Freedom of the Press as a Discrete Constitutional Guarantee

By Oliphant, Benjamin | McGill Law Journal, December 2013 | Go to article overview

Freedom of the Press as a Discrete Constitutional Guarantee


Oliphant, Benjamin, McGill Law Journal


3. Activity or Information in the Public Interest

The final definitional limit--that the protected activity must be in the public interest in the sense of serving the purpose underlying press freedom--further guarantees a link with the principles underlying section 2(b) and the objectives to which freedom of the press is directed. This purposive limit may serve to exclude from constitutionally protected status gratuitous press activity entirely divorced from the values underlying freedom of the press under section 2(b). As Justice McLachlin (as she then was) noted in Lessard, "it is not every state restriction on the press which infringes s. 2(6). Press activities which are not related to the values fundamental to freedom of the press may not merit Charter protection." (117) Where claimants engage in activity unmoored from the rationale behind press freedom, I argue that there is no justification for section 2(b) protection, and no section 1 balancing is required.

With respect to this final hurdle, a useful analogy can be drawn to cases where the effect (as opposed to the purpose) of state action constitutes a limit on freedom of expression. These cases require the claimant to demonstrate that the conduct in question is linked to an underlying value of 2(b)--seeking and attaining truth, participation in social and political decision-making, or individual self-fulfillment and human flourishing (118)-- in order to acquire protection. (119) If considered necessary, a claim of press freedom could be put through a similar test before protection is extended: does the activity for which protection is claimed serve the objective of press freedom by facilitating social and democratic discourse and by generally ensuring the public's right to know?

A public interest criterion so stated is necessarily vague: it asks whether the genre of conduct tends to serve no public interest, in the sense of ensuring the public's right to know. The ambit of this exception would be narrow--reporters cannot always be held to the highest standards of gentility--but it would tend to exclude particularly offensive and unproductive conduct. For example, the practice of voyeurism (120) might lose protection at this stage on the basis that little demonstrable public interest is served in clandestinely observing, photographing, or distributing images of, for example, a politician inside his or her home. This stage of the analysis also allows practices such as "[c]hequebook journalism", which seemed to trouble the Supreme Court in National Post, to be assessed for their compatibility with the purpose underlying press freedom. (121) While it is not clear to me that such conduct should be considered incompatible with the purposes of press freedom--chequebook journalism appears to as readily serve the public's right to know as does traditional investigative reporting--to the extent that a compelling argument can be made that it is contrary to or incompatible with the purpose of the press guarantee, it fails to receive protection at this stage. Such a public interest requirement serves as an exceptional safety valve to allow courts latitude to protect activity deemed sufficiently integral to the values and purpose underlying press freedom to warrant constitutional protection, without shielding all activity press-like entities might choose to undertake. (122)

There is another conception of public interest appearing in the case law which focuses directly on the content of the information being gathered for dissemination, (123) which is subtly different from focusing (as proposed above) on the social value of the newsgathering activity. Such a public interest limit assesses whether the type of information being collected is the kind that is in the public interest to disclose. While this article does not endorse such a definitional limit relating to the content of information being gathered, there are some benefits and downsides to this different conception of the public interest that deserve attention.

While such a public interest test is also imprecise and may frequently be subject to controversy, it is not unknown to Canadian law. Indeed, the Supreme Court has already applied this kind of public interest criterion in the area of press expression in order to defeat certain actions in defamation. (124) The newly created "responsible communication in the public interest" defence to defamation, as the name indicates, requires a claimant to demonstrate that the communication in question was in the public inter- est in order to be relieved of liability. The Supreme Court described this criterion in Grant v. Torstar:

   First, and most fundamentally, the public interest is not
   synonymous with what interests the public. The public's appetite
   for information on a given subject--say, the private lives of
   well-known people--is not on its own sufficient to render an
   essentially private matter public for the purposes of defamation
   law. An individual's reasonable expectation of privacy must be
   respected in this determination. Conversely, the fact that much of
   the public would be less than riveted by a given subject matter
   does not remove the subject from the public interest. It is enough
   that some segment of the community would have a genuine interest in
   receiving information on the subject. (125)

The Court endorsed a generous definition of public interest, (126) recognizing that "[t]he public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality." (127) As such, the matter "must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached." (128) This conception of public interest, focusing on the content to be disseminated as opposed to the newsgathering process, may be considered necessary to defeat claims in which publication appears to be a pretext for depraved purposes unrelated to the public's right to know but where the conduct is not screened out at the first two stages. For instance, the public interest criterion may deny protection to an individual who creates a website for the purpose of collecting and publishing extremely private details and lewd photos of an ex-lover while seeking refuge from tortious or other liability under the auspices of press freedom.

It might be objected at this stage that these two conceptions--one focusing on the link between the type of activity in question and the furtherance of the purposes underlying press freedom, the other on the content of the information being collected for dissemination and the public's interest in knowing that information--are not significantly different in practice. Indeed, some might suggest that the reason why, for instance, voyeurism could be deemed inimical to the purpose underlying the press guarantee is because the content of voyeurism--gratuitous nudity without the subject's consent--is not in any way socially valuable. Whatever the merits of this distinction, it is clear that the further a court shifts away from the activity itself and toward determining the social importance of the content of a publication, the greater the risk of content discrimination, (129) which has generally been eschewed in the context of section 2(b). The concern in the context of press freedom is that courts might provide less protection to information that is relevant to a few than to interests considered to possess more mainstream value.

I believe that such a risk is attenuated where courts focus on the activity in question and its link (or lack thereof) to the purpose of press freedom, but I acknowledge that there may be situations in which the latter definition of public interest has value. If this content-based public interest requirement is necessary to further circumscribe the reach of press freedom, however, I would recommend that adjudicators be reluctant to reject protection simply on the basis that the average citizen may not be interested in the content, that the information is relevant to a small constituency, or that its disclosure is not of critical importance to the functioning of society.

4. Qualifications

I concede that the final stage of this framework--whichever type of public interest standard applies--injects a normative element into the analysis at the stage of establishing section 2(b) protection. It seeks to determine whether or not either the activity in question or the information collected is socially valuable in some sense, which may not be consistent with the general practice of leaving consideration of the social importance of activity to the contextual section 1 stage of the Charter analysis. The general principle of content neutrality under section 2(b) is an important achievement and should not be lightly discarded, and the further courts are asked to determine the importance of the content of newsgathering, the more this principle is at risk. As such, there may be a considerable degree of analytical value in leaving such substantive judgments to the section 1 stage of the analysis, which typically requires the state to demonstrate some harm to the public instead of requiring the claimant to establish a benefit.

On the other hand, whatever framework is erected to establish an initial breach of press freedom under 2(b), the section 1 analysis requires balancing the public interest against the exercise of the Charter right or freedom in question. (130) While the public interest criterion, particularly of the content-based variety, might be applied in such a way as to create a "ghetto" of low-value information that may be deemed unworthy of Charter protection, this has been no less the case in the application of section 1 to low-value expression. (131) The advantage of the approach recommended here is that courts will need to be attentive to the kind of activity that is, in general, not conducive to furthering the purpose or values underlying press freedom. If activity inconsistent or incompatible with the purpose of press freedom can be screened out at an early stage, this will tend to reduce the pressure on the Oakes test and mitigate the necessity of diluting the Oakes standard of harm. (132)

Indeed, while the prospect of unbridled content discrimination is to be avoided in any context, recall that freedom of the press as described and understood above has an instrumental value. Since we do not protect press freedom as an affirmation of the universal rights or inherent dignity of the institutional press apart from its members, a consequentialist approach may be more defensible in press freedom cases, as long as we recall that, of course, none of the above framework hampers the full scope of protection for press expression, irrespective of its content.

Ultimately, the objective of this paper is to propose a workable framework for interpreting freedom of the press, which recognizes its central importance to a free and democratic society while at the same time accounting for courts' understandable apprehension over the potential folly in deeming all activity engaged in by press-like entities as entitled to receive presumptive Charter protection. I believe that this purposive framework is one that has the potential to achieve this balance, but I am certainly sympathetic to the idea that others may be more adequate in that regard. To the extent that this discussion convinces some readers that discrete Charter protection to some extent and in some capacity is both warranted and workable, it will be a step in the right direction.

B. Application of Proposed Framework to Confidential Sources

It may be useful at this point to illustrate this abstract framework by applying it to a concrete example: protection for journalist-source relationships. While each of the above criteria places important internal limits on judicial protection for newsgathering activity, I argue here that each is typically met in the case of protection of confidential sources. Collecting information from confidential sources tends to be done by press-like entities with a view to publication, so the first prong is easily met in most confidential sources cases, subject to the limits described above. Nevertheless, this first requirement provides a safeguard against, for example, journalist-source relationships entered into exclusively for the purpose of shielding physical evidence of no inherent newsworthiness from the authorities or obtaining confidential information to satisfy a personal vendetta with no eye to publication. The fact-finding process at this stage is also aimed at ferreting out sham publications or convenient ex post facto claims of intended publication--a concern that has appeared frequently in the US literature around reporters' privilege (133)--in order to determine that the activity in question was genuinely undertaken with the purpose of collecting information for dissemination of material to the public.

Likewise, while the "inherently harmful" criterion will rarely come into play in the case of confidential sources--the information is generally collected with the consent and cooperation of the source, and sometimes even at his or her behest--this hurdle denies constitutional protection to intimidation, extortion, or other inherently harmful (i.e., violent or nonconsensual) conduct employed to access information from a confidential source.

Finally, with regard to the third step, there appears to be a strong consensus that protection for confidential source relationships is generally in the public interest in the sense of furthering the public's right to know. Even the majority of the Supreme Court in National Post--despite refusing to extend constitutional protection in that case--acknowledged that:

   [U]nless the media can offer anonymity in situations where sources
   would otherwise dry-up, freedom of expression in debate on matters
   of public interest would be badly compromised. Important stories
   will be left untold, and the transparency and accountability of our
   public institutions will be lessened to the public detriment. (134)

This point was made even more forcefully by Justice Abella in dissent (135) and has been buttressed by empirical research, (136) academic commentary, (137) and judicial authority both inside (138) and outside Canada. (139)

While this is a cursory treatment of the admittedly difficult issue of confidential sources, it suffices for the purposes of this paper. The upshot of the above framework is that those individuals engaged in newsgathering with a view to publication, not conducting inherently harmful activity, and generally serving the public's right to know will be granted constitutional protection. As claims to maintain the confidentiality of sources will frequently meet these conditions, constitutional protection will normally be extended to them. However, as with any Charter analysis, there is of course a final and critical restriction on granting section 2(b) protection: section 1.

C. Section 1 and Reasonable Limits on Press Freedom

It is important at this point to briefly distinguish the Canadian constitutional framework from that of the United States, given the respondent's (140) and the Supreme Court's (141) reliance in National Post on Branzburg, in which the Supreme Court of the United States refused to grant constitutional protection for journalist--source confidentiality in the context of a grand jury subpoena. Recall that the US Constitution does not contain an equivalent to section 1, and as such, any consideration of countervailing factors weighing against press freedom must be done within the First Amendment. (142) Despite the perception that the rights and freedoms in the US Bill of Rights are absolute, they are in fact limited internally by a restrictive definition of the given right or freedom. (143) Indeed, many First Amendment cases read like section 1 disputes, with members of the Supreme Court of the United States disagreeing over whether a statute limiting a right or freedom is necessary for an important purpose in a way that minimally impairs the constitutionally protected interest in question. (144)

Unsurprisingly, then, Branzburg did in fact involve a balance of constitutional values against the broader public interest, (145) and, on the more categorical American approach, the US Supreme Court deemed that society's interest in hearing "every person's evidence" (146) outweighs the freedom of the press in that circumstance. Branzburg stands for the proposition that, for the purposes of the First Amendment, "the public interest in adjudicating crimes outweighs the need for reporters to guarantee the confidentiality of relationships with their sources." (147) Whatever the merits of this abstract approach in the US context, such a zero-sum inquiry is not warranted in the context of the Charter, given that courts can consider whether an infringement is justifiable under section 1 on a case-by-case basis.

The limited scope of this paper does not permit a full discussion of the contours of the section 1 analysis to be employed at this stage; however, whether it is conducted under the Dagenais/Mentuk framework, (148) a standard specifically designed for the factual matrix of the press freedom in question, (149) or a more traditional Oakes analysis, any limitation on activity which the Supreme Court of Canada has recognized as carrying constitutional importance--such as legitimate newsgathering in the public interest--should be demonstrably justified by the state.

III. Arguments Against Constitutionalizing Newsgathering

Militating against constitutional protection for newsgathering as such, and the protection of confidential sources in particular, is the concern that this unduly broadens the scope of the Charter. In National Post, the majority provided three related but distinct slippery slope arguments against protection: that it would immunize all press activity, however indecent or illegal; that it would shield all promises of confidentiality, thereby compromising the administration of justice; and that it would grant protection to all self-styled journalists, regardless of their level of accountability or accreditation. This section will attempt to address these concerns in light of the framework designed above and will ultimately challenge the critical conceit of National Post: the Supreme Court's faith that confidential sources can be adequately protected through a common law Wigmore test (150) designed to establish case-by-case privilege.

A. The "Entrenchment of All Newsgathering Activity" Slippery Slope

First, the majority in National Post noted that while newsgathering is implicit in news publication (which is protected through freedom of expression), (151) "it carries the argument too far ... to suggest that each of those news gathering techniques (including reliance on secret sources) should itself be regarded as entrenched in the Constitution." (152) The Court worried that if newsgathering as such received independent constitutional protection this might cover too wide a range of activity, including cheque-book journalism, the use of telephoto lenses and long-range microphones, or the collection of private information. (153)

With respect, this line of argument is hard to accept given that the Court expounded, just paragraphs before, the exceptional importance of protecting confidential sources in light of the values underlying section 2(d). (154) Indeed, at least with respect to professional journalists, the Court found that such confidential source relationships should not only be fostered, but "sedulously" so. (155) Even leaving this aside, if the claimant can establish that the ostensibly unseemly activity in question constitutes newsgathering for the purposes of publication, is not inherently harmful in and of itself, and generally serves the public interest, it is difficult to see why the state should be able to directly or indirectly frustrate the newsgathering process merely on the basis that it wishes specific news had not been gathered.

As an illustration of the type of activity that might be wrongly granted constitutional protection, the Supreme Court provided the example of a camera operator photographing then-Finance Minister Lalonde's budget documents during a photo opportunity. (156) This example might seem odd, because cameras were in fact permitted in that circumstance; (157) that is, no state action limited the newsgathering activity in question. It is difficult to see how the spectre of an activity permitted in law illustrates the danger in affording constitutional protection to a different activity altogether, in particular one that is legally encumbered. That a politician may not have intended certain information to be legally obtained (that is, photographed where cameras are allowed) appears to provide no greater justification for suppressing the newsgathering activity than that a reporter might write down information that a politician preferred not to be overheard.

More relevant to the inquiry is whether extending protection in some cases constitutionalizes activity that is reasonably prohibited, such as situations in which the state forbids cameras in areas otherwise accessible to the public. New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), for instance, involved review of a decision of the provincial legislature to prohibit the press from filming legislative proceedings from the gallery. (158) The majority of the Supreme Court found that the decision was shielded by parliamentary privilege and therefore not subject to Charter review. If the policy had not been immune from constitutional review by the operation of parliamentary privilege, however, Justice Cory's dissenting opinion appears consistent with the disposition I suggest. He notes that "[s]o long as the camera is neither too pervasive nor too obtrusive, there can be no good reason for excluding it. How can it be said that greater accuracy and completeness of reporting are to be discouraged?" (159) The press in such circumstances are newsgathering for the purpose of publication, they have done nothing inherently harmful, and the activity itself serves the values underlying press freedom. As such, the state should be required to justify limiting press freedom under section 1.

This is not to say that the use of telephoto lenses or cameras generally, like any other newsgathering technique, could not under appropriate circumstances be limited or regulated, whether because their use does not meet the internal requirements of the proposed framework or because such a limit is nevertheless justifiable under section 1. As with all other section 2 freedoms, no specific activity is entrenched in the constitution per se by the framework, and it certainly renders no activity immune from any and all legal encumbrance. The question of whether or not an activity should be protected as an aspect of press freedom, however, is better dealt with through a meaningful doctrinal framework linked directly to the values underlying the freedom and, if necessary, a section 1 analysis. This approach is preferable to the practice of merely listing activities considered to be unworthy of constitutional protection and presumptively rejecting all claims on the basis that some may not be meritorious.

Thus, where the use of electronic means to collect information is inherently harmful, for example through activity prohibited by the Criminal Code, (160) by privacy legislation, (161) or where information is acquired through extortion or trespassing, it is not covered under the proposed framework and no constitutional protection attaches. This is not to say that the inhibiting provisions themselves should not be subject to constitutional scrutiny for undue restrictions on press freedom, just as privacy protections may be unconstitutional for other reasons, including as a matter of freedom of expression. (162) But in those cases where the activity in question is deemed by a court to be inherently harmful, the claimant will not meet the second stage of the proposed press freedom framework, and protection will be denied. Finally, where the activity in question has no discernible link to the purposes of section 2(b) and of press freedom in particular (i.e., ensuring the public's right to know), constitutional protection will be withheld.

Beyond these criteria, of course, there may still be a sufficient state interest in a specific case to warrant adversely affecting certain otherwise-legal newsgathering activities under section 1. However, the hypothetical presence of a state interest in certain circumstances should not exclude the possibility of finding that at least some newsgathering activity must merit constitutional protection, (163) any more than the presence of reasonable limitations on expression or religion requires that constitutional protection should never be afforded to expressive or religious activity. Simply put, finding that freedom of the press protects some newsgathering activity by no means implies that it protects all such activity, as long as a purposive framework is established and section 1 is available.

B. The "Protecting All Confidential Sources" Slippery Slope

The majority of the Court in National Post was also concerned that any constitutional protection for confidential source relationships might immunize a broad range of actors and "whichever 'sources' they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it." (164) Thus, the Court appeared worried that extending any protection to confidential sources would allow scores of self-styled journalists to be granted blanket constitutional immunity by pledging confidentiality to a source.

This argument, with respect, appears to beg the question: it would only "blow a giant hole in law enforcement and other constitutionally recognized values" (165) if no reasonable framework were established to determine the content of the freedom or the circumstances in which its protection is available. Undermining the criminal justice system is by no means an inevitable consequence when protection is only available to those engaged in legitimate press-like activity directly tied to the purpose underlying freedom of the press. That a meaningful press freedom framework has not yet been accepted by the Supreme Court does not logically imply that no workable scheme could be erected or that no constitutional protection could be reasonably afforded.

None of which is to say that the Court's concerns here are unfounded or that there is not a genuine tension between "the public's right to the free flow of information that leads to the truth, and the public's right to the testimony of witnesses that leads to the truth." (166) I only argue that the purpose of a Charter framework--including a section 1 analysis--is precisely to address this tension. Indeed, National Post may be such a case where a section 1 analysis ought to permit an infringement upon press freedom. A number of commentators, as well as the Court itself in Globe and Mail, noted that National Post involved concealment of evidence that may have constituted the actus reus of a crime, (167) which understandably weighed heavily in the Court's analysis. (168) But under the framework suggested here, this consideration is relevant in determining whether the state's burden under section 1 is met, not whether any protection for newsgathering should be afforded.

In short, recognition of newsgathering as integral to press freedom under section 2(b) does not end the inquiry; nor does it guarantee that free press concerns always prevail over those related to trial fairness or the proper administration of justice. But it recognizes that there is a tension that implicates constitutional interests, potentially on both sides of the equation. It requires genuine promises of confidentiality, collected in accordance with the framework described above, to be protected unless the state can justify a limitation.

C. The "Who is the Press?" Slippery Slope

The Supreme Court's concern noted in the section above appears to be animated not only by the assumption that confidential source relationships, as such, will be too broadly protected, but also that because freedom of expression is not limited to media actors but applies to "everyone", it would unduly protect a "heterogeneous and ill-defined group of writers and speakers" who may not have the sense of responsibility or enforceable codes of conduct of more tightly regulated professionals. (169) Later in the judgment, in rejecting a class-based privilege framework, the Court expresses concern about "the immense variety and degrees of professionalism (or the lack of it) of persons who now 'gather' and 'publish' news said to be based on secret sources." (170) The Court contrasts such indiscipline with the legal profession, which is restricted by a licensing process and by the enforcement of professional standards. Thus, the Court was not only uneasy about the prospect that the activity in question (promises of confidentiality) may become too broadly protected, but also about the risk of extending protection to the capricious or unprofessional, as there is no principled way to limit the privilege only to accredited journalists adhering to rigorous codes of conduct. (171)

The Court again appears to be acting upon the assumption that, as in the American context, (172) once it is found that any confidential source relationship (or other newsgathering activity) is to be given constitutional protection in some cases, it must be provided in all such cases, and furthermore that section 1 is inadequate to protect pressing interests by derogating from these recognized freedoms. As argued above, this is not the case given a conception of freedom of the press with meaningful, definitional limits linked directly to the protection's purpose, and with the final section 1 safeguard. Moreover, the issues raised by the "unstated equivalence" (173) drawn between a class privilege framework and the proposed Charter test would, I think, be largely answerable by a functional definition of the press that it is explicitly directed at determining which conduct falls within the purpose of freedom of the press.

As argued above, I consider this focus on the identity or characteristics of the claimant--as opposed to the conduct in question--to be unnecessary in the context of press freedom, and indeed to run contrary to the concept of a constitutional freedom more generally. Like all other fundamental freedoms that are available to "everyone" provided they are engaging in the conduct found within the ambit of the freedom in question, (174) the principal question should not be who gets the protection but whose conduct warrants it. We do not ask whether an author is likely to express herself responsibly, or whether a religious man is liable to act reasonably, but whether an individual's conduct in the circumstances is protected according to the purpose of the freedom in question.

For these reasons, the difficulty of identifying the holder of the privilege (175) is effectively beside the point in a press freedom case--both the source and the reporter are, subject to any ethical or contractual obligations, perfectly free to refute a promise of confidentiality. The relevant legal relationship in a Charter analysis is that between the press-like entity and the state attempting to interfere, in purpose or effect, with legitimate press-like functions. Once the constitutional dimensions of confidential source relationships as an important aspect of newsgathering are acknowledged, the question is what state intrusions are permitted and in what circumstances, not the deemed responsibility of the actors or the relationship between the reporter and the source.

D. The Privilege Framework is Insufficient to Protect Press Freedom

The critical conceit of National Post's refusal to constitutionalize the protection of confidential source relationships is the presumption that press freedom can be adequately protected under the common law of privilege. (176) There are a number of reasons why the Wigmore case-by-case privilege framework does not represent a satisfactory alternative. First, the Wigmore test is a rule of evidence that is not "grounded in any theory of press function." (177) It is simply not designed to afford protection to constitutionally entrenched rights and freedoms. This common law privilege frequently applies to purely private relationships (e.g. psychiatrist-patient) that lack the same constitutional dimension and that do not implicate the same broader public interest as journalist-source relationships. (178) Although the Court appeared to imply that the Wigmore framework is applied differently according to the particular context, (179) the fact that certain interactions directly implicate Charter freedoms while others do not suggests that it is inadequate to apply an identical common law framework. As such, the privilege analysis is deficient in light of the Court's acknowledgment, which I note in the introduction, that a free press is uniquely integral to section 2(b) and that newsgathering activity assumes a constitutional dimension. Even presuming that the fourth stage of the Wigmore analysis covers those considerations that are relevant to a section 1 analysis, (180) it does so without the analytical stringency necessary for protecting constitutional interests. (181)

The above discussion raises another problem with the privilege-based framework: although the Court acknowledged that "the media's ss. 2(b) and 8 interests are clearly implicated" in National Post, (182) it nevertheless found that the burden of disproving a countervailing public interest rested on the claimant rather than requiring the state to prove that an intrusion upon constitutionally protected interests was demonstrably justifiable. (183) If section 2(b) interests are engaged by state action (which the Court accepted) and if an inquiry balancing those protections against the public interest more broadly is required and engaged in (which the Court also accepted), reversing the burden onto the claimant (184) further upsets the well-established framework for adjudicating cases in which state action has clearly implicated Charter-protected rights or freedoms.

Finally, while the Supreme Court was, as argued here, overly attentive to the possible adverse consequences of recognizing journalist-source confidentiality as a constitutional entitlement, it appeared unconcerned with the inverse. That is, even if a common law framework is infused with the nebulous vapours of "Charter values", (185) it can still be displaced by regular legislation. (186) If the Court fails to grant such activity constitutional protection, this leaves it without recourse where state action deliberately and seriously harms interests the Court has recognized as important and constitutional (187) but that do not naturally fall under the rubric of expression. For example, a "tough-on-crime" government could conceivably legislate a statutory privilege framework that expressly disavows special protection for journalist-source privilege in the context of criminal investigations, or could amend the Criminal Code to provide that no special consideration shall be given to the media when judges exercise discretion to issue search warrants. This would place the Court in the awkward position of either constitutionalizing arrangements previously deemed unworthy of such protection, or retreating from its affirmation of the importance of increased caution and protection in media cases. A purposive press freedom framework would instead provide a bulwark against unjustifiable state action that engages activity of constitutional importance, while at the same time permitting derogation from press freedoms where demonstrably justified.

E. Toward a Purposive and Independent Interpretation of Press Freedom

Slippery slope arguments, where compelling, are premised on the unavailability of an adequate framework or a logical set of principles to arrest the slippage. (188) While the underlying concerns expressed by the Court in National Post are important, they are not necessarily prohibitive where a workable and purposeful analytical structure is available to address those concerns. This is particularly so in the Canadian constitutional context, given the presence of section 1. As Justice McLachlin (as she then was) noted, dissenting in Lessard: "The more difficult question is how freedom of the press is to be reconciled with society's interest in the administration of justice and the conviction of the guilty. Under the Canadian Charter of Rights and Freedoms, that analysis takes place under the rubric of s. 1 of the Charter." (189)

This is more consistent with how the Court typically approaches broadly worded Charter guarantees; broad wording calls for thoughtful application of these guarantees, not for their marginalization. If an expansive and content-neutral standard for freedom of expression, for example, has not resulted in all fraudulent, hateful, obscene, conspiring, defamatory, commercial, or violent speech being entirely immune from state limitations, it is difficult to see how a more restrictive and purposive definition of press freedom, one that requires demonstration of a link to the underlying values and purposes of section 2(b), would be necessarily unwieldy.

I do not presume to have proposed the only or even the most effective freedom of the press framework here. It may turn out, upon reflection, that another framework is more workable or strikes a better balance between the constitutional and broader social interests at issue. The point is simply that such a legal framework is not beyond the reach of human creativity; constitutionalizing some press activity need not as a matter of logic lead indiscriminately to constitutionalizing every press activity, however unrelated to the distinct function of press freedom or however injurious to the public interest.

Given the trite refrain that Charter rights and freedoms "must be interpreted in a generous and liberal fashion having regard to the history of the guarantee and focusing on the purpose of the guarantee," (190) courts should not resile from giving meaning to the Supreme Court's rhetoric that freedom of the press serves a vital function and that non-expressive newsgathering activity deserves constitutional protection. This conclusion becomes more compelling for those who accept that alternatives, such as a common law framework for journalist-source privilege, are inadequate substitutes for Charter scrutiny where the conduct in question implicates interests of constitutional importance, which the Court has repeatedly stated includes newsgathering.

In undertaking a purposive definition of Charter rights and freedoms, the Supreme Court has inferred the open courts principle from the purpose of freedom of expression, (191) collective bargaining rights from freedom of association, (192) a right to "effective representation" from the right to vote, (193) and the right to remain silent as a principle of fundamental justice, (194) to name a few examples. The scheme proposed here is more modest, and requests only that some meaningful content be given to the express words in section 2(b) that protect "freedom of the press and other media of communication." The content of this freedom should be established through an analysis of what freedom of the press entails and the purpose it serves--namely, facilitating freedom of expression, the free flow of information, public accountability, and transparency, all by safeguarding the public's "right to know". Respectfully, it would be incongruous for the Court to use a purposive definition to expand the limits of the Charter well beyond its literal text in some circumstances, only to refuse to give any meaningful and independent content or effect to those guarantees found expressly within its language.

Conclusion

This paper takes the position that inclusion of the phrase "freedom of the press" in section 2(d) is not a mere interpretive provision, (195) nor is it simply a species of freedom of expression. It is more fruitfully seen as a substantive entitlement, in the absence of good reason to treat it as effectively superfluous or reiterative. Just as the freedoms of thought, belief, and opinion are concepts distinguishable from freedom of expression, the mere inclusion of freedom of the press within the same subsection as freedom of expression is a weak textual basis on which to presume the latter entirely assimilates the former. To put it bluntly, just as courts should be reluctant to read in constitutional provisions with no basis in the text of the Charter, (196) so should they be reluctant to read them out where expressly guaranteed.

While the analysis of directly expressive press activity may, in the main, continue to be treated under the general freedom of expression framework, (197) a purposive definition of section 2(b) shields from undue state interference lawful activities integral to the functioning of a free press--most notably newsgathering--even if they do not fit naturally within the Irwin Toy analysis designed by and large for directly expressive activity. (198) While the line can blur at times, the ability to access, collect, or gather information is not identical to the ability to express information already possessed, and attempting to treat issues of press access or newsgathering within the same conceptual framework as expressive activity tends to muddy the analytical waters.

Consider, for example, C.B.C. v. Canada (A.G.), which involved the constitutionality of restricting access to information outside the courtroom (i.e., filming, photographing, and interviewing) and restricting the publication of audio recordings of court hearings. The Supreme Court found that because "news gathering is an activity that forms an integral part of freedom of the press ...[,] measures that limit filming, taking photographs and conducting interviews infringe s. 2(b) of the Charter." (199) However, as in other cases in which press freedom has been recognized, (200) the Court did not attempt to create an independent freedom of the press framework in order to determine what other limitations on newsgathering constitute an infringement. Indeed, at other points in the judgment, the Court implies that the concept of press freedom is entirely collapsed into expressive freedom by stating that "[f]reedom of the press has always been an embodiment of freedom of expression," (201) that the claim in the case was based on "freedom of expression, including freedom of the press," (202) and that the operative question is "whether the activity falls within a sphere protected by freedom of expression." (203)

Although the access issues in this case stretch the logic of the open court principle--the court proceedings themselves were quite open to the press and public alike, and no obvious issues of state accountability arose (204)--the Supreme Court relied heavily on open court cases in concluding that the newsgathering activity in this case was protected. (205) Indeed, the Court found that the normal freedom of expression test applies despite the fact that there was no content-based restriction on expression, nor was the press prohibited from expressing itself in a particular location or a particular manner; (206) rather, the press was restricted in the collection of information for later publication. (207)

Relying on the general expressive freedom framework may have appeared natural as it was apparently uncontested in that case that filming, photographing, and interviewing in courthouse areas open to the press had the necessary expressive content to fall within the ambit of freedom of expression. (208) The Court's approach in this case may, however, cause some confusion. For instance, the Court found that the prohibition on broadcasting audio recordings of court proceedings had the requisite expressive content to ground a section 2(b) violation, because "the official recordings are made available to the media to foster accuracy in their reporting, and reporting constitutes an expressive activity." (209) Such a standard suggests that regardless of whether an activity itself conveys or attempts to convey a meaning, which is the customary articulation of the test for expressive activity, (210) it is protected under freedom of expression as long as the absence of restriction serves to facilitate or improve future expression.

While this might be brushed off as a misreading, a comparable elision might have occurred in the case U.F.C.W., which was recently released by the Supreme Court. The Alberta Court of Appeal had found that the prohibition on filming a picket line derived from privacy legislation constituted a violation of freedom of expression, because "if the union had a right to express its views about the collective bargaining process, the strike, and crossing of the picket line, it also had a right to gather information for that purpose." (211) This might be read to suggest that 2(b) protects the collection of any information, so long as one may want to comment on that information in the future. The Supreme Court largely sidestepped the issue, noting that while "there was some debate about whether the particular aspects of the conduct engaged in by the Union were protected by s. 2(b)," a holistic view of the legislation (which prohibited the collection, use, and dissemination of information) makes it clear that a 2(b) breach occurred. (212) However, the Court also implies that the collection of ("recording and potentially using") personal information may have been independently protected under 2(b), as it was undertaken for the purpose of dissuading people from crossing the picket line. (213) This may simply have been recognition of the fact that physical activity itself can attempt to convey meaning; (214) however, to the extent that it implies that any restrictions on activity undertaken with an eye to eventual expression violate 2(b), it may be broadening the provision's scope significantly.

Similarly, while the Supreme Court did not focus much attention on the issue in C.L.A., (215) the lower courts found that the expressive content in question was the "potential comments the CLA would make" (216) and the "desire to comment publicly." (217) A generous reading of the logic from these cases suggests that all information collection activity is prima facie protected by section 2(b), simply because one must be able to gather information on a subject matter in order to comment on that subject matter, and commenting is expression. This reading results in a potentially massive expansion of expressive freedom, insofar as it deviates from protecting activity that conveys or attempts to convey a meaning, to protecting all activity that in some way facilitates expression on some topic. At the same time, this expansive interpretation of expressive freedom butts up against the holdings in cases such as National Post and C.L.A. For instance, the Court stated in C.L.A. that there is "no general right of access to information" (218) and therefore found that in order to have the required expressive content to constitute a violation of freedom of expression, access to the information must be "necessary for the meaningful exercise of free expression on matters of public or political interest." (219)

What we seem to be left with, then, is a freedom of expression doctrine for which conduct must either convey or attempt to convey meaning (220) in order to be protected under the rubric of section 2(b), but with two (or perhaps three) exceptions. First, in the courtroom (and directly outside it), the ability to access or gather news and information is equated with expression--restrictions on access are, by virtue of that fact alone, considered restrictions on expression and violate 2(b). Second, there is an "extremely narrow right" (221) to information that is "a necessary precondition of meaningful expression on the functioning of government," (222) with all of the difficulties that come with such a standard. (223) Finally, newsgathering as a means of accessing and collecting information--which is surely a way to "foster accuracy in their reporting, and reporting constitutes an expressive activity," in the terms of C.B.C. v. Canada (.A.G.) (224)--is rhetorically protected in broad terms, but its protection is restricted in practice to the courthouse, and even then only as derivative of the general public's right of access, itself arising from expressive freedom.

There is a deep conceptual thicket here that is well beyond the scope of this paper, but it suffices to say that further burdening the concept of freedom of expression, which may be at its saturation point, by including the conceptually distinct notion of press freedom may be unwise. Independent treatment of freedom of the press with regard to non-expressive activity (most notably newsgathering), as proposed here, would allow the Supreme Court to offer constitutional protection in appropriate cases while neither bending the freedom of expression framework intended for cases in which the conduct being prohibited or restricted is itself expressive, nor sidestepping its strictures altogether through the ad hoc extension of protection.

Moreover, erasing any distinction between directly expressive activity and that which may facilitate future expression (225) may not bode well for a coherent approach to section 2(b) that includes a meaningful role for press freedom. Speaking practically, while maximum access to information is a goal to be lauded in general, there may be situations in which a right to full public access would be problematic, but a right of access limited to those undertaking press-like functions may be perfectly viable. (226) Characterizing press claims of access in such cases as freedom of expression claims compels making access available either to the public as a whole or to no one at all and ignores the strength of the more limited and compelling claim: that the public as a whole should be informed, and those undertaking that newsgathering and disseminating function should (and viably could) have access. As Timothy Dyk has argued in the American context:

   Analyzing the situation in terms of expressive activity obscures
   the distinction between the different functions served by press and
   public access. The right being asserted is to have access to
   information, not to communicate it. By mischaracterizing
   newsgathering activity as expressive in nature, this approach
   allows press access only when the public has a right of access for
   expressive activity at the particular location and ignores the
   critical issue of whether special access for newsgathering should
   be permitted. (227)

Providing discrete treatment to press freedom would serve the valuable objectives not only of promoting analytical clarity but also of focusing attention on what is really at stake in press freedom cases, on the interests to be protected, and on the reasons why--instead of simply throwing everything into the free expression and section 1 mix and seeing what comes out. To avoid the prospect of under-protected press freedom or an overloaded conception of expressive freedom, we should seek to foster an "independent Charter guarantee that stands apart from, and is protected in different ways than, expressive freedom." (228)

At this point, it is worth revisiting an objection raised by the Supreme Court in National Post. The Court in that case declined to offer protection to confidential source relationships, in part, because freedom of expression is not limited to (presumably more responsible) media actors, but applies to "everyone", from the mainstream press, to tweeters, to street corner preachers. (229) Admittedly, under the proposed framework freedom of the press is extended to all of those undertaking legitimate press-like functions, whether or not they do so for the Toronto Star, a non-profit organization, or an unincorporated blog; however, this is only so to the extent they are exercising that freedom in accordance with the framework proposed above. Protecting the function assumed by the claimant, as opposed to the claimant as a member of a class, would make freedom of the press (like every other fundamental freedom) available to everyone provided they are engaging in the protected activity. This is a democratizing feature of the framework proposed here, not a regrettable bug, and has the added benefit of best fulfilling the purpose of press freedom: enabling the public's right to know.

On this understanding, the preliminary constitutional issue is not whether the press should enjoy greater constitutional protection than others, nor whether extending constitutional protection in some circumstances requires extending it in all of them. The scope and content of press freedom are important and difficult issues and have been (at least in a preliminary fashion) addressed above. The logically prior question is whether freedom of the press as specifically entrenched in the Charter has discrete and independent constitutional significance, and whether it protects at least some activity that is not directly expressive but is nevertheless instrumental to the values and purposes of section 2(b) and the Charter more broadly. It is only once this is answered in the affirmative, as the Supreme Court's rhetoric and this article suggest it should be, that the inquiry turns to who should be granted protection and in what circumstances. Answering these questions is the purpose of both the above framework and, ultimately, a meaningful section 1 analysis. I do not doubt that there may be factors and circumstances unforeseen here that will require judicial deliberation, creativity, and caution. However, I have faith that our courts are up to the task of securing this long-overlooked freedom and ensuring that it is properly balanced with important social interests.

Without a doubt, the proposed framework, as with all other Charter rights and freedoms articulated at a high level of abstraction, will require drawing lines that have only been roughly sketched here. Who is engaged in press-like activity with a view to publication? What activity is inherently as opposed to only contingently or potentially harmful? What constitutes press activity that serves the public interest in line with the values underlying press freedom specifically and section 2(b) more broadly? When has state action in fact amounted to a breach of press freedom? When is an infringement nevertheless demonstrably justified? Should there be greater allowance in section 1 for information collected for certain purposes (for example, to hold public officers and bodies to account) than for others? And on and on as far as the imagination will permit. However, the fact that line drawing is required does not imply the "pen should not even be lifted." (230) The always-quotable Oliver Wendell Holmes once noted that where to draw the line is "the question in pretty much everything worth arguing in the law." (231) My proposed framework undoubtedly leaves much to be argued about, and in many ways it supplies more questions than answers. However, refusing entirely to undertake the challenging process of defining press freedom fails to give proper recognition to the text and purpose of the Charter and undermines the Supreme Court's own pronouncements regarding the vital and unique importance of press freedom in fulfilling the raison d'etre of section 2(b).

Benjamin Oliphant, recently graduated from the University of Toronto Faculty of Law. He articled with a firm in Toronto focusing on labour, criminal, and constitutional law and civil litigation, and is clerking for the 2013-14 term. The author would like to extend thanks to Marlys Edwardh and Bob Tarantino for helpful comments on earlier drafts of this paper, as well as to Paul Schabas and Bert Bruser for their course instruction and kind encouragement. Special thanks are owed to Professor Jamie Cameron, who offered generous and thoughtful guidance throughout the drafting process, as well as to the editors at the McGill Law Journal for their valuable assistance.

(1) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] ("freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication," s 2(b)).

(2) See e.g. Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, 126 DLR (4th) 129 [Hill]; WIC Radio Ltd v Simpson, 2008 SCC 40, [2008] 2 SCR 420 [WIC Radio]; Grant v Torstar Corp, 2009 SCC 61, [2009] 3 SCR 640 [Grant v Torstar],

(3) See e.g. Edmonton Journal v Alberta (AG), [1989] 2 SCR 1326 at 1339-40, 64 DLR (4th) 577 [Edmonton Journal]; Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835, 120 DLR (4th) 12 [Dagenais]; R v Mentuck, 2001 SCC 76, [2001] 3 SCR 442; R v ONE, 2001 SCC 77, [2001] 3 SCR 478; Toronto Star Newspapers Ltd v Canada, 2010 SCC 21, [2010] 1 SCR 721.

(4) See e.g. Canadian Broadcasting Corp v New Brunswick (AG), [1996] 3 SCR 480, 139 DLR (4th) 385 [Carson]; Re Vancouver Sun, 2004 SCC 43 at para 33, [2004] 2 SCR 332 [Vancouver Sun]; Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41, [2005] 2 SCR 188 [Toronto Star]; Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522; Named Person v Vancouver Sun, 2007 SCC 43, [2007] 3 SCR 253; Canadian Broadcasting Corp v Canada (AG), 2011 SCC 2 at para 2, [2011] 1 SCR 19 [CBC v Canada (AG)].

(5) See e.g. Canadian Broadcasting Corp v Lessard, [1991] 3 SCR 421, 9 CR (4th) 133 [Lessard]; Canadian Broadcasting Corp v New Brunswick (AG), [1991] 3 SCR 459, 85 DLR (4th) 57 [CBC v NB], While the Supreme Court has highlighted the "special consideration" owed in issuing search warrants of press buildings, the majority's analyses in these cases were based on the reasonableness of a search under the Criminal Code: the Charter had no application. See the similar reasoning in the pre-Charter case of Descoteaux v Mierzwinski, [1982] 1 SCR 860, 141 DLR (3d) 590. See also Jamie Cameron, "Section 2(b)'s Other Fundamental Freedom: The Press Guarantee, 1982-2012" (2013) Comparative Research in Law & Political Economy Research Paper Series No 23/2013 at 10 [Cameron, "The Other 2(b) Freedom"].

(6) See e.g. CBC v NB, supra note 5 ("constitutional protection of freedom of expression afforded by s. 2(b) of the Charter does not, however, import any new or additional requirements for the issuance of search warrants" at 475 [emphasis added]).

(7) Grant v Torstar, supra note 2 at para 2. See also Dagenais, supra note 3 at 921, Gonthier J, dissenting; Mentuck, supra note 3 at para 27; Toronto Star, supra note 4 at para 7.

(8) CBC v Canada (AG), supra note 4 at para 2.

(9) R v National Post, 2010 SCC 16 at para 38, [2010] 1 SCR 477 [National Post],

(10) Ibid.

(11) Ibid [emphasis added].

(12) For a discussion of the "synergy" between freedom of expression and of the press, see Jamie Cameron, "A Reflection on Section 2(b)'s Quixotic Journey, 1982-2012" (2012) 58 Sup Ct L Rev (2d) 163 [Cameron, "Quixotic Journey"].

(13) See e.g. Canadian Newspapers Co v Canada (AG), [1988] 2 SCR 122, 52 DLR (4th) 690, Lamer CJ ("[f]reedom of the press is indeed an important and essential attribute of a free and democratic society" at 129 [cited to SCR]). See also Carson, supra note 4 at paras 18, 23-25; Lessard, supra note 5 at 429, LaForest J, concurring; Lessard, supra note 5 at 449-53, McLachlin J, dissenting; Edmonton Journal, supra note 3 at 1339-40.

(14) Carson, supra note 4 at para 23; National Post, supra note 9 at para 28.

(15) Carson, supra note 4 at para 23 [emphasis added].

(16) Vancouver Sun, supra note 4 at para 26.

(17) Edmonton Journal, supra note 3 at 1340 [emphasis added]; the Court notes that:

   [i]t is only through the press that most individuals can really
   learn of what is transpiring in the courts. They as "listeners" or
   readers have a right to receive this information. Only then can
   they make an assessment of the institution. Discussion of court
   cases and constructive criticism of court proceedings is dependent
   upon the receipt by the public of information as to what transpired
   in court (ibid).

(18) CBC v NB, supra note 5 at 475.

(19) See e.g. Edmonton Journal, supra note 3 at 1371. See also Carson, supra note 4 (discussing "the right of members of the public to obtain information about the courts in the first place" at para 23); Vancouver Sun, supra note 4 ("the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression" at para 26); Global Communications, supra note 14 ("there are times when the freedom of the press and the concomitant right of the public to know must yield to the even more important right to a fair trial before an impartial tribunal" at 23); National Post, supra note 9 ("[i]t is in the context of the public right to knowledge about matters of public interest that the legal position of the confidential source or whistleblower must be located" at para 28).

(20) See Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed (Toronto: Irwin Law, 2009) ("[t]he task of Charter interpretation has structure and discipline. The first source is obvious--the language of the Charter itself' at 59). According to Dickson C J, a purposive interpretation of Charter rights and freedoms is to be sought with reference to, inter alia, "the language chosen to articulate the specific right or freedom" (R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 344, 18 DLR (4th) 321 [Big M]).

(21) Lessard, supra note 5 at 449. McLachlin J added that this discrete treatment "affirms that the press and the media have the constitutional right to pursue their legitimate functions in our society" (ibid at 449-50). See also Cameron, "The Other 2(b) Freedom", supra note 5 (the Charters "text itself treats the two differently" at 4, n 3).

(22) This appears to be a crucial assumption supporting the Court's opinion in National Post, supra note 9 at para 40.

(23) As Stewart J stated in the American context: 'That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgement of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively" (Houchins v KQED, Inc, 438 US 1 at 17, 98 S Ct 2588 (1978), Stewart J, dissenting [Houchins]).

(24) See Melville B Nimmer, "Introduction--Is Freedom of the Press a Redundancy: What Does it Add to Freedom of Speech?" (1975) 26:3 Hastings LJ 639 ("[a]s nature abhors a vacuum, the law cannot abide a redundancy" at 640).

(25) US Const amend I.

(26) Pennekamp v Florida, 328 US 331 at 364, 66 S Ct 1029 (1946), Frankfurter J, concurring [Pennekamp], See also Anthony Lewis, "A Preferred Position for Journalism?" (1979) 7:3 Hofstra L Rev 595 ("[t]he most natural explanation seems the most probable:

The framers wanted to protect expression whether in unprinted or printed form" at 599). For a thorough overview, see Eugene Volokh, "Freedom for the Press as an Industry, or for the Press as a Technology?: From the Framing to Today" (2012) 160:2 U Pa L Rev 459.

(27) National Post, supra note 9 at para 40.

(28) Phillips v The Vancouver Sun et al, 2002 BCSC 1169 at para 57, 238 DLR (4th) 167.

(29) See Part I.A, below.

(30) National Bank of Canada v Melnitzer (1991), 5 OR (3d) 234 at 239, 84 DLR (4th) 315 (Gen Div). See also R v Pilarinos, 2001 BCSC 1332 at paras 81-96, 158 CCC (3d) 1.

(31) See the cases cited in supra notes 3 and 4.

(32) See CBC v Canada (AG), supra note 4 (without the press, "the public's ability to understand our justice system would depend on the tiny minority of the population who attend hearings, and the inevitable result would be to erode democratic discourse, self-fulfilment and truth finding" at para 45). See also The Right Honourable Beverly McLachlin, "Courts, Transparency and Public Confidence--To the Better Administration of Justice" (2003) 8:1 Deakin L Rev 1 at 7 [McLachlin CJ, "Transparency"].

(33) See Edmonton Journal, supra note 3 at 1339-40; Carson, supra note 4 at para 23. See also David M Paciocco, "When Open Courts Meet Closed Government" (2005) 29 Sup Ct L Rev (2d) 385 at 393.

(34) See Ontario (Ministry of Public Safety and Security) v Criminal Lawyers' Association, 2010 SCC 23, [2010] 1 SCR 815 [CLA] (finding that individuals or groups (which would, in the normal course, be those specifically involved in newsgathering activity) have a section 2(b) "right to access to documents" where such access is "necessary to permit meaningful discussion on a matter of public importance" at para 31). While both the "open courts" and the "access" cases were considered under the rubric of freedom of expression broadly, in practical effect they will apply most frequently to those individuals fulfilling press-like functions.

(35) See Carson, supra note 4 at para 24; Lessard, supra note 5 at 430-31; National Post, supra note 9 at para 33; Globe and Mail v Canada (AG), 2010 SCC 41 at para 56, [2010] 2 SCR 592 [Globe and Mail].

(36) Lessard, supra note 5 at 429-30. See also Cory J: "the media are entitled to particularly careful consideration ... to ensure that any disruption of the gathering and dissemination of news is limited as much as possible" (ibid at 444 [emphasis added]). In dissent, McLachlin J provided an even more fulsome treatment of newsgathering as it relates to freedom of the press (ibid at 452). See also Moysa v Alberta (Labour Relations Board), [1989] 1 SCR 1572, 60 DLR (4th) 1 (finding resolution of the constitutional issue unnecessary but assuming that newsgathering may be constitutionally protected under section 2(b)). In the US context, see Branzburg v Hayes, 408 US 665, 92 S Ct 2646 (1972), White J [Branzburg cited to US] ("[n]or is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated" at 681 [emphasis added]). The limited relevance of Branzburg in the context of the Charter will be dealt with more thoroughly in Part II.C, below.

(37) Carson, supra note 4 at paras 23-27.

(38) Globe and Mail, supra note 35 at para 56.

(39) CBC v Canada (AG), supra note 4 at para 46.

(40) A similar trend is identifiable in the US context. See Jeffrey S Nestler, 'The Underprivileged Profession: The Case for Supreme Court Recognition of the Journalist's Privilege" (2005) 154:1 U Pa L Rev 201 at 204-10; Sonja R West, "Awakening the Press Clause" (2011) 58:4 UCLA L Rev 1025 at 1033--41 (describing the US Supreme Court's "modem practice of reading the First Amendment with its judicial thumb over the Press Clause" at 1033); Erwin Chemerinsky, "Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering" (2000) 33:4 U Rich L Rev 1143 ("[t]he judiciary, at all levels of courts, has refused to' provide any special protection for newsgathering activities by the press" at 1143); Frederick Schauer, 'Towards an Institutional First Amendment" (2005) 89:4 Minn L Rev 1256 ("existing First Amendment doctrine renders the Press Clause redundant and thus irrelevant" at 1257); Paul Horwitz, "Or of the [Blog]" (2006) 11 NEXUS 45 ("the Press Clause is about as useful as a vermiform appendix" at 46). By contrast, consider the unique treatment for press freedoms afforded by courts interpreting the freedom of expression guarantee in the European Convention on Human Rights, despite that document not containing any explicit mention of the press. See e.g. Tarsasag A Szabadsagjogokert v Hungary, [2011] 53 EHRR 3, at paras 26-28, 36; Independent News and Media Limited v A, [2010] EWCA Civ 343, [2010] 1 WLR 2262 at paras 39-44; R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court, [2012] EWCA Civ 420, [2012] 3 WLR 1343 at paras 41-53.

(41) See Cameron, "Quixotic Journey", supra note 12 at 179.

(42) Ibid at 165. See also Cameron, "The Other 2(b) Freedom", supra note 5 ("despite supporting the role of a free press in democratic governance, the Court has refused to engage the press guarantee under s.2(b)" at 4).

(43) See Potter Stewart, "Or of the Press" (1975) 26:3 Hastings LJ 631 at 633. See also Lessard, supra note 5, McLachlin J, dissenting.

(44) See Big M, supra note 20 ("it is important not to overshoot the actual purpose of the right or freedom in question" at 344).

(45) These issues addressed in Parts II.A(2) and (3), below, respectively.

(46) See Hunter v Southam Inc, [1984] 2 SCR 145, 11 DLR (4th) 641 [Southam]; Big M, supra note 20 at 344; Re BC Motor Vehicle Act, [1985] 2 SCR 486, 24 DLR (4th) 536; Edmonton Journal, supra note 3 at 1352, Wilson J; R v Beaulac [1999] 1 SCR 768 at 770, 173 DLR (4th) 193; Peter W Hogg, Constitutional Law of Canada: 2009 Student Edition (Toronto: Carswell, 2009) at 757-58.

(47) Big M, supra note 20 at 344, Dickson CJ, interpreting the Court's approach in Southam, supra note 44.

(48) See e.g. Thomas I Emerson, "Freedom of the Press Under the Burger Court" in Vincent Blasi, ed, The Burger Court: The Counter-Revolution That Wasn't (New Haven: Yale University Press, 1983) 1 (describing press freedom as part of "an integrated system of freedom of expression" at 3). See also Cameron, "Quixotic Journey", supra note 12 (discussing how freedom of expression and freedom of the press are integrated in a "process of freedom" under section 2(b)).

(49) See e.g. Carl C Monk, "Evidentiary Privilege for Journalists' Sources: Theory and Statutory Protection" (1986) 51:1 Mo L Rev 1 (journalistic privilege under the rubric of press freedom is "a principle or precept that enables individuals to more effectively secure other rights held against the state" at 62).

(50) Carson, supra note 4 at para 23 [emphasis added]. See also Saxbe v Washington Post, 417 US 843, 94 S Ct 2811 (1974), Powell J, dissenting ("[t]he press is the necessary representative of the public's interest in this context and the instrumentality which effects the public's right" at 864) [Saxbe cited to US].

(51) See Gerald Chan, 'Transparency Confined to the Courthouse: A Critical Analysis of Criminal Lawyers' Assn., C.B.C. and National Post" (2011) 54 Sup Ct L Rev (2d) 169. See especially ibid at 170, where the author distills the key principles from Edmonton Journal, supra note 3, and concludes that "[t]aken together, these three propositions suggest a broad vision of section 2(b) of the Charter that protects not only the simple act of expression, but also the acts necessary to make that expression meaningful (e.g., access to information, reliance on the ability of the press to gather information, etc.)." The author later notes that "[w]ithin the courthouse, the value of transparency still retains its primacy in the section 2(b) analysis. The same is not true once one leaves the court-house doors" (ibid at 195).

(52) See e.g. Lamont u Postmaster General, 381 US 301, 85 S Ct 1493 (1965), Brennan J, concurring ("[t]he dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers" at 308). See also Houchins, supra note 23, Stevens J, dissenting ([i]t would be an even more barren market-place that had willing buyers and sellers and no meaningful information to exchange" at 32, n 22).

(53) See Floyd Abrams, 'The Press Is Different: Reflections on Justice Stewart and the Autonomous Press" (1979) 7:3 Hofstra L Rev 563 at 591-92.

(54) See e.g. Dana Adams, "Access Denied? Inconsistent Jurisprudence on the Open Court Principle and Media Access to Exhibits in Canadian Criminal Cases" (2011) 49:1 Alta L Rev 177 at 180; Cameron, "Quixotic Journey", supra note 12 ("[t]his checking function or watchdog role defines the press and media as an institution and explains its constitutional status" at 174). The value of checking the abuse of official power has been more thoroughly canvassed in the US context, but I suggest that the observations are broadly applicable to Canada. See generally Vincent Blasi, 'The Checking Value in First Amendment Theory" (1977) 3:3 Am B Found Res J 521 (discussing the checking value in newsgathering at 591-611); David A Anderson, "Freedom of the Press" (2002) 80:3 Tex L Rev 429 at 449.

(55) See Cameron, 'The Other 2(b) Freedom", supra note 5 at 19. See also Jamie Cameron, "Of Scandals, Sources and Secrets: Investigative Reporting, National Post and Globe and Mail' (2011) 54 Sup Ct L Rev (2d) 233 at 254-55 [Cameron, "Scandals"]; Thomas I Emerson, "The Right of Privacy and Freedom of the Press" (1979) 14:2 Harv CR-CLL Rev 329 at 349; Thomas I Emerson, 'The First Amendment and the Right to Know: Legal Foundations of the Right to Know" (1976) 1 Wash ULQ 1 at 16 [Emerson, "Right to Know"]; Susan M Gilles, 'The Image of 'Good Journalism' in Privilege, Tort Law, and Constitutional Law" (2006) 32:3 Ohio NUL Rev 485 at 487; William P Marshall & Susan Gilles, 'The Supreme Court, the First Amendment, and Bad Journalism" (1994) Sup Ct Rev 169 at 201; Branzburg, supra note 36, Douglas J, dissenting at 714-15.

(56) Switzman v Elbling, [1957] SCR 285 at 306, 7 DLR (2d) 337 [emphasis added].

(57) See e.g. June Ross, "Recent Developments: Edmonton Journal v. Attorney General of Alberta" (1990) 1:2 Const Forum Const 23 ("while the Supreme Court [in Edmonton Journal] did not suggest that freedom of the press conferred any different or greater rights than freedom of expression, the press' role as a surrogate for the public was emphasized" at 24). See also McLachlin CJ, 'Transparency", supra note 32 at 7. In the US context, see Richmond Newspapers, Inc v Virginia, 448 US 555 at 572-73, 100 S Ct 2814 (1980) (media functions "as surrogates for the public" at 573); Saxbe, supra note 48 at 863, Powell J dissenting.

(58) See Chan, supra note 51 at 192-93. See also Chemerinsky, supra note 40 ("[s]peech can benefit people with information relevant to all aspects of life. The media, through newsgathering, can obtain information and then disseminate it to the public" at 1159).

(59) CBC v NB, supra note 5 at 475-76.

(60) For example, it might be said that freedom of expression is founded upon a number of purposes (see Irwin Toy Ltd u Quebec (AG), [1989] 1 SCR 927, 58 DLR (4th) 577 [Irwin Toy cited to SCR]) that range from primarily individualistic interest (e.g. "self-fulfillment" and "human flourishing"), instrumental or social purposes ("seeking and attaining the truth"), and some combination thereof (encouraging "participation in social and political decision-making") (ibid at 976).

(61) Supra note 34, Douglas J, dissenting at 721.

(62) I do not use the term right to know as if it were an independently enforceable constitutional right (see e.g. Vincent Kazmierski, "Something to Talk About: Is There a Charter Right to Access Government Information" (2008) 31:2 Dal LJ 351; Emerson, "Right to Know", supra note 55; Roy Peled & Yoram Rabin, 'The Constitutional Right to Information" (2011) 42:2 Colum HRL Rev 357). Rather, I use the term public's right to know

throughout this paper as a concise if imperfect marker for the overall purpose of press freedom in our constitutional system, as described and defended in this Part.

(63) See Branzburg, supra note 36 at 703-04. Although finding in a concurring set of reasons that a journalistic privilege should be available on a case-by-case basis, Powell J also appeared to struggle with the issue. He wrote in his notes following the hearing in Branzburg: "And who are "newsmen"-how to define?" (Sean W Kelly, "Black and White and Read All Over: Press Protection After Branzburg' (2007) 57:1 Duke LJ 199 at 210).

(64) For a roughly representative sample, see e.g. Abrams, supra note 53 at 580; Anderson, supra note 54 at 435-36; Kraig L Baker, "Are Oliver Stone and Tom Clancy Journalists?: Determining Who Has Standing to Claim the Journalist Privilege" (1994) 69:3 Wash L Rev 739; Yochai Benkler, "A Free Irresponsible Press: Wikileaks and the Battle over the Soul of the Networked Fourth Estate" (2011) 46:2 Harv CR-CLL Rev 311 at 356-63; Randall P Bezanson, 'The Developing Law of Editorial Judgment" (1999) 78:4 Neb L Rev 754 ("[d]efining 'press,' of course, is a matter that the Supreme Court has studiously, even adamantly, avoided" at 755); Volokh, supra note 26; Linda L Berger, "Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication" (2003) 39:5 Hous L Rev 1371; Clay Calvert, "And You Call Yourself a Journalist?: Wrestling With a Definition of "Journalist" in the Law" (1999) 103:2 Dick L Rev 411; Erik Ugland & Jennifer Henderson, "Who Is a Journalist and Why Does It Matter?: Disentangling the Legal and Ethical Arguments" (2007) 22:4 Journal of Mass Media Ethics 241; Stephanie J Frazee, "Bloggers as Reporters: An Effect-Based Approach to First Amendment Protections in a New Age of Information Dissemination" (2006) 8:3 Vand J of Ent & Tech L 609 at 631-40. See also West, supra note 40 at 1052-56, and the sources cited in ibid at 1054, n 204.

(65) See e.g. Marshall & Gilles, supra note 55 ("[t]he failure to distinguish between media and non-media has its price. As the cases involving reporter's privilege and rights of access attest, it prevents the Court from providing special protection to the press consistent with its constitutional function of informing the electorate and providing a check on government" at 205); Schauer, supra note 40 at 1262; West, supra note 40 at 1029.

(66) See Cameron, "Scandals", supra note 55 ("[t]echnology has fundamentally altered the status quo and, in a world where 'we're all journalists now', rendered prior conceptions of the press all but meaningless" at 238 [footnote omitted]).

(67) In the colourful words of former CBS news executive Jonathan Klein, cited in Benkler, supra note 64 at 356.

(68) The difficulty of defining the press and imbuing it with special rights, privileges, or immunities played a role in the rejection of constitutional protection for newsgathering in National Post, as I discuss in more detail in Part III, below.

(69) New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319 at 410, 100 DLR (4th) 212, Cory J, dissenting [New Brunswick Broadcasting], See also Cameron, "The Other 2(b) Freedom", supra note 5 at 13.

(70) Branzburg, supra note 36 at 704. See also Pennekamp, supra note 26 (finding that "the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print" at 364, Frankfurter J, concurring); Gilles, supra note 55 at 494; Chemerinsky, supra note 40 ("the Court has not yet recognized a preferred right for the press and has generally rejected any special protections for the press" at 1151).

(71) Cameron, "Quixotic Journey", supra note 12 at 183.

(72) Thus, whatever its merit in the US context, I reject Justice Stewart's claim that freedom of the press only "extends protection to an institution" in the sense of the publishing industry as an "organized private business" (Stewart, supra note 43 at 633). For an academic defence of this view in the context of a federal shield law, see Laura Durity, "Shielding Journalist-Bloggers': The Need to Protect Newsgathering Despite the Distribution Medium", online: (2006) 5:1 Duke L & Tech Rev 11 ("a substantial connection with or a relationship to an established news media organization such that there is sufficient editorial oversight" at para 37 [footnote omitted]). I prefer the position of Anderson, supra note 54, on this point (arguing that it makes "little sense" to attempt a formal definition of the press, inter alia, "because there is little correlation between those forms and the purposes for which it might make sense to give preferential treatment to some media" at 436-42).

(73) See e.g. Frazee, supra note 64 ("the inquiry should focus on whether the information at issue is 'of value to a public that must make intelligent decisions to govern itself' at 639, citing Berger, supra note 64 at 1410).

(74) This functional definition of the press has been endorsed, in various forms, by a wide range of US scholars and courts. See e.g. Timothy B Dyk, "Newsgathering, Press Access, and the First Amendment" (1992) 44:5 Stan L Rev 927 at 939; Anderson, supra note 54 ("[b]y focusing on function, entities that are thought to serve that function can be protected no matter what medium they use and no matter how technology might change the way they do business" 445-46); Baker, supra note 64 at 755; Benkler, supra note 64 at 359-60; Berger, supra note 64 at 1406-16 ("[w]hen you are engaged in certain kinds of activities, you are part of that flow of information and you are a journalist" at 1409); Geoffrey R Stone, "Government Secrecy vs. Freedom of the Press" (2007) 1:1 Harv L & Pol'y Rev 185 (a functional approach is "both manageable and preferable to the alternatives" at 216). For courts endorsing this approach, see also Von Bulow v Von Bulow, 811 F (2d) 136, 55 USLW 2462 (2nd Cir 1987) [Von Bulow]; Shoen v Shoen, 5 F (3d) 1289, 62 USLW 2212 (9th Cir 1993); In Re Madden, 151 F (3d) 125, 49 Fed R Evid Serv 1106 (3rd Cir 1998).

(75) See Von Bulow, supra note 73 at 144. While this standard developed in the US case law, in the context of journalist-source privilege I think that it provides a sound basis for determining who is undertaking activity that the press guarantee is aimed at protecting more broadly. See Part II, below.

(76) See generally Calvert, supra note 64.

(77) See Abrams, supra note 53 at 580.

(78) Grant v Torstar, supra note 2 at para 96 [footnote omitted]; Jamie Cameron, "Does Section 2(b) Really Make a Difference?: Part 1: Freedom of Expression, Defamation Law and the Journalist-Source Privilege" (2010) 51 Sup Ct L Rev (2d) 133 at 146 [Cameron, "Does 2(b) Make a Difference?"]. As Grant v Torstar involved the permissible content of expression, the desire to expand the defence--at least notionally--to all speakers was in my opinion entirely sensible.

(79) A number of the contextual factors to be addressed in an assessment of the "responsibleness" of the communication--such as providing an opportunity to reply and assessing the reliability of the source--are hallmarks of sound journalistic practice. Indeed, the Court's focus on communication of the nature engaged in by media entities is made plain in its discussion of the relevant factors, such as in alluding to editorial choice and the publication of news. See e.g. Grant v Torstar, supra note 2 at paras 114, 118.

(80) The US Supreme Court has rejected journalist-source privilege, partly on the basis that "[t]he informative function asserted by representatives of the organized press ... is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public" (Branzburg, supra note 36 at 705). I think the functional approach should embrace this proposition, but only with respect to those who are, in some sense and on the occasion in question, collecting and disseminating news.

(81) See Eric Ugland, "Newsgathering, Autonomy, and the Special-Rights Apocrypha: Supreme Court and the Media Litigant Conceptions of Press Freedom" (2009) 11:2 U Pa J Const L 376 at 377 (describing this phrase as a favourite of opponents of journalist-source privilege).

(82) The framework would in no way be "reminiscent of the abhorred licensing system of Tudor and Stuart England," as US Chief Justice Burger famously fretted in First National Bank of Boston v Bellotti (435 US 765 at 801, 98 S Ct 1407 (1978)).

(83) Subject, of course, to different treatment under section 1 depending on the circumstances, content, and form of the expression. See generally Richard Moon, "Justified Limits of Free Expression: The Collapse of the General Approach to Limits on Charter Rights" (2002) 40:3 & 4 Osgoode Hall LJ 337 at 344-51.

(84) See e.g. Syndicat Northcrest v Amselem, 2004 SCC 47 at paras 39-46, [2004] 2 SCR 551.

(85) See Baker, supra note 64, describing the approach of some US courts ("[i]f the intent is present, the method of dissemination is irrelevant as long as it serves as a vehicle for information and opinion" at 749).

(86) See Lessard, supra note 5, McLachlin J, dissenting at 449-50.

(87) See the e.g. Charter, supra note 1, ss 6 (mobility rights are restricted to citizens), 23 (language rights are restricted to French and English linguistic minorities), 35 (aboriginal and treaty rights are restricted to Indian, Inuit, and Metis peoples).

(88) On this point, see Abrams, supra note 53 at 580-81, who rejects the supposition that deciding who is and is not entitled to protection of press freedom amounts to licensing, any more than deciding who is and is not entitled to protection under religious freedom entails the licensing of religions.

(89) See e.g. R v Zundel, [1992] 2 SCR 731, 95 DLR (4th) 202 [Zundel].

(90) But see the discussion of the public interest requirement in Part II.A(3), below.

(91) See the test enunciated in Von Bulow, supra note 73.

(92) Ibid at 144. This standard contains both an activity element--newsgathering--and an element of intent--the purpose of collecting the information for dissemination to the public (see Calvert, supra note 64 at 419).

(93) See Benkler, supra note 64 at 359-61. See also e.g. Lewis v R, [1979] 2 SCR 821 at 831, 98 DLR (3d) 111, for a discussion of the intent/motive distinction in the context of the criminal law.

(94) Much of the criticism of this approach in the US case law appears premised on the assumption that discriminating between "news" and "entertainment" in some sense degrades or jeopardizes the expression of the latter form. See William E Lee, 'The Priestly Class: Reflections on a Journalist's Privilege" (2006) 23:3 Cardozo Arts & Ent LJ 635. Lee notes that fictional writing "can be thinly veiled accounts of contemporary people, events and trends" and thus sees no reason to not protect a confidential privilege for fiction writers as for investigative reports (ibid at 675). I suggest that the importance of the press, as defined above, is precisely to unveil. In turning facts into fiction, the author abandons the function of informing the public about news, as informative and important as such writing may be in another sense. But see e.g. Daniel A Swartwout, "In Re Madden: The Threat to New Journalism" (1999) 60:4 Ohio St LJ 1589.

(95) Of course, this example strains the notoriously difficult intent/motive distinction. A reporter may be conducting a vendetta through newsgathering for the purpose of publication. In such cases the courts would have to look at the intention of the news gatherer: if the information was not collected for the purpose of publication, but rather to blackmail or destroy the reputation of the politician clandestinely, such conduct would lack the purpose of publication, and thus any claim for protection would fail at this stage.

(96) See Cameron, "Scandals", supra note 55 at 234-35. Jamie Cameron cites as a potential example of the latter O'Neill, in which a source from within the government leaked false and damaging information about Maher Arar. See O'Neill v Canada (AG) (2006), 82 OR (3d) 241, 213 CCC (3d) 389 (SCJ).

(97) As our purpose here is to address protections for newsgathering as distinct from expression, we are not directly concerned with the publication of such false and damaging (i.e. defamatory) information, a matter addressed by defamation law as informed by freedom of expression, as opposed to a matter of press freedom as such.

(98) Whether a subjective intent element is preferable to an objective determination is a matter I leave aside.

(99) Thus, while the expression of false information may be protected as an aspect of freedom of expression (see e.g. Zundel, supra note 90; R v Lucas, [1998] 1 SCR 439, 157 DLR (4th) 423), the collection and dissemination of clearly inaccurate information is likely not linked to the purpose of press freedom as such, and thus may not warrant constitutional protection under the proposed freedom of the press framework.

(100) Baker, supra note 64 at 760-63, noting that the functions of a newsgatherer and of an author of fiction are different, with only the former serving the purpose behind the privileged press protection.

(101) Of course, a publication for which the information was being collected need not be exclusively factual to be protected, although it should contain at least some factual content to bring it within the purpose of the guarantee.

(102) See on this point Baker, supra note 64 at 758.

(103) See Monk, supra note 49 (criticizing statutory press protections that require an individual to be "regularly engaged" in journalistic endeavors in order to receive protection at 28-29).

(104) See Von Bulow, supra note 73 at 144.

(105) In National Post supra note 9 (oral argument, Appellant, online: ), Binnie J asked: "When you say that gathering news is part of the 2(b) protection, that doesn't mean, I don't think, that the reporter has a right to walk into somebody's private home in search of a story" (at 66:07-21).

(106) In the absence of an established defence.

(107) See e.g. United Food and Commercial Workers, Local 401 u Alberta (AG), 2012 ABCA 130, 349 DLR (4th) 654 [UFCW], confd Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (available on CanLII) [UFCWSCC]. See the discussion in the Conclusion, below.

(108) See e.g. R v Khawaja, 2012 SCC 69 at para 70, [2012] 3 SCR 555 [Khawaja],

(109) See John DR Craig, 'Invasion of Privacy and Charter Values: The Common-Law Tort Awakens" (1997) 42:2 McGill LJ 355 at 361-69; Jones v Tsige, 2012 ONCA 32 at paras 15-38, 346 DLR (4th) 34 [Tsige], For a discussion of how such privacy protection may impact press freedom in Canada, see Jared Mackey, "Privacy and the Canadian Media: Developing the New Tort of 'Intrusion Upon Seclusion' with Charter Values", online: (2012) 2:1 UWO J Leg Stud 3 . For the development of privacy protection in the US and its conflicts with a free press, see generally Amy Gajda, "Judging Journalism: The Turn toward Privacy and Judicial Regulation of the Press" (2009) 97:4 Cal L Rev 1039.

(110) See Tsige, supra note 109. See also Trout Point Lodge Ltd v Handshoe, 2012 NSSC 245 at para 55, 320 NSR (2d) 22.

(111) RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8, [2002] 1 SCR 156 [Pepsi-Cola].

(112) Ibid at para 77.

(113) Of course, merely declaring activity illegal would not necessarily defeat the press freedom claim at this stage, as the government could then immunize itself from scrutiny through a general prohibition (e.g. "newsgathering constitutes an offence"). A helpful heuristic might be to ask, as counsel for the National Post suggested in oral arguments, whether the newsgathering activity in question was both "nonviolent" and "consensual", in which case we can assume it was not "inherently harmful" for the purposes of this analysis. This would remove from protection inherently harmful activities like assault, trespassing, clear invasions of privacy (i.e. secret press wiretaps), and so on, without simply immunizing from review all activities a government might deem to be illegal (see National Post, supra note 9 (oral argument, Appellant, online: ) at 66:35).

(114) See e.g. Security of Information Act, RSC 1985, c O-5, s 13(1) [Security of Information Act], This raises what appears to be a major practical impediment to discrete constitutional protection for press freedom: the possibility of major national security leaks receiving protection. For thoughtful discussion of the topic in the US context, see Benkler, supra note 64; Stone, supra note 74. It should be noted, however, that press freedom as conceived here neither directly affects liability flowing from the relationship between the source and the government (i.e., the illegality of the leaks, as such), nor imposes any restriction on expression that may burden newspapers (i.e., the illegality of publication), both of which are treated as (admittedly difficult) matters of freedom of expression and section 1. This is not to say that the concern is not a real one, but rather that discrete constitutional protection for press freedom does not make the vexing issue of illegal transmission of government secrets significantly more difficult than it would otherwise be.

(115) Supra note 33 at para 84. On this point in LeBel J's judgment, see Cameron, "Scandals", supra note 55 at 269-70.

(116) It is considered to be on occasion. See e.g. Security of Information Act, supra note 115, s 4(3) (prohibiting knowing receipt of secret information). Again, however, this section could be reviewed for compatibility with press freedom under the freedom of the press doctrine articulated here.

(117) Lessard, supra note 5 at 453. McLachlin J gives the following example: "[T]he press might not be entitled to Charter protection with respect to documents relating to an alleged offence by the press itself" (ibid).

(118) See e.g. Irwin Toy, supra note 60; R v Keegstra, [1990] 3 SCR 697 at 763, 117 NR 1.

(119) See e.g. Montreal (City) v 2952-1366 Quebec Inc, 2005 SCC 62 at para 56, [2005] 3 SCR 141 [Montreal (City)]; Brian Slattery, "Freedom of Expression and Location: Are There Constitutional Dead Zones?" (2010) 51 Sup Ct L Rev (2d) 245.

(120) Criminal Code, RSC 1985, c C-46, s 162 [Criminal Code].

(121) National Post, supra note 9 at para 38.

(122) This is not to say that unseemly press activities unconnected to section 2(b) values could not be protected elsewhere under the Charter, in particular under freedom of expression, just that they would not be protected under the freedom of the press framework proposed here.

(123) For US case law and analysis regarding this type of public interest criterion, see Baker, supra note 64 at 750-54, and his criticism of this approach at 756-58.

(124) See Grant v Torstar, supra note 2, especially at paras 99-109; WIC Radio, supra note 2, especially at paras 29-30. The test for fair comment established in WIC Radio, for instance, requires the "the comment must be on a matter of public interest" (ibid at para 28). The Court continues, describing the public interest criteria as "relatively easy to discharge," and stating that the "public interest is a broad concept" (ibid at para 30).

(125) Grant v Torstar, supra note 2 at para 102 [emphasis added],

(126) Cameron, "Does 2(b) Make a Difference?", supra note 78 at 147.

(127) Grant v Torstar, supra note 2 at para 106.

(128) Ibid at para 105, citing Raymond E Brown, The Law of Defamation in Canada, vol 2, 2d ed (Scarborough, Ont: Carswell, 1999) (loose-leaf updated 2008, release 3) at 15-137 and 15-138.

(129) The problem is not simply that the courts may misread what is in the public interest, but that the entire exercise of defining the public interest "smacks of paternalism and elitism" (Anderson, supra note 54 at 479).

(130) See Jamie Cameron, "The Past, Present, and Future of Expressive Freedom Under the Charter?" (1997) 35:1 Osgoode Hall LJ 1 at 15-27 [Cameron, "Expressive Freedom"].

(131) See Cameron, "Quixotic Journey", supra note 12 at 164, 172. See more generally Cameron, "Expressive Freedom", supra note 130.

(132) On the dilution of the Oakes test, see e.g. Christopher D Bredt & Adam M Dodek, "The Increasing Irrelevance of Section 1 of the Charter" (2001) 14 Sup Ct L Rev (2d) 175 at 182-86; Chanakya Sethi, "Beyond Irwin Toy. A New Approach to Freedom of Expression Under the Charter." (2012) 17 Appeal 21 at 22-23.

(133) See Baker, supra note 64 at 756; Anderson, supra note 54 at 516 n 474.

(134) National Post, supra note 9 at para 33.

(135) Ibid at paras 116-23.

(136) See generally Jason Burke, "Shielding the Public Interest: What Canada Can Learn from the United States in the Wake of National Post and Globe & Mail' (2012) 35:1 BC Int'l & Comp L Rev 189 at 198-200; John E Osborn, "The Reporter's Confidentiality Privilege: Updating the Empirical Evidence After a Decade of Subpoenas" (1985) 17:1 Colum HRL Rev 57 at 72-81; Laurence B Alexander, Linda M Perry & Bill F Chamberlain, "Branzburg v. Hayes Revisited: A Survey of Journalists Who Become Subpoena Targets" (1994) 15:2 Newspaper Research Journal 83. But see Lillian R BeVier, "The Journalist's Privilege--A Skeptic's View" (2006) 32:3 Ohio NUL Rev 467.

(137) See e.g. David Abramowicz, "Calculating the Public Interest in Protecting Journalists' Confidential Sources" (2008) 108:8 Colum L Rev 1949, at 1966-70; Emerson, "Right to Know", supra note 55 at 19-20; Nestler, supra note 40 ("[t]he system unravels if the reporter is unable to keep her promise of confidentiality" at 239).

(138) See St Elizabeth Home Society v Hamilton (City), 2008 ONCA 182 at paras 31-35, 291 DLR (4th) 338; National Post, supra note 9 at paras 28-34; Lessard, supra note 5 at 430, 432, LaForest J and 452, McLachlin J; Globe and Mail, supra note 35 at para 48.

(139) In the United States, see Zurcher v Stanford Daily, 436 US 547 at 572, 98 S Ct 1970 (1978), Stewart J, dissenting; Branzburg, supra note 36; National Post, supra note 9 at para 120, Abella J, disenting. Outside the United States, see Calvert, supra note 64 at 413-18; Nestler, supra note 40 at 227-30. See also Goodwin v United Kingdom, (1996) 22 EHRR 123; Ashworth Security Hospital v MGN Ltd, [2002] UKHL 29 at para 61, [2002] 1 WLR 2033; Firuincial Times Ltd v The United Kingdom, [2009] ECHR 2065. See more generally Kyu Ho Youm, "International and Comparative Law on the Journalist Privilege: The Randal Case as a Lesson for the American Press" (2006) 1:1 J Int'l Media & Ent L 1.

(140) R v National Post, 2010 SCC 16, [2010] 1 SCR 477 (Factum of the Respondent at para 67) [Respondent].

(141) National Post, supra note 9 at paras 47-49, Binnie J, and paras 107-11, Abella J, dissenting.

(142) On this point, see Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139 at 152, 77 DLR (4th) 385, Lamer CJ.

(143) See e.g. Mark Tushnet, "Judicial Activism or Restraint in a Section 33 World" (2003) 53:1 UTLJ 89 at 92.

(144) For a recent example, see e.g. United States v Alvarez, 132 S Ct 2537, 183 L Ed (2d) 574 (2012), Breyer J concurring (in determining whether a law violates the First Amendment, the Court will consider "the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision's countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive alternatives" at 2540-41 [cited to S Ct]).

(145) This is bolstered by a close reading of Branzburg itself, where the majority noted that "without some protection for seeking out the news, freedom of the press could be eviscerated" and that grand jury investigations without a legitimate purpose "would have no justification" (Branzburg, supra note 36 at 681, 708). Powell J, concurring, advocated a case-by-case balancing process similar to a section 1 analysis, noting that each case "should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct" (ibid at 710). See also Burke, supra note 150 at 207-08.

(146) National Post, supra note 9 at para 1. This is, broadly speaking, the primary justification offered for infringing upon confidential source relationships. See also Globe and Mail, supra note 35 at para 1; Nestler, supra note 40 at 216-17.

(147) Christian Leblanc, Marc-Andre Nadon & Emilie Forgues-Bundock, "The Journalist-Source Privilege in Quebec Civil Law: Globe and Mail v Canada (Attorney General)' (2011) 54 Sup Ct L Rev (2d) 273 at 279 [Leblanc et al].

(148) See Cameron, "Scandals", supra note 55 at 248.

(149) Consider for example the test suggested by McLachlin J in Lessard, supra note 5 at 455, specifically for search warrant cases.

(150) In order to establish privilege on a case-by-case basis according to the Wigmore test, the claimant must demonstrate the following:

First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be "sedulously fostered" in the public good ... Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth (National Post, supra note 9 at para 53).

(151) Ibid ("[n]ews gathering, while not specifically mentioned in the text of s. 2(6) is implicit in news publication" at para 38).

(152) Ibid.

(153) Ibid.

(154) Ibid at paras 28, 33.

(155) Ibid at para 57.

(156) Ibid at para 38.

(157) See "When Government Information Goes Astray" (9 June 2009), online: CBC News (budget documents were seen during a photo-session in Minister Lalonde's office).

(158) New Brunswick Broadcasting, supra note 68.

(159) Ibid at 409. The need to permit filming for the purposes of improving the accuracy of reporting appears again in CBC v Canada (AG), supra note 4 at para 48, and is discussed in the Conclusion, below.

(160) See e.g. Criminal Code, supra note 120, ss 184 (interception of private communications), 191 (possession of a device used to intercept private communications), 342.1 (unauthorized use of a computer), 342.2 (possession of a device for unauthorized computer use), 430(1.1) (mischief in relation to data).

(161) For a comprehensive treatment of privacy legislation and protection in Canada, see Barbara McIsaac, Rick Shields & Kris Klein, The Law of Privacy in Canada, vol 2, loose-leaf, (Scarborough, Ont: Carswell, 2000).

(162) See e.g. UFCW, supra note 107, in which a union's videotaping of picket lines was prohibited by provincial privacy legislation, which legislation was subsequently found to be unconstitutional by the Supreme Court (UFCW SCC, supra note 107). This case raises some difficult conceptual issues regarding the distinction between freedom of expression and access to information for the purposes of expression, and is touched on only briefly in the Conclusion, below.

(163) As Jamie Cameron has noted, with reference to National Post: "Finding fault with these newsgathering practices had little relevance in a case where an award-winning journalist relied on confidential sources while engaged in investigative reporting with undeniable links to core section 2(b) values" (Cameron, "Scandals", supra note 55 at 249).

(164) National Post, supra note 9 at para 40.

(165) Ibid.

(166) Berger, supra note 64 at 1411.

(167) See Leblanc et al, supra note 147 at 285; National Post, supra note 9 at para 77; Globe and Mail, supra note 35 at para 19.

(168) This clearly had a strong influence on the Court's reasoning in National Post. See Cameron, supra note 53 ("[i]t leaves little doubt that the Court's decision turned on a single, compelling fact: that the purpose of the search was to gain access to the physical evidence, the physical instrumentality, the actus reus of an offence against the Prime Minister of Canada" at 245).

(169) National Post, supra note 9 at para 40.

(170) Ibid at para 43.

(171) Ibid. According to Jamie Cameron, the Court "found the scope of the privilege concerning, not only because the class lacks boundaries but because it lacks standards as well" (Cameron, "Scandals", supra note 55 at 250).

(172) See Part I.D, above.

(173) Cameron, "Scandals", supra note 55 at 250.

(174) This point is taken up in the Conclusion, below.

(175) National Post, supra note 9 at para 45.

(176) See Cameron, "Scandals", supra note 55 at 255; National Post, supra note 9 at para 41.

(177) Cameron, "Scandals", supra note 55 at 237; see also Cameron, "Does 2(b) Make a Difference?", supra note 78 at 153-54. In fact, this may be the only point on which all parties agreed during the National Post litigation. See e.g. Respondent, supra note 140 at para 39; R v National Post, 2010 SCC 16, [2010] 1 SCR 477 (Factum of the Intervener Canadian Civil Liberties Association at paras 12-13).

(178) See e.g. R u Gruenke, [1991] 3 SCR 263 at 288-89, 67 CCC (3d) 289 [Gruenke]; M (A) v Ryan, [1997] 1 SCR 157, 143 DLR (4th) 1. On this point, see Cameron, "Scandals", supra note 53 at 254-55. See also Monk, supra note 49 at 3; Nestler, supra note 40 at 212-15.

(179) See National Post, supra note 9 at para 53, quoting Gruenke, supra note 178 at 290.

(180) See R v The National Post, 2008 ONCA 139 at para 76, 80 OR (3d) 1.

(181) Cameron, "Scandals", supra note 55 at 256-58, 272. As applied in National Post, the test meant "law enforcement prevails even when the probative value of the evidence approaches the vanishing point" (ibid at 258). See also Cameron, "Quixotic Journey", supra note 12 at 182.

(182) National Post, supra note 9 at para 78.

(183) Ibid at para 60.

(184) This burden reversal may have real consequences on the outcome of the dispute. See Cameron, "Scandals", supra note 55 at 256.

(185) National Post, supra note 9 at para 50, Binnie J, and para 115, Abella J, dissenting.

(186) As Cameron notes with respect to the search warrant cases, the "press-specific factors were recommended, not mandatory, and did little to protect the CBC in these cases" (Cameron, "Quixotic Journey", supra note 12 at 176).

(187) Cameron, "Does 2(b) Make a Difference?", supra note 78 at 155.

(188) As the US scholar Robert Bork once noted, "[j]udges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom" (Robert H Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990) at 169).

(189) Lessard, supra note 5 at 453 [emphasis added]. See also La Forest J in Carson, supra note 4 ("[i]n answer to the respondents' submissions, however, it is to be noted that this Court has repeatedly favoured a balancing of competing interests at the s. 1 stage of analysis" at para 34).

(190) Lessard, supra note 5 at 450 (McLachlin J, dissenting).

(191) See Chan, supra note 51 ("[w]hile it has since been inextricably woven into the fabric of section 2(b), the constitutionality of the open court principle is not immediately apparent from the text of that provision" at 169).

(192) See Health Services and Support--Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391. This extension has been severely criticized in some quarters as not only falling outside the text of section 2(d) but also outside the section's purpose. See e.g. Ontario (AG) v Fraser, 2011 SCC 20 at paras 252-54, [2011] 2 SCR 3, Rothstein J, dissenting; Brian Langille, 'The Freedom of Association Mess: How We Got into It and How We Can Get out of It" (2009) 54:1 McGill LJ 177.

(193) See Reference Re Prov Electoral Boundaries (Sask), [1991] 2 SCR 158 at 188, 81 DLR (4th) 16.

(194) See R v Hebert, [1990] 2 SCR 151 at 179, 47 BCLR (2d) 1.

(195) See e.g. Charter, supra note 1, ss 25-31.

(196) See e.g. R v Prosper, [1994] 3 SCR 236, 118 DLR (4th) 154 ("the 'living tree' theory has its limits and has never been used to transform completely a document or add a provision which was specifically rejected at the outset. It would be strange, and even dangerous, if courts could so alter the constitution of a country" at 297, l'Heureux-Dube J, dissenting (but concurring on this issue) [cited to SCR]).

(197) For example, publication ban cases expressly limit expressive activity as such and can be adequately treated under the freedom of expression framework. See e.g. Dagenais, supra note 3; Mentuck, supra note 3. (Although the Court employs a freedom of expression analysis in determining a breach of section 2(b), the section 1 analysis has been tailored to specific circumstances of publication bans.)

(198) Montreal (City), supra note 119 at para 56, citing Irwin Toy, supra note 60 at 967-68.

(199) CBC v Canada (AG), supra note 4 at para 46.

(200) See Lessard, supra note 5, LaForest J concurring; Carson, supra note 4; Globe and Mail, supra note 35 at para 56.

(201) CBC v Canada (AG), supra note 4 at para 2 [emphasis added],

(202) Ibid at para 31.

(203) Ibid at para 33.

(204) See Juman u Doucette, 2008 SCC 8 at para 22, [2008] 1 SCR 157.

(205) CBC v Canada (AG), supra note 4 at paras 1, 27-39.

(206) The cases in which laws or regulations had the effect of limiting freedom of expression have all revolved around whether expression itself can take place in a specific location or in a specific way. See e.g. Greater Vancouver Transportation Authority v Canadian Federation of Students--British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295 [Greater Vancouver Transportation], and the cases cited in ibid at para 27. That is, the question in these cases was location as a forum for expression, not location as an opportunity to collect information for future expression. See Hogg, supra note 46 at 43.12.

(207) Notably, perhaps, the Court also did not address the "necessary for the meaningful exercise of free expression" standard that operated in CLA for determining where access to information inhibited by the government possessed sufficient expressive content to bring it within the ambit of s 2(b) protection (CLA, supra note 34 at paras 35-37). This standard, as explained in CLA, provides an important buffer against finding that all individuals are constitutionally entitled to all information in government hands (e.g. the recordings) or access to all areas in which government business is conducted. See also Chan, supra note 51 at 175.

(208) See CBC v Canada (AG), supra note 4 at para 40.

(209) Ibid at para 48.

(210) See e.g. Irwin Toy, supra note 60 at 970; Greater Vancouver Transportation, supra note 207 at para 27. See also Hogg, supra note 46 at 43.5; Slattery, supra note 119 ("for an activity to qualify as 'expressive' at the first stage, a claimant need only show that it attempts to convey a meaning in a non-violent way" at 248).

(211) UFCW, supra note 107107 at para 65 [emphasis added]. The Court of Appeal seemed to rely, at least in part, on the fact that "[t]he picket line itself is an expressive activity" (ibid at para 62). This is surely true, but it is not as clear that it is the expressive activity of the claimants in this case.

(212) UFCW SCC, supra note 107 at para 10.

(213) Ibid at para 11.

(214) A difficult issue in its own right. See the discussion of Lamer J (as he then was) in Reference re ss 193 and 195.1(l)(c) of the Criminal Code (Man), [1990] 1 SCR 1123 at 1181-86, [1990] 4 WWR 481; see also Irwin Toy, supra note 60 at 968-71 (Dickson CJ).

(215) Supra note 32 ("nothing would be gained by furthering this debate" at para 31). The Court instead applied the general freedom of expression framework.

(216) Criminal Lawyers' Association v Ontario (Ministry of Public Safety and Security), 2007 ONCA 392 at para 30, 280 DLR (4th) 193 [emphasis added].

(217) Ibid at para 144, Juriansz JA, dissenting [emphasis added],

(218) CLA, supra note 34 at para 35.

(219) Ibid at para 36. In order to deal with the difficult issue of state action that only indirectly impacts expression, the Supreme Court of the United States has developed an "incidental effects" doctrine. See e.g. Stone, supra note 74:

   The rationale of the incidental effects doctrine is largely one of
   practicality. Because almost every law can have some effect on
   speech, and because individuals would readily claim they were
   engaged in speech if that claim could make out a defense to a
   criminal charge, an approach that required courts
   seriously to consider the incidental effects of laws on
   speech-related activities in every case would be a judicial
   nightmare" (ibid at 208).

(220) See Irwin Toy, supra note 60 at 970; Hogg, supra note 46 at 43.5; Slattery, supra note 119 at 248.

(221) Daniel Guttman, "Criminal Lawyers' Assn. v. Ontario: A Limited Right to Government Information under Section 2(b) of the Charter" (2010) 51 Sup Ct L Rev (2d) 199 at 199; see also ibid at 221.

(222) CLA, supra note 34 at para 30.

(223) See Chan, supra note 51 ("[t]he entire analysis depends on the level of generality with which one defines the subject matter to be debated" at 183-84); Ryder L Gilliland, "Supreme Court Recognizes (a Derivative) Right to Access Information" (2010) 51 Sup Ct L Rev (2d) 233 ("[t]he word "meaningful", a new addition to the matrix of section 2(b) Charter analysis, leaves uncertainty respecting when a right to access information can be invoked" at 233).

(224) CBC v Canada (AG), supra note 4 at para 48.

(225) Other cases may have inaugurated this conceptual slippage, notably Baier u Alberta, 2007 SCC 31, [2007] 2 SCR 673, in which the Court found at para 33 that running for the office of school trustee had the required "expressive aspects" to ground a s 2(b) violation. In dissent, LeBel J noted that "[njearly everything people do creates opportunities for expression if 'expression' is viewed expansively enough" (ibid at para 76). See also Richard E Charney, "The Shaky Foundation of 'Statutory Platforms': A Comment on Baier v. Alberta(2008) 42 Sup Ct L Rev (2d) 115 at 118-21.

(226) See e.g. the prison visitation cases in the US (Saxbe, supra note 48). Another example may be in the case of areas that by necessity are closed off to the general public, but may permit some supervised access, such as the location of the tragic train derailment in Lac-Megantic, Quebec (see Paul Wells, 'Time to Lift the Curtain at Lac-Megantic" MacLean's (8 July 2013), online: MacLean's ). While there might be very good reason not to extend public access to the disaster zone on the reasoning that such access is derivative of freedom of expression, there may be little reason to prohibit press access on the logic that the press acts as a surrogate of the public to ensure the public remains informed. Indeed, Dyk, supra note 74, has discussed this very issue (in such cases, the press acting as a surrogate for the public "achieves the goal of obtaining and disseminating information in a way that public access cannot" at 935).

(227) Ibid at 936 [footnote omitted]. See also Nimmer, supra note 24 ("the Court cannot properly assess the balance in each situation without distinguishing between the separable press and speech interests" at 655).

(228) Cameron, 'The Other 2(b) Freedom", supra note 5 at 21. See also Cameron, "Quixotic Journey", supra note 12 (advocating "a theory of the press that defines its content as an independent entitlement" at 193).

(229) See National Post, supra note 9 at para 40.

(230) Turn of phrase borrowed, with apologies, from Major J, dissenting, in Winnipeg Child and Family Services (Northwest Area) v G (DF), [1997] 3 SCR 925 at para 95, 152 DLR (4th) 193.

(231) Irwin v Gavit, 268 US 161 at 168, 45 S Ct 475 (1925).

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