Good news, bad news for Canada’s

docudrama producers, newsrooms

Simon Chester is the partner in charge of research and a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch. This article was prepared with the assistance of Robert Wisner.

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Just in time for turkey-time, Canada’s lawmakers came out with two unexpected pieces of law-making that should concern all those whose work involves crime reporting or true crime. As often happens the news is neither all bad, nor wholly good. Let’s start with good news from the Supreme Court of Canada.

Top court eases publication ban rules

In two dramatic decisions in early December, Canada’s top court spelled out new ground rules for publication bans restricting reporting of criminal trials. The cases involved the cbc miniseries The Boys of St. Vincent and reporting of the Martensville child abuse trials. Producers and news media will find that the new ground rules ease significantly restrictions on reporting and give the rights of producers and media an equal priority with the rights of the accused.

Four members of a Catholic order had been charged with physical and sexual abuse of young boys in their training schools. The trials of the men before a judge and jury were underway or scheduled. A judge stopped the cbc from broadcasting, anywhere in Canada, a fictional program dealing with child sexual and physical abuse in a Catholic orphanage, until the trials were over. She also stopped all media from publishing any information relating to the proposed broadcast of the program, and prevented publication of the fact of the ban, or any material relating to it. An appeal court maintained the ban, but lifted it outside Ontario and Montreal.

The Supreme Court by a majority of six to three struck down the ban. It held that the cbc could appeal the publication ban, and that Canadian judges had been applying tests to decide on publication bans that gave insufficient weight to the rights of media concerns.

One of the majority judges explicitly recognized that the right to broadcast a fictional cinematic work fell squarely within constitutionally protected free speech and that the ban interfered with the right of the actors, directors and producers of the film to express themselves.

The Supreme Court has sent a strong message to judges deciding cases in the future. The traditional British and Canadian common law rule governing publication bans – that there be a real and substantial risk of interference with the right to a fair trial – put the right of an accused to a fair trial above the right of free expression of those affected by the ban.

In light of Canada’s Charter of Rights and Freedoms, the traditional rule does not sufficiently protect freedom of expression. When two protected rights come into conflict, the Charter requires that both rights be properly balanced.

The court rejected the American idea that there had to be a ‘clash’ between freedom of expression for the media and the right to a fair trial for the accused. This isn’t a game that one wins and the other loses. Whether a publication ban will actually work is also a relevant factor in the analysis.

The new rules are:

– A publication should only be ordered when

* a ban is needed to prevent a real and substantial risk to a fair trial, because reasonably available alternative measures will not prevent the risk; and

* the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.

– Parties claiming that a publication ban is needed to avoid a real and serious risk to the fairness of the trial must show why freedom of expression should be limited. They must prove:

* that the proposed ban is necessary, and relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure,

* that the proposed ban is as limited (in scope, time, content, etc.) as possible, and

* that there is a proportionality between the positive and negative effects of the ban.

– The judge should give the media the legal right to be heard in court, in accordance with the legal rules on who can intervene.

– The judge should, where possible, review the actual publication or film in dispute.

Viewed against this standard, the court held that The Boys of St. Vincent ban was too broad. While the ban was clearly directed toward preventing a real and substantial risk to the fairness of the trial of the four respondents, it prohibited broadcast throughout Canada and even banned reporting on the ban itself.

Nor was the Court blind to the wired world’s impact on publication bans. It recognized that:

recent technological advances have brought with them considerable difficulties for those who seek to enforce bans. The efficacy of bans has been reduced by the growth of interprovincial and international television and radio broadcasts available through cable television, satellite dishes, and shortwave radios. It has also been reduced by the advent of information exchanges available through computer networks. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing.

One of the dissenting judges indulged in an extensive analysis of the genre of docudramas. While his thinking is not that of the Supreme Court, it does shed some light on how judges view docudramas – as only partly fiction with little indication of the line between documentary and drama.

Because he thought the purpose of docudramas was to air current issues of public importance, spark discussion and help seek solutions, a temporary ban until the end of the trial was only a minor restriction of the right to freedom of expression. The particular agendas of those involved – the writer, director and producer – may mean that fiction becomes worse than reality.

Despite the topicality of docudramas, immediacy is the essence of news, not docudramas. The dissenting judge thought producers should wait until an ongoing or imminent trial is completed before broadcasting or mounting a docudrama.

In the Martensville case, the cbc lost, because it had made a mistake in appealing to the Saskatchewan Appeal Court. For technical procedural reasons, the Supreme Court let the Martensville ban stand.

And now for something not completely different.

The ‘Son of Karla’ Law – bad news?

Diehard Binchmark readers might recall that we recently wrote about ‘Son of Sam’ laws that stopped American criminals from profiting from their crime by selling their story to the media. Since that column appeared, the Ontario Legislature rammed through the Victims’ Right to Proceeds of Crime Act in a single hour, in a frantic spurt of late-night law-making, so that Ontario is the first Canadian jurisdiction to adopt a Son of Sam law of its own.

Cutting a movie or book deal with a criminal may now be more than just a bad pr move – it has legal problems running all through it.

Producers, publishers or anyone else wishing to enter into a contract for interviews, appearances or the inside ‘scoop’ on a crime can still do so. But any payments that would have gone to the criminal (or a relative or agent) in exchange for this information, must now be paid over to the Public Trustee, who will freeze the money to allow claims by victims.

Indeed simply inking a deal obliges everyone involved to notify the Public Trustee’s office and supply it with a copy. If you cut a deal, be ready for your involvement in the deal to be publicized.

The Bill springs from the victims’ rights movement in Ontario’s Golden Horseshoe region. Lawmakers are following the Teale/Homolka saga as closely as anyone. In the wake of the murders of Leslie Mahaffy, Kristen French and Nina de Villiers, the law gives new rights to crime victims. It tries to compensate them as well as ensuring that crime doesn’t pay.

Victims of crime now have more time to seek damages from the criminal and, if they win, can ask the Public Trustee for payment from the trust fund fed from the criminal’s profits. After five-and-a-half years, the Trustee will pay out the funds to the victims and any money left over will be returned to the contracting parties. Thus, while the law doesn’t make cutting deals with criminals impossible, such deals are likely to become a very expensive, lengthy and embarrassing proposition. Most producers won’t want to wait five-and-a-half years to close off a project.

Already, the new law has changed some production structures. One producer of a made-for-tv movie has just given $25,000 to an aids charity, because he could not pay a convicted criminal for his story.

The u.s. Supreme Court struck down a similar Son of Sam law in New York as an unconstitutional restriction on freedom of speech. It remains to be seen whether or not Ontario’s version will eventually fall afoul of our Supreme Court’s new-found enthusiasm for media rights. Whatever the outcome, the fact that this law was passed at literally the eleventh hour, with scant debate or public announcement, is a sad commentary on Ontario politics as an election looms.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)