FREEDOM OF EXPRESSION VS. THE INDIVIDUAL’S RIGHT TO PRIVACY
Chairman: Dr. Frederic L. R. Jackman President, The Empire Club of Canada
Head Table Guests
Charlie Pielsticker, President, Pielsticker & Associates and Director, The Empire Club of Canada; The Rev. Kim Beard, Rector St. Bede and St. Chrispin Anglican Churches; David Stewart Patterson, Business Host, Canada AM, CTV Television Network; Pau Godfrey, Publisher, The Toronto Sun Publishing Company Catherine R. Charlton, M.A., President, The Charlton Group and Past President, The Empire Club of Canada; Stanley Hartt, Q.C. Chairman, President and CEO, Camdev Corporation; Jalynn Bennett President, Jalynn Bennett & Associates; The Hon. Joseph H. Potts C.D., Justice of the Supreme Court of Ontario and a Past President The Empire Club of Canada; Margaret Scrivener, Former Chairman Criminal Injuries Compensation Board for Ontario, member of the firm Martin & Meredith Limited Real Estate and Honorary Director The Empire Club of Canada; John Clappison, Senior Partner, Pric( Waterhouse; Robert Lewis, Editor-in-Chief, Maclean’s Magazine Garth Drabinsky, Chairman, Live Entertainment of Canada Inc. Harry W. Macdonell, Q.C., Senior Partner, McCarthy Tetrault Pauline Couture, Vice-President, Alliance Communications Corp.
Introduction by Dr. Jackman
I am pleased to introduce the third of the combined Empire Club and Canadian Journalism Foundation special meetings on Media and Society. Our series on the media began with The Honourable William Davis, who gave us the statesman’s view of the media. Last week Knowlton Nash addressed the Club, providing us with the media’s own point of view on itself.
For the average Canadian, the law until recently seemed to be one of the most exclusive professions. Until the media brought the courtroom into our living rooms, the legal process seemed almost incomprehensible to the non-lawyer.
In fact, eight years ago Mr. Justice Estey last addressed this Club. He chose then to help us understand the complexities of the Ontario Legal System and how much it cost the taxpayers.
More recently, with the advent of the televised trial, the live coverage of inquiries and commissions and with the "legal" TV dramas, the average Canadian can now become an armchair lawyer, quarterbacking the cross-examination of intransigent witnesses.
Consider the television series "L.A. Law," and what it has made us believe about lawyers, judges, and trials–each show lasted 58 minutes–and that is exactly how long it took to conduct an entire trial, complete with a jury and, more importantly, a final judgment. No matter how complex a case was, it took those L.A. lawyers only 2.5 minutes to do their final arguments (and they were always brilliant), and 1.8 minutes to break a witness on cross-examination. When it came time to make a decision, the L.A. Law juries needed only one commercial break. The L.A. Law judge needed no commercial breaks at all. He or she simply looked stern and then burst forth with impassioned yet "judge like" 10-second sound bites. Everyone was pleased and no one ever discussed how much it cost.
Small wonder that I cannot possibly understand why my own rare case moves on at less than the speed of light, or at the very least at a rate equivalent to what’s seen on NBC, CTV, or CBC?
In addition to TV, public interest has been high for the real-life drama of the $103 million libel suit the Reichman family brought against Toronto Life, and the Canadian Aircrews’ suit against the CBC regarding the television production, The Valour and the Horror.
It will be of interest to you that Justice Estey flew RCAF bombing missions in the Pacific Theatre.
When the pendulum of justice swings toward the right to freedom of expression, then individuals can lose their reputations and their right to privacy. Too much criticism can lead to social disturbance. Too little leads to stagnation. As your American counterpart Felix Frankfurter said, "Sir, freedom of the press is not an end in itself but a means to the end of a free society." Maybe, maybe not.
So, to discuss the freedom of expression and right to privacy issue we need the wisdom of experience and the depth of training that Mr. Estey brings us today. But before turning the microphone over to you sir, I would like to tell our audience that: In 1942 Mr. Estey was called to the bar of Saskatchewan and five years later, to the bar of Ontario. He practised law in Toronto for 25 years (from 1947 to 1972). He was appointed to the Court of Appeal for Ontario in 1973, and served as Chief Justice of the Supreme Court of Ontario, and then Chief Justice for Ontario.
In 1977, Justice Estey was appointed to the Supreme Court of Canada, where he served until 1988. He served as a Royal Commissioner in respect of Steel Profits, Air Canada, and Certain Banking Operations.
Lest it be thought that Justice Estey led the "narrow" life of the legalist, it should be said that he also served in the Canadian Army and the RCAF. He is a Companion of the Order of Canada. He served as a Bencher of the Law Society of Upper Canada, and as the President of the Canadian Bar Association for Ontario.
He is Chancellor of Wilfrid Laurier University. Today, Justice Estey continues to practice as counsel to McCarthy Tetrault in Toronto and serves as the Special Advisor to the Chairman of the Bank of Nova Scotia.
It is the richness of this backdrop that gives Justice Estey one of the most unique perspectives on media and its role in creating a balance between the individual’s right to privacy and the public’s right to know.
Would you please welcome The Honourable Mr. Justice Willard Estey.
Willard Estey
Mr. President, ladies and gentlemen: I am not accustomed to addressing a crowd much bigger than a jury. I must have more relatives living in Toronto than I had realized, because I can’t imagine why anybody would go anywhere to listen to anybody talk, in these times, about the Charter of Rights.
The problem with the Charter of Rights is that it is too big to talk about; it really can’t be reduced to proportions small enough to talk about, but it’s too big to ignore. The thing is so dull that I must warn you that you are in for a very dull session. That’s not new to me, but it will be new to you.
A hundred years ago I was a law professor. I developed the ability to transplant into a law student’s eye sockets, instantaneously, a laminated, glazed, porcelain pair of eyeballs. And that was before I knew that the Charter of Rights was coming down the road, which is tailor-made for that purpose.
I gathered up my notes for today and instantly discovered that I was exactly in the position of a new judge who appeared on the Court of Appeal at the time Sir William Mulock was Chief Justice of Ontario. The new judge had composed his first judgment, and was anxious to have the old man’s approval of his work. He said to the Chief Justice in his chambers, "I have admired you so long as a lawyer, and in latter years have been watching you work through the mysteries of the law in the Court of Appeal. I wish very much that you’d look over my first judgment and give me your guidance." The elderly Chief put down his cigar, leafed through the typewritten pages, and looked up and said, "That’s a very fine judgment. Trouble is, it’s too long. It’s too long by half, and you can eliminate either half." You will be relieved to know that I have eliminated one half of what I was going to say to you here today.
Before we start, let me present an overview of the Charter of Rights. The first thing to be determined is: What was the purpose of the Charter of Rights? The answer can be only one of two things. The purpose was either to change our law substantially by adding some new rules or new rights, or not to change our laws at all, but to imbed in our Constitution certain inviolable rights of man and to put those rights beyond the reach of what Lord Justice Scarman of England once called "the majority of the day." Surely the answer has to be the latter.
But before we get carried away with that heady stuff, let me touch upon a couple of authorities who have discussed this over the last 100 years. One of them was Jeremy Bentham, whom you all remember from first-year arts and science. He said that there is something fundamentally wrong with our courts. Judges relied upon "the spurious rhetoric of objectivity" to conceal from the public the fact that they were declaring as the law their own subjective and thus arbitrary perceptions of right or wrong. "The Common Law," he went on to say, "is a bog of judicial subjectivity." As for charters or bills of rights, Bentham lumped them all together when he described them all as "nonsense upon stilts." On top of all that commentary on the body of the law, his view of judges was that since they are not elected and thus don’t have a mandate from the people, they aren’t responsible to anyone. Presumably, he also thought that the sooner we get rid of them, the better. So much for Bentham.
Hunting around for some more recent authority, I found something by the great H. L. Mencken, who, you will all remember, was the editor of the Baltimore Sun and author of many famous one-liners. After reading 75 judgments of the United States Supreme Court, he said, "If all the judicial opinions written and printed in a single year in the United States Supreme Court were laid end to end, they would reach from confusion to futility."
Well, now with all that built-in headwind, I will try to justify some of the things that have happened, and perhaps mildly condemn other things which have happened since 1982, when, for better or worse, we entered the Charter of Rights regime.
I am not going to determine for you whether it is a success or a failure. You will have to judge that for yourselves and each successive generation will have to judge that for themselves. For one thing, it is a moving target. In any case, it is a road of no return. We have it and our successors will have it. It is full of contradictions.
Some of those contradictions are by design, others are not. I’m going to discuss two or three of those head-on collisions today.
The first big collision is between the right of the accused to a fair trial and the right of the press to full access to the judicial process and their duty to exercise that right; in other words, the doctrine of the freedom of the press. The Charter did not invent either of these rights. They are hundreds of years old. Freedom of the press came with the invention of the printing press by Caxton in England in the 1300s. This immediately gave rise to the beginnings of our news-distribution industry. The operator of the press, in the earliest days, asserted freedom from pressure or control by government or any other force. Furthermore, the operator of the press asserted an unlimited right of access to the facts on any issue and to the events of the community. There soon emerged the publisher, or entrepreneur, who asserted a free and unlimited access to the market as an entrepreneur in the news-gathering and distribution business.
In the result, whether or not Caxton actually invented the printing press, he and his successors immediately started in England a new and different kind of enterprise in the community–the newspaper.
It was no coincidence that there arose in our law at the same time the doctrine of defamation, including libel, and the concept of copyright. All that commotion in our law commenced about 700 years ago. One must wonder whether, if Caxton had not been born, the law profession would only be half as big as it is today.
Another subject which must be borne in mind when discussing in any intelligent manner the Canadian Charter of Rights is that our general law (Quebec partially excepted) is essentially a product of the English Common Law. Quebec, in contrast, has inherited the Civil Code from the pre-Napoleonic era in France, but the rest of Canada, like the United States (apart from Louisiana), has
a legal system founded upon English Common Law. Under the Common Law, there are two fundamental streams of knowledge and principle. One of them is the ordinary basic rights related to contract, property, criminal law, and procedure. The other is the so-called law of Equity–the law of fair play. The British have woven those two streams of law into one and handed the result down to us as the modern-day Common Law. It is with that background that we approach our Charter of Rights and the application in our community today of the principles there set forth.
The Charter of Rights says, amongst other things, that we citizens have a God-given, fundamental, not-to-be-altered right to a fair trial. It also says that a journalist, in any form of the media, has the right to publish (short of defamation), the truth as he or she finds it or believes it to be. All of that was set out in the Common Law centuries ago. We didn’t need the Charter of Rights to establish those rights.
Theoretically, the Canadian community required the Charter of Rights only to protect the aforementioned rights from Parliamentary appeal. Such an event was most unlikely. For that and other reasons, it is more likely than not that Justice Abbott was right when he wrote of the inviolable right of the freedom of the press.
Mr. Justice Rand, a New Brunswicker on the Supreme Court, took longer to say the same thing. He said that parliamentary government was ultimately governed by the free public opinion of an open society, and that was fuelled by the right of expression and the freedom of the press, both of which require unobstructed access to ideas and a right to diffuse them. Those two great Canadian jurists were totally unknown in their own country, but well-known, as Rand certainly was, in the United States.
My extended research revealed that Lenin (of Russian prominence until recently) said, "He who now talks of freedom of the press goes backward and halts our headlong rush towards socialism."
Justice Felix Frankfurter of the United States Supreme Court came at it a different way. When asked about his position on freedom of the press and the countervailing right of the government to mind its own business, he said that if he had to make that choice, he would rather have freedom of the press without government than government without free press.
But all these ancient truths have come under public re-examination with the arrival of the communication era, the flow of information, and the assumed right in the citizen of access to any and all of it. The communications explosion is changing our views on many things, including the right to privacy. There is nothing now which can escape detection, there is nothing to inhibit replication of anything you might uncover, and there is nothing that isn’t under the gun of instantaneity. That is part of the difficulty of balancing freedom of the press on the one hand and the right to a fair trial on the other hand.
The invasive nature of the press has made a quantum leap in the last year. When the "Death Star" satellite goes up, with 500 channels all aimed at you, and none of them Canadian, many will think, as The Globe and Mail put it: "This is a new ballgame–what are we going to do about it?" The Globe and Mail solved it by saying that the CRTC ought to be abolished.
A fair trial sometimes includes a jury. Of all the things the British have accomplished in the life of the planet, by far the greatest is the accidental development of the jury. The second was the most economical policing known to man, which was the doctrine of "hue and cry." The way this worked was simple: The sheriff went through the streets at night, usually, when everyone was home, making hue and cry about what the crime was, whom the victim was, whom the suspects were, when and where the hearing would be held to determine guilt or innocence, and finally, a plea to the citizenry that those among them who knew any facts or information about the dastardly event, should come forward. And so they would have a trial based on whatever was squeezed out of the public, who recognized that the safety of their own homes and country was at stake.
It worked. But they had to get a tribunal together to hear and determine the facts. There was great suspicion of the monarch of the day. He was a totalitarian ruler in the Mussolini style. (They weren’t all democratic monarchs–that revolutionary scheme didn’t start until the 1800s.) The English got over that hurdle by having an assembly–a committee, we’d call it now–of ordinary people to sit and find the facts. They were irreversible and unappealable. The law, in a formal sense, did not enter the process for several centuries, when the custom or institution was inaugurated of having a trained person sitting along with the committee (the jury). His job was to discern the law and the legal apparatus of the rules and principles applicable to this crime. He would lecture the committee on how to apply these principles in their findings of fact, and then he would administer the sentence. That person was the state-appointed judge.
The evolution of the jury trial had reached this stage by 1750, when William Penn (of Pennsylvania fame) held a highly contentious meeting in Hyde Park at which he advocated some things the King didn’t like. All of the participants were arrested and brought before a judge. The judge instructed the jury to enter a verdict of guilty. The jury refused because the evidence didn’t support that verdict (or so they said). Thereupon the Crown, at the bidding of the Court, threw the foreman of the jury into the Tower of London. He was released by Chief Justice Vaughn, the Chief Justice of England, no less, on a writ of habeas corpus in which was recorded, for the first time, the great principle of law which we find in the Charter of Rights; that is, the right to a fair trial. The jury was superior to the judge, the jury was superior to the monarch, and the jury was bound only by their oath and to find guilt or innocence on the record which has come forward from the neighbourhood.
That rather rough-hewn start was the basis for the evolution of the famous British Criminal Law system. The continuity and stability of this adversarial system of criminal justice may well have saved England from a version of the French Revolution which occurred in about the same period in history. The committee (the jury) drawn from the neighbourhood and the people themselves were seen to be the fountainhead of justice. When one goes through this legal evolution, it is very difficult to get heated up about the Charter of Rights.
There may well be some parts of the Charter that have to be modified, or where some grease has to be put into the gears. The Charter of Rights catalogues many rights and freedoms and they are very broad. For example, we have the right of "freedom of expression," whatever that means. A frown is an expression. It is deliberately full of these limitless, without-perimeter meanings.
On the other hand, the Charter has a salvation clause, a safety valve, which says that all of these guaranteed rights and freedoms are subject to limitation by the legislature if that limitation is found by a court to be "reasonable and demonstrably justifiable in a free and democratic society."
The courts took as a starting point that the word "expression" is without boundaries. There is no perimeter. It just means that anything which conveys meanings is an expression. In the leading case, a province passed a statute to reserve a parking lot for the spouses of civil servants. One fellow didn’t like that because he didn’t have a spouse. He protested and parked his car in the parking lot where he was prohibited under the law from parking. He said, "I don’t have to pay any fine. That’s my freedom of expression because it’s a protest." The Court thought that was right–his "protest" was included in the word "expression." You see right there we are in trouble. The way out of the woods, under the present Charter regime, is to put in place an ensuing second step, namely an expensive trial to determine whether or not the legislative restriction on the expression in question is demonstrably justifiable in a free and democratic society.
In the result, the Charter process has left the following imprint on our legal/judicial institutions:
But be relieved that we are now, gradually, coming out of that tailspin.
There are some ways in which we’ve gone a little bit American. There are some things in the United States which are good, and some things which are not so valuable for us. The United States Bill of Rights experience is an example of something which we can study, and once in action, adapt to our needs. The Bill of Rights doesn’t have the salvation clause of our Charter’s Section One. The court has to guess right the first time. In our system, you guess wrong, by saying, for example, that "everything is ‘expression"’ and then try to find a way to get out of it. The Americans have developed a rather serious, narrow method of interpreting the freedoms and rights secured in the Bill of Rights. We will probably go back to that, because that’s where we came from. Under the Common
Law system of law, we make the rules one brick at a time, like Churchill laying his famous brick wall. Every case is a brick. We only fasten onto the facts of each case enough law and its principles to settle it. That becomes the law of the land until someone reverses or modifies it. If the courts prejudge anticipate cases and attempt to draw up a Justinian theory for determination of the substance and limitations of Charter rights, two things are wrong. One, no one is smart enough to foresee the conflicts of the future, and two, the courts are making a decision on the leading edge of the interpretive process of those Charter rights without hearing the argument of all sections of the community as to the applicable principle or the result that will serve the community interest.
Now the courts are processing the Charter much more quickly and they have resumed hearing taxation cases, commercial cases and the wide spectrum of the law which touches everyone in the community. We are getting back into balance, having recovered from the euphoria of the perimeterless meaning of words and the absence of boundaries to the remedies the court could manufacture. The courts, after all, have been interpreting and applying statutes to the events of the community for several centuries. This has entailed the interpretation of the statutes of the legislative branch according to the language of the day so as to apply those statutes to the realities of the community in the years thereafter.
We have not yet come to the collision inherent in the trial, which has to be fair to the accused and at the same time open to the public. Public access means the press has to get in, because you can’t have access to a little courtroom 400 miles from your house. You now have access to the courtroom electronically and through the print media. Therefore, freedom of the press has moved up a notch in its importance. The press has become the agent of the people. The trouble with that is that people are like a principal who doesn’t listen to the agent. But that’s the way we are, and we’ll try that for a while.
What does a court do to protect the fairness of a trial? Before I go any further, I want to tell you that no matter what I say, I am making no reference to any matter now before the courts. I know that when you say that, you usually proceed to plough somebody under who is presently before the courts, but I can’t. Under our guaranteed rights, our Common Law rights, anybody who gets up and talks about something that is still before the court prejudices the accused, perhaps pathologically. We must not be seen to be reviewing in advance, or telling someone what they should say in their reserved judgment about how to run a fair trial for somebody in complicated circumstances.
Now let me get back to business.
First of all, we have evolved a jury selection system which allows you to ferret out of the jury anybody who is predisposed in their view of the case. In the words of the law, if he can’t "stand indifferent to the claims of the Crown or the accused," then he or she is eliminated in the process. Our process, in contrast to the American system, is quite simple. In the American system of grilling the nominated member of the jury, you can go back and find out who their eighteenth grandfather was. It takes forever to pick an American jury. Mark Twain once said, "We have a criminal jury system which is superior to any in the world and its efficiency is only marred by the difficulty of finding 12 men every day who don’t know anything and can’t read." It’s not quite as bad as that, and ours is a much quicker system. Incidentally, the statute forbids anybody in the law profession from being a juror–which supports what Mark Twain said. I am a great fan of the jury, by experience. I cannot remember ever sitting there at a criminal trial and thinking, "It’s too bad the judge isn’t deciding this instead of the jury. This is not said in criticism of the judges. Juries have a committee strength about them. The group is stronger than the component members and the combination of jurors appears to be a source of strength in itself. Somehow, they produce the right or appropriate answer. Of course, the jury does not have to give reasons. They only have to find a verdict, one way or the other; or in civil law, the answers to the precise questions put by the presiding judge after counsel for each party has made their presentations to the court.
Secondly, if we think the air is polluted by advance publicity about the charge, the accused may apply to the court for an order to change the venue of the trial to a community where the accused will not be prejudiced by such extraordinary or unfair publicity. The court can, if it will serve the ends of justice, move the trial a few miles or a few hundred miles.
Thirdly, the oath the juror takes is pretty severe and there is a penalty for some violations of it.
The fourth consideration is that the criminal courtroom is a pretty austere machine. When you get in there, it’s a solemn operation.
The fifth thing is, we have evolved from the "hue and cry" to where the presiding judge instructs the jury on the law applicable to the facts as they’ve heard them, and on the limits of their duty and their freedom. The jury is told that the judge is available to answer their questions.
This brings us to the last measure available to the courts to ensure a fair trial–the ban on publication of the proceedings. This is a touchy subject, for it raises the contest between freedom of expression including freedom of the press on the one hand, and the inalienable right of the individual to a fair trial by a free, independent, and impartial tribunal on the other. The court must have the power to protect its own process. If, as it surely must be, the only product of a judicial system is justice, that product will not result from proceedings which have present in them unfairness as regards one or the other party to the process. If there is undue publicity or the speculation is unfair, there is a chance that eligible jurors who read the newspaper or look at television will be prejudiced before the trial even starts. When such a situation develops, the court may impose a ban on the publication of proceedings. Some bans start with the prevention of the publication of the fact of the charge, the content of the charge, the date of the trial, or any other feature, matter, or evidence which will raise the threat of denial of the right of the accused to a fair trial. If one went out to a courthouse in Mississauga a few months ago, one would have seen on the door of a courtroom a list of cases, one of which was noted to be "in camera." No one seeing that notice would learn the identity of the accused, except for the surname, which was listed without initials or sex. The public would not thereby ascertain the nature of the charge or whether the process had been through a preliminary hearing or was proceeding by preferred indictment or otherwise. The public would not even learn the outcome of the trial or the punishment, if any, imposed on the accused. That is obviously going pretty far in the attempt to preserve the right to a fair trial, and such a measure goes to the very root of the need in a democratic community for open trials, accessible by the general community. Let us not forget that the governing principles of access by the public to the courtroom are based upon the theory that public surveillance of the components of the judicial system performing in the courtroom keeps the process intellectually honest, and at the same time, contributes to the need for the efficiency of the judicial process. Most importantly of all, however, open access to a public trial ensures that the outcome of that trial will be just.
So, there is a limit as to what you can properly do to curtail publication of a trial, even though the Charter doesn’t really impose that limit. Furthermore, there is no Charter right to public access to the trial in the first place–that’s Common Law. The accused has the right to a public trial, but what if he doesn’t want a public trial? What if he wants a closed trial because he doesn’t want his neighbours to know he’s a crook? The accused does not have that right, because the Common Law says that the public interest in an open trial is predominant. Therefore, the Court has the power to protect public access to it, but subject to the right of the accused to a fair trial. Both considerations are fundamental to our judicial system, and the court must balance the two principles where they conflict or compete.
There have been all manner of attacks on these principles. The Americans have a different viewpoint. Do not forget that the mass of 265 million to the south of us is a highly productive and ingenious force–and they have a lot of fun while they’re at it. Their system works for them, so I don’t knock it too loudly, but I don’t want to adopt too much of it either. Their legal system is not their strongest feature, but it’s not as bad as our press leads us to believe. The Americans say it’s very difficult to corrupt a juror for the reasons I have given: the oath, the sanctity, the tradition and all of that, so therefore they say the predominant right is access to the public by way of the press. That works for them, even though they have by far the most aggressive press in the world–and by far the best-equipped press, both print and broadcast, in the sense of gathering the information and disseminating the information we call news.
A huge invasive force is now upon us here in Canada. We have local editions of The Wall Street Journal and U.S.A. Today, and local American newspapers printed just ou
