DEAN LORNE SOSSIN
<Dean of Osgoode Hall Law School>
I congratulate the ILP on choosing to focus on the freedom of expression for this special edition of Obiter Dicta. In a recent paper (co-authored with Valerie Crystal), we explore the sub judice principle, under which journalists, politicians and others are restricted from reporting on pending and on-going litigation. The rationale for this rule, which dates back to the origins of the press, is to avoid prejudicing a jury by public discourse about a case and to preserve the integrity of the judicial process. While restrictions on the attempt to influence or undermine the impartiality of such a proceeding may be justified, in our analysis, the principle is often overstated. Reporting on litigation is now commonplace (not to mention live tweeting of high-profile trials), and the increased public awareness of the judicial process is arguably is a greater good than the potential of tainting judges or juries. Where this is not the case, the option of a formal publication ban remains open to the parties to seek, and politicians should not be able to use this legal doctrine to skirt accountability through blanket excuses of “no comment.” As we conclude, in the context of the sub judice principle, if the aspirations of our constitutional democracy are to be fulfilled, limits on the freedom of expression (and its companion, freedom of the press), must be both exceptional and minimal.
The freedom to express one’s views, especially unpopular or dissenting views, lies at the heart both of constitutional democracy and the rule of law. It is the first freedom to disappear in a dictatorship, because without it, it is far easier to take away all the other freedoms. By the same token, when the freedom of expression is safeguarded, other freedoms and civil liberties become inevitable.
The Pen International Caselist, which chronicles the stories of writers in prison around the world, is a sober reminder of how elusive this freedom can be. Consider this description of a typical entry:
Frank Fuamba: managing editor of the Lubumbashi, Democratic Republic of the Congo-based Mining News magazine. He was abducted on 6 June 2012 at about 6pm by a group of armed men in civilian dress who forced him into a jeep. Forced to wear a hood, the journalist was taken from place to place over the course of the night. These included a Katuba home where he was questioned at length about his personal relationships, the politicians he knows, and the political news stories that appear in his magazine. They took all of his belongings and finally let him go near a school in the neighbouring town of Katuba at about 4am. That same night, Mining News journalist Sylvie Manda received a threatening phone call while seeking assistance for her abducted colleague. The caller promised to find her the next day.
Journalists for Human Rights (JHR) has launched a campaign focused on the Democratic Republic of the Congo, entitled “Put Human Rights into Headlines: Help End Impunity for Rights Abusers.”
The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression was first appointed in April 1993. This office’s mandate, just extended in 2011 until 2014, is to gather information on discrimination, threats or use of violence and harassment directed at individuals or professionals seeking to exercise or promote the right to freedom of opinion and expression. The Special Rapporteur reports to the UN on ways and means to better promote and protect the right to freedom of opinion and expression in all its manifestations. Just this month, the UN released a report on proposed legislation – a Bill on Mass Organizations – in Indonesia that threatens the rights to freedom of association, expression, and religion. The UN Special Rapporteur, Mr. Frank William La Rue, observed that “the State must ensure that any restriction on the rights to freedom of association, expression, and religion is necessary in a democratic society, proportionate to the aim pursued, and does not harm the principles of pluralism, tolerance and broadmindedness.” The Bill on Mass Organizations imposes the requirement on the founding of associations not to be in contradiction with “Pancasila” – the official State philosophy in Indonesia that consecrates the belief “in the One and Only God.” It also stipulates that organizations have the duty to maintain religious values.
The UN also issued a warning about events unfolding in Iran, where security forces raided five newspaper offices and arrested at least 17 journalists, who now join at least 40 journalists already imprisoned in Iran. According to the UN Special Rapporteur, the 17 arrests carried out so far are part of a broader campaign to crack down on independent journalists and media outlets in Iran, under the accusation that they have collaborated with ‘anti-revolutionary’ foreign media outlets and human rights organizations. The arrests and detention appear to be designed to retaliate against the exercise of freedom of expression and, ahead of the upcoming elections in June 2013, will send a message reinforcing self-censorship.
Ironically, at a time when expression has never been easier around the world – a video uploaded to YouTube or a blog post are a click away for millions – free expression has never been more perilous.
Canada has a vital role to play on the global stage with respect to freedom of expression in at least two respects. First, Canada’s own protection and promotion of freedom of expression ought to serve as a beacon for how difference of identity, diversity, and views can be mediated through expressive rights. Second, Canada ought to serve as a haven for those fleeing persecution arising from the deprivation of their expressive rights. Canadians should rightly be proud but not complacent about our achievements in both contexts.
In Canada, thankfully, the threat is not to the lives and safety of journalists and writers. Rather, the concern is often about creating viable spaces in which critical or dissenting expression can find its voice. To give just one example, the Federal Government’s attempt to demonize and discredit environmentalists and indigenous groups protesting against the Northern Gateway and other pipelines reflects one kind of threat to free expression, not to mention the kind of attempt to influence or undermine a judicial process where the sub judice principle still has application.
As we have witnessed under section 2 of the Charter of Rights, protecting the freedom of expression is the easy part. Any attempt to curtail expressive freedoms, broadly understood, will almost always violate this section. Determining the reasonable limits on this protection – the section 1 analysis – is the challenging part. Whether regulating tobacco advertising or prosecuting hate speech crimes, there is clearly a role for the state but competing rights are never easy to reconcile. The balance between human rights protection, for example, and the freedom of expression when a religious tradition is mocked through a novel or cartoon reflects the kind of setting which most vexes our constitutional and democratic instincts.
And with respect to Canada as a safe haven for those fleeing persecution for the expression of belief and opinion abroad also may be eroding due to changes to immigration and refugee laws in 2012.
In both these senses, the protection of free expression remains a work in progress in Canada. This special edition of the Obiter and week of events and discussions led by ILP represents an ideal time for Osgoode students, staff, faculty and alumni to reflect both on the importance of the rights of free expression and the work needed to ensure they are broadened and deepened here and abroad.
ILP will be hosting a panel with Professor Jamie Cameron and Nathalie des Rosiers on Monday, March 4th at 12:30 pm in IKB 2002. This discussion will focus on speech and protest issues in the Canadian context.