Media Freedom under the Charter

• Author: Paul B. Schabas
• Profession: Blake, Cassels & Graydon LLP
• Pages: 441-478

Media Freedom

under

the

Charter

Paul

B.

Schabas*

A.

INTRODUCTION

This paper examines

the

impact

of the

protection

of

"freedom

of the

press

and

other media

of

communication"

in

section 2(b)

of the

Canadian

Charter

of

Rights

and

Freedoms.1

It

examines,

specifically,

cases dealing

with

the

press

in two

contexts:

(1) the

open

courts

principle;

and (2)

defamation.

Under

the

first

topic, open

courts,

there

has

clearly been

an

expansion

in the

ability

of the

press

to

observe

and

report

on

what goes

on in our

courts

of law

resulting

from

section 2(b)

of the

Charter.

Prior

to the

Charter,

although

the

importance

of the

open courts principle

was

recognized, where

it

conflicted

with

the

right

of an

accused

to a

fair

trial,

the

common

law

required

the

courts

to

prefer

the

right

to a

fair

trial over informing

the

public. That

has now

changed. Neither

the

right

of

the

press

nor the

right

of the

accused

is

paramount.

A

balancing must

take

place,

and

this

has

resulted

in an

expansion

of

court coverage.

On the

other hand,

the

restrictive

pre-Charter

laws relating

to

defamation

have seen

little

change.

In the

cases that have gone

to the

*

Partner,

Blake,

Cassels

&

Graydon

LLP.

I

wish

to

acknowledge

the

comments

of

my

colleagues

Bert

Bruser,

Alison

Woodbury,

Vicki

White,

and

Tony

Wong,

and the

comments

and

assistance

of

Patricia

McMahon,

summer

law

student.

1

Constitution

Act, 1982,

being

Schedule

B to the

Canada

Act, 1982 (U.K.), 1982,

c.

11.

441

442

Paul

B.

Schabas

Supreme Court

of

Canada,

the

Court

has

reaffirmed

that libel

law is,

essentially,

unaffected

by the

Charter.

While there

has

been some recog-

nition

of

Charter

values recently

in

some lower court decisions,

the

Supreme

Court's

decisions

confirming

pie-Charter

libel

law is at

odds

with

its

approach

to

freedom

of

expression

and the

press

in

other con-

texts.

In

effect,

the

Supreme Court

of

Canada

has

taken inconsistent

directions.

It has

recognized

the

important role

—

and the

right

—

of the

press

to

report

on

public institutions such

as

courts,

often

at the

expense

of

reputation

and

fair

trial

interests,

but has

failed

to

recognize

in any

significant

way the

role

— and the

right

— of the

press

to

comment

on

actions

of

people holding public

offices

or

engaged

in

matters

of

public

interest where such comment

may

harm

the

reputation

of

individuals.

This inconsistency

is

especially troubling when

it is

contrasted with

the

recognition

in

criminal cases that even

an

explicitly

protected right,

such

as the

right

to a

fair

trial, does

not

override

the

right

of the

press

to

convey

information

to the

public.

B.

FREEDOM

OF

EXPRESSION

AND

THE

PRESS: ORIGINS

A

Charter

of

Rights

that

did not

recognize freedom

of

speech

and

free-

dom of the

press would

be

unthinkable,

but

freedom

of

speech

and

free-

dom of the

press

did not

begin with

the

Charter.

Freedom

of

speech

is at

the

heart

of

democratic principles,

and it is not

surprising that

it

formed

the

first

of

many Amendments

to the

United States Constitution

in

1789,

which provides that "Congress shall make

no law

...

abridging

the

free-

dom of

speech."

As

Brandeis

J.

stated

in

Whitney

v.

California:

Those

who won our

independence

believed

.

..

that public discussion

is a

political duty;

and

that this should

be a

fundamental

principle

of

the

American government. They recognized

the

risks

to

which

all

human institutions

are

subject.

But

they knew that order cannot

be

secured merely through

fear

of

punishment

for its

infraction; that

it is

hazardous

to

discourage thought, hope

and

imagination; that

fear

breeds

repression;

that repression breeds

hate;

that hate menaces sta-

ble

government; that

the

path

of

safety

lies

in the

opportunity

to

dis-

cuss

freely

supposed grievances

and

proposed remedies;

and

that

the

fitting

remedy

for

evil counsels

is

good ones. Believing

in the

power

of

reason

as

applied through public discussion, they eschewed silence

coerced

by law — the

argument

of

force

in its

worst

form.

Recognizing

Media

Freedom

under

the

Charter

443

the

occasional tyrannies

of

governing

majorities,

they amended

the

Constitution

so

that

free

speech

and

assembly should

be

guaranteed.2

While

the

Americans claim

this

freedom

as

their

own,

it

also

has

strong

roots

in

English

and

Canadian law.

As

James

Mill

stated

in

1825 (and

quoted

by the

Supreme Court

in

CBC

v. New

Brunswick):

So

true

it is,

however, that

the

discontent

of the

people

is the

only

means

of

removing

the

defects

of

vicious governments, that

the

free-

dom of the

press,

the

main instrument

of

creating discontent,

is, in all

civilized countries, among

all but the

advocates

of

misgovernment,

regarded

as an

indispensable security,

and the

greatest safeguard

of

the

interests

of

mankind.3

In

Canada,

the

Supreme Court

did not

hesitate

in the

pre-Charter

context

to

find

a way to

declare

ultra

vires

unjust

laws that restricted

political

speech.

The

classic case

is

Reference

Re

Alberta

Statutes,*

in

which

the

Supreme Court struck down

a law

that compelled

newspapers

to

publish government responses

to

criticisms

of its

policies

in an act

enti-

tled

The

Accurate News

and

Information

Act. Recognizing that

the

pream-

ble to the

British North America

Act

provides that "the constitution

of the

Dominion

is to be

similar

in

principle

to

that

of the

United Kingdom,"

the

Court found that

freedom

of

political discussion could

not be

restricted

by the

provinces.

As

Duff

C.J.C.

stated:

The

statute contemplates

a

Parliament working under

the

influence

of

public

opinion

and

public discussion. There

can be no

controversy that

such institutions derive their

efficacy

from

the

free

public

discussion

of

affairs,

from

criticism

and

answer

and

counter-criticism,

from

attack

upon policy

and

administration

and

defence

and

counterattack;

from

the

freest

and

fullest

analysis

and

examination

from

every point

of

view

of

political proposals. This

is

signally true

in

respect

of the

dis-

charge

by

Ministers

of the

Crown

of

their responsibility

to

Parliament,

by

members

of

Parliament

of

their duty

to the

electors,

and by the

elec-

tors

themselves

of

their responsibilities

in the

election

of

their repre-

sentatives.

The

right

of

public discussion

is, of

course,

subject

to

legal restric-

tions; those based upon considerations

of

decency

and

public order,

2 274

U.S.

357

(1927)

at

375-376,

quoted

in New

York

Times

v.

Sullivan,

376

U.S.

254

(1964)

at 270

[hereinafter

Sullivan].

3 CBC v. New

Brunswick

(Attorney

General),

[1996]

3

S.C.R.

480 at

494.

4

[1938]

S.C.R.

100 at

133.