NOTES
- Ross Howard, “Paper's Action Has Gustafsen Lake Parallel,” The Globe and Mail (20 September 1995): A20.
- Jeffrey Simpson, The Globe and Mail (20 September 1995): A14. While some concerns have been raised since the standoff ended, they have been mainly about the RCMP's handling of the events at Gustafsen Lake and not about CBC's role in the matter.
- William Serrin, “The Papers Submitted to Blackmail by a Killer,” The Washington Post (24 September 1995): C3.
- Daniel Schorr, “Printing Was a Tough But Conscionable Choice,” The Washington Post (24 September 1995): C3.
- These are not either/or distinctions, certainly, and as Greenawalt explains, the ways in which courts and legislatures approach these issues are influenced by legal traditions and broader cultural considerations as well as the practicing philosophy of the country, which can he highly individualistic or can tend to emphasize the place of persons within communities. See Kent Greenawalt, Fighting Words: Individual, Communities, and Liberties of Speech (Princeton: Princeton University Press, 1995), 7.
- David Pritchard, “The Political Culture of Facts: Limits on Truthtelling in Canada and the United States,” in Florian Sauvageau, ed., Liberté de la presse et vie privée: Regards de l'étranger/Freedom of the Press versus Privacy: Views from Abroad (Québec: Institut québecois de recherche sur la culture, 1996), II.
- Seymour Martin Lipset and Amy Bunger Pool, “Balancing the Individual and the Community: Canada versus the United States,” The Responsive Community 6(Summer 1996): 37.
- In 1925, the U.S. Supreme Court interpreted this provision to apply to the states through the “due process” clause of the Fourteenth Amendment. See Gitlow v New York, 268 U.S. 652 (1925).
- Schenck v U.S., 249 U.S. 47 (1919). “When a nation is at war many things that might be said in a time of peace are such a hindrance to its effort… that no Court could regard them as protected by any constitutional right,” 52 [emphasis added].
- Philip Anisman, “Application of the Charter: A Structural Approach,” in Philip Anisman and Allen M. Linden, eds., The Media, The Courts and The Charter (Toronto: Carswell, 1986), 21. See also David M. Lepofsky, “Open Justice 1990: The Constitutional Right to Attend and Report on Court Proceedings in Canada,” in David Schneiderman, ed., Freedom of Expression and The Charter (Scarborough, Ont.: Thomson Professional Publishing Canada, 1991), 184.
- Section 1 guarantees the rights and freedoms set out in the Charter “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 33(1) allows Federal Parliament and provincial legislatures to pass laws that “shall operate notwithstanding a provision included in section 2 or sections 7 to 15” of the Charter.
- Anisman, 21.
- R. v Oakes, [1986] 1 S.C.R. 103, 138–139, referring to R. v Big M Drug Mart Ltd. In separate cases, the Supreme Court twice ruled that certain provisions of Quebec's Bill 101, The Charter of the French Language, exceeded the limits of and were not justified under Section 1. See A.G. (Que.) v Quebec Protestant School Boards, [1984] 2 S.C.R. 66, and Ford v Quebec (A.G.), [1988] 2 S.C.R. 712.
- R. v Whyte, [1988] 2 S.C.R. 3, 20.
- Ibid.
- William J. Brennan, Jr., “The Symbiosis Between the Press and the Court,” The National Law Journal 2 (29 October 1979): 15 and 41.
- Ibid, 15.
- Branzburg v Hayes, 408 U.S. 665 (1972).
- Zurcher v Stanford Daily, 436 U.S. 547 (1978).
- Herbert v Lando, 441 U.S. 153 (1979).
- Brennan, 15.
- In the United States, see especially: Near v Minnesota, 283 U.S. 697 (1931), New York Times v United States, 403 U.S. 713 (1971); and Nebraska Press Assn. v Stuart, 427 U.S. 539 (1976). In Canada, see especially: Reference re Alberta Statutes, [1938] S.C.R. 100 (S.C.C.), Saumur v City of Quebec, [1953] 2 S.C.R. 299 (S.C.C.), and Switzman v Ebling, [1957] S.C.R. 285 (S.C.C.).
- New York Times v Sullivan, 376 U.S. 254 (1964).
- Ibid., 280.
- See Thomas A. Hughes, “The Actual Malice Rule: Why Canada Rejected the American Approach to Libel.” Paper presented at the annual convention of the Association for Education in Journalism and Mass Communication, Anaheim, California, August 1996.
- Hill v Church of Scientology, [1995) 2 S.C.R. 1130.
- Ibid., 1180–1187.
- Ibid., 1188. He went on to explain that this case does not involve the media or political commentary about government policies, that a review of jury verdicts in Canada reveals that there is no danger of numerous large awards threatening the viability of media organizations, and that in Canada there is no broad privilege accorded to the public statements of government officials which needs to be counterbalanced by a similar right for private individuals.
- Ibid.
- Ibid., 1161.
- Branzburg v Hayes, 408 U.S. 665 (1972).
- Ibid., 743. The only other Supreme Court decision directly involving journalist's privilege since Branzburg v Hayes is Cohen v Cowles Media Co. (501 U.S. 663, 1992), but this case was about the legal consequences of the news media breaking a promise of confidentiality, not the protection of source identities. See Gillmor, Barron, Simon, and Terry, 130.
- Moysa v Alberta (Labour Relations Board, [1989] 1 S.C.R. 1572.
- Slavutych v Baker, (1975), 55 D.L.R. (3d 224 (S.C.C.)
- Wigmore's four criteria are: First, the communications must originate in a confidence that they will not be disclosed; second, this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; third, the relation must be one which in the opinion of the community ought to be sedulously fostered; and, fourth, the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. From M. G. Crawford, The Journalist's Legal Guide, 2nd ed. (Toronto: Carswell, 1990). 68–69, citing Wigmore On Evidence, 3rd ed., (McNaughton Revision, 1961), para. 2285.
- Moysa v Alberta (Labour Relation Board), 1581.
- Lepofsky, 75.
- Crawford, 133.
- Ibid., 169.
- Re Southam Inc. and the Queen (No. I), 3 C.C.C. (3d) 515 at 521.
- Edmonton journal v Alta. (A.G.), [1989] 2 S.C.R. 1326. Earlier, the Ontario Supreme Court ruled that Section 2(b) of the Charter does not confer on the media any general constitutional right to compel access to Court documents which they deem newsworthy. R. v Thomson Newspapers, (1984) 4 C.R.D. 525.40–01 (S.C.O.)
- B.C.G.E.U. v British Columbia (A.G.), [1988] 2 S.C.R. 214, 221.
- Canadian Newspapers Co. v Canada (A.G.), [1988] 2 S.C.R. 122.
- Crawford, 9.
- Dagnais v CBC, (1994] 3 S.C.R. 835.
- Ibid., 839.
- Lysiane Gagnon, “Journalism and Ideologies in Québec, “The Journalists, Royal Commission on Newspapers, Vol. 2. (Ottawa: Supply and Services, 1981), 19–39.
- Fred S. Siebert, Theodore Peterson, and Wilbur Schramm, Four Theories of the Press (Urbana: University of Illinois Press, 1956).
- Commission on Freedom of the Press, A Free and Responsible Press (Chicago: University of Chicago Press, 1947).
- Siebert, Peterson, and Schramm, 5, “the power and near monopoly of the media impose on them an obligation to be socially responsible, to see that all sides are fairly presented and that the public has enough information to decide; and if the media do not take on themselves such responsibility, it may be necessary for some other agency of the public to enforce it.”
- David H. Weaver and G. Cleveland Wilhoit, The American Journalist in the 1990s: U.S. Newspeople at the End of an Era (Mahwah, N.J: Lawrence Erlbaum Associates, 1996), 138.
- Wilfred Kesterton, “Government Secrecy,” an unpublished paper for students in his communication law classes at Carleton University in Ottawa. See also Kesterton, “Secrecy and Openness in Three Canadian Media-Related Situations,” a paper presented at the annual convention of the Canadian Communication Association, Halifax, Nova Scotia, May 1981.
- Gagnon, 32. See also Florian Sauvageau, “Auto-contrôle ou législation: de Charybde en Scylla?” in Florian Sauvageau, Gilles Lesage, et Jean de Bonville, eds., Les Jouranlistes: Dans les coulisses de l'inforation (Montéal: Éditions Québec/Amérique, 1980), 337.
- Robert Fulford, “A Sort of Reckless Courage,” in The Journalists, 14.
- Ibid., 16.
- Ibid., 17.
- Ibid., 3.
- Gagnon, 24.
- Réal Barnabé, “Journalism in Quebec: Open-Minded and Rigorous,” Canadian Journal of Communication 14(1989): 55.
- Gagnon, 23.
- Siebert, Peterson, Schramm, 82.
- Gagnon, 28.
- David Pritchard and Florian Sauvageau, “The Journalists and Journalism of Canada,” in David H. Weaver, ed., The Global Journalist: News People Around the World (Cresskill, NJ: Hampton Press, 1998), 387.
- Simon Langlois and Florian Sauvageau, “Les journalistes des quotidiens québecois et leur métier,” Politique 1 (1982): 5–39. The authors identified newspaper journalists as being in one of four groups: reporters, 32 percent; investigators/analysts, 31 percent; educators, 21 percent; and seducers (entertainers), 15 percent.
- Arthur Siegel, “The Quebec Media and Canadian Unity,” in Caldwell and Waddell, eds., The English of Quebec (Québec: L'Institut québecois de recherche sur la culture, 1982), 333.
- Ibid., 341.
- David Thomas, “The Anglo Press in the Seventies: Conspiracy or Just Plain Incompetence?” in Caldwell and Waddell, eds., The English of Quebec, 351.
- Dominique Clift, “Solidarity on a Pedestal: French Journalism in Quebec,” in Walter Stewart, ed., Canadian Newspapers: The Inside Story (Edmonton: Hurtig Publishers, 1980), 206.
- Florian Sauvageau, “French-speaking Journalists on Journalism” in The Journalists, 44–46.
- Ibid., 46. Gosselin, as well, concludes that the militant model of the 1970s has given way to a more professional model of collective practices. See André Gosselin, “The Collective Practices of Quebec Journalists,” Canadian Journal of Communication 14 (1989): 28–40.
- Weaver and Wilhoit, 138.
- Florian Sauvageau, “Main Results of the Survey of Journalists on Québec-language Dailies,” appendix in The Journalists, 197.
- Florian Sauvageau, “Auto-contrôle ou législation,” 337.
- For a review of these issues and the original ban in 1993 on publication of information from the trial of Karla Teale, Bernado's former wife, see Tammy Joe Evans, “Fair Trial vs. Free Speech: Canadian Publication Bans Versus the United States Media,” in Southwestern Journal of Law & Trade in the Americas 2 (1995): 203–225. See also Michael Dorland and Priscilla Walton, “Untangling Karla's Web: Post-National Arguments, Cross-Border Crimes, and the Investigation of Canadian Culture,” The American Review of Canadian Studies 26 (1996): 31–48.
- Murray B. Light, “A Dispatch from the Border Battle with Canadian Law,” in “Backtalk,” a column published in Presstime 16 (January 1994): 47. At the time, Light was editor and senior vice president of The Buffalo (N.Y.) News. The newspaper's coverage of the murder trial conflicted with Canadian law.
- Lipset and Pool, 37.
- Weaver and Wilhoit, 113.
- See, for example, Mark Tushnet, “A Critical Perspective On the Law of Speech And Communication,” Journal of Communication Inquiry 19 (Summer 1995): 5–15; Robert Trager and Joseph A. Russomanno,”‘… The Whole Truth…’: The First Amendment, Cultural Studies, and Comparative Law,” Journal of Communication Inquiry 19 (Summer 1995): 16–32; and Matthew D. Bunker, “First Amendment Theory and Conceptions of the Self,” Communication Law and Policy (1996): 241–269.
- Jerome Barron, “Access to the Press—A New First Amendment Right,” Harvard Law Review 80 (1967): 1641.
- See also Jerome Barron, Freedom of the Press for Whom? The Right of Access to Mass Media (Bloomington: Indiana University Press, 1973).
- Jerome A. Barron, “Public Access to the Media Under the Charter: An American Appraisal,” in Anisman and Linden, eds., 177–202.
- Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing, 1994), 2.
- David Schneiderman, xxiv. See also Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997).
- Rob Anderson, Robert Dardenne, and George M. Killenberg, The Conversation of journalism: Communication, Community, and News (Westport, CT: Praeger Publishers, 1994).
- See especially: Davis Merritt, Public journalism and Public Life: Why Telling the News Is Not Enough (Hillsdale, NJ: Lawrence Erlbaum Associates, 1995); Jay Rosen, Getting the Connections Right: Public Journalism and the Troubles in the Press (New York: Twentieth Century Fund, 1995); Jay Rosen and Davis Merritt, Jr., Public journalism: Theory and Practice (Dayton, OH: Kettering Foundation, 1994); and James Fallows, Breaking the News: How the Media Undermine American Democracy (New York: Pantheon Books, 1996).
- Everett E. Dennis and John C. Merrill, “The New Communitarianism and Public Journalism,” in Media Debates: Issues in Mass Communications, 2nd ed. (White Plains, NY: Longman Publishers, 1996), 156.
- Clifford Christians, John Ferre, and P. Mark Fackler, Good News: Social Ethics and the Press (New York: Oxford University Press, 1993), 45.
- Dennis and Merrill, 163.