Freedom of the Press as a Discrete Constitutional Guarantee

54 Pages Posted: 18 Jul 2013 Last revised: 3 Apr 2015

Date Written: July 17, 2013

Abstract

While “freedom of the press” is explicitly entrenched in section 2(b), the Courts have tended to treat the term as a superfluity to be protected, if at all, through the related but conceptually distinct notion of freedom of expression. This paper argues that the absence of discrete analytical framework for non-expressive press activities fails to give full scope and meaning to the text of the Charter, and is inconsistent with the Court’s own acknowledgment of the vital and unique importance of press freedom within the context of section 2(b), in particular, by ensuring the public’s ‘right to know’. Assuming that the Court’s consistent recognition of “the s. 2(b) newsgathering rights of the press” is deliberate and meaningful, this paper advances a three step framework for the protection of newsgathering that asks whether the press activity: a) is for the purposes of publication; b) is not inherently harmful; and c) generally serves the values underlying press freedom. If these criteria are met, then the activity in question would be constitutionally protected, subject as always to a section 1 justification. The operation of the proposed framework is then illustrated through application to confidential source relationships, finding that in most cases confidential sources would merit protection under freedom of the press, and state interference with that relationship would require a reasonable justification. It further argues that the reasons provided in National Post for rejecting constitutional protection were based, by and large, on the presumed absence of any workable Charter framework, which the analysis proposed here attempts to supply. Ultimately, it is suggested that interpreting freedom of the press purposively – as a freedom chiefly intended to guarantee the public’s ‘right to know’ – would ensure that the Court’s doctrine matched its rhetoric, and that an important fundamental freedom is no longer treated as a mere constitutional redundancy.

Suggested Citation

Oliphant, Benjamin J., Freedom of the Press as a Discrete Constitutional Guarantee (July 17, 2013). (2013) 59:2 McGill LJ 283. Available at SSRN: https://ssrn.com/abstract=2295196

Benjamin J. Oliphant (Contact Author)

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

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