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Speaker's Corner: Press freedom matters to lawyers

U.S. political journalists and the public they serve are, by any measure, in uncharted waters. Even prior to his election, President Donald Trump began destabilizing, disregarding and dismantling well-established norms of press freedom.

In remarkably short order, a country that for so long was in large measure defined by its First Amendment witnessed a groundswell of “fake news” allegations from a president who has referred to journalists as “really disgusting” individuals who are, the president assures his faithful, “the enemy of the people.”

As Trump’s efforts to thwart the very essence of the First Amendment — selectively blocking journalists from media briefings, refusing to answer difficult questions and employing staff who come up with “alternative facts” — become the new normal, U.S. media lawyers and journalism ethicists have reacted with predictable (and entirely reasonable) alarm about the president’s subversion of the practices that are, at least in theory, protected by the First Amendment.

These issues may seem removed from Canada. But they aren’t. Given our responsibility to uphold the Charter of Rights and its associated values, Canadian lawyers should respect and defend press freedom — now more than ever, given what is unfolding in the U.S.

A few short years ago, the collective gaze of many of those leading media ethicists was trained on Canada — or, more specifically, Toronto — as another mercurial and combative politician engaged in similar skirmishes with Canadian journalists. The dominant view of those U.S. experts? While Mayor Rob Ford’s efforts to manipulate and freeze out the media might be tolerated in Canada, such maneuvering simply wouldn’t fly in the U.S.

Obviously, the First Amendment remains intact, but its heft now seems more apparent than real. As a lawyer and media ethicist, I’d like to smile smugly and make a glib remark about the short-sightedness of those U.S. experts, but I can’t, because there’s far too much at stake. The bottom line is this: Even in a (relatively) stable democracy, press freedom and access to information is perpetually vulnerable and, sometimes, ephemeral. The victories are often partial, and progress isn’t necessarily linear.

While the current reality for most Canadian journalists appears to be far removed from the animus experienced by an increasing number of their U.S. counterparts, the overall state of press freedom in Canada is coloured by myriad challenges to freedom of expression and access to information. Reporters Without Borders, an international non-governmental organization affiliated with the United Nations, recently revealed that Canada’s commitment to press freedom continues to atrophy — it placed Canada 22nd in the world on its press freedom index, down from eighth in 2015.

“Several members of the press have been under police surveillance in Quebec in an attempt to uncover internal leaks,” the index’s section on Canada explains. “A VICE News reporter is currently fighting a court order compelling him to hand over communications with his source to the Royal Canadian Mounted Police, while another journalist for The Independent is facing up to 10 years in prison for his coverage of protests against a hydroelectric project in Labrador.”

While not directly related to journalists’ freedom of expression, a troubling trend in criminalizing activities that might reasonably be seen as falling within the ambit of s. 2(b) of the Charter has come to light in my research.

In recent years, there has been a resurgence in the charge of criminal defamatory libel, a Criminal Code provision that, as far back as 1984, was deemed an unreasonable prohibition on speech by the Law Reform Commission of Canada. While the increase in defamatory libel prosecutions has been marked, these cases have largely been ignored, perhaps because, unlike other jurisdictions in which defamatory libel still exists, journalists are rarely the target of prosecutions. In 2016, the Committee to Protect Journalists reported that criminal libel laws in the Americas are used primarily to intimidate and “limit the debate on issues of national interest.”

That appears to be a common theme in Canadian cases — the use of the law is a move that amplifies the power imbalance between the individual citizen and the state; as such, it is the process, i.e., the act of investigating and charging, that is the punishment. In this regard, even where charges are ultimately dropped, the individual dissenter has already paid a price, in part because of the powers police possess once engaged in a “criminal” investigation. For example, in a recent B.C. case, armed police searched a home and seized two computers, an iPad and an iPhone from the family of a man who was being investigated for allegedly defaming an RCMP officer. That investigation did not result in charges.

The fact that all of this is unfolding at a time when we are witnessing unprecedented attacks on journalism in the U.S. should give us further pause, just as it should serve as a poignant reminder that even seemingly entrenched rights can be swiftly obliterated. When that happens, citizens — not just journalists — are robbed of a cornerstone of democracy, as April Ryan observed on a recent edition of the CNN news program Reliable Sources.

Ryan, an author and award-winning White House correspondent for American Urban Radio Networks, told the program’s audience, “When you talk about the freedom of the press, it’s not just about us, it’s more about you.”

It is about you — or, more accurately, about all of us. For this reason alone, it is an important time to be critically interrogating the rationale for, and nature and scope of, press freedom in Canada.

Professor Lisa Taylor is a faculty member at Ryerson University’s School of Journalism and the author of The Unfulfilled Promise of Press Freedom in Canada (University of Toronto Press, 2017). She is a former CBC journalist, a former practising lawyer and a member of the bar in Ontario and Nova Scotia.

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Law Times poll

A Law Times columnist says given the responsibility to uphold the Charter of Rights and its associated values, Canadian lawyers should respect and defend press freedom. Do you feel press freedom in Canada is under threat?
Yes, there are ongoing criminal cases involving journalists doing their jobs, that concern me.
No, considering the international climate, Canada is a free, fair and open place when it comes to press freedom.