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www.cjfe.org


contents

editoriAl director

Julie Payne

mAnAging editor

Jaclyn law

Art director

Gigi lau

coPy editor

CJFE’s Report Card: like sheep to the slaughter

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About CJFE

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still looking for Answers: Hearings and inquiries into the G20 summit

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A welcome to wikileaks

g20 summit:

still looking for Answers

A welcome to wikileAks

Cara smusiak

Photo editor

david lee lAwyer

John Norris AdditionAl thAnks

Arnold Amber Alexander Besant dan Blackwell C.J. Burton Canadian Committee for world Press Freedom (CCwPF) Bob Carty Annie Game Paul Rudkowski Mary deanne shears

cjfe: 30 yeArs

of fighting for free

exPression

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how Access to informAtion fAils journAlists

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writers

dan Blackwell Grant Buckler Bob Carty Anna Chen Erin deCoste Peter Jacobsen Paul knox dana lacey Julie Payne Paula Todd Phil Tunley Jen wilson

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iceland: Free speech Zone

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CJFE: 30 Years of Fighting for Free Expression

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CJFE’s Freedom of Expression index

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whatcott v. saskatchewan Human Rights Commission

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How Access to information Fails Journalists

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Canadian Journalists Abroad

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Cross-Canada Free Expression Reports

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whistleblower Protection still in its infancy in Canada

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Freedom of Expression on Trial: 2010-11

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Appendix: Major Court decisions 2010-11

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We are grateful to the Canadian Commission for UNESCO and the Globe and Mail for their support of this Review.

We are also grateful to Transcontinental for printing this Review.


“… the freedom of speech may be taken away—and, dumb and silent we may be led, like sheep, to the slaughter.” GEORGE WASHINGTON

CJFE’s Report Card 2010-11: Like Sheep to the Slaughter

I

n the first edition of this report last

year, we observed that 2009 had brought “more fodder for comment on free expression issues than we have seen in decades.” While 2010 may not have been as remarkable, it couldn’t exactly be called anticlimactic either. Government secrecy worsened in 2010. As our article “How access to information fails journalists” (p. 24) explains, it has never been harder to pry information essential to a functioning democracy out of the government bureaucracies. The past year may come to be known as the one in which evidence first appeared at the federal level of a systematic machine for politicization of the denial of information to Parliament and the electorate. The Supreme Court, while not as active on free expression issues as last year, made important rulings on journalists’ right to protect their sources and on the openness of the court system. Some of these rulings were disappointing, but the Court’s recognition of a right to protect confidential sources, at least on a case-bycase basis, is somewhat encouraging. But it was a single one-time event that placed the blackest mark next to 2010 on the freedom of expression calendar. The G20 Summit in Toronto produced a very disturbing list of violations of the rights of journalists as well as others. In case there was any doubt, this in itself is enough evidence that protecting freedom of expression right here in Canada requires constant vigilance. Here for the second year is our assessment of the important issues and how some of our major institutions have performed.

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Access to information and the federal government: We gave the federal government a failing grade in this area last year and now face the dilemma of how to recognize the fact that its record has worsened. Delays in the release of information continue to lengthen. What is released is even less complete than before. More than half of the federal institutions surveyed for their performance on access to information ranked below average and five failed outright. The governing party was ruled in contempt of Parliament for failing to produce information about major spending programs. Once a leader in access to information, Canada now ranks dead last among five leading democracies. After an investigation sparked by a Public Works bureaucrat’s move to “unrelease” information, Information Commissioner Suzanne Legault found evidence of political interference in the handling of ATI requests at Public Works and raised concerns about similar vetting at other departments. All of which may explain why journalists seem to be using the access system less often than in the past.

Information Commissioner Suzanne Legault: The Office of the Information Commissioner continues to suffer from a weak access law desperately in need of reform, and from the commissioner’s lack of power to force disclosures and ensure that public interests override the government’s culture of secrecy. Nonetheless, Suzanne Legault is a promoter of open government who shows a willingness to push the boundaries of her limited powers to produce greater access. She has significantly reduced her office’s backlog of complaints. Her reports on the failings of the access to information system are clear and forthright. And she has forcefully explored cases of political interference in the ATI process and referred these to the RCMP for criminal investigation. The government needs more arm’s-length watchdogs like her.

Protection for whistleblowers: It was an international story—that of WikiLeaks—that drew attention to the role of whistleblowers this year. Events in Canada were less dramatic, and the news here was largely bad. Veteran Sean Bruyea spoke out against provisions of a New Veterans Charter and was rewarded by having government officials share details of his mental-health history widely. The Public Sector Integrity Commissioner, whose role is to investigate allegations of wrongdoing and protect civil-service whistleblowers, resigned after being found to have been doing almost nothing to protect whistleblowers. The story is not all bad. The Supreme Court of Canada ruled that whistleblower protection is part and parcel of the Charter’s guarantee of freedom of expression, and extended a bit more protection to journalists who rely on whistleblowers as sources. Public understanding of the whistleblower’s role seems to be growing. There is still room for improvement.


REPORT CARD

The Supreme Court of Canada and protection of sources: The past year brought significant decisions on journalists’ right to protect their sources. Disappointingly, the Supreme Court forced National Post reporter Andrew McIntosh to hand over to police a document—allegedly forged—linking former prime minister Jean Chrétien with a loan to a business in his constituency. But even in that decision the Court stated that a right to protect sources can exist where the media can show it is in the public interest. That was reinforced in a later case involving Globe and Mail reporter Daniel Leblanc, and the Court referred Leblanc’s case back to Quebec Superior Court with guidelines on how to resolve it—guidelines that reinforce the role of principles known as the Wigmore Criteria in cases concerning protection of sources. The right of reporters to protect their sources is still not as clear in Canada as we would like it to be, but recent developments are somewhat encouraging.

The G20 Summit, security forces and the federal government: Reports elsewhere have pointed out a frighteningly long list of problems at the G20 Summit held in Toronto in June. The Ontario Ombudsman called it a moment of infamy involving “the most massive compromise of civil liberties in Canadian history.” Freedom of expression was among the victims. The Orwellian concept of creating a “freedom of expression zone” during the summit set the tone for a long list of violations of that freedom, from refusal to recognize legitimate journalistic credentials to detention of journalists without due process or cause.Three reports have already condemned events at the summit. One of these came from the federal Standing Committee on Public Safety and National Security, which found significant human rights violations and called for a judicial inquiry. Conservative members of the committee dissented, calling the summit an “unmitigated success.” Perhaps that depends on your priorities: if they include freedom of expression and assembly, it was not a success but an abject failure.

Open courts and publication bans: The Supreme Court of Canada refused to overturn the rule making publication bans mandatory for bail hearings. Notably, the Court did not use the danger of tainting the jury pool to justify the ruling, so that its position seems to apply even to cases not involving a jury. This was disappointing. So were its rulings on two Quebec cases, upholding the right of judges to limit the use of cameras and recording equipment in courthouses (not just in the courtroom but anywhere in the building) and banning the broadcast of video-recorded statements made to police before charges were laid. On the other hand, the Ontario Court of Appeal ruled in favour of the CBC in a case involving the network’s access to exhibits in the case of Ashley Smith, a young woman who died in a correctional institution in 2007. Finally, as we did in the first edition of this Review, we would like to recognize the contributions of other individuals or organizations who have helped advance free expression rights: Peter Milliken, the retiring Speaker of the House of Commons, for a thoughtful, judicious and wise ruling that found the Harper government in contempt of Parliament for failing to release information on the cost of major new programs. The Citizen Lab at the University of Toronto’s Munk School of Global Affairs was in the news for its role in documenting a cyber-espionage network that affected 1,294 computers in 103 countries. Its work also includes documenting Internet censorship around the world and developing the Psiphon software for circumventing censorship. George Washington’s ominous warning about the dangers of taking away free speech became one of the inspirations for an unequivocal legal standard for America’s protection of free expression rights. Canada’s history is different, but there is equal passion for vigilance for these rights in the words of one of our founding fathers. Defending his newspaper in court, Joseph Howe begged his jurors “to leave an unshackled press as a legacy to your children.” 5


ABOUT CJFE Vision To achieve universal respect for and protection of the right to free expression and access to information.

CJFE Gala: A Night to Honour Courageous Reporting Six hundred people attended the 13th annual CJFE Gala, held at The Fairmont Royal York in Toronto on Nov. 25, 2010, and hosted by Anne-Marie Mediwake, co-host of CBC News Toronto, and Victor Malarek, investigative reporter with CTV’s W5. Among those honoured were Cameroonian journalists Bibi Ngota, Serge Sabouang and Robert Mintya; Mexican journalists Emilio Gutiérrez Soto and Luis Nájera; and Canada’s Citizen Lab, based at the Munk School of Global Affairs at the University of Toronto. This year’s gala will be held Nov. 24, 2011.

Mission

Advocacy work in Canada

CJFE boldly champions the free expression rights of journalists and media workers around the world. In Canada, we monitor, defend and promote free expression and access to information. We encourage and support individuals and groups to be vigilant in the protection of their own and others’ free expression rights. We are active participants and builders of the global free expression community.

In 2010-11, CJFE intervened on a number of important cases, which we hope will result in the creation of better laws protecting free expression in Canada. These include:

CJFE’s work includes: • • • • •

Advocacy of free expression issues both in Canada and around the world. Publicizing and profiling free expression issues through events and outreach. The protection of journalists through its Journalists in Distress Fund. Partnerships like the Scotiabank/CJFE Fellowship at Massey College for Latin American journalists. The management of the global free expression network IFEX, which has 88 member organizations around the world.

Defamation and libel cases • Crookes v. Newton—issue of hyperlinks and defamation Access to information • CBC v. Attorney General of Quebec, SCC no. 32920—issue of electronic access to the courts Hate speech • Whatcott v. Saskatchewan Human Rights Commission

CJFE also launched a Charter application to address the troubling practice of police forces and their officers impersonating journalists for investigative purposes.

Scotiabank/CJFE Fellowship at Massey College This journalism fellowship, open to a mid-career journalist from South America, Central America, Mexico or the Caribbean, will welcome its latest fellow to Toronto in September 2011. The fellow, who was chosen by jury in late March, will be announced in June. This year’s fellowship has been extended from one semester to two semesters, allowing the fellow to take full advantage of the remarkable Canadian Journalism Fellows program at Massey College. The successful candidate will audit courses of his or her choice at the University of Toronto and make connections with the Canadian media, while expanding his or her work related to a significant issue. The fellowship is made possible by a generous grant from Scotiabank and a partnership with Massey College.

ABOUT THE COVEr Paul Rudkowski shot the striking image on the cover of this year’s Review, as well as the pictures on pages 8 and 20, during the G20 Summit in Toronto. Rudkowski, who became a photographer only two years ago, snapped the photo of the peaceful standoff between protestors and police on King Street west of Yonge. He says the experience of documenting the protests taught him a lot about “the absolute need for real, unbiased and on-the-ground photo- and traditional journalism, not only to document the events, but … to protect our rights and freedoms as Canadians and citizens of the world.”

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ABOUT CJFE

Journalists in Distress CJFE’s Journalists in Distress Fund provides humanitarian assistance to journalists whose lives and well-being are threatened. In most cases, the journalists we help have been attacked or threatened because of their profession. In addition to disbursing its own fund, CJFE also co-ordinates an email group of 18 international organizations that provide distress assistance to writers and journalists, allowing all of to us to share information, co-ordinate joint efforts and avoid duplication. This year, CJFE helped a journalist who had fled Somalia get access to medication and living support, while another journalist received psychological counselling after a traumatic experience. We also helped a journalist pay for a flight to a safe house in another country when he was forced to flee after covering a story about police corruption, and for yet another journalist, we provided money for translation for a court case. These are just a few examples of the cases CJFE supports. Since its inception in 1999, the fund has disbursed more than $200,000. The Journalists in Distress Fund Helps journalists: • Pay

lawyers’ fees when they are detained. • Pay for medical expenses when they are caught in the line of fire. • Pay for transportation costs when they are forced to flee.

International Free Expression Exchange (IFEX) CJFE has been both a member and the manager of IFEX since its inception in 1992. IFEX is a dynamic global network that monitors, promotes and defends freedom of expression worldwide. Based in Toronto, IFEX produces urgent daily alerts and weekly information products, helps build the capacity of members regionally, facilitates campaigns and advocacy, and creates the space for its members to discuss, learn and collaborate on common strategies to address critical free expression issues. As part of this important community, CJFE brings a Canadian perspective to the table and collaborates with like-minded organizations around the world on a variety of initiatives key to their mandate.

“I have received the money that you sent me. I really want to forward my deep thanks for helping us out of this trouble that we are facing. I am really grateful for your unreserved help for me and my daughter. Thank you very much.”

With the help of a Journalists in Distress grant, Canadian-Eritrean journalist Aaron Berhane was finally reunited with his family in Canada after nine years apart.

—ETHIOPIAN JOURNALIST

CJFE’s redesigned website, cjfe.org

Outreach and education Throughout the year, CJFE works to raise awareness and understanding about important free expression issues. Each year we celebrate World Press Freedom Day—this year we mark the day with the publication of this year’s CJFE’s Review of Free Expression in Canada and with an event that explores the increasingly hot topic of Canadians’ access to information. CJFE’s other major publication is the International Free Expression Review, in which we explore free expression issues and events on the world stage. CJFE has also been engaged in the year-long process of developing a new communications strategy, working with the very talented team from Juniper Park, who gave us the huge gift of their time to develop a new logo, campaign images and ideas to communicate our messages to the Canadian public. In tandem with that we have also been redesigning our website with web designer Christy Rutherford. Visit cjfe.org to check out our new site and lots of exciting content!

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Still Looking for Answers: Hearings and Inquiries into the G20 Summit By Julie Payne

• • • • •

Two parliamentary standing committees, reviewing costs and tactics related to the G20 and G8 summits. The Commission for Public Complaints Against the RCMP, investigating RCMP conduct during the summits. Toronto Police Service’s Summit Management After Action Review Team (SMAART), reviewing all aspects of Summit policing in Toronto. Toronto Police Service Board’s review of matters of governance in relation to the G20 Summit. The Office of the Independent Police Review Director’s review of systemic issues related to allegations against police of unlawful searches, unnecessary arrests and improper detention during the G20 Summit.

This array of responses clearly indicates that something went badly wrong on the weekend of June 25-27, 2010. But, with the staggered schedule of reports, and little co-ordination between the various departments and levels of government involved in these inquiries, it is hard not to be pessimistic about the likelihood of consistent and effective action. 8

Police in riot gear during the G20 Summit in Toronto in June 2010

By the spring of 2011, three reports had been released. CJFE has reviewed the findings and found common themes and recommendations among the reports. The first inquiry to publish its findings was that of Ontario ombudsman André Marin, who released his report, Caught in the Act, on Dec. 7, 2010. It deals with the Ministry of Community Safety and Correctional Services and its implementation and use of Regulation 233/10, described in the report as being “of dubious legality and no utility.” The report is a hard-hitting and strongly worded condemnation of the regulation, which Marin says should never have been enacted. He states that the ministry “quietly handed the police extravagant, sweeping powers … powers that would almost certainly be illegal and unconstitutional under the Charter of Rights and Freedoms.” Marin also identified several problems he faced in collecting information. For instance, he says that the Toronto Police Service declined his invitation to take part, and the York Regional Police only participated through written responses. In addition, many of the government documents he requested were censored to various degrees. One of the most interesting questions raised by Marin is why Ontario is the only province to still have war measures legislation on the books. He notes that the Ontario Provincial Police, which rejected the use of the Public Works Protection Act during the G8 Summit, stated that “it would not likely stand up to a constitutional challenge.” Marin agrees, stating that he has “real reservations about the constitutional compatibility of Regulation 233/10 with the demands of freedom of expression.” Caught in the Act concludes that the Ministry of Community Safety and Correctional Services promoted a regulation that “appears to be contrary to law” and is not “in accordance with the provisions of any Act.” He closes with four recommendations, including perhaps most importantly that the Public Works Protection Act should be revised or replaced.The ministry has agreed to his recommendations and will report on progress made at six-month intervals—the first of these reports is expected in April 2011.

PHOTO: PAUL RUDKOWSKI

A

lmost a year after the G20 Summit was held in downtown Toronto,

Canadians have access to more information about what happened at the protests and how it happened; however, there are still few answers as to why it happened. What’s more, no level of government or police authority has taken direct responsibility for the extensive human rights violations that took place at the protests. Immediately after the summit, Canadian Journalists for Free Expression published a survey to record how the rights of journalists were compromised. We heard from approximately 30 journalists who felt that their rights had been violated, and from two journalists who had experienced no problems whatsoever. The overall picture that has developed from the many emotional and angry testimonies is one of a very dark time indeed for free expression in Canada. What CJFE learned about the failure of security forces to recognize the valid credentials many journalists presented to the police was disturbing. Journalists who had every right to be present were jailed in spite of those credentials. Ultimately, all of the journalists who were jailed were not charged, or, where charges were laid, they were later dropped. Since then, numerous inquiries, public hearings and civil suits have been launched. These include:


G20: STILL LOOKING FOR ANSWERS

The Canadian Civil Liberties Association (CCLA) and the National Union of Public and General Employees (NUPGE) released their report, titled Breach of the Peace, on Feb. 28, 2011, based on public hearings the two organizations held in Toronto and Montreal in November 2010. Neither the Toronto Police Service nor the Ontario Provincial Police accepted an invitation to send representatives to the hearings. The report documents many of the violations of Charter rights and civil liberties that occurred during the policing of this event, including the arrest of 1,105 people—the largest mass arrest in Canadian peacetime history. Nathalie Des Rosiers, the CCLA’s general counsel, states that the rights violations from the G20 Summit protests occurred “on such a scale that they cannot be viewed as the result of individual police officers’ misbehaviours or overreactions.” The NUPGE and the CCLA found that the majority of arrests resulting from the G20 Summit protests were excessive and unwarranted. These arrests violated the rights of Canadians to be free from arbitrary detention and unreasonable search and seizure. The report concludes with eight recommendations, the first of which is for a joint federal-provincial inquiry. Additional recommendations call for improvements to policing policy and training, including Charter training specific to public demonstrations in order to ensure greater respect for the boundaries of lawful detention and search powers. The third report, Issues Surrounding Security at the G8 and G20 Summits, was dramatically tabled on the last day of parliament, ensuring that it would be immediately overshadowed by the election. This report from the Standing Committee on Public Safety and National Security draws from the previously discussed reports, along with accounts recorded at five hearings held by the committee between October and December 2010. The report agrees with many of the points made in previous reports, and is equally vehement in its condemnation of human rights violations; it also decries the lack of transparency and accountability on the part of the Canadian government, and the absence of a clear chain of command to handle the security of the two summits.

In an interview with CJFE volunteer Dan Blackwell, Don Davies, NDP MP and vice-chair of the committee, said he thinks the committee’s most important recommendation was that “there must be a full, independent judicial inquiry with powers of subpoena, and the powers to compel the production of documents, and with counsel that they can actually take testimony over extended periods of time … Right now we just have appalling treatment of Canadian citizens in a modern democracy, and not one person to this day has actually been held responsible for making those decisions, and they just want to move forward and close the chapter on it.” In stark contrast, the report ends with a “dissenting opinion of the Conservative Party of Canada.” Here, the Conservative members of the committee “vigorously disagree with the conclusions drawn in this extremely biased report,” and state that “Conservative Members of this Committee believe that this summit was an unmitigated success.” While each of the reports focused on different aspects of the G20 Summit protests, all three clearly documented the various human rights violations that took place. They viewed the actions of the government and police authorities critically, and made strong recommendations—including, crucially, calling for a public inquiry—to prevent similar violations from occurring. CJFE recently wrote to Premier Dalton McGuinty to again call for a comprehensive inquiry including a thorough examination of police treatment of journalists covering the event. The premier responded that it would “be the decision of the Government of Canada to hold any public inquiry into security and enforcement activity during the G8 and G20 summits.” Once again, it is hard to escape the conclusion that, despite all of the time and resources being poured into inquiries and hearings, we have a long way to go before we have a clear understanding of the chain of command governing the G20 Summit and who should be held responsible for this travesty of justice. CJFE will continue to monitor the progress towards giving Canadians the answers they deserve.

JOURNALISTS SPEAK OUT Some were hit with rubber bullets, some beaten by police. Their cameras were seized, sometimes broken. Film was destroyed. Some people were arrested and charged. Several were held in cages for up to 20 hours, denied food, water and access to legal help. Others were “kettled”—hemmed in by police—for up to four hours in pouring rain. The following are excerpts from CJFE’s interviews with journalists. “An Edmonton police officer demanded to see my press credentials, taking my Parliament Hill pass forcibly off my neck and telling me ‘That doesn’t mean shit to me,’ and I was then told to get on the ground.” CHRISTOPHER PIKE, a freelancer with the National Post and Xinhua News Agency “They asked me if the AMC was a legitimate press or if it was ‘underground press.’ The officer who harassed me asked if I was born in Canada ….” DAVID PARKER, a journalist with a campus community paper “Immediately my wrists were grabbed and I was forced into handcuffs. I said my press ID was in my bag but nobody was interested in seeing it. Nobody said anything, except my police escort, who said, ‘You have been charged with conspiracy to commit public mischief.’” LISAN JUTRAS, blogging for the Globe and Mail “Someone must be held accountable for the decisions which robbed so many innocent individuals of their rights. I am merely a citizen, and whether I’m taking photos for a website or marching for a cause, I should be able to freely assemble and walk down any street without being arrested and thrown in a cage when I have committed no crime.” MICHAEL TALBOT, a journalist with Citytv/Rogers To read the full article about the treatment of journalists during the G20, visit http://tinyurl.com/43fkfeb. To watch video interviews with some of the journalists and CJFE Board member and lawyer John Norris, visit youtube.com/CJFECanada.

Julie Payne is CJFE’s manager. 9


Some calle Some calle d it heroic. d it treason Some haile . d it

as a blow fo r democracy ; others fea red a whole sale invasio n

of personal pr Whatever y our point of ivacy. view, WikiLeaks’ dramatic du mp more than 2 50,000 secr of et diplomatic cables to m ajo o

r news rganization s dominate d public discussion about the n ews media during the s econd half of 2010.

A welcome to WikiLe a k

s

By Paul Knox

Editorial cartoon by Angel BoligĂĄn Corbo, courtesy of the International Editorial Cartoon Competition of the Canadian Committee for World Press Freedom (CCWPF). 10


A WELCOME TO WIKILEAKS

A

s the dust swirled, important questions were raised about the responsibilities of those who believe passionately in freedom of expression. Should we applaud WikiLeaks unequivocally and defend it against attack? Or should we be questioning its practices and seeking to hold it to account? Should all information, everywhere, be available to everyone at all times? And if not, where do we draw the line? The simple answer is yes, we should welcome the courage and ingenuity of WikiLeaks’ founders and volunteers. We should salute their commitment to freedom of expression, journalism and the flourishing WikiLeaks societies. WikiLeaks and similar enterprises facilitate whistleblowing and have raised global awareness about the benefits of transparency and access to information. The events of 2010 underscored the value of digital technology and the Internet as a tool for expanding the frontiers of information and free expression. They vindicated the use of well-established journalistic techniques in the analysis and presentation of news—in this case, the information revealed in the WikiLeaks cables. They demonstrated the benefit of allowing journalists to do their jobs unhindered, and thus bolstered support for their freedom-of-expression rights. One measure of WikiLeaks’ impact is the extraordinary extent to which governments and powerful interests have used it as a pretext for trampling those rights. Reports gathered by the International Freedom of Expression Exchange (managed by CJFE) tell of reprisals, crackdowns and Internet bans. U.S. government pressure led Amazon.com to stop hosting WikiLeaks’ web operations, and also led PayPal, Visa and MasterCard to sever its financial lifeline. The U.S. military is accused of mistreating an imprisoned soldier alleged to be the source of WikiLeaks’ material. Russia cut short the term of a correspondent for the Guardian of London who had written about unflattering references in the cables to Vladimir Putin, the current prime minister and former president. Saudi Arabia

It’s not easy to draw a clear line between the right to free expression and that of privacy. was just one of several countries blocking access to WikiLeaks sites. News websites that published the cables or links to them were attacked, possibly by government agents or sympathizers. On a more basic level, the affair gave advocates of free expression fresh insight into the way power over information is exercised and the strategies necessary to confront it. It exposed hypocrisy, revealing private assessments that were at odds with those issued for public consumption, thus underscoring the importance of consistent, proactive access-to-information policies. It also demonstrated that when the best practices of journalism are applied to leaked information, individuals incidental to the issues in question are not likely to be harmed and the public interest is likely to be served. These developments are particularly welcome in Canada, where secrecy-obsessed governments show a growing desire to flout access laws by withholding information compiled and stored at public expense. At the same time, the emergence of

Others wondered whether the right to free expression extends to those who bare government secrets.

WikiLeaks led some to ask whether the group had been cavalier about the personal privacy and safety of those named in the cables, and whether it should be urged to adopt a standard of journalistic responsibility. Others wondered whether the right to free expression extends to those who bare government secrets. There are elements of journalism in what WikiLeaks did, but whether it was or wasn’t acting as a journalistic outlet is not a key issue. Free expression is a universal right—not one that is meant to be enjoyed only by those whose job description happens to include the word “journalism.” Whistleblowing sites promote free expression by facilitating access to the kind of information we need to make judgments about our governments and current events; for this reason alone, they deserve support and protection. Yet simple acts of exposure are not enough to hold the powerful to account. WikiLeaks grabbed headlines with massive dumps of cables and shocking footage of a U.S. military attack on civilians in Iraq. But it registered its greatest success when it teamed up with news organizations experienced at making judgments about official documents— what’s important, what cries out for further investigation, what could put a marginal figure in peril. It’s not easy to draw a clear line between the right to free expression and that of privacy. Private lives and choices become newsworthy when they begin to affect public affairs, but not all the details are significant. It’s hard to argue that a lowlevel informant for U.S. forces in Afghanistan, who may have co-operated under duress or may have been highly selective in giving information, is legitimate collateral damage in an open-government project. To their credit, some of those associated with WikiLeaks appear to have recognized the danger of posting unvetted military documents. Journalism has well-established practices for sifting the significant from the needlessly harmful; those who carry out acts of journalism would do well to become familiar with them. 11


A WELCOME TO WIKILEAKS

12

Editorial cartoon by Marilena Nardi, courtesy of the International Editorial Cartoon Competition of the Canadian Committee for World Press Freedom (CCWPF).

be resolved quickly by independent review. Officials would not be able to levy exorbitant costs as a back-door means of thwarting the goals of access laws. Lacking such a regime, we turn to whistleblowers, journalists and their allies, not only for information that is sensitive and explosive, but for that which ought to be routinely divulged. We can expect more WikiLeaks-style attempts to bring official documents out of the shadows and into public view. We should welcome them, and help facilitate the publication of government information that is in the public interest. Freedom of expression and access to information are joined at the hip; the more we know about our world, the broader our range of ideas and creative expression will be. Paul Knox is an associate professor of journalism at Ryerson University and a former foreign correspondent, editor and columnist at the Globe and Mail.

VIDEO IMAGES: COURTESY OF REUTERS

A classified U.S. military video shows Iraqis being shot by U.S. Apache helicopters that killed a dozen people in Baghdad, including two Reuters staff, on July 12, 2007. WikiLeaks released the video to Reuters in April 2010.

As for violations of official secrecy, it’s easy to overstate the danger. For decades, Canada’s Official Secrets Act was rarely used. But in 2001, the federal government jumped on the opportunity presented by the Sept. 11 attacks to insert a tough section on secrecy into Bill C-36, the Anti-terrorism Act. It threatened prosecution for revealing information the government is “taking measures to safeguard,” gave new surveillance powers to the state and broadened Ottawa’s eavesdropping powers. In 2005, Privacy Commissioner Jennifer Stoddart reported to Parliament that Canadian authorities had developed a “voracious appetite for personal information and surveillance.” Yet she found no evidence that the sweeping post-2001 powers had been useful in “detecting, preventing or deterring terrorist acts.” More recently, the WikiLeaks cables that revealed the private judgments of Canadian officials have caused no discernible harm. Instead of draconian secrecy laws, Canadians need a robust national access-toinformation regime. Governments have a duty to manage information, and in certain cases, to hold it closely. Narrowly defined exceptions to the principle of open access are legitimate where law enforcement, personal privacy and national security are at stake. But information should be presumed public unless the government makes a convincing case for its suppression—not the reverse, as is so often the case currently. In a system built on a foundation of respect for open government and accountability, governments would release on request most of the non-personal information they collect and compile. They would adequately fund the relevant processing units and order timely compliance with requests. Disputes between those seeking information and those holding it would


ICELAND

Iceland: Free Speech Zone By Paula Todd

Reykjavik, 2013 s you tuck into a smoked lamb sandwich

PHOTO: ISTOCKPHOTO/JON GORR

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and skim your email, a courier drops off the results of your latest Freedom of Information application. Inside, you find page after photocopied page of classified documents delivered in pristine condition— not a single swath of blacked-out, redacted material in the lot.You have the story. Across town, Iceland’s most aggressive investigative TV team is huddled in the editing suite when a bundle of threatening letters and affidavits are dumped at their feet, compliments of the big bank they are scrutinizing. “They don’t have a legal leg to stand on,” says their executive producer. “Dig even deeper. We’ll back you up.” And in a tiny shack on the coast, a web reporter easily reassures a local fisher that new legislation makes it impossible for anyone to find out he’s the one risking his livelihood to blow the whistle on the shipping rigs he’s seen emptying toxins into the ocean night after night. Every journalist’s fantasy? Perhaps, but one spawned by a real-life horror. In fact, if very determined Icelanders have their way, the worst economic collapse in history could give birth to the strongest free expression laws in the world. In the autumn of 2008, Iceland’s big banks, grown fat and sloppy on reckless loans and poor oversight, imploded, taking the island’s once-admired economy with it. With billions in loans outstanding, neither Iceland’s government nor the central bank were ready with a backup plan. “The private banks failed, the supervisory system failed, the politics failed, the administration failed, the media failed, and the ideology of an unregulated free market utterly failed,” Prime Minister Johanna Sigurdardottir said. With fingers still wagging—and the special prosecutor carrying out financial raids—one idea is taking firm hold: A free and powerful press might have uncovered the corruption and warned the world in time.

So last year, with support from every political party, Iceland’s parliament passed a motion to create the first free expression sanctuary, a sort of “free fly zone” to protect the press, encourage investigative journalism and provide a safe harbour for those seeking—or telling—the truth. “The Icelandic Modern Media Initiative [IMMI] is based on turning the tax-haven concept on its head. Instead of pulling together asset-hiding and secrecy laws from around the world in order to shelter corruption and financial crime, the IMMI pulls together the best transparency-enabling legislation, to create a stronghold for investigative journalists, internet publishers, transparency watchdogs and the public,” according to the legislative initiative, passed June 16, 2010. The Icelandic Modern Media Initiative is aimed at shoring up protections for whistleblowers, journalists, publishers and the sources who make investigations possible. Watch for proposed contractions in other key areas, everything from narrowing prior restraint powers to closing the door on defamation tourism. Here’s what the IMMI wants to introduce: • The Icelandic Prize for Freedom of Expression • Protection from “libel tourism” and other extrajudicial abuses • Protection of intermediaries (Internet service providers) • Statute of limitations on publishing liabilities • Virtual limited liability companies • Whistleblower protections • Source protection • Source-journalist communications protection • Limiting prior restraint • Process protections • Ultra-modern Freedom of Information Act

Even the mechanics will be challenging. If the reform goes ahead, more than a dozen laws would need to be retooled across a handful of government departments. Julian Assange of WikiLeaks, an early collaborator on the project, has said one of the goals is to entice media outlets to Iceland, improving both the economy and the island’s morale and reputation. But the free speech push is more than a local get-well project. Icelanders hope their new “transparency haven” will inspire other countries to strengthen protections and make it more difficult to harass, thwart or silence the media. Birgitta Jonsdottir, an IMMI advocate and member of The Movement party (founded to bring radical government change post-meltdown), says Icelanders want others to learn from their hard lessons. “The crises sharpened our perspective on what really matters. We found out the hard way that we did not have a vibrant free press that could report without fear of those in power. If we had, perhaps some of the calamities our country now faces could have been prevented,” she says. “Because the world is connected by financial and information flows, suppression of the truth is not only our problem, but everyone’s problem. The right of the people to understand what is happening to their societies needs to be strengthened,” she says. “I believe in supporting the world’s most courageous journalists and writers with the best legislation possible.”

Paula Todd is a board member of CJFE and a W5 investigative journalist and legal analyst for CTV. 13


CJFE 3O

YEARS OF FIGHTING FOR

FREE EXPRESSION By Grant Buckler

The year was 1981. El Salvador was embroiled in civil war and thousands were dying—including journalists, for whom it was one of the deadliest conflicts ever.That January saw two foreign journalists killed within days. South African cameraman Ian Mates died when his car hit a land mine, which also injured two other journalists. A couple of days later, a rebel sniper’s bullet injured French photographer Olivier Rebbot, and he died in hospital in Miami three weeks later. Violence against Salvadoran journalists was a given at that time. “They had been killing and beating up and torturing local journalists,” says Nick Fillmore, later the first executive director of what became Canadian Journalists for Free Expression (CJFE). But escalating attacks on international journalists helped bring the situation home to more Canadians. “That sent a real shock wave through the establishment media,” says Fillmore. The shock would grow the following year when four Dutch journalists were shot and killed in an ambush widely believed to have been set up by the army. As the violence escalated, Canadian journalist Brian McKenna was in El Sal14

vador shooting two documentaries. He came back in early 1981, convinced that journalists could not remain silent as their colleagues died. At the annual meeting of the Centre for Investigative Journalism (CIJ, now the Canadian Association of Journalists) in Montreal, McKenna spoke forcefully about the dangers for reporters—both local and foreign—in El Salvador, and in Latin America generally. About 150 journalists, he told the meeting, had been killed or “disappeared” in the custody of security forces in Latin America in the previous two years. Galvanized by McKenna’s first-hand report, the CIJ voted to form a committee to campaign against the kidnapping, torture and murder of journalists in Latin America, with initial funding of $1,000.The CIJ Latin America Committee was born. The dangers reporters sometimes face weren’t widely understood in those days, says Carole Jerome, one of the original committee members, and part of their mandate was to publicize them. The subject was very personal for committee members who had worked overseas. Jerome had known Rebbot, whom she remembers as a popular member of the press corps who was nicknamed “The

Happy Rabbit” by his colleagues. The committee in its early days resembled a local chapter of Amnesty International. Fillmore recalls that members in Toronto met in a CBC conference room, where “we’d sit around a conference table and write letters ... that was the oldfashioned way.” Besides the Toronto group, there were groups initiated in Montreal, Ottawa, Winnipeg and Vancouver, and later in Halifax, Edmonton and other cities, each keeping files on freedom of expression violations in different countries. The committee also helped a few Latin American journalists escape when their lives were in danger, providing money and sometimes contacts to help them seek work in Canada. New name, new life By the mid-1980s, the energy with which the committee was founded began to fade. But three Toronto journalists—Financial Post reporter Frances Phillips, Toronto Star reporter Olivia Ward, and Fillmore, then with CBC—rejuvenated it. The first step was to broaden the committee’s mandate from Latin America to the world and rename it, in 1985, the Canadian Committee to Protect Journalists (CCPJ).


CJFE: 30 YEARS

This marked the first of two significant transitions—the broadening of focus from press freedom abuses in Latin America to a global concern with such issues. The second transition would come gradually as the organization began paying more attention to press freedom issues at home as well as abroad. With a global focus, the CCPJ developed a “Red Alert” network to share information about attacks on journalists and respond to them quickly with protest letters to offending governments and Canadian officials. But it remained an informal organization.Ward, its first president, remembers meetings in her living room over sandwiches and coffee. The closest thing to an office was Fillmore’s basement. Realizing that a volunteer organization with very limited funds could easily founder under the weight of its new and more ambitious mission, the organizers sought to put it on more solid footing. This was achieved in part in 1994 with the creation of the independent Canadian International Freedom of Expression Trust (CIFET), which allowed the organization to raise funds and provide charitable tax receipts to donors. At least as important to the CCPJ’s development, though, was its involvement in creating and running the International Freedom of Expression Exchange (IFEX).

Sunday Morning, he was covering the Central American wars as a CBC and NPR freelancer at the time. He says Canada was chosen as neutral ground; most groups represented were established Western ones and there was considerable resistance to creating a new international body. What delegates could agree on was the idea of a network for sharing information. CCPJ proposed the creation of a “clearing house” with the modest goal of exchanging

The birth of IFEX The idea emerged in the late 1980s that CCPJ and other organizations like it around the world—such as the Committee to Protect Journalists (CPJ) in the U.S. and the British group Article 19—should work more closely, sharing information and eliminating duplication to make their efforts more effective. The real push to create the IFEX came when a Ford Foundation representative told several freedom of expression groups that the funding agency couldn’t keep handing out money to multiple groups that were duplicating each other’s work. To solve this problem, there were some informal talks in the late ’80s, which led to the May 1992 meeting in Montreal that created IFEX. Bob Carty chaired that meeting. A former foreign editor of CBC Radio’s

information among existing groups, and ultimately the Canadians were chosen to run that clearing house out of Toronto. To illustrate the value of this network, Fillmore cited an example in his 1994 Executive Director’s Report:

preserve of NGOs in developed countries—notably Reporters Without Borders in Paris, the CPJ in New York, the International Federation of Journalists in Brussels, and the worldwide network of PEN. They could apply substantial resources and experience to issues all over the world, including those in the Global South, but “the problem with that model,” Carty says, is that “you’re not doing anything to establish a free-standing organization in those soci-

CJFE and PEN Canada joint press conference on Freedom of Expression and Association on Trial

When a journalist was imprisoned by the Serbians, the group sent us a protest that we relayed along the IFEX network. Shortly thereafter, a guard came to the cell of the journalist and said, “Who in the hell are you? You must be someone very important.” Approximately 35 faxes had arrived in the country on his behalf. He was soon released. In the early 1990s, Carty says, free expression case work was largely the

eties and a culture of freedom of expression in those societies.” So CCPJ championed the IFEX Outreach Program, which aimed to provide resources to fledgling free expression groups in the Global South, to help them expand and become IFEX members.Today IFEX has 88 members, more than twothirds of them in the Global South. CJFE is also a founding member of the Tunisia Monitoring Group, an association of 20 IFEX members created in 2004 to focus on free expression issues in Tunisia. The group continues to promote and defend free expression in the country. IFEX continues to evolve. Building on its information-sharing function, IFEX has organized a growing number of member campaigns on specific issues. IFEX member groups work together, and often 15


CJFE: 30 YEARS

with other organizations as well, on press freedom issues around the world. “Not only are we putting out information, but we’re also finding ways to act on the information as a network,” says Anne Game, executive director of both IFEX and CJFE. IFEX has also put together a set of resources, available online, to help members with a variety of concerns such as fundraising, media strategy and electronic advocacy. And, Game says, IFEX can bring together members with complementary skills and needs—for instance, helping to bring a trainer from the Philippines to Pakistan for a media-training project. International missions The first in a series of international projects was a fact-finding mission to Argentina and Uruguay in 1983. With $3,000 the Toronto group raised by holding a dance, the Latin America Committee sent Kathryn Leger of The Canadian Press and Susan Perly of CBC Radio’s Morningside to Uruguay and Argentina. Representatives of the CPJ and the U.S. branch of PEN International joined them for the Uruguay portion of the trip. The group reported strong evidence linking government security forces to the “disappearance” of at least 80 journalists in Argentina. In Uruguay, they found journalists who were imprisoned indefinitely without medical treatment and facing psychological torture.The report criticized the Canadian government for not speaking out consistently against human rights violations in Latin America, as well as the Canadian media, which the report said “often fail to present well-rounded reports and interpretations of the situation in Argentina and Uruguay, despite a growing interest on the part of Canadians.” In 1991, the CCPJ recruited Carty, who had worked extensively in South America, to visit Guatemala with representatives of the International Federation of Journalists. Spending four days in Guatemala meeting journalists, government officials and judges, they found overt violence against journalists was only the tip of the iceberg; most reporters practised self-censorship, knowing that writing certain things could get them killed. The visitors’ report, 16

CJFE Skills Training in Thailand, 1999

The Daily Terror, painted a disturbing picture: Guatemala has experienced more death squad killings than El Salvador, more disappearances than in Argentina or Chile, more regular use of torture, more massacres, more overall death than any other country in Latin America. And yet the Guatemalan case is little known … [a] critical factor [is] the violation of human rights of journalists and the severe restriction of freedom of expression. The silence within Guatemala echoes without. In 1993, Guatemalan president Jorge Serrano was overthrown and replaced by Ramiro de Leon Carpio, the country’s ombudsman for human rights. A joint CCPJCPJ mission to Guatemala that year found things somewhat improved. The report’s title, The Terror Subsides, aptly summarizes the group’s findings, though Carty says press freedom violations did not entirely cease. International fact-finding projects also included a joint CCPJ-PEN mission to Mexico in 1991 and a report on the Peruvian media in 1994. In the 1990s, though, emphasis shifted to helping international media rebuild and grow. The first training mission went to Malawi in 1995. Arnold Amber, who had

just succeeded Ward as CCPJ’s president— he remains CJFE’s president today—travelled to Malawi as part of the project. He says it was a response to the opportunity presented by the departure of long-time president Hasting Banda—an opportunity also arising in Eastern Europe and elsewhere as dictatorial regimes fell. Western governments and foundations saw freedom of expression and of the press as keystones of the emerging democracies, Amber says, but many countries had no journalism training programs and few reporters who were experienced in independent journalism. Funding from granting agencies such as the Canadian International Development Agency (CIDA) was available for training projects, which became the favoured model for the organization’s overseas work for the next decade. The projects included training journalists in Thailand, Indonesia and Cambodia, among other countries, along with a media-rebuilding project in Sierra Leone (see sidebar, right). CJFE’s focus has moved away from international training missions in recent years, but a new kind of educational initiative took place at home. In 2002, CJFE created the Donner/CJFE Journalist at Risk Fellowship, allowing a foreign journalist facing danger in his or her work to


CJFE: 30 YEARS

spend an academic year at the University of Toronto’s Massey College, auditing courses and acquiring new journalistic skills. This was succeeded in 2009 by the Scotiabank/ CJFE Fellowship for Latin American journalists, also at Massey College. Mid-career journalists spend two semesters at the college, auditing their choice of courses throughout the university. Press freedom awards The idea of honouring international journalists for the courageous defence of free expression emerged as early as 1994, when Fillmore, then executive director, circulated a proposal to the CCPJ board. That proposal noted that an awards program could do three things: pay tribute to international journalists and writers who demonstrated “exceptional courage in promoting press freedom and freedom of expression”; raise the profile of the cause; and become the basis for an annual fundraiser. Until well into the 1990s, CCPJ was chronically short of money. Amber recalls that board meetings usually began with the treasurer informing the assembled group how many weeks the organization could keep going if its next hoped-for funding didn’t materialize. So the idea of a fundraising gala looked good. To start with, Amber recalls, the talk was along the lines of “we’ll get a church hall, we’ll throw a dinner and we’ll raise $10,000.” Then Richard Gwyn got involved. The Toronto Star columnist used his extensive contacts to promote the event, and the 1998 inaugural gala, which featured keynote speaker Mary Robinson, who was the United Nations High Commissioner for Human Rights, raised $65,000. Today, the International Press Freedom Awards are presented at the CJFE Gala: A Night to Honour Courageous Reporting. The event, which attracted 600 guests to The Fairmont Royal York in Toronto in 2010, is CJFE’s major fundraiser. In 2000, CJFE inaugurated the Tara Singh Hayer Award, named for the former publisher of the Indo-Canadian Times who was murdered in British Columbia in 1998. It is presumed that he was murdered in connection with his condemnation of the 1985 bombing of Air India Flight 182 and his planned appearance as a witness

Media rebuilding: Sierra Leone CJFE’s most ambitious overseas project began in 2001. Sierra Leone had been battered by 10 years of war. “The rebel forces in Sierra Leone in ’99 chased most of the good journalists out of the country,” says Nick Fillmore, one of CJFE’s founders. “They blew up all the presses, they robbed the radio stations, they just obliterated the press, because most of the press had been opposed to the rebel activities.” With funding from the Canadian International Development Agency (CIDA), CJFE set up a rebuilding project. “There were 35 rag-tag, little, terrible, crappy newspapers that had sprung up in Sierra Leone, little four-page or eight-page things, some of them sensationalist,” Fillmore says. After talking to people in the community, CJFE’s team picked the handful that seemed most promising. They bought an old printing press in Toronto and had it shipped to Freetown. The papers shared the press. The next step was to provide training to the relatively inexperienced publishers, editors and reporters. Fillmore thinks the way CJFE approached this was a key to the project’s success. CJFE recruited people from smaller Canadian weeklies—papers closer in size to the Freetown papers they would be working with. One of those people was Roger Holmes, then-publisher of the Wainwright Star Chronicle in Alberta, one of five newspapers his family owned at that time. He remembers visiting newspaper offices with intermittent electricity, telephones padlocked to prevent costly outgoing calls, and rats running free. Underpaid reporters supplemented their meagre incomes by taking bribes. But, he says, they were eager to learn. All of the papers relied on newsboys. Every morning, the publishers would bring their newspapers to the outdoor market, where teenage boys bought them to sell on the streets. The boys

Roger Holmes in Sierra Leone, March 2002

chose which papers they would sell each day based largely on how sensational the headlines were. “Semi-literate, otherwise unemployed youth are dictating the kind of journalism that is featured in the newspapers,” Holmes wrote in a report at the time. Circulation was also limited by how far the boys could walk and how many papers they could carry. The solution: Buy the boys bicycles so they could travel farther and sell more papers. Arnold Amber, CJFE’s president, says the Sierra Leone project was successful because it was more than training. Rather than simply teach a few journalists some skills, it created infrastructure. “It gave roots, whereas in some other ways of training ... you’d go in, and for three weeks you’d train a bunch of people, and they’d go back to their newspapers where the more senior editors wouldn’t let them do what they were taught to do.” Amber adds that, in later years, “In Foreign Affairs and in CIDA, you’d bump into somebody and they’d say, ‘Well, we think this is one of the most successful things that we ever financed’ ... because it has a lasting quality about it.” –G.B. Read about more of CJFE’s past projects at cjfe.org/programs/past_projects. 17


CJFE: 30 YEARS

Where Are They Now? Past Recipients of CJFE Awards Jila Baniyaghoub (2009) , founding editor

of the women’s rights news website Kanoon Zanan Irani (Focus on Iranian Women) and a reporter for the newspaper Sarmayeh, was arrested, along with her husband, journalist Bahman Ahmadi Amoyee, in the media crackdown that followed disputed election results in Iran in 2009. She received an International Press Freedom Award that year. Last June, the Revolutionary Court of Iran sentenced her to one year in prison—a sentence she is waiting to begin serving—and banned her from writing for 30 years. Her husband remains in jail. Akbar Ganji (2000) , an Iranian investiga-

tive journalist, was imprisoned for taking on the Iranian regime over its involvement in the operation of death squads. He received an International Press Freedom Award in 2000. He moved to the United States in 2006 and is now living in New York, where he is working on a book about Ayatollah Khomeini that is expected to be published next year.

in that case. To this day, no one has been brought to justice for his murder. The award was designed for Canadian journalists who make an important contribution to reinforcing and supporting freedom of the press. In 2005, CJFE introduced the Vox Libera Award to honour any Canadian who has made an important and sustained contribution to freedom of expression. Following the launch of the gala, CJFE started its Journalists in Distress Fund, formalizing efforts to provide financial aid to international journalists in need. From 1999 to 2009, CJFE also managed a Journalists in Exile program, which supported international journalists who came to Canada to escape persecution at home. Growing Canadian focus Until the 1990s, the original Latin America Committee and its successor, the CCPJ, 18

Terry Gould (2009) wrote Murder Without Borders: Dying for the Story in the World’s Most Dangerous Places, a book about journalists killed because of their work. He received the Tara Singh Hayer Memorial Award in 2009. Gould is working on a documentary television series based on that book, as well as a new book for Random House Canada that will involve research in several failing states.

Farida Nekzad (2007) is an Afghan journalist and a significant contributor to independent media, and she has long encouraged women to work in the Afghan media. As editor-in-chief of the independent Pajhwok Afghan News, she had been the target of threats and harassment when she received an International Press Freedom Award in 2007. She is now director and editor-in-chief of Wakht News Agency and vice-president of the South Asia Media Commission.

Jineth Bedoya Lima (2000) was military affairs reporter for the newspaper El Espectador in Bogotá, Colombia, when she was kidnapped, sexually assaulted and beaten in 2000, apparently because of her reporting on killings inside a prison. Just months later she was back on the beat. She received an International Press Freedom Award that year. Bedoya, now legal issues editor for the Colombian daily El Tiempo, is as courageous as ever. Late in 2010 she was threatened by the Revolutionary Armed Forces of Colombia (FARC) guerrilla group after publishing a book about a recently assassinated FARC leader.

Jim Poling (2008) , a senior editor at the Hamilton Spectator, implemented and managed the newspaper’s Internationally Trained Journalists Project, and chaired an advisory committee for Sheridan College’s Canadian Journalism for Internationally Trained Writers Program. He calls his 2008 CJFE Vox Libera Award a professional highlight for himself and the newspaper, and says it “allowed us to continue the conversation and build a rapport with internal and external communities.” This year, the Spectator is applying resources to a project focusing on community diversity.

focused on international press freedom issues. The problems were certainly worse abroad than here—reporters weren’t being shot and no radio stations were bombed in Canada. Nonetheless, says Carty, “I think there was always a current of concern about this, that we weren’t working enough in Canada.” In 1998, to better reflect its mandate of championing free expression worldwide, the organization changed its name a final time, to Canadian Journalists for Free Expression. In a sense, the name change heralded a new chapter in the organization’s development. “If we were Canadian Journalists for Free Expression,” Amber says, “part of what we should be doing is minding our own country.” The question came up more often after CJFE’s annual gala began drawing more attention to its work. Perhaps the 1998 murder of Tara Singh Hayer and

the non-fatal shooting of Montreal crime reporter Michel Auger in 2000 spurred an increased focus on Canadian issues. Suddenly, it was no longer true that Canadian reporters didn’t get shot for what they wrote. CJFE continues to document physical attacks against journalists in Canada, and violations of free speech and assembly at the 2010 G20 Summit in Toronto remind us that there is no room for complacency about our rights at home. Meanwhile, CJFE is kept busy with a variety of other freedom of expression issues, including protection of journalists’ sources, access to information, hate speech controversies, defamation cases, and the egregious practice of police impersonating journalists—the focus of a court challenge that CJFE launched in 2010. In the past decade, several experienced media lawyers have joined CJFE’s board and/or provided pro bono work for the organization.


CJFE: 30 YEARS

Besides intervening in a number of legal proceedings (see sidebar), CJFE has spoken out on various Canadian press freedom issues, most recently publishing reports of free expression violations during the G20 Summit and the 2010 Olympics in Vancouver. Recognizing the organization’s work in 2007, the Canadian Library Association presented CJFE with its Advancement of Intellectual Freedom Award. In its five-year strategy for 2009-2014, CJFE defined three strategic goals: to be the lead advocacy organization on free expression issues in Canada; to support journalists in other countries whose right to freedom of expression is under threat; and to broaden understanding, respect and promotion of free expression through the creation of an independent base of support throughout Canada among journalists, advocates of free speech and the general public. There has been progress on the international front, with more freedom of expression and of the press around the world than there was 30 years ago, Amber says, but “there are failures as well as successes.” People are still hunted down and killed or made to disappear. Close to 100 journalists are killed every year. CJFE’s increased emphasis on freedom of expression issues in Canada—part of which is the creation in 2010 of The 2009 Free Expression Review—is important for two reasons. First, Game says, it increases the organization’s international credibility. “Organizations in the Global South will say ‘Well, what are you actually doing in your own country?’” Second, there are real concerns to be addressed at home, she adds. “We cannot be complacent in our own country, or take for granted that these rights that we enjoy are rights that are not going to be challenged.”

Inaugural CJFE Gala, 1998

CJFE’S LEGAL INTERVENTIONS Canadians are comparatively lucky: Battles for freedom of expression in this country are more often fought with words in courtrooms than with bullets and tear gas on the streets. Protection of confidential sources

Vital to a journalist’s ability to obtain information, this principle has been challenged repeatedly. CJFE has been involved in the cases of Juliet O’Neill of the Ottawa Citizen, Andrew McIntosh of the National Post, Ken Peters of the Hamilton Spectator, Daniel Leblanc of the Globe and Mail and author Derek Finkle. In the Peters case, the Ontario Court of Appeal “made it clear that there was a long and careful road that any court had to follow before they could ever consider citing a journalist for contempt in those circumstances,” says Brian Macleod Rogers, a former CJFE Board member and counsel for Peters. Recent Supreme Court of Canada rulings have stopped short of establishing a blanket right, but have supported journalists’ right to protect sources if they can show it is in the public interest, on a case-by-case basis.

Corp.—helped establish a defence of responsible communications for defamation cases. The Supreme Court gave journalists, writers and bloggers a new defence when they fairly and responsibly cover stories “on a matter of public interest,” even if every statement cannot later be proved true. CJFE also intervened in Crookes v. Newton, a defamation case that hinges on whether an online link to a defamatory article can be considered equivalent to publishing the article itself. Access to information

CJFE was an intervener in a suit brought by University of Ottawa professor Amir Attaran, aiming to stop the Department of Foreign Affairs and International Trade from censoring reports on human rights in Afghanistan. Unfortunately, the Federal Court ordered the department to reveal only portions of reports already made public. Also disappointing were recent Supreme Court decisions on Quebec courts limiting the use of broadcast equipment in courthouse corridors and refusing media access to official audio recordings of court proceedings.

Defamation

Grant Buckler has been a freelance journalist for more than 25 years, specializing in covering information technology and telecommunications and, more recently, alternative energy and clean technology. He has been a volunteer with CJFE for several years. He lives outside Kingston, Ont.

19

CJFE was part of a media coalition intervening in a defamation case involving Vancouver broadcaster Rafe Mair and his employer, WIC Radio Ltd., which Mair won at the Supreme Court in 2008. That ruling strengthened the defence of fair comment. Two other cases in which CJFE intervened—Cusson v. Quan and Grant v. Torstar

Police impersonating journalists

CJFE, the CBC and RTNDA Canada have launched an application under the Charter of Rights and Freedoms to prevent police officers impersonating journalists. This challenge is currently awaiting responses from the attorney general of Ontario and the Ontario Provincial Police.


free exPression index

AGE OF MANiTOBA GiRl wHO CAME TO sCHOOl wiTH RACisT wRiTiNG ANd dRAwiNGs ON HER BOdY, iNClUdiNG A swAsTikA ANd THE wORds “wHiTE PRidE”

7

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FREE EXPREssiON CAsEs iN wHiCH CJFE HAs iNTERVENEd siNCE 2006

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17

PHOTO: PAUl RUdkOwski

3O

MONTHs CANAdiAN ONliNE JOURNAlisT kHAdiJA ABdUl QAHAAR HAs BEEN MissiNG iN PAkisTAN


free exPression index

CANAdA’s RANkiNG OUT OF FiVE dEMOCRACiEs FOR THE EFFECTiVENEss OF iTs FREEdOM OF iNFORMATiON lAws, As dETERMiNEd BY THE JOURNAl GOVERNMENT INFORMATION QUARTERLY

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MEMBER ORGANiZATiONs iN THE GlOBAl FREE EXPREssiON NETwORk ifex

APPROXiMATE NUMBER OF sECRET diPlOMATiC CABlEs dUMPEd BY wikilEAks iN 2010

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3o


Whatcott v. Saskatchewan Human Rights Commission Canadian Journalists for Free Expression (CJFE) Board Editorial

principles and excite debate; two subjects in particular are sure to rouse those passions. The first is whether and how the fundamental freedom of expression is to be balanced with the protection of racial and other groups from discriminatory or hateful speech. The second is the legitimacy of human rights tribunals to prohibit or punish the press or other media for the content they choose to publish. Both of these important issues are currently before the Supreme Court of Canada in the case of Whatcott v. Saskatchewan Human Rights Commission. This is why the CJFE Board will seek leave to intervene and make arguments to the Court. We do this despite the fact that CJFE does not support Bill Whatcott, nor his views, which, as an organization dedicated to human rights, we find erroneous and disturbing. Nevertheless, his case presents free speech advocates with an important opportunity to clarify the strength of our protections. Bill Whatcott is a Christian activist who claims a religious obligation to speak out about his perception of the “evils” of same-sex sexual relations and to oppose the teaching of these subjects in schools and universities. He acknowledged that he published flyers, which certainly contained extreme, polemical and confrontational messages, including statements claiming homosexuals are “perverted” and “sodomites,” and alleging that the consequences of same-sex sexual relations are “disease, death, abuse and ultimately eternal judgment” and “early death and morbidity of many children.” Complaints were made against Whatcott under Section 14(1)(b) of the Saskatchewan Human Rights Code, which broadly prohibits publication in any form of any material …that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground. The complaints were heard by the Saskatchewan Human Rights Tribunal, which found that Whatcott’s publications violated Section 14(1)(b). On his appeal, a single judge of the Court of Queen’s Bench for Saskatchewan agreed. Both the Tribunal and the Court found that Whatcott’s flyers met the current legal “test” for hate speech, which was laid down by the Supreme Court in 1990 in Canada (Human Rights Commission) v. Taylor. That case had established that as long as the speech in issue met that test, a human rights code provision would be justified in sanctioning and prohibiting it. As a result, the Tribunal and the Court of Queen’s Bench held they did not need to consider further whether the application of Section 14(1)(b) to prohibit or sanction his conduct would infringe the constitutional guarantee of freedom of expression in Section 2(b) of the Canadian Charter of Rights and Freedoms. However, on further appeal by Whatcott, a three-judge panel of the Court of Appeal for Saskatchewan, applying the very same legal 22

I do not agree with what you have to say, but I’ll defend to the death your right to say it.

— VOLTAIRE

test, came to the opposite conclusion.The Court of Appeal held that since Whatcott’s publications did not meet the Taylor test, he had not infringed Section 14(1)(b) of the Saskatchewan Code. As a result, the Court of Appeal also did not need to consider whether Section 14(1)(b) is a valid limit on free expression. This is not the first case to highlight the inconsistent results obtained when applying the Taylor test. Our review of the case law from various tribunals and courts since 1990 shows the decisions are fact-specific and unpredictable. On its facts, Taylor itself was a comparatively straightforward case of hate speech. John Ross Taylor distributed cards advertising a telephone service that, when contacted, played recorded messages that were blatantly anti-Semitic. He did not claim any particular religious mission or purpose in doing so, nor did he seek to engage any broader discussion of public policy. The Canadian Human Rights Code, Section 13(1), was considerably narrower than the Saskatchewan provision, and simply prohibited publishing “any matter that is likely to expose a person or persons to hatred or contempt” by reason of race, religion or other ground of discrimination. Nevertheless, the Supreme Court’s decision was badly divided. A bare majority of four judges to three upheld the validity of the

PORTRAIT OF VOLTAIRE BY CATHERINE LUSURIER

A

ny limitations on our freedom to speak involve fundamental


WHATCOTT provision, by reading into it a qualifying “test.” The majority held that the free expression guarantee in Section 2(b) of the Charter would only be satisfied by requiring that, before anyone is found to have infringed the prohibition, their message must display …extreme ill-will and an emotion which allows for no “redeeming qualities” in the person to whom it is directed, … [or] unusually strong and deep-felt emotions of detestation, calumny and vilification. This is the Taylor test that has produced such inconsistent and unpredictable results in the lower courts and tribunals, in Whatcott and other cases. Given the language of the test, this is hardly surprising. We suggest that the language in Taylor is inherently subjective and open to interpretation. What one person, tribunal member or judge considers “extreme” or “unusual” in any given context may be, and obviously is, very different from another. The vague and amorphous definition of prohibited speech has a chilling effect on the media and the public at large. Will a journalist reporting the facts of the debated communication be vulnerable to censorship or complaint? Is a parent, teacher or same-sex advocate liable merely because he or she tried to discuss, let alone protest, the message? Will the media’s recital of the controversial campaign and its message—the news itself—constitute a publication of hate speech, and attract a complaint under the Code? And what of opinion writers, editorialists and columnists who want to explore the boundaries of the debate—will they risk being hauled before a tribunal? If the courts have not agreed on these rules, newsrooms cannot, either. The result, of course, is a chill on free expression, striking at the very heart of our ability—and need, in a democratic society—to explore controversial matters. After all, free speech requires little protection when there is broad consensus; it is precisely when there is dispute and controversy that strong protections are required. CJFE, for example, rejects and deplores Whatcott’s misguided opinions about same-sex relations, but our freedom to do so is related to his freedom to speak,

The vague and amorphous definition of prohibited speech has a chilling effect on the media and the public at large. however wrongly. The best response to offensive speech is not less speech but more speech. It is in this open arena that truth can triumph over ignorance. The Whatcott case also illustrates other serious harms created by the vagueness of the Taylor test. For example, it seems fairly obvious that Section 14(1)(b) of the Saskatchewan Human Rights Code on its face is overly broad and invalid, even by the Taylor standard, to the extent that it purports to prohibit speech that is not hateful but nevertheless “ridicules, belittles or otherwise affronts the dignity of any person or class of persons.” Yet, as noted above, neither the Tribunal and the Court of Queen’s Bench that found the Taylor test was met, nor the Court of Appeal that found it was not, need to go on to consider the validity of these words in Section 14(1) (b). The Tribunal and the Court find Whatcott guilty of breaching the valid aspects of Section 14(1)(b), and the Court of Appeal finding the opposite, simply dismisses this particular complaint. So the words remain on the statute books, as supposedly valid

The best response to offensive speech is not less speech but more speech. It is in this open arena that truth can triumph over ignorance.

limits on the freedom of any of us to express ourselves, or to refute the messages of our opponents. Consider, for instance, the puzzling censorship required to avoid language that ridicules, belittles or “otherwise affronts the dignity” of anyone of any class. Again, the result surely is a potentially sweeping and unjustifiable stranglehold on legitimate, non-hateful speech. At a more practical level, the fact that this type of complaint can be pursued privately, before a tribunal with the power to award costs and damages, creates even more problems. A large number of hate speech complaints across Canada have been pursued by a single individual. The appearance created is unfortunate: that a personal sensitivity, zeal or agenda, rather than the public interest, may be driving some of these prosecutions. This only further undermines the legitimacy of such a limit on the fundamental freedom of expression. In our view, if the prohibition and prosecution of hate speech is ever legitimate, it can only be in the context of Section 319 and related provisions of the Canadian Criminal Code. In that context, the prosecution is carried in the public interest by an independent Crown counsel, with no potential secondary gain through an award of costs or damages. The person accused enjoys the presumption of innocence and other procedural safeguards appropriate to a public prosecution. The prosecution must prove criminal intent beyond a reasonable doubt. Altogether, this ensures the entire proceeding is focused on the alleged harm caused by the speech in issue to the broader public interest. The Supreme Court’s decision to grant leave to appeal in Whatcott offers a unique opportunity to make these important arguments before the Court. In deciding to seek leave to intervene, the CJFE Board will not address the various assertions of freedom of religion or morality that engage other parties. In our view, as interesting as those issues are, they are inherently matters open to differing views in an ongoing public debate. CJFE will focus only on the freedom of expression, and the effects of this legislation on reporting in the public interest. 23


How Access to Information Fails Journalists

I

t started with a routine access to information (ATI) request in a B.C. courthouse. A government employee had been found with the personal information of 1,400 income assistance clients in his Victoria condo, and had subsequently been fired. Victoria Times Colonist reporters Rob Shaw and Lindsay Kines wanted a copy of the RCMP search warrant, a document that the Supreme Court of Canada had ruled nearly 30 years earlier should be easily accessible to the public. Their request was met with numerous roadblocks bordering on the bizarre: “Sorry, the courthouse staff say you can look at the warrant, but only the suspect or his lawyer get a copy,” one court clerk told Kines. “By the way, are you the suspect? No?” It was enough to launch the two reporters—along with their colleague, courts reporter Louise Dickson—into an investigation in which they discovered that B.C.’s courts routinely and wrongly deny access to information that should be available to the public. Unfortunately, the problem isn’t isolated to the court system, or even to the province. Despite the promises laid out by the Access to Information Act, getting information out of any number of government bodies—whether they be municipal, provincial or federal—is neither straightforward nor timely. Here are some sobering stats:

44

Percentage of federal ATI requests not met within the required 30-day limit.

21.3 395

Percentage of requests that took more than 60 days to fulfill. Average number of days to resolve an ATI complaint.

A recent report published by the journal Government Information Quarterly compared the effectiveness of freedom-of-information laws in five democracies. Canada ranked dead last thanks to its long delays and “outdated” 24

policies: citizens cannot file requests online, and must mail in cheques to cover fees. None of this is news to anyone who has ever filed an ATI request in Canada. What’s alarming is that, faced with so many obstacles, fewer journalists are making requests. For the fiscal year 2009-10, only 10.5 per cent of ATI requests came from journalists—a 23 per cent drop from the previous year. Meanwhile, ATI requests from business rose 14 per cent during the same period. So, what gives? Why aren’t journalists taking advantage of this tool? “Going through the process is not for the faint of heart,” writes David McKie, the CBC investigative journalist who crunched the Treasury Board numbers to find those facts. “But neither is being a journalist facing a federal government bent on spin and obfuscation and a bureaucracy that is justifiably scared, and many times forbidden from talking to journalists. So let’s all get cracking. There’s too much at stake for journalists to be on the wrong side of a downward trend.” ATI plays an important role in public service journalism. The Toronto Star uses the Act often to break stories, although investigations editor Kevin Donovan notes that it can be difficult to convince journalists to take advantage of it. For one, it can be expensive, and the delays are beyond frustrating (while some documents are retrieved fairly quickly, the Star has waited more than two years for others to be released). Journalist Stephen Spencer Davis filed an ATI request for documents about previous incidents at a Toronto apartment building that had been gutted by fire. The OpenFile.ca reporter was drawn to the story after he found this quote from a resident who had ignored the blaze: “They always have fires. Everyone just ignores them.” After sifting through the reports, Davis realized that “the difference between reading a press release and reading internal documents was like the difference between someone’s schoolwork and their diary.They were the opposite of polished: there were reports of slip-ups and unheeded warnings, things no one would ever tell a reporter wielding a notebook and a tape recorder.”

The Access to Information Act was enacted under Pierre Trudeau’s leadership in 1983, in part as a result of an RCMP scandal. Overseen by the Office of the Information Commissioner (OIC)—launched the same year—the Act stipulates what information can be requested and how long it should take to receive it. Its most obvious flaw is what critics have dubbed the “Mack Truck clause,” named for the transport-truck-sized holes in the legislation that exempt cabinet documents including, among other things, discussion papers containing background explanations, analyses of problems and policy options, communications between ministers, and draft legislation. That loophole has not been corrected over the 30 years of the Act’s life. Soon after launching the ATI process, the government also created a searchable database, the Coordination of Access to Information Requests System (CAIRS). It was an extremely useful tool for journalists. If an ATI request had been returned to any individual requester, the government was obliged to provide a copy of all the response documents to any other citizen. By 2008, millions of documents were available through CAIRS, with 35,000 more available each year. Then, on April 1, 2008, the government stopped updating CAIRS because, Prime Minister Stephen Harper explained, it was “deemed expensive.” Ironically, departments could now be wasting money duplicating searches already done at taxpayers’ expense. (For historical searches,

PHOTO: C.J. BURTON

By Dana Lacey


ACCESS TO INFO

Act have opted to take advantage of it. And a handful of institution-specific lists (not a single, centralized, searchable database) doesn’t come close to replacing CAIRS. There is a simple way journalists can champion a better system: use it. Those Times Colonist reporters turned their frustrating experiences into an award-winning series, published in February 2010, which has since had a direct impact on provincial policy. As a result, B.C. Attorney General Mike de Jong scrapped a $6 online court registry search fee and promised to revise aging court access policies so that they have a “presumption in favour of releasing information.” Let’s not sit around hoping that presumption spreads—get cracking.

Dana Lacey (danalacey.wordpress.com) is a Toronto writer and photographer.

Reprinted with permission from David McKie, CBC.

McKie maintains the CAIRS system up to its 2008 shutdown. See http-server.carleton. ca/~dmckie/CAIRS/CAIRS.htm.) Any progress Canada has made toward transparency—such as extending the Act to cover more institutions, including the CBC and Canada Post—has been overshadowed by Harper’s ongoing efforts to keep information behind closed doors. Journalists have long complained about his parental and tight-lipped treatment of the press. Blocking ATI requests has become a matter of course.When Stephen Maher of Halifax’s Chronicle-Herald sent repeated requests for information to the PMO, he was told to “stop bothering them.” In a February 2010 feature for The Walrus, Gil Shochat writes, “One tactic in particular—delay, delay, and delay—has created such a massive logjam of requests that it threatens to crash the entire access system.” Say, for instance, an office receives a request it deems sensitive. The request is slapped with an “amber light” tag and is sent on down the rabbit hole, where it may take months to resurface—long past any reasonable journalistic deadline. Shochat notes that amber lights are given to nearly half of an office’s requests. The Public Policy Forum blames the government’s general rule: “When in doubt, cross out.” The Canadian Newspaper Association reports, “Media requests are about twice as likely to get the tougher treatment as requests overall.”

Some federal departments have even started converting data into images before releasing it; a photo of data is a lot more complicated to import into a spreadsheet or database. Complaints about the request process are also backed up; the OIC can take as long as two years to resolve a grievance. Furthermore, it is largely a dog without bite, and while more than one commissioner has recommended policy changes, the requests have been largely ignored. So what about that 23 per cent decline in journalists making requests? “What makes matters worse,” McKie writes, “is we don’t seem to be cultivating a new generation of journalists who use the [Act]. Few schools of journalism in Canada teach their students how to file requests, which means that the new recruits filling newsrooms across the country lack the reflex of demanding records that help challenge claims that politicians make on matters such as job creation or the need to be tough on crime.” Recently, five government departments, half a dozen agencies and one Crown corporation (the CBC), have begun posting lists of completed requests online. Citizens can request a copy of the documentation, though the lists are incomplete and sometimes quite dated. But McKie advises Canadians to hold their applause— the technology to post this information has been around for a decade, but only a small fraction of the 250 institutions under the

OT N Access to Information The Decline of Access in 2010-11 By Bob Carty

U

nder the Harper government, it’s never

been harder to pry information essential to a functioning democracy out of the federal bureaucracy. And time and again, the main reasons for the debasement of Canadians’ right to freedom of information are considerations of political damage or embarrassment that information can do to those in power. CJFE observed several alarming trends in access to information over the past year. A culture of concealment The year under review began with a case that may be just the tip of an iceberg of political interference. The Canadian Press’s Dean Beeby reported on Feb. 7, 2010, that a federal cabinet minister’s aide had killed the release of sensitive material—an action for which he had no legal authority. Under the Access to Information Act, Beeby asked for information on the extensive real estate portfolio of Public Works and Government Services Canada. His request was tagged as 25


ACCESS TO INFO sensitive and handed to Sebastien Togneri, a political aide to then-minister of Public Works, Christian Paradis. The department’s officers decided it had no legal basis to withhold the information and ordered 137 pages to be released to Beeby. At the last minute, Togneri sent an urgent email to a senior Access official to “unrelease it”— and there was a rush to the mailroom to stop the file from being delivered to media hands. Four months later, Beeby received only a fraction of the information, and it was heavily redacted. The case came under investigation by Suzanne Legault, head of the Office of the Information Commissioner (OIC). She found that there was evidence of a political vetting machine at Public Works and recommended that the case be referred to the RCMP. The Act forbids anyone to “direct, propose, counsel or cause any person” to conceal a record, with a maximum penalty of $10,000 and two years in jail (Legault says that to the best of her knowledge, no criminal charges have ever been laid for violations of the Act). Togneri resigned in October. The commissioner is also looking into similar allegations of political interference in the access process at Foreign Affairs, National Defence and Public Works. While there is some evidence that the previous Liberal government also operated a system to politically “vet” ATI requests, it appears the Harper government created a system-wide culture of violating freedom of information rights. ACCESS WAIT TIMES GETTING WORSE Legault monitors the ATI performance of federal institutions in her annual and special reports to Parliament. In an April 2010 document called Out of Time, Legault reported a “constant decline” year over year in government obligations to meet the 30-day limit for response required by law. Delays in response are the “Achilles’ heel” of ATI, Legault warned, and the public’s right to government information is “at risk of being totally obliterated….” Of the 24 government departments and institutions surveyed for the OIC report card, more than half were operating below average in terms of refusals, delays and poor information management. The Privy Council Office, directly under Prime Minister Stephen Harper’s leadership, got a 26

“D” for having the second-worst timelines; it was taking, on average, 157 days to complete a request. Five institutions scored a failing grade, among them the departments of Natural Resources, Heritage, and Environment, along with Correctional Service Canada and the Canadian International Development Agency (CIDA). Foreign Affairs and International Trade Canada (DFAIT) performed so badly it earned a “red alert”—a grade below failure. The commissioner also warned about new trends behind the increases in ATI delays. The time taken for extensions is getting longer each year, and there is a pre-occupying practice of consulting other government departments. When the Harper government was elected (2006), there were 1,330 requests that each required more than 30 days of consultation with one or more departments. That number doubled over the next four years—and that’s just one way to delay the release of information. “There are literally 500 ways of saying no,” according to ATI activist Ken Rubin. He asserts that when it comes to sensitive issues like Afghanistan or climate change, Ottawa has perfected the ability to generate black holes—nothing escapes. It’s important to note, however, that the OIC does see improvement in government departments, and some—like Justice, and Citizenship and Immigration—do an outstanding job at access largely due to leadership and a culture of disclosure. In March 2010, the OIC also produced a report card on eight institutions and Crown corporations just recently brought under the requirements of the Act. Several, like the National Arts Centre and Atomic Energy of Canada, are performing very well. But, for a second year in a row, Legault lambasted the CBC for long delays and a high rate of refusal. The CBC responded that it has been bombarded by hundreds of ATI requests submitted by a media competitor, Quebecor Media, owner of QMI Agency and Sun Media. The requester wants information such as audits from the last three Olympics and a copy of all records on the costs of running the contest to find the new Hockey Night in Canada song. The CBC contends it does not have to release such information because it has an exemption for journalistic and programming material. The

requestor argues the information is about general administration, not about journalism. It is a complex discussion, deciding where this line should be drawn. For its part, the OIC wants the right to review the relevant documents to assess whether the exemption is being applied properly; currently, that assessment is made by the CBC. The issue is making its way through the courts. The shrinking of information Declining government performance can also be found in the annual statistics for ATI requests compiled by the Treasury Board’s Infosource bulletin. One of the indicators is how often all the information requested is released—or, conversely, how much is redacted or refused. In 1999-2000, the federal ATI system disclosed all requested information 40.6 per cent of the time. By the time the Liberals went down to defeat to Harper’s Conservatives in 2006, that rate had already dropped to 28.4 per cent. But then it plummeted by almost half—in 200910, requesters got everything they asked for in only 15 per cent of cases. Elsewhere in the world, others are doing better: in 2008, 60 per cent of all freedom of information requests made in the U.K. and 43 per cent of all FOIA requests filed in the U.S. yielded full disclosure. Refusing to release information This Review is being published at the end of an election campaign required after the Harper government was held in contempt of Parliament in part for refusing to provide information about the costs of programs such as its law-and-order legislation and corporate tax cuts. This, too, is a freedom of information issue. The government does not deny it has this information—just that it is a “cabinet confidence.” The Parliamentary Budget Office confirms that this information exists, it is part of the expenditure management system that costs out new programs. So, the government is again refusing to release important information to Parliament and the public—which appears to be a case of contempt not only for Canada’s democracy but also the Conservatives’ own promises to make government more open, transparent and accountable.

Bob Carty is a CJFE Board member.


Canadian Journalists Abroad Update: Khadija Abdul Qahaar

PHOTOS OF QAHAAR AND CASTONGUAY, CBC

Khadija Abdul Qahaar is a freelance journalist from West Vancouver who was kidnapped by the Taliban in November 2008 while travelling in Northern Waziristan, Pakistan. She was abducted with two companions, her driver Zar Muhammad and translator Salman Khan, both of whom were released after eight months in captivity. In early 2009, Qahaar’s kidnappers threatened to behead her.They demanded US $2 million in ransom and the release of their associates, but the deadlines came and went. Glen Cooper, a long-time friend of Qahaar’s who was involved in negotiations to free her, last heard from her in August 2009. In November 2010, the newspaper Indian Express reported that she had “died following prolonged illness,” citing unnamed sources. According to Khan, Qahaar, who is also known as Beverly Giesbrecht, suffered from hepatitis and was mentally prepared for her death. Cooper has said that she was ill even before the kidnapping. Rahimullah Yusufzai, an editor of the News International in Peshawar and a negotiator for her release, told the Globe and Mail that she sounded desperate and seriously ill in her final video messages. He presumes that she is dead. When CJFE contacted Foreign Affairs and International Trade Canada in March 2011, it would not comment on whether Qahaar is still alive. Spokesperson Priya Sinha said, “we continue to pursue all appropriate channels, including with Pakistani authorities, in seeking information with regard to Ms. Giesbrecht.”

Qahaar is a 53-year-old former media and web professional turned journalist. She converted to Islam soon after the Sept. 11 attacks and set up the website Jihad Unspun to present uncensored reports on the American war on terror. In the summer of 2008, she moved to Pakistan, where she established contact with Taliban leaders. She obtained a visa in Canada based on letters from Al Jazeera, but it is unclear whether she had an assignment when she was kidnapped.

Journalists attacked in Egypt During the two weeks of peaceful protests that led to the ouster of former Egyptian president Hosni Mubarak in February 2011, journalists were assaulted and harassed by pro-Mubarak supporters. Canadian journalists were among the victims. On Feb. 2, CBC News cameraman Sylvain Castonguay was brutally attacked until his colleague, Jean-François Lépine, got soldiers to intervene. The Globe and Mail’s Sonia Verma and Patrick Martin were detained for three hours on Feb. 3. The CBC, CTV News and Quebec-based television network TVA also had their cameras and audio equipment confiscated by the authorities. Al Jazeera, Al Arabiya, ABC News, BBC, CNN, France 2, Le Soir, the New York Times and the Washington Post were also targeted.

Sylvain Castonguay in Egypt, 2011

Hossein Derakhshan and his girlfriend, Sandrine

Canadian-Iranian journalist still imprisoned in Iran Canadian-Iranian journalist and blogger Hossein Derakhshan remains in prison after he was arrested in November 2008 during a trip to Iran to visit his family. Charged with spreading propaganda against the regime, insulting religious leaders and cooperating with hostile states, he was sentenced in September 2010 to 19½ years in prison and banned from political and media activities for five years. Derakhshan’s lawyer has appealed and is awaiting a ruling from the court. Known as the “Blogfather of Iran” for popularizing blogging in the country after he published a guide on blogging in Farsi, Derakhshan started blogging soon after moving to Toronto from Tehran in 2000. He is a controversial figure, as he was a reformist before supporting the current government under President Mahmoud Ahmadinejad. The International Campaign for Human Rights in Iran, based in New York, has reported that Derakhshan has spent almost 10 months in solitary confinement and was tortured to force a confession. He was briefly released for two days in December 2010 on an unprecedented US $1.5-million bail.

Khadija Abdul Qahaar, also known as Beverly Giesbrecht

27


CROSS-CANADA FREE EXPRESSION REPORTS Compiled by Dan Blackwell, Anna Chen, Erin DeCoste and Jen Wilson

Yukon Newspaper sues another media outlet to disclose source CBC journalist Nancy Thomson’s fears about having to disclose her sources were allayed when she came to an agreement with Yukon News in March 2011. Both parties are keeping details of the settlement confidential. A doctor is suing the newspaper for defamation related to an editorial it published in 2004 about Thomson’s investigative report on the spike in drug abuse in Watson Lake, Yukon. Yukon News said it needed Thomson’s sources to defend itself, prompting what may have been the first case of one media outlet suing another over journalist-source confidentiality.

In 2007, the Canadian government passed Bill C-47: The Olympic and Paralympic Marks Act, giving organizers exclusive rights over the use of its trademarks and words associated with the Games. The following words were copyrighted by organizers and sponsors between Dec. 17, 2007, and Dec. 31, 2010: games • 2010 • tenth • medals Vancouver • 21st • winter • golD sponsor • whistler

Intended to prevent exploitative ambush marketing by non-sponsors, the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) estimates it handled more than 3,200 cases related to the Act, most of which were resolved without publicity.

28

British Columbia Court file access improved New access policies released in February 2011 by B.C. courts made all documents under publication bans available to the public, with the onus on the individual or media outlet not to publish. These changes emerged after an investigation by Victoria-based Times Colonist raised concerns about inconsistent access practices and an outdated policy that authorized withholding of entire files when a ban protects a name or selected information.

Court appeal to keep source confidential The Province is appealing a December 2010 ruling by the Supreme Court of B.C. that ordered its reporter, Elaine O’Connor, to reveal the source who gave her a report in 2007 alleging Liberal party MP Blair Wilson violated Canada Elections Act rules. Wilson was asked to resign from the party after the newspaper published an article about him in October 2007. He is suing for defamation.

Alberta Neo-Nazism in Calgary The leader of neo-Nazi group Blood and Honour, Kyle McKee, was sentenced to 60 days in jail in March 2011 for what the Crown prosecutor called “racist motivated threats” against communist and anti-racist activist Jason Devine. McKee made threats alluding to an attack on Devine at his home in November 2010, for which no charges have been laid. Calgary has the highest hate crimes rate in the country.

Saskatchewan Dissolving human rights tribunals The justice minister of Saskatchewan announced in April 2010 that the provincial government was in discussions with the province’s Human Rights Commission in regards to dissolving the Human Rights Tribunal. Cases would instead go before the Court of Queen’s Bench. An NDP justice critic believes the government is reacting to previous tribunal rulings not in its favour. Concerns have also been raised about individuals having to pay legal fees to defend their rights in court.

PHOTO: AMY SEPT

Free expression restored after 2010 Vancouver Games


CROSS-CANADA REPORTS

MANITOBA

Nunavut

NewfoundlanD & LABRAdOR

92.9 Kick FM loses controversial host

Whistleblowing fire marshal dismissed

A controversial radio host in Winnipeg was silenced when “The Great Canadian Talk Show” was cancelled from Red River College’s 92.9 Kick FM in November 2010. Host Marty Gold and his listeners maintain that this is a free speech issue, and claim that the college was pressured to cancel the show by the Winnipeg Free Press—a publication that Gold has criticized on several occasions. The college claims the cancellation was part of a wider restructuring process.

Tony Noakes Jr., Nunavut’s former fire marshal, was dismissed by the Government of Nunavut just before his one-year probation period ended. Noakes informed reporters that he had been told he would be fired after raising questions about the safety of several buildings, including the Baffin Correctional Centre. Built to hold 48 inmates, the centre held a record 102 inmates in May 2010. The same month, days before his dismissal, Noakes had filed a complaint with the RCMP about conditions at the jail.

Strengthening whistleblower protection In March 2011, St. John’s city councillors were informed that the city’s legal department was analyzing a draft bylaw that would give more protection to whistleblowers. The bylaw is meant to improve the city’s policy and strengthen existing protections. Councillor Danny Breen said the change was not driven by a specific event. The new bylaw will be voted on in council.

Criminal libel complaint against CBC journalists In April 2011, fashion titan Peter Nygård took an unprecedented step in filing a criminal libel complaint against three CBC journalists. Criminal libel is a rarely used section of the Criminal Code—if found guilty, the accused faces a possible prison sentence, whereas in civil libel cases the plaintiff sues for damages. Nygård claims there is an international conspiracy to discredit him and alleges the journalists defamed him in a documentary broadcast that depicted him as an abusive boss. The CBC’s lawyer is seeking to have the case dismissed on ground of being frivolous, claiming Nygård is seeking immunity from the public eye.

Ontario Protester arrested at police funeral In January 2011, a lone protester stood with a sign at the funeral procession for Sgt. Ryan Russell in Toronto. The sign read “Soldiers Die, Electricians Die and People Die” on one side, and “No Police State” on the other. The protester, Eric Brazau, says he was handcuffed and taken away by police after someone tripped him. The police stated Brazau was arrested for breaching the peace and because of an altercation with a bystander. He was released without charges a few hours later.

Security concerns hinder free speech at academic institutions A speech by conservative American lawyer and writer Ann Coulter at the University of Ottawa was cancelled in March 2010 due to alleged security concerns, including fears for her safety. Earlier, Coulter had also received a private and polite letter from the provost of the university, which highlighted Canadian hate speech legislation. Security concerns also hindered events involving controversial figures Norman Finklestein and Christie Blatchford at other Ontario academic institutions in 2010.

Quebec Quebec may distinguish between professional and amateur journalists Quebec’s culture minister commissioned a study on strategies to strengthen the province’s media, which was released in February 2011. Among the 51 recommendations was mandatory membership to the Quebec Press Council for all news organizations, creating a body to accredit professional journalists and demanding language testing for those seeking accreditation. The accreditation would create a distinction between professional journalists and amateurs. The report did not suggest what criteria would be used.

Union tests Quebec’s anti-SLAPP legislation Le Journal de Montréal’s workers’ union (STIJM) filed an anti-SLAPP petition (strategic lawsuit against public participation) against the journal’s owner, Quebecor, in December 2010. Quebec’s anti-SLAPP legislation challenges lawsuits that are intended to intimidate and silence critics with the cost of legal defence. Quebecor sought $125,000 in compensation for defamatory statements allegedly made by a member of the union. Quebec is the only province with this type of legislation in place.

Nova Scotia New bill restricts interviews about patient care Nova Scotia’s strict new Bill 89 could slap journalists with a $10,000 fine or six months in jail for simply asking about a patient’s health care. Created to protect patient confidentiality, the law requires explicit consent before any inquiry can be made. In a critical assessment submitted to the Nova Scotia Legislative Assembly in December 2010, University of King’s College journalism professor Fred Vallance-Jones said the bill could hinder media investigations into matters of public interest.

New Brunswick Libellous comments online In June 2010, a provincial judge ordered the Moncton daily Times & Transcript to disclose the identity of an individual whose online comments were deemed potentially libellous. The newspaper had refused to reveal the identity of the anonymous poster. This decision appears to be part of a growing trend of judges ordering newspapers to reveal anonymous posters in defamation cases. 29


Whistleblower Protection Still in Its Infancy in Canada

W

histleblowERS ARE important to free

expression. Why? They reveal information about corruption, illegalities and unethical behaviour that political parties and governments want to keep secret—information that a democracy needs. Whistleblowers are also critical sources for journalists, sources that will dry up unless the whistleblower and the journalist’s right to shield sources are protected. Canada is a notoriously tough place for whistleblowers, and despite minor improvements, the country generally lived down to its reputation in 2010. The case of Sean Bruyea, a retired Canadian intelligence official, highlighted the trend. Bruyea had returned from service in the Gulf War of 1991-92 with a diagnosis of post-traumatic stress disorder. His battle with Veterans Affairs began simply as passionate advocacy on behalf of Canada’s veterans, and as a vocal critic of the department’s New Veterans Charter initiative, both in the media and before Parliament. Unfortunately, the more successful his advocacy campaign, the more Bruyea found himself subjected to significant retaliation by officials at Veterans Affairs. His personal battle with the department expanded to include separate legal claims for damages against three officials and the Government, after he learned that officials involved in his medical care were linking his advocacy to his condition, and were providing information about his medical treatment and status to policy officials responsible for responding to his campaign. That case settled abruptly in November 2010 after a sustained media uproar following a report by federal Privacy Commissioner Jennifer Stoddart. She described as “alarming” her findings that sensitive medical information about Bruyea was repeatedly shared with officials “who had no legitimate need to see it.” Her report also confirmed that, since at least 2005, Bruyea and other veterans advocates had become the target of a concerted campaign by officials at Veteran Affairs, which included tactics such as withholding payment of 30

Retired Capt. Sean Bruyea at a news conference in Ottawa, 2006.

medical travel claims to discourage their advocacy. In this case Bruyea was vindicated—he received a formal apology from the minister of Veterans Affairs. The Bruyea case is particularly interesting because the primary senior “whistleblower” protection official at the federal level, Christiane Ouimet, then the public sector integrity commissioner, had earlier refused to investigate his case, claiming she was not convinced the conduct he was reporting amounted to “wrongdoing” within her legislative mandate. Apparently, a distinction could be drawn between direct wrongdoing in the administration of government affairs, and collateral wrongdoing by officials seeking to discourage legitimate public advocacy and criticism about how public policy and administration are carried out. Obviously, from a free expression point of view, this is a distinction without a difference. However, within a month, the credibility of the entire federal whistleblower protection system suffered another blow when the auditor general reported that Ouimet had engaged in inappropriate conduct towards her own staff. That conduct included berating, marginalizing and intimidating staff, and in one case involved retaliatory disclosure of personal information about a staff member who had blown the whistle on Ouimet’s own conduct. The auditor general’s report also found that Ouimet was failing to properly perform her mandated functions, including reluctance to investigate complaints

of wrongdoing in federal government administration, and decisions to close investigations that were not supported by the evidence on file. To put these events in context, it must be recognized that Canada’s efforts to protect whistleblowers are still in their infancy. It was only in 1985 that the Supreme Court of Canada recognized the “whistleblower” defence in public sector staff grievances. However, the Court appeared to limit the defence to cases in which an employee was disciplined or fired after reporting that the government was engaged in illegal acts or in policies that jeopardized the life, health or safety of the public. Subsequent efforts by lower courts to suggest that the Charter’s freedom of expression guarantee might broaden the availability of the defence and make it available “wherever the public interest is served” have met with little success pending reconsideration by the Supreme Court of Canada. In another notorious example of official retaliation against whistleblowing employees, Dr. Shiv Chopra and other Health Canada physicians were fired in 2004 after complaining of being subjected to pressure to approve veterinary drugs without adequate evidence of safety. The Federal Court of Canada set aside a decision by federal integrity authorities dismissing Chopra’s complaint, but only on the narrow procedural ground that the authorities failed to conduct the investigation in accordance with their mandate, and failed to investigate and analyze many of the issues and concerns raised. However, Chopra and the other complainants were not reinstated. A decision of the Supreme Court in 2005 may have signalled a somewhat more generous and sympathetic approach to the interpretation of whistleblower protection laws. It concerned the interpretation of a Saskatchewan statute that prohibited any employer from retaliating against any employee who reports conduct amounting to an offence to any “lawful authority.” Linda Merk, a bookkeeper employed by a

PHOTO: THE CANADIAN PRESS/TOM HANSON

By M. Philip Tunley


WHISTLEBLOWING simple law enforcement rationale, and located whistleblower protection squarely within the context of the Charter guarantee of freedom of expression and the broader public interest, when it stated:

PHOTO: THE CANADIAN PRESS/FRED CHARTRAND

Former integrity commissioner Christiane Ouimet on Parliament Hill in Ottawa, March 10, 2011.

labour union local, reported financial abuse by local union officials to the international union. The Supreme Court overturned lower court decisions that would have restricted the term “lawful authority” to public enforcement agencies, upheld Merk’s subsequent dismissal, and dismissed charges against the local union officials responsible. The Court held instead that, given the remedial purposes of the provision and its labour law context, the term “lawful authority” should include reporting “up the ladder” within the employer organization, to those who exercise the private law authority to remedy the abuses in issue.The Court noted that, even in a private employment context, the focus on conduct giving rise to an offence provides a sufficient “public interest focus” to support such a remedial, purposeful interpretation. Yet, the Supreme Court has since turned down several opportunities to revisit the scope of public sector integrity laws, notably in the 2006 case refusing leave to hear an appeal by former RCMP officer Robert Read. Within months thereafter, an independent report found the RCMP’s management “horribly broken” in relation to the treatment of RCMP officers who, in an unrelated instance, blew the whistle on the force’s pension fund scandal, and in relation to the subsequent delay of and interference with investigations into those allegations. However, as is noted elsewhere in this review in more detail, in 2010 the Court took further steps to recognize and extend whistleblower protection in the context of two important decisions about journalist source protection. First, in the National Post decision, the Court went beyond the

It is in the context of the public right to knowledge about matters of public interest that the legal position of the confidential source or whistleblower must be located. The public has an interest in effective law enforcement.The public also has an interest in being informed about matters of importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. Even more directly, in the Globe and Mail decision, the Court recognized the importance of not subjecting journalists to the same legal constraints and obligations that apply to their sources. For example, the sources may owe duties of loyalty and confidentiality to their employers. Those legal duties and constraints are very largely responsible for the slow and uneven development of direct legal protection for whistleblowers, even when expressly legislated. However, in the context of journalists’ source protection, citing U.S. authority, the Court stated: Moreover, there are sound policy reasons for not automatically subjecting journalists to the legal constraints and obligations imposed on their sources.The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. … [I]t would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not providing the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources of information. This ruling, combined with the Court’s broader protection of the identity

of journalists’ confidential sources, greatly strengthens the role of the press in whistleblower protection. On balance, then, 2010 can be seen as a year of small steps forward against the relatively unsympathetic legal status quo in Canada, in both direct and indirect protection of whistleblowers. First, the strong media support surrounding Bruyea’s case, and the response it created, demonstrate a significant shift in public perceptions of these issues, and resulting political sensitivities. Second, the Supreme Court’s recognition of a unique role for journalists, including their ability to protect confidential sources in appropriate circumstances, strengthens their role as an alternative, extra-governmental watchdog. Both developments will undoubtedly increase the pressures on public integrity authorities at both the federal and provincial levels to do a better job. However, both should also help to broaden the kinds of “wrongdoing” for which these protections are available. The analysis must move beyond its current focus on the sanctity of an employee’s duties of loyalty and confidentiality, and the resulting need to establish government involvement in illegal acts or in policies that jeopardized the life, health or safety of the public to override those interests. That focus properly caused diplomat Richard Colvin to disclaim the title of “whistleblower” altogether, and to point out that his terms of employment included the obligation to respond to a summons to testify about the Afghan detainee issue before a House of Commons committee when it was served on him. In other words, from Colvin’s perspective, employment in a public position includes an element of public accountability. Similarly, from a free expression perspective, it is surely essential that our entire scheme of whistleblower protection laws be extended to include a broader range of conduct that, to paraphrase the Supreme Court, the public has an important interest in being informed about, and which may only see the light of day when sources are able to speak confidentially and without fear of retaliation. Lawyer Philip Tunley is a member of CJFE’s Board of Directors. 31


FREEDOM OF EXPRESSION ON TRIAL 2010-11 By Peter Jacobsen and Paula Todd

Protection of the journalist-source privilege One crucial resource is the confidential source, without whom many of the most important stories in the world would never have been told. That’s why reporters shuddered when the RCMP obtained an order requiring National Post reporter Andrew McIntosh to turn over a document he’d been given that ostensibly implicated then-prime minister Jean Chrétien in a financial conflict of interest. In the course of its deliberations, the Supreme Court of Canada (SCC) established that the Charter of Rights and Freedoms does not provide a blanket right to protect sources. Rather, under common-law privilege, they applied the criteria for a case-by-case privilege for confidential sources of journalists, known as the Wigmore Criteria. The following must be present: the communication was made explicitly in exchange for a promise of confidentiality; the confidentiality was a pre-condition to the disclosure; the relationship between the journalist and source was diligently, deliberately and consciously fostered in the public good; and the public interest served by protecting the identity of the source outweighs the public interest in getting the truth. The Court ruled against journalist privilege in this case (as they found the fourth criterion was unmet) and required what turned out to be an allegedly forged document handed over. It should be noted that in this case the Court said the document was vital to the investigation of a serious crime and as such trumped the public interest in preserving the sanctity of the journalist-source relationship. On 32

the other hand, this was the first time that the Supreme Court had carefully examined the role of confidential sources and explicitly acknowledged that the media does have a right to protect confidential sources where it can meet the Wigmore Criteria. That privilege was extended later to non-criminal cases and to the law of Quebec after the Globe and Mail appealed a lower court order forcing journalist Daniel Leblanc to reveal a confidential source in the Liberal government’s sponsorship scandal. The Superior Court of Quebec had denied privilege and imposed a publication ban. However, eventually, the SCC ruled that the Wigmore Criteria as set out in R. v. National Post had not been properly considered or applied. The SCC allowed the appeal, sent the case back to the trial judge and rescinded the ban. importance of the open court principle Being able to protect a confidential source is just one of the tools journalists need to uncover the news. Being able to report on court proceedings and gather information pertaining to court proceedings are also key components of both an open justice system and a responsible press. Roadblocks, however, continue to arise. Mandatory publication bans on bail hearings fly in the face both of a transparent justice system and a judge’s discretion. In 2010,Toronto Star Newspapers Ltd. and others argued that a mandatory ban (when requested) on what occurs in the course of bail hearings is an unjustifiable violation of freedom of expression. The Court majority held that the limit on freedom of expression is justified, as the mandatory ban assists in safeguarding the right to a fair trial by protecting the jury pool from media reports of information that has not been challenged by the defence, and saves the accused from the delay and expense of seeking a publication ban in an additional hearing. But the mandatory nature of the ban also prevents the media and others from even challenging the advisability of such silencing on a case-by-case basis. Typically there may be a public interest in doing so in

Daniel Leblanc addresses the media in Ottawa, Oct. 22, 2010.

high-profile and important cases. Curiously, the SCC did not follow the Ontario Court of Appeal’s lead in ruling that where the trial is by judge alone, the mandatory ban is not justified because there is no need to protect the jury pool. There are other ways, too, of discouraging the media from asserting its right to report on the workings of the justice system. The Toronto Star, for instance, was ordered last year to pay more than $93,000 in court costs to Greg Fraleigh, who had sought a ban to prevent publication of allegations his ex-wife made about him in an earlier court action. After the Star lost the court battle protesting the publication ban, the Court found that Fraleigh was protecting his interests only, not advancing them, while the newspaper couldn’t deny there was some benefit to sales, and so the Star was ordered to pay legal costs. As the Star argued during the case, this decision potentially discourages the media from intervening on behalf of an open court. Yet, it is the media and interveners such as CJFE who are the gatekeepers of freedom of expression, continuously taking their fight to the court in order to keep the public informed. Even the usual activities and physical presence of journalists in the courthouses continues to be controversial. In 2011, the SCC approved the Quebec Superior Court’s new limits on the use of cameras and recorders, confining journalists to limited locations and prohibiting them from broadcasting official audio court proceedings. The SCC acknowledged this limited free expression, but decided that full access would have

PHOTO: > THE CANADIAN PRESS/PAWEL DWULIT

Journalism is one of the few professions in which even the tools of the job are difficult to acquire and keep. Whether thwarted by defensive politicians, secretive corporations, restrictive courts or terrified sources, many journalists know that trying to inform the public is a constant battle. A few court rulings in 2010 will make that task a little harder and a little easier, depending on your story and your field.


FREEDOM OF EXPRESSION ON TRIAL 2010-11

an adverse effect on the serenity of hearings, on truth-finding and on the privacy of participants, including witnesses, in the justice system. Yet, prohibiting the media from moving and working freely in a public courthouse arguably prevents them from being the unfettered eyes and ears of those citizens unable to be physically present in “open” court. Furthermore, while this rule was meant to protect witnesses from a courtperceived “media harassment,” it is overly broad in that it restricts the media’s access to the legal counsel arguing the very cases on which they are attempting to accurately report. Protecting lawyers from questions from the media by restricting where in the public area of a courthouse they can be interviewed is unnecessary and unjustified. The illogic of allowing a citizen the right to see and hear everything in open court so long as they are physically present, yet denying other citizens the same right (via broadcast) if they cannot afford the time or money to make the trip (or find a seat in the courtroom, for that matter) persists. Even the Aboriginal Peoples Television Network— with the support of First Nations Child and Family Caring Society of Canada and the Assembly of First Nations, parties to the hearing—couldn’t convince the Canadian Human Rights Tribunal to broadcast a crucial hearing into child welfare funding for First Nations children. On behalf of the respondents, the attorney general of Canada argued that filming may have negative consequences for those testifying, including intimidation, and that the media’s opportunity to attend, take notes and report on the hearing was sufficient to protect the public’s interest. The Tribunal agreed, despite arguments that First Nations people rely on the tradition of oral information sharing, and that some interested parties could not afford to be present to hear and see all of the hearing, relying instead on the abbreviated media reports. Arguably, the public’s ability to be informed is only as good as the media’s access to information and its ability to relay it. Every obstacle is tantamount to censorship—whether that is curtailing the use of cameras or secreting court evidence from media/public view. The CBC, for example, had to go to the Ontario Court of Appeal to win the right to access and copy court

exhibits in a preliminary hearing after Ashley Smith died in custody at the Grand Valley Institution for Women. The Correctional Service of Canada argued that the CBC should not have been granted any access to the exhibits. The Court upheld the right of media to access exhibits used in court decisions and did not find there was precedent to prevent the media from copying the exhibits. When an exhibit is introduced to a court without restrictions, the entire exhibit becomes a part of the record in the case. As important, the Court reiterated that there is nothing in law that permits a judge to impose his or her opinion about what does and does not need to be broadcast to the public. The right to know what your government is doing Nor is it up to the government to automatically assume its desire to keep information confidential is the deciding factor. In Canada (Attorney General) v. Almalki, the federal attorney general cited national security as justification for withholding information from three men, who were allegedly tortured in the Middle East due to misinformation supplied by Canadian officials. The Federal Court had to determine: a) whether the information was relevant to the court proceedings; b) whether it had been demonstrated that disclosure of the information would cause injury; and, c) where injury had been established, whether the public interest in disclosure outweighed the public interest in non-disclosure. The Court found that the document contained information relevant to the proceedings and that the attorney general did not sufficiently demonstrate that the harmful effects of providing the information outweighed the need for disclosure. Accordingly, the Court cautiously ordered the information be released in summary form only and with the exclusion of names of foreign officials to prevent harm. (The attorney general of Canada has appealed the decision in Almalki to the Federal Court of Appeal.) This ruling reinforces the notion that public interest in disclosure can outweigh a government agency’s desire to keep information confidential. It demonstrates

that claims of national security will not go unquestioned, and that without sufficient evidence, the claims will be dismissed.Access to information is one means of promoting a transparent and accountable government. For journalists, freedom of expression is more than a cherished Charter right—it is an essential tool of the workplace, along with the related necessaries of an open court system and access to information. These are the fundamentals journalists need to keep the public informed in accordance with their constitutionally protected right to freedom of expression. This year, the judiciary has produced uneven results: some well-reasoned decisions, but the lack of nuance  in the free expression cases is sometimes disturbing, as it results in unnecessary limits to freedom of expression. For instance, at the very least, the justification for maintaining mandatory bail hearing bans in cases heard by judge alone is very thin because in these cases there is no possibility of a tainted jury pool.Yet the Supreme Court of Canada did so. Similarly, there is no reason for the Court to uphold the geographic restrictions on interviewing legal counsel within Quebec courthouses— literally limiting journalists to designated areas in a public courthouse. If journalists are to do their work as effectively, efficiently and accurately as possible, our courts need to apply the least restrictive alternative doctrine with more rigour in the next year. Interfering with free speech should be a last resort. There were other important issues considered by the Canadian courts in 2010 and early 2011, such as defamation, hate speech and publication bans. A list of the major court cases at various judicial levels begins on page 34. It includes summaries and links to original documents and news coverage. Peter Jacobsen, a CJFE Board member and a partner in Bersenas Jacobsen Chouest Thomson Blackburn LLP, which among other things provides legal advice and litigation counsel to media outlets, journalists and private parties in freedom of expression and defamation matters. Paula Todd is a board member of CJFE and a W5 investigative journalist and legal analyst for CTV. 33


APPENDIX: MAJOR COURT DECISIONS 2010 Prepared by Jen Wilson

2010 SUPREME COURT OF CANADA SUPREME COURT OF CANADA R. V. NATIONAL POST, MAY 7, 2010 Journalist-source confidentiality In 2001, the RCMP obtained an order for a document that had been given to journalist Andrew McIntosh, then with the National Post. The document was alleged to be a forgery, and was provided on the condition of confidentiality. If genuine, the document would have implicated then-prime minister Jean Chrétien in a conflict of interest regarding a bank loan. The National Post argued that journalists have a right to protect confidential sources. The reviewing judge found only a speculative possibility that the document would provide evidence to identify the forger and set aside the order. This decision was overturned by the Ontario Court of Appeal, and the case was brought before the Supreme Court. In the course of its deliberations, the Supreme Court established that the Charter of Rights and Freedoms does not provide a blanket right to protect sources. Rather, under common-law privilege, they applied the criteria for a case-by-case privilege for confidential sources of journalists, known as the Wigmore Criteria. The following must be present: the communication was made explicitly in exchange for a promise of confidentiality; the confidentiality was a precondition to the disclosure; the relationship between the journalist and source was diligently, deliberately and consciously fostered in the public good; and the public interest served by protecting the identity of the source outweighs the public interest in getting the truth. The majority of the Court ruled that in this case, the fourth criterion was not met and that the National Post must hand over the document to the RCMP. While the Court ruled against journalist privileges in this case, it is the first time that the Supreme Court has explicitly acknowledged that the media does have a right to protect confidential sources; however, the right is not absolute and requires case-by-case rulings on whether the Wigmore Criteria are met. The burden of proof falls on the media party rather than on the Crown.

SUPREME COURT OF CANADA

SUPREME COURT OF CANADA

TORONTO STAR NEWSPAPERS LTD. V. CANADA, JUNE 10, 2010 Publication ban

ONTARIO (PUBLIC SAFETY AND SECURITY) V. CRIMINAL LAWYERS’ ASSOCIATION, JUNE 17, 2010 Freedom of information

This case examined the question of whether mandatory publication bans on bail hearings are a justifiable infringement of freedom of expression. Section 517 of the Criminal Code requires a justice of the peace to order a publication ban applying to evidence and information produced at a bail hearing, if the accused applies for one. A number of media organizations challenged the mandatory aspect of the ban, arguing that it is an unjustifiable violation of freedom of expression. The media are not prevented from publishing the identity of the accused, commenting on the facts and the alleged offence, or reporting on the outcome of the application, including conditions attached to the accused’s release. However, additional evidence and information have to be withheld until the ban ends, either at the end of the trial or when the accused is discharged after a preliminary trial. The Court majority held that the limit Section 517 places on freedom of expression is justified, as the ban assists in safeguarding the right to a fair trial. Without a mandatory ban, the accused would have the additional burden of a publication ban hearing, causing delays and using additional resources. However, the dissenting judge argued that Section 517 was an unjustified infringement, as the mandatory nature interferes with the open court principle. As the media would likely only contest bans on high-profile cases, the majority of court cases would not face opposition in implementing publication bans. By maintaining the implementation of publication bans, the Court is keeping limitations on the openness of the judicial system. The mandatory nature discourages deliberation on whether each ban is justifiable with the need to protect the accused outweighing the public’s interest. As the dissenting judge in the ruling indicated, the media would only take interest in publication bans on high-profile cases that are of interest to the public.

During a murder trial, the judge found instances of abusive conduct by state officials. The Ontario Provincial Police investigated and exonerated the police of misconduct without explanation. The Criminal Lawyers’ Association (CLA) requested, under the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), disclosure of records relating to the investigation. The minister of public safety and security refused without explanation to disclose the records, citing exemptions under FIPPA—Section 14 for law enforcement records, and Section 19 for solicitor-client privileged records. Some exemptions can be overruled when there is compelling public interest, but not these sections. The CLA appealed to the information and privacy commissioner, who held the decision without reviewing the minister’s exercise of discretion. The CLA then appealed this decision, arguing that it was unconstitutional that some FIPPA exemptions were not subject to potential public interest overrides. The Court of Appeal allowed the CLA’s appeal, concluding that the exemption scheme violated the Charter, and the case was brought before the Supreme Court.

The Court determined that the exemptions were not

in breach of the Charter, as the minister has discretion to disclose the documents and is not required to withhold them. In making a decision, the minister is required to consider the public interest. The Court held that while documents protected by Section 19 should be exempt from disclosure, those protected by Section 14 should be returned to the commissioner for reconsideration. The Court was concerned that the commissioner did not take into account his discretion to allow for disclosure, that no reasons were given for the decision, and that no parts of the document were disclosed.

The fact that the minister was never obligated to dis-

close his rationale for refusing to release the document is a cause for concern. If a government representative is denying access to information, full disclosure is necessary to ensure that exemptions in FIPPA are used appropriately and only when absolutely necessary. This was the first time the Court recognized that in some instances, freedom of expression

Court decision:

protects access to government documents.

canlii.org/en/ca/scc/doc/2010/2010scc21/2010scc2 COURT DECISION:

Court decision:

scc.lexum.org/en/2010/2010scc16/2010scc16.html

canlii.org/en/ca/scc/doc/2010/2010scc23/2010scc23.pdf

THE WIGMORE CRITERIA:

Summary from the Centre for Constitutional Studies:

www.sfu.ca/~palys/Wigmore.html

law.ualberta.ca/centres/ccs/rulings/Ontario_vCLA.php

CBC ARTICLE:

Ontario Freedom of Information and Protection of Privacy Act:

cbc.ca/news/politics/inside-politics-blog/2010/10/behind-the-

e-laws.gov.on.ca/html/statutes/english/elaws_

numbers-the-scoc-and-daniel-leblanc.html

statutes_90f31_e.htm

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APPENDIX: MAJOR COURT DECISIONS 2010

CANADIAN HUMAN RIGHTS TRIBUNAL

FEDERAL COURT

SUPREME COURT OF CANADA

CANADIAN HUMAN RIGHTS TRIBUNAL

FEDERAL COURT

GLOBE AND MAIL V. CANADA (ATTORNEY GENERAL), OCT. 22, 2010 Journalist-source privilege

FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA V. CANADA (MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT), MAY 28, 2010 Media access to courts

CANADA (ATTORNEY GENERAL) V. ALMALKI, NOV. 8, 2010 Access to information

The Globe and Mail appealed a decision made by the Superior Court of Quebec in 2009, which compelled journalist Daniel Leblanc to provide testimony that would reveal a confidential source. The appeal related to the Liberal government’s sponsorship scandal, in which a respondent in those proceedings is attempting to determine the identity of Leblanc’s source. The Globe and Mail argued that journalist-source privilege should be protected, and also protested the implementation of a publication ban. The Superior Court of Quebec did not acknowledge the privilege, and imposed the publication ban without notice or formal submissions from either party involved. The appeals were denied by the Court of Appeal for Quebec and came before the Supreme Court of Canada. The Supreme Court found that the previous ruling had not adequately considered the Wigmore Criteria in determining whether there was a case for journalistsource privilege. As set out in R. v. National Post, 2010, four criteria must be met in order to grant the privilege. The Court found that the previous ruling had not properly weighed whether the greater good was source confidentiality or public interest in the truth. The Court found that the Globe and Mail has grounds to appeal, and also quashed the publication ban, stating that it was implemented without proper procedure. The Wigmore Criteria, established in common law for the rest of the country, had not previously applied in Quebec. Journalists from Quebec are now provided with the same form of protection that their colleagues across the country have access to. Court decision: canlii.org/en/ca/scc/doc/2010/2010scc41/2010scc41.pdf Globe and Mail article: theglobeandmail.com/news/politics/supreme-court-bolstersprotection-of-medias-confidential-sources/article1768576/

In anticipation of the Canadian Human Rights Tribunal ruling on a complaint with the Canadian Human Rights Commission regarding child welfare funding for First Nations children, the Aboriginal Peoples Television Network made an application to film and broadcast the hearing. The network argued that denying the application would violate Section 2(b) of the Charter of Rights and Freedoms. The complainants, First Nations Child and Family Caring Society of Canada and the Assembly of First Nations, supported the application, adding that First Nations peoples on reserves across the country had an interest in the case, and that broadcasting the events would be consistent with the tradition of sharing knowledge orally. The respondents, represented by the attorney general of Canada, opposed the application, stating that filming may affect those testifying and that the ability of the media to attend, take notes and report on the hearing ensured the public’s interest in open court proceedings. The Tribunal found that denying camera access did not infringe on Section 2(b) of the Charter as it did not prevent the network from reporting, with limitations only on the method of reporting. The Tribunal conceded that the network could film and broadcast only the opening ceremony of the hearing on the merits of the case; beyond that, the network could not make audio or video recordings of the hearings. This interpretation of freedom of expression places limitations on the methods by which journalists can report. While it remains important that judges ensure the integrity of their courts is not undermined, access to information through various forms of media is a concern. As the appellant indicated, interested parties were unable to attend the hearing for geographic and socioeconomic reasons, severely limiting their ability to participate in a hearing open to the public.

The attorney general of Canada appeared before the Federal Court, making a case to withhold information from the respondents, citing national security. The respondents included three men who were allegedly tortured in the Middle East because of incorrect information supplied by Canadian officials. The document in question had been unintentionally released to counsel for the respondents, who declined to return it upon request and sought an order for the disclosure of all the information the attorney general was withholding. In order to address the attorney general’s request, the Court had to determine: a) whether the information was relevant to the court proceedings; b) whether it had been demonstrated that disclosure of the information would cause injury; and, c) where injury had been established, whether the public interest in disclosure outweighed the public interest in non-disclosure. The Court found that the document contained information relevant to the proceedings, aside from administrative details. The attorney general did not sufficiently demonstrate harmful effects of the documents being disclosed, and the Court ordered for the document to be released. In order to prevent potential harm, the Court allowed for the document to be released as a summary, which would exclude names of foreign officials and agencies. This ruling reinforces that public interest in disclosure can outweigh a government agency’s desire to keep information confidential. It demonstrates that claims of national security will not go unquestioned, and that without sufficient evidence, the claims will be dismissed. Access to information is one means of promoting a transparent and accountable government. Court summary: canlii.org/en/ca/fct/doc/2010/2010fc1106/2010fc1106.pdf Article from the Ottawa Citizen: oppenheimer.mcgill.ca/Judge-lifts-veil-on-national

page2/ Tribunal decision: canlii.org/en/ca/chrt/doc/2010/2010chrt16/2010chrt16.pdf

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APPENDIX: MAJOR COURT DECISIONS 2010

PROVINCIAL COURTS Alberta

Manitoba

Ontario

COURT OF QUEEN’S BENCH OF ALBERTA

COURT OF QUEEN’S BENCH OF MANITOBA

ONTARIO COURT OF APPEAL

PRIDGEN V. UNIVERSITY OF CALGARY, OCT. 12, 2010 Freedom of expression Two brothers attending the University of Calgary, Keith and Steven Pridgen, were disciplined for non-academic misconduct after posting negative comments about a professor on Facebook. Both were instructed by their dean to write letters of apology, and K. Pridgen was also placed on probation. The brothers appealed to the university’s General Faculties Council Review Committee, which sided with the dean. The appeal was then brought before the Court, with the brothers arguing that their right to free expression was infringed upon. The university argued that the Charter of Rights and Freedoms did not apply, as the school is a private body and its agreements with students are private law. However, the Court determined that the university acts as an agent of the provincial government in providing education services and that the Charter does apply in disciplinary proceedings. The Court found that the Pridgens’ right to free expression was infringed upon by the disciplinary measures, and rejected the argument that criticism of a professor must be restricted in order to maintain an appropriate learning environment. This decision demonstrated that Facebook and similar online forms of social media provide a forum for communication that should not be censored unless statements go beyond the protection of the Charter. As no charges of defamation or hate speech were brought against the brothers, their negative comments fell within their right to free expression.

DIRECTOR OF CHILD AND FAMILY SERVICES V. D.M.P. ET AL., FEB. 11, 2010 Freedom of expression In March 2008, a seven-year-old girl arrived at school with racist writing and drawings on her body. An abuse worker with Child and Family Services spoke with her and learned that her mother had made the markings, which included a swastika and the words “White Pride.” When the abuse worker asked if the girl understood the meaning of the markings, the girl explained that her mother and stepfather had taught her that “black people should die.” As the case went before the Court to determine custody, the stepfather’s arguments for custody included that the apprehension of his two children went against the Charter of Rights and Freedoms. He argued that it was an infringement on the right to free expression, as the markings on the girl were expressions of his belief of white supremacy. In response to this, the Court found that using the child’s body as a canvas did not fall under Section 2(b) of the Charter. A child does not have the legal capacity to consent to racist remarks being written on his or her body. In deliberating the facts of the case, which went beyond concerns of the markings on the child, the Court ruled in favour of the children being put in the custody of Child and Family Services.

R. V. KATIGBAK, JUNE 8, 2010 Freedom of expression Over the course of seven years, Robert Katigbak amassed 628 images and 30 video clips of child pornography, which he has admitted to in court. As an explanation, he stated that he had collected the material to use in an art project that would present the issue of child exploitation and pornography from the perspective of the exploited child. The art exhibit never happened, which Katigbak claimed was due to a lack of funding. In his original trial, Katigbak successfully argued that his actions fell under an exemption in the Criminal Code, Section 163.1(6), where an individual is not guilty of possessing child pornography if there is “a legitimate purpose related to the administration of justice or to science, medicine, education or art,” and there is no undue risk of harm to minors. The Crown appealed this decision. The Court of Appeal deliberated the competing values of protection of children and freedom of expression, which Section 163.1(6) is meant to create a balance for. In its considerations, the Court came to the conclusion that the trial judge had erred in placing too much emphasis on freedom of expression outside of the context of possession of child pornography. The Court overruled the decision and allowed the Crown’s appeal, registering a conviction. Court decision: canlii.org/en/on/onca/doc/2010/2010onca411/2010onca411.pdf

Court decision: canlii.org/en/mb/mbqb/doc/2010/2010mbqb32/2010mbqb32.pdf

Court decision:

Article from the Toronto Star:

canlii.org/en/ab/abqb/doc/2010/2010abqb644/2010abqb644.pdf

thestar.com/news/canada/article/764233--court-approves-

Article from THE CBC:

foster-care-for-children-taught-racist-beliefs

cbc.ca/news/canada/calgary/story/2010/06/11/calgary-

Steven Pridgen (left) and Keith Pridgen

36

PHOTO: CBC

facebook-student-court-pridgen-uofc-university.html


APPENDIX: MAJOR COURT DECISIONS 2010

ONTARIO SUPERIOR COURT OF JUSTICE

ONTARIO SUPERIOR COURT OF JUSTICE

ONTARIO COURT OF APPEAL

CANADIAN CIVIL LIBERTIES ASSOCIATION V. TORONTO POLICE SERVICE, JUNE 25, 2010 Freedom of expression

FRALEIGH V. GREAT-WEST LIFE ET AL., SEPT. 7, 2010 Court fees

R. V. CANADIAN BROADCASTING CORPORATION, NOV. 11, 2010 Access to court documents

In the buildup to the G20 Summit and the protests it would bring, the Canadian Civil Liberties Association (CCLA) took an active interest in the Ontario Provincial Police (OPP) and Toronto Police Service’s (TPS) recently acquired long-range acoustical devices (LRADs). LRADs can be used as a powerful loudspeaker or on an alert function that emits high-decibel, narrow-frequency sound waves. The CCLA sought injunctions to limit the use of LRADs in general and at the G20 Summit. They voiced concern that the use of LRADs against demonstrators during the summit would have a chilling effect and infringe on freedoms of expression and association. The Court determined that the OPP had stricter guidelines in place, and dismissed the request for injunctions; however, the Court also found that with the operating procedures of the TPS, there was a real likelihood that demonstrators would suffer from hearing damage. The Court granted the motion against the TPS in part, ordering it to refrain from using the alert function for land-based public safety applications. The Court provided that the injunction would be dropped if the TPS adopted the distance and volume limitations used in the OPP’s standard operating procedures. The CCLA welcomed the ruling, although it found the fact that it was only able to discuss the matter in a court setting to be unacceptable. The TPS had been unresponsive to earlier attempts by the CCLA to discuss the use of LRADs. Since then, the TPS’s policies have been revised multiple times in order to address public safety, and it is no longer solely relying on the manufacturer’s manual for information. Court decision: canlii.org/en/on/onsc/doc/2010/2010onsc3525/2010onsc3525.pdf

Article by CCLA: ccla.org/2010/06/25/ccla-welcomes-court-ruling-further-

In what the Court referred to as a “David and Goliath situation,” the Toronto Star was ordered to pay the court fees of Greg Fraleigh after it lost a court battle protesting a publication ban. Fraleigh was a non-party to a previous court action involving his ex-wife. He became aware that the Star intended to publish allegations made by his ex-wife, which included references to Fraleigh and his health. Fraleigh sought and was awarded a publication ban, then sought indemnity costs. The Star argued that it intervened to protect the public’s right to open court proceedings, and imposed costs would have a chilling effect on the media. It stated that if the media did not challenge these types of orders, no one would. The Court acknowledged that the Star may have been acting to preserve freedom of the press and open court proceedings, but commented that the Star could not deny there was some potential economic benefit from the sale of newspapers. The Court found that Fraleigh was seeking to protect his interests only, not to advance them. The Star was ordered to cover Fraleigh’s total court costs, which amounted to more than $93,000. As the Star argued during the case, this has the potential to put a chill on media intervening with publication bans and similar orders. The media can be seen as gatekeepers of freedom of expression, in that they are continuously taking their fight to the court in order to fulfil their purpose of keeping the public informed. Court decision: canlii.org/en/on/onsc/doc/2010/2010onsc4637/2010onsc4637.pdf

Following the 2007 death of Ashley Smith while she was in custody at the Grand Valley Institution for Women, four correctional officers were charged with criminal negligence causing death. During the preliminary inquiry, certain exhibits were introduced as evidence, including video recordings. After the Crown decided not to continue with the charges, all documents were released to the coroner for an inquest. The Canadian Broadcasting Corporation (CBC) sought access to the videos as part of an investigative documentary on Smith’s life; however, it was only granted partial access. As some of the videos were not played in full during the inquiry, the CBC was entitled to view and copy what was shown, but only to view (not copy) the portions of videos that had not been played. The CBC appealed the limitations placed on its rights to access and copy the exhibits. The Correctional Service of Canada (CSC) issued a cross-appeal, arguing that the CBC should not have been granted any access to the exhibits. The Court upheld the right of media to access exhibits used in court decisions and did not find there was precedence to deny media from copying the exhibits. When an exhibit is introduced to a court without restrictions, the entire exhibit becomes a part of the record in the case. Additionally, the Court indicated that there is nothing in law that permits a judge to impose his or her opinion about what does and does not need to be broadcasted to the general public. The Court granted the CBC’s appeal, and dismissed the CSC’s cross-appeal. Additionally, Smith’s mother had already given the CBC permission for the documentary, reducing concerns about restricting the information distributed to the public. By ruling in favour of the CBC, the Court upheld the right of media to access court exhibits and maintain open court policies to the benefit of the public’s interest.

restricting-lrad-use/ Court decision: canlii.org/en/on/onca/doc/2010/2010onca726/2010onca726.pdf

Article by CCLA: ccla.org/rightswatch/?p=1949

37


APPENDIX: MAJOR COURT DECISIONS 2010

Saskatchewan ONTARIO COURT OF APPEAL R. V. KHAWAJA, DEC. 17, 2010 Freedom of expression In 2008, Mohammad Momin Khawaja was the first person to be sentenced under Canada’s Anti-terrorism Act. Convicted on charges related to terrorism, Khawaja went before the Ontario Court of Appeal. One of his arguments was that the federal government’s definition of “terrorist activities” violated his Charter rights, including the rights to freedom of religion and freedom of expression. “Terrorist activities” had been defined to include acts that are committed “in whole or in part for a political, religious or ideological purpose, objective or cause.” Khawaja argued that this definition would have a chilling effect on those who would express beliefs similar to those held by individuals associated with “terrorist activity.” The Court found the argument of a “chilling effect” to be speculative, as the appellant did not provide evidence to support it. The Court stated that violent activities, even when they are meant to convey a meaning, are excluded from protection under Section 2(b) of the Charter. Additionally, the Court ruled that where the activities were not violent, they were contrary to and destructive of the underlying principles of the right to free expression. The definition of “terrorist activity” was upheld as the Court found the limitations this puts on freedom of expression were justified. Drawing on Supreme Court of Canada jurisprudence, the Court has tried to identify underlying principles of the right to freedom of expression: the pursuit of truth, participation in the community, and individual self-fulfillment. The Court determined that Section 2(b) of the Charter offers protection for forms of expression that advance these principles. If this ruling were to become generally adopted by Canadian courts, it could pose a significant restriction on the right to freedom of expression.

COURT OF QUEEN’S BENCH FOR SASKATCHEWAN

COURT OF APPEAL FOR SASKATCHEWAN

SASKATCHEWAN (ATTORNEY GENERAL) V. THATCHER, MARCH 5, 2010 Prohibiting profits from recounting crime

WHATCOTT V. SASKATCHEWAN (HUMAN RIGHTS TRIBUNAL), FEB. 25, 2010 Hate speech

Colin Thatcher was previously convicted of murdering his ex-wife, and was released on early parole after 22 years by the “faint hope” clause. Once on parole, Thatcher announced his intention to write a book maintaining his innocence. In response, the Government of Saskatchewan passed The Profits of Criminal Notoriety Act, which has a retroactive application and states that persons convicted of or charged with designated crimes are prevented from financially exploiting the notoriety of their crimes. Thatcher challenged that this infringed on his freedom of expression. The Court found that Thatcher’s rights and freedom of expression were not violated, and stated that he was not prevented from expression related to the crime, but from profiting from its notoriety. The Court upheld the legislation, and ordered Thatcher to provide the $5,000 payment he had received from his publisher, as well as forward additional earnings from the book, to the minister of finance. This was the first time that the constitutional validity, interpretation and application of the Act had been brought before judicial scrutiny. While the Court stated it did not prevent expression related to the crime, it prohibited the ability to profit from the expression. As this was only the first challenge to the legislation, the Act may be brought under further scrutiny in the future. Court decision: canlii.org/en/sk/skqb/doc/2010/2010skqb109/2010skqb109.pdf

In 2001 and 2002, William Whatcott produced and distributed flyers that were found to contain derogatory references to homosexuals. The flyers also contained opinions on the public school system teaching sexual identity and concerns over solicitation of underage partners for same-sex activity. Whatcott was brought before the Saskatchewan Human Rights Tribunal and found to be in violation of The Saskatchewan Human Rights Code. The Tribunal found his flyers to violate Section 14 by exposing individuals to hatred, ridicule and belittlement, or otherwise affronting their dignity based on sexual orientation. Whatcott’s first attempt to appeal the decision before the Court of Queen’s Bench was dismissed in 2007. Before the Court of Appeal, Whatcott maintained that while the language he used was blunt, he was exercising his right to freedom of expression and religion. He argued that characterizing his statements as discriminatory censored his speech and ended his participation in a public debate on a matter of public interest. The Court stated that questions of sexual morality are questions intricately involved in public policy as well as individual autonomy, and therefore they are worthy of protection from chilling effects. Comments expressing disapproval of same-sex sexual conduct in relation to public policy or sexual morality do not warrant limitations. The Court allowed the appeal. Whatcott’s appeal, scheduled to go before the Supreme Court in October 2011, is controversial. While his statements were blunt and offensive to some, the question before the Court is only whether or not he breached the Human Rights Code. An unpopular opinion is not sufficient reason to infringe upon someone’s right to freedom of expression.

Court decision: canlii.org/en/on/onca/doc/2010/2010onca862/2010onca862.pdf

Court decision:

Article from Osgoode Hall Law School’s The Court:

canlii.org/en/sk/skca/doc/2010/2010skca26/2010skca26.pdf

thecourt.ca/2011/01/10/ontario-court-of-appeal-gets-toughon-terror-with-canadas-first-terrorist/ The Anti-terrorism Act: justice.gc.ca/antiter/sheetfiche/terrordefp1-terreurdefp1-eng.asp

38


APPENDIX: MAJOR COURT DECISIONS 2011

2011

PROVINCIAL COURTS

SUPREME COURT OF CANADA

Alberta

SUPREME COURT OF CANADA

COURT OF QUEEN’S BENCH OF ALBERTA

CANADIAN BROADCASTING CORPORATION V. CANADA (ATTORNEY GENERAL), JAN. 18, 2011 Access to courts

Artur Pawlowski (right) was charged with violating City of Calgary bylaws.

The Superior Court of Quebec made changes to its rules

SUPREME COURT OF CANADA

of practice in 2004, limiting where journalists could use

FARÈS BOU MALHAB V. DIFFUSION MÉTROMÉDIA CMR INC., FEB. 17, 2011 Defamation

cameras and recorders within courthouses. Members of the media community (the CBC, Groupe TVA inc., La Presse Ltée

PHOTO: COURTESY ARTUR PAWLOWSKI

and Fédération professionnelle des journalistes du Québec)

R. V. PAWLOWSKI, FEB. 17, 2011 Freedom of expression Artur Pawlowski, a member of the Street Church Ministries, was charged with five violations of City of Calgary bylaws. The charges related to placing materials on a street (including tables, signs and a large wooden cross) and the use of amplification in a public park without permits. Pawlowski was preaching when the violations occurred, and he argued that prohibiting his activities was

argued before the Supreme Court that these limitations

In November 1998, radio show host André Arthur made

an infringement of his rights to freedom of religion and freedom

violated their right of freedom of the press. In response,

on-air comments that accused the taxi industry in Montreal

of expression. The trial judge found in his favour and acquitted

the government maintained that filming, taking photos and

of being unclean, arrogant, incompetent, corrupt and igno-

Pawlowski of all charges. The City appealed, arguing that while

conducting interviews in the public areas of courthouses,

rant of official languages. Arthur, who is known for his sen-

the bylaws may infringe upon Pawlowski’s freedom of expression,

and broadcasting the official audio recordings of court

sational remarks, made additional disparaging comments

the infringement was justified.

proceedings, were not protected by the Charter. Due to the

towards drivers who were Haitian and of Arab origin. Taxi

location of the activities, allowing them would have an

driver Farès Bou Malhab brought a class action suit against

charges relating to the first bylaw, relating to materials being

adverse effect on the serenity of hearings, on truth-finding

Arthur on behalf of 1,100 taxi drivers, including himself,

placed on a street. It agreed with the trial judge’s finding that

and on the privacy of participants in the justice system.

who identified as Haitian or of Arab origin. The trial judge

the word “material” was vague. While the term is defined

The Court found that the rules of practice did infringe

found in favour of Bou Malhab, ordering that $220,000 be

within the bylaw, it references items such as trash, gravel

upon freedom of expression, and noted the importance of

paid to a non-profit organization. Arthur appealed, and the

and building materials. The wording was vague enough to

subjecting such an infringement to close scrutiny; however,

Court of Appeal overturned that judgement.

also encompass everyday items such as the sole of a shoe or

the Court also deliberated whether the infringement was

a baby carriage, making the term overly broad and ineffective.

justified. In order to be justified, the infringement had to be

Canada, where the balance between freedom of expression and

due to a pressing and substantial concern, and there had

the importance of restricting harmful speech was examined. In

was overturned, as the Court examined potential infringe-

to be minimal interference with the right to free expression.

noting international trends regarding this balance, the Court

ments on Pawlowski’s freedoms of religion and expression.

The Court felt that there was sufficient evidence that without

identified an increasing concern about protecting freedom of

It determined that his freedom of religion had not been

the limitations on journalists, there would be adverse conse-

expression, with the law of defamation changing accordingly.

threatened, as the City was not impairing his right to preach,

quences, particularly in protecting the privacy of witnesses.

In clarifying the principles of civil liability for defamation, the

only prohibiting the use of an amplification system without a

It was determined by the Court that provisions had been

Court outlined a three-step analysis: 1) whether a reasonable

permit. While his freedom of religion had not been violated,

made to infringe as little as possible on freedom of expres-

person would have made similar comments in the same

the Court acknowledged that the trial judge and the City

sion by providing designated areas where journalists could

context; 2) whether an ordinary person would believe the com-

had previously agreed Pawlowski’s freedom of expression

film, photograph and interview individuals. Regardless, the

ments damaged the reputation of each group member, causing

had been infringed upon. The Court deliberated whether

limitations were upheld and journalists’ access to areas of

personal injury; and, 3) whether there is a connection between

this infringement was justified, and determined that it was

the courthouse was reduced. The open court principle is an

the comments and the personal injury.

a minimal impairment to ensure the healthy environment

essential part of maintaining the public’s confidence in, and

The Court ruled that in the eyes of an ordinary person,

that citizens of Calgary are entitled to. The bylaw does not

the accountability of, the justice system. Journalists provide a

the reputations of the drivers would remain intact. No one

prohibit public discourse but only limits volume. The Court

vital link between court proceedings and the public, and any

would reasonably believe that simply because a taxi driver

allowed the appeal and imposed the $100 fine associated

limitations placed on them affect the public’s access to the

is Haitian or of Arab origin, the driver would share the char-

with the violation. Pawlowski intends to appeal the decision.

judicial system.

acteristics Arthur attributed to the group. While the Court

The City of Calgary has spent more than $65,000 on the case,

found the comments to be both scornful and racist, there

which it feels is justified in defending the constitutionality of its

Court decision:

was not sufficient evidence that each member of the group

bylaws and in exploring the broader implications of balancing

canlii.org/en/ca/scc/doc/2011/2011scc2/2011scc2.pdf

had personally suffered damage to his or her reputation.

the rights of a group against the rights of the general public.

CBC article:

The Court affirmed that no one is entitled to compensation

cbc.ca/news/canada/story/2011/01/28/supreme-court-

“solely because he or she is a member of a group about

Court decision:

cameras.html

which offensive comments have been made.”

canlii.org/en/ab/abqb/doc/2011/2011abqb93/2011abqb93.pdf

The case was brought before the Supreme Court of

CCLA case summary:

The Court of Queen’s Bench upheld the acquittal of

The acquittal of charges relating to the second bylaw

Calgary Herald article:

ccla.org/2011/01/28/the-open-court-principle-can-be-limited-

Court decision:

calgaryherald.com/news/bylaw+battle+continues+with+Calga

supreme-court-says/

canlii.org/en/ca/scc/doc/2011/2011scc9/2011scc9.pdf

ry+street+preacher/4357465/story.html

Toronto Sun article:

CBC ARTICLE:

torontosun.com/comment/columnists/alan_

cbc.ca/news/canada/calgary/story/2011/02/22/calgary-street-

shanoff/2011/02/25/17412331.html

preacher-appeal-overturned.html

39


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