Freedom Of Expression and the Charter: 1982-2022 (Part 4 of 5)

Part 4 of a 5 Part Series:

Newsgathering, open court, and freedom of the press and media

Section 2(b)’s democratic values: openness, transparency, and accountability

The fourth in this blog series on freedom of expression under the Charter addresses the open court or open justice principle and freedom of the press and media. Juxtaposing the two reveals how differently the Court responded to two issues that support the democracy-promoting values of openness, transparency and accountability. Over the years I have praised the open court doctrine as the most principled branch of the Supreme Court’s s.2(b) jurisprudence. This doctrine is grounded in the Court’s recognition that openness and its underlying values of transparency and accountability are directly connected to the legitimacy of the justice system. Although attention to the open court principle has tapered in recent years, the bedrock is in place and the doctrinal foundation is strong.

Meanwhile, freedom of the press and media under the Charter tells a different story. To start, s.2(b) guarantees freedom of expression and adds, “including freedom of the press and media”. It is difficult to know how this textual signal, positioning the entitlement as an offshoot or subset of expressive freedom, affected the Court’s conception of a free press. Even as it endorses its vital role in democratic governance, the Court has steadfastly refused to interpret and enforce freedom of the press as an independent Charter guarantee.  

Open justice/open court

Open court and public access to court proceedings predated the Charter and are an established feature of common law tradition. Though statutory and judge-made limits closing courtrooms and imposing publication bans were too easily made, there was never a doubt that openness was the baseline or default principle of the justice system.

Justice Dickson’s pre-Charter decision in Nova Scotia v. MacIntyre is the template for open justice under s.2(b). It would be difficult to overstate the importance of his conclusion that – once executed – search warrants are subject to the open justice principle. Explaining that “covertness is the exception and openness the rule”, Dickson J. added that the “sensibilities” or privacy of those involved are no basis for limits on openness. In imperative terms, he held that public accessibility can only be curtailed where it is necessary to protect “social values of superordinate importance”.

Perhaps in part because of its foundation in common law tradition, the open court principle encountered little resistance under the Charter and evolved quickly after 1982. The key decisions in constitutionalizing open court are Edmonton Journal v. Alberta, Dagenais v. CBC, CBC v. New Brunswick, R. v. Mentuck/ONE, and Re Vancouver Sun, which was decided in 2004 and marked the highwater mark for s.2(b)’s open court jurisprudence.

Edmonton Journal invalidated a statutory publication ban on the disclosure of information in matrimonial proceedings, and was followed by Dagenais, which set the fair trial rights of priests charged with committing offences against young victims against the CBC and its plan to air “The Boys of St. Vincent”.  The lower court not only prohibited the CBC from broadcasting the docudrama anywhere in Canada, but also banned publication of the fact of the application and any material relating to it until the trials were over.

Prior to Dagenais, the common law favoured the preservation of fair trial over access to information about the criminal justice system. Stating that there is no hierarchy of rights, Chief Justice Lamer’s majority opinion declared that s.2(b)’s guarantee of expressive freedom is the co-equal of s.11(d)’s right to a fair trial. He adapted the Oakes standard of justification to judge-made orders and prescribed a robust two-step standard for publication bans. Under this test, a ban cannot be granted unless it is necessary to prevent a real and substantial risk to fair trial – because alternative measures are not reasonably available – and the salutary effects of a ban outweigh its deleterious consequences for open court.

Before long, the Dagenais test was generalized to other open court contexts. In CBC v. New Brunswick, Justice La Forest’s majority opinion adapted it to the administration of justice, and after Mentuck confirmed that modification the standard was known as the Dagenais/Mentuck test. This test and its insistence on an evidentiary foundation for limits is more rigorous than other branches of the s.2(b) jurisprudence. In New Brunswick, La Forest J. emphasized the need for a “sufficient evidentiary basis” to justify restrictions on access to court. In the circumstances, he found no undue hardship to the privacy of young sexual assault victims during a 20-minute hearing on sentencing. On a different view of the competing interests, particularly the privacy of these victims, that decision could easily have gone the other way.

New Brunswick also addressed the nexus between open court, transparency and accountability values, and the role of a free press in a democratic society. Justice La Forest stated that “[d]ebate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press”. In addition, he held that freedom of the press not only encompasses the right to transmit news, “but also the right to gather this information”. As he observed, a press guarantee would have little value if it did not include protection for newsgathering activities.

In Re Vancouver Sun, the Court divided 5-4 on the constitutionality of closed investigatory hearings under the Criminal Code’s anti-terrorism provisions. One suspects the Court did not welcome a mechanism that involved judges in the investigative process of the state. In this instance, an investigatory hearing on the Air India crash was held entirely in secret, in the same courthouse and in parallel with the Air India trial. Justices Iacobucci and Arbour pushed back hard against the proposition that adherence to the open court principle would compromise the investigation. Stating that the level of secrecy imposed was unnecessary, they confirmed that the presumption of openness can only be displaced after considering the competing interests at every stage of the process. At the very least, the majority opinion’s insistence on open court made the use of this controversial investigative mechanism considerably more difficult. Any reading of Justice Bastarache’s dissenting reasons would confirm that the majority opinion placed open court at its very apex.

Toronto Star v. Ontario, decided in 2005, marked the final step in building an open court doctrine. There, the Court spoke of “more than two decades of unwavering decisions” in affirming that access to search warrants is presumptively favoured. Focusing again on the evidentiary basis for limits on open court, Fish J. held that a sealing order is only available when particularized grounds show that disclosure would subvert the ends of justice.

Toronto Star marked the point at which the momentum for unwavering decisions on open court began to falter.  In 2010, and over Abella J.’s dissent, the Court upheld the Criminal Code’s mandatory publication ban – at the request of an accused – on information disclosed at bail proceedings. In 2011, no member of the Court dissented from two decisions from Quebec rejecting open court issues about access to exhibits and access to court spaces for newsgathering purposes, such as courthouse interviews.

Though the Supreme Court wavered and the lower courts struggle to comply with its requirements, the open court doctrine is robust. I have often said that the Dagenais/Mentuck test and standard of a sufficient evidentiary basis for limits on open court are a model for s.2(b). As earlier blogs explain, the Court dilutes the Oakes test to avoid protecting s.2(b), especially where controversial or objectionable expressive content is at stake.  In lieu of an evidentiary basis, the Court relies on the low value of expressive content and common sense – as a proxy for evidence of harm – to justify limits on expression. This double standard can and should be addressed by aligning s.2(b) content jurisprudence with open court’s robust standard of justification.

Freedom of the press and media

The Court took a different view when police sought access to newsgathering materials through search warrants, productions orders, or disclosure of a journalist’s confidential sources. In this setting, the Court professed to protect press interests through common law and judge-made rules, but consistently refused to treat interference with newsgathering as a violation of s.2(b).

A search warrant or production order against a member of the press engages s.8’s guarantee of a reasonable search and s.2(b)’s press clause. In CBC v. Lessard and CBC v. New Brunswick, decided in1991, the Court upheld search warrants against the CBC, finding that any implications for the press could be absorbed into s.8’s concept of reasonable search. After stating that the press should receive special consideration, Cory J. treated its status as the target of a police search as the “backdrop” to the s.8 analysis. In addition, he maintained that a member of the press should be just as willing to volunteer information to the police as a member of the public. Meanwhile, L’Heureux Dubé J. declared that the press has no “special privileges” under s.2(b). These remarks misapprehend the purpose of a free press and its need for independence from the state in discharging its role as the “watchdog” of democracy.  

Though the “Lessard framework” incorporates press considerations into s.8 – like the availability of alternative sources of information – these criteria are an inadequate proxy for the s.2(b) and its free press clause. There is a principled difference between rolling s.2(b) considerations into s.8 and finding a violation of  s.2(b) that requires a guarantee-specific analysis. Justice McLachlin saw the difference and dissented on her own in both CBC cases. She extolled the values of a free press, found a violation of s.2(b), and proposed a robust analysis to test the validity of search warrants. She was the only member of the Court to focus on s.2(b) and also to find that both search warrants unjustifiably violated freedom of the press.  

Many years later, the Court had an opportunity to re-consider the Lessard framework in R. v. Vice Media, a decision that unanimously upheld production orders against one of Vice Media’s journalists. The majority opinion refined the analysis but flatly refused to address s.2(b), maintaining that s.8 protects the interests of the press. Justice Abella’s concurring opinion all but erupted on the page, calling for recognition of the constitutional role of a free press and a harmonized analysis, with proportionality balancing under s.2(b) to test state interference with newsgathering. Her forceful advocacy for a constitutional concept of the press did not prevail, but led to a 5-4 divide in the Court.

Though Vice Media showed some insight into the role of the press, the Court remained unwilling to protect the press and media under s.2(b). This blind spot is also found in the Court’s response to confidential sources and the journalist-source privilege. 

In R. v. National Post, Justice Binnie candidly aired his objection to a constitutional approach, stating that throwing a “constitutional immunity” around an ill-defined group of writers and speakers and their “sources” would “blow a giant hole in law enforcement and other constitutionally recognized values such as privacy”. There, the Court refused to protect a journalist’s confidential source (i.e., a document sent in a plain brown envelope) in a years-long and prize-winning investigation into the so-called Shawinigate scandal and possibility of corruption in the Prime Minister’s Office. After paying obeisance to the value of a free press, the Court dismissed the Charter, concluding that the generic common law standard for privilege – the 4-part Wigmore test – was sufficient to protect the interests of a free press. In this, the Court missed the point on the onus of proof (i.e., which rests on the journalist under Wigmore), and what was at stake in a lengthy process of investigative journalism.

To some degree, Globe and Mail v. Canada, which was decided around the same time, provided important correctives. There, the role of a confidential source – “ma chouette” – was pivotal in bringing the Quebec sponsorship scandal to light. Without shifting the burden of proof, LaBel J. introduced a safeguard that first requires any party seeking access to a confidential source to establish the relevance of the evidence. In this way, the Court imposed a threshold, gate-keeping onus on the party seeking disclosure to establish the relevance of that information. Under this approach, the burden does not shift to a journalist until that threshold is met.

Globe and Mail also considered the impact of a source’s conduct in illegally disclosing information to a journalist. The issue arose in discussion of the publication ban but addressed the status of confidential sources. One of the difficulties in protecting an anonymous source is that some secrets have to be kept (i.e., the identity of a source) so that others (i.e., the details of the sponsorship scandal) can be told. Justice LeBel held that a journalist is not prevented from using information that is illegally disclosed by a source, because “the breach of a legal duty on the part of a source is often the only way that important stories, in the public interest, come to light”. Importantly, Globe and Mail acknowledged the pivotal connection between newsgathering, investigative journalism, and the role of confidential sources.

It is disappointing that the Court’s journalist-source decisions circumvented s.2(b) and took few steps, apart from the rhetorical, to customize the Wigmore test to the constitutional status of the press and media. At the initiative of Senator Carignan – and at the time of the Chamberland Commission – Parliament responded in 2017 with the Journalistic Sources Protection Act (JSPA). This legislation addresses the deficiencies of the Wigmore test, creates a presumption in favour of journalist-source privilege, and prescribes statutory standards for determining when the public interest in disclosure outweighs the privilege that attaches to journalist-source relationship. The JSPA shifts the burden of proof from the journalist, who is required under Wigmore to prove that the confidential relationship should be protected, to the party seeking disclosure of a confidential relationship that is presumptively protected by law. As the Court noted in Denis v.Coté, a decisions discussing the JSPA, that on its own marked a significant shift in the law.

The JSPA is an important initiative but not a fix-all. It is federal legislation and applies only to federal law. In addition, it adopts a definition of journalist that limits the JSPA’s protections to those who are engaged in the occupation of journalism. Still, the legislation offers a model for the courts to follow, and the JSPA’s principal recommendations can migrate to the common law through a process of judicial adoption.

Conclusion

The Court unfailingly acknowledges s.2(b)’s democratic values and applauds the democratic role of a free press. While the open court doctrine vigorously supports those values, the jurisprudence on the press and media does not. There, the Court purports to protect the press but refused to constitutionalize its newsgathering activities. Yet as La Forest J. recognized, in the context of open court, that is what distinguishes this entitlement from freedom of expression, and defines its core. Freedom of the press must be recognized and protected as an independent Charter right that rests on distinctive underlying values that are of central importance to democratic governance.

This blog series is not comprehensive in its reflections on the first forty years of s.2(b) jurisprudence under the Charter. The final segment will address the concept of positive rights under s.2(b) because it is a rising concern in the jurisprudence, and end the series with an outline of my proposal for an overhaul of the s.2(b) methodology. The goal of that proposal is to set the Charter’s guarantee of expressive freedom on a principled basis, under a holistic approach that revises doctrine under s.2(b)’s concept of breach and s.1’s standard of justification for determining reasonable limits.