The Charter of Rights and Freedoms (“the Charter”)
Journalists in Canada, have occasionally, attempted to use the protections outlined in Section 2 of the Charter to prevent courts from ordering them to disclose their sources of controversial news stories, particularly in cases where journalists appeared to be relying on information from persons involved in or knowledgeable about those who were involved in crime. Journalists have largely been unsuccessful in protecting their sources. Our courts have most often determined that there is no constitutional immunity for ‘confidential’ journalistic sources, and accordingly, a judicial order compelling disclosure of sources did not violate this section of the Charter.
The concept is that freedom of the press is not absolute despite these limitations. Freedom of the press must consider the rights of others, inherent in the concept of a democratic society. The reconciliation of freedom of the press and the right of an individual to a fair trial does not infringe either right. Supreme Court of Canada has decided that in appropriate circumstances our courts may respect a promise of confidentiality given to a secret source by a journalist. The emphasis here is on the word “may”.
Although journalists were looking for a stronger interpretation of what purports to be a right pursuant to section 2 of the Charter, the best that they received was something akin to, ‘sometimes we will acknowledge the protection and sometimes we won’t.’ And here is where the courts apparently will not protect the right: whenever the public’s interest in protecting a secret source from disclosure is outweighed by other competing public interests, and, where the public interest in disclosure does outweigh protecting the secret source, a promise of confidentiality will not in such cases justify the suppression of the evidence.
Our courts have determined that the right to freedom of the press is not infringed because the press is free to publish the information after the case has been tried.
Thus, an accused person can have a fair trial only if the trial is not debated publicly by the press prior to a verdict.
The proper order of things is this: first the verdict, then the commentary by the press. While freedom of the press is vital to a democratic society, the accused also has a right to a fair trial as guaranteed by section 11 (d) of the Charter.5
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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