R. v. Zundel [1992] 2 S.C.R. 7 31: Spreading false news -- Criminal Code prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest (s. 181) -- Whether s. 181 of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether s. 181 justifiable under s. 1
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Freedom of expression -- Spreading false news -- Criminal Code prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest (s. 181) -- Whether s. 181 of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether s. 181 justifiable under s. 1 of Charter -- Vagueness -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46, s. 181.
Criminal law -- Spreading false news -- Freedom of expression --Criminal Code prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest (s. 181) -- Whether s. 181 of Code infringes the guarantee of freedom of expression in s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by s. 181 upon s. 2(b) justifiable under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46, s. 181.
The accused was charged with spreading false news contrary to s. 181 of the Criminal Code, which provides that "[e]very one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment . . .". The charge arose out of the accused's publication of a pamphlet entitled Did Six Million Really Die? The accused had added a preface and afterword to an original document, which had previously been published by others in the United States and England. The pamphlet, part of a genre of literature known as "revisionist history", suggests, inter alia, that it has not been established that six million Jews were killed before and during World War II and that the Holocaust was a myth perpetrated by a worldwide Jewish conspiracy. The accused was convicted after a lengthy trial. On appeal, his conviction was upheld on constitutional grounds but struck down for errors in admitting evidence and in the charge to the jury. The matter was sent back for a new trial. The accused was again convicted and his conviction was affirmed by the Court of Appeal. This appeal is to determine whether s. 181 of the Code infringes the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, whether s. 181 is justifiable under s. 1 of the Charter.
Held (Gonthier, Cory and Iacobucci JJ. dissenting): The appeal should be allowed. Section 181 of the Criminal Code is unconstitutional.
Per La Forest, L'Heureux-Dubé, Sopinka and McLachlin JJ.: Section 181 of the Code infringes the guarantee of freedom of expression. Section 2(b) of the Charter protects the right of a minority to express its view, however unpopular it may be. All communications which convey or attempt to convey meaning are protected by s. 2(b), unless the physical form by which the communication is made (for example, a violent act) excludes protection. The content of the communication is irrelevant. The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regards as wrong or false. Section 181, which may subject a person to criminal conviction and potential imprisonment because of words he published, has undeniably the effect of restricting freedom of expression and, therefore, imposes a limit on s. 2(b).
Given the broad, purposive interpretation of the freedom of expression guaranteed by s. 2(b), those who deliberately publish falsehoods are not, for that reason alone, precluded from claiming the benefit of the constitutional guarantees of free speech. Before a person is denied the protection of s. 2(b), it must be certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty, given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity.
Section 181 of the Code, unlike s. 319 at issue in Keegstra, is not justifiable under s. 1 of the Charter. In determining the objective of a legislative measure for the purposes of s. 1, the Court must look at the intention of Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision. Although the application and interpretation of objectives may vary over time, new and altogether different purposes should not be devised. Here, while s. 181 may be capable of serving legitimate purposes, Parliament has identified no social problem, much less one of pressing concern, justifying it. The provision originally focused on the prevention of deliberate slanderous statements against the nobles of the realm to preserve political harmony in the state. To suggest now that its objective is to combat hate propaganda or racism is to go beyond its history and its wording and to adopt the "shifting purpose" analysis this Court has rejected. Such an objective, moreover, hardly seems capable of being described as a "nuisance", the rubric under which Parliament has placed s. 181, nor as the offence's target of mere "mischief" to a public interest. Furthermore, if the simple identification of the (content-free) goal of protecting the public from harm could constitute a "pressing and substantial" objective, virtually any law would meet the first part of the onus imposed upon the Crown under s. 1. Justification under s. 1 requires more than the general goal of protection from harm common to all criminal legislation; it requires a specific purpose so pressing and substantial as to be capable of overriding the Charter's guarantees. The lack of any ostensible purpose justifying s. 181 led the Law Reform Commission of Canada to recommend repeal of the section, labelling it as "anachronistic". It is also significant that the Crown could point to no other free and democratic country with criminal legislation of this type. The fact that s. 181 has been rarely used despite its long history supports the view that it is hardly essential to the maintenance of a free and democratic society. The retention of s. 181 is not necessary to fulfil any international obligation undertaken by Parliament. In the absence of an objective of sufficient importance to justify overriding the right of free expression, s. 181 cannot be upheld under s. 1 of the Charter. Other provisions, such as s. 319(2) of the Code, deal with hate propaganda more fairly and more effectively. Still other provisions seem to deal adequately with matters of sedition and state security.
Even if the Court were to attribute to s. 181 the objective of promoting racial and social tolerance and to conclude that such objective was so pressing and substantial as to be capable of overriding a fundamental freedom, s. 181 would still fail to meet the proportionality test which prevailed in Keegstra. First, assuming a rational link between s. 181 and the objective of social harmony, the section is too broad and more invasive than necessary to achieve that aim. The phrase "statement, tale or news", while it may not extend to the realm of true opinion, obviously encompasses a broad range of historical and social speech, going well beyond what is patent or provable to the senses as a matter of "pure fact". What is an assertion of fact, as opposed to an expression of opinion, is a question of great difficulty and the question of falsity of a statement is often a matter of debate. But the greatest danger of s. 181 lies in the undefined phrase "injury or mischief to a public interest", which is capable of almost infinite extension. To equate the words "public interest" with the protection and preservation of certain Charter rights or values, such as those in ss. 15 and 27, is to engage in an impermissible reading in of content foreign to the enactment. The range of expression potentially caught by the vague and broad wording of s. 181 extends to virtually all controversial statements of apparent fact which might be argued to be false and likely to do some mischief to some public interest, regardless of whether they promote the values underlying s. 2(b). Not only is s. 181 broad in contextual reach; it is particularly invasive because it chooses the most draconian of sanctions to effect its ends -- prosecution for an indictable offence under the criminal law. There is thus a danger that s. 181 may have a chilling effect on minority groups or individuals, restraining them from saying what they would like for fear that they might be prosecuted. Second, when the objective of s. 181 is balanced against its potential invasive reach, the limitation of freedom of expression is disproportionate to the objective envisaged. The value of liberty of speech, one of the most fundamental freedoms protected by the Charter, needs no elaboration. By contrast, the objective of s. 181, in so far as an objective can be ascribed, falls short of constituting a countervailing interest of the most compelling nature. Further, s. 181 could support criminalization of expression only on the basis that the sanction was closely confined to situations of serious concern.
Per Gonthier, Cory and Iacobucci JJ. (dissenting): The deliberate publication of statements known to be false, which convey meaning in a non-violent form, falls within the scope of s. 2(b) of the Charter. The sphere of expression protected by the section has been very broadly defined to encompass all content of expression irrespective of the particular meaning sought to be conveyed unless the expression is communicated in a physically violent form. Freedom of expression is so important to democracy in Canada that even those statements on the extreme periphery of the protected right must be brought within the protective ambit of s. 2(b). In enacting s. 181 of the Code, Parliament sought to restrict, not all lies, but only those that are wilfully published and that are likely to injure the public interest. Although the targeted expression is extremely limited, the provision does have as its purpose the restriction of free expression. Section 181, therefore, constitutes an infringement of s. 2(b).
Section 181 of the Code is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter. The citizen knows that to be at risk under this section, he must wilfully publish a false statement knowing it to be false. Further, the publication of those statements must injure or be likely to injure the public interest. The fact that the term "public interest" is not defined by the legislation is of little significance. The courts play a significant role in the definition of words and phrases used in the Code and other enactments. The term "public interest", which is widely used in federal as well as provincial statutes, must be interpreted in light of the legislative history of the particular provision in which it appears and the legislative and social context in which it is used. In the context of s. 181, the term "public interest" should be confined to those rights recognized in the Charter as being fundamental to Canadian democracy. It need not be extended beyond that. As an example, the rights enacted in ss. 7, 15 and 27 of the Charter should be considered in defining a public interest. A "public interest" likely to be harmed as a result of contravention of s. 181 is the public interest in a free and democratic society that is subject to the rule of law. A free society is one built upon reasoned debate in which all its members are entitled to participate. As a fundamental document setting out essential features of our vision of democracy, the Charter provides us with indications as to which values go to the very core of our political structure. A democratic society capable of giving effect to the Charter's guarantees is one which strives toward creating a community committed to equality, liberty and human dignity. It is thus only if the deliberate false statements are likely to seriously injure the rights and freedoms set out in the Charter that s. 181 is infringed. This section, therefore, provides sufficient guidance as to the legal consequence of a given course of conduct and cannot be said to be too vague.
Section 181 of the Code is justifiable under s. 1 of the Charter. Parliament's objective of preventing the harm caused by the wilful publication of injurious lies is sufficiently pressing and substantial to justify a limited restriction on freedom of expression. The objective of s. 181 is evident from the clear wording of the provision which prohibits the publication of a statement that the accused knows is false and "that causes or is likely to cause injury". This specific objective in turn promotes the public interest in furthering racial, religious and social tolerance. There is a pressing and substantial need to protect groups identifiable under s. 15 of the Charter, and therefore society as a whole, from the serious harm that can result from such "expression". The work of numerous study groups has shown that racism is a current and present evil in our country. It is a cancerous growth that is still alive. Section 181, which provides protection, by criminal sanction, to all vulnerable minority groups and individuals against the harms caused by deliberate and injurious lies, still plays a useful and important role in encouraging racial and social tolerance, which is so essential to the successful functioning of a democratic and multicultural society. The focus of s. 181 is on manipulative and injurious false statements of fact disguised as authentic research. The international instruments against national, racial or religious hatred signed by Canada, the various provisions similar to s. 181 found in other free and democratic countries, the tragedy of the Holocaust and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter emphasize the importance of s. 181's aim.
The purpose attributed to s. 181 is not new. The predecessors of s. 181 were always aimed at preventing the harm caused by false speech and thereby protecting the safety and security of the community. While initially the protection of the public interest from harm focused on the prevention of deliberate slanderous statements against the great nobles of the realm to preserve the security of the state, the purpose has evolved over the years to extend the protections from harm caused by false speech to vulnerable social groups and therefore to safeguard the public interest against social intolerance and public alarm. Thus, rather than creating a new and different purpose, the aim of the section has been maintained. The wording of s. 181, however, includes a permissible shift in emphasis with its test which is based on injury to the public interest. Looking back to the inclusion of the offence in the Code, and the last amendment to the section, one can reasonably conclude that there has been a shift in the values that inform the public interest. Since this shift has been incorporated into the language of the section itself, it is therefore permissible. The test of defining "injury . . . to a public interest" takes into account the changing values of Canadian society. Those values encompass multiculturalism and equality, precepts specifically included in the Charter.
Section 181 of the Code is an acceptably proportional response to Parliament's objective. First, there is a rational connection between the suppression of the publication of deliberate and injurious lies and Parliament's objective of protecting society from the harms caused by calculated falsehoods and thereby promoting the security and safety of the community. Where racial and social intolerance is fomented through the deliberate manipulation of people of good faith by unscrupulous fabrications, a limitation on the expression of such speech is rationally connected to its eradication.
Second, s. 181 does not unduly infringe the right of freedom of expression. Under s. 181, the accused is not judged on the unpopularity of his beliefs. It is only where the deliberate publication of false facts is likely to seriously injure a public interest that the impugned section is invoked. Any uncertainty as to the nature of the speech inures to the benefit of the accused. The infrequent use of s. 181 can be attributed to the extremely onerous burden on the Crown to prove each element of the offence. The fact that the section is seldom used, however, should not militate against its usefulness. Further, s. 181 is not overly broad. An application of the appropriate criteria makes it possible to draw a coherent distinction between statements of opinion and assertions of fact. When applied to the pamphlet at issue in this case, these criteria indicate that statements couched as "revisionist history" may be taken to be allegations of fact rather than submissions of opinion. The jury, as instructed by the trial judge, was clearly capable of drawing that distinction. While it is true that no theory of history can be proved or disproved, the accused has not been convicted for misinterpreting factual material but for entirely and deliberately misrepresenting its contents, manipulating and fabricating basic facts in order to support his theories. Courts deal with the question of truth and falsity of statements on a daily basis. With reference to reliable historical documents, "historical facts" can also be shown to be true or false in the context of s. 181 -- a section well suited to respond to the harm caused by vilification campaigns disguised as pseudo-science. Finally, the fact that Parliament has enacted hate propaganda legislation does not invalidate s. 181. The government may legitimately employ a variety of measures in order to achieve its objective. Human rights legislation may, in certain circumstances, be sufficient to deal with a particular problem in this area, but the strength of the criminal law is needed and reserved for the extreme cases, such as the case at hand, to send a clear message and to discourage and punish those who knowingly publish falsehoods that are likely to injure a public interest.
Third, the prohibition of the wilful publication of what are known to be deliberate lies is proportional to the importance of protecting the public interest in preventing the harms caused by false speech and thereby promoting racial and social tolerance in a multicultural democracy. Section 181, at best, limits only that expression which is peripheral to the core values protected by s. 2(b) of the Charter. The falsehoods of the type caught by s. 181 serve only to hinder and detract from democratic debate. The section is narrowly defined in order to minimally impair s. 2(b). It also provides maximum protection for the accused.
Committee for the Commonwealth of Canada v Canada [1991] 1 S.C.R. 139: Airport officials forbidding distributing of political pamphlets -- Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations infringe s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Freedom of expression -- Airport officials forbidding distributing of political pamphlets -- Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations infringe s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- Government Airport Concession Operations Regulations, SOR/79-373, s. 7(a), (b).
Constitutional law -- Charter of Rights -- Reasonable limits -- Airport officials forbidding distributing of political pamphlets -- Respondent's freedom of expression infringed -- Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations encompass political activities -- Whether action of officials constitutes a limit prescribed by law -- Canadian Charter of Rights and Freedoms, s. 1 -- Government Airport Concession Operations Regulations, SOR/79-373, s. 7(a), (b).
Transportation -- Airports -- Airport officials forbidding distributing of political pamphlets -- Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations infringe freedom of expression guaranteed in s. 2(b) of Canadian Charter of Rights and Freedoms -- Whether government's proprietary rights allow it to control all activity on its property as it sees fit -- Government Airport Concession Operations Regulations, SOR/79-373, s. 7(a), (b).
Respondents L and D were at an airport telling passers-by about the respondent committee and its goals and recruiting members when they were asked by an R.C.M.P. officer to cease their activities. The airport's assistant manager confirmed to them that such political propaganda activities were not permitted, as ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations prohibited the conducting of any business or undertaking, commercial or otherwise, and any advertising or soliciting at an airport, except as authorized in writing by the Minister. The trial judge granted respondents' action for a declaration that appellant had not respected their fundamental freedoms. The Federal Court of Appeal affirmed the judgment. This appeal is to determine whether ss. 7(a) and 7(b) of the Regulations are inconsistent with the freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms, and if so, whether they are a reasonable limit under s. 1 of the Charter.
Held: The appeal should be dismissed; respondents' freedom of expression was infringed.
Per Lamer C.J. and Sopinka J.: The government's right of ownership, as a consequence of its special nature, cannot of itself authorize an infringement of the freedom guaranteed by s. 2(b) of the Charter. When a person claims that his freedom of expression was infringed while he was trying to express himself in a place owned by the government, the interests at issue must be examined, namely the interest of the individual wishing to express himself in a place suitable for such expression and the interest of the government, which must ensure effective operation of the place owned by it. An individual will thus only be free to communicate in such a place if the form of expression he uses is compatible with the principal function or intended purpose of the place and does not have the effect of depriving the citizens as a whole of the effective operation of government services and undertakings. If the expression takes a form that contravenes the function of the place, such a form of expression will not fall under s. 2(b). It is only after the complainant has proved that his form of expression is compatible with the function of the place that the justifications which may be put forward under s. 1 of the Charter can be analysed.
In this case respondents' activities at the airport benefited from the protection of s. 2(b) of the Charter. The distribution of pamphlets and discussion with certain members of the public are in no way incompatible with the airport's primary function, that of accommodating the needs of the travelling public. An airport is a thoroughfare, which in its open areas or waiting areas can accommodate expression without the effectiveness or function of the place being in any way threatened. There was thus a limitation on the freedom of expression enjoyed by respondents when the airport manager ordered them to cease their activities. However, in the absence of a limit prescribed by law, this limitation cannot be justified under s. 1 of the Charter. The language of ss. 7(a) and 7(b) of the Regulations, analysed in the context of the section and of the Regulations as a whole, prohibits only undertakings of a commercial nature and does not cover political propaganda. Section 7 is accordingly not applicable in this case. The limitation imposed on respondents' freedom of expression arose from the action taken by the airport manager, a government official, who ordered them to cease their activities. Although this action was based on an established policy or internal directive, it cannot be concluded from this that there was a "law" which could be justified under s. 1 of the Charter. The government's internal directives or policies differ essentially from statutes and regulations in that they are generally not published and so are not known to the public. Moreover, they are binding only on government officials and may be amended or cancelled at will.
Per La Forest J.: Freedom of expression, while it does not encompass the right to use any and all government property for purposes of disseminating views on public matters, does include the right to use streets and parks which are dedicated to the use of the public, subject to reasonable limitation to ensure their continued use for the purposes to which they are dedicated. This should include areas of airports frequented by travellers and members of the public. The blanket prohibition against the use of such areas for the purpose of the expression of views violated the freedom of expression guaranteed by s. 2(b) of the Charter, and is not justifiable under s. 1. Section 7 of the Regulations does not cover political activities, but in prohibiting expression of political views at the airport, the officials were exercising the Crown's legal right to manage its property, and the prohibition was thus prescribed by law.
Per L'Heureux-Dubé J.: Section 7 of the Regulations has the effect of restricting political expression, even if that is not its purpose, and thus breaches s. 2(b) of the Charter. Where a restriction on expressive activity is content-neutral, the government must demonstrate that the restriction is not an unreasonable restriction on the time, place and manner of the expressive activity. This must be demonstrated under s. 1 of the Charter.
Although the expressive activity took place on government property, the government cannot have complete discretion to treat its property as would a private citizen. If members of the public had no right whatsoever to engage in expressive activity on government-owned property, little opportunity would exist to exercise their freedom of expression. While s. 2(b) of the Charter does not provide a right of access to all government property, some property will be constitutionally open to the public. This analysis is properly dealt with under s. 1 of the Charter. A number of factors are helpful to determine whether the restrictions by the government have been applied to property which is a "public arena". These factors include: the traditional openness of such property for expressive activity; whether the public is ordinarily admitted to the property as of right; the compatibility of the property's purpose with such activity; the impact of the property's availability on the achievement of s. 2(b)'s purposes; the property's symbolic significance for the message being communicated; and the availability of other public arenas in the vicinity. The "traditional" component of the public arena analysis must appreciate the "type" of place historically associated with public discussion, and should not be restricted to the actual places themselves. Bus, train and airport terminals, which draw large numbers of travellers, are contemporary crossroads or modern thoroughfares and should thus be accessible to those seeking to communicate with the passing crowds. Similarly, while the symbolism of a courthouse lawn or Parliament Hill is self-evident, streets and parks have also acquired special significance as places where one can address one's fellow citizens on any number of matters, and the same holds true for airport terminals. The non-security zones within airport terminals are thus properly regarded as public arenas, and the government cannot simply assert property rights, or claim that the expression is unrelated to an airport's function, in order to justify the restriction.
Section 7 of the Regulations is too vague and does not constitute a limit "prescribed by law" and thus cannot be saved under s. 1 of the Charter. Section 7(a) prohibits "any business or undertaking, commercial or otherwise" at the airport. It has failed to offer an intelligible standard which would enable a citizen to regulate his or her conduct. The Regulation can be read as an attempt to eradicate all types of expression or, more narrowly, to exclude only certain types of expression, and thus creates confusion. This does not allow fundamental freedoms to be fully exercised. The plenary discretion given to the Minister may also create a vague standard which does not accord with the requirement in s. 1 of the Charter that a limit on a right or freedom be "prescribed by law".
Section 7 of the Regulations is also overbroad and thus does not impair freedom of expression as little as possible. The Regulation applies not only to the activity at issue but also to virtually all conceivable activity involving freedom of expression at airports.
Although some objectives would be reasonable in justifying restrictions on expression in an airport, the time, place, and manner restrictions are not reasonable in the context and circumstances of this case. They bear no rational connection to the government's possible objectives and are broad to the point of being unintelligible. Section 7 of the Regulations does not, for the same reason, pass the proportionality test. Its impairment, far from being minimal, could not be greater.
Per McLachlin J.: The test for the constitutional right to use government property for public expression should be based on the values and interests at stake and should not be confined to the characteristics of particular types of government property. This test should reflect the concepts traditionally associated with free expression and should extend constitutional protection to expression on some but not all government property. The analysis under s. 2(b) of the Charter should be primarily definitional, and the test should be sufficiently generous to ensure that valid claims are not excluded for want of proof.
The test for whether s. 2(b) applies to protect expression in a particular forum depends on the class into which the restriction at issue falls. Section 2(b) of the Charter would usually be infringed if the government's purpose was to restrict the content of expression by limiting the forums in which it can be made. A content-neutral restriction, however, may not infringe freedom of expression at all. Section 2(b) of the Charter would apply if it were established that the expression (including its time, place and manner) promoted one of the purposes underlying the guarantee of free expression: the seeking and obtaining of truth; participation in social and political decision-making; and the encouragement of diversity in forms of individual self-fulfilment by cultivating a tolerant, welcoming environment for the conveyance and reception of ideas. A link must be established between the use of the forum for public expression and at least one of these purposes if the protection of s. 2(b) of the Charter is to apply.
The policy of the airport officials of prohibiting all political propaganda was content-neutral; it was aimed at the consequences of such expression rather than the particular messages communicated. The restriction had the effect of limiting expression, and the expression in question promoted one of the purposes of the guarantee of free expression, namely participation in political or social issues in the community. The government's action thus constituted a limitation of respondents' rights under s. 2(b) of the Charter.
The limitation of respondents' rights is not justifiable under s. 1 of the Charter. The words "advertise" and "solicit" in s. 7(b) of the Regulations are broad enough to cover non-commercial publicity and solicitation, and respondents' conduct thus falls within the regulation. Even if it did not, the act of the airport officials in preventing respondents from handing out leaflets and soliciting members constitutes a limit prescribed by law because the officials were acting pursuant to the Crown's legal rights as owner of the premises. The government's objective in imposing the limit is not of sufficient importance to warrant overriding a Charter right, since there is nothing in the function or purpose of an airport which is incompatible with respondents' conduct. Further, the means chosen to attain the objective are neither reasonable nor proportionate to respondents' interest in conveying their message pursuant to their right under s. 2(b) of the Charter. The practice of airport authorities of preventing all "political propaganda activities" constitutes a blanket exclusion of political solicitation in the airport unrelated to concerns for its function and devoid of safeguards to protect against over-reaching application. The limitation is overbroad and hence not saved by s. 1.
Per Gonthier J.: While in agreement with the several elements put forward by Lamer C.J. and L'Heureux-Dubé J. pertinent to a determination of the extent of freedom of expression on government property, the application of ss. 1 and 2(b) of the Charter should be structured as outlined by McLachlin J. The reasons of L'Heureux-Dubé J. as to the application of s. 7 of the Regulations to the conduct of the respondents were agreed with.
Per Cory J.: Notwithstanding agreement with the reasons of Lamer C.J. in so far as they deal with the use of government-owned property by members of the public for the purposes of expressing themselves on various issues, the impugned Regulation contravenes s. 2(b) and cannot be saved by s. 1 of the Charter, as found by L'Heureux-Dubé J.
Canadian Broadcasting Corp. v. Lessard [1991] 3 S.C.R. 421: -- Search warrants issued for premises of the press -- Seized videotapes already aired -- Affidavit supporting application not indicating other sources of information -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law -- Charter of Rights -- Freedom of the press -- Search warrants issued for premises of the press -- Seized videotapes already aired -- Affidavit supporting application not indicating other sources of information -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Criminal law -- Search warrants -- Premises of the press -- Seized videotapes already aired -- Affidavit supporting application not indicating other sources of information available -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed -- Criminal Code, R.S.C., 1985, c. C-46, ss. 487(1)(b), (d), (e) -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
A CBC camera crew videotaped a group of people occupying and damaging a post office building and both CBC's English and French language networks aired portions of the videotape. There is no indication that the police were at the scene or were aware of the incident at the time the tape was made. The police sought an authorization from a justice of the peace to search for the videotapes the day after the broadcast. The parties agreed that nothing in the affidavit would permit the justice of the peace to determine if there were an alternative source of information and, if there were such a source, whether reasonable steps had been taken to get the information from that source. Nonetheless, a warrant was granted to enter, search and seize the videotapes at the CBC's head office in Montreal on the basis of the information.
Several tapes were seized and, at the request of CBC officials, were placed in a sealed envelope while the validity of the warrant was contested. To that end, the CBC brought an application for certiorari to quash the search warrant. The Quebec Superior Court dismissed the application but a majority of the Court of Appeal allowed CBC's appeal.
Held (McLachlin J. dissenting): The appeal should be allowed.
Per Sopinka, Gonthier, Cory and Stevenson JJ.: Warrants for the search of any premises constitute a significant intrusion on the privacy of individuals and corporations alike. The privacy interests of individuals in a democratic society must be carefully weighed in a search warrant application against the interests of the state in investigating and prosecuting crimes. This weighing and balancing will vary with the facts on each application. Even after the requirements of s. 487 of the Criminal Code have been met, the process of determining if a search warrant should issue may still be a difficult and complex process. Among commercial premises, the media are entitled to particularly careful consideration, both as to the issuance of a search warrant and as to the conditions that may be attached to a warrant to ensure that any disruption of the gathering and dissemination of news is limited as much as possible. The media are entitled to this special consideration because of the importance of their role in a democratic society.
The following factors should be considered in issuing a search warrant for media premises. (1) The requirements of s. 487(1)(b) of the Criminal Code must be met. (2) The justice of the peace should then consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant and (3) ensure that a delicate balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination. The press is truly an innocent third party; this factor is most important in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant. (4) The affidavit in support of the application must contain sufficient detail to enable a proper exercise of discretion as to whether or not to issue a search warrant. (5) Although not constitutionally required, the affidavit material should ordinarily disclose whether there are alternative sources, and if reasonable and alternative sources exist, whether those sources have been investigated and all reasonable efforts to obtain the information have been exhausted. (6) Dissemination of the information by the media in whole or in part will be a factor favouring the issuance of the search warrant. (7) If a justice of the peace determines that a warrant should be issued for the search of media premises, consideration should then be given to the imposition of some conditions on its implementation. (8) The search warrant may be found to be invalid if, after its issuance, it is found that pertinent information was not disclosed, or (9) if the search is unreasonably conducted.
The crucial factor here was that the media had broadcast portions of the videotape depicting the commission of a crime before the application for the warrant. The failure to set out that there was either no alternative source of information to the police or, if there were, that the information sought could not be obtained from that alternative source, is a basis upon which the justice of the peace could refuse to issue the search warrant. This information should in most cases be placed before the justice of the peace. It is not, however, a constitutionally required condition for the issuance of a search warrant.
The search here was conducted reasonably and did not affect the operations of the news media. There was no indication that the police were at the scene or even aware of the crime when the film was made. It is reasonable to infer that they learned the details of the crime from the broadcast.
All members of the community have an interest in seeing that crimes are investigated and prosecuted and the media might accordingly even consider voluntarily delivering their videotapes to the police. Once the news media have published the gathered information, that information then passes into the public domain. The publication of that information is a very important factor for the justice of the peace to consider. The publication or broadcasting of the information was a sufficiently important factor to enable the justice of the peace to issue the search warrant notwithstanding the failure of the police to explain that there was no alternative source available that would give them the information contained in the videotape.
The failure to set out the lack of alternative sources was simply another factor to be taken into account in assessing the reasonableness of the search. Here, the actual search was conducted reasonably and properly. There was no interference with the operation of the news media, nor was the freedom of the press threatened. The media had already completed their basic function of news gathering and news dissemination and the seizure of the tapes at this stage therefore could not be said to have a chilling effect on the media's sources of news.
Per La Forest J.: As long as they are strictly confined to situations similar to the present case, Cory J.'s reasons were generally agreed with.
Freedom of the press is vital to a free society and comprises the right to disseminate news, information and beliefs. The gathering of information could in many circumstances be seriously inhibited, if government had too ready access to information in the hands of the media. The press should not be turned into an investigative arm of the police. Thus, the fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information. Barring exigent circumstances, the seizure of a reporter's handwritten notes and "contact book" and items of this nature should only be permitted when it is clear that all reasonable alternative sources have been exhausted.
A line should be drawn, however, between films and photographs of an event and items such as a reporter's personal notes, recordings of interviews and source "contact lists". The "`chilling effect' on newsgathering" argument was unpersuasive in so far as it pertained to films and photographs taken of an event because the chill is already there. Absent a promise of confidentiality, no one can reasonably believe that there is no danger of identification when he or she is being captured on film by the press. With respect to films and photographs, the exhaustion of alternative sources should not necessarily be required, unless there has been a guarantee of confidentiality.
The possibility that the police will uncover other confidential sources in the course of searching for the relevant material is too attenuated to add restrictions against searches of press organizations under all circumstances. This concern can probably best be addressed by limiting the warrant to specifically delineated items.
The search here was reasonable under s. 8 of the Charter. There was no violation of s. 2(b) in the specific circumstances of this case, and it was not necessary to speculate about possible infringements resulting from a search in other circumstances. Even given an infringement, the search would be reasonable under s. 1 when the compelling requirements of law enforcement are weighed against the highly tenuous interference with the right. The question whether a search constitutes a reasonable limit under s. 1 is probably not different from the question whether a search is reasonable under s. 8.
Per L'Heureux-Dubé J.: The sole issue in this case concerns the right of the police to obtain a warrant to search the premises of an innocent third party (the CBC) in order to obtain evidence of the commission of a crime. The freedom of the press was not at issue, the more so here since the material sought had already been broadcast on two occasions before the search warrant was issued. These reasons addressed only the specific facts of this case; other sets of circumstances could warrant different considerations. No notion of confidentiality was attached or implied to the object of the search warrant in this case.
Once the conditions set out in s. 487 are met, the justice of the peace has jurisdiction to issue a search warrant to retrieve evidence of the commission of a crime even absent a statement as to the availability of alternative sources. Neither the law nor jurisprudence mandate such a statement even when the premises searched are those of an innocent third party, here a member of the media. A balancing process is neither mandated by s. 487 nor is it practical with regard both to the functions of the justice of the peace and to the burden on those requesting the search warrant.
Notwithstanding its importance, the constitutional protection of the freedom of the press does not go as far as guaranteeing the press special privileges which ordinary citizens, also innocent third parties, would not enjoy in a search for evidence of a crime. The law does not make such a distinction and the Charter does not warrant it. In fact, the press generally does not request special privileges.
Conditions can be imposed by a justice of the peace as to the manner in which a warrant can be executed and, in that regard, particular considerations for the media are quite relevant. These conditions, however, have nothing to do with the jurisdiction of the justice of the peace to issue the warrant once the conditions of s. 487 are established, notwithstanding the fact that the premises to be searched belong to innocent third persons or members of the press. There is no justification to add distinctions or nuances to the text of the Criminal Code based on the nature of the premises to be searched.
Per McLachlin J. (dissenting): Freedom of the press under the Charter must be interpreted in a generous and liberal fashion having regard to the history of the guarantee and focusing on the purpose of the guarantee.
The Charter guarantee is to protect the values underlying freedom of the press, like freedom of expression, and includes the pursuit of truth. Freedom of the press, like freedom of expression, is important to the pursuit of truth, to participation in the community and to individual self-fulfillment. In achieving these means, an effective and free press is dependent on its ability to gather, analyze and disseminate information, independent from any state imposed restrictions on content, form or perspective except those justified under s. 1 of the Charter.
The ways in which police search and seizure may impinge on the values underlying freedom of the press are manifest and can adversely affect the role of the media in furthering the search for truth, community participation and self-fulfillment. It is not every state restriction on the press, however, which infringes s. 2(b). Press activities which are not related to the values fundamental to freedom of the press may not merit Charter protection. The press activity at issue here - gathering and disseminating information about a labour demonstration - was directly related to the furtherance of the values underlying the guarantee of free expression. Such search and seizure accordingly infringes freedom of the press as guaranteed by s. 2(b) of the Charter.
A search and/or seizure on press premises which infringes s. 2(b) can be justified under s. 1 where:
(l) The search/seizure is necessary because there are no alternative sources for the information required;
(2) The importance of the search/seizure outweighs the damage to be caused by the infringement of freedom of the press; and
(3) The warrant ensures that the search/seizure interferes with the press's freedom as little as possible.
Given the seriousness of any violation of freedom of the press, the justice of the peace must be satisfied that the special requirements for the issuance of a warrant of search and seizure against a press agency are clearly established and made out with some particularity.
Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1991] 3 S.C.R. 459: -- Search warrants issued for premises of the press -- Alternative sources of information available -- Affidavit supporting application not indicating other sources of information -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Constitutional law -- Charter of Rights -- Freedom of the press -- Search warrants issued for premises of the press -- Alternative sources of information available -- Affidavit supporting application not indicating other sources of information -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed -- Canadian Charter of Rights and Freedoms, s. 2(b).
Criminal law -- Search warrants -- Premises of the press -- Alternative sources of information available -- Affidavit supporting application not indicating other sources of information available -- Whether or not search warrant valid -- Whether or not Charter right to freedom of the press infringed -- Criminal Code, R.S.C., 1985, c. C-46, ss. 487(1)(b), (d), (e) -- Canadian Charter of Rights and Freedoms, s. 2(b).
Appellant's reporters videotaped a demonstration during which a company guardhouse was destroyed. Police, including identification specialists, were present. The RCMP sought a search warrant to seize these tapes. The sworn information or affidavit in support of the warrant explained that other sources of information existed but that they either provided insufficient evidence or were unavailable or unwilling to testify. The affidavit did not reveal that police identification experts were present at the scene. A justice of the peace issued a search warrant on the basis of the affidavit. The RCMP and appellant's officials agreed that the videotapes should be placed in a sealed envelope to be held by a judge of the Provincial Court until the outcome of these proceedings.
Appellant successfully brought an application in the Court of Queen's Bench to quash the warrant and to order the return of the seized tapes. The Court of Appeal allowed the Crown's appeal and upheld the issuance of the warrant. At issue here was whether freedom of the press, as protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, requires that a justice of the peace, before issuing a warrant to search media offices, be satisfied that no reasonable alternative source of the information exists.
Held (McLachlin J. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory and Stevenson JJ.: Freedom of expression, protected by s. 2(b) of the Charter, does not import any new or additional requirements for the issuance of search warrants. It provides a backdrop against which the reasonableness of the search may be evaluated and requires that careful consideration be given not only to whether a warrant should issue but also to the conditions which might properly be imposed upon any search of media premises.
Whether the search of a media office can be considered reasonable will depend on a number of factors including the nature of the objects to be seized, the manner in which the search is to be conducted and the degree of urgency of the search. In particular, the justice of the peace must consider the effects of the search and seizure on the ability of the particular media organization in question to fulfil its function as a news gatherer and news disseminator. If a search will impede the media from fulfilling these functions and the impediments cannot reasonably be controlled through the imposition of conditions on the execution of the search warrant, then a warrant should only be issued where a compelling state interest is demonstrated. There must be no alternative source of information available or, if there is, reasonable steps must have been taken to obtain the information from that source. Alternatively, the search might be justified on the grounds of the gravity of the offence under investigation and the urgent need to obtain the evidence expected to be revealed by the search.
The factors to be weighed with regard to issuing a warrant to search any premises will vary with the circumstances presented. Two factors -- whether other sources exist, and whether reasonable efforts to obtain information from them have been exhausted and proved unsuccessful -- had been identified in earlier jurisprudence as being necessary to the issuance of a search warrant for press facilities. It is impossible, however, to isolate these two factors from the numerous considerations which bear on assessment of the reasonableness of a search and label them as conditional prerequisites. The essential question is whether, taking into account all the circumstances and viewing them fairly and objectively, it can be said that the search was reasonable.
Less can be said for refusing to make that material available to the police where the media have fulfilled their role by gathering the news and publishing it. Arguments based on the "drying up" of the media's sources of information and on the "chilling effect" on their sources become more difficult to sustain after the information has been released to the public. Should it be necessary, appropriate steps might be taken by the media to have the court determine what protection could properly be obtained.
Section 8 of the Charter protects the overall reasonableness of a search. The potentially damaging effect of a search and seizure upon the freedom and the functioning of the press is highly relevant to the assessment of the reasonableness of the search. Neither s. 2(b) nor s. 8 of the Charter requires that other sources of information be exhausted. Some flexibility in the balancing process must be preserved so that all the factors relevant to the individual case may be taken into consideration and properly weighed.
The following factors should be considered in issuing a search warrant for media premises. (1) The requirements of s. 487(1)(b) of the Criminal Code must be met. (2) The justice of the peace should then consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant and (3) ensure that a delicate balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination. The press is truly an innocent third party; this factor is most important in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant. (4) The affidavit in support of the application must contain sufficient detail to enable a proper exercise of discretion as to whether or not to issue a search warrant. (5) Although not constitutionally required, the affidavit material should ordinarily disclose whether there are alternative sources, and if reasonable and alternative sources exist, whether those sources have been investigated and all reasonable efforts to obtain the information have been exhausted. (6) Dissemination of the information by the media in whole or in part will be a factor favouring the issuance of the search warrant. (7) If a justice of the peace determines that a warrant should be issued for the search of media premises, consideration should then be given to the imposition of some conditions on its implementation. (8) The search warrant may be found to be invalid if, after its issuance, it is found that pertinent information was not disclosed, or (9) if the search is unreasonably conducted.
Section 487 of the Criminal Code does no more than require that a justice of the peace, before issuing a search warrant, be satisfied that there are reasonable grounds to believe that something which will afford evidence with respect to the commission of a crime will be found in the described premises. The affidavit here met these requirements. The search did not impede the media's news gathering function and did not violate s. 8 notwithstanding any deficiency in the affidavit concerning alternative sources. There was no finding of bad faith with respect to the police affidavit which declared that alternative sources were pursued but proved unsuccessful and there was nothing nefarious in the failure to mention the presence of the identification officers at the scene.
Per La Forest J.: The appeal should be dismissed for the reasons given in Canadian Broadcasting Corp. v. Lessard.
Per L'Heureux-Dubé J.: The appeal should be dismissed for the reasons expressed in Canadian Broadcasting Corp. v. Lessard.
Per McLachlin J. (dissenting): The legal principles set out in Canadian Broadcasting Corp. v. Lessard apply here. The warrant violated the Charter and cannot be upheld. The justice of the peace, in the absence of information as why other sources would not dare to testify or could not be subpoenaed to testify, was not in a position to determine if the issuance of the warrant was really necessary, or whether it was justified given the violation of Charter rights which it entailed.
Rocket v The Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232: Freedom of expression -- Profession restricting members' advertising -- Whether or not restrictions an infringement of freedom of expression -- If so, whether or not restrictions justified
Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Freedom of expression -- Profession restricting members' advertising -- Whether or not restrictions an infringement of freedom of expression -- If so, whether or not restrictions justified -- Regulation 447 of the Health Disciplines Act, R.R.O. 1980, ss. 37(39), (40) -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Appellants were dentists who participated in an advertising campaign. As a result, they were charged with violating two subsections of Regulation 447 made pursuant to the Health Disciplines Act -- s. 37(39) which explicitly restricts dentists' advertising and s. 37(40) which was a general professional misconduct provision. They brought these proceedings challenging the constitutionality of s. 37(39) and seeking a declaration that s. 37(40) was inapplicable. The Divisional Court dismissed the applications and the decision with respect to s. 37(39) was appealed to the Court of Appeal and subsequently reversed. The Court of Appeal found that s. 37(39) infringed the guarantee of free expression under s. 2(b) of the Charter and could not be justified under s. 1. The constitutional questions before this Court queried whether or not s. 37(39) of the Regulation offends the guarantee of freedom of expression in s. 2(b) of the Charter, and if so, whether or not it was nevertheless justified under s. 1 of the Charter. A further question arose as to what remedy this Court should grant should s. 37(39) be found to violate the Charter.
Held: The appeal should be dismissed.
The freedom of expression protected by s. 2(b) of the Charter includes commercial speech such as advertising, even though the Charter was not intended to protect economic interests, because advertising aims to convey a meaning and hence involves more than economics. The advertising which was regulated by s. 37(39) did not take an offensive or prohibited form so as to be excluded from the protection of s. 2(b).
Section 37(39) of the Regulation prohibits legitimate forms of expression and so infringes s. 2(b) of the Charter. The provision effectively bans usual and acceptable forms of advertising -- radio, television and even the newspapers apart from an announcement upon commencement or change of location of practice -- even though nothing in their use should deprive an otherwise legitimate expression of the protection afforded by s. 2(b). The provision also infringes s. 2(b) in that it purposefully limits the content of the advertising.
Two opposing factors -- that advertising is only to increase profit and that it plays an important role in consumer choice -- are usually present in varying degrees in commercial advertising. Here, the element of consumer choice is significant. Consumers of dental services would be highly vulnerable if advertising were unregulated. The practice of dentistry, like other professions, calls for so much exercise of subjective personal judgment that claims about the quality of different dentists may be inherently incapable of verification. Furthermore, the choice of a dentist is a relatively important one.
Section 37(39) of the Regulations could not be justified under s. 1 of the Charter.
The objective of the Regulation is sufficiently important to override a Charter right and s. 37(39) is rationally connected to this objective. The provinces have a legitimate interest in regulating professional advertising in order to maintain a high standard of professionalism (as opposed to commercialism) and to protect the public from irresponsible and misleading advertising. A distinction can be drawn between restrictions on information about standardized products and restrictions on claims that are inherently not susceptible of verification. Professional regulation of advertising is clearly justified in circumstances where a claim is not inherently susceptible of verification.
The means used to achieve the legislative objective does not impair the freedom as little as possible. Section 37(39) is very broadly drafted in that it starts with an absolute prohibition on all advertising and then sets out exceptions to that prohibition. The effect of the legislative measure, furthermore, is not proportionate to the objective. The aims of promoting professionalism and preventing irresponsible and misleading advertising on matters not susceptible of verification do not require the exclusion of much of the speech which is prohibited by s. 37(39). Useful information is restricted without justification.
The impugned section should be struck. Overly broad legislation, if left in force, may prevent people from engaging in lawful activities simply because the prohibition is still "on the books". The section is drafted in such a way that it cannot be amended by striking out those portions which are overly broad. Because the section is cast in the form of limited exclusions to a general prohibition, the Court would be required to supply further exceptions. The profession and legislators, however, are in the best position to determine the precise content and wording of such further exceptions as may be required. It is not impossible to draft regulations which prohibit advertising which is unverifiable and unprofessional while permitting advertising which serves a legitimate purpose in providing the public with relevant information.
Professional bodies have a heavy duty to adopt appropriate regulations which do not unduly restrict the freedom of expression of their members. The importance of promoting professionalism and preventing irresponsible and misleading advertising, however, outweighs the protection of any commercial interests of professionals.
Moysa v The Labour Relations Board of Alberta [1989] 1 S.C.R. 1572: Evidence -- Privilege -- Press -- Journalist refusing to testify at a labour relations board hearing -- Journalist claiming privilege against the disclosure of communications from sources -- Whether journalist has a privilege at common law or under the Canadian Charter to refuse to answer questions involving her sources
Evidence -- Privilege -- Press -- Journalist refusing to testify at a labour relations board hearing -- Journalist claiming privilege against the disclosure of communications from sources -- Whether journalist has a privilege at common law or under the Canadian Charter to refuse to answer questions involving her sources -- Canadian Charter of Rights and Freedoms, s. 2(b).
Constitutional law -- Charter of Rights -- Freedom of the press -- Labour relations board ordering journalist to answer questions involving her sources -- Whether compelling journalist to testify violation of s. 2(b) of the Canadian Charter of Rights and Freedoms.
A week after the appellant, a journalist, wrote an article on the Union organizing campaign at several department stores, the Hudson Bay Co. terminated the employment of six employees. The Union alleged that the employees were fired because of their organizing activities and brought an unfair labour practices claim against the Bay. The appellant was summoned to attend the Labour Relations Board hearing. The Union proposed to ask her whether she had spoken with someone at the Bay and, if so, what the details of the conversation were. The appellant objected to being compelled to testify alleging that she has a right to protect her sources of information on the basis of a qualified privilege either at common law or under s. 2(b) of the Canadian Charter of Rights and Freedoms. The Board held that the appellant had no privilege and ordered her to testify. The Alberta Court of Queen's Bench dismissed appellant's application for certiorari to quash the Board's decision and the judgment was affirmed by the Court of Appeal. This Court granted appellant's leave to appeal and, pursuant to Rule 32 of the Supreme Court Rules, the parties submitted the following constitutional questions: (1) Does requiring a journalist witness to disclose communications from a source violate s. 2(b) of the Charter? (2) Does requiring a journalist witness to disclose communications to some other person violate s. 2(b) of the Charter? and (3) If the answer to either questions 1 or 2 is in the affirmative, can compulsive disclosure be justified under s. 1 of the Charter?
Held: The appeal should be dismissed.
Appellant has no privilege to refuse to testify before the Board. Even if a qualified form of testimonial privilege exists in Canada, appellant's claim of privilege in this case must be dismissed as she does not fall within any of the possible tests which establish the conditions necessary to justify a refusal to testify. In any event, the Union was primarily interested in the information that the appellant gave to the Bay's official concerning the organizing campaign. This information would not come within the ambit of any qualified privilege with respect to information received from sources.
Despite the importance of ascertaining the extent of the s. 2(b) rights, the disposition of this appeal does not require that the constitutional questions be answered. The facts of this case do not warrant an answer to these broad and important constitutional questions. To address the questions would require this Court to make pronouncements well beyond the issues presented in the actual appeal.
Assuming that the right to gather the news is constitutionally enshrined in s. 2(b) of the Charter, the appellant has not demonstrated that compelling journalists to testify before bodies such as the Labour Relations Board would detrimentally affect journalists' ability to gather information. No evidence was placed before the Court suggesting that such a direct link exists. Absent any evidence that there is a tie between the impairment of the alleged right to gather information and the requirement that journalists testify before the Labour Relations Board, this Court cannot find that there has been a breach of s. 2(b) in this case.
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