The federal government is tinkering with law in three specific ways that affect community newspapers. Details of these proposed changes can be found at www.parl.gc.ca.

For years, s. 486 allowed the court to ban publication of the identity (or "any information which could disclose the identity . . .") of a victim or witness in the context of sexual offences, extortion or blackmail. Under the new amendments, such a ban would be available "in any proceeding against an accused," that is, in any criminal proceeding whatsoever.

Parliament has radically expanded the cloak of secrecy available to witnesses and victims. The old discretion to ban publication made sense in its limited contexts. Otherwise, rape victims might have faced victimization all over again. High school students have been known to be particularly tough on other students in these sorts of circumstances, for example. Extortion and blackmail victims also obviously warranted special consideration.

Albeit that the old rape-shield protection was often appropriate in its contexts, it was, nonetheless, difficult in some cases. For example, the vagueness of "any information which could identify" often prevented publication of stories that not only were newsworthy, but also would have served the public interest. On balance, the old regime was not all that bad, especially because media could always apply to vacate or amend any particular ban.

The new regime will allow any witness or any complainant of any alleged crime to apply to have the same sort of protection as has heretofore only been available in the specific, narrowly defined contexts of rape and blackmail. As a result, one can expect that wealthy Canadians will be applying for bans whenever they become involved as witnesses or complainants in the criminal process. The rich will hire lawyers whenever it suits them, but the poor, of course, will not be able to do so.

Covering criminal courts will become very much more difficult for community newspapers under Bill C-79 since care will have to be taken to determine what particular ban has been pronounced, on which witnesses’ identity, and then the reporter or newspaper must delve into the history and circumstances of those witnesses to learn what information may serve to identify those witnesses. That sort of ban makes reporting very awkward. To be perfectly safe, newspapers must either print nothing at all, or be all-knowing, since otherwise it is hard to say in advance what information "could" identify whom. Let’s face it, newspaper journalists are good, but they are not all-knowing. Covering courts will become far more complicated and far more risky under Bill C-79.

Bill C-79 proposes a list of factors that the court must take into account when a witness applies for a ban. These factors are listed from (a) to (h). The majority of the factors concern the welfare, convenience and state of mind of the victim or witness (and not the broad public interest in an open court system). For instance, on the one hand, the judge MUST consider:

• Whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed.
• Whether the victim or witness needs the Order for their security or to protect them from intimidation or retaliation
• Society’s interest in encouraging the reporting of offences and the participation of victims and witnesses.

When Bill C-79 was at Committee in the Senate, a deputation of Canadian media lawyers appeared and argued against the Bill’s terms. No amendment was made. It is obvious that the new shield provisions will be the subject of a Charter challenge, at great public expense, all of which could have been avoided. The Senators observed that the legislation didn’t have to be perfect. This was tacit acknowledgment that the Bill is flawed, on a constitutional basis, and that Parliament is abdicating its role of defining valid measures and leaving that defining task to the courts.

The provisions affecting identification of "a young person dealt with under this Act" appear in ss. 109 to 118 and are affected by ss. 64, 75 and 2. Newspaper coverage of youth court (and cases raised to adult court) would be fundamentally altered under the Bill as proposed. For example, there is an argument that the wording protects young persons from identification in respect of prosecution, but not in respect of the commission of the offence. This is potentially a very significant change which will depend upon the court’s interpretation of the entirely untested language in s. 109(1). As of May 30, 2000, the Minister has proposed amendments to the critical section (109) but has not resolved whether the ban applies to the offence or just the prosecution.

Another example of a change concerns young persons raised to adult court. At present, they may be identified after the raise Order (although some media lawyers recommend further delay for the appeal period). Under the proposed legislation, identification of a raised young person was initially not available until the Court has determined whether the accused will be subject to a youth sentence or an adult sentence. After the Minister’s mid-stream amendments, identification of a young accused (as being prosecuted) must await the sentence. Obviously, in many instances sentencing arises only if the young person is found to have offended, and long after the commission of the offence. Suffice it to say that the rules regarding coverage of young persons, their offences, and youth court proceedings, are all set to undergo radical change.

Both the polling and the third party advertising provisions of similar BC legislation were struck down by Mr. Justice Brenner on February 9, 2000, on Charter grounds at the application of Pacific Press and a plucky Vancouver accountant, Garry B. Nixon. The BC legislation prohibited "third party" expenditure of more than $5000 on election advertising. It called for a fine of ten times any overrun. Mr. Nixon spent a little over $6000 during the 1996 BC election campaign, questioning the NDP government’s public accounting practices (of all things). When Mr. Nixon was charged, he brought a Charter challenge. Pacific Press joined him and contested the polling restrictions. Please note that Mr. Nixon’s alleged infraction took place in 1996. The legislation stood and was presumed valid from its enactment in 1995 to the year 2000. There can be little doubt that the provisions discouraged third party advertising and opinion polls throughout at least one BC general election campaign. It is to be hoped that Mr. Justice Brenner’s sage wisdom, in striking such provisions under the Charter, will be taken into account by Parliament so that these measures will be withdrawn and so that citizens and journalists need not brave prosecution, as Mr. Nixon did, to exercise our fundamental freedoms.

Copyright Notice, Year 2000

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