Ms. D’Angelo believes that the families would have preferred charges under the Young Offenders Act to publication of the images. If true, the families’ preference would seem to illustrate that the Act is not serving as much of a deterrent on young people or their families.

In any event, the issues posed by Ms. D’Angelo deserve some review. One narrow legal point concerns the effect of the Crown’s decision. As a matter of law, it is arguable that Crown counsel has a discretion. Thus, probably, where an offence has occurred in a technical sense, Crown counsel can probably exercise its discretion not to proceed with charges, even if there is a substantial chance of conviction. It is a contentious point. The scope of the Crown’s discretion is seldom vigorously challenged when the choice is not to charge. Who would mount such a challenge? Certainly not the person who might have faced the charge. So the law that limits the Crown’s discretion is not a large body of cases, based on well-funded argument.

In our democracy, with a decision not to charge, the Crown risks a public hue and cry. A given Crown lawyer can be overruled by Regional Crown all the way to the Attorney General. Questions can be raised in the legislature, and have been, far more frequently than court challenges to the Crown’s discretion.

But the public won’t know enough to hue or to cry unless photographs like Ms. D’Angelo’s are printed.

The foregoing is a longwinded way to say what an editor once said: "It’s hard to argue it’s an offence for one purpose and not another." Having let the kids off, it’d be tough for Crown to decide the photos depict "an offence" so far as the newspaper is concerned, and therefore it should be charged.

Furthermore, there hasn’t been a charge under the Young Offenders Act against a newspaper in BC, it seems, for years. Inadvertent breaches galore; no charges: the risk of Ms. D’Angelo’s photographs seems slight. This is not to say, "ignore the Act," but, rather, that her proposal seems the right place to push the envelope. It’s newsworthy and more than a little arguable. There would be minimal risk of a prosecution because it would look like a double standard.

A few years ago, the foregoing would have been all the thinking that might have been necessary before approval of publication. More recently, however, we are seeing the rise of PRIVACY. The novelist, W.P. Kinsella, is suing his former lover for her "tell-all" account in Vancouver Magazine. He’s alleging breach of privacy rights. The Supreme Court of Canada recently upheld a Quebec civil damage award in Aubrey v. Edition Vice-Versa Inc. The magazine had published a photograph of the 17-year-old claimant sitting on the steps of a building in Montreal. The photograph was taken from a public place and did not injure the Plaintiff’s reputation, but was published without her permission.

Robert Friedland argued privacy to restrain broadcast of "jump interviews" conducted on a public street and, for a while, he succeeded. Publication of the names of gay witnesses were banned lest the publicity serve to "out" them and invade their privacy. In the Chappell and Charlie v. Duncan Citizen cases, breach of a publication ban constituted breach of privacy.

The list goes on, and on, and on – PRIVACY is argued and, little by little, is becoming an interest in the eyes of the law to be balanced with other interests. We know this because the Supreme Court of Canada has mused on the subject. So far, there is no case, here in BC, that says you can’t print news photos taken from, and of, a public place, a place that admits the public freely.

Publication of the photographs of gun-wielding youth(s) raise and illustrate matters of public interest. They concern public safety and the administration of justice by the Crown. They should be, and they should remain, publishable. They are news.

For now, journalists should not be dissuaded by arguments based on an individual’s PRIVACY and nothing more. Mercifully, here in BC and the Yukon, these PRIVACY arguments have not had legal force unless there is also a breach of some other law. That’s what Ms. D’Angelo was checking – was publication a breach of the Young Offenders Act? All the same, the stand-alone PRIVACY arguments are being made more and more frequently with more and more force and more and more effect on judges. The best antidote to this trend is good aggressive journalism so that the public values and expects the news, both text and pictures. That value and that expectation are the most eloquent influences on the course of the law. PRIVACY is, at present, one of the greatest threats to freedom of the press. So get out there and "invade" – in a defensible manner.

For all the courts may say they’re guided by principles of freedom, what they often do (with privacy and other threats to press freedom) is reflect the norm of society’s expectations. People won’t continue to expect news photos of public events unless they see them frequently. You need a "hook" of public interest, like any other part of your paper, but you shouldn’t be too frightened of PRIVACY.