Court Proceedings: Criminal, Civil, Administrative

• There are three main types of court proceedings: criminal, civil, and administrative

Different Court Procedures

• Criminal proceedings have more reporting restrictions because of concerns about fair trials and jury influence
• Civil proceedings resolve disputes between individuals or entities and have fewer reporting restrictions
• Administrative proceedings handle disputes involving government agencies and regulatory bodies

Sub-Judice Rule

• A case is considered "sub judice" once it is before the courts
• The media must be extra cautious about reporting, especially in criminal cases, to avoid contempt of court or prejudicing a trial

Civil Procedure - The Parties

• Parties in a civil case can be individuals, corporations, partnerships, or other legally recognized entities
• 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

Civil Remedies

• Civil cases determine liability, unlike criminal cases, which determine guilt or innocence
• Common civil remedies include damages, injunctions, and declarations
• Damages are monetary compensation
• Injunctions are orders to do or not do something
• Declarations clarify legal status or 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 commence a case in the B.C. Supreme Court, a Notice of Civil Claim or Petition is filed by the Plaintiff/Petitioner
• To respond in B.C. Supreme Court, a Response to Civil Claim or Response to Petition is filed by the Defendant/Respondent
• In Small Claims Court, a Notice of Claim starts the case, and a Reply responds

Understanding Pleadings

• Pleadings include notices of claims, petitions, and responses
• Pleadings are one-sided, potentially exaggerated, and unproven
• Reporters must state that claims in pleadings have not been proven in court to avoid defamation risk

Reporting on Pleadings - Best Practices

• Establish early and often that allegations are unproven
• Disclaimer words like "allegedly" or "claims that" should be used
• Attribution should be used; for example, "The plaintiff claims in court documents that..."
• End with a final disclaimer: "None of the allegations have been proven in court."

Steps in a Civil Proceeding

• Filing of pleadings (e.g., Notice of Civil Claim, Response to Civil Claim) is the first step
• Discovery is the second step and includes document discovery and oral discovery
• Motions/Applications, for court orders at any stage, is the third step

Investigative Reporting

• Investigative reporting is more in-depth and time-consuming than daily news reporting
• It focuses on uncovering hidden information through interviews, research, and corroboration
• Its purpose is to expose injustice, wrongdoing, and corruption to hold power accountable

Risks of Investigative Reporting

• Investigative reporting carries higher stakes because it involves exposing wrongdoing or corruption
• Consequences of allegiatios are greater
• Bad actors may try to discredit or threaten journalists
• There is a higher risk of defamation lawsuits

Defamation and Responsible Communication Defense

• Investigative journalists can use the responsible communication defence, which protects them if they adhere to responsible journalism standards
• Journalism standards include verifying and corroborating serious allegations
• Consider the urgency and public importance of the matter
• Ensure the reliability of sources
• Give the accused a meaningful opportunity to respond

Right of Reply in Investigative Journalism

• "Meaningfully seeking out the other side" means journalists must make major efforts to contact the other side, not just send one vague email or call
• If sued, they should be able to prove they did everything possible to give the subject a fair chance to respond

Minimizing Legal Risks - Journalist's Checklist

• Keep detailed notes, messages, scripts, and emails
• Record interviews whenever possible
• Maintain professional language in notes and reports
• Corroborate facts and question assumptions
• Provide a fair chance for the accused to respond
• Avoid sensationalizing or exaggerating claims

Confidentiality & Source Protection

• An anonymous source is one where the journalist does not know the source's identity; this is extremely rare and must be verified multiple times
• A confidential source is one where the journalist knows the source's identity but keeps it hidden from others

Understanding Off-the-Record Agreements

• Information given "off the record" cannot be reported but can help a journalist understand the story better
• It is only useful for corroboration, not direct publication

Not for Attribution vs. On Background

• Not for Attribution means the journalist can report the information but cannot name the source; a vague description of the source may be used
• On Background means the journalist can summarize the information but cannot use direct quotes or name the source

Ethical Considerations of Using Confidential Sources

• It is difficult to guarantee confidentiality
• Some sources may have personal agendas
• Too many anonymous sources can harm credibility
• Laws may compel journalists to reveal their sources

Key Questions 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?

Can Journalists Guarantee Confidentiality?

• Courts can compel journalists to reveal sources
• Even with blurring and voice alteration, a source's identity may still be recognized

Source Protection & Legal Considerations

• Courts consider the importance of the information to the legal case when deciding whether to compel a journalist to reveal a source
• Also considered are freedom of the press, which is protected by the Charter of Rights, and the impact of disclosure on both the journalist and the source

General Concept of Privacy

• There is no single, all-encompassing definition of privacy in Canadian law
• Three useful ideas to understand privacy are the right to be left alone, the right to be secure in one's home, and the right to be free from unwanted interference or publicity

Four Zones of Privacy Interests

• Intrusion into a person's seclusion, solitude, or private affairs is a privacy interest
• Public disclosure of embarrassing private facts is a privacy interest
• Publicity that places a person in a false light is a privacy interest
• Appropriation of another's name or likeness for someone's advantage is a privacy interest

Invasion of Privacy

• An invasion of privacy involves something like prying or intrusion
• The intrusion must be offensive or objectionable to a reasonable person
• The thing being intruded upon must be private
• The protected interest is primarily mental/psychological

Privacy Law in Canada

• Privacy rights come from statutes and case law interpreting those statutes
• Privacy law is challenging for journalists because it is a patchwork of laws, making it complex to navigate
• Canadian laws related to privacy include the Personal Information Protection and Electronic Documents Act (PIPEDA), the Criminal Code, Broadcasting Act/Regulations, B.C. Privacy Act, B.C. Trespass Act, and B.C. Personal Information Protection Act

Recording Conversations

• Section 184(1) of the Criminal Code addresses illegal recording; intercepting private communications without consent is an indictable offence (up to 5 years in prison)
• A "private communication" is any oral or telecommunication where the speaker expects it not to be intercepted
• "Intercept" means listening to a private conversation, recording it, acquiring it from someone else, or learning its content indirectly
• A journalist can record a conversation legally if one party consents, which can include the journalist
• Ethical considerations include CBC policy to always notify unless there are exceptional circumstances
• Always clarify how the recording will be used

Airing Material

• The Broadcasting Act prohibits journalists from airing anything illegal
• Material that is abusive content that promotes hatred, obscene or profane language, or false or misleading news, should not be aired
• Telephone conversations without prior consent, unless the caller initiated the conversation, cannot be aired

Looking for Information (Newsgathering)

• Legal risks journalists face while gathering information include indecent or harassing phone calls, trespassing laws, and civil lawsuits for invasion of privacy
• The B.C. Privacy Act creates a tort for violating privacy, where a person can sue; no proof of damages is needed, but the violation must be intentional and unlawful
• Exemptions exist for journalism if the publication is in the public interest

Trespassing Laws

• Trespassing involves entering or causing something to enter someone's property without invitation and refusing to leave when asked
• Trespassing is generally a civil matter, but the B.C. Trespass Act allows for summary convictions
• Entering private property is not trespassing with an invitation or if no sign or barrier prevents entry
• Police cannot take a journalist's notes or recordings, but if arrested, they can seize materials to prove trespass

Shooting Video and Photos

• Journalists can take photos/videos of people without consent if the person is in a public place and the image is used for news reporting
• Someone can sue over a photograph if they were not in a public place and unaware the photo was taken, or if their image is used for commercial purposes without consent
• Ethical concerns should be considered when photographing people; just because it's legal doesn't mean it's ethical
• A CBC photojournalist got permission before taking photos of evacuees during the 2023 B.C. wildfires

Children in Journalism

• Ethical considerations apply when interviewing children, including age and maturity and subject matter
• For children under 15, parents/guardians usually decide whether to interview them; sometimes, children can make their own decisions if no harm is likely

Privacy Misconceptions

• Common myths about privacy in journalism include that businesses falsely claim privacy laws prevent them from sharing information
• Government privacy laws don't generally apply to journalistic work
• Organizations sometimes use "privacy" as an excuse to withhold non-private information

The Open Court Principle

• The open court principle assumes court proceedings should be accessible to the public, including the media
• It emphasizes transparency and ensures the public can monitor the administration of justice, especially in matters of public interest
• The open court principle is important for journalists because it ensures they have access to court hearings, proceedings, and judgments, promoting transparency in the judicial process
• The principle of openness guides the judicial decision to limit media access or court openness; courts will consider whether limiting access or imposing restrictions on the media is justified; the Dagenais decision informs how these restrictions should be applied to protect freedom of expression

Court Orders Affecting Media

• Search warrants allow the police to search media premises for evidence related to criminal activity
• Production orders are court orders requiring journalists or media outlets to produce documents or data related to criminal investigations
• Injunctions are court orders that prohibit journalists from publishing certain information or compel them to take specific actions, such as removing content from a website
• Subpoenas are legal orders requiring journalists to testify in court or present materials in their possession related to the case
• Journalists should always consult legal counsel immediately if subject to a court order; court orders can have serious legal consequences

Search Warrants & Charter Section 8

• Section 8 of the Canadian Charter guarantees the right to be secure against unreasonable search and seizure
• The police must follow specific procedures before conducting a search and must have valid reasons, supported by evidence, to justify the search
• To obtain a search warrant, police must demonstrate reasonable grounds to believe that a criminal offence has occurred
• Evidence of the offence is likely to be found at the location to be searched
• The location to be searched must be clearly described
• Police must meet stringent requirements to obtain a search warrant for media premises, such as showing that it is necessary to investigate a crime and that there is no other way to obtain the information
• Lessard v. Canada outlines factors that judges must consider before issuing a search warrant for media premises, ensuring that police use media sources as a last resort

Production Orders for Media

• A production order is a court order requiring a person (including a journalist) to produce or prepare documents or data that may provide evidence in a criminal investigation
• The judge must have reasonable grounds to believe a criminal offence has been or is suspected to have been committed before a judge issues a production order
• The materials to be produced must be relevant and will provide evidence of the crime
• The person named in the order must possess the materials

Injunctions Against the Media

• An injunction is a court order that either prohibits or requires certain actions
• In media law, injunctions can prevent journalists from publishing specific stories or can compel them to take actions like removing certain content
• Courts generally do not issue injunctions to prevent publication unless the proposed publication is clearly defamatory; if a journalist can mount a credible defence, the court will likely allow the publication to proceed
• Injunctions might be issued in cases involving defamation, breach of contract, breach of confidence or trust, or risk to a fair trial
• A journalist should call a lawyer immediately if served with an injunction

Subpoenas for Journalists

• A subpoena is a judicial order compelling a person to testify in court or produce documents related to a legal proceeding
• Journalists can be subpoenaed to testify in court or provide materials in their possession that are relevant to an ongoing investigation or legal proceeding
• The subpoenaed materials or testimony must be relevant to the legal case, and there must be no attempt to collect evidence for an unrelated or improper purpose

Police Powers & Journalists

• Those with law enforcement powers in Canada include police officers, sheriffs and deputy sheriffs, immigration officers, customs officers, prison officials, bailiffs, and certain officials in other government roles
• Police can use reasonable force to execute their duties, including making arrests, suppressing riots, or ensuring public safety; their use of force must be justifiable and proportional to the situation at hand
• Police powers are jurisdiction-specific (e.g., municipal police have power within their own municipalities), and they cannot exceed their role or jurisdiction; military police cannot arrest civilians unless under specific circumstances

Arrest vs. Detention

• Arrest involves the police formally taking someone into custody and informing them of their rights; the person can be charged with an offence
• Detention occurs when the police temporarily restrict someone's freedom to move but do not formally arrest them; detention is based on reasonable suspicion that the person is involved in criminal activity
• For a legal arrest, the person must be told they are under arrest, the reason for the arrest must be explained, and the police must either touch the suspect or the suspect must voluntarily comply with the arrest

Interacting with Police as a Journalist

• A journalist should ask, "Am I being arrested or detained?" to clarify their legal status and help determine if they are free to leave
• Journalists should have a press pass or business card, proof of their status as a journalist, and the name and badge number of officers involved in the interaction
• A journalist should never resist a search or seizure, as this can lead to criminal charges like obstruction of justice

Search & Seizure

• Police may conduct a search without a warrant in certain circumstances
• Police may search incident to arrest
• Police may search when there are public safety concerns
• Police may search with Consent if the person agrees

The Offence of Obstruction of Justice

• Obstructing justice occurs when someone intentionally interferes with the police in the execution of their duties, such as resisting arrest or providing false information

Journalists' Rights When Dealing with Police

• Journalists have the right to remain silent; they do not have to answer police questions, even if asked
• Journalists have the right to legal counsel; they have the right to consult with a lawyer if arrested or detained
• Canada does not use Miranda rights; however, arrested individuals must be informed of their right to legal counsel under Section 10(b) of the Canadian Charter