Canadian freedom of the press trial

In addition, the broadcast media are governed by Canadian Radio-Television and Telecommunication Commission regulations. Since , freedom of the press is constitutionally protected in the Canadian Charter of Rights and Freedoms. Journalists are more likely to commit constructive contempt by publication outside the court than contempt "in the face of the court" by conduct inside the court , except when court rules such as restricting photographing of trials are violated or when reporters appearing as witnesses refuse to disclose sources.

The traditional law of contempt would apply to press reports that are in violation of a court order, scandalize the courts or prejudice a fair trial. The Ontario Court of Appeal has ruled that the offence of scandalizing the courts is contrary to the Canadian Charter of Rights and Freedoms and is unconstitutional. The concept of prejudicing a fair trial must now be interpreted in light of the Supreme Court decision in the Dagenais case, which held that fair trial rights and freedom of expression are to be balanced as equals.

In addition, court reporting must take account of statutory publication bans. Section of the Criminal Code forbids published mention of confessions considered at preliminary inquiries until the accused is discharged or the trial is ended; s provides "Prior to the commencement of the taking of the evidence at a preliminary inquiry, the justice holding the inquiry a may, if the application therefore is made by the prosecutor, and b shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused, c he is discharged, or d if he is ordered to stand trial, the trial is ended" ie, whereas defence requests are automatically acceded to, prosecution involve the exercise of judicial discretion.

Canadian journalists may be compelled to divulge sources of their news stories by courts, parliamentary bodies or properly constituted committees of inquiry. By contrast, no law forbids publication of the names of adults charged with crimes, as the law does in several European countries.

Civil defamation is based on provincial statutes and common law. In most jurisdictions broadcast defamation, though oral, is libel rather than slander. To maintain a libel action 3 conditions must be proved: defamation the words complained of are capable of a defamatory meaning , publication and identification of the claimed libelee.

Defendants may plead truth, fair comment or privilege, or consent to defend themselves against defamation claims. Journalists are able to enjoy only qualified privilege privilege which malice destroys except in fair and accurate reporting of trials. Most libel statutes provide that defendant journalists may avoid paying general but not special damages by making apologies and retractions, provided the libellous statement does not impute a criminal conviction or criminal offence, is not actuated by malice or caused by undue carelessness on the journalists' parts.

Such apologies and retractions must fulfil statutory requirements of prominence and timing. Defamatory, seditious, blasphemous and obscene libel are all forms of criminal libel covered by the Criminal Code. Incitement to the use of force to bring about a change in government may be punished as seditious libel. Maxwell criticized the state trial judge for failing to control the courtroom and to take proper measures against the prejudicial publicity. The court suggested several fair-trial remedies, which included: 1 a continuance to postpone the trial adjournment ; 2 change of venue moving a trial to a new location ; 3 change of venire changing the pool of potential jurors ; 4 admonishing the jury; or 5 sequestration of the jury.

Gag orders were widely used against US media in the early s, although the Sheppard court did not suggest a gag order. In Nebraska Press Association v. Stuart , the US Supreme Court addressed the validity of gag orders. Chief Justice Warren Burger, writing for a unanimous court, stated that before issuing a gag order, the trial judge should consider three factors: 1 the nature and extent of pre-trial news coverage; 2 the availability of other measures to mitigate the prejudicial publicity; 3 the effectiveness of the gag order.

Unfortunately, gag orders are occasionally abused to silence the media publication. When a reporter disobeys a court order or shows disrespect for the judicial process, a judge can use the contempt of court proceedings.

In England, the Contempt of Court Act allows judges to use contempt of court when news reporting creates a substantial risk that judicial proceedings will be seriously affected. Open justice is a basic principle in Anglo American judicial proceedings. In Scott v. Scott , Lord Atkinson of Great Britain said that, even if a public hearing would be painful and humiliating, it should be endured.

But this open justice principle does not mean that every trial should be open to the public or the press. In the US, the Supreme Court held that the public and the press have a constitutional right of access to criminal trials under the First Amendment. Despite the right of access, however, the court said trials could be closed under certain extraordinary circumstances.

Alberta Attorney General , 5 D. Coulter , 75 O. In the case of a statutory mandatory publication ban, the balancing of rights to determine the validity of the scheme should take place under section 1, applying the Oakes test Toronto Star Newspapers Ltd. Parliamentary privileges are constitutional and therefore a legislative assembly can regulate access to its proceedings pursuant to its privileges, even if doing so limits the freedom of the press to report on such proceedings N. Broadcasting Co.

Boudria, et al. Freedom of expression and freedom of the press do not encompass a broad immunity for journalists from either the production of physical evidence relevant to a criminal offence or against disclosure of confidential sources.

Therefore, a judicial order to compel disclosure of a secret source would not in general limit section 2 b , whether in a criminal trial R.

National Post , supra at paragraphs or in the context of civil litigation Globe and Mail , supra at paragraphs A qualified journalist-source privilege exists in the common law and a test that is informed by Charter values is used to determine the existence of privilege on a case by case basis R. National Post , supra , paragraphs ; Globe and Mail , supra at paragraphs Vice Media Canada Inc. While a private law case is not governed directly by the Charter, the evolution of the common law is to be informed and guided by Charter values Grant v.

Torstar Corp. Cusson , [] 3 S. Simpson , [] 2 S. Section 2 b does not create a privilege in journalists' notes in the context of private litigation Bank of B. Canada Broadcasting Corp. CRTC , [] 2 F. Where judges must implement Charter values in the exercise of their discretion in particular situations, it is not necessary that a party who argues how those Charter values should be applied give constitutional notice Bank of B.

Although the Charter applies to the common law, and although judges should develop the common law in a manner consistent with Charter values R. Pepsi-Cola, supra , section 2 b will not protect persons engaged in private litigation where the limit on the freedom of expression is found in the common law e. For public servants, freedom to express public criticism of government policies is restricted by a common law duty of loyalty to their employer Fraser v.

The purpose of the duty, to promote an impartial and effective public service, has been found to be a pressing and substantial objective Haydon , supra at paragraphs 69 to 75; Haydon , supra at paragraph 45 F.

The duty should restrict freedom of expression minimally and does not demand absolute silence from public servants Osborne, supra; Haydon , supra at paragraph To ensure minimal impairment and proportionality between effect and objective, there is a need to balance the duty of loyalty and the value of freedom of expression Fraser, supra; Haydon , supra at paragraph 67; Haydon , supra at paragraph 45; Alberta Union of Provincial Employees A.

For the purposes of granting an interlocutory injunction in cases of defamation or hate speech, the courts will apply a different test than in Cyanamid American Cyanamid Co. Ethicare Ltd. L , approved in Manitoba Attorney General v. Metropolitan Stores Ltd. Canadian Liberty Net , [] 1 S.

The broad scope of section 2 b means that in most cases the constitutionality of the legislation or the government action will depend on the section 1 analysis. For example, limits are easier to justify where the expressive activity only tenuously furthers section 2 b values, such as in the case of hate speech, pornography or marketing of a harmful product Keegstra , supra ; Whatcott, supra; Rocket, supra ; JTI-Macdonald Corp. Limits on political speech will generally be the most difficult to justify Thomson Newspapers Co.

Restrictions will also be more difficult to justify where they capture expression that furthers artistic, scientific, educational or other useful social purposes Butler, supra. Whether the limit minimally impairs the right to freedom of expression is often the deciding factor in section 2 b cases. A total prohibition on a form of expression will be more difficult to justify than a partial prohibition RJR-MacDonald Inc.

A restriction on expression backed by a civil penalty rather than a criminal sanction such as imprisonment will be considered a less impairing alternative Zundel , supra ; Taylor, supra. Where the limit on freedom of expression is minimal, the court may, in certain circumstances like elections advertising, accept section 1 justifications for this limit based on logic and reason without supporting social science evidence B.

Freedom of Information , supra. You will not receive a reply. For enquiries, please contact us. Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

Similar provisions Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: sections 1 d and f of the Canadian Bill of Rights ; article 19 of the International Covenant on Civil and Political Rights ; article 13 of the Convention on the Rights of the Child ; article 5 d viii of the Convention on the Elimination of All Forms of Racial Discrimination ; article 21 of the Convention on the Rights of Persons with Disabilities ; article IV of the American Declaration of the Rights and Duties of Man.

Purpose The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression Irwin Toy Ltd. Analysis Canadian courts have interpreted section 2 b very broadly, often finding a prima facie breach easily.

Does the activity in question have expressive content, thereby bringing it within section 2 b protection? Canada , [] 1 F. Guignard , [] 1 S. Peterborough City , [] 2 S. Canada Attorney General , [] 3 S. Oakville Town , [] 3 S. Pepsi-Cola Canada Beverages , [] 1 S. Local , [] 2 S. British Columbia Attorney General , [] 2 S. Attorney General of Ontario , 20 O. W, Local v. Kmart Canada Ltd. Local P , [] 2 S. Zundel, supra ; Saskatchewan Human Rights Commission v.

Whatcott , SCC 11 , [] 1 S. New Brunswick School Board No. Canada Human Rights Commission , [] 3 S. Butler , [] 1 S. Canada Minister of Justice , [] 2 S. Barabash , SCC 29 ; communication for the purpose of prostitution Reference re: section and paragraph Lucas, supra at paragraph ; voting Siemens v.

Manitoba Attorney General , [] 1 S.