Law Exam Review PDF

Textbook Notes Part 4: Legal and Ethical Duties Chapter 13: Restrictions on Reporting and Publishing the News Privacy Law in Canada - Anyone who takes any actions that intrude into the privacy or personal life of another person could be sued for invasion of privacy - Pub...

Textbook Notes Part 4: Legal and Ethical Duties Chapter 13: Restrictions on Reporting and Publishing the News Privacy Law in Canada - Anyone who takes any actions that intrude into the privacy or personal life of another person could be sued for invasion of privacy - Publishing a compromising photo of a person or disclosing extracts from a person’s diary-invade privacy - Intrusion upon privacy seclusion: civil action available to compensate victims of deliberate and significant invasions of personal privacy of personal privacy - Recognizes privacy rights are not absolute - Publicizing information or images that portray another person in false light - Would have to be highly offensive to a reasonable person and person responsible would have had to know portrayal was false or done with reckless disregard - Undercover reporting methods may intrude personal privacy - Legislation provides protection for legitimate forms of newsgathering and restrictions on publications do not apply where info is a matter of public interest or considered defamatory Taking and Using Photo and Video - Seek consent before the image is published or boradcast - Photos of crowds are often take from a distance so that individuals are not readily identifiable - Singling someone out could lead to legal action - Artists, politicians and other people whose professional lieves depend on publicity must expect some aspects of personal lives will be in public eye - Consent is required when the public nature or place where a photograph was taken is irrelevant Criminal Voyeurism - Offence to surreptitiously watch, photograph or make a video recording of someone at their home or in a placy where they are entitled to believe their privacy will be respected - Intended to curb excess of paparazzi and tabloid journalism - Punishable up to 5 years for editor or media outlet to possess, sell, publish or distribute images they know was illegally obtained - Offence to watch, photograph or film someone for sexual purpose and defines people are entitled to believe privacy will be respected- bathroom, hotel, room or play where they are expected to be nude or engaged in sexual activity and intentionally catching them in this Recording and Using Photo and Private Conversation - Can make audio of interviews without knowledge of of content of person on line - secretly= illegal unless consent given - Journalists who records under no obligation to inform but must if asked - CRTC: forbid media from broadcasting an interview or conversation conducted on the phone without consent of the person - Unless participant calls in  - Secretly record oral conversations are also illegal without consent Intercepted Cellular Calls - Protects privacy of cellular calls which can be picked up on police scanner - Offense to disclosure the existence of a cellphone conversation unless one of the parties agrees to disclosure - Radiocommunication Act: separate offence to divulge or use cellular calls or information gathered from them without permission - Prohibition does not apply to conversations overheard because communications are expected to be private Disclosing Wiretaps - Outlaws use or disclosure of information collected through wiretap and further prohibits media from disclosing wiretap or intercepted phone conversation exists Trespassing - Entering, crossing or using someone else’s property without permission of owner is a tort and trespasses can be sured for damages - Prosecuted as a summary conviction offence - Offence when person given verbal or written not to enter “no trespassing” are posted - Gives property owner or person to act in defense of property and anyone who takes reasonable steps to remove trespresser from property cannot be convicted of assaulting the intruder- cannot destroy journalists personal property - Walkway of home= invitation to journalists - trespassing= if asked to leave and do not comply- does not include sidewalks or streets - Owner or person in control of a store has the right to order a journalist to leave or a camera operator to stop filming - Journalists who is unsure whether a location is public or private property should ask permission to enter or take steps to contact the owner Trespassing at Night - Could be charged with offence of trespassing at night - Crime for someone to loiter or prowl on another person’s property if intruder is found near a home or on property - Aimed at peeping Toms and people about to break into a house - Criminal offense- up to six years and max fine of $2000 Stealing Information - Journalists can be charged with stealing a document or possessing a report or document that has been stolen - Confidential information has no value and cannot be stolen - Information stored- is illegal to hack into a computer service or system to access data or programs - Offence to use passwords to hack into a computer system or supply another person to enable them to break into that system Obtaining and Using Confidential Information - Media have the right to publish confidential information from a source- even when source has no right to divulge information or obtained it by illegal means - Courts may have the power to prevent its publication and may even order the information to be returned Making Harrassing Phone Calls - Media do not have the right to hound people relentlessly for information or comment - Crime to make repeated phone calls that are not intended to harass a person Disrupting a Religious Service - Offence to intentially disturb or interrupt an assembly held for religious worship or any gathering for a moral, social, or benevolent purpose - Offence to do anything at or near suc a meeting that disturbs the order or solemnity of the meeting Obscenity or Child Pornography - Based on community standards - Obscene: dominant characterisistic is unave exploitation of sex or undue exploitation of sex when it is linked to crime, horror, cruelty or violence - Offence to disseminate anything of this nature - Exception = the public good is served - 3 categories of pornography seen as obsence: - Depictions of explicit sex acts combined with acts of violence - Explicit sex that subjects people to degrading or dehumanizing treatment - Portrayal of explicit sex that include children Counselling Others to Commit a Crime - Offence to counsel to procure, solicit or incite another person to commit an offence - Media cannot urge members of the public to break the law Hate Propaganda - Crime to publish or broadcast statements that advocate genocide or promote hatred against an identifiable group based on race, colour, relgion, or ethnic origin of the members of the group - Statements inciting hatred must be so extreme that they are likely to lead to civil unrest or acts of retribution against the group - Crown must prove person intended their remarks as inflame hatred - Broadcast CRTC face broader restriction on hate propaganda abusive content Criticsim of Rulings, Judges and Courts - Scandalizing the courts: making comments so extreme and unfair that it may undermine the reputation of an individual judge/court or erode public confidence in fairness of justice system - Criticism should be fair, balanced, and based on fact Obstructing a Police Officier - Offence to do so to someone who is engaged in execution of duty - Peace officier: sherrif, deputies, prison guard, military police, custom agents, fisheries officials - To convict, judge must be satisfied that a journalist conduct inferred with officiers efforts to do their job Newsroom Searches - Can be done if there is reason to believe that a search will yield the evidence needed to help build a criminal case against an offender - Extra precautions on searches to minimize any disruptions to the work of gathering and reporting the news - Police are not entitled to review materials until the courts have decided whether search was justified - Journalists must take no action to thwart a police search and obstruction - Police do not necessarily nedd to be given additional information not featured in search warrant Assistance Orders and Production Orders - AO: requires a person in control of an office or permis being searched to retrieve and hand over images or information be sought after - PO: force journalists to hand over research recordings of interviews to police investigations Chapter 14: Copyright - Copyright not prevents unauthorized use, duplication or public display of previously created work-protection of artistic expression - Journalists and news outlets have automatic protection - Remains in effect 70 years after death of original creator - Does not extend to fact/ideas- only form of expression, “embodiment of idea” - Offence: can be sued for damages, barred from publishing, pirated work and forced to hand over profits earned from sale - Plagiarism- form of intellectual theft Who Owns the News - Freelanced Stories and Images - When sold to media outlet, they are buying the rights and material can only be used once- copyright remains with journalist - Publication must pay subsequent rights to republish article or image - Works by staff writers and Photographers - Employers own the copyright because work is done for paycheck - Can reprint/reuse content - Stock Images - Most have rights solde to them or royalty free - Electronic Rights - Contracts require freelancers whose work was used in electronic forms without their consent, after form and on website  - Staff writers have no claim on electric rights to stories-property of employer Fair Dealing and Moral Rights - FD: journalists can use excerpts or portions of copyrighted work as part of a news report or in course of writing a book review or other form of criticism - Copyright Act: stipulates that redit must be given to the author of material being reproduced - Dealings include use copyrighted material for educational purposed, research, and private study - Courts to determine whether use falls within these exemptions Moral Rights - Retain control over how their work is published or broadcast - So-called moral rights enable a writer to insist o having their by-line placed on the article and the right to remain anonymous or to use a pseudonym - Are infringed id the work is distorted, mutilated or otherwise modified before publication or broadcast - Changes must be sufficient to alter the thirst of work or to belittle the creator - Also if work is used commercially to promote product or service without authorization of its creator Parodies - Parody or satire based on the works of others is protected as a form of fair dealing - Can sometimes lead to allegation of copyright violation Copyright and the Internet - Appears to make copyright obsolete - Original works posted on the internet remain the property of their creators - Copyright or reusing website content - Act of viewing or browsing material posted is a form of copying - Unauthorized copying or reuse of website content other than fair dealing exemptions is a violation of copyright - Must provide credit if reusing small aspect of content - Copyright violation= copy/repost entire article or post via socials Linking and Framing - Linking: defining characteristics of internet enabling users to skip from one site to another with ease - Framing: one website providing a link to another website but displaying content within page design or fram its own site Reproducing Emails and Content Posted to Social Media - Are creations of authors are therefore protected under copyright law - Comments considered fair dealings if: no substantial reuse and source is credited, screenshots can be reproduced  - Posting on social = hard time for copyright Part 3: Restrictions on the Coverage of Courts Commented : yellow= sunday Chapter 9: Publication Bans and Contempt in Civil Criminal Cases blue= monday red= tuesday The Rationale for Publication Bans - Gag Order: court-imposed publication bans and speaks volumes about media attitudes toward restrictions and how journalists feel muzzled by them - Publication bans throw a cloak of secrecy over proceedings, delaying the disclosure of information for months or years and in some cases permanently preventing the facts form being made public - Statutory bands: prevent the disclosure of prejudicial informaiton presented in the pre-trial phases of a prosecution presented or are imposed to protect the privacy of persons connected with the case - Are two types - Mandatory: either automatically in place or are imposed by a judge when a party involved in a case seeks the court’s protection and judge has no choice but to grant the ban. - Left to discretion of the judge - Superior court judges can also create and impose a second form of publication ban as the need arises - Non-statutory ban: inherent power to control proceedings and to ensure justice is done - All are discretionary; judges must strive to achieve a balance between privacy interests and fair- trial rights on one hand and freedom of expression and the imperative of open justice on the other Statutory Bans - Provisions temporarily restrict the broadcast or publication of information that could prejudice a defendant’s future trial - 1980s: new bans introduced to protect the identities of complaints and young witnesses involved in prosecution of sexual offences- now offered to every witness or victim, regardless of the crime - Restrictions of publication should be as limited as possible in scope - Few bans are automatically put in place, the judge must formally impose the ban in the courtroom - Judges have the discretion not to impose certain bans if sought out by the crown but have no choice if the defendant makes the request - Even when a ban is imposed, members of the public are entitled to remain in the courtroom and reporters can take notes for future use - Important right since most bans are delays on publication, not outright prohibitions - Most bans expire when charges are dismissed, defendant pleads guilty or a verdict is reached - Frees the media to report evidence, legal arguments and other previously banned information vital to understanding how the case unfolded Bans on Identities Sex-Related Offences, Extortion, and Loansharking  - Empowers a judge to ban the publication of the mane and any information that could identify the victim of sex-related crimes and witnesses younger than 18 involved in such cases - Designed to encourage victims who support their allegations- to come forward without fear of public embarrassment - Ban applies to charges of sexual assualt, exploitation and interference, indecent assault and some prosititution-related offences - Applies where the allegations pre-date of adoption of a wider definition of sexual assault in 1983 - Allegations of extortion and charging a criminal rate of interest-rate of excess of 60 percent - Empowers a judge to ban the publication of information that could identify a person presented in any form of child pornography - Have a policy of not naming complainants in sexual assualt cases even if no ban is sought or if the victim’s name is discovered in court documents before a ban is requested - The ban has been applied after the victim has been identified in the media - Crown attorneys usually make a notion to have a ban imposed in sexual assault cases during the defendant’s first appearance in court - The ban must be imposed when it is requested by a prosecutor, complainant or young witness and no evidence is needed to justify imposing it - Judges have a duty to inform complainants and witnesses under the age of 18 at the first reasonable opportunity of their right to seek the ban - The judge has option of refusing the request - Some victims do not want their identities shielded - Judges have the power to ban publication of identity of a complainant or witness on their own motion if they consider this step necessary to ensure a fair trail or to maintain proper control of the courtroom - Although ban infringes on media’s right to freedom of expression, the supreme court of canada has ruled that the limitation is justified because it ensure that serious are prosecuted - Ban is permanent unelss rescinded by a judge; victim or witness can never be named, even after person dies but perosn can be identified in media even in connection with other crimes as long as the nres report does not refer to the person as a victim of sex-related offences, loansharking or extortion Lifting the Ban on Identity - Some victims of sexual assault decide to go public about their ordeals - Journalist must bear in mind that the ban is a court order and remains in force despite the wishes of person involved - There is no formal procedure for dealing with request to lift a ban - A judge must be asked to rescind the order and a crown attorney will often agress to make the motion on a victim’s behalf; can rescind a ban only with the consent of both the prosecution and the complainant - When a ban is rescinded, the media must also take care not to publish details that could identify relatives, witnesses or tother persons whose names remain banned from publication - Accused persons are not entitled to apply section 486.4 for order banning the publication of their name and information that could identify them  - Some defendants benefit from anonymity because naming them could identify someone protected under the ban; arises in allegations of incest, offences with someone involved share the same surname or if it involves step-parent, foster parent or common law spouse - May claim that identity of accused must be banned to ensure that victim is not identified - Must be eveidence to support contention that identifying the defendant could identify a complainant or witness - While the goal of protecting crime victims is laudable such secrecy is a major departure from the principle of open justice and public’s right to scrutinize court proceedings - Unless a judge explicitly bans the publication of the defendant’s identity in a sexual assault case, the media can name the accused person as the relationship to the victim is not revealed - If the defendant;s identity is shielded under a wider ban, however, the media are free to report the nature of the relationship between the unnamed parties Victims Under the Age of 18 - Section 486.4 (2.1-3) - Allows a judge to prevent the media from publishing information that could identify the victim of any crime who was younger than 18 when the offence was committed - Judge must impose the ban if a young victim or the prosecutor - A judge must impose a ban to protect the privacy of any young person under the age of 18 who is a witness in a case of child porn or depicted in child porn Victims of Crime and Witness (486.5) - Gives victims and witnesses involved in all crimes the right to seek an order banning the publication of their names and information that could reveal their identities - A prosecutor can make the application for the ban on peron’s behalf - Provision requires judge to weigh the risk to the person’s safety and the goal or encouraging the reporting of crime against the rights to open reporting and freedom of expression - It is not mandatory to impose the ban - Application must be in writing and the judge may direct the applicant to notify others affected by the order that the ban is being sought - Judge may hold a hearing to review the request and must consider several factors before imposing ban: the impact on free expression, security concerns and alternatives to restricting publication - Judge forbids the disclosure of the person’s identity, the contents of application are banned from publication, essentially imposing a blackout on the procedure - Journalist must choose their words carefully if the ban is imposed and make sure that descriptions of victimes and witnesses do not provide enough information to disclose the person’s identity - Few crime victims and witness take advantage of this right to seek anonymity perhaps to avoid triggering a legal battle with the media - Furthermore as judge have ruled that there must be a solid basis for imposing the ban, ther is no guarantee the request will be granted. Justice System Participants (486.5, 2)  - Enable justice and law enforcement officials to apply for an order keeping their identities secret if they are taking place in cases that involve allegations of intimidations, terrorism, spying, or offences by memebers of criminal organizations - Entitled to requests the ban are politicians, judges, lawyers, jurors, court administrators, police officers, prison guards, parole officials, informants and custom officers - Procedures for notifying the media and assessing impact of ban must be followed - As with the expanded ban on identifying crime victims and witnesses there must be compelling grounds for shielding the person’s identity Jurors (631, 31.,6) - Allows prosecutor to apply to have persons called for jury duty referred to in court by a number rather than by name - The judge must be satisfied that the procedure is in the best infterest of administration of justice and necessary to protect the privacy or safety of the members of the jury - When order has been made to use numbers as identifiers, the judge may impose a ban on the publication of information that could disclose a juror’s identity if the ban is necessary for proper administration of justice - Band designed to protect jurors from intimidation or threats is rare but may be sought when suspects are charged with serious violent crimes or have links to a motorcycle gang or other criminal organizations Bail Hearings (517) - Invariably produce information that could prejudice a defendan’t trial-hearsay evidence, descriptions of past crimes and debate over suspectes likeliness to cause more harm - Authorizes a sweeping, temporary publication ban on the proceeding - Although a judge has discretion to deny a prosecutors request for the ban, it must be imposed if the defendant seeks it - Restriction has withstood two media challenges under the charred - Must imposed at defendants request to protect liberty of suspect’s right to fair trial - Court concluded ban prevents prejudicial allegations and evidence from being aired before trial and ensures defendant do not face the additional burder of fighting for a publication ban - Can be imposed on any bail hearing - Covers all evidence and information presented aas well as the submissions of the prosecution and defence lawyers - Prohibits the disclosure judge’s reason for granting or denying bail since ruling will turn on whether there is evidence that suspect is fangerous or will flee - Hearing occurs whether ban is granted or denied and the amound of surety and other conditions of release can be published without violation - Suspect’s name, description of chareces and procedural matters can be reported - Not extend to what is sad or occurs in court room - If a bail hearing is held for multiple suspects and some other don’t, the ban still applies to each of them and to all of the information presented - Remains open to members of the public - Journalists can attend and take notes for future use  - Can be imposed during any time of the hearing - Can also be imposed on other bail proceedings - Hearings to review a judge decision to grant or deny bail - Superior court bail applications heldi in murder cases - Applications to vary the terms of bail - Hearings into violations of bail conditions - Reviews of detention orders - Ban is temporary and remains in force only while defendant’s judge to a fari trial is in jeopardy - No trial, need for ban disappears and media is free to report - Ban expires if defendant is discharged or trial is ordered or if defendant pleas guilty - Media can report bail hearing information once it is presented as evidence at trial and that is when the information is published Preliminary Hearings Ban on Evidence (539) - Is held to assess the strength of crown’s case and defence rarely calls witnesses to provide a balanced picture of the evidence - To ensure the potential jurors are not exposed to distorted and prejudicial information, the judge presiding at the hearing has power to ban publication of evidence taken - Ban has upheld under charter despite restriction on the right to freedom of expression and it applies even if case is not slated to be heard by a jury - Like the restriction on publicizing bail hearings, ban is mandatory if sought by the defendant but is imposed at the discretion of the judge if requested by the prosecution - Order must be requested at the outset- specifies sought prior commencement of taking evidence - The ban restricts the publication of the evidence presented-testimony of witnesses and any information contained in documents presented as exhibits - Media reports can name witnesses who testify and procedural matters such as scheduling and motions - Legal arguments and the judge’s rulings can be reported as long as no evidence is revealed - Journalists can attend and takes notes; ban expires if defendant is discharged or trial ordered once there is a verdict Ban on Confessions and Admission (542) - Offence to reveal that any admission or confession was presented at preliminary hearing - No restriction on attendance or taking notes when confession or statement is being discusses in courtroom - Ban applies to the information contained in a confession or statement and even prohibits the media from reporting that a confession or statement exists - Concern is that members of public will perceive any statement to be an admission of guilt, even though the defendant may be denied responsibility or offered an alibi - No guarantee that information will be admissible as evidence- the judge must hold a hearing to ensure that the statement or confession was not made under duress - Prosecution for violations of this section are rare, no doubt because most preliminary hearigns are subject to overriding ban on publishing the evidence presented  - Ban does not appear to apply at the bail hearing stage Jury Trials and Voir Dire Rule (648) - No information disclosed at voir dire hearing can be published even after the trial is over and regardless of whether a jury is involved - Ban is automatically is far more limited in scope and duration - No information regarding any portion of trial at which jury is not present shall be published before the jury retires to consider its verdict - Wording makes clear the ban is temporary and applies only to jury trials - Common for jurors to be asked to leave courtroom from time to time during trial - Information disclosed at these hearings, which may never be put before the jury has potential to prejudice the defendant’s case - Defence may challenge the vailidaty of a search warrant, argue that police used illegal tactics to obtain a confession or seek to have criminal record or other information excluded as evidence - Ban is intended to ensure that jurors are not influenced by information found to be irrelevant or inadmissible - Jurors are allowed to return to their homes each night during a trial and are sequestered only when deliberations begin - Is an additional safeguard to prevent jurors from being exposed to information that does not form part of a case - Stipulates no information can be revealed-term that encompasses all court business transacted in jury’s absence - Reporting subject or substance of hearing, even in vague terms is sufficient to violate ban - Court officials must ensure they are insulated from news coverage of the case, even if this means covering up newspaper boxes- media can no longer prejudice is defendant’s right to a fair trial ban expires the moment the jury is sequestered - All voir dire proceedings ruled inadmissible cna be published and broadcast - When two or more persons are being tried together,however, the situation is more complicated-if charges stayed ban on voir dire evidence remains in place to protect the trial of remaining - Are convened to settle legal issues and to determine whether evidence is admissible Pre-Trial Hearings in Jury Cases - Enable complex legal issues to dealt with in pre-trial hearings before jury is empanelled - Change raised an important question for media - Code is silent on issue an judes have differing opinions - Media challenges have succeeded in opening some aspects of pre-trial hearings to public scrutiny Evidence of Sexual Conduct - Automatically in place whenever a defendant charged with a sex-related offence applies to introduce evidence of complainant’s sexual history - Media can report defence has asked to present evidence of previous sexual conduct but there is an automatic ban on contents of an application, the legal arguments presented and any evidence of prior sexual actvity put forward  - If a judge agrees to hear the application, the hearing must be conducted in private - Outcome of application determines what information, if any, can be publicly disclosed - If evidence is ruled admissible the result of hearing and judges reasons can be published Confidential Records - Applies to applications for access to private records of complianents or witness - Media can report application has made for access records but the contents of applications are band - In camera hearing to determine whether records are relevant and should be produced - The ban covers the rulings at both stages, but the judge can permit the publication of the outcome of the application after balancing the interests of open justice against “the right to privacy of the person to whom the record relates. Reviews of Mental Fitness of Offenders - The ban covers the rulings at both stages, but the judge can permit the publication of the outcome of the application after balancing the interests of open justice against “the right to privacy of the person to whom the record relates. Search Warrant Documents - The ban covers the rulings at both stages, but the judge can permit the publication of the outcome of the application after balancing the interests of open justice against “the right to privacy of the person to whom the record relates. - publication ban on certain details contained in search warrants if no charges are laid. The provision barred the media from identifying the locations searched, the persons who occupied or controlled those premises, and the identity of anyone named in a search warrant as a suspect in the offence under investigation - Allows judge to seal warrants and associated document if the ends of justice would be subverted by their disclosure or if the information they contain might be used for an improper purpose - Grounds for sealing a warrant include the risk of compromising an ongoing investigation, the need to protect the identity of a confidential informat thre resik of prejudice to the interests of an nnocnent person and possibility that a person engaged in undercover operations will be endangered Restriction on Interviewing Jurors - Makes it an offence for jurors to reveal any information relating to the proceedings of the jury when it was absent from the courtroom - Jurors can discuss what happened in the jury room only if they are questioned by police during an investigation of possible obstruction of justice or if jury tampering charges are laid when called to testify in court Penalties - ban is a summary conviction offence, punishable upon conviction by a maximum fine of $2,000 and up to six months in jail for an individual and by a maximum fine of $100,000 for a corporation (ss 735(1)(b), 787(1)).  - The media have also been prosecuted under a section of the Code that makes it an indictable offence, punishable by up to two years in prison, to disobey a court order.84 A violation can also be prosecuted as a contempt of court, leaving the judge free to impose a higher fine. Non-Statutory Bans Applying the Daenais/Mentuck Test - Right of an accused no longer trump freedom of expression and that these must be balanced when devising bance - Ban must have real and substantial risk to the fairness of the trial and judge satisfied that alternative measures - Benefits must outweigh the harm - Party seeking the ban must prove that the restriction is necessary Notifying the Media - the party seeking a ban to notify the media of an application for a discretionary ban. Any media outlet that responds should be given an opportunity to appear in court to argue against banning publication. When a publication ban is sought, most judges recognize a journalist’s right to rise and request a brief adjournment so that a lawyer can be retained to challenge the ban. Judge-Made Bans Imposed in Criminal Cases - When two or more persons are accused of same crime but seperate jury trials - Typically, to prevent prejudice to future trials, only the names of the co-accused, evidence, and statements suggesting their guilt will be banned from publication and only until all the trials are completed. - Another approach is to impose a so-called sunset ban that comes into effect shortly before a trial and prevents further publication of evidence disclosed at related trials or that has previously appeared in media reports. - A similar approach is taken when a person pleads guilty and is sentenced while one or more co- defendents are awaiting trial - Concerns that publicity will taint furture jury trail also if a defendant faces two or more trials for different offences Change of Venue Applications - Enables court to move trial to another part of provine to protect defendant’s right to fair trial - Must be evidence that pretrial publicity about case so intense or popular sentiment is running so strongly against accused Appeals - Have power to ban publication of evidence or documents but bans rarely imposed Civil Liability for Breaching a Ban - If a publication ban shielding a person’s identity is breached, those responsible could face a lawsuit seeking damages in the civil courts. Publication Bans + Internet - Internet’s instant global reach, disregard for national borders, and ease of retrieving material posted online create new challenges for Canadian courts and lawmakers bent on controlling what’s published about criminal cases before trial (see Figure 9.1). Some judges have questioned whether traditional methods of controlling pre-trial publicity—publication bans and contempt law—have been rendered unenforceable or obsolete. Bans and Canadian Online Media - Publication bans apply to websites and internet positing that originate within canada - Media outlets have been prosecuted for violating publication bans through online report and cases suggests the step news organzations should take to minimize the damage caused when a ban is breached online world - Foreign Media: The US media, accustomed to few restrictions on pre-trial coverage of cases at home, often report banned names and evidence with impunity when reporting on Canadian cases: The name appeared in copies of papers distributed in Canada and on the newspapers’ websites, but no action was taken against the papers involved.116 In most cases, enforcement is impossible. Writers and publishers can be prosecuted for violating a ban only if they are in Canada or agree to come here to face charges.117 - In any event, most US media reports have no impact on a suspect’s right to a fair trial in Canada. - Although Canadian authorities are unable to prosecute foreign media outlets for breaching publication bans, judges have employed other means to prevent banned information from reaching the Internet. Social Media Sites, Blogs and Publication Bans - Applies to anyone who uses internet to post or dissemination information online - Are subject to bans and can be applied - Posting banned information on website or distributing it through social media newsgroups and email has led to criminal charges - Proliferation of social media and posts could violate makes enforcement difficult - Explicitly warn restriction applies to positing and message distributed through social media - Journalists, who must obey the law even when they feel a ban is unnecessary or goes too far, are understandably frustrated at seeing banned information published with impunity. A few media outlets have demanded that the authorities crack down on social media users and overhaul publication bans to take into account the impact of the Internet. Understanding Contempt of Court Preventing Trial by Media - Justice and fairness demand that legal disputes are resolved through an impartial and reasoned consideration of the admissible evidence and the applicable law, not on the basis of rumour, media reports, emotion, or popular opinion. Courts have the power to punish—with a fine or a jail term—anyone who usurps the role of the judge or jury or attempts to influence the outcome of a case. - Law of contempt insulates the process from outside influences by imposing restrictions  - Revealing the criminal record of a person accused of a new crime, disclosing the fact that a suspect has confessed to police, and publishing other evidence that may never be presented in court are the acts most likely to be punished as contempt, especially if published shortly before or during a trial. - Prosecutions are rare. As one media law text observes, technical breaches of the law of contempt “will not inevitably lead to a prosecution. The timing and character of the breach, the size of the community, the place of publication or broadcast or whether the matter is to be decided by a judge or a judge and jury can all have a bearing. - penalty for a conviction is usually a fine, which can range from several hundred dollars for inadvertent acts of contempt to $10,000 for serious interference with the court process. When the report causes a mistrial, some media outlets have been ordered to pay the defendant’s legal costs or the cost of a new trial. Minor violations often draw a stern lecture from the bench and a reminder to the jury to ignore media coverage. Sub Judice Rule - Courts have a duty to ensure that published accounts of cases do not misrepresents the proceedings or prejudice that parties involved until case has been adjudicated or decided - Allegations of contempt through publication are assessed on a case-by-case basis and courts take into consideration all surrounding circumstances making it vital the reporters editors weigh the risks before publications - To find solid ground in the midst of this uncertain area of the law, the writer must assess an array of factors, including the stage of the court proceedings, the nature of the published information or opinions, and their potential to undermine a fair trial. Reports on Arrests and Charges Is the Suspect Linked Directly to the Offence? - Media reports can outline the charges filed against a suspect, reconstruct the events before and after an offence, and describe in detail the crime scene and the investigative work of the police. - Journalists are free to interview and quote anyone who has witnessed a crime or has information about an offence as well as neighbours and co-workers. But care should be taken to distance suspects from their alleged crimes. - The act at the heart of the charges—the shooting, theft, kidnapping, or other offence—should be attributed to an unspecified “man,” “woman,” or “suspect.” The accused person should be identified in a separate paragraph and described as charged “in connection” with the incident or as the person “alleged” to have committed the offence. A Suspect’s Criminal Record and Reputation - It is a fundamental principle of our criminal justice system that people are punished for what they have done, not for who they are. Jurors may never learn that the person on trial has previously been convicted of a crime—this information can be revealed only if the accused person chooses to testify. - In most provinces and territories, the media publish details of an accused person’s criminal record upon arrest, taking the position that there is little risk of prejudicing a trial that is unlikely to be held for a year or more. The Pre-Trial Phase of a Prosecution How Close Is the Trial? - This may well be the single most important factor to take into consideration when assessing the risk of contempt. The same information that was made public without repercussions when an offence was committed, such as the accused person’s reputation or criminal record, is likely to be viewed as prejudicial if republished shortly before or during a trial. Will the Accused Stand Trial Before a Jury? - If a defendant is to be tried by a jury, there is a far greater risk that a media report could be seen as creating a risk of prejudicing a case. - Citizens chosen for jury duty are not accustomed to ignoring information from outside sources when assessing the evidence presented in court, nor are they expected to be immune from such influences. - Jury candidates are sometimes questioned to find out what they know about the case and whether they can assess the evidence with an open mind. - During a trial, judges frequently remind jurors to disregard anything they may have heard about the case through the media. If necessary, the judge can issue specific instructions that certain information or past media reports must be ignored. - There is little risk of contempt, if any, in publishing information about cases that will not be heard by a jury. Judges pride themselves on being immune to publicity; in court, they routinely decide whether evidence is admissible, and, if it is not, they are expected to banish it from their minds when reaching a verdict. The Trail Stage Republishing Background Information on the Case - In reports on a case as it proceeds through the courts, care must be taken when repeating information about a crime or an investigation that was published when the accused was arrested or charged. As noted, timing is a crucial factor in assessing whether information has the potential to create prejudice. It is also risky to repeat eyewitness interviews or crime-scene accounts because this information may be inaccurate or inadmissible as evidence. Criminal Record, Commentary, and Information Not Revealed in Court - Disclosing the accused’s criminal record shortly before or during the trial, unless the information is put before the jury in open court, is likely to cause a mistrial and is almost guaranteed to bring a contempt charge. Retrials are another sensitive area. - Reporting that the accused was convicted of the same charges but won a new trial on appeal, or republishing evidence from the first trial, could influence the second jury. - When a trial is about to start or is under way, writers must guard against the disclosure of information that may never be aired in court. - The maximum penalty for a conviction set out in the Criminal Code should not be reported during a jury trial as this information is never presented to the jurors and may lead them to believe that the accused’s crime is more serious than it actually is.  - There are common-sense limits to this approach. Accusing a witness of lying or a prosecution or defence lawyer of acting maliciously, for instance, is clearly risky. Blatchford’s practice of commenting solely on what jurors have seen or have been - Once the courts have completed their work, a case to prejudice no longer exists. The risk of contempt virtually disappears once the accused pleads guilty, a court delivers a verdict, or the judge stays the prosecution or accepts a Crown motion to dismiss or withdraw all charges. Chapter 10: Publication Bans in Youth Courts and Other Proceedings Bans Under the Youth Criminal Justice Act - Establishes procedures for prosecuting youths between the ages 12 and 17 who are accused of crimes - Media are prohibited from identifying most of persons involved - Stress the need to rehabilitate offenders and reintegrate them into communities while protecting rights including right of privacy Idenifying Accused Persons Ban on Identifying Information - Offence to publish the name of a young person or any other information related to a young person if it would identify that person as bein accused of an offence - Writers must consider whether the young person’s age and neighbourhood can be disclosed in commination with other details particularly in smaller communities - Courts must grapple with privacy of young offenders in publishing rulings-names are replaced with initials and details are obscured - Goal of allowing youths to enter adulthood with a clean slate justified the limit on press Exeception for Serious Crimes - Adult sentences: the media have the right to identify youths if tried as adults - Presumptive offences: over 14 and presumed adult sentence Lifting the Ban - Reach 18, they have right to authorize media to disclose their identitires - Person must no longer be in custody for a youth crime - Can apply under 18 but judge must be satisfied that it is not contrary to person’s best interests - Apprehend Suspects: - To help apprehend a suspect who is considered dangerous, the police can apply for an order allowing the youth’s identity and photograph to be publicized in the media for five days. The ban is reinstated at the end of this period, so media outlets must ensure that images and stories identifying the youth are removed from websites and electronic archives when the order expires. Identities of Young Victims and Witness Ban on Identifying Information - Any information that would identify a child or person under age of 18 who is the victim of a crime prosecuted under act or who is a witness to such offence Lifting the Ban - Have right to authorize the media to disclose their identities if they have the permission of parents or once they have reached age 18 - If deceased, up to parents - Consent of both parents is requires - Allow young witness to apply to youth cort judge to life the ban-must bein best interest Republication Once Ban Lifted - When a young offender, victim, or witness grants permission to be identified or a judge lifts the ban, authorizes other media, once person’s identity has been made public to republish the information without seeking permission or further court approval Permanency of Bans - Absolute and continues after young offender becomes adult - Media are barred from making reference to prior convictions made as a child Penalties for Breaching: - Violating any of the Act’s bans on identifying young persons can be prosecuted as an indictable offence, punishable by up to two years in prison, or as a summary conviction matter. Convictions under the Young Offenders Act were generally punished with a fine. Reporting Restrictions in Civil Cases - can impose publication bans to protect someone’s personal privacy or information considered sensitive or confidential. Legislation in Ontario, for instance, gives provincial and superior court judges the power to exclude the public from the courtroom if there is “the possibility of serious harm or injustice to any person.”16 If a hearing is closed, judges have the power to issue an order prohibiting the disclosure of the information - This principle was reiterated in Dagenais v Canadian Broadcasting Corp.19 Although the Dagenais precedent arose from a criminal proceeding, bans applied in civil cases must strike the same balance between protection of the rights or interests of a party in a case and the guarantee of freedom of expression under the Canadian Charter of Rights and Freedoms. - Before a ban is imposed, three criteria must be met. The ban must be necessary to prevent a real and substantial risk of serious harm to a person or to the fairness of a trial, the court must consider alternatives to restricting publication, and the benefits must outweigh the limit on free expression. In the words of one judge, publication bans in civil cases should “only be granted in a narrow range of circumstances.”21 At least one court has taken the position that the party seeking a ban in a civil case must notify the media and other affected parties who may wish to argue against the proposed restriction. Bans on Identities of Parties and Witnesses - When claim is based on allegations of sexual abuse or conduct with potential to cause humiliation or to seriously judges have banned the publication of information that would identify person at risk  - Granted ban= refer to as initials or pseudonym - Anonymity should be granted sparingly; publicity necessary consequence of benefits derived from public system put in place to serve society - Sensibilities of individuals involved in a case do not justify a departure from principle of openness - Most plaintiffs seeking to recover monetary damages in courts abandon their right to privacy and patients alleging malpractice cannot assert that their medical records are confidential - Evidence of potential harm is necessary to justify ban - Denying ban often cite the need to ensure allegations are subjected to public scrutiny and defendants receive a fair trial - The rationale for shielding defendants is that allegations are easy to make—there is no police investigation to weed out malicious or unsubstantiated civil claims—and may never be proven in court Bans of Evidence - Judges have issued orders in civil cases to ban the publication of testimony or to seal documents filed with the court. - these restrictions can be justified to protect a child, the safety of a witness, the details of a patent, or a company’s trade secrets; they are also justified when “the administration of justice would be rendered impracticable by the presence of the public.”33 The purpose of an action claiming theft of a trade secret or other confidential information, - The Supreme Court of Canada has said that the party seeking to shield evidence or seal documents in a civil action must show that there is a serious risk of exposing confidential information or establish that there is a public interest in protecting the information. Divorce and Family Law Cases - are commonly sought in family law cases—a divorce or child-custody dispute may reveal intimate details of a couple’s private life or disclose personal financial information. Provincial or territorial legislation governs access to family court hearings and case files and, in some jurisdictions, gives judges specific powers to ban the publication of names and evidence - are imposed on a case-by-case basis, and the open courts principle applies, as it does in other civil matters. Voir Dire Hearings in Jury Trials - The restriction on the publication of information disclosed in a voir dire hearing applies to civil trials heard by a jury.41 The ban is in place until deliberations begin unless the judge issues an order extending the ban until a verdict is returned. In some jurisdictions, the ban is formalized by statute Penalties for Breaching a Ban - a violation of a ban imposed in a civil case would be prosecuted as a contempt of court and punished, upon conviction, with a fine. Where the ban is based on a statute, the legislation may stipulate the potential punishment. Contempt in Civil Cases: Assessing the Risks - civil actions are considered sub judice once the plaintiff files a statement of claim with a court to launch a lawsuit. And as in criminal cases, the chances of a publication being found in contempt increase as the date for trial approaches. But the contempt risk is considered to be lower than in criminal cases. - there is less at stake—money as opposed to a citizen’s loss of liberty. Second, jury trials are less common in civil cases and many jurisdictions are moving to further restrict the types of actions that can be heard by a jury Damages - A statement of claim sometimes puts a dollar figure on the damages that a plaintiff is seeking. The amount is often inflated and is never revealed to jurors, so the information has the potential to influence a jury’s verdict. The amount sought, if known, is routinely disclosed in the media when lawsuits are filed, but the risk of creating prejudice increases as the date for the trial approaches Allegations in Pleadings - At the pleadings stage, the statement of claim that is filed provides a wish list of the allegations that a plaintiff hopes to prove in court. Revealing details of these allegations is permissible early in the court process, but there is a risk in repeating them shortly before or during a trial unless the allegations have been repeated to the jury. Insurance Coverage - No reference should be made to a defendant’s insurance coverage unless the existence of a policy or the insurer’s role in opposing the claim has been revealed in court. A concern exists that jurors may award higher damages if they know a defendant is insured and will not personally bear the burden. Criminal Records of Parties or Witnesses - The criminal record of a plaintiff, defendant, or witness involved in a civil case is unlikely to become an issue at trial or form part of the evidence. Reporting this information could seriously damage the credibility of the players and should not be done in the midst of a civil trial unless the information has been disclosed to the jury. Bans under Federal Statutes - procedures and publication bans apply when charges of possession, trafficking, or importing narcotics are filed under the Controlled Drugs and Substances Act.47 The same is true for Food and Drugs Act charges of improper handling sale of food and prescription Extradition Proceedings - allows a judge to ban the publication or broadcast of evidence presented both at a bail hearing for a person facing extradition and at the extradition hearing itself. - The judge must be satisfied that publicity “would constitute a risk to the holding of a fair trial” (s 26) in the country seeking extradition.  - The ban, if granted, remains in place until the defendant is discharged or, if extradition is ordered, until the conclusion of the person’s trial in the foreign state. Immigration Hearings - holds public hearings but has the right to conduct sessions in private or, under section 166(b) of the Immigration and Refugee Protection Act,52 to take “any other measure that it considers necessary to ensure the confidentiality of the proceedings.” - Access can be restricted to protect the life, liberty, or security of a person; to protect information relating to public security; or if publicity could undermine the fairness of a proceeding. - Refugee claims are to be heard in private, but the panel hearing the claim has the discretion to grant “appropriate access to the proceedings. - The minister of public safety and the minister of immigration have the power under the IRPA to issue a certificate seeking to expel a permanent resident or foreign citizen who is considered undesirable or a security threat. - Grounds for issuing a certificate include security concerns, violations of international human rights, a serious criminal record, and involvement in organized crime - A judge of the Federal Court of Canada must hold a hearing to review the certificate and decide whether it is lawful and reasonable. - Sections 83 and 84 of the Act direct that the judge conducting the review—and judges hearing any appeal that results—“shall ensure the confidentiality” of information presented to support the certificate. - The section also directs the judge to keep confidential any other evidence put forward, “if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person - The minister of immigration also has the power to apply for an order of non-disclosure of security and intelligence information presented at immigration hearings, detention reviews, and appeals before the Immigration Appeal Division. - The board involved must take the same steps as a judge to protect the confidentiality of such information. Protecting National Security, Defence, and Sensitive Government Information - Gives minister or other federal official the right to object to the disclosure of certain information to a court, person or body, with the power to force someone to testify or produce evidence - Objections may be based on a specified public interest - Once objection is made, the court or tribunal has duty to ensure that the information is not disclosed other than in accordance with this act - Superior court judge has power to deal with objection but tribunal must refer it - Court convene in camera hearing to determine objection is valid - even in the event that a judge finds that revealing the information would affect the specified interest, they have the discretion to order disclosure of some or all of the information if “the public interest in disclosure outweighs in importance the specified public interest  - The Act also sets out the procedure to be followed when a witness summoned to testify at a criminal trial, court martial, or other hearing is asked to disclose information that the person believes could compromise Canada’s defence or national security. - Person summoned to give evidence/government official must notify the federal justice minister and judge presiding hearing - Act forbids anyone from disclosing notice has been given and information involved - Ban also extends to any mention of voluntary agreement by government or witness to disclosure of information in writign - Disclosure issue referred judge of federal court the act stipulated that the application is confidential must be heard in camera and judge may order file be sealed and stored in sensitive location - Even if the courts order that sensitive information should be disclosed in a courtroom or other hearing, the matter may not be settled. The justice minister has the power to issue a certificate overriding an order to disclose information, citing the need to protect national defence, national security, or information obtained in confidence from a foreign government or agency. Protected Witness - makes it an offence, punishable by a fine of up to $50,00076 and imprisonment for up to five years, to “directly or indirectly disclose any information that reveals, or from which may be inferred, the location or a change of identity”77 of anyone protected under the program. - Persons in program have the right to disclose identity or location and the person receiving this information has right to pass it along to others - Exception only if disclosing information could not result in substantial harm to anyone else in porgram and does not compromise the integrity of the program - Leaves authorities plenty of room to decide whether to prosecute those responsible for disclosure - Commissioner of RCMP can disclose this information with the person’s consent or after the protected person has disclosed the information - may also disclose this information if “the disclosure is essential for the purposes of the administration of justice,”80 to investigate or prevent a serious crime, to establish someone’s innocence, or for reasons of national security or national defence. If the commissioner releases the information to an investigator or other person under these provisions, however, that person is not authorized to pass along the information to anyone else Opinion Polls on Election Days - Canada Elections Act makes it an offence to publicize on the day of a federal election, the results of a public opinion poll or survey in electoral districts where the polls are still open - Act creates two offences: transmitting poll results and knowingly causing them to be transmitted - Exception is made for the republication or rebroadcast of poll results that already have been made public Canadian Judicial Council Inquiries - superior court or the Tax Court of Canada should be removed from office because of advanced age, infirmity, or misconduct, the hearing may be conducted in public.  - When such a hearing is open, the Judges Act84 gives the council the discretion to prohibit the publication of “any information or documents” placed before it as part of the inquiry if the council “is of the opinion that the publication is not in the public interest.”85 - Public hearings are rare and usually held only in cases in which a judge’s conduct has been highly controversial and the subject of media attention Courts Martial - Judge advocate presiding at a court martial has the power to impose a publication ban on all or part of the evidence presented - Ban was to remain in place until last soldier stood trial to ensure that the panel of officiers chosen as jury would not be taken as youth Tribunals and Public Inquries - vFederal tribunals, parliamentary committees, and public inquiries into disasters, scandals, or public policy issues may have the authority to restrict the publication of certain evidence. The statute creating a tribunal or authorizing the appointment of an inquiry should stipulate the scope of these powers. - Bans should be “imposed rarely,” he added, “particularly in the context of a public inquiry.”88 Bans under Provincial and Territorial Statutes Child Protection Cases - When social workers intervene with a family or assume custody of a child considered at risk of being abused, the courts review the attempts to supervise the parents or take the child into temporary or permanent foster car - Identities of child and child family shield under publication ban - Banning the publication of information has the effect of identifying the child, any other child who testifies or participates in the hearing and the child’s parents, foster parents or other family members - In Alberta, the ban covers names and “any information serving to identify a child” or a guardian of the child, but the child can consent to being identified once they reach age 18.91 Until 2014, this ban continued even after the child’s death, making it difficult for journalists to report on the circumstances—and hold government officials accountable for their actions—when children and teenagers died while in the care of foster families or social workers. - A judge has ruled that Ontario’s ban will remain in force even if a child consents to being identified.93 These bans, however, apply only if a person is linked to an ongoing child protection case - The media are free to report details of child welfare cases that do not identify those involved, ensuring that the actions of government officials are subjected to public scrutiny. But the hearings themselves are generally deemed to be private unless the judge rules that journalists and spectators can attend. - Evidence heard in hearings may be subject to a publication ban. Ontario legislation requires the judge to take into consideration the wishes and interests of the parties and possible emotional harm to the child before holding a public hearing. The judge retains the right to exclude reporters  from portions of the hearing or to impose a publication ban on portions of the evidence to prevent possible emotional harm to a child - The ban encompassed the evidence presented and even prohibited references to the demeanour of the parents as they testified. The order was struck down on appeal as too broad with an admonition that judges are “not at liberty to impose such a ban based on speculation” and without evidence of possible emotional harm to a child. Fatality Inquiries - When a judge or corner undertakes an inquiry into the cause of sudden death, publication bans may apply - Ban does not apply to information incorporated into judge’s findings or official report - Identities of young witnesses and other information related to inquests - If criminal charges have been filed in connection with the death, there is a ban on publishing any evidence presented at the inquest until trial is over and all appeals have been exhausted - Other provinces allow coroners to hold in camera hearings to restrict the publication of information if the death is also the subject of a criminal prosecution Judicial Council Inquiries - May hold public hearings and have power to restrict the publication of certain information - Ontarios’ council has the power to ban the publication of the name of the judge under scrutiny and the identities of complainants and witnesses when there are allegations of sexual misconduct or sexual harassment - Inquiries into the conduct of provincially appointed judges are conducted in private in Alberta. The judges conducting an inquiry may make public the fact that an investigation is under way but have the power to ban the publication of information or documents relating to their work Disciplinary Hearings for Members of Professions - Lawyers, doctors, engineers, and many other professionals belong to self-governing societies created under provincial and territorial laws. - These bodies have internal disciplinary panels that investigate complaints about the conduct of their members and punish acts of misconduct. - Although access rules vary, many bodies have opened their discipline hearings or have given the member being disciplined the right to request a public hearing. - The disciplinary panel may have the power to ban the publication of complainants’ names and the disclosure of sensitive or confidential information. Tribunals and Public Inquiries - Board and tribunals may have the authority to ban the publication of evidence or restrict public access in certain situations - Refer to statute creating public body to determine its power to restrict access or coverage Chapter 11: Access to Hearings and Documents Access to Justice  - 2007: in camera hearings are justified to protect identities of polic informants, despite open court rule - Judge has the power to unruly person who disrupts courts business - Some stages of court process must be behind closed doors - No right to be physically present Criminal Code Restrictions Exclsion Orders - Any proceeding, section 486 (1) - Exclusion order: exclude all or any member of the public from courtroom for all or part of a hearing - May stay closed due to three grounds - Interest of public morals - Maintain order - Protect administration of justice - Power mos often invoked when witness is a child - Proper administration of justice includes protecting witnesses under 18 in cases of sexual/violence offences - 486 (1.5): judge to allow young witnesses who have disabilities and witnesses involved in cases of terrorism, spying, or organized crime to testify via closed-circuit video link or behind shields - Quebec: to justify excluding public, presence of spectators must be so stressful that witnesses will not testify or the quality of their evidence will Preliminary Hearings - Can order everyone out except prosecutor, defendant and defence lawyer if ends of justice will be best served by doing so Publication Not Banned - Prevents writers from being present to record what happens - Journalists can interview or consult taped/written transcript but must ensure it is not subject to ban In Camera Hearing - Closed hearing with judge due to interests that can take precedence but must ensure it is not subject to ban Search Warrant Applications - Request must be heard in camera - Secrecy is vital to ensure evidence is not hidden or destroyed - Search depends on timing, confidentiality and element of surprise - 507: when police ask judge/justice of peace for summons or arrest warrant, hearing in camera Application Ban on Identity (486.5) (1) - Has option to hold in camera hearing  - Same goes 276.1 and 276.2 to exclude to jury and public courtroom when defendant applies to produce evidence of sexual history (complinants) Production of Confidential Records (278.4, 278.6) - Prosecution involving sex-related offences = private hearings must be held when judge is asked to order production of confidential records 1) Initial In camera hearing to determine if records produced 2) Judge review record in private or in camera hearing to determine if information goes to defendant Privilege Claims Relating to Seized Documents (488.1) - Lawyer documents cannot be examined or copied without judges approval - Documents must be in sealed envelope until prosecutor applies for access of lawyer/dient seeks order to keep confidential Reviews of Mental Fitness of Offenders (67.5) - Court of board reviewing status of person’s mental status regarding fitness to standing trial held all/part in camera Youth Courts Access to Hearings - May exclude any/all person from criminal case involving young - Used if consider that person presence is unnecessary to conduct of the proceedings of if information presented at hearing would be seriously injuries or seriously prejudicial to defendent or to child/young person who is witness/victime - Exclude public when young person convicted of crime - Judge or board established to review custody when hearing information that could cause serious harm or prejudice to young offender has power to exclude media and public Access to Records - Written or electronic records relating to a case are accessible only to court and correctional officials, lawyers, judges and police investigators - Journalists, researchers and public must apply to youth court judge who has power to grant access - Must be satisfied that is desirable in interest to proper administration of justice - 119 (2): time limit on applications for access is two months to five years (exception = serious crimes- punished as adults) - 118: forbids disclosure of any information containing youth court that identifies defendents Family Courts - Varied restrictions depending on jurisdiction - Hearing open to public unless in camera session is justified - Documents open unless judges order Child Protection Cases  - Forbid publication of any information that could disclose identity of child and parent involved - Judge has power to close hearing to the public Access to Court Files and Documents - All pleadings are presumed to be open to public - Certain records are sealed to prevent public inspection - Adoptions, contingency fees, registry for child abuse, and private conferences - May need to apply to judge for access to copies of victim impact statements and pre-sentence reprots - Dockets - Schedule of upcoming hearings - Name of case, file number, type of hearing, courtroom and date/time - Case files - Can access at court registry during office hours and may require fees - Exhibits - Witnesses asked to identify physical evidence related to criminal/civil disputes- each given exhibit number and becomes evidence - Journalists need it so they can properly cover story- courts have power to deny/control access to protect rights/interest (i.e. ownership) - Media’s access rights extend to anything made of record which makes it understandable why its withheld- decided by trial judge - Transcripts and Audio Recordings of Hearings - Costs a fee- not intended for broadcast - May have written copy of this as well - Electronic Access to Rulings - Rulings electronic/writing and released to media with copy earmarked for exclusion of court file - Provide snapshot of evidence in case, law that applies to facts and courts reason for ruling - Electronic Access to Court Files - Available via Internet: court accessible to public - Policy: prevent use of court records for improper uses- main concern= personal data identifiers - Ensures information only included when relevant to the case Restricitons on Access - Orders Sealing Documents and Files - Party can apply to judge to keep any filed document confidential - judge= notwithstanding public interest in open and accessible court proceedings - Can also seal document-most for civil cases no media - Sealing order is distinguishable = requires Daegenais/Mentuck test when media challenges order to seal - Lifting Seal and Search Warrant - Media outlets can ask judge to open/make public sealed file dure to significant altruism on freedom of expression  - warrants= sealed if risk to fair-trial rights or admin of justice - Admin hurdles: search warrants secret and file is separate making it hard to find who issued it - Discovery Transcripts and Documents Produced in Civil Cases - Subject to undertaking that they will be kept confidential and used only for purposes related to ligitiation - Punishment if using information for collateral or ulterior purposes - Testimony under oath at discovery hearings are private and not part of court process Access to other Proceedings - Administrative Tribunals and Human Rights Inquiries - May have power to restrict access to hearings - Legislation dictate powers exist/if they can be applied - Adoption Application - Legislation restricts access to applications before court - Either requires application heard in private or states hearing open to public-judge orders - Files prohibited or permitted by court orders - Cornor and Fatality Inquiries - Generally open to public - coroner/judge have power to conduct all/part of inquest in private - Courts Martial - Held in public but can be closed to prevent disclosure of information that could jeopardize public safety, public morals and national defence - Can also be closed to protect international relations to maintain order hearing room and ensure proper administration of military justice - Appeal court: option of public or in camera when hearing evidence - Extradition Proceedings - Has power to exclude any person from hearing on basis of protecting morals, order, or proper administration of justice - Immigration and Refugee Hearings - Open to public but may be private if publicity would create serious possibility that the life, liberty or security of a person wull endangered - Also to prevent real and substantial risk to fairness of the proceedings/ disclosure of matters involving public scrutiny - Alternative measures must be considered before hearing is closed - Hearings about refugee protection=private - Judicial Council Inquries - Can be held in public or private Parole Hearings - Access to Hearings and Records - Open to public, request for observer status must be submitted in advance and in writing  - May require 30 days to process application and to conduct security check on applicant-has right to deny if there is a security risk to disrupt or affect someon on board - Court Reviews of Parol Eligibity - First degree murder- life in prison with at least 25 years no parole - Second degree: 10 to 25 years before release - Police Disciplinary Hearings - Govern by provincial legislation and municipal by-laws - Access rules vary but restrictions on access have been challenge - ONT: compelling reason to exclude public - Professional Disciplinary Hearings - Most self-governing bodies that oversee conduct of lawyers, physicians, engineers and other professionals hold their own disciplinary hearings in public, subject to provisions to close hearing or portions of hearing - Law societies permit public access to formal discipline hearings but investigate stages of process remain private - Public Inquiries and Royal Commissions - Have broad investigate powers but in most provinces are not required by law to hold public hearings - Most proceedings are conducted in public, however and Ontario’s legislation requires to hold session unless the need to protect public’s security or intimate personal or financial matters justifies a closed hearings Part 2: Reporting on the Justice System Chapter 6: Justice System 101 The Rule of Law - Ground rules for any civilized society, imposing limits on the conduct of individuals to protect the greater good - Govern the members of a private club or local customs that can be breached without official punishment - Justice must be administered with fairness and predictability and it must be based on law and provable evidence Two Branches of Law 1) Criminal a) Crime: deliberate or reckless act or omission that injuries a person, damages property or breaches society’s moral standards b) Criminal code: identifies acts that cross the line between punishment for each offence and prescribes procedures for prosecution and trials c) The crown is responsible for proceeding against a person accused of committing a crime= King vs. Prosecuted i) Must prove guilty- must be proven beyond a reasonable doubt d) Standard of proof: judges/jury cannot convict someone reasonable doubt  e) conviction= judge must choose appropriate punishment= fines, probation/community service and prison sentence 2) Civil Law a) Concerned with legal dispute that arise between individuals and corporation or government b) Private law- state involved only if government is sued or files lawsuit-yet fought in nation’s courtrooms c) Lies on the plaintiff (pressing the claim) d) Standard of proof= only satisfied on balance of probabilities that defendant is responsible e) Court must be convinced that claim is probably true- a 50/50 preponderance of evidence f) success= award of damages- compensation or follow through on contract obligations g) Judge may grant plaintiff injunction to prevent defendent from doing soemthing that would harm plaintiff’s interests The Constitution and Charter of Rights and Freedoms - Comes from BNA Act- legislative responsibilities of each level of government - Federal: national scope/importance; defence , foreign policy, transportation trade among provinces/territories, banking and criminal law - Provincial: local/regional concern; education, land ownership, hospitals, development of timber, minerals, and natural resources - Municipal: powers from legislation from Provincial - Parliament forms criminal law and laws that govern divorces and control illicit drugs - Legislature of provinces are responsible for administering civil law and operating the court system putting criminal law into action - Intra vires: government found to have constitutional power to enact a law (within scope of powers) - Ultra vires: court will stike down a law to be outside of a government power - Conventions: written rules inherited from British system of government that carry the full weight of law; basic facets of system of cabinet government and ministerial responsibility - Includes the Canadian Charter of Rights and Freedom: protects an array of rights, shielding citizens from unfair laws, discriminatory government policies and arbirtrary police action Legislation - Both levels of government have the power to create and impose laws (statutes) to govern matters within their jurisdiction - Bills: new laws and amendments introduced into Parliament and legislature - Laws to Acts: passed by vote (elected representative), given royal assents and proclaimed by government to be in force - Royal Assent: formality/constitutional convention - Regulations: created under authority of statute; fill in details noe provision (broad law principles) will be implemented and enforced - Cabinet powers: order in council to create and amend regulations giving government flexibility to make minor changes to law without going through time-consuming process of approval - Implement day today decision authorized by statute  - Municipal can also make laws- bylaws or ordinances to deal with matters Judge-Made Law/Common Law - Sum of countless court rulings that have intercepted statutes and applied legal principles to punish criminals/civil disputes - Precedents: looking at previously decided cases - Source many rules that govern how cases proceed through the courts and admissibility of evidence; legislators have enacted statutes to formalize/build upon common law rules - State decisis- standing by former decision; judges must follow precedents established by higher courts within their jurisdiction - Inflexibility and outdated and also offers flexibility that needs to refine and update the law as time as time/attitudes change - Judges may be able to distinguish a particular precedents that appeals to stand in path of doing justice Principles of Equity - Developed in tandem of common law are intended to reduce the chances that a litigant with a worthy cause will fall through the cracks of the justice system - One principle- must be a legal remedy for every wrong - Another demands that litigants comes to court with clean hands with respect to the defendant; courts readily side with a plaintiff who has failed to act honourably or who has tried to take advantage of defendant - Concept of trust= law of equity Quebec’s Civil Code - Comprehensive written rules framed as general principles intended to deal with legal issues and disputes as cases come before courts - Look to code for guidance and how law should be apply in each case - Operate under criminal code and apply common law The Courts and Charter of Rights and Freedom - Judges called upon to pass judgement on meaning and scope of statutes (producing rulings that render) - Have power to strike down legislation that exceeds the jurisdiction of federal or provincial - CRF: altered courts, supreme law of Canada and any law that is inconsistent with provision of constitution is of no force or effect - Duty to assess whether laws are consistent with Freedoms all Canadians enjoy and to order remedial action if they are not - Anyone 24 (1) who has rights violated= apply to courts; can declare law/government policy is invalid= proceedings to halt prosecutions - 24 (2): empowers judges to exclude any crown evidence that was obtained in violation of charter rights  - Section 1: Parliament/legislatures to impose limits on rights provided limits are reasonable, prescribed by law and justifiable in a free and democratic society nables balance of society against interest of individuals - Section 33: Notwithstanding clause: gives parliament/provinces the power to enact laws that violate charter must be reviewed every 5 years; rarely invoked - Charter: wave of constitutional challenges from citizen interest groups and person accused of crime - Judicial activism- reshape laws/policy Structures of Courts 1) The Supreme Court a) Final court of appeal; hear cases arising from any area of law-criminal, civil, constitutional or administrative b) Hears challenges to the rulings of Provincial appeal courts and reviews cases that have been appealed through Federal Court fo Canada and Military c) Consist of chief justice and eight judges (3 Quebec, 3 Ontario, 2 Western, 1 Atlantics) i) Often promoted from provincial superior court of appeal d) Extremely selective; national implications deal with issues where law is novel or unclear e) Appellant must file written application seeking leave or permission to bring appeal before court f) Reference: government ask court to rule on interpretation of constitution or legislation 2) Provinvial/Territorial Superior Court a) Each has two levels of superior courts i) Hear trials ii) Hear appeals b) Appeal: highest course within province or territory i) 3-5 judges depending on significance c) Dissent: judges who write own ruling different than majority d) trial/superior court jurisdiction: inherent justification= they have the right to deal with any case not specially assigned to a lower court- most serious crimes, civil cases and constitutional challenges to provincial laws e) Family/Divorce Court= separate division 3) Inferior Court a) Deal exclusively with provincial laws but some have jurisdiction cases involving federal laws b) Attracts most public attention and busiest c) Small claims courts and criminal offences 4) Federal Courts a) Deal exclusively with issues that arise under federal laws b) Disputes among provincial and between Ottawa v. Province citizenship appeals, violation of copyright and patent and case involving Crown corporation and government departments c) Shares jurisdiction over maritime law issues and forum for hearing legal disputes involving shipping and salvage claims  d) Reviews decisions of federal boards, commission and tribunals 5) Military Courts a) Trials under military code of service discipline b) Applies to Armed Forces and accompanying citizens c) Do face trials in civilian court with serious offence d) 2 types: trial with superior/commanding officier or serious= court martial 6) Administrative Tribunals and Self- Governing Professions a) Tribunals: quasi-judicial bodies and operate like court; warnings, review evidence and make rulings b) Federal: dispute settlement over employment insurance, disability, benefits, refugee status, allegations of human right violation c) provincial : workplace standards, claims for workers compensation, power rate increases and police actions- appealed by superior court d) Federal tribunals- federal courts e) Courts have power to overturn ruling and order rehearing In the Courtroom - Judges and Judicial Independence - Rarely question witness and avoid commenting on testimony until all evidence has been heard - Is the central figure in courtroom; plays umpire, resolves disputes over law and procedure - Decides relevant/admissible evidence and whether charter provision have been breached, oversees proceeding keeping order - Impose punishment on convicted; must reach own conclusion about guilty/not - Must have freedom/ security to make rulings that are sound in law but that may offend government or outrage the public - Government do not have direct control judges’ salaries or pensions and length of services - Security of tenure: free to make rulings/sentences that are unpopular with public - Selection process: lawyer apply for judgeship and screening committees qualifies candidates or citizen vote - Court open to public; rulings challenged in higher court and will be reversed if wrong - Canadian Judicial Council: chief justices and associates of each superior court investigates complaints about federally appointed judges - Only parliament has power to remove superior court judge - House of Commons and Senate required - Judges Act: can be removed for misconduct, advanced age or infirmity or failing to properly exercise power of judicial office The Jury - Role of trier of fact: judge oversees the trial and instructs them on law to be applied when they review facts to reach a verdict - Gives citizens opportunity to take active role in justice system and promotes better understanding of trial - Criminal: 12 person of citizens summoned by random  - Outset of trial, crown attorney and defence lawyer choose who will serve; each side can reject a particular candidate without reason - If pensational coverage- jurors questioned about opinions/knowledge - Must be 18+; swear an oath to be impartial and to based their verdict or evidence in courtroom - Asked to asses facts; verdict unanimous, not explain basis for convict or acquitted - Hung jury: second trial, sentencing only second degree murder The Adversarial System of Justice - The Crown Attorney - Act for state; not job to secure conviction at all costs - Lawyer who prosecute criminal cases and federal/provincial offences - Government hire lawyers per diem to pursue cases in courts on Crown’s behalf - Distinct agencies prosecute offences for each level of government - Justic Canada Lawyer: agents of attorney generals - Prosecute narcotics under controlled drugs and substances - Attorneys generals: responsible for prosecuting criminal code offences and violations of provincial laws - Carries discretionary power; provide legal advice to police, persue violations of law and further investigation - Duty to forgo charges/withdraw-not in public interest to prosecute/can secure conviction - Counsel for Plantiff and Defendants - Lawyers in civil action have duty to present client’s case fully and forcefully - Cannot break laws to help clients and self-governing societies that oversees legal profession can discipline lawyers who breach duty to act fairly and honourably - Defence counsel give innocent persons a fighting chance to clear their names and ensure guilty asserted full legal rights/given day in court - Unable to have resource lawyer themselves may qualify to counsel by publicly funded legal aid programs Chapter 7: Understanding Criminal and Civil Law Commented : last chapters The Criminal Law - What is Crime? - Must have two things: 1) Guilty act= actus rectus 2) Guilty mind= mens rea - An intention to inflict harm; to be convicted = crown must prove that the person committed an illegal act that was reckless and intentional Who can be charged? - Anyone over 12 but under 18= special procedures- Youth Criminal Justice Act - Perpetrator and associates- accomplice charged as a party to the crime - 21 1b- anyone who helps another person to break the law can be charged-aid to commission of crime  - 21c- abet someone to break the law - 22.1- counsel another person to commit a crime - 23.1- anyone who helps perpetrator escape or destroy evidence can be charged as an accessory - 21.2- anyone who joins others in a common purpose or plan to commit one crime can be charged with any other crime commited by an accomplice - 465: can be charges with conspiracy to break law even if no crime committed- agreed to commit offence - 24.1 - offence to attempt to break the law Defences - Array that if accepted entitle acquittal or lead to reduce charge with conviction - Self defense - Provocation- another person provoked deadly fury - Drunkenness - Manslaughter: unintentional killing that resulted from illegal act - Alibi: evidence to show they have not committed crime as they weren’t at a scene - Necessity - Not criminally responsible: suffering from mental disorder when they committed the crime Categories of Offences 1) Summary Convictions a) Least serious crimes: shoplifting, vandalism, minor assault (no injury) b) Much of workload of criminal courts c) Results in $5000 fine and 6 months sentence d) Provincial: illegal hunting or fishing, traffic violations and liquor laws e) Must be filed within 6 months 2) Indicative a) Most serious crimes- murder, manslaughter, armed robbery, violent physical/sexual assault and theft with lots of money and serious narcotic offences b) Heavy fines and 2 years to life in prison c) Person has right to jury trial and no limit of when those charges need to be filed 3) Hybrid a) Combination of summary and indicative conviction