Sources Select Resources
 
   

Book Reviews

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, 230 pages.

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 sought, etc.

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 make.)

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 no index.

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 System,
Harold J. Levy, The Canadian Bar Foundation, 230 pages.

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 court documents.

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 eye.

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 reporter.

 


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 informed."

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 Canadian media."

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 it.

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 justification.

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 work.

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 one.

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 consists of.

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 court.

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 work.

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,
Heather 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 fact is.

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 "logically organized."

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 consistent way.

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 replies."

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



 

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