By Vicki Russell
The Journalist's Legal Guide; Michael G. Crawford;
Carswell, Agincourt, Ont.; 1987; 266 pages, $39.95.
Media Law Handbook. Stuart Robertson, International Self-Counsel Press,
Vancouver, B.C., 1983, 146 pages, $6.50.
A Reporter's Guide to Canada's Criminal Justice
System, Harold J. Levy, The Canadian Bar Foundation,
Privacy Law and the Media in Canada, Gordon F. Proudfoot,
The Canadian Bar Foundation, 55 pages.
Journalists and the Law: How to Get the Story Without Getting
Sued or Put in Jail, Robert S. Bruser and Brian MacLeod Rogers,
The Canadian Bar Foundation, 106 pages.
Defamation Law in Canada, Gerald A. Flaherty, The Canadian
Bar Foundation, 85 pages.
The Charter and the Media, John P. Richard and Stuart
Robertson, The Canadian Bar Foundation, 114 pages.
Using the Access to Information Act, Heather
Mitchell and Murray Rankin, International Self-Counsel Press Ltd.,
135 pages, $5.95.
At first glance both the Journalist's Legal Guide and Media Law
Handbook appear to Contain most of the law a reporter ought
to know. But if it sounds too good to be true, it is. While both
are relevant to journalists. neither is the "end-all"
law guide for reporters.
Media Law Handbook by Stuart Robertson offers 104 pages about
laws in general that could affect journalists. The style is chatty.
Some of it is written in question-and-answer form. Nuances, specifics
and relevant legislation are not discussed in a lot of detail (selected
portions of relevant legislation are, however, included in an appendix).
The Journalist 's Legal Guide by Michael Crawford, on the
other hand, contains 273 pages of specifics about law. The emphasis
is on academia and detail-detail-detail. Special cases, legislation
and even comprehensive footnotes are given. The differences in style
between the books is crucial in understanding: how much value a
reporter can get out of each
Both, are presented as guidebooks. So they should be easy to use.
Yet that is the first problem. Media Law Handbook has no
index. If a reporter needs to know something quickly, he or she
has to flip through the entire contents section at the beginning
of the book. That is time consuming and inefficient.
The Crawford book, on the other hand, measures up well on this point.
There's a general index at the back, which appears quite thorough,
as well as a mini-index at the beginning of each chapter.
Once the reader gets into the books, however, there are shortcomings
in both. Media Law Handbook contains a chapter on the structure
and control of the news industry in Canada, dealing very briefly
with the journalist's liability, the employer's liability and how
far the employer can go in placing blame for a mistake on a reporter.
This is important. Yet the book does not give enough information.
It does not discuss, for instance, the reporter's legal rights if
he or she disagrees with the employer's lawyers about notes or sources.
It does discuss the need for separate legal counsel if the reporter's
evidence is different from the employer's. Another fault is that
it does not offer the freelancer enough information on what to
do if there is a lawsuit or what protection to expect. All it says
is "the liability for all that's published falls upon the publisher,
but the freelancer may also be sued." It does not tell what
to do, when or how. In a later chapter Robertson briefly lists some
things a reporter can do if faced with a serious complaint, but
it could be more complete. In yet another section, the author discusses
damages and suggests a journalist might want to get libel and slander
insurance. He does not explain if it is a must, how often it is
Basically there is not enough information and some of what is there
is scattered unduly in Media Law Handbook.
The Crawford book on these points is even more incomplete. At least
Robertson's guide raised the problem. The Crawford book ignores
most of the above mentioned points and does not seem to acknowledge
that a journalist and his or her employer could be at odds. It also
does not give journalists advice on how to deal with press councils
or letters to the editor about their work
On copyright law, both books are good. Crawford goes into more detail
by outlining recommendations of a Parliamentary sub-committee.
Both books discuss trespass laws. Media Law Handbook just
lists various provinces that have trespass acts but does not describe
them, saying only they have acts "which provide for punishment
in some cases." It does not tell when or how. Crawford provides
more detail, but it would still be necessary for the reporter to
look up the legislation in his or her province.
Contempt of court is a problem that terrifies many journalists.
Crawford's book contains a very thorough explanation of the when
and the where of it all in outlining contempt before, during and
after trial. I found that part of the chapter the most useful. It
specifies what a reporter can and cannot do. The rest of the chapter
is a little too academic for my blood. A reporter might want to
leave the nuances to a lawyer. One wonders if the rest of the chapter,
including a discussion of contempt law, might be of more interest
to a lawyer than a working journalist. A journalist would have difficulty
wading through some of this, even after many strong coffees. Crawford
at least points out that the government also finds our contempt
laws confusing and has considered changing them. (Unfortunately,
this is as far as it has gone.)
Robertson's book deals with the contempt issue in a chapter called
Reporting on Trials. It is easier for the reporter to get a general
idea of contempt law through his book.
Media Law Handbook is easier to read than The Journalist's
Legal Guide and contains most of the information a general reporter
should know. There is a major flaw, however, in the section on youth
courts: it was written before the Young Offenders Act came into
effect and is thus outdated.
What type of access does a reporter have to court documents or indeed
to the court itself? Crawford in The Journalist's Legal Guide
provides an entire chapter on access to court documents. He says
some provinces have "set out legislation on what the rights
of access are." He briefly deals with Manitoba and Ontario
but leaves readers in other provinces to wonder if their provinces
do have legislation and if so what it is.
Robertson devotes less than a page to access to court records. He
says court officers must make court files and documents available
to reporters "provided that a court order or statute or rule
has not prevented the court officer from doing so." He does
not tell which statutes or rules these might be, leaving the reader
wondering. (He at least lists certain types of orders a court could
Defamation law is discussed generally in both books, but neither
adequately explains provincial defamation laws. Crawford talks about
what civil and criminal defamation law is and what defences are
available. There's lots of detail, but I found it curious he does
not deal specifically with the provincial laws. He just highlights
parts of them in discussing defence. It would be much more helpful
to have summarized what the law is in each province.
The same problem is evident in Robertson's book.
At some time, Crawford writes, a reporter might be subject to a
court order, such as a search warrant or subpoena. He devotes an
entire chapter to these orders, how they are authorized, when they
are valid, and what rights a journalist has. There's also information
about injunctions, with case examples of how far the courts will
go to try to stop publication. Crawford takes seven pages to explain
court orders. To compare this to the Robertson book is to see obvious
differences in detail. Robertson deals with injunctions in less
than a page. That page, however, probably contains as much information
as the average reporter is going to need to know.
Next stop, sources. Again Crawford aims at giving the reader the
details. Robertson aims at generalities and presents this part of
the book in question-and-answer style (Who is being protected? What
is the protection? When must sources be disclosed? And so on.) Crawford
covers information Robertson skims over or does not cover. For instance
Crawford devotes an entire chapter to official secrets. Robertson
stays clear of this. Crawford includes a chapter on laws governing
elections. Robertson deals with this in four pages of large type.
Crawford offers a course on basic law at the back of his book. He
outlines the main points about such matters as torts, contracts,
property, consumer, labour and employment laws. Robertson doesn't.
His book is aimed just at laws affecting the media.
But just when you think Crawford is going to cover it all, he misses
something important. For instance, he doesn't deal with CRTC regulations,
which affect journalists. There is not even an entry for the CRTC
in the index. There are no excerpts from the act under which the
CRTC operates. I find it a puzzle that something so crucial was
ignored. Robertson, on the other hand, does discuss the CRTC and
lists relevant portions of the act in an appendix.
If these books are supposed to be the tools of a busy reporter,
they both measure up short. Crawford has overdone the detail, yet
missed some very important points. After a while, reading through
all the detail becomes exhausting.
Robertson concentrates on generalities, but has left out some exact
information reporters use. And of course there's the problem of
Both authors could have made their books much more useful through
the use of charts, through comparing various provincial laws, and
where and how any federal legislation fits in. They could have made
it easier for the reader to quickly refer to a point and get an
adequate answer. Both books profess to be guides. But it seems the
reader is going to find it difficult to get an adequate answer to
a problem quickly enough.
It seems the working journalist still does not have one "end-all"
guide to the relevant law relating to his or her work. While both
these books offer a lot of information, neither measures up to what
is needed, in my opinion. The needed book has yet to be written.
A Reporter's Guide to Canada's Criminal Justice
Harold J. Levy, The Canadian Bar Foundation,
Harold Levy's A Reporter's Guide to Canada 's Criminal Justice
System is a must for any reporter even contemplating doing any
legal reporting. It is a thoughtful, thorough, interesting book
that includes practicalities about the law, as well as a broader
outlook about our justice system. Levy prefaces the book by saying
it is not a guide on criminal procedure, but rather "to help
keep reporters out of hot water and give them enough information
about our legal system to enable them to confidently investigate
and report on it." It does.
The organization of the book is straightforward and practical.
This is the only book in The Canadian Bar Foundation series containing
a basic index (for use in court). Very helpful.
Levy has divided the book into three sections: 1. Factors which
distort reporting and how to avoid them, and tips in tracking cases;
2. The criminal justice system from the investigative stage to appeal
and pardon stages, and 3. Tips on reporting the Charter of Rights.
In the first, Levy delves into a number of areas reporters should
be aware of to do conscientious reporting of crime and courts. The
reading, listening or viewing public might assume a sentence too
lenient unless the reporter gives the complete picture. For example,
a suspended sentence and three years' probation may seem to be coddling
the criminal "unless it is explained that three years is the
lengthiest term of probation which can be ordered, that probation
terms can impose substantial restraints on an individual's freedom
and that a breach of probation order can lead to serious consequences
. . . such as sentencing on the original offence or a new criminal
charge of breaching a probation order."
Levy also gives advice to reporters on how to ensure both sides
of a case receive fair treatment, even in a lengthy trial where
there may be days of one side presenting its case.
He points out the problems with crime statistics. Numbers quoted
by police and politicians may not provide a true picture. If a neighbourhood
has a statistically low crime rate, is it because crooks are staying
away or the cops are lazy? He points to a number of variables in
crime statistics. He cautions us to be sceptical when using them.
Levy's approach throughout the section views the justice system
– especially the police and prosecution process – with suspicion.
He notes a case where there was conflict between the chief of a
metropolitan police force and a National Parole Board officer on
whether parolees should be blamed for rising crime. He suggests
drug addiction may not be a $9-billion-a-year business as some police
claim. Levy pokes holes and more holes in the system.
Levy follows with a list of sources a reporter can use to get stories
and analyses the strengths and weaknesses in them. Similarly with
The reader, after reading this first section, will have gained
a good knowledge of where to get information, an understanding of
how much to rely on that information, and perhaps will be in a better
position to give a clearer picture to the public of what is really
going on in our criminal justice system.
About Levy's sceptism. He was an editor of the Criminal Lawyers'
Association Newsletter. The newsletter dealt with the courts
in action and faced the courts' problems. He worked for the Canadian
Law Reform Commission where he was active in trying to come up with
improvements to the system. Currently he is a member of the editorial
board of The Toronto Star, specializing in legal affairs.
Levy is clear, practical and credible.
In his second section Levy discusses, step-by-step, procedures in
a criminal trial, Levy not only tells what happens, but explains
the roles of the complainant, accused, defence and others. He gives
practical advice as to when a reporter can and cannot report what
is happening. I found extremely useful a four-page chart of some
of the common statutory restrictions on freedom of the press in
the criminal process. The chart contains the provision, how long
it lasts, and when it pertains. The chartis an easy-to-use reference
which should be taken along by any reporter covering courts. It
includes prohibitions under the Criminal Code, Young Offender's
Act, Official Secrets Act and Canadian Security Intelligence Service
Act. Levy actually makes all this interesting, difficult in a book
outlining criminal procedure.
His scepticism about the whole system rings throughout. He gives
a scathing critique of police press conferences, notes how they
can be used to police advantage and cautions the reporter to be
wary. He notes a criminal trial is set up with a number of advantages
for the Crown. (For instance, Crown control of court lists – determining
who is going to try a case – gives leverage). He points out that
judge shopping occurs in Canada and will probably continue "until
appointment by patronage is replaced by appointment on the basis
of merit and until sophisticated training programs are developed
for newly-appointed judges." Nothing escapes Levy's critical
After explaining the process. Levy adds yet another chapter with
advice to the journalist on how to rate a judicial decision and
determine the value of a judgment. He follows with another chapter
on how to critically report on prosecutors, police, and defence
lawyers. One especially helpful portion is the practical advice
on sources for police-related stories.
Finally Levy gives tips on reporting the Charter of Rights and explores
differences in the development of civil and criminal cases.
Throughout. Levy provides footnotes and additional references on
the criminal justice system (written by Canadian journalists) helpful
to any reader wanting to report on, or just know more about, the
criminal justice system.
The appendix is another great reference. Levy lists current publications
which can help reporters and give them story ideas. He describes
texts which may be useful in keeping tabs on proposed federal legislation
and sorting out post-sentence matters.
From both a theoretical and practical point of view, this is the
best book in the series of five The Canadian Bar Foundation has
sponsored. It must be considered a major source book for any legal
Privacy Law and the Media in Canada,
Gordon F. Proudfoot,
The Canadian Bar Foundation, 55 pages.
The law concerning privacy is important for journalists to understand
because, according to the author, Gordon Proudfoot, they must balance
"the limits of their probing search for the facts and the truth,
with individual rights of privacy, while trying to keep the public
Proudfoot adds that "information is power and the politics
of information power-broking in obtaining, witholding and disseminating
information makes studying privacy law required reading for the
Whether his book should be the "required reading"
is another question. Although Privacy Law and the Media in Canada
contains a lot of useful information, there are shortcomings which
inhibit the book's practical use.
My first problem with the book (and with four of the books in the
series sponsored by the Canadian Bar Foundation) is that it has
no index. Only by skimming the table of contents is the reader able
to learn where to even start looking for an answer. And the table
of contents does not always help. For instance, if the reader wants
information about B.C.'s privacy legislation, he or she would find
a lot of it under the section about Manitoba's privacy legislation!
(Proudfoot compares the two acts in the Manitoba section.)
Once into the book, however, the reader will find a number of useful
sections. The author's history of the law, contained in his introductory
chapter, provides some interesting examples of famous people trying
to use the law to protect their privacy and how the law did or did
not help them. Proudfoot traces the origins of the law and the development
of it in the USA.
If the reader's appetite is whetted to find out about Canadian privacy
law, Proudfoot soon squelches that by stating that in Canada "privacy
law really has no history." (There is in fact a Canadian history,
in common law and recent legislation.)
Proudfoot's first chapter explains privacy and the common law in
Canada. It is succinct and readable, briefly explaining the eight
types of common law torts which provide some protection for a person's
property. The chapter is only six pages long but fairly well written.
Some of the examples could be updated; a few are from the last century.
The reader learns that some provinces have legislated acts dealing
with privacy. Proudfoot tries to tell a little about them and this is where he
could have used some help. The information is skimpy and uneven.
I would have liked Proudfoot to compare the legislation in all the
provinces in chart form. Similarities and differences can be shown
that way and it would make the book a much more useful reference
tool. The author could also have told us about how the legislation
is actually working in various provinces.
Proudfoot then looks at federal legislation, explaining a little
about the federal act and its shortcomings. I do not think he went
far enough in his explanation. He talks about how the act could
be vulnerable to abuse, but does not say what can be done about
His examination of the Criminal Code's protection of privacy is
not as clear as it could be. For instance, he lists three justifications
a judge can use to exclude members of the public from a courtroom.
In explaining the first (in "the interests of public morals")
Proudfoot provides two examples. These are, however, examples of
improper exclusion of the public. Proudfoot does not say when
it would be proper to keep the public out on these grounds, nor
does he give examples.
Further on the author mentions a judge could exclude the public
if that would be in the interest of "the proper administration
of justice" but he does not give any explanation or example
of what that means. And it's the same story over again on the third
Proudfoot says there's no requirement that coroner's inquests be
held publicly "unless the statute says otherwise." He
then briefly refers to statutes in three provinces, but the reader
is left in the dark as to what happens in the others.
Freedom of Information legislation is relatively new in Canada,
and Proudfoot makes a brief attempt to explain the legislation in
five provinces. The section on Nova Scotia is well done and outlines
sonic of the track record of that province's act. In the Newfoundland
section however, there is no explanation on how the law is working.
There's a discussion about the first case under the New Brunswick
act and another case where access was denied, but the track record
generally is not examined. The same for Quebec. The author has included
a valuable chart (part of an appendix) relating how the provincial
acts work: how to apply, whom to appeal to if access is denied,
when an appeal must be made and so on. (The book does not discuss
Ontario's Freedom of Information Act, scheduled for proclamation
in January 1988.)
The author's outline of the federal Access to Information Act –
although only two pages – is clear and succinct. There's also a
good discussion on how the federal act is working. He cites the
number of requests, the average cost and so forth.
Finally the book highlights "special problems." outlining
some concerns regarding "photography and film" and the
law. The cases are interesting and entertaining. The section could
have been more useful by using Canadian examples (many in this section
are from the USA and even Britain). Also, it is not made clear whether
these examples are applicable in Canada.
Although the book is an asset for reporter to have, it is not as
easy to use or as practical as it should be.
Journalists and the Law: How to Get the Story Without Getting
Sued or Put in Jail,
Robert S. Bruser and Brian MacLeod Rogers,
The Canadian Bar Foundation, 106 pages.
The title of the book might be snappy and ambitious.
The contents measure short. While the authors present a lot of valuable
and relevant information, they could have improved the organization
of the material so the book really could be used as a handy reference
In their introduction, the authors say they have attempted to answer
"most of the usual questions" of reporters in a practical
manner and tried "to explain things in plain English."
They say they have organized the book into chapters that follow
the stages a reporter goes through with a story. This is all true.
The problem I have with the book is that it is not all that easy
to get a quick answer.
The book has no index. The authors rationalize by stating: "We
have tried to make the table of contents as detailed as possible."
That is not good enough.
The book starts with "gathering information." The first
subsection is on "interviews and personal contacts" and
the authors try to give practical instructions to the journalist.
The information here is general but basically useful. For instance
they explain that if a journalist tape records a conversation the
tape can be used as evidence if the journalist is sued for defamation.
They note an investigative journalist might want to get an affadavit
to back up a story but point out the practical problems of getting
In the section on harassment the authors did not go far enough.
They say the right to be left alone has not been recognized in Canadian
courts "although in some jurisdictions there now exist statutory
rights to privacy." They do not say where, nor what the legislation
The section on documents does not provide enough detail to be really
helpful. For example the authors say there are many statutes which
"require disclosure by governmental agencies and municipalities."
The authors list only three. There is a brief mention of the federal
Access to Information Act. The book says only New Brunswick has
passed similar legislation. There are in fact freedom of information
laws in Nova Scotia, Newfoundland, Quebec and British Columbia,
for example. The authors say there are "certain statutes limiting
the use of confidential documents" and give the Official Secrets
Act as an example, but they do not mention what the other statutes
are how they could limit the reporter and what can or can not be
done about it.
A major part of the book deals with covering criminal and civil
court proceedings. The basics are all here. But it would be more useful if the authors
had highlighted the important points or used point form. As it is
the book requires the reader to wade through the entire section.
Access to court documents is raised. The authors say that access
in civil cases is governed by provincial legislation and give some
examples. They do not say what the law is in each province. The
same with exclusion of the public. Just a few cases.
Defamation law and contempt of court are well done. In discussing
the latter, the authors have included a straightforward and helpful
subsection on assessing whether something could be in contempt of
Statutory restrictions on a story, such as criminal libel, obscenity,
hate propaganda, counselling the commission of a criminal offence
and spreading false news are well outlined.
Some useful advice on layout, headlines, and editing is included.
At the end of this part is a basic discussion on the civil and criminal
liabilities of the reporter, editor, publisher and broadcaster.
I would have liked to have seen more included on this very important
topic. It's vital for the journalist to know what could happen to
him or her legally if there is a mistake.
Can there be a problem after publication? The book outlines what
happened to a reported who had written a story about the marijuana
trade in British Columbia. Shortly after, the police visited the
reporter and wanted to know where he saw the marijuana and to whom
he talked. The authors provide some sound advice on avoiding some
of the pitfalls the B.C. reporter fell into.
All in all, the book is interesting and contains a lot of valuable
information. But the information is not readily accessible for the
working journalist needing a handy reference.
Defamation Law in Canada,
Gerald A. Flaherty, The Canadian
Bar Foundation, 85 pages.
Defamation Law in Canada is not a catchy name for a book,
but Gerald Flaherty has produced one to help journalists avoid the
dreaded spectre of lawsuit, libel and slander.
Flaherty is senior counsel with the CBC. He has had experience in
advising journalists how to keep out of trouble or, if they missed
the mark, trying to bail them out of the legal morass. The disappointing
part of the book is that with all Flaherty's experience, his text
seems more aimed at lawyers than at working journalists. There's
a lot of detail on the academic side of the law, and lengthy quotes
by judges, but few point-by-point guidelines to help the journalist
find practical information quickly.
The first problem with the book is the lack of an index. You must
read through the table of contents. This is not the book to use
on a tight deadline.
There are footnotes, but most just give the legal citation of a
case. Standard procedure for a law paper, but not very practical
for the journalist.
Flaherty starts with an explanation of libel and slander law and
the origins of it from Egyptian times. He then discusses the legal
concepts of tort, damages and injunctions. It's good background
information. His next heading is "Duty placed by Courts on
Publishers and Broadcasters to make their staff aware of legal responsibilities."
One would expect points employers should make to their staffs. Instead
there's a discussion of two Ontario cases and quotes from the judges.
Later Flaherty discusses "elements of a defamation claim."
While the theoretical side is interesting, again I feel the practical
side is virtually ignored. For example, he writes: "In some
provinces, defamation actions must be tried before a judge with
a jury." He doesn't say where, so the reader must check a footnote
that gives the legal citation of an Ontario statute and a Manitoba
statute. Are they the only provinces with that type of law? What
happens in the other provinces? Flaherty doesn't explain, and the
journalist without legal training is left to wonder.
Later the author deals with "publication of defamation"
and the same problem reappears. This goes on throughout the book.
It would have helped if Flaherty had used a chart summarizing the
relevant law in each province. The reader could look it up quickly,
see what defences are available and how the law works. Instead,
the reader is expected to rummage around a law library, look up
the relevant law and be expected to understand it.
Practical tips are difficult to find. Fla-herty discusses writing
a story with comments which contain criticism. He says these should
"set out the relevant facts accurately and completely, for
the omission of an important fact may distort the tactual basis
for the comment." It might have been easier to understand if
Flaherty had just laid out practical do's and don'ts.
In the section advising on how comment "must meet an objective
test of fairness." Flaherty writes "in those common law
provinces which have not amended their legislation to provide for
an objective test. the majority decision in the Supreme Court of
Canada. . . . still applies." Again please tell us where the
law has been amended and how it works in practice!
Defamation Law in Canada advises us there are two points
we should know about fair comment. When it is used as a defence
in a defamation suit, the state of mind of the journalist at the
time of publication is relevant and admissable. The author adds:
"Whether such subjective questions arise as an element in testing
fairness or in the determination of whether a plea of fair comment
is defeated by malice, they are almost certain to be raised."
If that is so. what can the reporter do? Flaherty continues: "Questions
concerning sources of information including their identity will
be relevant and admissible as bearing upon the state of mind"
of the journalist. What does that mean for the journalist who chooses
to protect his or her sources?
In discussing the defence of privilege, the author says it covers
a broad range of situations that can never be precisely catalogued.
It would be helpful however if the author had at least tried to
describe some of these times. The reader is told to become familiar
with the defamation legislation in his or her province. Why has
not the author summarized it in point form for the reader?
Defamation Law in Canada may be helpful for lawyers working
in defamation law, and is certainly valuable for reporters to read
but it won't help journalists get information quickly nor be used
as a practical guide.
The Charter and the Media,
John P. Richard and Stuart
Robertson, The Canadian Bar Foundation, 114 pages.
If you want simple answers to questions about the Charter of Rights,
The Charter and the Media by John D. Richard and Stuart Robertson
is not the book to use. Although it is only 63 pages (plus a lengthy
appendix of relevant legislation) the book discusses some fairly
complex issues in some fairly complex terms. It is well researched,
but my worry is whether the average reporter, with no legal background,
might find it all just a bit too heavy.
Like four of the five books in the Law and the Media series sponsored
by The Canadian Bar Foundation, this book does not contain an index.
So the only way of checking out a point is to search through the
table of contents. This does not serve the reader as well as it
should. (Working in the book's favour is that the table of contents
is fairly detailed and the book is not long, so at least the reporter
has some rough idea of where to begin looking for a topic.)
There are three major parts to the book. The first explains what
the Charter is; the second analyses the Charter and the final part
discusses the Charter and the media.
The explanation of the Charter is excellent. The background to the
Act, previous legislation (such as the Canadian Bill of Rights and
provincial human rights legislation) and how our system of government
works are all well explained. The authors then discuss how the Charter
fits into all of this. And discuss it they do – in all kinds of
detail. The contents of the Act, its strengths, its limits, how
it can be amended and how it can be used in court – all are covered.
They outline how Parliament's supremacy has been affected and the
new important role for the courts. It's all there. Perhaps just
a little too much there for the reader with no legal background.
The authors' explanation is fairly academic and many times expressed
in rather complex terms. In discussing what the equality section
of the Charter may do, for instance, the authors say guidance as
to how the courts will approach it is found in how judges dealt
with a similar provision in the Canadian Bill of Rights. They refer
to the fact that one justice,
(Justice Mclntyre) suggested "that an appropriate test might
be to inquire whether any inequality has been created rationally in the sense that it is not
arbitrary or capricious and not based upon any ulterior motive or
motives offensive to the provisions of the Bill and whether it is
a necessary departure from the general principle of universal application
of the law for the attainment of some necessary and desirable social
objective. Departures from the principle of equality should be countenanced
only where necessary for the attainment of desirable social objectives
and then only to the extent necessary in the circumstances to make
possible the attainment of such objectives.
That quote is how the authors explain the section. If the
average reader finds that kind of explanation a little too much
like legalese he or she should be prepared for more. The authors
use many quotes from actual judgments. The language in those decisions
is even more legalistic, so the reader's head may begin spinning.
In the second part of the book, the analysis of the Charter, this
is even more pronounced.
One part is interesting. Three examples are given of laws "which
may be challenged in time for being too vague." The authors
suggest that parts of the Broadcasting Act and regulations which
say no one can broadcast a program about venereal disease or birth
control "except in a manner appropriate to broadcasting"
may be too imprecise and may violate the Charter if taken to court.
The Official Secrets Act, the authors claim, may not be clear enough
because "it is not clear whether it is an offence to have possession
or publish the contents of a document which is not secret but which
may otherwise fall under the Act." They also suggest that our
contempt laws are not clear and could be challenged for violating
freedom of expression. While this type of analysis is interesting,
the reader may not be in a position to challenge these laws. It
is a helpful guide for lawyers working for the media, but
media members might not find it all that useful in day-to-day
In the final part of the book, the authors discuss the Charter of
Rights and the media. They explain defamation law in the USA and
Canada, but in dealing with how the Charter might change our defamation
laws, the authors propose a series of questions. The rationale is
that because there are no decisions on this yet, "all that
can be done is to speculate on how these laws may be affected."
They suggest that the courts may look to other jurisdictions to
see how they have developed their defamation laws (the reason probably
for the outline of U.S. defamation laws). They say that if the courts
do not enforce our existing laws, the provinces will need to respond
by making new legislation. It is left to the reader to contemplate
what might happen. The speculation is interesting, but it may be
more useful to media lawyer contemplating a challenge than to a
reporter curious about what is happening on a day-to-day basis.
In the section on contempt, the authors again raise questions that
a court might consider in challenging our laws and suggest some
laws which may in fact be unconstitutional. They conclude by outlining
a few laws (such as those dealing with obscenity, criminal libel,
and hate propaganda under the Criminal Code) which they feel "will
be litigated eventually" to determine if they limit freedom
of expression. Again the authors put forward a number of questions
and speculate on the answers: the reader is left wondering what
will in fact happen.
Not mentioned is the Meech Lake Accord. It occurred post publication.
In all, authors Richard and Robertson have produced a thorough,
well researched book on the Charter and the media. It's certainly
a must for lawyers and students of media law, and will be helpful
to the working journalist, but the reader should be prepared for
a lot of heavy reading and complex thought.
Using the Access to Information Act,
Mitchell and Murray Rankin, International Self-Counsel Press Ltd.,
135 pages, $5.95.
The front cover promises to show "how to cut through government
red tape." The reader unfamiliar with the Access to Information
Act, however, may need a guide-book on how to get through this
book. I found a lot confusing and poorly organized. At times the
book makes the legislation seem a lot more difficult than it in
The authors first outline how the federal government finally came
around to passing access legislation. They write that if the government
does not want to reveal information, it will make it extremely difficult
for journalists trying to get it. They say it is essential to target
the government institution that has control of the record. But they
add that this can be difficult because information is not always
Mitchell and Rankin point to reference material the reader is supposed
to review as guidelines. They say that after reviewing the guidelines,
the reader will be in a better position to know who has the information
and how to ask for it. But the authors' explanation of these guidelines
is really the pits. The authors suggest, for instance, that the
journalists first consult the Access Register. But then they point
out that some government institutions do not list their information
adequately in this book. The authors do not tell the reader which
institutions are adequately listed in the Register and which
institutions are not. What is the reader to do? The authors raise
a problem and do not attempt to answer it. This seems to be their
The book advises that the reader could consult the Treasury Board
guidelines. Then they say these guidelines "sometimes contradict
the act." They offer only a few examples. Are there more? Should
the Treasury Board guidelines be consulted in the first place?
The authors say there are Internal File Indexes the reader could
consult. But they do not explain how to use them or what to look
for. How is the reader supposed to get that information? But read
on. Next we are told there are Regional Indexes and InternalGuidelines.
Again the authors do not say which government agencies have them
or how to go about looking up the information. By this point the
reader could be confused. But there is more! The authors then suggest
that "if the reader is interested in how the government applies
policies" an Administrative Policy Manual could be useful.
But do the authors give an explanation on what to look for in the
manual, or how to use it? No. By this point the reader could be
wondering if it is worthwhile continuing reading this supposed simple
guide! However if the reader is persistent (and by this point only
a persistent reader will still be with this book) the reader will
learn that much government information is stored on forms.
Mitchell and Rankin say a reporter could save money by just "asking
for the correct form" to get the required data. But does the
book explain how to find the forms or use them? No. Does it offer
any list of government agencies which require the form and which
do not? No.
By chapter three there is a sample letter of a request (one of the
more helpful things in the book). The authors outline the delays
a journalist could face. Very discouraging. The book does tell,
however what to expect and how to appeal if a request is turned
down. There's an entire chapter on appealing which is helpful. Especially
useful is a table which explains "how to respond to government
The organization of the book could be improved. It is not until
halfway through that the authors discuss types of information automatically
exempt or excluded from the act. Why are these not mentioned earlier?
The authors state there are 490 types of information exempted or
excluded from the act and provide some examples. The full list is
provided as an appendix so it is only the determined reader who
will know the whole story. To the writers' credit however, they
suggest there may be ways of getting around the exemptions. They
offer some hints of advice, but basically it's up to the reader
to try to fly with it, as it is pretty vague stuff. For example
they say it might be possible to get exempt information if you can
"convince the government that release will benefit the government
institution. For example you may argue that an academic paper will
result; some program the government ... is having trouble getting
started or stopped will be helped by the publicity; a pet grievance
of the institution will be expressed by someone taking up the cudgel
when the institution cannot, etc."
A helpful chapter is the one on "creative avoidance" –
ways the government can make things difficult for a journalist.
There's also a chapter on how to protect business records and another
on how to protect personal privacy.
A journalist unfamiliar with access to information law might need
to re-read this book a few times before gaining a basic grasp of
the law. Using the Access to Information Act provides a start
at understanding the act, but is not as easy a guidebook as the
cover would lead you to believe.
Ms. Russell is a lawyer and former law instructor at Ryerson Polytechnical Institute in Toronto. She co-authored Canadian Business Law and has written articles on the law for Maclean's and other publications. She also had her own spot on CBC Radio to explain law to the layperson.
Published in Sources, Winter 1987/88
Sources, 489 College
Street, Suite 201, Toronto, ON M6G 1L9.
Phone: (416) 964-7799 FAX: (416) 964-8763
Include yourself in Sources
Mailing Lists and
Media Names & Numbers
Names & Numbers