The Justice System and the Media

AuthorMark Bourrie
chapter seven
e Justice System
and the Media
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
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.
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:

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