Canadian Press Freedom & Legal Frameworks

Court & Legal System Basics

• Key components to understanding the Canadian legal system includes the sources of law, court structure & procedure, legal terminology, and the importance of legal documents.

Freedom of the Press

• Freedom of the press is the right to publish without government restrictions, subject to laws on libel, obscenity, and sedition.
• Freedom of the press holds powerful institutions accountable.
• Section 2(b) of the Canadian Charter of Rights and Freedoms protects freedom of thought, belief, opinion, and expression, including for the press.

Limits on Freedom of the Press

• Freedom of the press is not absolute.
• Freedom of the press must be balanced with the right to a fair trial, protection of reputation, the right to life, liberty, and security, and the right to democratic participation.

Public's "Right to Know"

• There is no legal “right to know" for the public.
• Courts have ruled that journalists cannot compel access to information under Section 2(b) of the Charter.

Sources of Canadian Law

• The rule of law means everyone is equal before the law.
• The Constitution is the supreme law of Canada and includes the Charter.
• Statutes & Regulations are laws passed by Parliament and legislatures.
• Common law (case law) includes legal principles from past court cases.

Defamation

• Defamation is a negative statement about a living person or company that harms their reputation.
• Slander is spoken defamation.
• Libel is printed or broadcasted defamation.
• The three elements of defamation are:
  • A negative statement that is harmful about a person/company.
  • Identification that refers to the plaintiff.
  • Publication that must be shared with a third party.

Canadian Court System

• Higher court rulings are binding on lower courts.
• Courts can declare laws invalid if unconstitutional.
• Appeal courts, like the Supreme Court of Canada, do not hear witnesses; only trial courts do.

Civil vs. Criminal Law

• Civil law deals with private rights, such as contracts and torts, with remedies including money or damages and injunctions.
• Criminal law punishes offenses against the state, like theft and assault, with remedies including fines and imprisonment.

Administrative Tribunals

• Administrative tribunals are quasi-judicial bodies created by statutes to handle specific legal matters, such as the BC Human Rights Tribunal, Immigration & Refugee Board.
• Administrative tribunals reduce court workload, and their decisions can be reviewed for fairness/errors.

Defamatory Meaning

• Courts determine defamatory meaning when something is presumed false and injurious to reputation.
• Statements must lower the plaintiff's reputation in society.
• Mere insults or hurt feelings do not qualify as defamatory.
• Courts assess the plain meaning and overall impression of a statement.

Publication in Defamation

• Publication in defamation includes any communication of a defamatory statement to a third party.
• Repeating a libel is still a libel. Social media platforms may be held liable if they fail to address defamatory contact.
• Hyperlinks alone are not defamation.

Key Defamation Principles

• Mistake is no defense, even if the defendant did not intend to harm someone's reputation.
• Attribution is no protection; repeating someone else's defamatory statement still counts.
• Damages are presumed, and the plaintiff doesn't have to prove financial loss.

Defenses to Defamation

• Truth: the statement must be true or substantially true.
• Fair Comment: opinion on a public matter based on fact.
• Absolute Privilege: applies to statements in court, legislature, and public hearings.
• Qualified Privilege: protects statements made in the public interest, such as police warnings.
• Responsible Communication: protects journalists reporting serious matters responsibly.
• Consent: If the plaintiff agreed to publication, they cannot sue.

Truth as a Defense

• The onus is on the defendant to prove the statement is true.
• Defamation must be true on a balance of probabilities.
• Substantial truth is enough, and minor inaccuracies will not ruin the defense.

Fair Comment

• Fair comment protects opinions on public matters, even if defamatory.
• Fair Comment must be based on facts and an opinion an honest person could hold.
• Malice defeats fair comment; if motivated by spite, it will not be protected.
• Key phrases to signal fair comment are, "In my opinion," "I believe," and "If you ask me."

Absolute & Qualified Privilege

• Absolute privilege protects statements made in court, legislature, and public hearings.
• Lawyers, politicians, and judges are fully protected.
• The media is protected only if they publish full proceedings accurately.
• Qualified privilege protects fair and accurate reports on matters of public interest.
• Reporting on a suspect at large or a public safety warning is an example of qualified privilege
• It can't be motivated by malice.

Responsible Communication

• Responsible communication protects media reporting on serious public interest matters.
• Courts assess the seriousness of allegations, urgency of the report, reliability of sources, and effort to get the other side's response.

Apologies & Defamation

• Apologies do not erase defamation damages.
• Apologies can reduce damages.
• A proper apology must be genuine, express regret, reach the same audience as the defamatory statement, and not repeat the defamation in the apology.

Court Procedures & Criminal Reporting

• Sub judice means "under judicial consideration."
• The media must be careful not to prejudice an ongoing case, especially in criminal reporting.
• Publishing prejudicial content can lead to contempt of court charges.

Types of Criminal Offenses

• Summary conviction is for minor offenses, with a max $2000 fine or 6 months in jail.
• Indictable offenses are for serious crimes, with 2+ years imprisonment, such as murder.
• A hybrid offense that Crown can choose to prosecute as summary or indictable.

Criminal Court Jurisdiction

• Provincial Court handles most criminal cases.
• Supreme Court handles murder, treason, and crimes against humanity.
• In an indictable offense, the accused has options for trial in Provincial Court with a judge alone, in Supreme Court with a judge alone, or in Supreme Court with judge and jury.

Stages of a Criminal Proceeding

• The nine stages of a criminal proceeding are investigation, report to Crown Counsel, arrest & charge, first appearance, bail hearing, additional appearances, trial, sentencing, and appeal.

Arrest & Charge

• A suspect can be arrested without a warrant if caught in the act, with a warrant if issued when suspect evades police, or with an appearance notice like a ticket for minor offenses.
• After an arrest, police file a Report to Crown Counsel (RCC).
• Crown Counsel decides whether to lay charges.
• If approved, Crown issues an Information document.

Bail Hearings

• A bail hearing must occur within 24 hours of arrest.
• Bail is usually granted unless the Crown proves cause to deny it.
• Bail conditions may be imposed such as travel restrictions.

Preliminary Inquiry

• A preliminary inquiry is only for indictable offenses and determines if there is enough evidence for trial.
• The accused can waive this step to go directly to trial.

Criminal Trial Process

• The Crown presents evidence to prove guilt beyond a reasonable doubt.
• The defense may present evidence but is not required to.
• Witnesses testify.
• The judge/jury deliberates and reaches a verdict.
• A "voir dire" is a trial within a trial to determine if certain evidence is admissible.

Sentencing & Appeals

• After a guilty verdict, there is a sentencing hearing where the Crown and defense argue for an appropriate sentence.
• The judge considers similar cases and aggravating/mitigating factors.
• A defendant can appeal, but only certain aspects of the case have automatic appeal rights.

Reporting on Criminal Cases

• Journalists can report on the name of the accused, the charges, and the circumstances and details of the alleged crime.
• Journalists must be cautious about publication bans, which are court-ordered restrictions on reporting, and contempt of court, which is violating sub judice rules.

Types of Publication Bans

• Three main types of publication bans exist.
• Automatic bans are applied by law, such as in youth cases.
• Mandatory Judicial bans must be imposed if requested, such as in sex crime victim cases.
• Discretionary bans are when judges decide based on case circumstances.

Youth Cases & Publication Bans

• The Youth Criminal Justice Act (YCJA) mandates automatic publication bans.
• No identifying details can be published about youth suspects, youth victims or youth witnesses
• Publication bans can be lifted if the youth is sentenced as an adult, or if a youth victim or witness consents after turning 18.

Sex Crimes & ID Bans

• Victim identity bans are mandatory if requested in sex crimes.
• "Any information that could identify the victim or a witness shall not be published."
• Automatic ID bans apply to all underage victims of any crime.

Other Publication Ban Scenarios

• In family law cases, there are no identifying details of children or involved parties.
• For undercover officers, there are no details that could reveal identity.
• For national security cases, there may be discretionary bans.

Sub Judice & Contempt of Court

• Sub judice means reporters should avoid publishing anything that could prejudice a trial.
• Risk increases the closer the case is to trial.
• Truth is not a defense; even accurate reporting can be in contempt.
• Sub judice ends once the verdict is reached.

Breaching Publication Bans

• Breaching publication bans include publishing an undercover officer's first name, using a partial photo of a banned individual, describing a banned individual's physical appearance, and providing layered details that allow for identification.

Contempt of Court Basics

• Contempt of court is a criminal offense where an individual disrespects or disobeys the court.
• Penalties for contempt include fines, jail time, and a criminal record.
• Media companies and journalists have been convicted of contempt in Canada.
• Criminal trials, especially jury trials, have stricter rules than civil cases.
• Common risk areas include pre-trial matters, bail hearings, preliminary hearings, cases involving children, and sex crimes.

Types of Contempt

• Disobeying a court order includes ignoring a court order, such as violating a protest injunction.
• Misbehaving in court includes outbursts and unauthorized recordings.
• Sub judice/media contempt includes publishing material that could influence a jury and prejudice a fair trial.

Sub Judice Rule

• Sub judice contempt publishes anything that poses a real risk of prejudicing a fair trial.
• Sub judice applies from the moment charges are imminent until the verdict.
• The rule is always in force, and journalists must be aware of it.
• Truth isn't a defense; even if true, it risks influencing a jury and is contempt.

Sub Judice - Risk Areas

• Content that can lead to sub judice contempt includes prior convictions, prior charges, damning facts not yet presented in court, eyewitness statements, and confessions.
• The "acid test" for sub judice is asking, "If you were a juror, would hearing this make you more likely to convict?"

When is There a Jury?

• Always assume a jury unless it's a summary conviction case, the accused elected a judge-alone trial, and the verdict has already been reached.
• Once the jury hears something in court, it can be reported.

Copyright Basics

• Copyright is a legal right to publish, reproduce, or distribute an original work.
• Canada does not have common law copyright.
• Copyright only exists by statute under the Copyright Act.
• The types of works that can be copyrighted are written works, music, lyrics, sound recordings, drawings, art, photography, films, choreography, maps, charts, and architectural works.
• Ideas, facts, and pure information cannot be copyrighted.

Duration of Copyright

• Copyright starts when the work is created.
• Copyright ends 70 years after the creator's death.
• After copyright expires, the work enters the public domain and can be used freely.

Copyright vs. Other Intellectual Property

• A patent protects inventions.
• A trademark protects brand names, logos, and symbols.
• Industrial design protects the visual design of objects.
• Integrated circuit topography protects circuit layouts.

Copyright Infringement

• The penalties for copyright infringement include a civil lawsuit with damages for lost profits/reputation, injunctions to stop further reproduction, criminal prosecution with fines and/or jail time, and statutory damages up to $20,000 per work infringed.

Fair Dealing (Copyright Exception)

• Fair dealing allows limited copyrighted material for research & education, criticism or review, news reporting, and parody & satire.
• In news reporting fair dealing, the source, the author, performer, maker, or broadcaster must be included if available.

Fair Dealing Factors (CCH v. Law Society, 2004)

• Factors that determine if a use is "fair dealing" are the purpose – if it is for news or just to improve the story, the amount of use that is necessary, the character or level to which it is widely distributed, and if nature of work was publicly available already .
• Alternatives – Could a different work be used?
• Effect - Does it harm the copyright owner?

Who Owns Copyright?

• The author/creator owns the copyright of a work, unless they sell or assign the rights, or it was created as part of employment, in which case the employer owns it.
• A company can hold assigned copyright for 25 years after the creator's death, then it reverts to the creator's estate.

Moral Rights

• Even if copyright is sold, the creator retains the right to be credited as the author and the right to protect the integrity of their work (no distortion or misuse).
• Moral rights last the same duration as copyright.

Copyright & Journalism

• News cannot be copyrighted.
• Only the expression of the news story can be copyrighted, not the facts.
• Rewriting must involve skill & judgment.
• Journalists need to credit another media source if quoting significant parts of their story or if using their exact wording.

Licensing & Social Media

• Someone can legally use copyrighted work if a fair dealing exception applies or if a license/permission is obtained from the copyright owner.
• Copyright applies to social media content, and permission or fair dealing still applies.

Legal vs. Ethical Journalism

• Legal journalism means following the law, and avoiding defamation and contempt of court.
• Ethical journalism means doing the right thing in reporting, even when the law allows otherwise.

Ethical Journalism Principles

• Key principles of ethical journalism are truth, accuracy, correcting errors, balance, fairness, transparency, independence, avoiding conflicts of interest, respect, diversity, accountability, responsibility, impartiality, integrity, indigenous reconciliation, and awareness of impact.

Challenges to Ethical Journalism

• Common challenges journalists face in ethics include public perception where the public often sees “the media" as a single entity.
• Audiences may not differentiate between responsible media and bad actors when distinguishing ethical journalists.
• There are complex ethical dilemmas where not all ethical decisions have clear answers.
• Journalists should aim to be a shining example of critical thinking, thoughtful reflection, and ethical journalism.

The Ethical Journalism Balance

• The balance journalists must strike is public interest vs. minimizing harm.
• Public interest includes matters that affect society's health, quality of life, security, and governance.
• Minimizing harm means avoiding unnecessary harm to individuals in reporting.

The Public Interest

• The public interest includes detecting or exposing crime and misconduct, protecting public health & safety, fact-checking misleading statements, exposing misuse of public funds and corruption, revealing conflicts of interest in powerful figures, exposing corporate greed, and holding hypocritical public figures accountable.

Minimizing Harm in Journalism

• Types of harm journalism can cause includes intrusion into private lives, unwanted public attention, reporting on people in vulnerable moments, magnifying mistakes or past actions, and altering behavior due to media scrutiny.
• The internet is forever, there are difficulties in removing once it is out.

How to Minimize Harm

• To minimize harm, ask: Is this story in the public interest or just interesting to the public?
• Include only essential details necessary to understand the story.
• Be cautious with naming individuals.
• Respect cultural differences.
• Explain the news process to interviewees, especially youth or crime victims.
• Avoid sensationalism, such as shocking language/images just for attention.
• Consider how the story affects those involved.

Ethical Crime Reporting

• Context explains why a story is important.
• Without context, a story can mislead the audience.
• Different communities experience crime differently, and context ensures accuracy.
• Race/ethnicity/religion should be included in a crime report if it adds critical context, if it helps the audience fully understand the story, and if it is directly relevant, such as in a hate crime or racial discrimination case.

Explore the nuances of Canadian press freedom, its limitations, and defamation laws. Differentiate between slander and libel, and examine court behaviors that could lead to contempt charges. Understand the Canadian legal system.