A free press is no luxury: Time for Canada to recognize press freedom as more than free expression

Freedom of the press is often lumped in with the right to speak freely, and it shouldn’t be.
Photo: Karen Horton
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We are only two months into Canada’s response to the COVID-19 pandemic and already a number of vital news outlets and publications have become casualties, forced by lost advertising revenue to shut down. COVID-19 has accelerated what appears to be a terminal decline of the once dominant and profitable business model behind most journalistic outlets.

This reality, however, is just one aspect of the crisis of journalism and the public sphere in Canada.

The Canadian news media is facing an existential threat that, unlike fake news or the rise of social media — or indeed the shuttering of entire publications — is flying under the radar. The conflation of freedom of expression and freedom of the press, while seemingly innocuous, is imperilling the very existence of our news media.

The press maintains critical functions that are not captured or protected under freedom of expression. In the current context, it is important to note that these functions are even more important during times of crisis.

The press freedom guarantee has not lived up to the expectations implicit in the Charter, partially because it has been subsumed under freedom of expression.

Just months ago, the Wet’suwet’en pipeline protests dominated headlines. Today, it is impossible to avoid news about the pandemic. Coverage of both of these stories, although plentiful, has been characterized by severe press freedom issues.

During the protests, the RCMP implemented media exclusion zones in Wet’suwet’en territory and elsewhere across Canada, which impeded fair reporting on one of the most consequential protest movements of our times. The COVID-19 pandemic has resulted in a deluge of potentially dangerous misinformation spreading through social media — and even directly from some world leaders.

Canada’s Charter of Rights and Freedoms promises to protect the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” However, the press freedom guarantee has not lived up to the expectations implicit in the Charter, partially because it has been subsumed under freedom of expression.

Press freedom is a human right

The Supreme Court itself has struggled with this issue and has fused the two rights together indiscriminately.

For example, in Canadian Broadcasting Corporation v New Brunswick, a case challenging the ability of the courts to exclude the media from the courtroom during parts of sentencing, the Supreme Court referred to press freedom as an “embodiment” of free expression. In R v National Post, a reporter fought to stop a warrant for documents obtained from a confidential source. In deciding against the reporter, the Supreme Court refused to extend special protection to newsgathering activity.

But freedom of the press and freedom of expression are distinct in important ways, and the differences are sufficiently stark to warrant developing and enforcing press freedom as a standalone human right that can even be, at times, in conflict with unfettered freedom of expression.

First, the press is a distinct political institution with a unique and critical role in a democratic society. It performs an oversight function, holding powerful government and corporate actors to account, and keeps the general public engaged and informed of relevant information. This watchdog function allows the press to help rein in those most likely to infringe human rights.

A strong and independent press creates a common set of facts that allows the public to hold informed opinions.

Second, the press performs an important editorial and filtering function by gathering, sorting, verifying, fact-checking, and contextualizing the mass amounts of information the public is subject to every day. It is this aspect of press freedom that is often at odds with unfettered free speech, particularly in an era of growing disinformation.

Third, a strong and independent press creates a common set of facts that allows the public to hold informed opinions and fosters a sense of community solidarity and tolerance. This function is particularly important in a time of political polarization, where a shrinking public sphere is fraying the social fabric.

Fourth and last, a free press can be a vehicle by which the public may express dissatisfaction and effect social change, allowing governments and other organizations to more effectively respond to pressing issues, facilitating a continuous democratic dialogue, and rendering our society more resilient. Given the unique and critical functions of freedom of the press, it must be given its own distinct protection in an era where even the notion of “truth” is under attack.

A free press is a necessity, not a luxury

There are optimistic signs that courts are taking this issue more seriously.

A concurring opinion of four justices in the 2018 Supreme Court case R v Vice Media argued that it is time for Canada to recognize and protect press freedom as distinct from freedom of expression.

The opinion notes that the “generous protections designed to facilitate the healthy functioning of our democracy” laid out in the Charter are “incomplete” if reduced to only individual expression and that a “strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury—there can be no democracy without it.”

Yet, even in this case, the Court’s ultimate decision authorized a production order for the record of a journalist’s communications with a confidential source, a man suspected of terrorism.

Conflating freedom of expression with freedom of the press ignores the unique social and political role of the press and hastens the devastating societal consequences that arise from erosion of freedom of the press, particularly when the interests of free speech and a responsible press come into conflict. Governments and the public alike must recognize the difference if we are to maintain and strengthen our fragile democracy.

Isaac Gazendam, Julie Lowenstein, James Flynn, and Sonia Patel are law students at the University of Toronto who spent the last year researching the impact of the Canadian legal landscape on freedom of expression with the International Human Rights Program under Vincent Wong.

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