Freedom of the press as a discrete constitutional guarantee.

• Author: Oliphant, Benjamin
• Position: Introduction through II. An Independent Freedom of the Press Framework A. Proposed Framework for Freedom of the Press 2. Inherently Harmful Activity Is Excluded, p. 283-309

While "freedom of the press" is explicitly guaranteed in section 2(b) of the Charter, Canadian courts have tended to treat the term as a superfluity to be protected, if at all, through the related but conceptually distinct notion of freedom of expression. This paper argues that the absence of a discrete analytical framework for press freedom fails to give full meaning to the text of the Charter and is inconsistent with the Supreme Court's own acknowledgment of the vital and unique importance of press freedom within the context of section 2(b). I suggest that the reasons provided for rejecting constitutional protection are typically based on the presumed absence of any workable Charter framework, which the analysis proposed here attempts to supply. To that end, this paper advances a three-step framework for the protection of newsgathering activity and illustrates its operation by applying it to the vexed issue of confidential sources. It concludes by suggesting that adopting a purposive interpretation of press freedom--as a freedom intended to guarantee the public's "right to know"--would ensure that the Court's doctrine matches its rhetoric and that this fundamental freedom is no longer treated as a mere constitutional redundancy.

La liberte de la presse est explicitement garantie par l'article 2(b) de la Charte, mais les cours canadiennes ont tendance a la juger superflue et a la proteger, s'il y a heu, par la notion fiee, mais distincte, de la liberte d'expression. Cet article avance que l'absence d'un cadre analytique de la liberte de la presse empeche de donner au texte de la Charte toute sa signification et est incompatible avec l'importance vitale et singuliere reconnue par la Cour supreme dans le contexte de l'article 2(b). Je suggere que les raisons en faveur de rejeter la protection constitutionnelle sont generalement basees sur l'absence presumee de tout cadre viable de la Charte. Cet article vise a combler ce besoin, en proposant un cadre en trois etapes pour proteger la collecte de nouvelles et en demontrant son operation par l'application a l'epineuse question des sources confidentielles. L'article se termine en suggerant que l'adoption d'une interpretation teleologique de la liberte de la presse--en tant que liberte destinee a garantir le " droit de savoir" du grand public--peut assurer que la doctrine de la Cour corresponde a sa rhetorique et que cette liberte fondamentale ne soit plus consideree comme une redondance constitutionnelle.

Introduction I. The Purpose and Beneficiaries of Press Freedom A. Purpose of Freedom of the Press B. Who is "The Press'? II. An Independent Freedom of the Press Framework A. Proposed Framework for Freedom of die Press 1. Newsgathering for the Purposes of Publication 2. Inherently Harmful Activity is Excluded 3. Activity or Information in the Public Interest 4. Qualifications B. Application of Proposed Framework to Confidential Sources C. Section 1 and Reasonable Limits on Press Freedom III. Arguments Against Constitutionalizing Newsgathering A. The "Entrenchment of All Newsgathering Activity" Slippery Slope B. The "Protecting All Confidential Sources" Slippery Slope C. The "Who is the Press?" Slippery Slope D. The Privilege Framework is Insufficient to Protect Press Freedom E. Toward a Purposive mid Independent Interpretation of Press Freedom Conclusion Introduction

Although "freedom of the press" is expressly articulated in section 2(b) of the Canadian Charter of Rights and Freedoms, (1) Canadian courts have tended to treat the term as one of the Charter's few superfluities: a freedom that is protected largely if not exclusively through freedom of expression writ large. While matters involving directly expressive press activity--like those that arise in defamation (2) and publication ban (3) cases--are naturally enough considered under the freedom of expression rubric, the Supreme Court of Canada has also found a range of nonexpressive press activity to either fall under the free expression umbrella or to escape constitutional status entirely. This process began with "open court" cases in which the press sought access to locations (such as courtrooms) and to court documents, which the Court found implicated "freedom of expression by the press." (4) Likewise, section 2(b) claims involving searches of press premises (5) are considered under the freedom of expression rubric, (6) even though there is no directly expressive activity on the radar. The Court has also frequently referred to "freedom of expression and of the press" (6,7) without distinguishing between the two concepts, and has at times even collapsed the two guarantees explicitly, for instance by referring to press freedom as an "embodiment" of freedom of expression. (8)

The Supreme Court's reluctance to give freedom of the press independent content or meaning under section 2(b) is plainly illustrated by the majority's decision in National Post, (9) a case involving a search warrant and an assistance order obtained by the RCMP in order to gain access to material a confidential source had provided to a journalist. The Court found that while newsgathering was implicit in news publication (which, in turn, constitutes protected press expression), journalist-source relationships or newsgathering activity more broadly should receive no Charter protection. (10) At times, the Court in National Post reduces the entirety of section 2(b) to freedom of expression: the argument for a journalist-source constitutional immunity "is built on the premise that protection of confidential sources should be treated as if it were an enumerated Charter right or freedom. But this is not so. What is protected by s. 2(b) is freedom of expression" (11)

I will argue that this singular focus on expressive freedom in the context of section 2(b) is misplaced, particularly where the press activity in question (such as the protection of confidential source relationships in National Post) involves no directly expressive activity or content whatsoever. While there is no doubt that freedom of expression and freedom of the press are conceptually, textually, and functionally linked in our constitutional framework, (12) this does not necessitate the conclusion that the latter concept should be entirely subsumed by the former. Press freedom has a unique function and plays a distinct role in the constellation of fundamental freedoms, and it deserves to be rescued from its neglected place in our constitutional framework.

In fact, despite the Supreme Court's unwillingness to give press freedom independent Charter consideration, three key principles in the Court's jurisprudence militate against a conception of freedom of the press as a mere adjunct of freedom of expression. First, the Court has repeatedly and consistently extolled the essential and discrete role (13) of the press in facilitating social and democratic discourse, which is the central unifying purpose of section 2(b). (14) According to Justice La Forest in Carson, "[t]he full and fair discussion of public institutions, which is vital to any democracy, is the raison d'etre of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press." (15)

This is not an isolated observation. The Court has recognized that "press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions"; (16) has found that certain information can "only be obtained from the newspapers or other media"; (17) and has stated that it is "the media that, 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." (18) These statements involve a recognition that freedom of the press performs not only a fundamental but a unique function integral to a democratic society--most notably by safeguarding and ensuring the "public's right to know" (19) through newsgathering and dissemination of information--and tend to discredit an overly circumscribed conception of press freedom.

Second, from a constitutional interpretation standpoint, the distinctive function of press freedom appears to be bolstered by the existence of the term "freedom of the press" itself in section 2(b). (20) As Justice McLachlin (as she then was) noted, dissenting in Lessard, "[b]y specifically referring to freedom of the press, s. 2(b) affirms the special position of the press and other media in our society." (21) The assumption that freedom of the press means no more than the availability of freedom of expression to the press (22) renders the press freedom clause effectively vapid (23) and tautological. (24) While jurists and scholars have argued that the US First Amendment--which prohibits abridgement of "freedom of speech, or of the press" (25)--merely intended to protect individuals in their "right to print what they will as well as to utter it," (26) such an interpretation is unappealing in the Canadian context where freedom of expression covers both spoken and written expression (and much else). Thus, even a plain reading of section 2(b) implies that press freedom entails something more than the extension of freedom of expression to reporters.

Admittedly, the...