This past Wednesday, the Centre for Constitutional Studies hosted a presentation by Matthew Woodley of Reynolds Mirth Richards & Farmer LLP. Woodley has been practicing media law for twelve years and gave a great speech asking, “Do we have a free press in Canada?”
Woodley began his presentation by expanding on this with the idea that free expression is fundamental to our other rights. The rights enshrined in section 2(b) of the Charter guarantee us “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”1. It is important to note that it is not just the rights of the press that are at stake here. Woodley made this point by citing the 1989 landmark Supreme Court of Canada judgment in Edmonton Journal v Alberta (Attorney General), which held that
“freedom of expression "protects listeners as well as speakers". That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.”2
There is strong Canadian jurisprudence that support a free press, specifically with regards to the courts. Woodley specifically mentioned the Dagenais/Mentuck test that limits the extent to which access to court proceedings can be withheld. The best formulation of this test can be found in the SCC's ruling in Toronto Star Newspapers Ltd v Ontario:
The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice3
Additionally, it is important to note that the scope of the test was expanded in the Vancouver Sun reference, which explained that
While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law... is authorized by statute... or under rules of court... The burden of displacing the general rule of openness lies on the party making the application.4
Even with these strong protections in place, Woodley highlighted two particular areas that are in need of reform. The first concerns protections from defamation lawsuits. He specifically mentioned a phenomenon called “libel chill”, which has the effect of increasing the reluctance of journalists to publish pieces that might land them in court, even if there is a public interest in doing so. There are protections to mitigate against this phenomenon, but the manner in which they are applied is sometimes arbitrary, leaving members of the media uncertain as to whether or not they can safely exercise their rights.
The second area of reform mentioned considered confidential sources and “whistleblower protections”. Again, while there are protections in place, they do not have the same status as things like the privilege shared between lawyers and their clients. As a result, cases involving confidential media sources are assessed on a case-be-case basis, again leaving us with arbitrary and uncertain results.
The arbitrary nature of the applications of these protections for journalists is troublesome, and Woodley’s calls for reform would definitely be an improvement, if only to add some predictability. It’s difficult to play the game if you don’t know the rules.
The full video of Mr. Woodley's presentation is available on the Centre for Constitutional Studies' YouTube channel. Please click here to be redirected.
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 2(b) [Charter].
2  2 SCR 1326.
3 2005 SCC 41.
4 Vancouver Sun (Re), 2004 SCC 43 [Vancouver Sun].