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.”
Restrictions
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 at www.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
Ex parte
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.
Factum
A lawyer’s brief that states the facts in a case.
Fiduciary
Person who agrees to act for the benefit of another (e.g., a trustee).
Habeas corpus
Latin for “you must have the body.” Ancient writ to
demand the delivery of a person in custody to court, to prevent
lawless detention.
Injunction
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.
Malfeasance
A wrongful act. “Nonfeasance” means the wrongful omission
of a duty.
Obiter dictum
Opinion by a judge on an issue not important to the resolution of
the case and not binding on other courts.
Prima facie
Latin for “on first appearance.”
Reasonable person
A standard for behaviour that courts expect from people. This person
is fair, rational and avoids damage due to negligence.
Standards of evidence or proof
· "Balance of probability": The standard of proof
in civil cases, meaning the claim in all probability is true; that
is, the probability is more than 50%.
· “Beyond a reasonable doubt”: The stronger standard
used in criminal cases, meaning clear proof beyond a reasonable
doubt.
Sub judice:
Latin for “before the courts”. If a case has entered
the judicial process, this is, in effect, a warning not to do anything
that might jeopardize a fair trial.
Subpoena:
Court document ordering a person or thing to be presented to a judge
at a given time and place.
Third party
Person who is not party to an agreement or event, but has an interest
in it.
Tort
A civil wrong (e.g., defamation) that violates a duty imposed by law.
Voire dire:
A trial within a trial to determine the admissibility of some form
of evidence, with the jury not present in the court room
Voire dire
A trial within a trial to determine the admissibility of some form
of evidence, with the jury not present in the court room.
Writ:
A court document authorizing an act or making an order.
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):
Civil proceedings
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)
Publication bans
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.
