Figuring out how to protect freedom of the press

The architects of Canada’s constitution considered a free press so vital to democracy that they worked to grant it special protection. “Freedom of the press” is listed in the Charter right after freedom of expression in the spelling out of our fundamental rights. Listed separately, freedom of the press is clearly not meant to just protect free expression — although the press must have free expression, too — but also journalists’ ability to engage in, say, investigative work that requires reporters to promise confidentiality to their secret sources.

So it’s a bit surprising, then, that it might require a private member’s bill — emanating from the Senate no less — for the confidentiality of journalistic sources to finally receive robust legal protection in this country. Bill S-231 will, once passed, enact stringent protections for journalists acting to protect the identity of their confidential sources.

With a free press protected by the Charter, a bill like this shouldn’t even be necessary. But as a series of scandals have shown, it clearly is. Senator Claude Carignan introduced S-231 last fall following shocking revelations that Quebec police had been spying on dozens of journalists. In April, the bill was given an added burst of urgency following news that Canada had fallen yet again in the annual World Press Freedom Index. Now in 22nd place ( down from 8th in 2015), Canada ranks behind Samoa and Suriname and other countries most of us would have difficulty finding on a map.

But Bill S- 231 is by no means all it will take to fix the erosion of press freedoms in Canada. Both the Supreme Court of Canada and Parliament could do more to safeguard the press — although in the government’s case, “doing more” would sometimes require doing less.

Generally speaking, the Supreme Court has not been shy about giving broad meaning to the Constitution, interpreting most Charter rights liberally. But when it comes to the Charter’s press guarantee, the court has been surprisingly restrained. As Benjamin Oliphant (who, full disclosure, is a friend) observed in a 2013 McGill Law Review article, freedom of the press occupies a “neglected place in our constitutional framework.”

The Supreme Court, for instance, ruled in a 2010 case involving this newspaper (R v. National Post) that journalists’ protection of confidential sources did not merit a constitutional shield. The justices regarded it as dangerous to grant “constitutional immunity” to journalists’ newsgathering activities, reasoning that it would allow just about anyone to offer constitutional immunity to others who had told them secrets.

Instead, the court has generally preferred to analyze media cases through the lens of other Charter rights, particularly the freedom of expression. But as Oliphant points out, this framework isn’t always well suited to assessing media cases, because journalists engage in a range of newsgathering functions that are not directly “expressive” in nature.

He calls on the court to instead develop a separate Charter framework to evaluate cases of state interference with “non- expressive” press activity. This would be applied not only to confidentialsource cases, but other newsgathering activities as well— such as disputes over access to information requests, the openness of tribunal hearings, or other state conduct that might “chill” reporters. This framework would en- sure greater protection for journalists even without the government passing laws to protect specific press functions.

But enhanced constitutional protection isn’t the only way Canada’s media could be strengthened. Reporters Without Borders ( which publishes the Press Freedom Index) considers a country’s legal framework as only one of several factors when evaluating how free a nation’s press is.

It also looks at things like the “transparency of the institutions and procedures that affect the production of news;” the “degree to which the media are able to function independently of sources of political … influence;” and the “environment in which news providers operate.”

On each of these metrics, Canada could be doing a lot better. Just last week, federal Information Commissioner Suzanne Legault released her office’s annual report, which criticized the government for using its Access to Information Act to impede transparency, meaning the act is being used to undermine the very thing it was created to do.

The government, meanwhile, has shown itself to be unconcerned with the importance of media independence. In addition to owning and funding the biggest news organization in the country, it has more recently been consulting with industry leaders about the prospect of subsidizing incumbent media companies. If media organizations began to rely on the government as a source of survival, journalistic independence would be difficult to find just about anywhere.

Finally, and not unrelatedly, Reporters Without Borders considers the “environment and self- censorship” factor. The government certainly isn’t responsible for the kind of Twitter mobbings and toxic online comments that might encourage journalists to bite their tongues more often than they used to. But Ottawa does subsidize many of the media organizations that were embroiled in the recent cultural appropriation debate that resulted in some journalists being disciplined or dismissed. The CBC demoted Steve Ladurantaye as managing editor of The National news broadcast over his politically incorrect tweeting. If there is one workplace that you’d expect to stand up for an employee’s right to express controversial opinions, you’d think it would be a newsroom.

Of course, it’s easy to lose sight of such principles when, like the CBC, an organization’s main aim is to please. And when newsrooms start acting like politicians in this regard, it’s a worrying sign that our Charter ideal of a free and independent press is in serious trouble.

THE SUPREME COURT HAS NOT BEEN SHY ABOUT GIVING BROAD MEANING TO THE CONSTITUTION.