Canadian Journalists for Free Expression - 2009 review

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CJFES REPORT CARDWHAT IS CJFE

IFEX

CAnADIAn JOuRnAlISTSFOR FREE EXPRESSIOn

CJFE boldly champions the freeexpression rights of journalists andmedia workers around the world.In Canada, we monitor, defend andpromote free expression and access toinformation. We encourage and supportindividuals and groups to be vigilant inthe protection of their own and othersfree expression rights. We are active

participants and builders of the globalfree expression community.

InTERnATIOnAl FREEDOm OFEXPRESSIOn EXCHAngE

IFEX is a dynamic global networkthat monitors, promotes and defends

freedom of expression worldwide.Created in 1992 in Montral, IFEX nownumbers 88 independent memberorganizations in over 60 countries.

WHAT DO WE DO?

CJFEmanagestheworldslargestfreeexpressionnetwork,IFEX,issuing2500 alerts a year and mobilizing media workers and civil societyglobally on free speech issues

Weeducateandadvocateonfreeexpressionissuesthroughpublicevents,publications and our annual awards banquet

Weareactiveparticipantsininternationalcampaignstopromotefree expression and to protect journalists in danger

Athomeweintervene,withotherfreespeechgroupsandmediaoutlets,in court cases to create better laws protecting expression

ThroughoutJournalistsinDistressFundwehelpprotectthelivesofjournalistsby providing emergency support when they are threatened or forced into exile

PlEASE JOIn uS! BECOmE A CJFE mEmBER OR SuPPORT OuR OngOIng WORk.

555 Richmond St. W, Suite 1101, PO Box 407

Toronto,ON,M5V3B1

Tel(416)515-9622;fax:(416)515-7879

Email:[email protected]:www.cjfe.org

IFEXS PROgRAm WORk FOCuSES On:

CirculatinginformationtoraiseawarenessthroughdailyAlerts, weeklyIFEXCommuniqunewsletter,freeexpressionheadlinesDigest

and website(www.ifex.org)

Buildingregionalcapacityprovidingadvice,training,nancialandtechnical support to assist members to work strategically to defend andpromote free expression within regions

Facilitatingcampaignsandadvocacybothurgentandlong-termactions

that target abuses in a particular country or issues such as defamation laws,Internet censorship and impunity

Buildingavibrantfreeexpressioncommunitybyorganizingforums,providing targeted organizational development grants, and through researchand analysis on key issues

TheIFEXClearingHouse,basedinToronto,Canada,runsthedaytodayoperationsofthe network and is managed by founding member organization Canadian JournalistsforFreeExpression(CJFE).
http://www.cjfe.org/printjoineng.htmlmailto:[email protected]://www.cjfe.org/http://www.ifex.org/http://www.ifex.org/http://www.cjfe.org/mailto:[email protected]://www.cjfe.org/printjoineng.html


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CJFES REPORT CARD: SHInIng lIgHT InTO DARk CORnERS

FREEDOm OF EXPRESSIOn On TRIAl: 2009

ATTACkS On THE ETHnIC PRESSTARASINGHHAYER:UNSOLVEDMURDER

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InFORmATIOn On A (SHORT lEASH): ACCESS TO InFORmATIOn 2009

unDERmInIng TRuST: POlICE ImPERSOnATIng JOuRnAlISTS

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CJFESFREEDOMOFEXPRESSIONINDEX2009

CJFETOCOURTOVERPOLICEPRETENDINGTOBEREPORTERS

OlYmPICS WATCH: FREE SPEECH AnD THE gAmES

WIll FREE SPEECH gET CAugHT In THE WEB?

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REMEMBERINGMICHELLELANG

WHENACCESSWORKS

APPENDIX:MAJORCOURTDECISIONS2009

CAnADIAn JOuRnAlISTS ABROAD

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Bob Cartyeditorial director

Gigi Lauart director

Jaclyn Lawcopy editor

writers

Arnold Amber

Erin DeCoste

Bob CartyTerry Gould

Peter Jacobsen

Paul Knox

Julie Payne

Kelly Toughill

Phil Tunley

researchers

Alexander Besant

Grant Buckler

John Norris

additional thanks

Graeme Smith

Jagdish Grewal

Canadian Committeeor World Press Freedom

(CCWPF)

The Canadian Press

We kindly thank the

Canadian Commission

or UNESCO

or support o

this Review.

COnTEnTS

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FREEDOM OFEXPRESSIONON TRIAL:2009

CANADIANJOURNALISTSABROAD

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ATTACKS ONTHE ETHNICPRESS

INFORMATIONON A (SHORT)LEASH
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CJFES REPORT CARD

W

e have just gone through

a remarkable year or ree

expression issues in Canada.

From the groundbreaking

decisions o the Supreme

Court o Canada to the vigorous stonewall-

ing o the ederal government on reedom

to inormation, to the harsh economic

realities visited upon us by the nancial

meltdown, 2009 provided more odder or

comment on ree expression issues than we

have seen in decades.

This is one o the reasons we at Cana-

dian Journalists or Free Expression (CJFE)

decided to launch our rst annual Review

o Free Expression.

In 2009, the Supreme Court con-

sidered an impressive eight cases dealing

with critical ree expression issues such as

deamation, the protection o sources, and

access to inormation. Controversial issues

such as hate speech dominated the airwaves

and headlines while also being addressed in

various human r ights tribunals. A Canadian

journalist was killed abroad trying to bring

home inormation about a war in which

our country is engaged. And at home, at

least two leaders o the ethnic press were

victims o direct attacks.

We hope this review will become anannual reerence document or examining

developments in ree expression in Canada

and or comparing ourselves with other

countries. So it is tting that we begin the

inaugural edition with an assessment o some

o the most important issues and how some

o our major institutions have perormed.

Shining light WHILEGIVING into dark cornerS

DEFAmATIOn AnD THE SuPREmE COuRT OF CAnADA:The Court met all our expectations in establishing the deence o responsible communica-

tions (see Freedom o Expression on Trial: 2009, page 6), bringing Canada up to the

standard o other nations. However, loty statements rom the Supreme Court do not, in and

o themselves, advance the cause o ree expression. We are eager to see how lower-court

judges and jur ies will apply the responsible communication deence. In 2010, the Supreme

Court is expected to rule on other vital cases concerning access to inormation and the

protection o sources. We hope they sustain the level o achievement we saw in 2009.

PuBlICATIOn BAnS AnD COuRTS OF APPEAl:When cases eventually come to them, the appeal courts usually get it right. In 2009,

all the cases we reviewed (see Case list, page 32) were decided in avour o more

open courtrooms.

PuBlICATIOn BAnS AnD TRIAl COuRTS :The experience at the trial level is not as positive. While there are trial judges who are

inormed and sensitive to the concept o transparency, ar too oten the lower courts exhibit

a stubborn dependence on a knee-jerk use o publication bans, sealing orders, and in camera

proceedings. The appeal courts have set out clear guidelines in this area, but they are hon-

oured more in the breach than the observance. We have a long way to go beore lower-court

judges understand how important it is to allow the media to do their job as the eyes and ears

o the public in the open justice system.

Our liberty is strengthened when journalists are free to

pursue truth, shine light into dark corners and assist the

process of holding governments accountable.

PRImE mInISTER STEPHEn HARPER,

ADDRESSIng THE nATIOnAl ETHnIC PRESS AnD

mEDIA COunCIl OF CAnADA (nE PmCC), nOv. 21, 2009


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CJFES REPORT CARD

ACCESS TO InFORmATIOn AnD THE FEDERAl gOvERnmEnT:Here, the only assessment can be a ailing grade. We remain bedevilled by the antics o those

ederal entities that invoke national security at the drop o a hat to restrict the dissemination

o vital inormation to journalists and, in turn, the public. Perhaps this attitude is best exem-

plied by a recent exchange between a ederal government lawyer and the Military Police

Complaints Commission, in which the lawyer not only challenged the commissions right

to obtain certain government documents on detainee transers but went so ar as to indicate

that he was not at l iberty to discuss when those documents might be available. Add to this

the countless delays and roadblocks put in the way o access to inormation (see Inorma-

tion on a (short) leash, page 18) and we are let wondering how the prime minister could

praise the medias attempt to hold government accountable while abandoning his own

promises o access reorms so loudly trumpeted on the campaign trail.

ATTACkS On THE PRESS AnD ImPunITY:Free expression is only o value i it can be saely exercised, which makes recent attacks

against the ethnic press so disturbing. The ailure, or more than 11 years, to bring anyone to

justice or the murder o Tara Singh Hayer, the publisher and ounder o the Indo-Canadian

Times, earns an F grade or the institutions involved in investigating this cr ime.

HATE SPEECH AnD THE CAnADIAn HumAn RIgHTS COmmISSIOn:Any restriction on speech has to have a clear social benet, and so we recognize the Cana-

dian Human Rights Commission or its decision in the Lemire case to deem the hate

speech provision o the Canadian Human Rights Code to be unconstitutional.

And while it has been a troubling year on many ree speech ronts, there are some others

deserving our recognition:

TheInformationCommissionerofCanadaforkeepingthegovernmentsfeet

to the re in dicult circumstances.

Majormediaoutletsthat,inayearofrecession,spenttensofthousandsofdollars

arguing important cases in all levels o court. More oten than not, these arguments

are based on principle, and the considerable cost o br inging these applications could

have been avoided by a more cynical, short-sighted cost-benet approach.

TheCanadianRadio-televisionandTelecommunicationsCommission(CRTC)for

its licensing o Al Jazeera English, which has expanded the diversity o voices

Canadians can access.

We are all practitioners o ree expression. We all benet rom transparency and openness,

and the right to shine light into dark places. It is incumbent on all o us to remain vigilant and

vocal on ree expression issues. Ater all, reedom o expression is the only guarantee that all o

the other reedoms Canadians enjoy will be maintained.

We hope this annual review will not only provide a periodic evaluation o reedom o

expression issues in Canada but also stimulate debate on a subject that lies at the very heart

o our democratic tradition.

FREEDOMOFEXPRESSIONIS

THEONLYGUARANTEETHATALLOFTHE

OTHERFREEDOMSCANADIANS

ENJOYWILLBE

MAINTAINED


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bodies leaned in avour o limiting ree

speechan inclination some ree expres-

sion advocates assessed as being unreason-

able. The result or journalists, Eric Baum

o Osgoode Hall Law School wrote at the

beginning o 2009, is a veritable chill onjournalistic activity.

The year 2009 was a period in

which journalists sought to warm that

chill. Deamation rulings and hate speech

laws became the subjects o high-prole

court cases, with Canadian journalists

and writers on one side and, on the other,

citizens and minority groups aggrieved

by their reporting. Meanwhile, journalists

ought an ongoing battle with the courts

over publication bans and the publics r ight

to know what goes on in our supposedly

open justice system.

FREEDOm OF EXPRESSIOnAnD DEFAmATIOn lAWMost journalists act as witnesses. Their job

is to be where some newsworthy event is

occurring and report what they witness to

those who cant be there personally. Thats

why we label those involved in the produc-

tion o news the media. The media are

in the middle, between the action and the

public. Journalists who report what they

physically witness rarely get into trouble

in Canada.

Some journalists, however, view the

act o witnessing a little dierently. For

investigative journalists, the act o witness-

ing doesnt always occur when something

takes place in ront o their eyes. In act,

in the vast majority o cases, the acts that

investigative journalists witness are pur-

posely hidden by the actors, and are oten

never seen. By and large, what investigative

journalists do is investigate the newsworthy

acts o people who do not want their acts

to be discovered.Prior to 2009, the deamation rulings

in Canadian courts made it risky or inves-

tigative journalists to publish their stories i

they could not prove in court every allega-

tion made by their sources. For example,

say a journalist received a phone call rom

a consumer claiming that a health ood

product manuactured by a local company

had made him ill. The journalist would see

i she could nd other consumers who had

swallowed the product and become ill. She

might talk to employees o the company,

and i they complained about the owners

lax practices regarding the products saety,

she would know she had a big public-

interest story. She would then contact thecompanys owner to get his side.

At that point, i this were in the United

States, the journalist wouldnt think twice

about publishing the damning claims o

consumers and company employees. In

order to successully sue or deamation

in the United States, the company owner

would have to prove that the journalist had

shown reckless disregard or the truth (she

had purposely concocted a lie) and had a

malicious motive or publishing the story

(the journalist had a personal vendetta

against the company owner).

Until recently in Canada, however, a

scrupulously honest, non-malicious jour-

nalist would have stood a good chance o

losing a lawsuit lodged by the company

owner i she were unable to come up with

court-standard proo backing the claims

o her sources. She could oer a duty and

interest deence stating that shed had a

responsibility to warn the public about

a danger it had an interest in knowing,

but that deence has not been reliable

in Canada2. And i her sources had been

mistaken about a couple o acts, even i

those acts did not detract rom the overall

credibility o the story, or i shed inserted a

derogatory remark about the company that

gave cause or an argument o malice, she

would also likely lose the lawsuit. As Eric

Baum pointed out in January 2009, previ-

ous Supreme Court o Canada decisions

have made it clear that the courts do not

recognize deendant newspapers as having

a duty to report matters o public interest

to the world at large. Media outlets could

neither escape liability by proving a lack ointention to deame, nor by proving that

reasonable care had been taken to ascertain

truthulness.

All that changed on Dec. 22, when the

Supreme Court extended the boundaries

o reedom o expression by handing down

a decision in two lawsuits that created a

new legal deence against deamation

that was in line with what was allowed

in some other Commonwealth countries.

StatueofTruth,TheSupremeCourtofCanad

2 See Freedom o Expression and Protection o Reputation: The Canadian Story, Jacobsen and Lee, October 2009.
http://www.google.ca/url?sa=t&source=web&ct=res&cd=1&ved=0CAYQFjAA&url=http%3A%2F%2Fwww.lexcanada.com%2Fdata%2Flib-dm-0909-01.pdf&rct=j&q=%22duty+and+interest+defence%22&ei=1ZHPS-ufEsWclgeo6cmgCw&usg=AFQjCNH6jDtUDJO7f5rs_-RHZQWkJlc0Mghttp://www.google.ca/url?sa=t&source=web&ct=res&cd=1&ved=0CAYQFjAA&url=http%3A%2F%2Fwww.lexcanada.com%2Fdata%2Flib-dm-0909-01.pdf&rct=j&q=%22duty+and+interest+defence%22&ei=1ZHPS-ufEsWclgeo6cmgCw&usg=AFQjCNH6jDtUDJO7f5rs_-RHZQWkJlc0Mg


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Called the deence o responsible com-

munication, it gave greater protection to

journalists, writers and bloggers who airly

and responsibly cover stories on a matter

o public interest, even i every statement

cannot later be proved true. Though stillnot as protective as the American model,

the deence allows Canadian journalists

to escape liability i they can show they

diligently attempted to prove the acts.

In one lawsuit beore the high court

that began eight years ago, the Ottawa

Citizen reported allegations that an Ontario

Provincial Police constable named Danno

Cusson had misrepresented himsel to New

York authorities in the weeks ater the Sept.

11, 2001, terrorist attacks against the World

Trade Center. The Citizen reported that

Cusson had arrived in the city and claimed

to be an RCMP ocer, telling authori-

ties that he and his pet German shepherd

were part o a trained snier-dog team. In

act, the dog had had no ormal training in

search and rescue, and that led to criticism

rom the New York authorities and Cus-

sons superiors at the OPP. Cusson sued the

Citizen, claiming that 12 o 29 acts in itsstory had libelled him. The Citizen asserted

that the paper had reported the statements

o its sources accurately, but the court agreed

with Cusson and awarded him $100,000.

The Citizen appealed, and the case wound

its way to the Supreme Court, where it was

heard alongside another deamation case.

That second case had originally

been launched by an Ontario developer

named Peter Grant over a 2001 article in

the Toronto Star. Grant, a riend and sup-

porter o the premier o Ontario at the

time, Mike Harris, had applied to expand

a private gol course on lakeside property

in cottage country. When the Star looked

into the story, local residents told the

papers reporter they believed that Grant

was using his political infuence to gain

permission or his application, with one

resident suggesting that the application was

already a done deal. The newspaper con-tacted Grant or his side, but he declined

to comment. Ater publication, Grant sued,

claiming the story was based on innuendo

and was deamatory. The court ound in

Grants avour and awarded him $1.475

million, one o the largest amounts ever

granted in a media deamation case. The

decision was overturned at the Ontario

Court o Appeal, and Grant then took it to

the Supreme Court.

Writing or the unanimous court on

both o these cases, Chie Justice Bever-

ley McLachlin ound that Freewheeling

debate on matters o public interest is to

be encouraged and must not be thwarted

EditorialCartoonbyRiberHansson.CourtesyoftheInternational Editorial CartoonCompetitionoftheCanadianCommitteeforWorldPressFreedom(CCWPF)
http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/


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by overly solicitous regard or personal

reputation. The courts decision speci-

cally addressed an issue that had caused ear

in the hearts o Canadian investigative

journalists whenever theyd published or

aired an expos: the narrowness o theirpossible deence under traditional rulings

regarding deamation law. The law o dea-

mation in Canada, McLachlin said, should

be changed because it did not lend enough

weight to the ree expression guarantees in

the Charter when it came to reporting on

stories that had public interest. To oer

greater protection, she said, the deama-

tion law should allow journalists to report

statements that are reliable and important

to public debate.

Media outlets across the country

applauded the decision. They no longer

had to prove every statement they reported

was true, only that they had diligently

soughtthe truth. Reliable sources or a story

might be mistaken, but that did not mean

the journalist was guilty o deamation i

he or she responsibly tried to veriy the

truth o the statement, or (in the courts

expansive ruling) i the deamatory state-

ments public interest lay in the act that

itwas made rather than its truth. (emphasis

added) The two newspapers being sued

could now use the expanded deence in

retrials o their cases.

FREEDOm OF EXPRESSIOn AnDTHE HumAn RIgHTS ACTI, at the end o 2009, Canadian journalists

had a stronger deence against accusations

o deamation, they still had to consider

Canadian laws that placed limits on expres-

sion when that expression was suspected

o exposing a person or group to hatred

or contempt because o religion, race, eth-

nicity or sexual orientation. The problem

or journalists and writers in Canada wasthat there were two sets o laws applying

to hate speech, one clearly dened under

provisions o the Criminal Code, and one

more diuse under the Human Rights Act.

The hate speech provisions o the

Criminal Code and the Human Rights

Act are oten confated in the public mind,

but they are, in act, two dierent areas o

Canadian law. The Criminal Code deals

with hate speech adjudicated in a court o

law in cases where speech is alleged to be

intended to lead to violence. The Human

Rights Act deals with hate speech adjudi-

cated by a tribunal o civilians based on a

complaint that the speech is intended to

lead to discrimination.Non-criminal complaints about

speech brought beore ederal and provin-

cial human rights tribunals set up by the

Human Rights Act have, not surprisingly,

been the source o a vigorous debate over

how to balance the constitutionally guar-

anteed right to reedom o expression in

Section 2 o the Charter, and the provision

in Section 1 that allows or reasonable

limits prescribed by law as can be demon-

strably justied in a ree and democratic

society. What is the dierence between

criminal hate speech and non-criminal

discriminatory, oensive speech, and what

constitutes reasonable limits to each?

In the Criminal Code, the limits are

clear, as is the burden o proo. In order

to convict a person under Criminal Code

Sections 318-320, the government must

prove beyond a reasonable doubt that the

charged person intended to advocate geno-

cide (318), publicly incite hatred against an

identiable group that will likely lead to

violence (319), or incite terrorism (320).

Section 13 o the Human Rights Act, on

the other hand, is an anti-discrimination

law, and suspected oences o speech are

judged not on whether they are meant to

incite violence but on whether they are

meant to incite eelings o hatred or con-

tempt that lead to discriminationa con-

siderably broader denition o an oence,

and one that some ree speech advocates

eel is unreasonable, particularly under the

rules that human rights tribunals operate.

Under the Human Rights Act, a

person or group that eels they are the

aggrieved object o the published state-ment in non-criminal cases can seek relie

beore provincial or ederal human rights

commissions, which have the power to

pass them on to a tribunal or adjudica-

tion. The tribunals are quasi-judicial, with

as many as 15 civilian appointees hearing

a case without a judge. The tribunals do

not ollow the rigorous procedures o a

court regarding evidence, yet they can (and

do) impose hety nes on deendants who

DEFAMATIONLAWSHOULDALLOWJOURNALISTSTOREPORTSTATEMENTSTHAT

ARERELIABLEANDIMPORTANTTOPUBLICDEBATE.


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lose their cases. Even i one wins ones case,

legal ees or deending onesel beore a

human rights tribunal can run into the tens

o thousands o dollars, which they did in

the case oMacleans columnist Mark Steyn

between 2007 and 2008.

Macleans had published Steyns The

New World Order, a summative excerpt

rom his bestselling book, America Alone:

The End o the World as We Know It,

which examined the possibility o an

Islamicized Europe. The Canadian Islamic

Congress claimed the excerpt was Islamo-

phobic, exposing Muslims to hatred and

contempt, and registered complaints

with multiple human r ights commissions.

The case was dismissed by the Canadian

Human Rights Commission (CHRC)and the Ontario Human Rights Commis-

sion ater Macleans submitted a brie o

deence to each. But the British Columbia

Human Rights Commission deemed the

case worth adjudicating and held public

tribunal hearings. In late 2008, the tri-

bunal ruled that while the book excerpt

might be considered oensive by some,

the complainants have not met their

burden o demonstrating that the Article

rises to the level o detestation, calumny

and vilication.

This ruling set the bar high or charges

o promoting hatred, but it did not elimi-

nate that bar. Journalists and writers were

still let wondering where exactly the legal

line stood between expression that was

permissible i it did not incite violence

and expression that was impermissible

because someone would complain it incited

detestation, calumny and vilication. Did

writers have to weigh their expression in

anticipation o the opinion o a board o

government appointees? How many o

these provincial and ederal boards would

they have to stand beore and deend

themselves? In the words o the Canadian

Book and Periodicals Council, the threato bureaucratic censurethrough nes, gag

orders and legal costsencourages writers

and others to censor themselves when com-

menting on controversial public issues.

In 2009, the boundaries were claried

somewhat, at least when it came to the

Internet. A complaint had been lodged

beore the CHRC against Marc Lemire, a

webmaster who hosted a right-wing site

that contained an electronic bulletin board

with postings that mocked Jews, Italians,

blacks, homosexuals and other groups. The

CHRC heard the case beore its tribunal,

where Lemire directly challenged the con-

stitutionality o Section 13 o the Canadian

Human Rights Act.

In September 2009, the tribunal ruled

Section 13 was indeed inconsistent with

the Charter o Rights and Freedoms, given

that the Human Rights Act was originally

intended to be remedial, preventative and

conciliatory in nature, rather than pros-

ecutorialless a means to punish and hand

out penalties or speech than to discourage

discrimination in housing and employment.

The decision, however, was not binding

beyond the Lemire case and, at this writing,

is awaiting review in Federal Court.According to Pro. Richard Moon, a

Windsor law proessor the CHRC had

hired to write a report about the role

o Section 13 in the Human Rights Act,

the section should be repealed entirely

by Parliament. In the age o the Internet,

Moon said, any attempt to exclude all

racial or other prejudice rom the public

discourse would require extraordinary

intervention by the state.

Editorial Cartoon by John Farmer. Courtesy of the International Editorial Cartoon

CompetitionoftheCanadianCommitteeforWorldPressFreedom(CCWPF)
http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/


11/40


11


The Canadian Civil Liberties Associa-

tion, an intervener in the Lemire case, also

argued that Section 13 should go: the

Criminal Code prohibitions against hate

speech, they said, are the appropriate meansto deal with those who willully promote

hatred leading to imminent violence.

We believe that when the statements

o racists do not promote violence, the

best way to deal with those statements is

to orceully and publicly denounce them.

In other words, the answer to hateul or

oensive speech that is not intended to

incite violence is more speech, not censor-

ship. We hope that a ruling rom the Federal

Court nding Section 13 unconstitutional

will clear up the conusion between hate

speech that is criminal and speech that may

be oensive, distasteul, repugnant and dis-

criminatorybut which can be countered

by more speech.

FREEDOm OF EXPRESSIOn AnDCOuRT PuBlICATIOn BAnSAnother continuing headache in 2009 or

journalists, and or ree speech, was to be

ound in our countrys judicial culture and

the issue o publication bans. Public trials are

guaranteed by Section 12(d) o the Charter

o Rights and Freedoms. In the court system,

the medias unction is to act as the eyes

and ears o the public. Citizens who cannot

attend court proceedings are inormed about

the law and the people involvedvictims,

deendants, police ocers, lawyers and

judgesby the reporters who attend. Public

scrutiny o our courtrooms is the best protec-

tion or the eective operation o our justice

system. Journalists help guard against court-

room abuses through publicity. That is why

public trials are guaranteed in the Charter.

On the other hand, publication bans

are oten used by judges to prevent theidentication o the victim or the accused,

or to ensure or the accused the right to a

air trial by an impartial jury, or when tes-

timony given in a bail hearing, preliminary

hearing or a voir dire might prejudice a

jury. Those are arguably legitimate reasons

or limited publication bans. But sealing

portions o a court le or excluding the

media aects the publics right to know

what is going on. And so the issue o publi-

cation bans is a balancing act o competing

rights, and too oten there is an imbalance

in avour o bans.

On this ront, 2009 contained some

good news and some bad news. The goodnews was that in cases brought orward by

media outlets appealing a judges publica-

tion bans, the courts hearing the appeals in

the majority o cases agreed with the media

that the court system should be more open

(see list o 2009 court cases). These deci-

sions should be a signal to judges to use

publication bans more sparingly. But heres

the bad newstrial judges still resort too

requently to publication bans.

Repeatedly, trial judges order a ban

regardless o the precedent set by previous

appeal judgments that lean in avour o the

interests o public education and engage-

ment in the legal system. Censorship in our

courts has been easily imposed even when,

time and again, judges have been over-

ruled ater the media have appealed their

publication bans, based on an argument or

more openness. Ater a ban is established

and it is brought beore a court o appeal,

the appeal court usually decides in avour

o openness, but by then, quite oten, the

trial has ended.

The prevalence o publication bans

and their attendant impediments to the

publics access to court proceedings

remain a concern to ree expression

advocates. In 2009, a number o appeal

court decisions, at various levels, have

moved the yardstick in avour o open

courts. But there is a huge task ahead in

the education o the judges who preside

over courtrooms.

Guaranteeing the rights to ree expres-

sion and to an open society guarantees

those rights to everyone. We cannot havea ree and open society when we deny

others the right to say what they want

to say merely because we dont like their

ideas. That is precisely the moment when

reedom o expression is tested. Through-

out history, whenever ree speech has

been unreasonably limited by some, the

tables have been turned, and those who

limited ree speech ound their own

speech unreasonably limited.

Therewereotherimportantissuesconsidered by Canadian courts in2009.Inparticularseveralhigh-prolecasesconcernedtherightsofjournaliststoprotectcondentialsources. Other cases explored thetension between privacy rights andfreedom of expression rights.

Alistofthemajorcourtcasesconsidered in 2009, at variousjudicial levels, is to be found in theAppendix(page32)tothisreview

along with summaries and linksto original documents and newscoverage.

Terry Gould is an investigative journal-

ist and the author of Murder Without

Borders: Dying for the Story in the

Worlds Most Dangerous Places (2009).

Bob Carty is a CBC radio producer and

a CJFE board member.

WECANNOTHAVE

AFREEANDOPENSOCIETYWHENWE

DENYOTHERSTHE

RIGHTTOSAYWHAT

THEYWANTTOSAY

MERELYBECAUSEWEDONTLIKETHEIRIDEAS.


12/40

ATTACkS On THE ETHnIC PRESS

12

I

t is awkward to create a hierarchy among various kinds o ree

expression violations. But in the global human rights community,

it is generally agreed that the most serious violations are those

directly against the person o a journalist or communicator. A

physical attack, a verbal threat, or an assault on a journalists home

or workplace, or on a media outlet can be devastating. These actions

can end journalism careers and close publications. They are primary

causes o sel-censorship. And they deprive the public o inormation

that could be vital to their lives and welare. Sometimes they are the

harbingers o worse violence to comeperhaps even murder.

Usually when we talk about direct, violent attacks against journal-

ists, we are talking about countries ar away. It doesnt seem like a home-

grown issue. Yet only 11 years ago, Tara Singh Hayer, the publisher o

the Indo-Canadian Times, was assassinated in British Columbiawith

no one yet brought to justice or his murder (see page 13).

While threats against the media can happen anywhere, there are

some noticeable tensions in Canadas ethnic media, a community that

is more extensive and vibrant than most Canadians appreciate. The rstblack Canadian presses were established in the 1850s. Today, Canada has

14 ull-service radio stations oering programming or various ethnic

groups, and more than 60 stations that have ethnic programming in

their schedules. There are more than 250 ethnic newspapers, represent-

ing more than 40 cultures, including seven non-English dailies. Three

multicultural television stations program in multiple languages, ve

operate ethnic specialty and pay-television services, and 44 are licensed

to provide digital specialty services.

When they and their ree expression rights are attacked, these

stories need to be heard.

Editorial Cartoon by Mohammed

Al-Adwani.CourtesyoftheInternational

Editorial Cartoon Competition of the

Canadian Committee for World Press

Freedom(CCWPF)

Canadian Journalists or Free Expres-

sion (CJFE) is the manager o a global

network o ree expression organizations

called IFEX (see page 2). And we send out

more than 2,500 alerts a year about attacks

against ree expression. In the past year, these

included two that originated in Canada.

ATTACk On SIkH EDITOR OF

Canadian Punjabi PostIn BRAmPTOn, OnT.

On Oct. 23, 2009, Jagdish Grewal nished

the last touches on his editorial or Cana-

dian Punjabi Post in Brampton, Ont. It was

11:40 pm and Grewal, 42, headed out to the

parking lot to drive home in his van. Beore

he could start the engine, three men, masked

and dressed all in black, rushed to his vehicle.

One had a gun; another, a steel pipe.Beore Grewal could get away, his

assailants smashed his window, put the

gun to his head, opened the door, dragged

him to the ground and began kicking and

beating him. The assailants, one o whom

Grewal identied as a Sikh by a beard

protruding rom his mask, began dragging

him towards their own van. It looked like a

kidnapping attempt.

attackS on GLoBAL IssUEs

the VERy ethnic PreSS
http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/http://www.ccwpf-cclpm.ca/


13/40

ATTACkS On THE ETHnIC PRESS

13

JagdishGrewal

At that point, one o Grewals employees,

leaving to go home, came upon the scene.

The attackers let Grewal go even while

shouting, in Punjabi, Kill him, kill him.

Grewal is the ounder and publisher/

editor o the Brampton-based CanadianPunjabi Post, and also hosts the daily radio

show Khabarsar. Grewal believes the

attackers may have been pro-separatist

Sikhs who disagree with his moderate

politics. He does not support violence

by Sikh militants. He has received threats

in the past because o his high prole in

the Toronto Sikh community. Grewal has

been receiving threatening phone calls

since criticizing Sikh journalist Jarnial

Singh during a radio interview three

weeks beore the attack.

Grewal says that he no longer works

outside his home late at night. Although

the police have not ound his attackers, he

has heard that the investigation continues.

And he eels concern about the growing

unrest within his community.

CJFE:

http://cjfe.org/releases/2009/26102009bramptonattack.html

CBC Radio, Te Current:

http://castroller.com/podcasts/TheCurrent/1287069

TheNationa Post:

http://www.nationalpost.com/story.html?id=2152085

vAnDAlIzATIOn OF uthayan

In SCARBOROugH, OnT.

On Feb. 21, 2010, Uthayan, a newspaper

read widely by the local Tamil community,

was vandalized. The attackers appeared

intent on intimidating people connectedto the paper who had met with the Sri

Lankan president, an action that was

unpopular in the Tamil community.

The attack was accompanied by a

threatening phone call to the editor o the

newspaper, Logan Logendralingam. The

Ithasbeenmorethan11yearssinceTaraSinghHayer,

the62-year-oldpublisherofthe Indo-Canadian Times,

wasgunneddownathisSurrey,B.C.,home.Despite

numerous investigations over the years, no one has ever

been charged with his murder.

Hayerwasalmostcertainlykilledbecauseofhisinvestigativeworkonthe1985AirIndiacase,the

deadliest incident of aviation terrorism in Canadian

history.HisassassinationwasnotthersttimeHayer

paidasteeppriceforhisdedicationtothetruth.An

attempt on his life 10 years earlier left him partially

paralyzed and using a wheelchair.

Hayersunsolvedmurdernotonlyremovedarational

and moderate voice within his community but also

blemishes Canadas reputation by allowing those who

kill journalists to do so with impunity.

Throughtheyears,policeandotherofcialshave

indicated that their investigations are continuing and,

at some times, even suggested that the case wouldsoonbesolved.Therehavealsobeennewsstoriesthat

haveidentiedanumberofsuspectsinthecase.But

still the authorities have not taken the case to court.

In l999, CJFE named one of its press freedom awards

forTaraSinghHayer.ItisgiventoCanadianjournal-

ists who have shown great courage in the course of

doing their work.

unidentied caller said, Okay, your r iends

went to Colombo and met the president

o Sri Lankathe enemy o Tamils who

killed 40,000 innocent people. Go to your

oce: there is a message or you.

The message Longendralingamound upon arriving was that his oces

ront window had been smashed in.

Logendralingam spoke to CJFE ater

the attack and said that he will continue

to publish as beore. He is also hopeul that

the police investigation will track down

the perpetrators and that they will be

brought to justice.

This is not the rst time there have

been violent attacks on individuals and

media property in the Tamil community. In

the 1990s, there were vicious assaults that

caused newspapers deemed to be critical

o the Liberation Tigers o Tamil Eelam

(LTTE) to be closed down. In 1993, Tamil

journalist D.B.S. Jeyaraj was badly beaten,

resulting in a broken leg and head injuries.

In another case, distributors o the weekly

newspaperThayagam were targeted.

CJFE:

http://cjfe.org/releases/2010/23022010uthayan.html

CBCNews:

http://www.cbc.ca/canada/toronto/story/2010/02/22/toronto-tamil-newspaper.html

TARASINGHHAYER:UNSOLVEDMURDER

TaraSinghHayer

PHOTO

COURTESYOFINDO-CANAD

IANTIMES
http://cjfe.org/releases/2009/26102009bramptonattack.htmlhttp://castroller.com/podcasts/TheCurrent/1287069http://www.nationalpost.com/story.html?id=2152085http://cjfe.org/releases/2010/23022010uthayan.htmlhttp://www.cbc.ca/canada/toronto/story/2010/02/22/toronto-tamil-newspaper.htmlhttp://www.cbc.ca/canada/toronto/story/2010/02/22/toronto-tamil-newspaper.htmlhttp://www.cbc.ca/canada/toronto/story/2010/02/22/toronto-tamil-newspaper.htmlhttp://www.cbc.ca/canada/toronto/story/2010/02/22/toronto-tamil-newspaper.htmlhttp://cjfe.org/releases/2010/23022010uthayan.htmlhttp://www.nationalpost.com/story.html?id=2152085http://castroller.com/podcasts/TheCurrent/1287069http://cjfe.org/releases/2009/26102009bramptonattack.html


14/40

UNDERMININGTRUST

14

unDERmInIng TRuST

mANy cAsEs of offIcIALs

WHo WERE UnderMiningtHE trUSt: toRoNtoPolice iMPerSonatingJoUrnaliStS AppARENtLy

tHEsE sItUAtIoNs occUR

Canada is one o the ew Western

democracies that allow agents

o the state to pose as journalists

at will. The practice has sparked

riots in Europe and strict ederal

regulations in the United States. Even the

CIA has rules about when its agents can

pretend to be reporters, but no rules exist

in Canada.

Canadian police have arrested suspects

ater luring them into alse interviews by

pretending to be reporters. They have posed

as reporters to capture protests on lm. They

have pretended to conduct news interviews

to gather inormation in investigations.

During the stando at Ipperwash that

gave rise to the police shooting o Dudley

George, and again during the Mohawk Day

o Action blockade o the railway tracksbetween Toronto and Kingston, members

o the Ontario Provincial Police posed as

journalists in order to get closer to protesters.

Canadians should be very troubled by

this ruse, or it threatens one o our unda-

mental reedoms.

Police impersonation o journalists

destroys public trust in the proession o

journalism, making it impossible or jour-

nalists to report some stories o vital public

interest. It also creates risks or journalists,

who can now be mistaken or police in

places where police are not welcome or

willing to go.

There are stories o vital public interest

that will go unreported i sources can no

longer tell the dierence between repor-

ters and police. Take the case o the Mount

Cashel Orphanage. It is no coincidence

that the crimes o pedophile priests at

the Newoundland orphanage were rst

revealed in the press and only then investi-

gated by police.

Many adults who suered child abuse

are deeply distrustul o authority and

have a compulsion to retain control over

their own lives. These twin instincts work

against any inclination to cooperate with

the criminal justice system. This is whythere is such a strong pattern o past child

abuse being rst revealed in the press, and

then being investigated by police.

Any reporter who has covered

these stories knows that the victims are

extremely anxious about whether their

tale will be relayed to police, and whether

they will retain control over the ability

to ocially reportor notthe abuse. Any

blurring o the line between reporters and

police would leave these stories untold.

The Mount Cashel story was the rst

signicant revelation o pedophilia in the

Catholic Church. Those stories, reported

20 years ago, have led to an international

debate over one o the most powerul insti-

tutions on the planet. It is easy to see how

the Mount Cashel stories served not just

Canadian society but the global public good.

It is not just victims o child abuse who

must be able to trust reporters. Journalists

pursue stories o vital public interest by

dealing with people rom many dierent

types o closed societies. Aboriginal activ-

ists, sex-trade workers and most marginal-

ized groups are generally reluctant to speak

with police. And it is in those closed soci-

eties that journalists oten nd the stories

that we most need to hear.Sometimes journalists must knowingly

deal with criminals to get stories o vital

public interest. Journalists cannot write

eective stories about the problem o drug

abuse in Canada without speaking with

someone who is addicted to drugs. But

drug users will not detail the horrors o

that lie i they suspect they are speaking

with police, who may turn around and

arrest them or their honesty.

by kEllY TOugHIll


15/40

UNDERMININGTRUST

15

unDERmInIng TRuST

Sometimes it is not just trust that is at stake, but basic saety.

There are several cases around the world in which reporters have been killed

because they were mistaken or police by the wrong people at the wrong time.

A classic denition o public service journalism is to give voice to the voiceless.Without the ability to have relationships o trust with the most marginalized in

society, the press cannot serve that unction. I police continue to pose as reporters,

that trust will erode and we will lose the ability as Canadians to learn about stories

such as the child abuse that occurred at the Mount Cashel Orphanage.

It is or these reasons that Canadian Journalists or Free Expression (CJFE) is

challenging the practice o police impersonating journalists as a undamental threat

to ree expression in Canada.

Kelly Toughill is a journalist and associate professor at the School of Journalism,

University of Kings College.

CJFE, supported by other media and free

expression groups, is preparing a court

application against the Ontario government

to end the practice of police impersonating

journalists.Theapplicationseeksadeclara-

tion from the court that the practice violates

the freedom of expression guaranteed by

Section2(b)oftheCanadianCharterofRights

and Freedoms.

ThecasewillhighlightrecentOntario

examples of police officers impersonating

journaliststoinfiltrateAboriginalprotest

activities, first at the Ipperwash standoff

in 2004, and then again during the Mohawk

blockadeofraillinesatDeserontoduring

the2007AboriginalDayofAction.These

examples illustrate how the practice violates

the freedom of expression of journalists by

undermining public trust in the profession of

journalism and by creating a heightened risk

of physical harm to journalists trying to cover

these important stories. In this way, whenpolice impersonate journalists, they interfere

with news gathering, which is an essential

part of the freedom of expression guaranteed

bySection2(b),CJFEwillargue.

In addition, the case will show how the practice

impairs access to the media by marginalized

groups and individuals who most need such

access to express their concerns and points of

view.Thepracticealsoimpairstheirrightto

remain silent in the face of criminal investigations.

Court action is a last resort, made necessaryby recent failures by ministers and police

officials to follow through on the need to

review and curtail the practice by legislation.

It seeks to bring Canadian practice into l ine

with that in other jurisdictions such as the

UnitedStates.

Lawyer Phil Tunley is a member of

CJFEs Board of Dire ctors.

CJFE TO COuRT OvER

POlICE PRETEnDIng TO BE

REPORTERS

POLICEIMPERSONATIONOFJOURNALISTS

DESTROYSPUBLICTRUSTINTHEPROFESSIONOFJOURNALISM

by PHIl TunlEY

Twoaboriginalprotestersmanabarricadeneartheentranceto

Ipperrwash Provincial Park, near Ipperwash Beach, Ont., on Sept. 7, 1995.

PHOTO

BYTHECANADIAN

PRESS/MOEDOIRON


16/40

16


17/40

17

SOURCES:1-3,10-11,CJFE;4-5,TREASURYBOARDINFOSOURCE;6,THE GlOBE AN

7,OFFICEOFTHEINFORMATIONCOMMISSIONER;8-9, FAllING BEhIND: CANADAS AC

TO INFORMATION ACT IN ThE WORlD CONTExTBYSTANLEYTROMP.
http://www.google.ca/url?q=http://www3.telus.net/index100/report&ei=HvzYS5OoD4T58Aba25XHBQ&sa=X&oi=unauthorizedredirect&ct=targetlink&ust=1272513318253266&usg=AFQjCNFl1XDwKu7pndalj02m26b9QN9v4Ahttp://www.google.ca/url?q=http://www3.telus.net/index100/report&ei=HvzYS5OoD4T58Aba25XHBQ&sa=X&oi=unauthorizedredirect&ct=targetlink&ust=1272513318253266&usg=AFQjCNFl1XDwKu7pndalj02m26b9QN9v4Ahttp://www.google.ca/url?q=http://www3.telus.net/index100/report&ei=HvzYS5OoD4T58Aba25XHBQ&sa=X&oi=unauthorizedredirect&ct=targetlink&ust=1272513318253266&usg=AFQjCNFl1XDwKu7pndalj02m26b9QN9v4Ahttp://www.google.ca/url?q=http://www3.telus.net/index100/report&ei=HvzYS5OoD4T58Aba25XHBQ&sa=X&oi=unauthorizedredirect&ct=targetlink&ust=1272513318253266&usg=AFQjCNFl1XDwKu7pndalj02m26b9QN9v4A


18/40

InFORmATIOn On A (SHORT) lEASH

18

Secret and inormation are two words that govern-

ments spend a lot o time struggling to keep pressed

together. The adjective and noun have a very unstable

relationship, and are constantly threatening to spring

apart. By denition, keeping knowledge hidden rom

others is not a concept that ts well with the process o inorm-

ing. Democratic governments are particularly strained in making the

words t because all the inormation a government possesses is paid

or with public money, and it is the public rom whom the inorma-

tion is kept secret.

Over the years, public pressure caused 75 governments through-out the world to yield to a section o the Universal Declaration o

Human Rights that guarantees the right o citizens to seek inor-

mation (see box). Today, rom Mexico to South Arica, reedom o

inormation laws make it possible or ordinary people to apply or the

timely release o government inormation and, in theory, get what

they are ater. Sometimes the intent o the law is ullled; other times

it is evaded when governments use bureaucratic excuses or unrea-

sonable delay; too oten it is oiled by governments claiming their

prerogative to declare inormation secretusually on the grounds o

national security.

by TERRY gOulD ad BOB CARTY

InKandahar,Afghanistan,prisonersaccusedofinvolvementwiththeTalibanoftenendupinsidethenational-securitywingofSarpozaprison.

TheCanadianmilitarystransferofdetaineestoAfghanauthoritieshasbeenatthecentreofatug-of-waroverAccesstoInformation.

2009 WAS A YEAR OF STRugglE

BETWEEn A gOvERnmEnT WITH

A lOT OF SECRETS AnD A PuBlIC

THAT JuST WAnTED THE FACTS.

CJFE REPORTS On THE YEAR-lOng

BATTlE OvER CAnADAS ACCESS TO

InFORmATIOn ACT AnD THE HISTORY

THAT lED TO THE COnFlICT.

cULtIVAtING & fINDING

inForMation on a (Short) leaSh:

acceSS to inForMation 2009PHOTO

BYGRAEMESMITH

FOR

THEGlOBEANDMA

Il
http://www.un.org/en/documents/udhr/http://www.un.org/en/documents/udhr/http://www.un.org/en/documents/udhr/http://www.un.org/en/documents/udhr/


19/40


19

Canada enacted its version o a

reedom o inormation law in 1982, under

the Liberal government o Prime Minis-

ter Pierre Trudeau. Yet there was a faw

in the conception o the legislation that

was evident in its name: it was not calleda reedom o inormation law but the

Access to Inormation Act (ATIA). Free

means unettered, while access means

an approach, and so the Access to Inor-

mation Act guaranteed a procedure rather

than a right. It stipulated how Canadians

could apply or government inormation

and set a 30-day time limit or a response,

but it also circumscribed what inorma-

tion was available by excluding all cabinet

documents and dozens o government

agencies and Crown corporations. ATIA

may have established an Inormation

Commissioner to ensure the procedures in

the Act were ollowed, but it also declared

that the commissioner could not compel

the government to release inormation

that the government decided should be

kept secretor a variety o government-

riendly reasons spelled out in the Act.

These restr ictions on the ATIAs power

to reveal a governments secrets were a

great relie to many ederal bureaucrats and

cabinet members. I youre a mistake-prone

bureaucrat, a single Access to Inormation

(ATI) request has the potential to end your

career, and i youre a member o the ruling

party, a series o well-targeted requests can

expose a web o lies that ensnares your

whole government.

Not surprisingly, or the next two

decades, many politicians and ocials

serving the governments o both Liberals

and Conservatives used the ATIA to hide,

not provide, inormation. Some employed

the old standby: the requested inormation

was secret because it was subject to national

security laws. Others denied requests basedon the claim that supplying the inorma-

tion would compromise the privacy o

third parties. Excuses or delays were legion,

ranging rom the need to consult other

departments to the inability to nd data

or even to nd the time to nd the data.

All these stalling tactics became too

much or John Reid, the inormation com-

missioner rom 1998 to 2006. In 2000, Reid

issued a blistering attack on the Liberal gov-

ernment o Prime Minister Jean Chrtien

or attacking his oce, threatening his sta,

and creating huge backlogs in access requests.

In subsequent reports, Reid accused the

government o destroying documents to

prevent their release and trying to intimidatepeople who had legally requested inorma-

tion. At the time, journalists were seeking

the release o hidden les related to what

would become known as the sponsorship

scandal. In that case, partly because o a

coast-to-coast demand or inormation on

the alleged scandal, the documents were

released. Rampant Liberal cronyism and

kickbacks were exposed, and the Liberals

paid the price in the 2006 election, losing to

the Conservatives under Stephen Harper.

In the run-up to that election, Harper

had made eight noble promises to x the

ATIAs most glaring deciencies. Among

the reorms he promised to enact i he won

the election were amendments o the ATIA

so that all exemptions would be subject to

a general public interest override, and to

invest the commissioner with the power to

order the release o government inorma-

tion based on that override. In Harpers

rst two years in oce, however, he not

only ailed to keep his promises but moved

his government in the direction o more

secrecy. The number o stalled or reused

ATI requests increased, as did wait times or

nal responses on requests, which in some

cases arrived 270 days ater ling. Robert

Marleau, the new inormation com-

missioner, gave Harpers Privy Council

Ocethe top bureaucratic councilan

F on disclosure or the per iod o 2007 to

2008. For both those years, the Canadian

Association o Journalists bestowed on

Harper its satiric Code o Silence Award.

To journalists, the deliberations o govern-

ment institutions began to seem almost

conspiratorial as bureaucrats avoided ATIrequests by holding their meetings without

taking minutes, giving a new meaning to

the phrase nothing to hide. Even inor-

mation once reely available was not so ree

anymore. Prior to Harpers election, every

successul ATI request had been recorded

in an open database. In mid-2008, Harper

shut down the database, citing cost con-

cerns. Researchers and the media now had

to wait weeks or months or government

bureaucrats to inorm them that the docu-

ments requested had already been released.

As 2009 opened, the stage was set or a

great struggle between a government that

wanted to hold the words secret inorma-

tion together and a public that elt it hadpaid or the right to pry them apart. The

year would be dominated by a battle to

get access to secret les documenting the

governments knowledge o the torture o

prisoners by Aghan authorities ater Cana-

dian soldiers had handed them over, but

there were other battles on lie-and-death

issues. Each o them actored into the 2009

war or the publics right to inormation that

the government elt should be kept secret.

On THE mInDS OF mAnY REPORTERS at the

beginning o the year were the deaths o

20 Canadians the previous summer in a

listeriosis outbreak caused by contami-

nated meat. Was the ree market-oriented

Harper governments push or a more

lenient meat-inspection system among the

possible causes or the ood poisoning? Just

ater the wave o atalities, reporters led

multiple ATI requests, seeking documents

that would illuminate crucial exchanges

between politicians during the crisis. Four

months later, the Privy Council Oce

replied that they did not have the records

requested. Then a spokesperson explained

that, because the inormation was recorded

in handwritten notes, the inormation

was not subject to release. New year 2009

arrived with no inormation made public,

and as concern about the saety o Cana-

dian meat mounted in the inormation

vacuum, Prime Minister Harper appointed

an independent investigator, who was

actually serving him on another advisory

committee. Her report, released almost

eight months later, cited the governments

lack o ocus on ood saety as a contribu-tor to the deaths, but the delay and timing

o the report seemed to serve two purposes

or the recalcitrant government: the public

uror over the deaths had abated, and the

reports release during the height o the

2009 summer vacation season ensured it

was little noticed.

Government stalling on inorma-

tion requests was the main thesis o the

Canadian Newspaper Associations (CNA)
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annual audit o ATI compliance or all

levels o government. Released at the

beginning o the year, the report made

or some ironical reading. At the time,

reporters at the CBC were complaining

about their unullled ATI requests ordocuments on the lister iosis deaths, but the

national public broadcaster itsel earned a

grade o D on ATI compliance, in line

with the worst marks o ederal institu-

tions that the CNA studied. The CBC

had imposed a six-month time extension

on top o the normal 30-day deadline to

reply to a request or the salary ranges and

classications o its top employees. Indeed,

the CBC provided no response at all to the

CNAs request or its policy on employees

talking to the media. It appeared that the

CBC was a good candidate or the Cana-

dian Association o Journalists next Code

o Silence Award.

At the end o February, the inorma-

tion commissioner grimly reported to

Parliament that public respect or the

ATIA was deteriorating. Federal agencies

that had a vast impact on the nations saety

and welare had ailed to comply with ATI

time limits or responding to requests or

inormation, with some taking an average

o our months to acknowledge receipt

o the requests. The worst oenders were

Health Canada, Public Works, the RCMP,Canada Border Services, Foreign Aairs

and the Department o National Deence.

At the time the commissioner reported

to Parliament, National Deence and Foreign

Aairs were at the heart o a growing clamour

by the media or the release o documents on

what was being termed the Aghan le. A

year and a hal earlier, the chie o the deence

sta, Gen. Rick Hillier, had halted the release

o documents relating to the treatment o

detainees captured in Aghanistan, claiming

that disclosure o the inormation could

endanger Canadian troops. As evidence

mounted that Canadian-transerred detain-

ees had been tortured in Aghan prisons, the

governments reusal o ATI requests or the

Aghan le moved to the centre o discus-

sions about government secrecy.

Then came a setback in the ght to

open the Aghan le, as well as in the

broader struggle to separate public inor-

mation rom the grip o the governments

claims to secrecy. In April, a Federal Court

upheld the governments right to restrict

inormation i the government elt the

inormation would harm its conduct ointernational aairs. The case had been

launched by University o Ottawa proessor

Amir Attaran, who had received a heavily

redacted response to his ATI request or

the Department o Foreign Aairs annual

human rights reports on Aghanistan or

the years 2001 to 2006. To Attaran, there

should have been no reason or the gov-

ernment to censor its reports. The U.S.

State Department openly published on the

Internet its oten scathing annual reports

on Aghanistans human rights record.

Nevertheless, the courts decision stated

that, in Canada, the governments negative

reerences or criticisms o Aghan politi-

cal, security and police authorities would

underminerelationships and become a

hurdle or the Canadian governments rep-

resentatives on the ground in Aghanistan.

Just how dicult it had become to

Shackledbythefeet,manyinmatesarriveatSarpozaprisonsufferingfrominjuriessustainedincustodyoftheNDS,theAfghansecretpolice.

Thechainsusuallycomeoffwithinafewdaysorweeks.

PHOTO

BYGRAEM

ESMITH

FOR

THEGlOBEANDMAIl
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breach the rising walls o government

secrecy became evident in June, when the

Oce o the Inormation Commissioner

(OIC) released a report on complaints

about delays and denials o inormation in

the previous scal year. There were 2,513complaints on le, up by 61 per cent rom

the last annual report. Over hal o the com-

plaints, 56 per cent, were led against six

o the 241 ederal entities under the ATIA.

Among them were the usual suspects: the

Department o National Deence, Foreign

Aairs, the CBC, the Privy Council Oce

and the RCMP, plus the Canada Revenue

Agency. The average time to resolve a com-

plaint was 13 months, although two-thirds

o all complaints were ound by the OIC

to have had merit. A requent technique

or delaying requests or inormation was

to mark them as amber lightsensi-

tivewhich sent them disappearing down

a well o bureaucratic review. Naturally, the

bottom o that well had lled with probing

amber light requests rom reporters, oppo-

sition MPs, academics and lawyers.

The release o the OIC report coin-

cided with the issuing o proposals or

reorm o the ATIA based on a months-

long study by the House o Commons

Standing Committee on Access to Inor-

mation. The parliamentary committee

recommended that people who make

requests under the ATIA should have

direct recourse to the Federal Court i

their access were reused; that the inor-

mation commissioner should be given

more power to orce the government to

make timely disclosure o inormation;

and that cabinet documents should be

made subject to access requests. The

Harper government took the proposals

under advisement, and then sat on them

or months. The Conservatives had their

hands ull on the Aghan ile.Since March 2008, the independent

Military Police Complaints Commis-

sion had been investigating complaints by

Amnesty International and the BC Civil

Liberties Association that Canadian Forces

had transerred detainees to Aghan authori-

ties notwithstanding alleged evidence that

there was a probability they would be

tortured. All through the summer o 2009,

the Harper government ought to keep a

government ocial rom testiying beore

the commission. The ocial was Richard

Colvin, an intelligence ocer and diplomat

who had worked in Aghanistan in 2006

and 2007. Colvin was willing to reveal to

the commission his knowledge o what the

military and his overseers at the Department

o Foreign Aairs had known concerning

the likelihood that prisoners handed over to

Aghan authorities might be tortured.

In October, Colvins lawyer accused

the Department o Justice o actively

discouraging his client rom co-operating

with the hearings. That same month, the

Harper government rejected the three

main recommendations o the House o

Commons Standing Committee on Access

to Inormation.

A month later, on Nov. 24, Colvin

testied beore the Military Police Com-

plaints Commission, stating that Ottawa

had ignored and tried to suppress his warn-

ings that prisoners transerred to Aghan

jails in 2006 and early 2007 were likely

tortured. A week later, the governmentnally acceded to Access to Inormation

requests by the media and released the

thousands o pages o heavily blacked-out

documents that it had handed over to the

independent inquiry. Even though the

inquirys investigators had received the

highest level o national security clearance,

they too had not been permitted to see the

governments secrets.

For the next month, the estivities o

the 2009 Christmas season were drowned

out by editorials calling or the ull text o

the blacked-out documents. All o Harpers

2006 campaign promises about reorm o

the ATIA now seemed hollowa conclu-

sion given weight in the new year when

a Canadian Press ATI request or Depart-

ment o Public Works documents on the

ministrys real estate portolio was approved

or release, and then, on the day in Febru-

ary it was to be handed over, unreleased

by the ministers parliamentary aairs

director. Later, a Tory insider would report

that it was standard operating procedure

or ministerial or political sta to intercede

when documents were about to be released,

paring them down as much as possiblea

potential violation o ederal law: This is

inexcusable political intererence in the

right o Canadians to know what their

own government is doing, said journalism

proessor Kelly Toughill. The case exposes

how poorly our reedom o inormation

laws are unctioning.

POlITICIAnS ARE BY DEFInITIOn o the people,

and are thereore as prone as average

citizens to making embarrassing mistakes,

and just as averse to having their mistakes

exposed. But there is a dierence between

a politician and an average citizen. Because

politicians are invested with a lot o power,

their mistakes can have disastrous conse-

quences or millions o Canadians. Even

i a politician is not a thie or a scoundrel,

AmirAttaran

PHOTO

COURTESYOFUNIVERS

ITYOFOTTAWA
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or responsible or a disaster, his or her

colleagues in Parliament may occasionally

be secretly involved in tawdry behaviour.

Access to Inormation requests that probe

the ruling governments suspected mistakes,

corruption or scandalous activities otenthreaten the whole clubhouse. That is

why they are resisted so vigorously, even

by politicians who sincerely believe that

government should be an open enterprise.

Openness should, in act, be the ethical

oundation o government. It is not some-

thing that citizens should have to ask o

government; it should be the cultureo gov-

ernment. The proactive disclosure o gov-

ernment inormation must be the rule; the

requirement to navigate obstacle-strewn

ATI procedures should be the exception.

And those procedures must be reormed.

Today, in at least a dozen ways, the Act ails

to meet international standards o reedom

o inormation laws. In some areas, our

law doesnt even match those o countries

like Mexico, Pakistan and India. And there

remain more than 100 quasi-government

bodies not covered by the Act.1

CJFE believes that Canadians should

appeal to our politicians best intentions and

demand that the Access to Inormation Act

be reormed in general accord with Prime

Ministers Stephen Harpers own 2006 cam-paign promises. Here are our recommenda-

tions or Mr. Harpers government:

Give the inormation

commissioner the power to

order the release o

government inormation;

expand the coverage o the

ATIA to all Crown

corporations, ocers o

Parliament, oundations, and

organizations that spend

taxpayers money or perormpublic unctions;

subject the exclusion o cabinet

condences to review by the

inormation commissioner and

oblige public ocials to create

the records necessary to

document their actions and

decisions;

provide a general public interest

override or all exemptions so

that the public interest is put

beore the secrecy o the

government;

ensure that all exemptions rom

the disclosure o government

inormation are justied only

on the basis o the harm or

injury that would result rom

disclosure rather than blanket

exemption rules; and, nally,

ensure that the disclosure

requirements o the ATIA

cannot be circumvented by

secrecy provisions in other

ederal acts, except in those

cases where the inormation

commissioner nds that the

requested documents are truly

vital to national security or the

privacy o personal inormation.

In short, Mr. Harper, make the Access

to Inormation Act a freedom o inorma-

tion act. Give us our ree right to ourown

inormation, paid or with our taxes and

accumulated by bureaucrats and politicians

whom we have hired to serve us and not

their own interests.

In the end, reedom o inormation

will benet you, Mr. Harper. As Globe

and Mailcolumnist John Ibbitson recently

wrote, where there is an inormation

vacuum, a miasma o rumour inects the

political atmosphere. Suddenly, everything

ends in gate.

StephenHarper,givinghisvictoryspeechafterthe2006election(thecampaignwhenhepromisedreformofAccesstoInformation). 1 Canadas 28-year-old Access to Inormation Act was

once considered a shining example in its promise to

give the public access to public inormation. No longer,

according to an analysis by Stanley Tromp.

Terry Gould is an investigative journalist

and the author of Murder WithoutBorders: Dying for the Story in the Worlds

Most Dangerous Places (2009).

Bob Carty is a CBC radio producer and a

CJFE board member.

With research by Grant Buckler.

PHOTO

BYTED

BURACAS
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ATTACKSONTHEETHNICPRESS

2323

ACCESS TO InFORmATIOnWHEn ACCESS TO InFORmATIOn WORkS

WHY ACCESS TO InFORmATIOn IS ImPORTAnT TO THOSE WHO CARE ABOuT FREE SPEECH

ItistemptingtogiveuponCanadasAccesstoInformation(ATI)system.Butdespiteitsproblems,forthepersistentreporterATIstillexposesnews-breakingstories,fromthesponsorshipscandaltotheAfghandetaineedebate.WithoutATI,Canadianswouldnotknowaboutcriticalissues.Forexample:

Asuspectedcarcinogen,bannedinpesticides,isstillavailableinsomebrandsof childrens shampoo used to treat childrens lice.

ExplosivesusedinmilitarytrainingexercisesfromWorldWarIIbombsto anti-tankmortarsarepossiblyscatteredacross25nativereserves.

RCMPofcersusedtheirTaserweaponsatleast5,000timesfrom2002to 2008.ATIinformationreleasedafter15monthsledtheCBCtoconduct

tests that found 10 per cent of the weapons were either defective or discharged signicantlymoreelectricitythanclaimed.Areviewof563casesshowedthat 79percentofthosezappedbyTaserswerenotbrandishingaweapon.

Onehundredandforty-sixCanadianswerechargedwithchild-sexoffences

overseasfrom1993to2007.OnlyoneCanadianhabeenconvictedinCanada underlawsagainstchild-sextourism.

Morethan3,000Canadianseniorsdiedin2005fromadversedrugreactions, manyofthempreventable.Childrenaredyingfromtheside-effectsofpowerful psychotropicdrugsonlytestedonmiddle-agedadults.Theseandotherndings emergedafterave-yearghtbytheCBCtoobtainHealthCanadaslarge

database of adverse drug reaction reports.

SeeStanleyTrompsNotableCanadianNewsStoriesBasedonATIArequests.

Note:SincetheHarpergovernmentshutdownthefederaldatabaseofATIrequeststhathadbeen released, some of that information has been maintained by DavidMcKie an investigativereporter at the CBC, and MichaelGeist,aprofessorattheUniversityofOttawa.

The1948UniversalDeclarationofHumanRights(Article19)guaranteesustherightto seek, receive and impart informationand ideas through any media and regard-less of frontiers.

Inherent in the right to freedom ofexpression, therefore, is the right to seekinformation upon which that expression istobebased.Governmentscanguaranteefree expression as a fundamental right butstill severely restrict it in practice if theyplace unreasonable limits on access toinformation. Without the right to informa-tion, there can be l ittle reasoned expression.

Governmentisobligedtoprovideaccesstoinformationitholds,anobligationheightenedbythefactthatitsinformationwascreatedusingtaxpayerresourcesforthebenetofgoodanddemocratic governance.

Topromisefreedomofexpressionwithoutguaranteeingfreedomofinformationwoulddeny

expression in practice.

...access to information is a foundation for citizen participation, good governance, publicadministrationefciency,accountabilityandeffortstocombatcorruption,mediaandinvestigative journalism, human development, social inclusion, and the realization of othersocio-economicandcivil-politicalrights.TheAtlantaDeclaration

UNESCOandWorldPressFreedomDay(WPFD)ThethemeforWPFD2010isFreedomofInformation:TheRighttoKnow.YoucanndresourcesonUNESCOswebsiteincludingdiscussionpapersandresourcesonaccesstoinformation:http://tinyurl.com/2dthe5g

TheCanadianNewspaperAssocia-tion will release its annual study onfreedomofinformationinmid-May.

Conducted in collaboration with theSchoolofJournalismattheUniver-sityofKingsCollegeinHalifax,thestudyassessesresponsestoAccessto Information requests at all levelsof governmentfederal, provincialand municipaland this year addsan examination of Canadas majoruniversities.

Thestudysauthor,FredVallance-JonesfromKingsCollege,saysthe

ATIsystemisinanappallingstate.Ihearstoriesof210-dayextensionsandofcialssayingthatsallwecan do. I have never seen theconstellation of evidence so strongthatthereisabigproblem.TheAccessregimeisincrisis.

SeetheCNAreportonMay13,2010:http://www.cna-acj.ca/en/public-affairs/freedom-information

nEW ACCESS AuDIT

COmIng SOOn
http://www.freedominfo.org/2010/03/notable-canadian-news-stories-based-on-atia-requests/http://http-server.carleton.ca/~dmckie/CAIRS.htmhttp://cairs.michaelgeist.ca/http://www.cartercenter.org/resources/pdfs/peace/americas/ati_atlanta_declaration_en.pdfhttp://tinyurl.com/2dthe5ghttp://www.cna-acj.ca/en/public-affairs/freedom-informationhttp://www.cna-acj.ca/en/public-affairs/freedom-informationhttp://www.cna-acj.ca/en/public-affairs/freedom-informationhttp://www.cna-acj.ca/en/public-affairs/freedom-informationhttp://tinyurl.com/2dthe5ghttp://www.cartercenter.org/resources/pdfs/peace/americas/ati_atlanta_declaration_en.pdfhttp://cairs.michaelgeist.ca/http://http-server.carleton.ca/~dmckie/CAIRS.htmhttp://www.freedominfo.org/2010/03/notable-canadian-news-stories-based-on-atia-requests/


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OlYmPICS WATCH

olYMPicS Watch: BE Free

AND LIstEN to HIs SPeechand the gaMeS IN VAN-coUVER, BRItIsH coLUmBIA

The 2010 Olympics, held rom Feb.

12 to 28, 2010, put a spotlight on

the city o Vancouver, and at the

same time on the issues o security,

space or public protest, and gov-

ernment limits to ree speech.

CJFE conducted an Olympics Watch

o the Games and recorded a number o

disturbing incidents and trends related to

ree expression. Beore and during the

Games, a billion dollars was reportedly

spent on security. Too many ocials, at

all levels o government, appeared all too

ready to deny speech, protest and assem-

bly rights in order to generate a rosy glow

on the Games.

Most worrisome was the temporary

detention and interrogation o our Ameri-

can journalists and their colleagues, travel-

ling to Canada at the time o the Olympics.

Canada Border Services Agency (CBSA)

seemed to be obsessed with determining

i these Americans were going to say any-

thing critical about the Olympics.The BC Civil Liberties Associa-

tion (BCCLA) trained hundreds o legal

observers to monitor security measures

and demonstrations during the Olympics

in order to saeguard the right to demon-

strate, and to deter arbitrary or excessive

policing. The association recorded (a) a

massive escalation in CBSA patrols looking

or oreign nationals; (b) issues with the

RCMP ailing to adequately identiy

themselves with badge numbers; and (c)

the deployment o military grade semi-

automatic weaponry or the rst time at

a Canadian demonstration. Here are the

major incidents in CJFEs les:

InTERFEREnCE WITH AnDDETEnTIOn OF JOuRnAlISTSOn December 18, 2009, two Toronto Sun

journalists were pushed and assaulted

while covering the Olympic torch relay

in Newmarket, Ont. Photographer Ian

Robertson required treatment or an

apparent head injury ater security o-

cers wearing Olympic uniorms shoved

him to the ground.

On November 25, 2009, U.S. jour-

nalist Amy Goodman, the host o the

syndicated television and radio program

Democracy Now!, was stopped at the B.C.-

Washington state border on her way to

Vancouver. She and two colleagues were

interrogated or 90 minutes about whether

or not they were planning to criticize theOlympics during the visit. Goodman says

she told them she was visiting to promote

a new book about health care, the war

in Aghanistan, climate change and other

issues. But Canada Border Services kept

asking i she would be criticizing the

Olympics during her stay.

Goodmans vehicle was searched

during the incident. Ocials ulti-

mately allowed her to enter Canada but

returned her passport with a document

demanding that she leave the country

within 48 hours. Ironically, the incident

generated more negative coverage o

Vancouvers Olympics than anything

Goodman said while in Canada.

I am deeply concerned that as a

journalist I would be fagged and thatthe concernthe major concernwas the

Canadian Journalists for Free Expression - 2009 review

Documents

Transcript of Canadian Journalists for Free Expression - 2009 review