Book Review: The Unfulfilled Promise of Press Freedom in Canada

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Reviewed by Paul F. McKenna
Adjunct, School of Graduate Studies
Dalhousie University
In CLLR 43:2

The Unfulfilled Promise of Press Freedom in Canada. Edited by Lisa Taylor & Cara-Marie O’Hagan. Toronto: University of Toronto Press, 2017. ix, 277 p. Includes bibliography and index. ISBN: 978-1-4875-0037-5 (paper cover) $29.95.

This collection of essays sheds light on developments that have altered the status of freedom of the press in Canada. It largely began as presentations to a conference co-sponsored by the law and journalism research centres at Ryerson University in 2012.

The work is divided into four parts reflecting on specific aspects of press freedom: internal pressures, court processes, institutional secrecy, and the Charter. Part 1 looks at the internal pressures on press freedom in Canada. At the centre of the treatment of this theme are two concerns. First, it is reasonable to assert that while journalism is an important craft, it is decidedly not a profession. Unlike law, engineering, medicine, and other “true” professions, virtually anyone may operate as a “journalist” if they are engaged in the quotidian task of delivering “news” through some media outlet. This reality poses a persistent and profound problem for those who wish to claim some high moral ground for journalism, per se. Second, the disruptive breadth and relentlessly expanding scope of technological change is creating chaos for every media outlet and platform. Journalism, as preached and performed by people like HL Mencken and George Orwell, is largely dead and the new models are ill-defined, in flux, and well outside the bounds of any professional “control” or regulation.

One noteworthy paper considers the changing business model of modern media and serves to secure the argument that the higher public interest purpose of journalism is more myth than reality, more aspirational goal than actual mission. Norman Landry’s essay on the alarming existence of strategic lawsuits against public participation (SLAPP) is less about freedom of the press and more pertinent to the sad truth that the law may be enlisted for purposes that are clearly anathema to the public interest. When large corporate interests are able to control the levers of the media and aspects of the legal system, there is little that conventional journalism can do to rescue the public interest.

Part 2 looks at press freedom, court processes, and relevant sections of the Charter. The importance of the Ashley Smith case (i.e., Smith v Porter (Judicial Review) (ONSC 2011)) is discussed highlighting the bene t of judicial review when seeking to permit the public access to shocking, yet vital, evidence of governmental wrongdoing. The presence of cameras and the use of Twitter in the courtroom is also considered and underscores the reality that technology appears to further endanger the future of conventional journalism.

This part also looks at the important Dagenais-Mentuck test dealing with the complex matter of publication bans in court proceedings. Lisa Taylor addresses the fraught issue of the relationship between the Criminal Code and sexual assault complainants. Taylor makes the argument that victims should be free to self-identify, if only as a component of their own healing. The capacity to speak is elemental to the empowerment of women.

The role of news reporters in leveraging the criminal justice system is nicely pro led in an essay by Robert Koopmans. He begins with a reminder of R v Mentuck (SCC 2001) where the Supreme Court set aside a publication ban involving a “Mr. Big” investigation. It is puzzling that the RCMP continue to deploy this awed investigative technique.

Part 3 considers institutional secrecy and provides a clear view that public and private corporations continue to strain against the demands for openness, transparency, and access to information. Of course, it is not difficult to comprehend the need to protect certain categories of data where policy inputs are in flux and final determinations have not been made. Nor is it surprising that trade secrets, proprietary data, and other kinds of information need protection in our current capitalist environment. However, as Suzanne Craig elaborates in her contribution on municipal access to information, there remains a fundamental tension that exists in virtually all Freedom of Information and Protection of Privacy (FOIPP) legislation.

Part 4 is decidedly the most interesting aspect of this collection, although it contains only two essays. Jamie Cameron’s examination of section 2(b) of the Charter is illuminating. Cameron argues that the courts should be more willing to invoke the freedom of the press elements of 2(b) in order to properly defend this institution. It may be that the judges have proven themselves wise in resisting arguments in favour of privileging the “press” under the aegis of section 2(b). This section actually encompasses freedom of thought, belief, opinion, and expression. In their willingness to support and sustain press freedom as something aligned to these other freedoms protected under 2(b), the court has looked more appropriately to the common law tradition for principles guiding matters of open justice and newsgathering rather than pinpointing the press freedom cited in section 2(b).

James Allan raises some alarm over the threats to press freedom embedded in aspects of our human rights regime. He uses the example of Mark Steyn’s writing in Maclean’s to highlight the potential for a “chilling effect” on a free press. Steyn’s journalistic commentary on the flaws of multiculturalism and his provocative critique of Muslim culture brought him into conflict with human rights agencies in Canada. Allan argues that the Charter of Rights and Freedoms adds nothing to Canadian freedom of the press.

In the concluding essay, Ivor Shapiro encapsulates the discussion taking place during the conference on the thirtieth anniversary of the Charter. With journalists, legal scholars, and others engaged in dialogue about press freedom in Canada, it is revealed that victories have been won for access to court proceedings, protection of confidential sources, and disclosure of relevant court documents. Certainly, what the best journalists do when they are performing on behalf of the public interest may be stirring, substantial, and salutary. But it remains unclear as to whether our formal news media can survive the tsunami effects of social media as it evolves and continues to envelope the dissemination of information.

Overall, this publication offers a range of valuable insights and useful reminders about the challenges that face both freedom of expression and freedom of the press. Lawyers and judges across Canada will continue to play a pivotal role in preserving (or preventing) that sanctity from being realized, which is why this is an important acquisition for any law library collection that seeks to address these interrelated issues.