The Justice System and the Media

• Author: Mark Bourrie
• Pages: 179-196

179

chapter seven

e Justice System

and the Media

A. BREACH OF INJUNCTION AND

CONTEMPT OF COURT

Journalists don’t have the right to break any criminal law or court

order. As far as black leer law is concerned, there is oen no dierence

between a journalist or any other member of the public. Your Charter

right to cover the news oers you some protection, but you may end up

going through some unpleasant experiences, including being charged

with a criminal oence or contempt of court (which is a common law

oence).

Contempt of court is a serious risk for journalists. A few genera-

tions ago, working journalists’ experience with contempt was almost

always limited to issues related to trial coverage and, in rare cases,

orders to reveal sources. In recent years, more journalists have been

cited for breaching injunctions, usually by being in places where people

(in fact, protesters in all of the recent cases) are barred by a court order.

e law is evolving quickly on this: credible journalists who were doing

their jobs and were caught up in mass arrests have been charged and

held for bail hearings but have not been convicted. e charges against

Amber Bracken and Michael Toledano, accused of civil contempt aer

being arrested while coving an Indigenous rights protest at a western

pipeline construction site, were dropped in 2021, but Bracken and

Toledano did spend some time in jail.

FUNDAMENTAL LAW FOR JOURNALISTS180

Courts will struggle for some time with the denition of “journal-

ist” and with trying to determine whether a journalist has morphed

into an activist. e journalist in me would give colleagues advice that

would conict with my legal advice, so I will leave it at this: know the

risks you are taking, remember that you have a public trust that should

make you think twice about adopting the cause you are covering, ask

yourself if there is any other way to get the story, and work in tandem

with your editors and counsel.

e journalist who risks a contempt of court charge for pushing

journalistic boundaries is a far dierent creature than a reporter who

stumbles into a contempt of court charge for making a basic mistake in

court coverage. If you are covering a court case, be careful. Remember

that an accused person is in a very precarious situation and that they do

have a right to a fair trial. Your media rights are substantially weakened

if you get the story wrong or cross some clear legal lines.

First — and always — if you are unsure about the legality of pub-

lishing information that may be protected by a court order, get legal

advice. You are especially at risk writing about trials that are under way,

and the risk increases when it’s a trial by jury. For example, an Ontario

newspaper that had its best reporter covering a murder trial ended up

charged with contempt of court aer the reporter used material from

older stories to esh out a piece. e reporter mentioned the already

published fact that the accused was an amateur wrestler. e man was

being tried for rst-degree murder for strangling an elderly woman,

but the judge, in a voir dire hearing, had decided the accused’s amateur

wrestling career shouldn’t be allowed as evidence because it might

prejudice the jury. en the story appeared, the judge declared a mis-

trial, convicted the newspaper of contempt of court, and ned it the

cost of the trial, which had nished four days of siing.

In theory, important details of a case become sub judice (under the

consideration of the court) once a suspect is arrested. In reality, sub

judice contempt of court is not a much of a risk until a trial is looming,

and the risk of being cited is much greater if it’s a jury trial.

Here are a few factors to consider regarding sub judice contempt

of court: