Ethics and law are separate spheres but they overlap in theory and practice. In theory, ethics justifies laws and legal practices (see the section on Nature of Ethics).
The Supreme Court of Canada, where the Dagenais ruling was laid down. Photo by Peregrine981.
Situations in journalism raise both legal and ethical questions. In many newsrooms, whether an action is legal is considered to be the first hurdle that any action must clear, before ethical issues are raised. Also, ethical standards such as fairness and accuracy are used in court cases to evaluate stories for libel and other legal problems. How free is the Canadian press, legally?
From a legal perspective, the “freedom of the press” is guaranteed constitutionally by Section Two of the Charter of Rights and Freedoms. But the charter also states in Section One that fundamental freedoms in a democracy can be limited for justifiable reasons. Hence, press freedom is not absolute, legally.
Canada: Charter of Rights and Freedoms (1982)
Section 1: Guarantee of Rights and Freedoms“The Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Section 2: Fundamental Freedoms“Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”
In addition, there are many laws, criminal and common, provincial and federal that place legal restrictions how the press gathers information and what it publishes. Some of these laws and procedures are:
1. Court decisions involving news media, based on the Charter
2. Criminal laws: against trespass and recording communications; to force journalists to reveal their confidential sources, to appear as court witnesses
3. Restrictions on trial coverage, such as publication bans on evidence and identity of witnesses.
4. Search warrants and injunctions: warrants to search newsrooms and homes of reporters. Injunctions to stop publication.
5. Civil or non-criminal law: The main restriction is defamation law, but there is a host of other restrictions in covering family court, disciplinary tribunals and so on.
6. Restrictions on newsgathering and publication due to:
• Anti-terrorism laws
• Elections Act
• Young Offenders Act
• Privacy laws and access to information laws
• Copyright law
• Broadcast law and decisions of regulators
The Federal and Provincial Justice Department sites are a resource for laws, changes to laws and background on the legal system. The federal Department of Justice is atwww.canada.justice.gc.ca
Common legal terms Confused by legal mumbo-jumbo? Following are definitions of key terms, taken in part from Michael Crawford’s A Journalist’s Legal Guide, 4th ed. Toronto: Carswell, 2002.
Affidavit A written statement of facts sworn under oath, based on personal knowledge, not hearsay.
Amicus curiae Latin for “a friend of the court.” The court allows an outside party with an interest in the case to present their views.
An “information” and indictment An “information” is a sworn statement charging a person with a criminal offence. Usually the first document presented to a judge of a lower court. An “indictment” is an information written for a higher court (e.g., superior court).
Appellant The party appealing a decision; the other party is the “respondent.”
Circumstantial evidence A consistent set of facts that do not directly prove the case but, by deduction, tend to lead one to a conclusion.
Damages Compensation claimed or awarded for damage. Compensatory damages replace actual loss; punitive damages punish the wrongdoer and can be added to compensatory damages.
De facto/de jure De factor is Latin for “in fact”; De jure is Latin for “in law” or ”in principle.”
“Defendant” or accused
Under criminal law, the person(s) or entity charged.
“Crown” or “the Crown”:
The state, as represented by the prosecuting attorney
Latin meaning “from one side.” A court may grant an ex parte injunction to stop an act when time is of importance even though only one side is heard.
A lawyer’s brief that states the facts in a case.
Person who agrees to act for the benefit of another (e.g., a trustee).
Latin for “you must have the body.” Ancient writ to demand the delivery of a person in custody to court, to prevent lawless detention.
Court order commanding someone to do or not do some act.
Hearsay and innuendo
Hearsay is evidence of a person not at trial to testify as to its veracity, e.g. “John told me he saw Mary at the hotel.” Rarely allowed as evidence. An “innuendo” is an implication or suggestion.
Criminal law Laws that apply to wrongful behaviour so serious as to be considered crimes, punishable by the state, e.g., fraud, murder. Criminal matters are not “civil” disputes between private parties in society. They are matters that concern the state and its criminal justice system. In Canada, criminal law (unlike common law) is federal law, and it applies across Canada, under the Criminal Code of Canada. Federal government makes all criminal law. Provinces cannot make a law with a penal sanction. In a criminal trial, the Crown prosecutor acts for the state against the defendant. If convicted, the defendant has committed a crime.
There are two levels of criminal offences: Summary or indictable. Indictable: an offence that is punishable by jail of two years of more. Summary: maximum fine of $2,000 and/or six months in jail . Civil (private) law that apply to wrongful behaviour but are not treated by the criminal system. In many cases, courts, using civil laws, resolve disputes between individuals (or groups).Civil laws can deal with relations between persons, unions, companies or organizations. Examples of civil laws are breach of contract law, libel law, divorce law, property law, corporate and commercial law, labour law and copyright law.
Civil laws are not uniform across Canada but vary by province, e.g. libel law. While civil law in Canada outside Quebec is based on the tradition of English common law, which stresses previous decisions, traditions and precedents, the Quebec civil law is based on the Napoleonic code, which stresses principles.
A violation of civil law is not a crime against the state. A civil case is between a plaintiff and defendant (not between “accused” and Crown, as in criminal cases). In a civil suit, no one is found guilty or not-guilty. Rather the court “finds” for or against one of the parties and issues a settlement, which could include a fine to cover monetary and other damages. The standard of proof in civil cases is a “balance of probabilities,” which is weaker than the standards of “beyond a reasonable doubt” in criminal cases.
top Basic court procedures (in chronological order):
1. Notice of "Intention to Sue": usually required within a specified time period.
2. Notice of Action or “writ”: a special document signalling the formal start of a lawsuit. All parties named.
3. Filing of “pleadings": the statement of allegations and claims, followed by statement of defences, within time periods. Journalists can report, but claims often exaggerated.
4. Examination for Discovery: Chance for each side to question the other on facts of the case. Closed to public.
5. Pre-trial conference: Judge may attempt to settle dispute or procedural issue by meeting with both sides.
6. Trial: By judge or jury. Open to public.
7. Appeal: usually must occur within 30 days.
Criminal Court Procedures
1. Investigation and Arrest/Charge
2. First appearance: usually procedural: determination of type of offence, level of court.
3. Bail Hearing (where necessary): Ban on publication on evidence.
4. Preliminary hearing (indictable offences only): usually a ban on publication until trial is over, or the accused is discharged.
5. Trial: Moves from presentation of evidence to judges charge to jury (where jury exists) to verdict to sentencing (if found guilty). During the trial, there may be a voir dire over admissible evidence. Jury sent out of court. Can’t publish until jury retires to consider verdict.
Covering the courts Journalists can run into trouble when covering the courts in a number of ways. These violations come under the title of “contempt of court”:
• misbehaving in court (e.g., recording proceedings where prohibited; causing a disturbance)
• violating a court order (e.g. violating a publication ban)
• violating the principle of “sub judice”: if a case is before the courts, it is risky to publish anything that may
jeopardize a fair trial.
• “scandalizing” the court (e.g.. questioning the objectivity or character of the judge)
The proliferation of court-ordered publication bans is a serious issue in Canadian media law. The advent of on-line journalism makes many bans, such as the ban on evidence at preliminary hearings, extremely difficult -- if not impossible -- to enforce.
Types of publication bans:
Automatic: Judge does not have to make an explicit ruling. For example, there are automatic bans on the identities of young offenders, on evidence during a voire dire, and on confessions by defendants (entered as evidence during a preliminary hearing).
Mandatory: Judge imposes a ban if requested by the prosecutor or the defence. For example, evidence at a bail hearing or the name of a victim of sexual assault.
Discretionary: Ban is tailored to the specific case and its circumstances
Journalists should be especially alert to possible bans at:
• Preliminary hearings and bail hearings
• Voire dires (see legal terminology section)
• Young offender cases
• Charges involving sexual assault
• Custody and family matters
Why attend preliminary hearings if there is a ban on evidence?
• If the accused plea bargains, or the hearing ends abruptly, journalists can publish evidence.
• Otherwise, journalists can publish evidence when trial ends.
• Journalists should be in court to act as public watchdog on the justice system.
• To gain important background on the case before a trial starts.
In 1994, the Supreme Court of Canada handed down a landmark ruling on publication bans and news media in the case of Dagenais versus Canadian Broadcasting Corporation. The ruling dealt with limitations on the scope of bans and it named factors that courts must consider before issuing bans that might infringe on freedom of the press. In a 6-3 ruling, the court ruled that the freedom of the press can be of equal or greater importance as the right to a fair trial.
The Dagenais case arose from a cross-Canada publication ban against the broadcast of a fictional drama, “The Boys of St. Vincent,” set in Newfoundland, which portrayed child sexual and physical abuse in a Roman Catholic orphanage. The ban was issued by a lower-court judge after hearing an application by lawyers for four members of a Catholic order in Ontario charged with the sexual and physical abuse of young boys in Catholic training schools.
The judge reasoned that since the men would face trial soon in Ontario, the TV drama could jeopardize their fair trial rights. The judge ruled that the drama could not go to air until after the four trials, and he also agreed to ban any publicity about the application for the ban. The CBC appealed, but the appeal court agreed with the lower-court decision. However, the appeal court did limit the ban to Ontario and Montreal and it did away with the ban on publicizing the original ban.
The Supreme Court ruled that in “post-Charter Canadian society” the common law principle of protecting against a fair trial “does not provide sufficient protection for freedom of expression.” The court laid down a “modified rule” that a ban should be issued only when:
• Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
• The salutary effects of the public ban outweigh the deleterious effects of the free expression of those affected by the ban.
The court said the issue is which constitutional right is more important at the time of application. The party, Crown or accused who wants a ban bear the burden of justifying this limitation on freedom of expression. Also, the judge issuing a ban must keep it as limited in scope as possible.
The court noted that judges need to consider seriously alternate measures to bans, such as changing trial venues, sequestering jurors, allowing challenges and voire dires during jury selection, and providing strong direction to juries.
The supreme court listed reasons as to why publication bans are not healthy for the justice system as a whole, because not ordering a ban may:
• Prompt persons with relevant information to come forward
• Prevent perjury by placing witness under public scrutiny
• Prevent state or court wrongdoing by putting the justice system under scrutiny
• Promote public discussion of important issues.
For more on the Dagenais case, see Chapters One and Seven of Crawford’s A Journalist’s Legal Guide.