Canadian Legal System & Reporting

Meet the Instructors

• Dan Getz is the BCIT Associate Dean of BCST & JRN.
• Getz is a former BCIT grad, CBC Exec Producer, and lawyer.
• Rhianna Schmunk is a CBC Senior Writer and News Reporter.
• Schmunk is also the CBC News Deputy Senior Producer of Digital and a BCIT journalism grad.

Course Themes

• The goal is to understand the court and legal systems to ensure effective reporting.

Canadian Legal System

• Sources of law, court structure, legal terms, and legal documents with their significance play a key role.

Good Legal Reporting

• Story selection, how to tell court stories, story structure, and use of language are important for reporters.

Avoiding Legal Risks

• Crucial topics involve criminal and civil legal procedure, defamation law, obtaining legal documents, access to legal proceedings, publication bans, and contempt of court.

Ethics and Risks

• Investigative reporting, confidentiality, privacy, police powers, court orders, copyright, and journalistic ethics all must be considered.

Legal vs. Ethical

• Obeying the law is paramount to avoid risk.
• A gap can exist between what is legal and what is ethical.
• Legality does not automatically equate to ethical practice.

Systemic Racism and Colonialism

• Canada's legal system is systematically racist.
• Indigenous people are shown to be at higher risk of involvement with the criminal justice system based on data.
• People marginalized by race, ethnicity, mental illness, and addiction are disproportionately in the criminal system.

Course Outline

• Course BCST-1331 details are on Hub.
• Contact information, weekly subjects, weekly content, assignments, and readings are valuable.

Evaluations

• Course grades are determined through:
• Three take-home assignments (10% each, 1 week each)
• Two in-class quizzes (15% each)
• One final test (30%)
• Professionalism (10%).

Expectations

• Students are expected to attend class on time and participate respectfully.
• Deadlines must be respected for assignments.
• Students must treat instructors and each other with civility and politeness.
• BCIT reputation should be upheld when encountering people in the real world.
• Do not distract others in class, cheat, or plagiarize.
• AI content generators like ChatGPT are disallowed.

Freedom of the Press

• This is the right to publish without government restriction, contingent upon libel, obscenity, and sedition laws.
• Journalists use the freedom as a means of accountability, holding organizations and people responsible.
• It is protected under the Canadian Charter of Rights and Freedoms, encompassing freedom of thought, belief, opinion, and expression.
• Charter protection applies to governments, government officials, police services, government institutions/entities, and crown corporations.
• Private individuals, private businesses, landlords, and security guards are not protected by the charter.
• A democracy cannot exist without the freedom to express new ideas and debate functionality of public institutions.
• Edmonton Journal v. Alberta emphasizes vitality through concept of free and uninhibited speech permeating all democratic societies.
• Fundamental freedom must be balanced against other important values like right to fair trial.
• Protection of reputation, right to life/liberty/security, and right to democratic participation must be balanced as well.
• A serious juridical status is not found in the public's "right to know."
• Section 2(b) of the Charter doesn't create a constitutional freedom of information act.
• Lepofsky stated, when compelling access to info considered newsworthy; it shouldn't include those who don't wish it released.

Sources of Canadian Law

• The Rule of Law, The Constitution, Statutes and Regulations, and The Common Law all play a role.

The Rule of Law

• This is a historic umbrella principle.
• Everyone is equal before the law, and it applies equally.
• It is also available and clearly stated to all.
• One of the goals is to interpret Canadian legal principles.
• The Charter is based on the supremacy of God and the rule of law.

The Constitution

• British North America Act, Constitution Acts of 1867 and 1982, and the Charter of Rights and Freedoms are included.
• The Constitution includes the role of Prime Minister and Cabinet.
• It requires Governor General to grant Royal Assent, plus PM resignation/dissolution of Parliament upon losing a non-confidence vote.
• Unwritten principles, like federalism, democracy, minority rights, constitutionalism, and judicial independence, are additionally included.

Statutes and Regulations

• Written laws passed by Parliament and legislatures may codify practices or create new laws.
• Only the powers in the Constitution may be used to create those laws.
• Federal jurisdiction covers banking, criminal law, the military, indigenous affairs, and trade (CA 1867 s. 91).
• Provincial jurisdiction covers property, civil rights, licensing, business, and marriage (CA 1867 s. 92).
• Ultra vires laws overstep legislative jurisdiction and can be overturned by a court.
• A litigant challenges a law's constitutionality, and the court can strike it down, but until then, it must be obeyed.
• Regulations are crafted and managed by a minister/ministry.
• These are enacted under authority of an enabling statute.
• License and fine requirements and official forms are involved.
• Regulations tend to receive far less legislative oversight.

The Common Law

• This consists of previously decided cases interpreting the Constitution, legislation, and legal principles.
• Legal precedent is extracted from similar cases and is binding on subsequent courts at the same/lower levels.

Canadian Legal System

• Civil law and criminal law are the two primary areas.

Civil Law

• This addresses private rights (contract disputes, tort claims).
• It differs from Quebec Civil Code and overwhelmingly pays monetary damages from one party to another.
• Injunctions, where a party must do/not do something, and declarations that state ownership of property may be involved.
• There is no imprisonment, and burden of proof follows "balance of probabilities".

Criminal Law

• Conduct offence against society or state is punished.
• Conduct may be a regulatory offence or traditional crime, like theft or murder.
• It punishes by imprisonment or fines and has a "beyond a reasonable doubt” burden of proof.

Court Structure in Canada

• Higher court decisions are binding on lower courts.
• All courts can declare legislation invalid.
• Other jurisdictions decisions do not bind BC courts.
• Legislation can determine the route/right of appeal, which may not follow hierarchy exactly.
• Trial courts hear witness testimony, not the appeal courts and SCC.

Administrative Tribunals

• These are created by statutes and handle rights, remedies and obligations under legislation.
• Human Rights Tribunal, BC Labour Relations Board, Residential Tenancy Board, and Immigration and Refugee Board are examples.
• Procedures are similar to courts but are less formal and more flexible.
• They designed to download decisions, have expertise, and reduce workloads of courts and legislatures.
• Many decisions are reviewable and they can have exclusive jurisdiction.
• Judicial review may occur due to procedural unfairness/unreasonable or incorrect decisions.

Defamation

• Big picture: Defamation is a negative statement about a living person or company.
  • Libel is written and slander is spoken.
• Civil tort with suing but no jail time; common law principles, BC's Act applies.
• Substantial harm must be done, plus an audience must be reached.
• A defendant can demonstrate they weren't targeting the audience or that the statements are non-actionable.
• "Meaning is in the content, not a sound byte", and this is still in criminal code.
• Are these statements defamatory?

1. Willy Pickton is a serial killer.

• Legal and defamatory as true.

2. Poilievre said in Question Period that Trudeau is corrupt. Legal, and likely covered by privileges.
3. J.T. Miller and Elias Pettersson are behaving like whiny babies. Opinion so isn't actionable.

• If so, are they still legally OK? Why?

Defamation Elements

• Three elements of negative statement (reputation harm), identifiability, and public statement.
• Defamation meaning to discredit presumes injury, reputation and falseness harm.
• The plaintiff's discredit is a statement lowering reputation in society.
• Reasonable people understanding is more important than insult.
• The main governing thing is the impression over "isolated words".

Examples of Defamatory Meaning

• "Grassi was arrested in a police sting and charged with soliciting a prostitute. According to police, his arrest occurred in an east-side area known to offer child prostitutes" is an example.
• Prostitution creates a false impression when both parts were true.

Publication

-Defamation must be communicated to a third party to be published.

• If libel is repeated with approval it still makes it defamatory.
• The one who republish is liable.
• Hyperlinkers are not liable, it is not certain about service providers, Twitter or FaceBook, and paper delivery workers.

Publication Key Points

• Mistake and attribution is not a defence.
• Damages are presumed.
• Scientology case damages of $1.6M no defence- no proof for loss of reputation was needed.

Defamation Defences

• The six common law defences are truth, fair comment, absolute and qualified privilege, responsible communication, and consent.

Truth Defence

• Truth is the actus reus to defamation, it has to be a fact not an opinion.
  • There must be some independent evidence of source or documents.
  • Balance of probabilities is the standard, on the defendant to prove.

Truth Examples

• Miller case BCSC 258 in 2003 proves substance.
• Uniforms weren't accurate but Miller took kids to cross burning, which meant what viewer learned was correct so case was dismissed.

Comment Defence

• Public opinions can still be expressed as a defamatory comment.
• The elements of a comment are inference, and deduction, plus the key phrases.
• Must be a factual basis.
• Malice or gain defeats.

Free Speech and Fair Comment

• WIC Radio of Simpson case in 2008 ruled you can express outrageous opinions in Canada.
• The right to free expression is applied
• For example, compare the radio host and Nazi activist.

Absolute Privilege

• Applies to all lawyers, politicians, hearings participants, etc.
• For communications and judicial proceedings
• Media proceeding can can proceed en toto
• Qualified privilege is available for a fair, and accurate report.

Qualified Privilege

• Relies on social, legal or moral duty to make a case to a specific audience
• E.g fair/accurate report, public interest, dangerous crime
• The publication must be accurate in an important public matter to the press.
• Must show fair accurate reporting or a legal duty
• Cannot be motivated by malice.

The Qualified Privilege Problem

• Media which publishes "the world" and outside an interested group causes problems.
• Creates the question of loose and beyond suspect
• Leads into responsible communication.

Responsible Communication

• Defence is common when media reports.
• There should be no chilling effect.
• The court examines objectively if standard if correct.
• Must also mean no republication.
• A Trump dossier for instance.

Defamation

• Defamation can be consented to or mitigated depending on the scenario.
• "I am being called a crook" could be said for public purposes.
• It needs to acknowledge an act.

Four Elements of Defamation

• Negative statement, harm, identification, and published.

Defences:

• Truth
• Fair Comment- A position is held in good faith with underlying facts.
• Absolute Privileges is applied for lawyers and courts
• Qualified Privileges
• Communications that are responsible and not malicious
• Consent of free will