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C a n a d a 9.
OTHER RESTRICTIONS ON THE
CONTENT OF INFORMATION The
use of publication bans in civil matters is governed by the common
law and the federal criminal code sets out the circumstances in
which a ban on publication can be ordered in a criminal trial. There
is extensive case law in Canada regarding how the law regarding
publication bans should be interpreted, and the Supreme Court of
Canada has emphasized that there must be compelling evidence that
a publication ban is constitutionally justifiable since open courts
are guaranteed by the Canadian Charter. Persons
under the age of 18 are governed by special legislation in respect
of criminal offenses. This legislation prevents publication of the
identity of these ?young offenders? or publication of any report
on a hearing, adjudication or disposition concerning a young offender,
except in very limited circumstances. This legislation is currently
being amended and changes are proposed which may allow a greater
degree of publication where serious offenses are involved. The
federal government has recently started an initiative to create
legislation which would affect the use of ?personal information.?
Lobbying with respect to the proposed legislation resulted in the
inclusion of an exemption for the media. Under
the Canada Elections Act, under s. 322.1 there had been a ban on
releasing electoral poll results within 72 hours prior to the federal
election. The Supreme Court of Canada decided in 1998 that such
ban was unconstitutional because the ban not only interferes with
the freedom of expression of voters but also with their perception
of the freeness and validity of their vote. It went on to state
that although it was conceivable that some indeterminate number
of voters might be unable to spot an inaccurate poll result and
might rely to a significant degree on the error, thus perverting
their choice, the government cannot take the most uninformed and
naïve voter as the standard by which constitutionality is assessed.
The electoral ban sends the message that the media can be constrained
by government not to publish factual information. As well, the ban
interferes with the media?s reporting function with respect to the
election.
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