Recently, we have seen the emergence of a body of law and jurisprudence in Quebec that affirms and strengthens the right of individuals to the protection of their privacy. Quebec is at the forefront of Western nations in the development of legislation protecting personal information, extending the scope of the law to information held in the private sector. Quebec law also recognized the tort of breach of privacy long before it became a hot topic of discussion in the aftermath of the car crash that killed Princess Diana and her boyfriend last summer.

One area in particular has evolved recently into a more controversial debate: in the context of the publication of a picture of a person, taken in a public place, how can we reconcile the right of the individual to privacy and the right of the publisher to free expression. Two recent cases, presently under appeal, have highlighted this tension between two of the most fundamental rights, both protected by our Constitution, by the Civil Code and by the Quebec Charter of Rights and Freedoms.

These two cases will be discussed in this paper, as examples of the struggle to find the balance between equally protected rights, in the context of private litigation. We will also discuss the emergence of new rules attempting to protect the rights of individuals who find themselves involved with the criminal justice system, and the impediments on the freedom to access and report information relating to judicial proceedings brought on by those rules.

I. The Protection of the Image or Likeness

In a decision rendered last year, the Quebec Court of Appeal startled the media with a ruling that established the qualified right of an individual to control the use of his or her image, even when the individual is in a public place.

The picture at the centre of the controversy was taken by street photographer Gilbert Duclos. It shows a young woman, looking pensive, head tilted to the left, sitting on the front step of a building on St-Catherine street in Montreal. There is nothing revealing or personal about the picture. It is not provocative in any way and the Court of Appeal concluded that the publication of this picture did not defame the plaintiff.

The picture was published in Vice-Versa, an arts and literature magazine with a circulation of a little over 700 copies. It was given free of charge by the photographer to the magazine, for publication in an issue on city living. The picture represented photographer Duclos’ personal view of urban life.

The three judges of the Court of Appeal decided that publishing this picture without the subject’s consent was a violation of her right to anonymity, a component of the right to privacy. The first judge awarded $2,000 in moral damages to the plaintiff, based on evidence of embarrassment. The majority of the Court of Appeal, while ruling that there was no defamation in the publication, refused to revise the award of damages. Mr. Justice Baudouin, dissenting, stated that the publication was made in violation of the plaintiff’s privacy rights, but that the record showed no evidence of moral damages caused by this wrongful act. He would have allowed the appeal.

This judgment has created tremendous uncertainty amongst photographers, publishers and broadcasters in Quebec. Is consent always required before a picture taken in a public place can be published ? How are damages assessed in cases where the publication breaches an individual’s right to anonymity ? Is there any defence related to news gathering and if so, what is its extent ?

The right to anonymity

In setting the limits to the right to anonymity, the Court of Appeal ruled that a person does not automatically waive the right to privacy when stepping out of their home. Mere presence in a public place does not abolish a person’s right to remain anonymous, unless he or she is engaged in public life. Mr. Justice LeBel noted that [Translation]« The right to anonymity only gives way to a legitimate right to inform the public ». He goes on to state that when a person has voluntarily engaged in public life (through their artistic, cultural, professional or political activities), there may be a legitimate right to public information. There may also be a legitimate right to public information in scenes involving an event of public interest, even if the people photographed were not voluntary participants in the scene, provided it can be demonstrated that the scene could not be photographed without catching them in it. « Involuntary participants » become « accessories » to the event, and cannot enforce their right to anonymity.

The Court specifically refused to recognise that the right to anonymity could be limited in any way by the right of artistic expression. The publication of this picture did not contribute to the circulation of « socially useful information » says Mr. Justice LeBel, leaving the courts with the daunting task of determining what constitutes « legitimate » public information.

As a result, according to the Court, publication of a picture taken in a public place without consent can only occur where the subject is involved in public life, or the subject is depicted as part of a public event involving more that one person in the pursuit of the circulation of socially useful information.

The picture of Pascale-Claude Aubry was published in 1989. Since then, the Civil Code of Quebec has been amended to include new provisions concerning the right to privacy. Although the Court of Appeal did not rule on the interpretation of these new provisions, it is obvious that the Court had them in mind and framed its ruling within the parameters of the new law.

The Quebec courts had recognised a right to privacy long before the Quebec Charter of Human Rights and Freedoms guaranteed it in 1975. In Robbins , the Quebec Superior Court recognised the right as a source of civil liability. Courts have also sanctioned the use of a person’s likeness without consent in a commercial context.

Other provinces have adopted privacy legislation that resembles the Civil Code provisions. The Civil Code privacy provisions, however, do not provide two main defences available under the other provincial privacy statutes.

First, in Quebec, it appears, the dead may be defamed and their privacy may be violated. Article 35 of the Civil Code states that: « no one may invade the privacy of a person without the consent of the person or his heirs unless authorised by law ». These risks are of course unknown to common law provinces.

Second, in Quebec there is no blanket « public interest » defence available for the publication of a person’s likeness. The defence is labelled « legitimate information of the public », which may be different from « information of public interest ». As well, the defence provided by the Civil Code does not seem available where the picture was taken in private premises.

If there is a difference between « public interest » and « legitimate information of the public », the difficulty lies in those pictures, often taken in public places, that use a person’s likeness to summarise a situation. The picture becomes a symbol of a social phenomenon - e.g. poverty, homelessness - or of life in the community - e.g. the first day of winter, a summer heat wave. These pictures are common in newspapers and on the evening news. Think of all those people walking in the street that so often illustrate the latest unemployment figures or last year’s census results. Some of these pictures also focus our attention on the image of one individual, captured in a public place, that synthesises a concept, an idea, a mood.

According to the Aubry decision, only those uses of a person’s likeness that are justified by the person’s own participation in public life, or by their presence among others at the site of an event of public interest can meet the criterion of the « legitimate information of the public ».

The Court of Appeal in Aubry did not attempt to reconcile competing fundamental rights and values protected by our Charter. Instead, the reasoning is based on the extent of the right to privacy. The limits to this right are defined, not by the fundamental freedom of expression - and in this case, artistic expression - but by a more general value, the right to public information. The result is that the necessary balancing act prescribed by the Supreme Court in Dagenais does not happen in this case and the fundamental freedom of artistic expression is set aside rather shortly. M. Justice LeBel simply states that the « artistic exception » to the right of privacy is unknown in Quebec Law. In Dagenais, Chief Justice Lamer stated clearly that:

The argument can be made that the fundamental difference between « public interest » and the « legitimate information of the public » is that the first concept surely embraces the protection of fundamental rights and freedoms such as freedom of expression, where the second concept is result driven. Therefore, the « public interest » allows the justification of the infringement on a person’s privacy to be based on the right of the speaker, while the « legitimate information of the public » only allows justification of the infringement based on the greater social benefit of the content of the expression itself.

This analysis leads to a hierarchical approach to fundamental rights, privacy taking precedence over freedom of expression. The will of the subject of the expression being more important, in principle, than the will of the speaker.

The right to anonymity in the context of a report on judicial proceedings

A further example of this line of reasoning is found in a recent decision of the Quebec Court. In Thomas v. Les Publications Photo-Police Inc., the plaintiff was the common law wife of a man accused of 20 counts of disturbing the peace in circumstances of a sexual connotation. The defendant is a newspaper devoted to police and court matters. The plaintiff had accompanied her spouse to the court house for his appearance in connection with the charges. She was photographed on the court house steps, as she was standing next to accused. The defendant published the photograph with a lengthy article describing the circumstances surrounding the charges and providing the address of the accused. The plaintiff was not named in the article but she was identified as the companion of the accused.

The defendant pleaded that the article was factually accurate, that it provided information on a judicial proceeding and that the plaintiff had waived her right to privacy by accompanying her spouse to court because she ought to have known that the presence of the accused in court was likely to be reported by the media. The defendant also claimed that there was implied consent for the photograph to be taken because the photographer was seen by the couple and neither of them had protested.

The Court awarded the plaintiff the full amount claimed : $24 900, and concluded that the defendant had committed a fault by not cutting the plaintiff out of the picture of the accused, either by framing the scene differently or by cutting the picture before publication. Curiously, the plaintiff had testified that she did not mind being seen with the accused and deliberately chose to accompany him to court, for moral support. She objected to the publication because of the « degrading and humiliating» nature of the description of the offences allegedly committed. However, the description in the article was factually correct.

The judge in this matter relied heavily on the Aubry decision of the Court of Appeal to state that the plaintiff had not waived her right to anonymity and was entitled to control the use of her likeness. The Court draws a distinction between the participation in an activity such as a sporting event , which would justify the taking of the picture in a public place, and the facts of the case, described by the court as « a sordid affair ». Why is it that the court did not recognize that, as sordid as the facts may have been, they were the subject of a public trial and therefore, where legitimate fare for the media?

The court tries instead to draw a distinction between a picture taken at a sporting event which, in the court’s view, does not « involve » the person in the event, and the picture of Madame Thomas, which presumably « involved » her in this sordid affair. It is the nature of the impact of the publication that becomes key to the determination of fault on the part of the speaker (the newspaper). In the case of the sporting event, if it happened that the person photographed as they attend this event suffers harm from the publication of their presence in that location at that time, would they have a claim in privacy ? How should the speaker determine before publication whether the persons photographed will suffer harm ? This regime of liability leads to self-censorship because only in the clearest of cases where the subject of the photograph is directly involved in a matter that ought to be brought to the public’s attention is liability surely avoided. All other cases of photographs taken in public places are subject to possible claims, depending on the impact the publication had on the person photographed.

In Aubry the Court of Appeal refused to revise the award of damages even thought the first judge had based his award on evidence of embarrassment. However, it was not foreseeable for the photographer or the publisher of the Aubry picture to assume that schoolmates of the plaintiff would laugh at her because of the publication of the picture. This picture, as the Court of Appeal concedes, is in good taste and in no way defames or ridicules the subject.

In Thomas, was it foreseeable that the plaintiff who voluntarily accompanied the accused to the court house on the day of his appearance to face charges of a sexual nature and who did not protest when a press photographer took their picture on the court house steps would later complain of having been unjustly associated with a « sordid affair »?

Incidentally, it should be noted that the plaintiff in Thomas was not completely uninvolved in the subject matter of the charges. Although quite innocently and unknowingly, she was the one who had provided to the accused the Polaroid camera that he allegedly used to commit the offences. The newspaper had not implied any other involvement by Madame Thomas in the commission of the offences and, as stated earlier, the article was factually correct. And yet, the court could find no justification for the publication of the photograph. Not even a measure of freedom or leeway in the exercise of the task of informing the public on judicial proceedings.

After the Aubry decision, the media in Quebec had assumed that there were areas of concern, where the right of the public to be informed, in a strict sense, was not at stake. However, it was largely assumed that in the course of regular news coverage, the right to anonymity that had given rise to the Aubry ruling would have to give way to the freedom of the press to depict events of public interest taking place in public. This assumption may no longer be made, in light of the Thomas decision. A notice of appeal has been filed by the defendant.

Are privacy interests becoming a more pressing concern for the courts to the point of restricting the freedom - and public responsibility - of the media to report on judicial proceedings ?

II. The Protection of privacy in the context of judicial proceedings

As we have seen in the case of Thomas, the court seemed motivated by the impact of the publication of the picture on the reputation of the plaintiff. She had been unjustly associated with a sordid affair, in the court’s view, and the full psychological impact of this event on the plaintiff was attributed to the defendant. However, it is under the label of « privacy » and not defamation that the award was made.

There have been recent legislative and administrative attempts at protecting the interests of individuals involved in judicial proceedings.

Protecting the « innocent » from discrimination

On June 23, 1997, the Minister of Justice of Quebec announced that he would institute an administrative directive that would, in effect, render access to court files of criminal proceedings that had resulted in acquittals or discharges much more difficult. The directive also stated that the computerized information on court files (« plumitif ») would be altered to delete all information relating to the files of criminal proceedings where the accused had been found not guilty or had been discharged. The intent was, apparently, to avoid discrimination against people who had been accused and then acquitted by the justice system. The Minister stated that allowing this information to remain available after the acquittal or discharge was not justified and could cause harm to the individuals whom the justice system had freed. The information contained in those files would only be accessible with the consent of the person who had been acquitted.

Several media outlets have asked the new Minister of Justice to review this initiative, in light of the importance of the publicity of judicial proceedings and the accessibility of information relating to the functioning of the courts. The media argue that, although the ends of protecting individuals from discrimination may be just, the means are inappropriate and cause harm to the justice system by making it less transparent, and to the public’s right to know about one of society’s most important institution. If discrimination occurs they argue, there are tools available to pursue those who engage in such conduct. For instance, the Quebec Charter of Rights and Freedoms could be amended to include as a prohibited ground of discrimination the fact that one was subject to a criminal prosecution and acquitted or discharged. Article 18.2 of the Quebec Charter already prohibits discrimination in employment because a person « was convicted of a penal or criminal offence, if the offence was in no way connected whit the employment or if the person has obtained a pardon for the offence ».

Protecting the « innocent » and the right to a fair trial

Last Spring, the Criminal Code was amended to include a new provision dealing with the accessibility to the public of information relating to search warrants. This new section 487.3 came into force on May 2, 1997. It allows any interested party to make an application at the time of the issuance of the warrant or later on, to prohibit access to and disclosure of any information relating to a warrant on the ground that : « the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) » which includes the possibility that « disclosure ... would prejudice the interests of an innocent person » or « for any other sufficient reason », and the ground « outweighs in importance the access to the information ».

In a recent case, a newspaper reporter sought access to the information in support of a search warrant that had been sealed prior to the adoption of s. 487.3. The motion for access was filed after charges had been laid and after the coming into force of this new provision. The accused opposed the disclosure on the ground that they were « innocent » until proven guilty and that the disclosure of the information would prejudice their interests. They alleged that the information contained inaccurate and damaging facts which, if published, would prejudice their right to a fair trial. The motion was first argued before the judge who issued the warrant and had originally sealed the file. Applying the principles of the MacIntyre and Dagenais cases, he ruled that the information should be disclosed.

Prior to the adoption of the Charter, the Supreme Court in MacIntyre had ruled that information in support of search warrants should be accessible to any member of the public after the search had been conducted and the warrant returned. Only when nothing was ceased was the interest of the protection of the innocent taking precedence over the right of the public to have access to information concerning judicial proceedings. Later, in Dagenais, the Supreme Court reaffirmed the equality of rights under the Charter, putting an end to the systematic precedence given by the courts to the rights of accused over freedom of expression, which includes the right to gather information.

On a certiorari application, Mr. Justice De Blois of the Quebec Superior Court reviewed the decision. He maintained the order to lift the seal on the warrant, stating that the first judge had exercised his discretion judicially. He rejected the argument that the accused were « innocents» as contemplated by s. 487.3, as they were directly concerned by the proceedings, as opposed to third parties who were not the subject of the police investigation.

Mr. Justice De Blois then turns his attention to the other ground justifying the sealing order: « any other sufficient reason ». He states that the arguments of the accused that their right to a fair trial might be prejudiced by the disclosure of the information in support of the search warrant may fall under this ground, but that the first judge appeared to have exercised his discretion in that regard and, therefore, the Superior Court should not intervene. This matter is now under appeal to the Quebec Court of Appeal.

It will be critical to the maintenance of the balance struck between free press and fair trial in the Dagenais decision that the courts not engage in the process of reading into the open ground of « any sufficient reason », all the matters that used to be the subjects of bans on publication prior to the landmark Supreme Court ruling. In this case, the first judge used his discretion in favour of openness, in furtherance of the principles stated in Dagenais.

The introduction of a rule allowing the sealing of a search warrant file, even when the search was successful, on the grounds of the protection of the interests of the innocent is a departure from the common law rule set by MacIntyre. The fact that s. 487.3 requires the demonstration that this ground outweighs in importance the access to the information does not reflect the MacIntyre test, which assumed that, in any case, the publicity surrounding judicial proceedings was a condition precedent to the fairness and the probity of the system of criminal justice.

It is also interesting to note that, another section of the Criminal Code, s. 487.2, had attempted to deal with the publication of information relating to search warrants. Even though this s. 487.2 was declared unconstitutional in Ontario and Manitoba ten years ago, it is still in the Criminal Code. Parliament, while adopting s. 487.3, did not remove this section from the Code, despite the fact that it had been declared of no force or effect. This leads Mr. Justice De Blois to openly wonder whether the new section has altered in any way the status of s. 487.2. Although we fail to see how the adoption of a procedural mechanism to seal search warrants can improve the constitutionality of a section creating the offence of publishing unauthorized information relating to the location and the persons subject to a search warrant, the fact remains that Parliament has been remiss in dealing with court decisions which the government of the day had decided to not challenge on appeal. The result is that there remains uncertainty as to the legality - in the criminal sense - of certain publications dealing with search warrants.

There is currently an attempt pending before the Quebec Superior Court, to revive s. 487.2. The party attempting to enforce the offence is claiming their right to privacy to support their challenge to the accepted notion that s. 487.2 violates the freedom of expression guaranteed by s. 2(b) of the Canadian Charter and does not meet the test of section 1.

Although these Criminal Code provisions apply across Canada, Quebec seems to be a fertile ground for the development of privacy driven principles of interpretation that have the effect of limiting the freedom to access and report information relating to judicial proceedings. It may be that the culture of civil law and the highlighted interest in the protection of privacy in the province may explain why these challenges to the circulation of information relating to judicial proceedings happen here. However, one fact remains, privacy proponents are gaining ground on the battlefield of public opinion, and the debate over the rights - and the excesses - of the media will continue.