lose. Steyn and Maclean’s eventually had every single legal action against them dropped, ended, or dismissed, and yet they were out-of-pocket very large sums indeed. I had originally written that those costs were well into six figures, but a friend and former lawyer colleague of mine on Bay Street laughed at me when he read that, saying that I had been out of practice for too long. He told me that the cost to Maclean’s or its insurers probably hit seven figures. Since then, I have had even better information that the legal costs for Maclean’s were about $2.5 million. No one who cares about a free press can pretend that sort of outcome does not deter those who lack the deep pockets of Maclean’s. So let us look more closely at the state of hate speech laws in Canada, assuming, as I do, that any such laws do affect the scope of a free press to publish things many would consider part of the give and take of life in a democratic polity. We can simplify things by separating criminal and non-criminal hate speech restrictions; only the latter are likely to be relevant to a discussion of freedom of the press, though the leading Supreme Court of Canada cases, respectively, are Keegstra10 (in the criminal realm), and Taylor11 and Whatcott12 (in the civil realm). You will recall that in Taylor, a 5–4 majority decision, the top court upheld the constitutionality of the s. 13 regulation of what was considered hate speech. In brief, the majority held that s. 13 infringed the freedom-ofexpression guarantee, but that this infringement was justifiable under s. 1 of the Charter. In particular, Chief Justice Dickson for the majority pointed to such factors as the reduced worth of hate speech, the fact the remedies were civil (not penal) in nature, and the importance of the goal of protecting minorities. Meanwhile, Justice McLachlin, in her dissent, argued that s. 13 gave the Human Rights Commission too much discretion, that it had a “chilling effect,” and that the restriction was framed in overbroad terms. Twenty-three years later, Justice Rothstein, writing the court’s unanimous decision, essentially confirmed the approach in Taylor by upholding the constitutional validity of most of s. 14(1)(b) of the Saskatchewan Human Rights Code prohibiting hate publications.13 One immediate point to make is that the Charter did nothing to extend freedom of the press: if you dislike s. 13, the judges let you down; if you like s. 13, then they ended up adding nothing to the equation (or, rather, they added nothing other than what follows from the assumption that the answers to all political disputes can be, and should be, found by vetting laws against constitutionalized rights provisions, as interpreted by a committee of ex-lawyers – an assumption open to serious doubt).14

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Furthermore, it is harder to repeal such legislation once the top judges have deemed that it is in accord with what are people’s timeless, transcendent fundamental rights.15 It is important to realize that this is at core a philosophical, political, and moral dispute grounded in competing versions of why free speech and a free press matter, and that unelected top judges have absolutely no extra expertise in such matters; the political, democratic system could deliver either the pro– or anti–s. 13 outcomes, and once a precedent is in place, the Charter, if anything, makes repeal considerably more difficult. Let me try to support those claims by turning to Australia. As it happens, there is a fairly close analogy there to the Mark Steyn saga. Newspaper columnist Andrew Bolt, after writing that Caucasianlooking Aboriginals with 1/32 (or less) Native bloodlines should not receive government affirmative-action jobs and doing so in very harsh, sarcastic terms, was taken to court under the 1995 amendment to the Racial Discrimination Act that created section 18C. This section, in an Orwellian way, makes some conduct unlawful, but not a criminal offence. It does so if your speech or act “is reasonably likely … to offend, insult, humiliate or intimidate” others and is motivated by another’s race (among other things).16 There is then section 18D, which offers exemptions if what you said was said reasonably and in good faith, including as part of a fair comment on a matter of public interest. Basically, this is an Australian national statutory provision that imposes non-penal hate-speech restrictions. After a trial at first instance, Mr Bolt and the Herald Sun newspaper lost (the opinions voiced here related not to demographics and Islam, as in the Steyn–Maclean’s case, but rather to affirmative-action benefits flowing to self-identifying Aboriginals who appeared, genetically, to have little Aboriginal blood).17 The Australian statutory provision looks less broad than Canada’s hate speech provisions, and seemingly has stronger built-in speechprotecting defences. But the Australian judge in the first instance did not interpret the statute that way. For example, the judge interpreted section 18C’s “reasonably likely to offend” test18 as assessed by reference to some objective member of those claiming victimhood – not by reference to a reasonable member of the community at large. He also held that the onus of proof for triggering the section 18D exemption lay on Bolt, while reading in that “what is deemed to be gratuitously offensive can’t claim the exemption” provision.19 Moreover, as no monetary penalties applied – the remedy was simply a judge-dictated pseudoapology to be run by the paper – the newspaper insurers refused to appeal, though my publicly stated newspaper-column opinion at the

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time was that Bolt would have won an appeal. In Australia, too, you can see that the real speech inhibitor is the chilling effect of the threat of expensive litigation where complainants have their costs covered by taxpayers and the newspaper and writer do not. My comparative point is that press freedom is no less protected in Australia. If, like me, you dislike hate speech laws, you gain some comfort from the fact that in 2012 the Australian opposition party pledged in unequivocal terms to repeal at least most of these provisions while simultaneously buttressing the section 18D defences, and has done so more directly and overtly than Mr Harper’s Tories did in enabling the legislative progress of Bill C-304. And if you noticed that Mr Bolt lost in Australia while the Human Rights Commission’s actions against Mr Steyn were all ultimately dismissed, you need also to consider that until 2016 the Bolt case was virtually the only civil hate speech action commenced in Australia, while in Canada there have been many, with many accused (if we can use that word in a non-criminal trial) losing, including the stand-up comedian Guy Earle in British Columbia.20 In more general terms, you should likewise bear in mind the need to avoid falling victim to the fallacy of the “frozen legislature assumption” – the vague notion that, when it comes to rights and respect of rights, the output of the elected legislature in Canada was somehow frozen as of 1982, and so, had there never been the Charter, no advances on the rights front would ever have emanated from legislatures these past thirty years – a nonsense when specifically articulated, but a notunheard-of implicit assumption from Charter defenders. I repeat, then, that from any perspective – for or against hate speech laws – a comparison with Australia does not indicate that the Charter has improved freedom of the press. That is hardly surprising if you see this issue in terms of having to make a debatable, contestable, linedrawing call on social policy in which a committee of ex-lawyers has not a scintilla of extra moral, political, or philosophical expertise. Again, I refer you to Jamie Cameron’s chapter21 for a good overview of how, and how often, the Supreme Court of Canada has fallen short when it comes to standing up for free expression and a free press. Press Freedom and Defamation Laws What about defamation laws, an area of law with obvious implications for freedom of the press? Let me start this time with Australia, which sits somewhere between the United States and the United Kingdom in the way it strikes the balance between the competing social goals

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of protecting people’s reputations from attacks by others (on the one hand) and the desire to leave people with lots of scope to pass comment on others’ conduct and character (on the other hand). Obviously any balance struck needs to give some weight to protecting people’s characters from at least knowingly and maliciously false and outrageous slanders. Likewise, any balance must concern itself with the bad consequences that might flow if speakers need dead certainty and rocksolid proof before making claims, with the dangers of stifling not just false allegations, but also true ones. Put differently, there is a world of difference between something being true, and being able to prove it is true in a court of law, where the onus of proof is on you, the defamation defendant. We are talking, again, about where to draw highly debatable, contestable social-policy lines and how to balance two social goods that are in conflict. The Americans go further than anyone else in favouring wideopen speech, especially when the allegations are against public figures – though even in such cases, a knowingly false and malicious allegation will lead to a successful defamation action (if you prove as much). Meanwhile the traditional British balance gives considerably more weight to protecting people’s reputations, to the point where British courts have been characterized in terms of their receptivity to “libel tourism.” I am revealing no secrets when I point out that, in purely legal terms, the balance in the United States gives the press more scope than anywhere else to write things about people without fear of a lawsuit – even things that, on occasion, may prove to be unwarranted or false. Of course, if we cast our gaze up from the purely legal and consider cultural factors, such as the ethos of the press (and I think now of the British tabloid press) and its willingness to pay significant defamation damages to the odd litigant in order to achieve million-plus sales, then matters are not nearly so clear as to whether the press in the United States or the United Kingdom is more apt “to speak truth to power” (and to puffed-up, holier-than-thou celebrities). But my point, again, is that a comparison of Canada to Australia vis-à-vis the defamation law regime in each jurisdiction gives us no grounds for thinking the Charter does anything at all to promote a more rights-respecting outcome. First, it is a highly contestable and everywhere-debated issue as to which drawn line is best, or least bad, in this exercise of balancing reputation against scope to publish what sometimes may be false claims. Second, if we simply assume that the US end of the spectrum is preferable, then Australia does at least as well as Canada, if not better.

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For those who would like a brief, up-to-date account of the law of defamation in Australia, the one provided by Justice Peter Applegarth, a judge of the Supreme Court of Queensland, is the place to look.22 Let me here give away the punchline and tell you that in the 1997 case of Lange v. Australian Broadcasting Corporation,23 the High Court of Australia created a special category of common law qualified privilege for communications about government and political matters – meaning a defence for speakers and publishers even where truth cannot ultimately be proven in court (though some states in Australia already had a statutory defence of qualified privilege that covered this). Basically, a publisher has to act reasonably in the circumstances and without malice to trigger this privilege or defence related to governmental or political matters, where “reasonable in the circumstances” means the publisher has “reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation was untrue.”24 This defence exists in addition to the traditional defence of qualified privilege that does not require reasonableness, and in some circumstances gives wider protection (e.g., as regards matters of public interest outside government and political matters).25 This Lange defence superseded a “constitutionalized” defamation defence and is related to what is known in Australia as the implied right to freedom of political communication, albeit in a complicated and contentious way.26 Luckily for our purposes, we can leave the position in Australia at that. Meanwhile, the state of Canada’s Charter-driven defamation law regime is more or less this: Grant v. Torstar Corp27 moved the more traditional British-style balance (giving much more weight to protecting reputation) along the spectrum a bit towards the US position (though still falling a good deal short of where the US line is drawn). The Supreme Court of Canada opted for a new rule “that gives greater scope to freedom of expression while offering adequate protection of reputation … [This new defence requires publishers] to establish that they acted responsibly in attempting to verify the information [related to] a matter of public interest.”28 Call this the “defence of responsible communication,” which requires judges to think both that the topic is a matter of public interest and that the publisher was diligent in trying to verify the allegations (given the circumstances). This new defence will sometimes offer protection when published claims ultimately prove to be untrue – or, what is not quite the same, when the publisher is unable to prove their truth in court. Something similar applies to

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wholly private law cases not directly governed by the Charter, because we are told in WIC Radio v. Simpson29 that the common law (i.e., purely judge-made law) is to be guided by Charter values. In the meantime, in a case that is no doubt of interest to journalists, the Supreme Court held in 2010 that there is “no basis for recognizing a class-based constitutional or quasi-constitutional journalist-source privilege under either the Canadian Charter or the Quebec Charter.”30 Conclusion Such are the details in regards to the state of both hate speech law and defamation law regimes in Canada and Australia. But my larger point is that both countries’ regimes fall easily within what the vast preponderance of people would consider some rights-respecting core. And for people like me, who believe in as much scope to speak as possible, neither country matches the United States, but Australia does at least as well as Canada – possibly better. Put more bluntly, bill-of-rights-lacking Australia does every bit as well as Charter-dominated Canada in terms of defamation law. Precisely the same goes for hate speech laws in both countries as they relate to freedom of the press, as we have seen. My conclusion then – one that will be surprising to some I suspect – is that Canada’s entrenched Charter of Rights and Freedoms adds nothing to freedom of the press if Canada is being compared to its closest constitutional cousin, and so tangentially to what it might have looked like today without the Charter.

NOTES An earlier version of this chapter was published in the Supreme Court Law Review, 2nd ser., 58 (2012). 1 John Stuart Mill, On Liberty (London: Longman, Roberts and Green, 1869). 2 Jim Crow laws were state and local legislation mandating racial segregation and institutionalizing economic and political disadvantages for African Americans; see http://en.wikipedia.org/wiki/Jim_Crow_laws. 3 Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict., c. 12, s. 128. 4 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 38 provides an amending formula that requires passage of resolutions

The View from Down Under  231 in the House of Commons, the Senate, and two-thirds of the provincial legislative assemblies representing at least 50 per cent of the population. 5 Section 33 enables Parliament or provincial or territorial legislatures to declare that one of its laws or part of a law applies temporarily notwithstanding that the law may breach certain sections of the Charter. 6 James Allan, “You Don’t Always Get What You Pay For: No Bill of Rights for Australia,” New Zealand Universities Law Review 24 (2010): 179–96. 7 See chapter 14 in this volume. 8 In December 2007, Mohamed Elmasry of the Canadian Islamic Congress filed complaints with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal, and the Ontario Human Rights Commission alleging Maclean’s magazine published eighteen Islamophobic articles between January 2005 and July 2007, including a column by Mark Steyn titled “The Future Belongs to Islam.” By October 2008, each tribunal had dismissed the complaints. See “Commission Statement Concerning Issues Raised by Complaints against MacLean’s Magazine,” Ontario Human Rights Commission, 9 April 2008, http://www.ohrc.on.ca/ en/news_centre/commission-statement-concerning-issues-raisedcomplaints-against-macleans-magazine, as well as Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378, http://www. bchrt.bc.ca/decisions/2008/pdf/oct/378_Elmasry_and_Habib_v_Rogers_ Publishing_and_MacQueen_(No_4)_2008_BCHRT_378.pdf, and Canadian Islamic Congress v. Rogers Media Inc. (20071008), http://www.macleans.ca/ multimedia/pdf/CHRC.pdf. 9 Canadian Human Rights Act, R.S.C., 1985, c. H-6, http://laws-lois.justice. gc.ca/eng/acts/h-6/. 10 R. v. Keegstra, [1990] 3 S.C.R. 697. 11 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. 12 Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11. 13 The Saskatchewan Human Rights Code, being Chapter S-24.1 of the Statutes of Saskatchewan, 1979 (effective 7 August 1979) as amended by the Statutes of Saskatchewan, 1980–81, c. 41 and 81; 1989–90, c. 23; 1993, c. 55 and 61; 2000, c. 26; 2007, c. 39; and 2011, c. 17, http://www.qp.gov. sk.ca/documents/English/Statutes/Statutes/S24-1.pdf. 14 Adam Tomkins, “In Defence of the Political Constitution,” Oxford Journal of Legal Studies 22, no. 1 (2002): 157–75. 15 I am delighted to say that, in the final stages of preparing this chapter, Bill C-304, a private member’s bill in Canada to rid it of s. 13, passed through Parliament and is now law and will repeal s. 13 in the way it should be, in my view, by the elected legislature not by unelected judges. See Bill C-304, An Act to Amend the Canadian Human Rights Acts (Protecting Freedom),

232  James Allan 1st sess., 41st Parliament, Canada, 2011, http://www.parl.gc.ca/legisinfo/ BillDetails.aspx?Language=E&Mode=1&billId=5124394. 16 Racial Discrimination Act 1975 (Cth) No. 52, http://www.comlaw.gov.au/ Details/C2013C00013. 17 Eatock v. Bolt, [2011] FCA 1103 (F.C.A.). 18 Racial Discrimination Act, s. 18C. 19 Ibid., s. 18D. 20 Ismail v. British Columbia (Human Rights Tribunal), [2013] BCSC 1079. In this decision, BC’s Supreme Court upheld the $15,000 fine imposed by the tribunal on Earle for anti-gay remarks he made during his stand-up comedy routine. 21 See chapter 14 in this volume. 22 Justice Peter Applegarth, “Distorting the Law of Defamation,” University of Queensland Law Journal 30, no. 1 (2011): 99–117. 23 Lange v. Australian Broadcasting Corporation, [1997] 189 CLR 520. 24 Ibid., 574. 25 Roberts v. Bass, [2002] 212 CLR 1. 26 Applegarth, “Distorting the Law of Defamation.” 27 Grant v. Torstar Corp., [2009] 3 S.C.R. 640. 28 Ibid., paras. 66 and 85. 29 WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420. 30 Globe and Mail v. Canada (Attorney General), [2010] 2 S.C.R. 592.

Conclusion Use It or Lose It: Do Canadians Deserve Press Freedom? ivor shapiro

We are fully convinced that it is as harmful to the impartial search for truth as it is to the discovery of obsolete errors and prejudices, if upright patriots, zealous for the common good and what is genuinely best for their fellow citizens, because they are frightened by reputation, orders, and preconceived opinions, are hindered from being free to write according to their insight, conscience, and conviction, attacking abuses and uncovering prejudices. And thus in this regard, after ripe consideration, we have decided to permit in our kingdoms and lands in general an unlimited freedom of the press of such a form, that from now on no one shall be required and obliged to submit books and writings that he wants to bring to the press to the previously required censorship and approval. – The world’s first declaration of freedom of the press, in a Cabinet Order by King Christian VII of Denmark, issued 4 September 17701

Subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society … everyone has … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. – The Canadian Charter of Rights and Freedoms, sections 1 and 2(b), 17 April 1982

A conference marking the thirtieth anniversary of the Canadian Charter of Rights and Freedoms was held at Ryerson University in Toronto in 2012. Over the course of two days, professional journalists, as well as scholars and legal and other experts, reflected on what the Charter’s

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s. 2(b) had done for the state of the country’s journalism. This conclusion and the papers in this volume reflect the discussions presented there. The conference was never exactly a birthday party, and at times it even felt like a wake, because of a realization that, in too many respects, the idea of press freedom in Canada is more poignant in its absence than in its presence. Nowhere is this currently truer than in the realm of information access. Linden MacIntyre, the broadcast journalist whose own name graces a Supreme Court judgment that declared a presumption of free access to information about legal proceedings,2 might have been expected to crow, a little, about his win for CBC against an intransigent court clerk and justice of the peace in Halifax. Instead, he spoke at the conference about the endurance and prevalence of “courthouse culture” – an aversion to providing information not only in the judiciary, but, with increasing power, in the executive branch at every level of government. The truth of that perspective was attested to by the cold, hard facts about how little is actually disclosed through the freedomof-information process in Canada, as demonstrated, for example, by researcher Fred Vallance-Jones in his chapter “Freedom of Information: How Accountability to the Public Is Denied.”3 As urged by Bruce Gillespie in “Media Whining or Democratic Crisis? How Institutional Secrecy Is Contextualized in National Newspapers,” journalists must do a better job of emphasizing this special social function to the general public.4 If the dire state of access to information is only the tail side of a coin that can be flipped at will to reveal a happier visage, that’s to the credit of dozens of media lawyers who have coordinated their efforts and passion in the cause of freer expression against the worst abuses of defamation law and closed courts. Their most significant victories over the span of the Charter’s three decades (not all of which can be credited to the Charter) include several affirmations of the presumption for open justice, a dramatic rewrite to the defamation defence of fair comment, and the creation of the public-interest “responsible communication” defence for libel. That said, as media lawyers Daniel Henry and Ryder Gilliland (who write in this volume about the application of the Dagenais principles on discretionary publication bans)5 readily affirm, much remains to be achieved. Several of these accomplishments hang on the frustratingly elusive concept of the public interest, the practical meaning of which appears to be a compromise between “anything the public is interested in” and “anything judges and juries think is the

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public’s business,” which is a rather different matter. While Canadian journalists are learning to exploit emerging technologies to expand the bounds of press freedom, as suggested in the essays of both Tim Currie and Gavin Adamson,6 statute law and jurisprudence are full of bizarre inconsistencies (such as the truly weird prohibition on identifying the juvenile victims of youth crime but not the juvenile victims of an adult crime). In “How the Criminal Code ‘Protects’ Sexual Assault Complainants from Themselves and Constrains Their Participation in the News Media,” Lisa Taylor shows how news media are hindered from telling the stories of those who suffer sexual assaults – including those who want their stories told with identities revealed.7 Meanwhile, Normand Landry, in “Strategic Lawsuits against Public Participation and Freedom of the Press in Canada,” describes how plaintiffs with means continue to intimidate journalists through strategic lawsuits against public participation in the absence of a meaningful anti-SLAPP legal regime.8 Freedom of the press, then, is at best a work in progress. But, then again, no freedom is absolute; neither the starkly prescriptive US First Amendment (“Congress shall make no law … abridging the freedom of speech, or of the press”) nor the bets-hedging Canadian Charter renders speech an absolute freedom. It is and should be against the law to shout “Fire!” in a swarming and smoke-free cinema, and I am entitled to ask racists to leave my home if I prefer not to listen to their diatribes. Still less is freedom of the press absolute; few, in any jurisdiction, would altogether abolish the tort of libel, grant journalists a right to steal military secrets, or allow publishers to disseminate child pornography. Yet “freedom of the press and other media of communication” means something, and presumably something different from the separately protected free “expression.” But this is perhaps not so very obvious; from the eighteenth century to the twenty-first, most arguments made in favour of the former appear indistinguishable from those in favour of the latter. Most prominently, at least for our purposes, there is the argument from “democratic dialogue” – the idea that in a democracy, citizens’ decisions benefit from, and governments are therefore held in check by, the presence of a diversity of sources of information and criticism. This is true whether the uncomfortable facts and views are disseminated by soap-box lecture, word of mouth, Twitter, or the front page of the Calgary Herald.9 Jamie Cameron, in “Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982–2012,” argues that the Supreme Court of Canada has failed to apply the Charter’s protections to the news media’s “core function” of newsgathering.10

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Cameron’s vigorous critique of what she sees as a failure in the Supreme Court of Canada’s courage regarding s. 2(b) lays down a challenge to Canada’s lawyers to push for clarity both on the “constitutional status” of the press and on the definition of who, exactly, comprises the press. Journalists face an equivalent challenge. If their work merits special constitutional liberties compared with every citizen’s free speech, then the exceptionality has historically been rooted in two distinct ideas. The first of these ideas is that the “unhindered flow of accurate information” enhances citizens’ ability to reflect freely on their democratic choices.11 The second is that leaving mass media free to publish what they like ensures a diversity of perspectives on the public landscape; as John Stuart Mill had it, “only through diversity of opinion is there, in the existing state of human intellect, a chance of fair play to all sides of the truth.”12 Only one of these two notions has even a slim chance of surviving the maturation of the social Web, which does a better job than formal news media ever did at ensuring diversity in available perspectives. Since journalists have long lost their monopoly on the means to disseminate information of current public interest, an effective argument for special protections for reporters’ work now must rest on evidence for predictable and generally successfully efforts at achieving accuracy. There is nothing new, of course, about the idea that striving for accuracy is the pre-eminent raison d’être of news professionals. But, as veteran editor Tony Burman observes, journalists’ work no longer automatically earns the respect and status its practitioners have traditionally been able to take for granted – a skeptical public often believes that journalism is inaccurate, either as a result of ineptitude or deliberate untruthfulness.13 Trust may be regained not by mere publication but by demonstrated rigour in verification and the provision of context and analysis, even in an age when speed is valued more than ever. Thus, the argument for press freedom today is harder to make than before, because it rests on a greater burden of responsibility. The press could work harder to make this case. The idea that liberty begets responsibility is an especially tired cliché, but where certain citizens claim special liberties, they must accept, or even welcome, special duties. Journalists who would seek privileged access and treatment – the right to protect a confidential source against subpoenas, or to tweet in courtrooms, or to skip the lines at public events – must rest their claims on evidence for the actual exercise of their special social function. Robert Koopmans, in “Must News Reporters Be Guerilla Lawyers to Protect their Rights? Covering the Canadian Justice System in Small

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Communities,” describes the courage necessary for journalists to be able to stand up for this principle.14 The fact that most news organizations are for-profit businesses is both a blessing and a curse from a press-freedom perspective. On the blessing side, it ensures that accountability is ultimately to the public, rather than to whichever government or interest group subsidizes it. On the other hand, shareholders’ perceptions of their interests are necessarily inclined towards short-term gains rather than long-term loyalties, and as Leigh Felesky demonstrates in “Exploring How Emerging Digital Business Models and Journalistic Innovation May Influence Freedom of the Press,” the push for digital traffic turns news organizations’ costbenefit calculations sharply against solidly researched work on matters of socio-political importance.15 Yet, an ongoing commitment to funding careful and significant reporting continues to inhabit the Canadian news-media ecology through the influence of several organizations that invest heavily in reporting, most noticeably the publicly funded CBC/Radio-Canada and fewer than a handful of exceptionally large newspapers based in central Canada. The press deserves its freedom to the extent that it exercises ethical responsibility and wins audiences’ trust. One aspect of trustworthiness lies in accountability – the ability of the public to influence, and to recognize its influence on, the way that journalists work. But the Canadian media’s accountability framework is dismal to non-existent; fewer than a handful of our news organizations provide a space for vigorous reader advocacy and independent-minded critique – for instance, by employing and fully empowering independent ombuds or public editors. Corrections policies vary widely, and few news organizations maximize Twitter’s potential as a mechanism for fast self-correction.16 The dead and dying press councils in most provinces (except for the hybrid publicly- privately funded Quebec Press Council) were replaced in 2016 by a new National NewsMedia Council, whose chance of sustainability remains to be proven.17 A strong accountability framework is, of course, inconsistent with the short-term self-interest of publishers. Weak critique is less of a nuisance than strong critique, while the presence of some kind of accountability structure allows publishers to pass the buck when complaints arise.18 English-speaking journalists worldwide vigorously resist any kind of government involvement in press self-regulation because of the widespread view that governments will inevitably abuse this influence, yet experience in Quebec and in several European jurisdictions suggests

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that governments can indeed be trusted to stay out of the operations of accountability mechanisms that they subsidize. In the UK, public shock over reporters’ flagrant abuses finally forced the British Parliament to introduce (as recommended by the Leveson Commission) a legislated incentive for publishers to sign on to a self-regulating council,19 but so far, there is no sign of government interest in media regulation in Canada. Still, would Canadian citizens en masse confidently assert that Canadian corporate publishers are collectively more committed than governments to the independent provision of accurate information and a diversity of voices? As Lichtenberg insisted decades ago, “If press institutions or their agents have special rights, it is because the people as a whole have granted them; if the people have granted them, it is because doing so is to the benefit of us all.”20 Conversely, if the existence and exercise of these rights don’t “benefit us all,” then the free press rests on shaky pillars. Apart from telling its story better and holding itself to public account, the press could use its freedom more assertively, eschewing self-censorship with the same vigour with which it resists government interference. Especially worthy of defence is the less popular view. Both Tony Burman and Margaret Wente (who could hardly be further apart ideologically) suggested at the conference that no one stifles journalists like journalists stifle themselves, and Burman’s chapter in this volume makes a compelling case for this position.21 There are too many topics that news organizations don’t like to address, and too many public figures who are seemingly above criticism. For press freedom to be meaningful, self-censorship needs to attain the kind of taboo status currently reserved for things like plagiarism or misspelling of people’s names. To explain why news media sometimes hesitate to investigate and critique widely admired figures and institutions (including one another), it is sometimes suggested that Canada is a smaller world, a place where bridges can be so easily burned, leading to career obstacles and lost jobs. But surely journalists, who tend to be so dismissive of cowardice when it’s exhibited by senior civil servants or judges or politicians, should be shocked, rather than tolerant, when it is exhibited by peers. A final thing the press could do to establish media freedom on a firmer footing is to use its own influence to draw attention to the laws and policies that need to change. Yes, indeed – the press could campaign for a freer press! Why not? Every news organization these days is involved in some campaign or other, whether to get a feckless

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mayor fired or a corrupt practice abolished. Why, then, does the press not campaign vigorously for citizens to insist on tighter freedom-ofinformation standards (Suzanne Craig, for example, in “Municipal Access to Information, Delays, and Denials: An Insider’s View,” calls for full delegated authority to become the firm rule for informationaccess coordinators),22 for anti-SLAPP legislation in every province, for a far more open justice system and a loosening of court-reporting rules that insult jurors’ capacity to respect the judicial process and think for themselves? The press campaigns for many changes in public policy; why not call for a much wider, more positive regime of press freedom – not merely for the absence of unnecessary restriction but for the state to actively defend the federal Constitution? (What a radical thought!) During the conference, one of the country’s most famous judges, John Gomery, accused Canadian courts of “judicial cowardice” for failing to promote open justice more vigorously. The quote flared across Twitter but the story was not picked up in a single news report. It was a loud silence; on any matter not perceived as “inside baseball,” such a juicy, provocative quote would have made a headline or two. But it was left to an Australian resident, James Allan, to underline a key point about free expression that had somehow been missed.23 Members of the liberal Canadian press, Allan charged, seem to get exercised about free expression only when their own ability to publish is threatened. But the point of a commitment to free expression is not to defend one’s own voice, but rather to give expression to a fundamental philosophy about how disagreements should be resolved in a peaceful democracy. Where was the phalanx of media-freedom intervenors, Allan asked, when Maclean’s was hauled before human rights commissions over Mark Steyn’s writings on Islam? Certainly, Steyn’s views are, to this writer’s mind as to many others’, disingenuously provocative and plain wrong-headed. But that’s the whole point; a true commitment to a free press is precisely a commitment to defend what Brian MacLeod Rogers once called (in respect of the then-new “fair comment” libel defence) “the right to be wrong-headed.”24 After meeting considerable resistance to publication of the book Animal Farm, with its clearly implied criticism of Britain’s wartime ally, Joseph Stalin, George Orwell wrote this: The issue involved here is quite a simple one: is every opinion, however unpopular – however foolish, even – entitled to a hearing? Put it in that form and nearly any English intellectual will feel that he ought to say

240  Ivor Shapiro “Yes.” But give it a concrete shape, and ask, “How about an attack on Stalin? Is that entitled to a hearing?,” and the answer more often than not will be “No.” In that case, the current orthodoxy happens to be challenged, and so the principle of free speech lapses.25

And when that principle lapses, everyone is diminished. NOTES 1 Cited in John Christian Laursen, “David Hume and the Danish Debate about Freedom of the Press in the 1770s,” Journal of the History of Ideas 59, no. 1 (1998): 167–72. 2 A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175. 3 See chapter 10 of this volume. 4 See chapter 13 of this volume. 5 See Henry’s “Free Expression at 30 – The Search for Respect,” and Gilliland’s “Has Dagenais-Mentuck Seen Its High-Water Mark?” – chapters 6 and 7 of this volume, respectively. 6 See Currie’s “Process Journalism and Responsible Communication: Establishing Real-Time Reporting Practices that Defend against Defamation,” and Adamson’s “Unfettered Social Media versus Government Censorship: Mona Eltahawy’s Twitter Escape as a Test Case for Press Freedom” – chapters 4 and 12 of this volume, respectively. 7 See chapter 8 of this volume. 8 See chapter 3 of this volume. 9 Judith Lichtenberg, “Foundations and Limits of Freedom of the Press,” Philosophy and Public Affairs 16, no. 4 (1987): 329–55; Melville B. Nimmer, “Introduction – Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?” Hastings Law Journal 26 (1975): 639–58. 10 See chapter 14 of this volume. 11 Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper Brothers, 1948), 16; emphasis added. 12 John Stuart Mill, On Liberty (New York: Penguin Books, 1974). 13 See Burman’s “The Real Danger to Press Freedom,” chapter 1 of this volume, 17–18. 14 See chapter 9 of this volume. 15 See chapter 2 of this volume. 16 Kathy English, Bert Bruser, Tim Currie, Rod Link, Craig Silverman, Shauna Snow-Capparelli, and Scott White, Best Practices in Digital Accuracy and

Do Canadians Deserve Press Freedom?  241 Correction (report of the Ethics Advisory Committee of the Canadian Association of Journalists, 6 November 2011), http://j-source.ca/article/ best-practices-digital-accuracy-and-corrections. 17 Lisa Taylor and Ivor Shapiro, “Toward Press Council 2.0: An International Review of Models of, and Alternatives to, the Traditional Press Council,” Proceedings of the Journalism Interest Group, Canadian Communication Association, 5 November 2012, http://cca.kingsjournalism.com/?p=175 18 Ivor Shapiro, “Notes de clôture du Séminaire international sur l’autorégulation des medias,” CPQ Magazine, 23 November 2012, http:// conseildepresse.qc.ca/actualites/chroniques/notes-de-cloture-duseminaire-international-sur-lautoregulation-des-medias/. 19 Defamation Bill 2012–13 (U.K.), 2 (8), http://services.parliament.uk/ bills/2012-13/defamation.html. 20 Lichtenberg, “Foundations and Limits,” 355. 21 Burman, “The Real Danger.” 22 See chapter 11 of this volume. 23 See Allan’s chapter, “The View from Down Under: Freedom of the Press in Canada,” chapter 15 of this volume. 24 Brian MacLeod Rogers, “The Right to Be Wrong-Headed,” Canadian Journalism Project, 3 July 2008, http://post-darwinist.blogspot. ca/2008_07_14_archive.html. 25 George Orwell, “The Freedom of the Press,” Orwell’s Proposed Preface to “Animal Farm” (1943), retrieved 3 November 2014, from http://www. orwell.ru/library/novels/Animal_Farm/english/efp_go.

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Bibliography 261 R. v. National Post, [2010] 1 S.C.R. 477. R. v. O’Brien, [2009] O.J. No. 5357. R. v. O.N.E., [2001], 3 S.C.R. 478. R. v. Puddicombe, [2009], ONSC 92188. R. v. Rafferty, [2012], ONSC, 2745. R. v. R.J.S., [1998] O.J. No. 6519 (Gen. Div.). R. v. Robinson, [1991], P.E.I.J. No. 77. R. v. Schertzer, [2012] O.J. No. 51, 2012 ONSC 227. R. v. Sharpe, [2001] 1 S.C.R. 427. R. v. Squires, [1986] O.J. No. 3081 (Ont. Prov. Offences Ct.) R. v. Tarala, [2009] S.J. No. 785. R. v. Truscott, [2007] O.J. No. 3221. R. v. White, [2010] 3 S.C.R. 374. Roberts v. Bass, [2002] 212 CLR 1. Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11. Simard c. Cloutier, [2005] J.Q. No. 6729. Toronto Star Newspapers v. Canada (Attorney General), [2010] 2 S.C.R. 721. Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188. Vancouver Sun (Re), [2004] 2 S.C.R. 332. Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671. WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420.

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Contributors

The Editors Lisa Taylor is an assistant professor of Journalism at Ryerson University. She is a former lawyer and broadcaster. Cara-Marie O’Hagan was the inaugural director of the Ryerson University Law Research Centre from 2011 to 2013 and is currently VicePresident, Stakeholder and Member Communications at OMERS. The Contributors Gavin Adamson is an assistant professor at the Ryerson School of Journalism specializing in digital media. James Allan is the Garrick Professor of Law at the University of Queensland. He is a native-born Canadian who practised law at a large firm in Toronto and then at the bar in London before moving to teach law in Hong Kong, New Zealand, and then Australia. He has had sabbaticals at the Cornell Law School and the University of San Diego School of Law in the US, and at Osgoode Hall Law School and the Dalhousie Law School (where he was the Bertha Wilson Visiting Professor of Human Rights) in Canada. Allan has published widely in the areas of constitutional law, legal philosophy, and bill of rights scepticism. His latest book, aimed at the educated layperson, is entitled Democracy in Decline (2014). He was elected to the Mont Pelerin Society in 2011. Tony Burman is the former head of CBC News in Canada and of Al Jazeera English in Qatar, and was a Distinguished Visiting Professor of Journalism at Ryerson University between 2014 and 2016. He has been

264 Contributors

an award-winning journalist for more than thirty-five years in Canada, the United States, Europe, and the Middle East. Between 2011 and 2014, he was the Velma Rogers Graham Research Chair in News Media and Technology at Ryerson. In his career, he produced news and documentary programs in more than thirty countries. Jamie Cameron is a professor at Osgoode Hall Law School. Over the last thirty years she has written extensively on freedom of expression and the press, and more generally on the Charter of Rights and Freedoms. Suzanne Craig is a career public servant who is committed to facilitating greater accountability and transparency mechanisms in government. Ms Craig has held various positions at the Province of Ontario, including that of legislative provincial specialist at the Ministry of Labour and Access and privacy coordinator and special projects adviser at the Ministry of the Environment. In 2005, Ms Craig was appointed director of corporate access and privacy at the City of Toronto. She is currently the appointed integrity commissioner for several Ontario municipalities, including the City of Vaughan and the City of Barrie. Tim Currie teaches online journalism at University of King’s College in Halifax, including undergraduate news workshops and a master’s course in social media. He is co-editor of The New Journalist: Roles, Skills, and Critical Thinking (2010). Leigh Felesky has spent her career navigating the world of digital as a journalist, content consultant, and instructor at Ryerson University teaching digital journalism. Her career has spanned digital start-ups, traditional news outlets, and lifestyle content. Through all of these experiences, she remains passionate about evolving and developing business models that support strong digital content and journalism. Bruce Gillespie is an assistant professor in the Digital Media and Journalism program at Wilfrid Laurier University’s Brantford campus. He is also the editor-in-chief of the Canadian Journalism Project and its website, J-Source.ca. Ryder Gilliland is a partner at Blakes Cassels and Graydon LLP. Throughout his professional career he has acted for Canadian and American media defending against defamation actions, fighting publication bans, bringing access to information requests, and advising on matters relating to copyright, criminal and privacy laws, and legal issues specific to the Internet. He is an adjunct professor at Ryerson

Contributors 265

University, where he has taught the “law” component of Ethics and Law in the Practice of Journalism for many years. Ryder is ranked by his peers in the highest “most frequently recommended” category for media and defamation law matters and was recognized in 2010 as one of the leading lawyers in Canada under the age of forty. He is currently the secretary-treasurer of the Canadian Media Lawyers’ Association. Anne-Marie Gingras is a professor of political science at Université du Québec à Montréal. Daniel Henry is a media and entertainment lawyer in an independent law practice (www.danieljhenry.com). In 2012 he left CBC’s law department, having worked there since 1978. As counsel to CBC, he regularly advised those involved in news and current affairs programming across Canada, was involved in litigation to secure open courts and protect the journalistic process, and became known for advocating television camera access to court proceedings. He is a co-founder of Ad IDEM/Canadian Media Lawyers Association, remains on its board as a past president, and is responsible for its website adidem.org. For many years he was chair of the Media and Communications Law Section of the Canadian Bar Association. He wrote the entry for Media and the Law in The Canadian Encyclopedia, and has taught media law across Canada in law schools, journalism schools, and schools of public relations. He has a JD from the University of Toronto Law School (1976) and a BComm from the University of Toronto (1973). Robert Koopmans is a former legal journalist and editor who worked for the now-defunct Kamloops Daily News. He reported on court and legal issues for more than fifteen years. Normand Landry is a professor at Télé-université (TÉLUQ, Université du Québec) and researcher at the Interdisciplinary Research Centre on Communication, Information, and Society (GRICIS). He holds a PhD from McGill University and conducted postdoctoral research projects at Concordia University. Normand’s work focuses on media literacy, social movement theory, law, communication rights, and democratic communications. Ivor Shapiro is an associate professor at Ryerson University, and conducts research into aspects of ethics and excellence in journalism. He chairs the ethics advisory committee of the Canadian Association of Journalism, and was the founding editor of the Canadian Journalism Project J-Source.ca.

266 Contributors

Fred Vallance-Jones is associate professor of journalism at the University of King’s College in Halifax, Nova Scotia. He teaches journalism research, investigative journalism, and data journalism at the undergraduate and graduate levels. He is co-author of Digging Deeper: A Canadian Reporter’s Research Guide and Computer-Assisted Reporting: A Comprehensive Primer, both from Oxford University Press, and a contributor to other texts. He conducts an annual audit of Canadian governments’ performance under freedom-of-information laws, on behalf of Newspapers Canada. Fred’s research interests are in data and investigative journalism and government accountability. He is a former reporter and editor with the Hamilton Spectator and the CBC. He has won or been nominated for numerous journalism awards, including an IRE Award, the Michener Award, and a National Newspaper Award.

Index

NOTE: The letter “t” after a page number indicates a table. 9/11 attacks: media response in aftermath, 19 – 25; policing post9/11, 180, 182 A.G. (Nova Scotia) v. MacIntyre, 102 – 3, 125, 219n31, 234 Abella, Justice Rosalie: on open justice, 108 access to information: in Ashley Smith cases, 104 – 7; aversion to providing, 186 – 95, 234; court records, 152 – 3; Harper government and, 186 – 95; pre-Charter, 102 – 3; process for achieving, 168, 171 – 2 (see also contentious issues management); Supreme Court of Canada rulings on, 157, 171. See also FOI Accurate News and Information Act (AB), 101 – 2 Accurso, Tony, 47 advertising: digital versus print, 33 Afghanistan, conflict: Canadian news media on, 20 – 1 Ahrens, Courtney: on publication bans, 141

Air India trial, 210 – 11 “ambient journalism,” 176 American Society of News Editors social media policy, 69 Anderson, Laura: on lifting publication ban, 139 anti-SLAPP legislation: in Canada's provinces, 54 – 9, 55t; two types of, 57 – 8; in US, 48 “AOL Way, The,” 35 Applegarth, Justice Peter: on defamation law (Australia), 229 Arab Spring: process journalism coverage of, 71 Arthur, André, 85 – 6, 92, 95n7 Asper, Izzy, 22 – 3 Asper, Leonard, 23 Associated Press: NBA game tweet case, 66; social media policy, 68 – 9 audiovisual coverage: about, 112 – 13, 115 – 16; in Supreme Court of British Columbia, 110; in Supreme Court of Canada, 110 Australia, constitutional similarities with Canada, 222

268 Index Backhouse, Constance (author of Carnal Crimes), 139 – 40 Balabanova, Ekaterina: on media and policymaking, 178 Bandidos murder trial, 113 BBC social media policy, 69 Bell Canada, 181 – 2 Bentham, Jeremy: on publicity, 102 Bertrand, Guy: on freedom of expression, 87 Bill 9, Code of Civil Procedure amendment (QC), 55t, 56 – 7 Bill 10, Protection of Public Participation Act (BC), 55t, 56 Bill 25, Protection of Public Participation Act (NS), 55t Bill 83, Protection of Public Participation Act (ON), 54, 55t Bill 102, Public Participation Act (NB), 55t, 56 Bill C-13, 180 – 1 Bill C-304, 227, 232n15 bills of rights, 222 – 4 bin Laden, Osama, 20 BlackBerry, 178, 179 “BlackBerry riots,” 179 Bolt, Andrew, 226 – 7 Boys of St Vincent, The, 123 brand journalism, 37 – 8 breaching publication bans, 136 – 7; R. v. Canadian Broadcasting Corp., 134 – 5 British Columbia: anti-SLAPP legislation in. See under antiSLAPP legislation British North America Act (BNA Act), 101 – 2 Buttry, Steve: on process journalism, 71 BuzzFeed social media policy, 70

camera access to courts, 109 – 13, 118n48 Cameron, David: on media censorship, 179 Canada (Human Rights Commission) v. Taylor, 225 Canada, constitutional similarities with Australia, 222 Canadian Association of Broadcasters: on CRTC CHOI-FM decision, 93 Canadian Association of Journalists (Code of Silence Award), 187 Canadian Broadcast Standards Council (CBSC), 87, 91, 92 Canadian Broadcasting Corp. v. Canada (Attorney General), 109 – 10, 110 – 12, 219n33 Canadian Broadcasting Corp. v. Lessard, 217n14 – 18, 218n27 Canadian Broadcasting Corp. v. The Queen (Dufour case), 108 – 9, 117 – 18n38 Canadian Broadcasting Corporation. See CBC Canadian Broadcasting Corporation v. New Brunswick (Attorney General), 210, 216n12 – 13, 217n18, 218n25 Canadian Centre for Court Technology: on tweeting from court, 115 Canadian Charter of Rights and Freedoms, s. 1, 110, 204 – 6, 207, 214, 215n2, 216n6, 225 Canadian Charter of Rights and Freedoms, s. 2(b): about, 201 – 3; decisions based on (see Supreme Court rulings based on s. 2(b)) Canadian Charter of Rights and Freedoms, s. 8, 206 – 7, 214

Index 269 Canadian Human Rights Act, s. 13, 224, 225, 232n15 Canadian Internet Policy and Public Interest Clinic, 181 Canadian Journalists for Free Expression (Free Expression Report Card), 12n9 Canadian Legal Information Institute (CanLII), 151 Canadian Media Lawyers Association, 151 Canadian Newspaper Association: and access-to-information requests, 161, 193 Canadian Radio-television and Communications Commission. See CRTC Canadian Resource Centre for Victims of Crime, 141 Canan, Professor Penelope: on SLAPPs, 50 Cannon, Justice Lawrence: on free expression, 102 CanWest Global: CBC and, 20, 22 – 5; editorial framework of, 22 – 3 Carnal Crimes: Sexual Assault Law in Canada, 1900 – 1975 (Constance Backhouse), 139 – 40 cartoons of Prophet Mohammad: controversy over, 16 – 17, 19 Carvin, Andy: on process journalism, 71 Cavoukian, Ann: IPC reports by, 168, 170 CBC: Ashley Smith cases and, 104 – 7; CanWest Global and, 20, 22 – 5; search warrant cases, 206 – 8; selfcensorship at, 16 – 17, 24; violation of publication ban, 134 – 5, 137 censorship, 22, 178 – 9, 204. See also

self-censorship in the media; SLAPPs (strategic lawsuits against public participation); surveillance Chander, Anupam, 178 Charter of Rights and Freedoms. See Canadian Charter of Rights and Freedoms Cherry, Don, 21 chilling effect: of Canadian Human Rights Act, s. 13, 224, 225; of interference with newsgathering, 207; of publication bans, 137; of SLAPPs, 51; of threat of litigation, 226 – 7 Chittum, Ryan: on paywalls, 39 CHOI-FM case, 85 – 94 Chrétien, Jean: on invasion of Iraq, 20 CKNU-FM Donnacona, 86 Clinton, Hillary: on Internet freedom, 179 CNN: cuts to news coverage, 18; reporting error (2012), 72 Cockfield, Arthur: on Bill C-12, 181 Code of Civil Procedure amendment, Bill 9 (QC), 55t, 56 – 7 Code of Silence Award (Canadian Association of Journalists), 187 Colabella, Judge Nicholas (US): on SLAPPs, 62n24 commercial interests, 237; media self-censorship and, 18 – 19, 52; in SLAPPs, 51 – 3. See also digital business models common law qualified privilege (Australia), 229 Construction Louisbourg, 47 “content neutrality,” 204 – 5. See also viewpoints, equality of contentious issues management, 160, 168, 170

270 Index “core values” approach, 205 Cory, Justice Peter: on section 2(b), 103 cost-per-impression (CPI) business model: about, 33 – 4; effect on content, 34 – 6 court proceedings. See open justice; publication bans Courts of Justice Act (ON), 109 CPI (cost-per-impression) business model: about, 33 – 4; effect on content, 34 – 6 Creba, Jane, 127 credibility: of journalism, 18; of news media, 18, 26, 28 Cribb, Rob, 172 Criminal Code, s. 486.4, 132 – 3 Criminal Code, s. 517, 125 – 6 Cronkite, Walter: on commercial interests in news media, 19 Crookes v. Newton, 75, 78 CRTC CHOI-FM decision, 85 – 9; reaction to, 93 – 4 CRTC regulations, 86, 90 – 3 Cruickshank, John: on native advertising, 39 Custom Content Group (Globe and Mail), 38 Dagenais v. CBC, 103 – 4, 123, 150 Dagenais-Mentuck test, 150, 154n8; origins of, 123 – 4 Dagg v. Canada, 157, 171 dataveillance, 180 – 2 “deep packet inspection” (DPI), 181 – 2 defamation: free expression and, 204 – 5, 215n3 – 4, 216n5 – 7, 216n9, 221 – 2, 228 – 30; laws, international comparison, 227 – 30; Lyn Millner on, 68; self-representation in

lawsuits, 152; suit against André Arthur, 85 – 6, 95n7; suit against CHOI-FM, 87, 89; Supreme Court of Canada on, 67, 73 – 7 Delacourt, Susan: on public view of media, 187 Demerson, Velma, 139 – 40 Deschamps, Justice Marie: on camera access to courts, 110 – 12 Dickson, Chief Justice Brian: on open justice, 103, 219n31, 225 digital business models: about, 31 – 3, 43 – 4; effect on content, 34 – 6; profitable, 41 – 3 digital tracking, 33 – 4, 35 – 6 DiManno, Rosie: on Harper and media, 190 – 1 Dosanjh, Ujjal, 197n26 Duff, Chief Justice Lyman: on free expression, 102 Dufour case (Canadian Broadcasting Corp. v. The Queen), 108 – 9, 117 – 18n38 Dunderdale, Kathy, 158 Dussault, Anne-Marie: on CRTC CHOI-FM decision, 93 Earle, Guy, 227, 232n20 Eatock v. Bolt (Federal Court of Australia), 226 – 7 Edmonton Journal v. Alberta (Attorney General), 103, 122 – 3 Elmasry, Mohamed, 231n8 Eltahawy, Mona, 175, 177 – 8 Enkin, Esther: on publication bans, 141 Entwistle, Mark: on press freedom and democracy, 193 Facebook, 27, 68 – 9, 178, 179, 180, 182. See also process journalism; social media

Index 271 Fédération Professionnelle des Journalistes du Québec (FPJQ), 47, 93 Fillion, Jean-François, 86, 89, 90 – 2, 93, 96n28 Finley, Doug, 196n20 Fish, Justice Morris: on open justice, 104, 153 FOI (freedom of information). See also access to information; institutional secrecy FOI, municipal laws, 168 – 9, 170 FOI, municipal requests: delays and denials, 167, 168 – 71 FOI, provincial and federal laws, 157 – 64; “quasi exemptions” to, 161; exemptions to, 158; Newfoundland and Labrador, 158; proposed changes to, 162 – 4 FOI, provincial and federal requests: from accountability requesters, 159 – 60; contentious-issues designation, 160; delays and denials, 160 – 2; statistics on delays and denials, 158 – 60 Ford, Rob: and FOI, 172 – 3 Fox News reporting error (2012), 72 free expression: Supreme Court justices on, 102; defamation and, 204 – 5, 215n3 – 4, 216n5 – 7, 216n9, 221 – 2, 228 – 30; as enshrined in s. 2(b), 103, 110; George Orwell on, 239 – 40; Jeremy Bentham on, 102; pre-Charter, 101 – 3; restrictions on (see Dagenais v. CBC; publication bans). See also CHOI-FM case; open justice Free Expression Report Card (Canadian Journalists for Free Expression), 12n9

freedom of expression: essence of, 221 – 2, 239 – 40 freedom of information. See FOI freedom of the press: A.J. Liebling on, 25; as articulated in Charter, 233; as democratic tool, 11, 158, 187, 192 – 4, 218n25, 235 – 6; as distinct from freedom of expression, 201 – 15; first declaration of, 233; need to campaign for, 238 – 9; R. v. Mentuck as victory for, 146 – 7; role of Charter in upholding, 225 – 6, 227, 230; SLAPPs and, 51 – 3; social media as tool for, 175 – 82. See also commercial interests; DagenaisMentuck test freedoms, fundamental (s. 2, Constitution Act, 1982), 84, 94n1 Frulla, Liza: on CRTC CHOI-FM decision, 93 Gale, Chief Justice George: and open justice, 109 Galloway, Gloria: quoting Ann Kothawala, 193 – 4 Garber, Megan: on social media, 70 Gawker experiment, 34 – 5 Genex. See CHOI-FM case Gillet, Robert, 92 Gillmor, Dan: on social media, 70 – 1 Globe and Mail: on CRTC CHOI-FM decision, 39; on media access to government, 186 – 95; native advertising and, 38; paywall policy, 39; protecting sources, 208 Gomery, Justice John: on courts “judicial cowardice,” 239 governments: media access to, 186 – 95; social media and, 175, 177, 178, 179, 182

272 Index Grant v. Torstar Corp., 73 – 7, 229 Gravel, Alain (Société RadioCanada), 47 Greenspon, Edward: on press freedom and democracy, 193 Grewal, Gurmant, 197n26 Grewal, Nina, 197n26 “guerilla lawyers,” 148 – 54 Habermas, Jürgen: “public sphere” concept, 84 Hail, Cory: on digital opportunities, 42 – 3 Hale, Amanda: on native advertising, 38 Harper, Stephen: on invasion of Iraq, 20; media access and, 186 – 95; media descriptions of, 187 – 8; media reporting on, 189 – 92. See also institutional secrecy hate speech laws, international comparison, 224 – 7, 230 Herald Sun (Melbourne), 226 Hermida, Alfred: on Twitter, 176 Howdle, Heather: on lifting publication ban, 140 hyperlinks, Supreme Court of Canada ruling on, 67, 75, 78 Iacobucci, Justice Frank: on publication bans, 124, 146 – 7 Information and Privacy Commissioner (IPC) (ON). See IPC (Information and Privacy Commissioner) (ON) Information Commissioner v. National Defence, 157 Information Diet (Clay Johnson), 41 institutional secrecy: contextualizing, 192 – 5; media reporting of, 187 – 8;

media reporting on, 189 – 92; public indifference to, 186 – 7. See also access to information; FOI (freedom of information) intimidation, legal. See SLAPPs (strategic lawsuits against public participation) IPC (Information and Privacy Commissioner) (ON), 159, 168, 170, 173 Iraq, invasion of: Canadian politicians on, 20; news media support for, 19 – 20 Israeli-Palestinian conflict: media controversy regarding, 21 – 4 “Jane Doe,” 135, 137, 143n11 Jarvis, Jeff: on entrepreneurial journalism, 42; on process journalism, 71, 72, 75, 77 Jobb, Dean: on Grant v. Torstar Corp., 73 Joel, Mitch: on brand journalism, 37 Johnson, Clay (author of Information Diet), 41 judicial process, abuse of. See SLAPPs (strategic lawsuits against public participation) Justice and the Media panel (2006), 110, 118n46 Keller,Bill: on pre-Iraq invasion news coverage, 20 Kimber, Stephen, 22 King Christian VII of Denmark, 233 Kothawala, Ann: on access to information, 193 – 4 Kovach, Bill: on “skeptical editing,” 69; on process journalism, 71 – 2 Krawczynski, Jon, 66, 69, 77 – 8

Index 273 La Forest, Justice Gérard: on newsgathering, 217n15 Ladouceur, Jill, 132, 135 – 6 Lange v. Australian Broadcasting Corporation, 229 Layton, Jack, 21 Le Soleil: on CRTC CHOI-FM decision, 93 – 4 Legault, Suzanne, 163 legislation regarding surveillance, 180 – 1 Lévesque, Gérard D., 85 libel. See defamation lawsuits liberty: George Orwell on, 16 Lichtenberg, Judith: on press accountability, 238 Liebling, A.J.: on press freedom, 25 lifting publication bans: for healing and recovery, 134 – 5, 139; to help others, 139 – 40; impediments to, 135 – 8; to improve justice system, 140 – 1; R. v. R.J.S., 136 Lippmann,Walter: on role of news media, 16 Lott, Susan: on SLAPPs, 50 MacCharles, Tonda, 186 Macdonald, Neil: on post-9/11 pressures on CBC, 23 – 4 MacIntyre, Linden, 102 – 3, 234 Maclean’s, 224 – 5 Marshall, Tom, 158 Martin, Lawrence, 187 McClintic,Terri-Lynne, 128 – 9 McLachlin, Chief Justice Beverley: in Grant v. Torstar, 74, 75; on open justice, 113; on newsgathering, 207, 217n16 – 17; on hate speech, 225 media access to courts. See DagenaisMentuck test; open justice; publication bans

media access to governments: public response to, 186 – 8. See governments, media access to media access to police documentation, 102 – 7, 102 – 9. See also open justice; publication bans media landscape, changing, 18 – 19, 66 – 7, 214 – 15. See also digital business models media monopolies, 25. See also ownership of media MétéoMédia host: CHOI-FM attacks against, 87, 88, 91 – 2 MFIPPA, 168 – 9, 170 Mill, John Stuart: on freedom of expression, 221, 236 Miller, David, 173 Millner, Lyn: on defamation lawsuits, 68 Milwaukee Journal Sentinel social media policy, 70 misogyny, 87, 88, 91 – 2 Mitchell, Bill: on paywalls, 39 Mitchell, Penni: on publication bans, 140 monde parallèle, Le (CHOI-FM), see Montreal Gazette: paywall, 40; social media policy, 70 Morozov, Evgeny: on Eltawahy case, 178 Morsi, Mohamed, 179 Mount Cashel Orphanage (NL), 123 “Mr Big” investigations, 146 Mullins-Johnson case, 110 Municipal Freedom of Information and Protection of Privacy Act. See MFIPPA Murdoch, Rupert, 18 Murphy, Tim, 197n26

274 Index Myers, Steve: on process journalism, 72 Myles, Brian: on SLAPPs, 47 National Post: on CRTC CHOI-FM decision, 93; paywall, 40. See CanWest Global national press council: need for, 25 – 6 National Press Theatre, 186 native advertising, 38 – 9 NBA game tweet case, 66 New Brunswick: anti-SLAPP legislation in (see under antiSLAPP legislation) New York Times social media policy, 70 newsgathering: Charter protection of, 206 – 9, 213 – 14 Newspapers Canada Freedom of Information Audits (2011 and 2012), 158 – 9, 160 notwithstanding clause (s. 33), 222, 231n5 Nova Scotia: anti-SLAPP legislation in (see under anti-SLAPP legislation) O’Brien, Larry, trial of, 113 Obama, Barack, 179 Ontario: anti-SLAPP legislation in (see under anti-SLAPP legislation) Ontario Court of Appeal, 106, 108, 109, 110, 135 open justice: access to court records, 152 – 3; in Ashley Smith cases, 104 – 7; common law origins of, 212; pre-Charter, 102 – 3; Supreme Court of Canada on, 104, 122 – 3, 146, 153, 210 – 11, 218n28, 218n29, 219n31. See also audiovisual coverage; camera access to courts;

Dagenais-Mentuck test; tweeting from court “Operation Scorpion,” 91 Orwell, George: on free speech, 239 – 40; on liberty, 16 Ottawa Citizen: paywall, 40 Owen, John: on transparency, 27 ownership of media, 22, 25, 37 – 8 Pardu, Justice Gladys: on tweeting from court, 114 paywalls, 39 – 41 Pelletier, Vincent: on SLAPPs, 51 Personal Information Protection and Electronic Documents Act, 181 Pew Research Center: on changing media landscape, 18; on selfcensorship, 19 phone-hacking scandal (in UK), 18, 25 police access to media sources, 206 – 8, 217n14, 217n17, 217n18. See also dataveillance Postmedia Network: paywall, 40 pretrial publicity, 127 – 30 Privacy Commissioner of Canada, Office of, 181 – 2 process journalism: about, 70 – 1, 72 – 3; critics of, 72; proponents of, 71 – 2; Supreme Court of Canada on, 67, 73 – 7 Protection of Public Participation Act, Bill 10 (BC), 55t, 56 Protection of Public Participation Act, Bill 25 (NS), 55t Protection of Public Participation Act, Bill 83 (ON), 54, 55t public indifference: to institutional secrecy, 186 – 7 Public Participation Act, Bill 102 (NB), 55t

Index 275

Quan v. Cusson, 73 Quebec: anti-SLAPP legislation in (see under anti-SLAPP legislation) Quebec Charter of Human Rights and Freedoms, 62 – 3n36 Quebec Press Council, 87, 93, 237 Quebec Superior Court: on CHOIFM case, 89

racism, 85 – 6, 95n7 Rafferty, Michael, 129 Rambis, Kurt (coach), 66 Ramsay, Jack, 134 “reasonable limits.” see Canadian Charter of Rights and Freedoms, s. 1 Reid, John, 163 Reporters Without Borders, 93, 178 Research In Motion Inc., 178 responsible-communication defence, 73 – 7, 229 – 30 restrictions on Charter freedoms. See Canadian Charter of Rights and Freedoms, s. 1 Richler, Noah: on war and the media, 21 Robinson, Piers: on government policy and media, 177 Rogers, Brian MacLeod: on freedom of expression, 239 Rosenstiel, Tom: on “skeptical editing,” 69; on process journalism, 71 – 2 Rothstein, Justice Marshall, 225 Ryerson Journalism Research Centre, 26

R. v. Canadian Broadcasting Corp., 134 – 5, 137 R. v. Keegstra, 225 R. v. McClintic, 128 – 9 R. v. Mentuck, 124, 146 – 8; paragraph 38, 146 – 8 R. v. National Post, 206, 208, 219n34 R. v. Puddicombe, 128 R. v. R.J.S., 136 R. v. Rafferty, 129 R. v. White, 126 – 7 Racial Discrimination Act (Australia), 226

Salmon, Felix: on process journalism, 72; on Twitter, 70 Sankoff, Peter: on the Charter, 53 – 4 Saskatchewan (Human Rights Commission) v. Whatcott, 225 Saskatchewan courts: on lifting publication ban, 134 – 5 Saskatchewan Human Rights Code, s. 14(1)(b), 225 Schertzer police corruption trial, 113 search engine optimization (SEO), 44n4 search warrant cases (CBC), 206 – 8

public sphere, 84 – 5; sexual assault cases in, 133 publication bans: on bail hearings, 108, 125 – 7; breaching, 134 – 5, 136 – 7; on court proceedings, 146 – 54; discretionary, 154n8; multiple accused, 127 – 30, 147; opposing, 148 – 54; pre-Charter, 102, 121; research on, 135, 137, 143n11; in sexual assault cases (see sexual assault publication bans); statutory, 125 – 7, 154n8; Supreme Court rulings on, 209, 218n23. See also Dagenais-Mentuck test; lifting publication bans; open justice; tweeting from court publicity: Bentham on, 102 publicly funded media, 41

276 Index self-censorship in the media: about, 16, 238; at CBC News, 16 – 17, 24; commercial pressures and, 18 – 19; mitigating effects of, 25 – 7; Pew Research Center on, 19; post-9/11, 19 – 25; social media and, 67 self-regulation of media, 25 – 6, 237 – 8 Sen, Amartya: on press freedom , 11 Sénécal, Justice Jean-Pierre, 47 SEO (search engine optimization), 44n4 sexual assault publication bans: about, 133 – 4, 142 – 3; complainants' efforts to overcome, 134 – 8; infantilization of complainants through, 137 – 8; lifting (see lifting publication bans); motives to overcome, 138 – 41; multiple complainants, 144n33; in shifting public sphere, 133 Shafia murder trial, 113 Shapiro, Bernard, 197n26 Shapiro, Pamela: on SLAPPs, 58 Sharpe, Justice Robert: on open justice, 106 shock radio. see CHOI-FM case Shoe Store Project, 186 SLAPPs (strategic lawsuits against public participation): about, 47 – 8, 49 – 51, 59 – 60; anti-SLAPP legislation (see anti-SLAPP legislation); limitations of Charter regarding, 53 – 4; origins of, 48, 49; Pamela Shapiro on, 58; and press freedom, 51 – 3; Professor Penelope Canan on, 50; Susan Lott on, 50; US Judge Nicholas Colabella on, 62n24; Vincent Pelletier on, 51 Smith, Ashley, 104 – 7

Sochting, Dr Ingrid, 144n24; on publication bans, 137, 140 social media: governments and, 175, 177, 178, 179, 182; news organizations and, 27, 66 – 70, 66 – 72, 78, 176; surveillance through, 180 – 2; as tool for press freedom, 175 – 82. sSee also Facebook; process journalism; Twitter Spooner, Bill (referee), 66 Stackhouse, John: on paywalls, 39 Star Content Studios (Toronto Star), 38 Stewart, Brian: on transparency, 27; on war and media coverage, 21, 26 Steyn, Mark, 224 – 5, 227, 231n8, 239 strategic lawsuits against public participation (SLAPPs). See SLAPPs subscriptions, digital. See paywalls Supreme Court of British Columbia: on camera access to courts, 110 Supreme Court rulings based on s. 2(b): about, 203 – 6; access-toinformation legislation, 157, 171; camera access to courts, 110, 111; Dagenais-Mentuck test, 121 – 30; interpretive complexities, 94; new technologies, 67, 78, 176; open justice, 104, 122 – 3, 130, 146, 153, 210 – 11; pre-Charter, 101 – 3; publication bans, 209, 218n23; responsible-communication defence, 73 – 7, 229 – 30; summary of, 103 surveillance: through social media, 180 – 2

Index 277 technology. See Facebook; media landscape, changing; process journalism; social media; Twitter The Elements of Journalism (Kovach and Rosenstiel), 69 the fifth estate (CBC): and Ashley Smith cases, 104 – 7 The Globe and Mail v. Canada (Attorney General), 206, 208, 230 Toews, Vic, 180 “Toronto 18,” the, 125 – 6 Toronto Police Service, 135 Toronto Star: on Bill C-13, 181; FOI request, 172; on media access to government, 186 – 95; native advertising and, 38, 39; paywall policy, 40; social media policy, 69 – 70, 78 Toronto Star Newspapers Ltd. v. Canada, 125 – 6, 219n33 Toronto Star Newspapers Ltd. v. Ontario, 150, 153 tracking, digital, 33 – 4, 35 – 6 training, journalistic, 26 transparency in news media, 26 – 7 Truscott (Stephen) case, 110 Tufecki, Zeynep, 177 – 8 Twitter: about, 68, 70, 74, 75 – 6, 182; CNN and, 72; governments and, 177, 178, 179; Mona Eltahawy and, 175, 177 – 8; news

organizations and, 67, 68 – 70, 176, 237; tweeting from court, 113 – 15. See also process journalism; social media US Bill of Rights, 222 Vancouver Province: paywall, 40 Vancouver Stanley Cup riots, 180 Vancouver Sun (Re), 218n29 Vaughan, City of: FOI request, 173 Vickery, Claude, 109 video coverage of court proceedings. See camera access to courts video evidence, 108 – 9. See also Smith, Ashley viewpoints, equality of, 204 – 5, 215n3 – 4, 216n5 – 7, 216n9, 221 – 2. See also freedom of expression Virginia Tech killer “press kit”: controversy over, 17, 19 war, media coverage of, 19 – 22 “war on terror.” See 9/11 attacks, media response in aftermath Webby Awards, 37 Wells, Clyde, 158 What We Talk about When We Talk about War (Richler), 21 WIC Radio Ltd. v. Simpson, 230 Williams, Colonel Russell, 113, 114