The Unfulfilled Promise of Press Freedom in Canada ed. by Lisa Taylor and Cara-Marie O'Hagan (review)

How has freedom of the press fared in the thirty years since the Canadian Charter of Rights and Freedoms was enacted? That is the broad question asked by this collection of essays, which is based on a 2012 conference at Ryerson University marking the thirtieth anniversary of the Charter. The answer is obvious from the title.

First some of the good news. When it comes to reporting on the justice system, two important Supreme Court of Canada decisions since the Charter – Dagenais v. Canadian Broadcasting Corp. and R. v. Mentuck – established a presumption in favour of open courts, whereby any publication ban would have to show that there is a risk, well grounded in evidence, that publicity could threaten the administration of justice, such as a fair trial. But, in practice, this presumption is not clear-cut. As Ryder Gilliland notes, the Supreme Court has also upheld parts of the Criminal Code that allow broad publication bans on bail hearings and cases involving multiple accused. In 2010, for example, people did not learn about the sentencing of Terri-Lynne McClintic, who had pleaded guilty in the murder of eight-year-old Victoria Stafford from Woodstock, Ontario. McClintic's co-accused, Michael Rafferty, had sought the ban on the grounds that it would jeopardize his right to a fair trial.

Gilliland argues that while the judicial process is more open now than before the Charter, there still appears to be a broadly held view in the courts that pretrial publicity harms fair-trial interests. This runs against the liberal view that the administration of justice needs to be performed in the full view of the public. Publication bans are also common in cases involving victims of sexual assault. While this may at first appear logical, Lisa Taylor notes that these bans make it difficult for victims to speak publicly about their experiences, should they so desire. According to Taylor, many victims find that speaking out helps them heal and allows them to help others. But they are forced to fight legal battles in order to have bans lifted that were presumably intended to protect them. News organizations that disseminate these stories are also drawn into legal proceedings. While this volume could not have anticipated the #MeToo movement, it is especially poignant today that sex assault survivors often find their presumed right to free expression constrained by publication bans.

In this and many other instances, news organizations must fight lengthy court battles in order to clarify or establish certain rights. Journalists like Robert Koopmans have even found themselves working as "guerrilla lawyers," reminding courts of the principles outlined in Dagenais and Mentuck. Part of the problem, according to Jamie Cameron, is that the courts have been reluctant to grant any special status for the press under the Charter. Such status is necessary, she argues, because the press is our primary means for holding government and other sources of power up to scrutiny.

Among other things, this involves obtaining information about government administration. And, in many cases, governments find ways to avoid sharing this information. As Fred Vallance-Jones and Suzanne Craig point out, access to information in Canada is hardly a model of efficiency and transparency. Craig describes how access requests are often dragged out by political actors reluctant to reveal embarrassing information. As with so many other aspects of press freedoms in Canada, a lengthy process for obtaining information puts the onus on those who have requested it.

Many press freedoms have been achieved since the introduction of the Charter, though at considerable cost. And, overall, Canada still falls well short of the liberal ideal of a truly free exchange of ideas. But Ivor Shapiro and Bruce Gillespie encourage members of the press to do a little soul searching as well. Gillespie argues that the press could do a much better job of articulating to the public the importance...