Court Procedures and Civil Remedies

Court Procedures

• Criminal proceedings have more restrictive reporting due to fair trial and jury influence concerns.
• Civil proceedings resolve disputes between individuals/entities and have less restricted reporting.
• Administrative proceedings handle disputes involving government agencies/regulatory bodies.

Sub-Judice Rule

• "Sub judice" applies when a case is before the courts, requiring media caution, especially in criminal cases, to avoid contempt or trial prejudice.

Civil Procedure: Parties

• Plaintiff vs. Defendant are parties in general civil disputes.
• Petitioner vs. Respondent are parties in judicial reviews.
• Applicant vs. Respondent are parties in family law and injunctions
• Parties can include individuals, corporations, partnerships, and other legal entities.

Civil Remedies

• Civil cases determine liability, unlike criminal cases decide on guilt or innocence.
• Remedies include damages for monetary compensation.
• Remedies include injunctions, being orders to act or not act..
• Remedies include declarations, for clarification of legal status/rights.

Civil Court Jurisdiction in B.C.

• The B.C. Provincial Court (Small Claims Division) handles claims within a certain monetary limit.
• The B.C. Supreme Court handles larger and more complex civil cases.
• The Federal Court handles specific legal matters like intellectual property, maritime law, and disputes involving the federal government.

Key Civil Court Documents

• To start a case in B.C. Supreme Court, one files a Notice of Civil Claim or Petition.
• These are filed by the Plaintiff/Petitioner
• To respond in B.C. Supreme Court, one submits a Response to Civil Claim or Response to Petition.
• These are filed by the Defendant/Respondent
• In Small Claims Court, a case starts with a Notice of Claim, and response is a Reply.

Understanding Pleadings

• Pleadings encompass notices of claims, petitions, and responses.
• Pleadings are one-sided, potentially exaggerated, and unproven.
• Journalists must state that claims in pleadings are unproven to avoid defamation.

Reporting on Pleadings: Best Practices

• State early and often that allegations are unproven.
• Use disclaimer words like "allegedly" or "claims that."
• Use attribution, such as "The plaintiff claims in court documents that..."
• End with a final disclaimer such as "None of the allegations have been proven in court."

Steps in a Civil Proceeding

• The first step is the filing of pleadings, like a Notice of Civil Claim or Response to Civil Claim.
• Second comes discovery which includes document exchange and oral examination.
• Lastly motions/applications are presented with requests for court orders at any stage of proceedings.

Investigative Reporting and Confidential sources

• Investigative reporting is in-depth and time-consuming, uncovering hidden information to expose injustice and corruption.
• Investigative reporting is riskier than spot news due to exposing wrongdoing, with potential for defamation lawsuits, threats and consequences.
• The "responsible communication defence" protects journalists adhering to journalism standards against defamation claims.
• Journalism standards include verifying allegations, considering urgency/public importance, ensuring source reliability, and giving the accused a chance to respond.
• "Meaningfully seeking out the other side" means making major efforts to contact the other side and proving efforts in court.
• Investigative journalists should keep detailed records, record interviews, maintain professional language, corroborate facts, provide a fair chance to respond, and avoid sensationalizing claims to minimize legal risks.

Confidentiality & Source Protection

• An anonymous source has an unknown identity to the journalist.
• Usage is extremely rare and requires verification.
• A confidential source's identity is known to the journalist but kept hidden.
• "Off the record" information by definition cannot be reported, and is only used for corroboration to better understand the story.
• "Not for Attribution" allows reporting the information without naming the source, potentially using a vague description.
• "On Background" allows summarizing information without direct quotes or naming the source.
• It is difficult to guarantee confidentiality, some sources have personal agendas, too many anonymous sources harm credibility, and laws may compel revealing sources so journalists should avoid promising confidentiality unlesss absolutely necessary.
• Four key questions should be asked before granting confidentiality:
• Is the information in the public interest?
• Is the information critical to the story?
• Is the source uniquely placed to provide the information?
• Does the source have a legitimate reason for requiring confidentiality?
• Journalists cannot absolutely guarantee confidentiality, as courts can compel journalists to reveal sources, and sources may be recognized despite alterations.

Source Protection & Legal Considerations

• Courts consider the information's importance to the legal case, freedom of the press, and impact of disclosure on the journalist and source before compelling a journalist to reveal a source.

Privacy & Journalism in Canada

• Canadian law has no single definition of privacy, privacy rights come from statutes and case law, making it a difficult subject for journalists.
• Understandings of privacy include the right to be left alone, to be secure in one's home, and to be free from unwanted interference/publicity.
• Four privacy interests are intrusion into seclusion, public disclosure of private facts, publicity in a false light, and appropriation of name/likeness.
• Invasion of privacy involves prying/intrusion that is offensive to a reasonable person regarding private matters and typically causes mental/psychological distress.
• Canadian laws related to privacy are as follows:
• Personal Information Protection and Electronic Documents Act (PIPEDA)
• Criminal Code
• Broadcasting Act/Regulations
• B.C. Privacy Act
• B.C. Trespass Act
• B.C. Personal Information Protection Act
• Section 184(1) of the Criminal Code addresses illegal recording, where intercepting private communications without consent is an indictable offense that can result in up to 5 years in prison.
• "Private communication" refers to oral/telecommunication where the speaker expects it not to be intercepted.
• "Intercept" includes listening, recording, acquiring from someone else, or learning content indirectly
• Recording conversations can be done legally with the consent of one party.
• Including the journalist
• Ethical considerations for journalists recording include notifying unless there is exceptional circumstances like with CBC policy, and clarifying how recording will be used.
• The Broadcasting Act prohibits airing illegal content, content that promotes hatred, obscene/profane language, false/misleading news, or telephone conversations without prior consent, unless the caller initiated the conversation.
• Legal risks for journalists gathering information include indecent/harassing phone calls which is a breach of Criminal Code s. 372. as well as trespassing laws and civil lawsuits for invasion of privacy.
• B.C. Privacy Act creates a tort for violating privacy, allowing lawsuits without proof of damages if the violation is intentional and unlawful.
• There are exemptions if publication is in the public interest.
• Trespassing involves entering/causing something to enter property, without invitation, and refusing to leave when asked.
• Trespassing is generally a civil matter, however the B.C. Trespass Act allows for summary convictions.
• Entering private property is not trespassing when there is an invitation or no sign/barrier prevents entry.
• Police cannot seize a journalist's notes/recordings unless for materials that prove trespass, not to destroy or keep them.

Shooting Video & Photos

• Journalists can take photos/videos of people without consent if the person is in a public place and it's for news reporting.
• Someone can sue over a photograph if they were in a non-public place, unaware the photo was taken, or their image is used for commercial purposes without consent.
• Ethical concerns for photographing include the fact that just because it's legal doesn't mean it's ethical.
• During the 2023 B.C. wildfires, a CBC photojournalist got permission before taking photos of evacuees as standard practice.
• Ethical considerations apply for interviewing children, and depend on age and maturity as well as the subject matter.
• Other considerations include location, guardians permission and future impact.
• The CBC's policy dictates that parents/guardians usually decide about interviews of children under 15 but children can make their own decisions if no harm is likely.
• Common myths about privacy in journalism include that businesses falsely claim privacy laws prevent them from sharing information.
• In addition, myths include that government privacy laws don't generally apply to journalistic work and organizations use "privacy" as an excuse to withhold non-private information.

Open Court Principle

• The open court principle is the presumption that court proceedings are accessible to the public/media, emphasizing transparency and monitoring administration of justice.
• The open court principle allows journalists access to court hearings, proceedings, and judgments, which informs the public about important legal issues.
• The principle of openness guides judicial decisions to limit media access but courts will consider if limiting access is justified with the Dagenais decision informing how restrictions protect freedom of expression.
• Four types of court orders affect journalists/media.
• Search Warrants allow police to search media premises for evidence related to criminal activity.
• Production Orders require media outlets to produce documents or data related to criminal investigations.
• Injunctions prohibit publishing information or compel specific actions, such as removing content.
• Subpoenas require journalists to testify/present materials related to a case.
• Journalists should consult legal counsel immediately if subject to a court order to understand their rights/obligations.

Section 8 of the Canadian Charter

• Section 8 of the Canadian Charter guarantees the right to security against unreasonable search and seizure, requiring specific procedures and valid reasons to justify a search.
• To obtain a search warrant, police must show reasonable grounds for a criminal offence, evidence at the location, and a clearly described location.
• Police can search media premises with a search warrant if they meet stringent requirements, such as necessity and no other way to obtain information.
• Lessard v. Canada outlines factors for judges issuing search warrants for media premises, balancing state interest in investigating crime against the media's right to gather news.
• A production order is a court order requiring a person to produce documents/data evidence in criminal investigation.
• A judge must have reasonable grounds to believe an offence has been committed, the materials are relevant/will provide evidence, and the person possesses the materials to issue a production order.
• Injunctions prohibit or require actions, preventing journalists from publishing or compelling them to remove content.
• Injunctions are not granted to prevent publication unless the proposed publication is clearly defamatory; a credible defence is sufficient to allow publication.
• Injunctions may be issued in cases involving defamation, breach of contract, breach of confidence/trust, or risk to a fair trial.
• Journalists served with an injunction should call a lawyer to understand implications and receive guidance.
• A subpoena is a judicial order compelling a person to testify or produce documents related to a proceeding.
• Journalists can be subpoenaed if they have relevant information.
• For subpoenas to be valid the materials/testimony must be relevant to the legal case, with no attempt to collect unrelated evidence.

Police Powers & Journalism

• Those with law enforcement powers in Canada are the following:
• Police officers
• Sheriffs and deputy sheriffs
• Immigration officers
• Customs officers
• Prison officials
• Bailiffs
• Specific officials in other government roles
• Police can use reasonable force to execute duties, including arrests and riots, ensuring public safety, the key is justifiable and proportional force.
• Police powers are jurisdiction-specific and cannot exceed role/jurisdiction.
• Military police, cannot arrest civilians under specific circumstances.
• Arrest involves formally taking someone into custody and informing them of their rights, with the potential for charges, while detention temporarily restricts freedom based on reasonable suspicion without formal arrest.
• Requirements for a legal arrest are that the person must be told they are under arrest, the reason must be explained, and the police must touch the suspect or the suspect must voluntarily comply.
• It is best to ask "Am I being arrested or detained?" when approached by police as a journalist, in order to clarify your legal status to determine if you are free to leave.
• Journalists should carry a press pass/business card, proof of status as a journalist, and name/badge number of officers.
• Journalists should not resist a search or seizure, as this can lead to obstruction of justice charges.
• Police can search without a warrant when it's incident to arrest, involves public safety concerns, or with consent.
• Obstructing justice is intentionally interfering with police duties, such as resisting arrest or providing false information.

Journalists' Rights When Dealing with Police

• Journalists need not answer police questions, even if asked, as part of their right to remain silent.
• Journalists have the right to consult a lawyer if arrested/detained; the right to legal counsel.
• Canada does not use Miranda rights, however, individuals informed of their right to legal counsel under Section 10(b) of the Canadian Charter.