The Law and the Press in Canada 9780773595514

Table of contents :
Cover
Title
Copyright
Table of Contents
Chapter I: Introduction
Chapter II: Contempt of Court
Chapter III: Free Press-Fair Trial
Chapter IV: The Revealing of Sources
Chapter V: Civil Defamation
Chapter VI: Criminal Libel
Chapter VII: Obscenity and Censorship
Chapter VIII: Copyright
Chapter IX: The Problem of Privacy
Chapter X: Government Secrecy and the Press
Postscript: The Changing Media Law
Endnotes
Bibliography
Appendix: Cases Cited in this Book
Index

Citation preview

The Law and The Press in Canada

The Law and The Press in Canada Wilfred H. Kesterton

The Carleton Library No. 100 Published by McClelland and Stewart Limited in association with the Institute of Canadian Studies, Carleton University

T he C arleto n L ib rary A series of Canadian reprints, new titles, and new collections of source material relating to Canada, issued under the editorial supervision of Carleton University, Ottawa.

DIRECTOR OF THE INSTITUTE

Davidson Dunton GENERAL EDITOR

Michael Gnarowski EXECUTIVE EDITOR

Jam es Marsh EDITORIAL BOARD

B. Carman Bickerton (History) Dennis Forcese (Sociology) David Knight ( Geography) J. George Neuspiel (Law) Thomas K. Rymes ( Economics) Derek G. Smith (Anthropology) Michael S. Whittington (Political Science)

© 1976 M cC lelland and Stew art L im ited ISBN 7710-9800-6 ALL RIGHTS RESERVED

The Canadian Publishers McClelland and Stewart Limited 25 Hollinger Road, Toronto Printed and bound in Canada

TABLE OF CONTENTS

Chapter I Introduction Chapter II Contempt of Court Chapter III Free Press-Fair Trial Chapter IV The Revealing of Sources Chapter V Civil Defamation Chapter VI Criminal Libel Chapter VII Obscenity and Censorship Chapter VIII Copyright Chapter IX The Problem of Privacy Chapter X Government Secrecy and the Press Postscript The Changing Media Law Endnotes Bibliography Appendix: Cases Cited in this Book Index

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8 18 27 41 66 75 114 141 150 158 159

184 189 225

Chapter I Introduction Under the libertarian press system, the system which prevails in Canada, the twin qualities desired for the media are freedom and responsibility. That truism envisages persons of the press doing their work freely, unhampered by governmental controls and regulatory bodies.' Ideally the only check imposed on media performance is the journalist’s sense of what is true, fair and socially desirable, operating under the due process of law. It is with that due process of law that this study is concerned. That concern is justified because, when the journalist's own good judgment fails and he behaves irresponsibly, the laws of libel, contempt of court and obscenity, as well as lesser known laws, will restrain him and protect society. Not that when law and press conflict, it is always the media which are in the wrong. Sometimes journalists will risk the penalties of the law in order to perform a duty to the public. But whether they be responsible or irresponsible there will be times when journalists will become intimately involved with the law. If that involvement be granted, it seems obvious that media prac­ titioners will need some knowledge of the law as it affects the press. Expertise in this area is comparable to the athlete's familiarity with the rules of the games he plays. If the journalist is to become truly professional, he will need to add at least a basic grounding in press law to his skill as an investigative reporter, to the deep and wide learning in the subject matter of his reports and to the other qualifications of his calling. Such legal "com petence” should not be confined to a few specialists on a newspaper, magazine or broadcasting station. This fact was pointed up for the writer a few years ago when a journalism student asked, “ W hy should we study the law of the p ress?" Said the student: “ I intend to become a newspaper reporter. My newspaper will have a lawyer to read its stories. He will tell us when we run the risk of committing libel, contempt of court and other legally dangerous of­ fences. Why should I spend time learning the law when the law will be somebody else's w orry?’’ Such undergraduate ingenuousness runs counter to the experience of a publisher friend of the writer. A few years ago the publisher's newspaper had been plunged into a potentially crippling libel suit.

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When the libel action had first threatened, the newspaper engaged legal counsel not only to fight that action, but to provide continuing legal advice to keep libel out of future stories. Such continuing legal service did not end the publisher's troubles, however. He soon learned that it was impractical to bring dozens of small, daily, routine news stories to the lawyer for scrutiny, even though several were not free of some libel or contem pt danger. A nd, in the larger news accounts, the editor-in-chief, made gun-shy by early sad experience, was calling for legal advice so often that he was running up lawyers' bills that were a serious financial burden to the newspaper. Because of this the publisher became convinced that his editors and reporters too must learn more press law. In that way the risk of further costly legal actions would be lessened, and the expense of retaining standby legal aid would be reduced. Traditionally the city editor and news editor are regarded as the first line of defence against libel and other legal dangers. Yet, because editors are at least one stage removed from the source of news, they cannot be aware of all the hazards of every story that comes across their desks. Sometimes it is only the alertness of the reporter on the spot that can-direct attention to legal risks. If the reporter is insensitive, inatten­ tive or ignorant, he may neglect to tell his editors of circumstances which editors should but cannot know about and which might involve the newspaper in litigation. The editors are in a situation akin to that of the generals who cannot direct the action of the platoon when it comes under fire in a local skirmish. It is with the foregoing idea in mind that this book will approach the problem of the law of the press as it relates to the Canadian journalist. It will emphasize rudimentary concepts, practices and prohibitions that the “ front-line” journalist should know about. Here a word of caution is called for. This study does not claim to replace the professional advice certain media situations imperatively call for. In the life of the newspaper, magazine or broadcasting station, there will undoubtedly be occasions when it would be utter folly for the editorial office ‘‘am ateur' ’ to play around with such legal matters as libel and contempt of court. The golden rule here is this: “ in times of legal danger, take professional ad v ice." At best, what this book, for its part, purports to do is to serve as a rough guide for the journalist-reader. Its aim is to give him a “ feel’' for the law of the press. What it may help him to realize is that there will be times when the journalist can go further, in safety, than he might otherwise suppose, and that, in other circumstances, he should in prudence stop and consider the consequences before taking a dangerous course of action. To this end some emphasis will be placed on general precepts. At the same time this book will not neglect a background consideration of

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media law. It is hoped that the study will also provide historical "co n tex t” for the ideas presented, and that it will also furnish guidance useful to media people whose place in the news conveying process is somewhat removed from the reporter's “ front-line" involvement.

S o m e H istory Historically the development and transformation of the law as it affects the press relate to the change from an authoritarian to a libertarian system of government in England and Canada. Under authoritarianism, the state, whether personified by the king or the ruling authorities, was sacrosanct. The law was designed to protect the state from the indi­ vidual instead of the other way about. Soon after the beginning of printing in England, the king exercised strict control over the press through the Court of Star Chamber. Beginning with the reign of Elizabeth all books were required to be licensed before publication. The London Stationers’ Company enjoyed a monopoly of printing. Censorship outlived the Star Chamber and did not expire until 1695. However, the liberty gained was extremely limited. In the m id-1700’s it was still considered contempt of court to publish, without permission of the judges, reports of legal proceedings. It was not until 1771 that Parliament finally gave up attempts to prevent the publication of reports of its debates. During the eighteenth century, the press faced innumerable prosecu­ tions for treasonable, seditious or libellous publications. Criminal law predominated over the civil law. In the realm of defamation, it was criminal law that was used against the journalist who offended the ruling establishment. It was an aphorism of criminal libel that the greater the truth the greater the libel. This meant that when the news­ man criticized the government, he could not plead truth in his own defence because truth was considered to aggravate the crime with which he was charged. Penalties for crimes were more severe than those for civil offences. Even when civil law was resorted to, reliance was heavily on common law rather than on statute law. Punishments for common law offences were also severe. Over the years changes have been made. "G eneral w arrants" authorizing officers of the government to search for and seize the author of a libel or his papers had been used to persecute the press, but in 1765 they were declared illegal. John Peter Zenger in the British colony of New York in 1735 and Joseph Howe in Nova Scotia in 1835 won their cases despite the fact that they were prosecuted rather than sued. But their victories did not alter the law. In 1792 Fox’s Libel Act empowered the jury to decide both whether matter complained of as libel had been

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TH E LAW A N D T H E PRESS IN CA NA D A

published and whether that matter was libellous, whereas formerly the jury had been entitled to decide only the fact of publication. Yet it was several years after this before the courts ceased to return many verdicts automatically supportive of the establishment. This outcome was partly due to the French Revolution and the ferment of ideas characteristic of the times. The fears and prejudices produced by the disturbing move­ ments and writings of the day were translated into verdicts against the press. Public opinion was as effective as the government and judges had been before in placing restraint on the journalist.' Prosecutions for blasphemous libel were frequently resorted to. It took the conflicts between the authorities and W illiam Cobbett, Jonathan W ooler, W il­ liam Hone, Sir Francis Burdett, and Richard Carlile to put the govern­ ment on the defensive and to make criminal libel an unpopular weapon in the struggle between the establishment and its critics. The Libel Act, 1843, (Lord C am pbell's Act), permitted a defendant in a libel prosecution to plead truth in justification of what he had published provided that he had written the matter complained of with­ out malice and for the public benefit. The plea of truth was already allowable as a defence in a legal suit, without the provisos of public benefit and absence of malice. The Newspaper Stamp duties, first instituted in 1712, had been a device for harassing the press, but they were finally abolished in 1855. The Newspaper Libel and Registration Act, 1881 . outlined provisions allowing courts of summary jurisdiction to deal with libel proceedings. If after the hearing of evidence the court of summary jurisdiction was of the opinion that the libel alleged was of a trivial nature, and that a penalty not exceeding fifty pounds would adequately punish the of­ fence, then it was empowered to give the option of electing a summary trial. In this case the severest penalty to be expected was the fifty pounds specified. In 1888, the Law of Libel Amendment Act set forth the condition that reports of law court sittings and of public meetings were to be made privileged. Such legislative acts encompassed changes that were later to be adopted in Canada, notably during the last part of the nineteenth century when much of the press law was placed on Canadian statute books. Together with common law derived chiefly from England, such borrowings from the basis of the law of the press on which contem po­ rary Canadian press law has been built.

Som e Concepts a n d D efinitions Before attention is directed to what that contemporary press law is, it

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seems essential to consider some of the basic concepts and definitions necessary to an understanding of that law. A certain vocabulary is needed before the rudiments of defamation, contempt of court, blas­ phemy and obscenity can be comprehended. The most immediate distinction that needs to be grasped is that between crimes and civil wrongs, and, by extension, between criminal and civil law. P. G. Osborn says: A crime may be described as an act, default or conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine or imprisonment in special proceedings, normally instituted by officers in the service of the Crown. Crimes are divided into treasons, felonies and m isde­ meanours, in that order of seriousness.4 A crime is not distinguishable from a civil wrong by reason o f any difference to be found in the nature of the wrongful act itself. The distinction resides in the legal consequences that may follow the act. A crime is a wrongful act capable of being followed by criminal proceed­ ings. A civil wrong is a wrongful act capable of being followed by civil proceedings.5 Glanville Williams clarifies the matter: Criminal and civil proceedings are (in the normal case) easily distinguishable; they are generally brought in different courts, the procedure is different, and the terminology is different. In criminal proceedings the terminology is as follows. You have a prosecutor prosecuting a defendant and the result of the prosecution if successful is a conviction, and the defendant is punished by a variety of punishments ranging from life imprisonment to a fine, or else is released on probation or discharged without punishment. Turning to civil proceedings, the terminology is that the p lain tiff s u e s (i.e. brings an action against) a defendant. The proceedings if successful result in judgm ent fo r the plaintiff, and the judgment may order the defendant to pay the plaintiff money, or to transfer property to him, or to do or not to do something (injunction), or to perform a contract (specific perform ance.)6 The defendant loser in a civil action is said to be “ liable"; the defen­ dant loser in a criminal proceeding is said to be “ g u ilty ." Criminal law deals with violations of the law considered to be so serious that they cause society to institute proceedings against the wrongdoer. Proceedings may be of two main kinds. They may be sum mary proceedings or indictments. Indictable offences are of the graver kind and are triable by judge and jury. Summary offences.

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sometimes called petty offences, are triable without a jury by courts of summary jurisdiction. A civil law term deserving definition is tort. It derives from the French word for a ‘'w rong” and the Latin word for “ crooked” or “ w inding.” Quoting Sir F. Pollock. Osborn describes a tort as “ [a]n act which causes harm to a determinate individual whether intention­ ally or not, being the breach of a duty arising out of a personal relation or contract, and which is either contrary to law, or an omission of a specific legal duty, or a violation of an absolute rig h t." 7 Just as it is essential to distinguish between criminal and civil law, it is necessary to distinguish between common law and other kinds of law. The meaning of the term “ common law " varies according to what it is contrasted with. Originally common law meant law common to the whole of England, and as such it is in contradistinction to the local law. In another sense common law is law which is not equity, a concept which need not detain us here. Common law may mean law which is not foreign law, not Roman law for example. More generally, common law means the law that is not the result of legislation. It is this meaning which, unless otherwise stated, this book will attach to the phrase. An important ingredient of common as non-statutue law is what is known as the "p reced en t." A precedent is a court decision which creates the law which will be applied in subsequent legal judgments. This differs from the “obiter dictum. " The obiter dictum is a chance remark, a saying by the way, which is not binding on future courts, although it may be later quoted with a certain measure of respect according to the reputation of the judge who made the dictum and to other factors. An obiter dictum may perhaps be better contrasted with the ratio decidendi of a case, which Glanville Williams defines as “ the part of the case that is said to possess a u th o rity ."8 Because of their heavy reliance on the common law inherited from England, all Canadian provinces except Quebec are known as “ com­ mon law " provinces. Quebec is known as a “ civil law " province. Theoretically civil law is w ritten, with ruies contained in a code enacted by a legislature; common law is unwritten, its source being judicial decisions. Q uebec's civil law derives from the Code Napoleon, said to be the prototype of all civil codes. Finally, two concepts which will be used later in this book require definition. One is “ preliminary inquiry." This term is used in connec­ tion with criminal proceedings. What it involves is the calling of evidence by the prosecution, before a defendant is brought before a jury, to establish a prim a facie case of guilt. Unless such a prim a facie case is made the defendant will not be committed to trial. A second concept that will be referred to later is “ examination for d iscovery." It

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refers to civil actions. It entails a delineation of the case which is to be tried. It involves a determination by means of questions put to the contending parties of the issues which the court will later be required to resolve, and production and examination by both parties to the action of the documents related to the case.

Chapter II Contempt of Court An area of the law which the journalist, through the nature of his calling, may become involved with is contempt of court. According to the Hon. J. C. M cRuer contempt may be criminal or civ il.1 He distin­ guishes between the two by saying that ‘ ‘contem pts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature, but a contem pt in disregarding the orders of a judge of a civil court is not criminal in its nature.” 2 It is with criminal contempt that this chapter will mainly concern itself. According to Sir John C. Fox, the phrase “ contempt of c o u rt" has been used in English law since the twelfth century.3The Canadian law derives from English common law. In Canada contempt is the only criminal offence not included in the Criminal Code or other federal statutues.4 This does not mean that the Code says nothing concerning some of the conditions related to contempt of court proceedings, as witness Sections 8 and 9 of the Criminal C ode, to be considered later. P. G. Osborn defines contempt of court as “ (1) Failure to comply with an order of a superior court, or an act of resistance or insult to the court, or the judges. (2) Conduct likely to prejudice the fair trial of an accused person; punishable by fine or commital to p rison."'C ontem pt may be classified as occurring “ in the face of the court" or “ not in the face of the co u rt." The journalist is rarely cited for contempt commit­ ted in the court (coram curia). He stands in greater danger of com m it­ ting contempt outside the court through publication or comment. Such contempt is known as “ constructive" contempt. W hat D. A. Schmeiser calls “ the classical definition of contempt and the reason for its existence” 6 was provided by Chancellor Hardwicke in 1742. The Lord Chancellor said contempt of court might consist of “ scandalizing the court itself," of “ abusing parties who are concerned in causes h e re ," or of "prejudicing mankind against persons before the cause is h e a rd ."7 Speaking about the situation in England, Thomas Dawson has said, “ In modern times the second sort of contempt [abusing parties who are concerned in causes here] appears to have been merged with the third [the prejudicing of mankind against persons before the cause is heard].

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at least as far as contempt by printed publications is concerned.’'8 Contempt of court through abusing parties to an action has virtually disappeared from Canada in modern times. L. A. Powe, Jr. says, “ Although Lord Hardwicke . . . announced three categories of con­ structive contempt, today there are only two: prejudicing a case by denial of a fair trial and scandalizing the court. " 9 Professor Atkey points out that there is only one reported Canadian case of the offence of abusing parties to an action, this occurring in 1934 when Charles E. Campbell, publisher, and J. S. Cowper, writer, for the Edmonton Bulletin were fined after publishing two articles prejudicial to the interest of a litigant in a civil action.10 The offence of scandalizing the court is not dormant in Canada. Two or three examples will illustrate its nature. (In order to avoid digres­ sions these and subsequent examples will be referred to only briefly in the main text. But a more detailed account of each case will be found in Appendix A. The Appendix describes cases in the order in which they appear in the text.) In 1954 Eric Nicol and the Vancouver Province were fined as a result of N icol’s column in which he used a specific case to criticize capital punishment. (See Case No. 1) In 1962 Philip G lanzer received the same kind of treatment as Nicol, after Glanzer had written several articles critical of York County Court judges. {See Case No. 2) Tom Murphy offended similarly in 1968 when he commented adversely on the Supreme Court of New Brunsw ick's handling of the Strax case. (See Case No. 3) It should not be inferred from these examples that the press is forbidden in all circumstances to criticize the courts. Schmeiser points out that “ When a case is over and the right of appeal has elapsed, however, the right then exists fairly to criticize the parties involved, the administration of justice, or even the actions of particular jud g es.’’" But this must be done with caution. The philosophical basis for this right of criticism was suggested by Lord Atkin: But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is com m it­ ted by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing im proper motives to those taking part in the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary m en .'2

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It is worth reemphasizing that wrong motives must not be attributed to those who administer justice. Professor Atkey says, “ Contempt convictions for scandalizing the court have generally been reluctantly imposed on the mass media. “ IJ He speaks of the situation as “ allowing reasonable criticism of the administration of justice where the public good has demanded it, but standing in readiness where acute circumstances require it.” 14 There is a body of opinion which feels that, even sparingly used, contempt citations for scandalizing the court are uncalled for. This was the contention of the defendant in the Murphy case referred to as Case 3 above. Reference was made to M acleod v. St. A ubyn. [1899] A. C. 549 (P .C .) where the Privy Council stated at page 561 that contempt convictions had become obsolete in England as courts were satisfied to leave to public opinion attacks or comment derogatory or scandalous to them. An opinion consonant with that expressed by the defence in the Murphy case has been developed by L. A. Powe, J r .15While inveighing against the conviction of Georgia Straight for defamatory libel, he said, ‘‘Stripped of technicalities scandalizing the court is a milder form of seditious libel.” 16 After making strictures about the narrowness of the Atkin dictum (supra) Powe says, “ The Canadian position is thus much less tolerant than the English on scandalizing the court but no reasons for this are articulated in the decisions.” 17 Some students of the law maintain that the third of Hardwicke's categories of contem pt— the prejudicing of mankind against persons before the cause is heard— is the only kind that should be punished. The result of such contempt can be the subversion of justice. By published criticisms or comments on contemporary litigation it may influence the minds of those responsible for deciding the facts or the law, jurors or judges, with the result that the litigants are prejudiced. J. J. Robinette subdivides matter which may result in a citation for this kind of contempt under the headings: “ any false statement of fact which would tend to influence the results of the trial; any comment, argument or suggestion calculated or tending to influence the result of a trial, which the juryman may read; and even perfectly true matters, not argum ent, because some of the facts that you are publishing may not be admissible in court, and the juryman or potential juryman in the community will be reading in the newspaper something that they are not by law entitled to hear or know .’’11 A 1951 Ottawa trial of a Mrs. Sullivan is illustrative of any false statement of fact which tends to influence the result of a trial. (S ee Case No. 4) Robinette’s second sub-category of constructive contem pt— any comment, argument or suggestion calculated or tending to influence

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the result of a trial— may be exemplified by the 1962 trial of members of the Sons of Freedom sect in Nelson, British C olum bia.19 A case in which the plaintiff alleged both sub-categories of constructive con­ tempt involved a 1915 editorial by John Lewis Lewis about the Meriden Britannia Co. suit against Mayor W alters of Hamilton. (See Case No. 5) As Robinette says, the publishing of perfectly true matters which are not admissible in court and which jurors and newspaper readers are not by law entitled to know may constitute contempt. Such a contempt occurred in 1966 when Rudy Platiel, Globe and M ail reporter, was covering the courts of Halton County Courthouse. (S ee Case No. 6) Despite the convictons returned in all but one o f the examples referred to, the journalist should be aware that the law of contempt is usually not allowed, through its narrow and literal interpretation, to override other important interests of society. How the application of the law was tempered by relevant circumstances was well illustrated in 1956 in a case involving the Hon. R. E. Sommers, former Minister of Lands and Forests for British Colum bia. (See Case No. 7) A facet of the law of contempt that may be of concern to the journalist has to do with procedure for appeal from contempt citations. Section 9( 1) of the Canadian Criminal Code deals with contempt in the fa ce o f the court, and Section 9(2) with contem pt not in the fa ce o f the court. Section 9(2) says, “ Where a court or judge summarily convicts a person for contempt of court not committed in the face of the court and punishment is imposed in respect thereof, that person may appeal from the conviction, or against the punishment im posed.” 20 Until a Code amendment in 1970, Section 9(1) allowed an appeal from the punish­ ment imposed only, but in that year an amendment brought treatment of appeals against summary convictions for contempt in the face o f the court into conformity with the treatment of appeals arising out of contempt not in the face o f the court. Now Section 1 of the Code reads, “ W here a court, judge, justice or magistrate summarily convicts a person for contempt of court committed in the face of the court and punishment is imposed in respect thereof, that person may appeal from the conviction, or against the punishment im posed.” 21 Section 9(3) says, “ An appeal under this section lies to the court o f appeal of the province in which the proceedings take place. . . . ' ,22 The reader must not infer from the foregoing discussion of summary convictions that the provisions of the Code have destroyed the pow er of common law to punish contempt. Section 8 of the Criminal Code says, “ but nothing in this section affects the power, jurisdiction, or authority that a court, judge, justice or magistrate had, im mediately before the coming into force of this Act, to impose punishment for contempt of

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court. " u A contempt case dealt with in the summary fashion referred to arose out of a strike at Tilco Plastics Company, Peterborough, in late 1965. (See Case No. 8) Now that the ambit and categories of contem pt have been delineated and a word has been said about appeals from contempt convictions, it seem s useful to look a little more closely at specific restrictions, the disregarding of which might constitute contempt. A question may be raised about the propriety of reporting, at the time an offence is committed and before anyone is charged with that of­ fence, eye witness and other details of the event. The thought is that matter which might be considered prejudicial to a fair trial if reported while that trial is taking place w ould, because of its effect on potential jurors who read newspaper accounts, be equally prejudicial if reported even before charges have been laid. It might be, for exam ple, that a quarrel occurs in a tavern and a man is shot and killed. Although the newspaper reporting the incident is properly circumspect in not associating the events described with the man being held by the police on a coroner’s warrant, the news account may present in minute detail and with quotations, eye-witness descriptions of the affair. Does this sort of reporting constitute contem pt? In this context Professor Atkey has said, the very task of determining the ‘higher rights of the courts' involves an exercise of judicial discretion not always consistent in its applica­ tion and depending in each case upon the particular facts and cir­ cumstances, the time of publication, the causes leading to publica­ tion, and the tenor of what is published. In short there are no clear and easily defined guidelines for the press to follow .24 J. J. Robinette indicated the uncertainty involved in this area of reporting when he was asked: What are the restrictions on interviewing eyewitnesses, victims, etc., in cases of major crim es, where those interviewed may be called to court as witnesses? Obviously the guilt of no specific person would be used or implied in stories resulting from inter­ view s.25 Robinette answered: The question is not directed to any contempt of court, but to just how far you are entitled to go out and talk to witnesses. W itnesses are members of the public. If they are willing to talk, you can talk to them. The courts have indicated though that they do not approve of

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newspapers conducting their own trial, that is, interviewing wit­ nesses and then reporting what the witnesses have said. That is a different matter from the point raised in the question, where som e­ body was worrying, apparently about whether one could seek people out and talk to them. Certainly you are entitled to go out and talk to them .24 This must not be taken as a sanction to publish, with immunity from contempt of court danger, matter which would be sub judice once proceedings were begun. The prohibition applies both to preliminary inquiries, to be discussed later in this chapter, and to comment on interlocutory proceedings in a civil action. After the trial proper is over and the judge has given his verdict, the newspaper may comment on the case even though an application for a new trial is pending, but when an order for a new trial has been definitely made, then comment should end. As Thomas Dawson says: In regard to pending appeals, as these are held before judges, lords-justices, or law-lords, and witnesses are rarely examined thereon, it would not be considered so likely that comment on the merits of the case would tend to prevent a fair hearing of the appeal. However, judges have more than once frankly acknowledged that they cannot say that they are never influenced in some degree by what they read in the Press, and it is therefore safer to refrain from public discussion of a pending appeal. Then, too, it is always possible that an appeal will result in an order for a new trial before a jury, and this is an additional reason why a newspaper should avoid such a discussion. The mere fact, however, that a losing party announces, through his counsel at the trial, that he intends to appeal, does not prevent comments and criticisms being made on the case. An appeal is not pending until formal written notice of appeal has been served.27 Nothing in the foregoing must be taken to mean that a reporter may, with impunity, impute a crime to anyone involved in a criminal event. It is no protection to say, “ Police believe Mr. X killed Mr. Y .” There is no magic in the word “ alleged." Indeed, to say, " It is alleged that Mr. X was seen near the spot where the shooting occurred . . ."su g g e sts to the reader that the writer knows he is skirting libel or contempt and hopes that the word “ alleged" will keep him out of trouble. If Mr. X is to be connected directly with the event at all, about the only fact (assuming it to be true) that it is safe to report is, “ Mr. X has been charged with . . . "

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P hotography and C ontem pt o f C ourt There seem to be two main ways in which press photography relates to contem pt of court. Pictures taken outside the court may be of a sub judice nature, as when the picture of an accused man may imply guilt, particularly in respect to aiding in the identification of suspects, before the person on trial has been found guilty. Or pictures taken within the courtroom may interfere with proceedings by disturbing the court or by making witnesses or defendants nervous or confused. Typical of the first sort of contem pt was that which resulted in the fining in 1961 of Thomson Newspapers for publishing sub judice pictures and articles by the Tim m ins Press and Kirkland Lake Northern N ew s in connection with a murder trial.28 In circumstances unconnected with law cases newspapers are enti­ tled to take pictures of person in public places. An incident which illustrates what newspapers may or may not do occurred in 1965 in Milton O ntario.29 In Canada, magistrates and judges have the say as to whether they will allow photographers to enter their courtrooms or its precincts to take pictures. The definition of precinct may be wide or narrow depend­ ing on the judge involved. In general agreement with the restrictions outlined in Canon 35 of the American Bar Association, they have not often done so. (Canon 35, adopted in 1937 and later revised to take account of developments in the electronic media, states that the taking of photographs in the courtroom and the broadcasting or televising of court proceedings are calculated to detract from the essential dignity of the proceedings, distract the witness in giving testimony, degrade the court and create misconceptions in the mind of the public and should not be permitted.) One exception to the characteristic ban has been provided on the rare occasions when courts have been moved to hospital bedsides to take evidence from witnesses unable lo g o to court. Similarly excepted are naturalization proceedings which are, however, quite different in nature from trials designed to determine guilt or innocence, liability or non-liability. Before his retirement in 1966, the late Hon. Mr. Justice J. H. Sissons had long permitted picture taking in his North West Territories courts, his reasoning being that courts in which Eskimo women breast-feed their babies are much more informal than courts in more southerly parts of Canada. Canadian members of the press have agitated to widen the privilege of newspapers to take pictures in courtrooms. They claim that improved equipment and ‘ ‘available light” techniques make it possible to take photographs without disturbing the court. However, the prevail­ ing practice has not been changed. A restriction comparable to the ban

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on photographs was illustrated in 1964 when the Ontario Court of Appeal dismissed an appeal by Radio Station c h um .30 O th er C ontem pt o f C ourt R estrictions Many, perhaps most, prohibitions for the journalist-related contempt of court are matters of common law. In addition there are several restric­ tions on the press set forth in Canadian statutes. Two of these concern the reporting of preliminary inquiries. In 1969 the Criminal Code was amended to allow the accused person to apply to have newspapers and broadcasts restrained from publishing evidence given at such inquiries. The presiding justice may then prohibit such publication until the accused has been discharged, or, if the accused is committed for trial or ordered to stand trial, until the trial is ended. If the accused is unrepresented by counsel, the justice is required, before evidence taking begins, to tell the accused of his right to apply for a restraining order. Failure to comply with the order might result in punishment on summary conviction.31 Even if the accused does not take advantage of this new section (Section 467) of the Code there is still an area of preliminary inquiries which the media may not report. Here no application for a prohibition need be made and the restriction is an automatic one. By a 1959 amendm ent, the Criminal Code (Section 470) prohibits media refer­ ences to confessions made at preliminary hearings. The prohibition applies until the accused is discharged or until the subsequent trial is o ver.32 Two members of the media that ran afoul of this law were the W innipeg Tribune in 196233 and radio station CJOB in 1966. u One of the reasons for putting a curb on the reporting of preliminary hearings is that, inasmuch as such hearings are designed to determine w hether the prosecution has gathered enough prim a facie evidence to justify a trial, it is only the prosecution which is required to present a case and the defence is almost never presented. This means that the full reporting of a preliminary inquiry is almost certain to be one-sided. Such reporting is likely, therefore, to be unfair to the defendant. It may later prejudice his trial. The prohibition against reporting of evidence, particularly of confessions, is thus in keeping with a wish to keep such prejudice to a minimum. No restraints, comparable to those imposed in connection with preliminary inquiries are imposed, under Canadian law, on the reportage of coroners’ inquests. But because there are similar reasons for having restraints similar to those on preliminary inquiries, there is some current agitation to have the reporting of such inquests similarly curtailed. Section 162 (l)(a) of the Criminal Code says “ a proprietor, editor.

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T H E LA W AND TH E PRESS IN CA N A D A

master printer or publisher commits an offence who prints or publishes in relation to any judicial proceedings any indecent m edical, surgical or physiological details, being matter or details that, if published, are calculated to injure public m o ra ls."” This section of the Code does not apply to bona fide law reports or bona fid e medical journals.36 The comment just made about Section 162 (l)(a ) of the Criminal Code applies equally to Section 162 (l)(b ). This part of the Code says that: A proprietor, editor, master printer or publisher commits an of­ fence who prints or publishes in relation to any judicial proceedings for dissolution of marriage, judicial separation or restitution of conjugal rights any particulars other than (I) the names, addresses and occupations of the parties and wit­ nesses, (II) a concise statement of the charges, defences and countercharges in support of which evidence has been given, (III) submissions on a point of law arising in the course of proceed­ ings, and the decision of the court in connection therewith, and (IV) the summing up of the judge, the finding of the jury and the judgment of the court and the observations that are made by the judge in giving judgm ent.37 The Criminal Code states that the trial of juveniles is to be without publicity. According to Section 441, "W here an accused is or appears to be under the age of sixteen years, his trial shall take place without publicity, whether he is charged alone or jointly with another person.’*M Before the Criminal Code amendment which forbids publication of evidence given at preliminary hearings, the intention of Section 441 was sometimes thwarted by a provision of the Juvenile Delinquents Act. Section 9(1) says that Where the act complained of is, under the provisions of the Criminal Code or otherwise, an indictable offence, and the accused child is apparently or actually over the age of fourteen years, the Court may, in its discretion, order the child to be proceeded against by indict­ ment in the ordinary courts in accordance with the Criminal Code in that behalf; but such course shall in no case be followed unless the Court is of the opinion that the good of the child and the interest of the community demand it.3’ In 1970 an attempt was made to repeal the Juvenile Delinquents Act and

C O N T EM PT O F C O U R T

17

replace it with the Young Offenders Act, but the new bill was allowed to die on the order paper, and as this chapter was being written the old legislation was in force. Before the 1969 Criminal Code Amendment, which was discussed earlier in this chapter, placed restrictions on the reporting of evidence at preliminary inquiries, a juvenile whose case was transferred to the ordinary criminal courts might find that he faced a preliminary inquiry the factual details of which could be legitimately reported by the press. He might then encounter the prejudicial treat­ ment inherent in the one-sided reporting to which preliminary inquiries lend them selves.40 Section 442 of the Criminal Code deals with the exclusion of the public from courts in certain cases. The section states: The trial of an accused that is a corporation or who is or appears to be sixteen years of age or more shall be held in open court, but where the court, judge, justice or magistrate, as the case may be, is of opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any m embers of the public from the court room, he may so order.41 Because the concept of the ” open court” is a highly regarded tradition of Canadian justice this section is rarely invoked. In addition to the restrictions on the press so far discussed, there are numerous prohibitions related to civil or administrative proceedings. These exclusions of the press are generally governed by the statute law of the province where the proceedings are being conducted. In general the law is most explicit in debarring the press in proceedings dealing with mental incompetents, deserted w ives' and children's main­ tenance, and other matters of the family court.

Chapter III Free Press—Fair Trial A major purpose, perhaps the major purpose, of the law of contempt of court is to ensure that trials shall be fair. To protect the rights of litigants, the contempt law imposes prohibitions which, among other things, restrict the perfect freedom of the press. In a less than utopian society, trials cannot be absolutely fair if reporting of those trials is to be absolutely free. Free press and fair trial cannot coexist as absolutes. In practical terms there must be compromise between press freedom and trial fairness. In Canada, as in the United Kingdom, the considera­ tions of a fair trial prevail over considerations of a free press. That is not to say that, in these countries, the press is in large measure unfree. What is implied is simply that the press is restrained in most cases when unfairness in a trial seems likely to result. In the United States, with its First Amendment, the scales are weighted much more in favor of a free press. The principle which governs the reporting of trials is known as the “ clear and present danger" test. It derives from the Schenck case, which said, “ The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to p rev en t."' D. A. Schmeiser2 cites three American contempt cases in which verdicts of guilty were reversed by the Supreme Court of the United States. He quotes the third decision, Craig v. Harney3 as restating the “ clear and present danger" test in even stronger language: “ The vehemence of the language used is not alone the measure of the power to publish for contempt. The fires which it kindles must consti­ tute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately im peril.” 4 Schm eiser’s opinion is that “ In view of this conclusion it is difficult to conceive of any publication which might be classed as contem ptuous.” 5 For debaters of the "free press— fair trial" issue the American situation provides the widest scope for heated controversy. The United States furnishes far "w o rse ” examples of “ trial by new spaper” than does Canada. For this reason, despite the fact that this book deals primarily with the Canadian experience, it is probably instructive to devote a little attention to some of the American instances which thrust

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FREE P.RESS— FAIR TR IA L

19

them selves on public notice. T hese and others have had the effect of placing proponents of the extrem e free press view point on the defensive in the debate. M any m em bers o f the A m erican bar have dem anded severe lim ita­ tions on press coverage of crim e ever since the sideshow antics o f the trial in 1935 o f B runo R ichard H auptm ann, w ho w as charged w ith the kidnapping of the L indbergh baby. But it w as new s reporting o f the John F. K ennedy assassination and its afterm ath that brought interest in “ trial by n e w sp a p er" to its highest pitch. In pafjicular, the presum ed effect of m edia publicity on a trial o f L ee H arvey O sw ald had he survived to be tried gave special im petus to the “ free press— fair tria l” debate. O f the affair A lfred F riendly and R onald L'. G o ld fa rb have said: The case against the press, m ade in various form s by the A m erican B ar A ssociation, local bar groups, law school faculties, and others, as well as the W arren C om m ission, cam e in its m ost concise form in a declaration by the A m erican C ivil L iberties U nion: “ It isg e n era lly conceded that as a result of the conduct o f the D allas police and com m unications m edia when O sw ald w as taken into custody, he could not have had a fair trial anyw here in the U nited S ta te s” .6 T he trial of Jack R uby, Lee H arvey O sw ald ’s killer, received coverage m arked by a sensationalism w hich .also earned strictures from m edia critics. A nother notable case w as that o f Dr. Sam Sheppard o f C leveland, O hio. He cam e to national prom inence after July 4, 1954, w hen his w ife, M arilyn, w as bludgeoned to death in their suburban hom e. Sheppard, a w ell-to-do osteopath, w as convicted o f m urder in the second degree and sentenced to life im prisonm ent. H e m ade m any appeals to the O hio courts to set him free on the grounds that reportage o f his arrest and trial had prejudiced the jurors against him . A fter the O hio Suprem e C ourt rejected his appeal, he turned to the federal courts. T en y ears after his conviction U. S. Judge Carl A . W einm an freed him . But in M ay 1965 the U . S . Court o f A ppeals in C incinnati reversed the W einm an decision. S heppard then appealed to the U nited States Su­ prem e C ourt. In 1966 the C ourt gave judgm ent in favor of S h ep p ard .7 T he C ourt ordered Sheppard freed, and ruled that the state could try him again after a reasonable tim e. At his second trial he w as acquitted on N ovem ber 16, 1966. He enjoyed his freedom for less than four years. He died in April 1970. In its 1966 decision the U nited States Suprem e C ourt review ed the circum stances surrounding S h eppard’s first trial. Singled out for stern condem nation w as the behavior of the m edia. N ew spapers had carried stories under such headlines as “ G etting A w ay W ith M u rd e r,” “ G et

20

T H E LA W A ND T H E PRESS IN CANA D A

T hat K ille r," " W h y D o n 't Police Q uiz T op S u s p e c t? " " W h y Isn ’t Sam Sheppard In J a il? " " Q u it Stalling— Bring H im I n ," " B u t W ho W ill Speak For M a rily n ? " and " S a m C alled A ‘Jek y ll-H y d e' By M arilyn, C ousin T o T e s tif y ." T he press gave Judge Edw ard B iythin, w ho w as up for re-election, pointed advice on how to conduct the trial. It condem ned S heppard for refusing to take lie detector or truth serum tests, even though m any authorities have no faith in the accuracy of either test. It censured the accused m an for failing to subm it to ques­ tions except w hen his fam ily and his law yer agreed he m ight, forgetting that the function o f the law yer is to protect his client, to see that he is guaranteed due process of law. T he C o ro n e r's inquest w hich preceded the trial w as conducted in a circus atm osphere, to w hich the press contributed. In the trial proper, a long table w as placed for the press before the bar of the c o u rt, so that w itnesses and accused w ere exposed to the close, unnerving scrutiny of reporters. T he goings and com ings of the p ress, and the flashing of flashbulbs, the grinding o f television cam eras and the questioning by reporters just outside the courtroom caused the presiding judge to lose effective control over the trial he w as conducting. In a radio broadcast B ob C onsidine c om pared S heppard, irrele­ vantly, w ith A lger H iss; Judge B iythin took no steps to find out w hether any o f the jurors had heard the broadcast. T he trial judge also o v er­ looked evidence that tw o jurors had heard a broadcast by W alter W inchell in w hich W inchell said that C arole B easley, under arrest in N ew Y ork for robbery, had told him that, as S h eppard’s m istress, she had borne him a child. Both new spapers and broadcasters were guilty of publishing m aterial during the trial w hich w as never heard from the w itness stand. Such m atter included charges that S heppard had purposely hindered the m urder investigation and m ust be guilty because he had hired a prom i­ nent crim inal law yer; that he w as a perjurer; that before her death , his w ife had called him a " J e k y ll-H y d e " ; and that he w as a “ bare-faced lia r” because o f his testim ony as to police treatm ent. D uring the trial the new spapers drew inferences w hich the evidence that w as given did not w arrant. In particular they interpreted evidence, unjustifiably, in a w ay which w ould incrim inate S heppard. It is little w onder that Judge W einm an, w ho term ed the trial a “ m ockery o f ju stic e ,” said, “ If ever there w as a trial by new spaper, this w as the perfect e x a m p le .” 8 It is significant that, despite the flagrant abuse o f its com m unication role o f w hich the A m erican press w as guilty, the courts w hich heard the Sheppard case on appeal did not regard the m edia as being prim arily responsible for a fair trial for Dr. S heppard. As G illm or and Barron point out:

FREE PRESS— FAIR TR IA L

21

In their argum ents before the S uprem e Court on February 28, 1966, S h e p p a rd 's attorney, F. L ee B ailey, and O h io 's A ttorneyG eneral, W illiam B. Saxbe, differed in their view s o f the effects of press coverage on the trial, but they did agree that the responsibility for preventing “ trial by n e w sp a p e r" from contam inating juries should be borne by judges, p rosecutors and policem en and not by the p re ss.1' N othing could point up m ore clearly C anadian-A m erican differences in attitude tow ards the “ free press— fair tria l" issue. It is im portant that the C anadian journalist be aw are of the d iffer­ ences. T here is a built-in situation w hich could blur the distinction in his m ind. C anadian new spapers, usually via w ire copy, custom arily carry accounts o f the m ore notew orthy A m erican crim inal cases. T hey give those cases the sort of treatm ent w hich is perfectly legal under the A m erican law . T hey operate under the m ore lenient libel and contem pt law s w hich preveail in the U nited States. And it is quite safe to do so. But if, through unthinking habit developed in the coverage o f interna­ tional crim e new s, C anadian new spapers applied the A m erican ground rules to C anadian, particularly lo ca l C anadian stories, those papers could get into serious legal trouble. T he m oral for the C anadian jo urnal­ ist is to rem em ber that C anadian law applies to C anadian stories of C anadian events and to act accordingly. T he Sheppard decision, discussed above, w as follow ed shortly by the report o f the A m erican Bar A sso c ia tio n s's A dvisory C om m ittee on Fair Trial and Free P ress, better know n as the R eardon R e p o rt.10 It had been given im petus by the recom m endation of the W arren C om m ission that efforts be m ade “ to bring about a proper balance betw een the right of the public to be inform ed and the right of the individual to a fair and im partial tria l.” T he R eardon R eport led to the approval o f standards relating to Fair T rial and Free Press by the A m erican Bar A ssociation House o f D elegates at its m id-w inter m eeting in February 1968. T he prim ary em phasis o f those standards w as on the restrictions im posed on officers o f the court to restrain them from com m unicating to the press m atter w hich w ould im pair a fair trial. It w as only in Part IV, R ecom ­ m endations Relating T o T he E xercise O f The C ontem pt Pow er, that a large m easure of responsibility for a fair trial w as assigned to the press. T hat section read: 4.1 L im ited use o f the contem pt pow er. It is recom m ended that the contem pt pow er should be used only with considerable caution but should be exercised under the follow ing circum stances:

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(a) A gainst a person w ho, know ing that a crim inal trial by jury is in progress or that a jury is being selected for such a trial: (i) dissem inates by any m eans of public com m unication an ex traju d i­ cial statem ent relating to the defendant o r to the issues in the case that goes beyond the public record of the court in the case, that is w ilfully designed by that person to affect the outcom e o f the trial, and that seriously threatens to have such an effect; or (ii) m akes such a statem ent intending that it be dissem inated by any m eans of public com m unication. (b) A gainst a person who know ingly violates a valid judicial order not to d issem inate, until com pletion o f the trial or disposition w ith ­ out trial, specified inform ation referred to in the course o f judicial hearing closed pursuant to sections 3.1 or 3.5 (d ) of these recom m en­ d a tio n s." It is interesting to note, regarding the R eardon R eport, as the London E conom ist does, that: T he c o m m itte e's m ajor proposal, how ever, w as the very one that the press had piously urged: a set o f rules for co u rts, the police and Bar A ssociations to prevent agents of the law from m aking know n before a trial anything except the identity o f the accused (not includ­ ing his prior crim inal record), the charge, the circum stances o f the crim e and arrest and the nature o f the evidence seized. P redictably, .the reaction o f the press w as a shrill scream of protest, the com m on denom inator of w hich w as that the Reardon report w as an invitation to the secret adm inistration o f ju stic e .12 T he fairness o f a trial is not determ ined exclusively by the m anner in w hich the m edia report that trial. In-both C anada and the U nited States there are legal safeguards designed to protect the interests of litigants. W ith reference to the A m erican situation, H ow ard Felsher and M ichael R osen list these as 1) change o f venue, 2) change of venire, 3) con­ tinuance, 4 ) severance, 5) voir d ire e xam ination, 6) challenges, 7) isolation of the ju ry ; and 8) instructions to the ju ry .1' T he only one of these w hich does not seem to apply to C anada is the change o f venire. But in the case o f C anada the contem pt law m ay be added as a distinctive safeguard. A change o f venue involves a shifting of the trial from the locality w here the crim e w as com m itted. It is usually asked for on the grounds that local opinion has becom e so inflam ed o v er the issues of the trial that the defendant is unlikely to receive fair treatm ent at the hands of the court. For this reason it is usually the defence w hich asks for the trial to be m oved, although the m otion for a venue change m ay com e from the

FREE PRESS— FAIR T R IA L

23

p rosecution. T he H onorable J . C. M cR uer points to cost as a factor discouraging the transfer o f a trial from one county to a n o th e r.14 It is likely, how ever, that a change of venue is a rem edy lim ited in effective­ ness by the fact that it is only the m inor crim es w hich do not get bruited about by the om nipresent m edia from com m unity to com m unity. C om ­ m unities are no longer so isolated that a change o f trial venue is apt to p rovide the rem edy sought. A safeguard o f a fair trial w hich is available in six of the 50 A m erican sta te s15 is a change o f venire. T his is the converse o f a change o f venue in the sense that, instead o f changing the location o f the trial, jurors are brought in from a different com m unity. T he presum ption is that strange jurors from a strange city will be free o f the prejudices w hich pre-trial publicity has stirred up in the c om m unity w here the crim e is co m m it­ ted. For the sam e reasons that a change o f venue is likely to be ineffective, it is questionable w hether a change o f venire can acco m ­ plish w hat it purports to do. C ontinuance is another device designed to help to m ake a trial m ore fair. It involves postponing a trial until the em otions aroused by the crim e for w hich the accused is on trial can subside. A gain it is a rem edy of lim ited value in the case of m ajor crim es, the d etails o f w hich have been im printed on the read ers’ m inds by excessive n ew spaper, radio and television coverage. Interest in the case m ight die dow n during the postponem ent, but once the case again cam e before the co u rts, interest is likely to be revived again. Severance is the term which refers to the separation o f the trials of tw o o r m ore defendants in a joint crim e. The rationale for using the device is that it shields one co-defendant from the effects o f the adverse publicity suffered by another co-defendant. T he safeguard is co n sid ­ ered valuable for the protection it giv es to the defendant who did not get the unfavorable publicity, but it does little for the defendant who w as unfavorably reported in the first place. As F e lsh e ra n d R osen point out, “ O bviously the m otion o f severance does not help the m an who really needs the h e lp .’*16 V o ir d ire exam ination before the trial begins m ay be used by a judge to d eterm ine w hether prospective jurors have preconceptions o r p rej­ udices about the c ase. Such prejudicial opinions m ay cause the judge to d isqualify the potential jurors w ho hold them . O r the judge m ay ask candidates for jury service w hether they believe they can set aside such p rejudgm ents and adjudicate the case on the basis o f the facts brought out in the trial alone. A ssured that they can, the judge m ay accept such persons as jurym en. It is to be noted that the process is one based on faith. Justice M cR uer is o f the opinion that this faith is justified. H e sees the safeguard as being tied in w ith the strength o f the jury system . His

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rem arks, while perhaps noi applicable as to detail to all o f C an ad a, are applicable in spirit and tenor to the w hole nation, and not just to O ntario alone: In this Province there are tw elve jurors in all crim inal cases tried by jury. T hey are selected by lot from a panel consisting o f about sixty o r m ore jurors, w hich has likew ise been chosen by lot. In a case o f great im portance and public interest the panel is usually lar­ ger . . . W hen jurors are selected they are required to take an oath “ to give a true verdict according to the e v id e n c e ." Judges in charging juries invariably caution them to put out o f their m inds anything they have learned about the case, except that w hich is revealed in the evidence. N othing has been brought to the attention of this C om m ission to suggest that jurors do not take their oaths seriously. If jurors cannot be depended upon to adhere to their oaths as jurym en, the w hole jury system loses its fundam ental strength as a protection of the rights of the individual. T he requirem ent that the verdict o f a jury m ust be unanim ous constitutes a very real safeguard against bias o r prejudice. T here may be som e risk that one or tw o jurors m ay allow their preconceived notions to d eflect them from the requirem ent of their oaths as jurym en, but that tw elve jurors will be derelict to the sanctity of their oaths is very re m o te .17 A ssociated with the m atter o f selecting jurym en is the right of counsel to challenge prospective jurors. A ttorneys may question jury panel m em bers to determ ine w hether they have a bias in the case. Q uestioning m ay delve into the background, w ork, education o r any­ thing else w hich m ay adversely affect the trying o f the case. If counsel is dissatisfied w ith the answ ers given he m ay challenge the w ould-be jurors and thereby disqualify them . Such a challenge is said to be a challenge “ for c a u s e .” In addition, counsel is allow ed a certain num ber o f challenges for w hich no reason need be given. Such a challenge is know n as a “ perem p to ry ” challenge. Justice M cR uer thus describes the procedure, set forth in the C rim i­ nal Code o f C anada, Section 562 and 567(b), by w hich challenges are m ade: . . . If an offence is punishable w ith death, the accused has tw enty perem ptory challenges, that is, w ithout assigning a reason ; w here the offence is not punishable w ith death but the punishm ent m ay be im prisonm ent for m ore than five years, the accused has tw elve

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25

perem ptory challenges; in other cases, the accused has four p erem p ­ tory challenges. In addition, the accused is entitled to challenge any num ber of jurors on the ground that the “ ju ro r is not indifferent betw een the Q ueen and the a c c u s e d ." T his is a right that is frequently exercised in our courts. In such cases, the prospective ju ro r m ay be, and usually is, exam ined under oath as to his previous know ledge o f the c ase, w hat he has read about it, and w hether he feels that he can give a true verdict based on the evidence. T w o triers are selected for the purpose o f determ ining w hether the ju ro r “ stands in d iffe re n t." T his p rocedure is a very real sa feg u a rd .18 Isolation of the jury is a m easure taken to shield a jury from m edia accounts o f a trial w hile that trial is in progress. T he safeguard is som etim es called sequestration. It involves locking up the jurors and denying them access to radio, television and new spaper accounts of the tria l. T hose w ho deny the effectiveness of the device claim that pre-trial publicity will have done a dam age to the im partiality o f the jury w hich cannot be repaired by the late quarantine w hich isolating the jury im poses. T he ju d g e 's instructions to the jury include directions as to w hat are m atters o f law and m atters o f fact. T hey include orders to the jury to render the verdict only on the basis o f the evidence presented in the c o u rtroom , and not to read o r listen to stories concerning the case. A gain there is a fairly w ide difference o f opinion regarding the e ffi­ ciency of this safeguard. T h is brings us to C anadian contem pt law as safeguard o f a fair trial. Perhaps this device can best be ch aracterized by the w ords o f Justice M cR uer, particularly since he couples his description w ith a recogni­ tion o f the role of the m edia in helping to ensure that justice shall be open and thereby fair: T he law of contem pt of court gives the a c c u se d . . . a considerable protection against unfair reporting. Judges have taken a stern view of lurid, inaccurate or inflam m atory reporting, and have suppressed com m ent on evidence until a final verdict is g iven. W here there has been unfairness, exem plary punishm ent has follow ed. T he respon­ sible press has supported the courts in their efforts to m ake the law of contem pt o f court function as an effective protection o f the right of the individual to a fair trial. W e have com e to the conclusion that the fundam ental principle that the courts o f justice should be open to the public not only in nam e, but in reality is essential to a free society. T o preserve the

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openness o f the courts, the new s m edia m ust be perm itted to carry to the public w hat goes on in the courts. Justice adm inistered under public and fair scrutiny will be better ju stice, w hether it is at a p relim inary inquiry o r at a trial, and confidence in its adm inistration will be enhanced if justice in all its stages is adm inisterd openly, subject to the exceptions now recognized by la w .”

Chapter IV The Revealing of Sources An elem ent of press activity w hich m ay give rise to a contem pt of court situation involves the question of w hether reporters should be m ade to reveal the source of new s stories w hich they w rite or broadcast. T he pro and con argum ents about confidentiality are as persistent as the free press-fair trial debate. Journalists o f both the libertarian and social responsibility schools w ould agree that in the triangular relationship involving press, govern­ m ent, and p eople, it m ust be the interests of the people w hich are param ount. O bviously there will be situations in w hich the public will be best served by allow ing the journalist to keep his sources c o nfiden­ tial. O therw ise those sources will quickly dry up, and the journalist will be unable to pass along inform ation essential to the read er’s o r listen­ e r 's o r v iew er's participation in the dem ocratic process, and to his playing o f a m eaningful role in the society of w hich he is a part. O n the other hand there m ay be occasions w hen it will injure a segm ent of society or individual m em bers of that society if the journalist is allow ed to keep silent about his inform ants. S ituations in w hich a c o m m u n ity 's safety is threatened o r in w hich property o r hum an life is in d anger o r a m an is suing for libel are cases in point. C anadian law tries to take account o f such countervailing interests. A lthough in an overw helm ing m ajority of cases the journalist is not called upon to disclose the origin o f the reports he w rites or broadcasts, there are three circum stances in w hich his sources m ay com e under investigation. T hese are: 1) w here he appears to have inform ation pertinent to a public inquiry by a C om m ission or Board acting under statutory o r special pow ers conferred by parliam ent, o r the legislature o f a province, or by a com m ittee of parliam ent or a legislature; 2) w here he publishes inform ation that a crim e has been com m itted w hich appears pertinent to the determ ination of the guilt of particular persons; and 3) w here he is accused o f libel in crim inal o r civil proceedings as a result o f publication o f inform ation, and bases his defence on an assertion o f honest belief in the truth of the m atter p u b lish e d .1 In the nam ed circum stances the public interest in disclosure is considered to outw eigh the jo u rn alist’s professional interest in confi­ d entiality. In the second instance the rationale for disclosure is that w hen life o r property is endangered, anyone m ay reasonably be 27

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expected to help lessen that danger by providing inform ation w hich will enable authorities to counteract that danger. T he reason for requiring a journalist to nam e sources w hen he is a defendant in a libel action is rather different but equally persuasive. A fictional exam ple w ill illustrate. A journalist m ay w rite a colum n in w hich he says that the treasurer o f the A nytow n A gricultural Society has used the c lu b 's funds to bet on the horses. T he journalist says that for several m onths the treasurer has lost m oney through his gam bling. He also says that during that tim e the S o c ie ty 's treasury could not have stood up to an a u d ito r’s inspection. L ater, says the colum nist, the treasurer started to win so that he w as able to replace the m oney before any shortage could be discovered. F ollow ing this report the treasurer files a libel suit against the journalist. T he journalist defends him self by saying his story is true. W hat proof do you have that it is true? asks the treasurer. I know it to be true b ecause I got the story from absolutely unim peachable sources, says the journalist. W hat are those sources? counters the treasurer. I cannot tell y ou, says the jo urnalist, because I prom ised confidentiality to m y sources. T o take the jo u rn a list's w ord that his criticism is true w ithout requir­ ing him to docum ent that criticism by nam ing nam es w ould obviously be unfair. It w ould clearly violate the principle in law that every m an is entitled to know the nam e of his accuser. T he exam ple cited points up a curiously anom alous situation in libel suits. On the face o f it, w hen the treasurer filed suit he becam e the p lain tiff and the journalist becam e the defendant. T he journalist w as sued for libel. T heoretically he should be assum ed to be non-liable (c .f. innocent) until proved liable (c .f. g u ilty .) T h erefo re, again theoreti­ cally, the burden o f proof should be laid on the plaintiff, that is, the treasurer. B ut the m atter is m ore com plex than that. W hen the journalist used his colum n to charge the treasurer w ith financial m isbehavior, the journalist becam e, in a non-legal but perhaps m ore serious sen se, the com plainant, the accuser. T he treasurer becam e, " i n the court of public o p in io n ," the defendant. A s such he too is entitled to be considered innocent until proved guilty. B ecause, in relation to the grave accu sa­ tions the colum nist has m ade (if not in relation to the actual libel suit that has been launched), the treasurer is the " d e fe n d a n t" and the journalist the " p la in tiff ," then the onus o f proof should be on the jo urnalist. T he law takes account of this inherent dilem m a by placing the burden o f proof on the plaintiff (treasurer) in establishing a prim a fa c ie case of libel, but, once the trial proper begins, placing the burden o f proof on the d efenant journalist. U nder such circum stances it seem s only just that the advantage o f disclosure of sources should be aw arded the possibly libelled plaintiff rather than g iving the advantage of confi­ dentiality to the defendant journalist.

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If a journalist refuses to nam e sources in the situation just described, the usual penalty is that the court will disregard the defence he o ffers. In the first tw o instances previously listed (i.e. public inquiry and alleging of a crim e) the punishm ent m ay be a fine o r jail sentence o r both. T heoretically an unco-operative journalist m ight be im prisoned until he decided to disclose his sources, thereby purging the contem pt. T he privilege of confidentiality in C anada derives from com m on law observance o f W ig m o re's four canons. Such privilege is granted only if all o f fo u r conditions are satisfied: 1) the com m unication originates in a c onfidence that the source will not be disclosed; 2) the elem ent of confidentiality is essential to the relationship betw een the tw o parties; 3) the relationship is one w hich, in the view of the com m unity, ought to be fostered; 4) the injury done by disclosure w ould be greater than the benefit derived from correct disposal o f the litig atio n .2 A pparently the journalist-interview er relationship is not considered to fulfill the W igm ore criteria, at least in the three circum stances cited. C onfidentiality is respected in all ten provinces o f C anada only in the solicitor-client and husband-w ife relationship. In Q uebec and N ew ­ foundland, the priest-penitent relationship is also sim ilarly protected, but as D .A . S c l i n ^ s e ^ is at pains to point out, in N ew foundland the priest-penitent relationship is am biguous and m ight be interpreted as m eaning the confession as heard by a Rom an C atholic priest. O nly in Q uebec is the doctor-patient relationship a privileged one. N or is the privilege of confidentiality w hich is extended in the solicitor-client, doctor-patient, priest-penitent, husband-w ife relatio n ­ ship situation o f a kind envisaged by journalists claim ing a like treat­ m ent. A s G illm o r and Barron point out: T he difference is that in the above cases [ viz solicitor-client etc . ] both parties are generally know n, their com m unication is confidential and the privilege belongs to the client or patient w ho alone can waive it. Shield law s are for the benefit o f the new sm an alone; and he m ay assert privilege in connection with any inform ation furnished him , w hether confidential o r n o t.J In the n e w sm an 's c ase, the inform ant know s and intends that the new s will be published, but intends that his identity shall be kept secret. In the other cases, the reverse is tru e.5 T his difference gives further support to a treatm ent o f a journalist-inform ant situation that is differ­ ent from that accorded in a so licitor-client, d o ctor-patient, husbandw ife and penitent-priest situation. T he C anadian practice o f requiring disclosure o f sources conform s with that o f a m ajority o f the A m erican states rather than with the

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sixteen states w hich have statutes intended to guarantee confidentiality. T he latter states are A labam a, A laska, A rizona, A rkansas, C alifornia, Indiana, K entucky, L ouisiana, M aryland, M ichigan, M ontana, New Jersey, New M exico, O hio, Pennsylvania'1and N ew Y o rk .7 O nly the A laska, A rkansas, Louisiana and N ew M exico statutes qualify the privilege g ra n te d ,8 but that the protection offered in the other states with so-called shield law s is not as com plete as it seem s is indicated by at least som e of the exam ples w hich follow . In the first o f these the test occurred before the state of N ew Y ork enacted a law to protect the journalist. In 1957 Judy G arland filed a $ 1 ,3 9 3 ,3 3 3 breach o f contract suit against the C olum bia B roadcasting System . R eporter M arie T orre, w riting in the New Y ork H erald-T ribune, said that a CBS official had told her about a dispute betw een M iss G arland and the broadcasting com pany. In the exam ination for discovery before the breach o f c o n ­ tract trial, M iss T orre w as asked to nam e the executive w ho had furnished the inform ation. T his she refused to do. A lthough threatened w ith a thirty day contem pt sentence, she rem ained adam ant in her refusal. She w as then sentenced to ten days in jail. M iss T orre appealed the sentence, but in Septem ber 1958 the conviction w as upheld unanim ously, and she served her tim e in prison. In the verdict rendered, C ircuit Judge Stew art voiced the unanim ous decision of the U. S . C ourt o f A ppeals. In his judgm ent, “ [Fjreedom o f the press, precious and vital though it is to a free society is not an absolute. He asserted that “ T he concept that it is the duty of a w itness to testify in a court o f law has roots fully as deep in our history as does the guarantee o f a free p re ss." 10 A lthough he did not give an opinion as to w hether the pow er to enforce disclosure w as to be considered an elem ent of Fifth A m endm ent due process, it seem s evident that the court had m ade Fifth A m endm ent considerations to prevail over First A m endm ent consider­ ations. T hat shield law s do not operate autom atically to protect journalists w as dem onstrated by In R e T a ylo r." T he appeal w as from a contem pt conviction against the general m anager and c ity ed ito r of the Philadel­ phia B ulletin. T he tw o men had refused to reveal to a Philadelphia grand jury investigating crim e and corruption in city governm ent docum entary evidence relating to new s stories dealing with the situ a ­ tion. T hey gave as grounds for their refusal the fact that notes, tape recordings, m edical records, expense records and so on could identify their sources. T he journalists w ere sentenced to five day s im prisonm ent and fined $ 1 ,0 0 0 eac h . T he rationale for the contem pt citation w as that the Pennsylvania law protecting new s stories did not extend to com pulsory disclosure o f docum ents and other inanim ate

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3 1

o bjects. T he Suprem e C ourt of P ennsylvania reversed the orders o f the grand jury and the sentences w ere vacated, M r. Justice C ohen dis­ senting. A nother state w ith a statutory provision to protect journalists is C alifornia. On June 20, 1966 N ew sw eek reported an instance o f the invoking o f such protection. CBS new sm an Bill Stout had interview ed a teenager for television and had asked him about his part in the W atts riots during the previous A ugust. All cam era-shots o f the interview ee w ere either out of focus or taken from the rear o r above. B ecause a ring and w atch he w as w earing w ere sim ilar to those w orn by the subject of the interview , a young N egro w ho had been arrested on a narcotics charge w as suspected o f being the sought-for teenager. Sum m oned before a grand jury, S tout, as he w as en titled to do, refused to confirm that the arrested youth w as the m an he had interview ed. But his refusal did not help his inform ant. T he voice prints of the black interview ed on television w ere com pared with those of the youth in custody. T he prints m atched. D espite certain expert evidence to the contrary, the authorities considered voice prints to be as reliable as finger prints for identification purposes. T hey therefore concluded that the m an they w ere holding was the suspect they had been seeking, and they arraigned him on four charges o f a rso n .12 N ew Jersey is also a state with a “ s h ie ld " law . D espite th is ,in M ay, 1972, after Peter B ridge had w ritten a story for the N e w a rk E vening N e w s in w hich it quoted Pearl B eatty, H ousing A uthority C om m is­ sioner, as saying she had been offered a bribe, B ridge w as brought before the grand jury and directed to nam e the “ b r ib e r." He refused to d o this. H e also refused to answ er five o f 85 questio n s put to him because he said the answ ers w ould reveal other confidential sources. B ridge’s case w orked its w ay up to the U nited States Suprem e Court, w hich in O ctober ruled by an 8 to 1 vote against keeping him from being jailed on a civil contem pt charge. By that tim e his new spaper had ceased to p u b lis h .13 He w as jailed for 20 d a y s.14 For refusing to surrender w b a i - f m tapes of a prison riot, Edw in G oodm an served 44 hours o f a 30-day se n ten c e.15 N or did the so-called “ s h ie ld " law o f C alifornia serve as a shield to W illiam T . Farr, L os A ngeles H e ra ld -E xa m in e rreporter. In the fall of 1970 he had obtained and published d etails from the pretrial statem ent o f a prosecution w itness in the C harles M anson m urder tria l, despite the fact that Trial Judge C harles H. O lder had previously forbidden law yers and o thers involved to divulge inform ation about the case. Judge O lder decided to punish the person w ho had leaked the story. He therefore called on Farr to nam e his sources. T he reporter refused. H e claim ed that Section 1070 o f the C alifornia E vidence C ode, w hich purports to

32

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protect new sm en from contem pt citations fo r keeping sources confi­ d en tial, exem pted him from having to m ake disclosure. His contention w as apparently accepted. H ow ever, seven m onths later, w hen F arr resigned from his new s­ paper to take a public relations job. Judge O lder claim ed that the reporter had lost the protection o f Section 1070, subpoenaed him , and again called upon him to nam e his inform ant or inform ants. T he judge also m aintained that F arr w as an accessory to the violation of the c o u rt's “ g a g ” law . T he reporter said his source w as am ong six attorneys w hose nam es he subm itted. But he refused to be m ore specific than that and his “ n o m in ees” denied on oath that they had been involved in the leak. Judge O lder ordered the reporter jailed until he m ade disclosure. Farr w as allow ed to go free w hile his appeal w as being heard. Section 1070 w as am ended in D ecem ber 1971 to give protection to fo rm e r new sm en, but that sam e m onth a state appeals court upheld the ju d g e ’s decision. It also ruled that if the E vidence C ode interfered w ith the pow er o f the court to control its ow n proceedings and o ffice rs, the code w ould be unconstitutional. In N ovem ber the U nited States Suprem e Court refused to review F a rr’s case. T he reporter w as jailed tem porarily three h ours later w hile the state appeal court considered a petition for a perm anent stay o f se n ten c e.16 T he petition w as denied and Farr again went to jail from N ovem ber 2 7 , 1972 to January 11, 1973, when he w as again released w hile further consideration w as given to his a p p e a l.17 D espite the fact that C anada has no shield law s, there have been few harassm ents o f journalists by the law in C anada. Incidents have been w idely spaced. In 1952 Jacqueline S irois (later Jacqueline Sirois M oore) w rote an article for W eeken d m agazine in w hich she said certain inform ants had told her they had paid protection m oney on account o f illegal activities. M r. Justice Francois C aron, w ho w as the C om m issioner inquiring into vice conditions in M ontreal, sum m oned her to one o f his hearings. She w as asked to nam e the sources of her story but refused to do so. T he justices then said: “ I hold you in contem pt. C om e back at 10:15 tom orrow and if you d o n 't change your m ind, I will be obliged to sentence y o u .” She did com e back, did divulge sources, and so purged her contem pt. A C anadian case in which refusal to divulge sources w as not found to be legally acceptable involved B lair Fraser and M a c le a n 's m agazine. ( S e e C ase N o. 9) A contrary legal verdict during exam ination proceed­ ings w as given in 1961 in a case in w hich T oronto T elegram reporter Frank D rea w as a defendant. (S e e C ase N o . 10) Probably no incident in recent tim es has aroused so m uch Canadian debate on the subject of confidentiality of sources as a 1969 event.

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E arly that year the CB C public affairs show , ‘‘T he W ay It I s ,"' prepared a film report on the city o f M ontreal. A s part of this o ffering, John Sm ith, a m em ber o f the C B C unit, interview ed a m an w ho claim ed to be an f l q terrorist. T he m an told Sm ith that it w as his job to teach others how to m ake and set off bom bs. Feeling that this sort o f inform ation was im portant to authorities concerned w ith protecting life and p ro p ­ erty, the C B C told the police. But the corporation did not nam e the man who had been interview ed because Sm ith had prom ised not to disclose his identity. Sm ith w as soon sum m oned to appear before the M ontreal Fire C om m ission, the body chosen to investigate the bom bings w hich had been taking place. By now Sm ith had com e to believe the interview had been a hoax. B elieving also that it w as necessary to protect his sources, Sm ith refused to be sw orn before the Fire C om m ission. L aw yers M arcel Beauchem in and M arcel C ote asked Fire C om m issioner John M cD ougall to cite the CB C reporter-researcher for contem pt o f the hearing. S um m oned again. Sm ith again refused to be sw orn. In doing so he read from a prepared text w hich said, “ I know full well that the law obliges m e to answ er the questions o f this C om m ission . . . but nevertheless I will not te s tify .” H e contended that “ it is the job of the journalist to inform his public of the state o f so c iety ” and that he “ is continuously privy to confidential in fo rm a tio n .” He m aintained that g iving assurances that inform ation divulged c onfidentially will be so treated w as as m uch a part of the jo u rn a list's function as it w as a law y er's. “ If m y refusal to testify is ille g a l," he said , “ then it is illegal to have a free press and an inform ed public, because a press cannot be free and a public can n o t be inform ed if journalists cannot give assur­ ances . . . confidentiality will be kept c o n fid e n tia l.” "1 R eaction to the Sm ith incident w as sharp and categorical. P redict­ ably, m any journalists condem ned the sentencing and im prisonm ent of the C B C reporter-interview er. Som e editors and com m entators dem anded shield law s to protect journalists from having to divulge the sources o f the stories they w rite o r broadcast. Som e claim ed that denial of confidentiality m ight lead to the state o f affairs existing in South A frica. T hey w ere afraid that an insistence on disclosure m ight help to bring about a situation in w hich papers could not print anything d e tri­ m ental to the g o v e rn m e n t.1'' O thers, believing that C anada should follow the exam ple of the A m erican shield law states, raised the question of w hether courts should not be required to show that a m atter was in the public interest before they could com pel a journalist to reveal his so u rc es.:n The T o ro n to G obe a n d M a il editorialized about Bill 79, the Fire Investigations Act under w hich Sm ith had been sum m oned to the

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C om m ission hearing. T he editorial said, "B ill 79 has . . . harshly bruised the legitim ate rights o f John S m ith .” 21 It contended that “ Bill 79 springs, not just from the dark w aters through w hich Q uebec is now passing, but from the style in w hich C anadian law , both inside and o utside Q uebec, has e v o lv e d .” 22 It also q uoted approvingly— and attem pted to apply to the Sm ith case— the w ords o f Justice O liver W endell H olm es, in reference to another, A m erican court: “ T o d e ­ clare that the governm ent m ay com m it crim es in order to secure the arrest of private individuals— this w ould bring terrible retribution. A gainst that pernicious do ctrin e, this court should resolutely set its f a c e .” 2’ W as the John Sm ith case as significant as such com m entators seem ed to think? W as it a cause celebre? Did it pose a real threat to the freedom of C a n a d a 's m ass m edia? Should the journalist be given the blanket right to preserve the anonym ity of the sources o f his reports? A ttem pts m ade by m any m edia professionals to answ er such questions w ere not reassuring. M any editorial w riters m ade errors in their assess­ m ent o f the John Sm ith affair. M any were singularly uninform ed about the law of the press in the area of contem pt of court and the revealing of sources. M any seem ed unaw are of any underlying philosophy designed to reconcile the interests of the journalist w ith the interests of the society he serves. Som e critics of the Sm ith im prisonm ent m ade the issue o f revealing o f sources unnecessarily confusing by coupling it with an account of w hat the police w ere reported to have done to the prisoner. As W arren D avis described it, on the CBC television program , “ T he W ay It I s ," “ [Sm ith] is then shackled, chained at the ankle, handcuffed to a guard and taken to B ordeaux jail, w here, before a group of w atching guards, he is stripped, given form s to sign, and in prison clothes put in a solitary cell in the punishm ent block, the hole. ” 2J W ith sim ilar em phasis Doug C ollins asked w hether the O liver W endell H olm es stricture previously quoted did not apply “ if, under the Fire Investigation A ct, they can hold people . . . w ithout right o f consulting c o u n se l.” 25 O n the sam e program , other panelists hastened to point out that they too did not approve o f any denial o f the right o f an arrested person to receive the advice o f his solicitor at any tim e .26 But they w ere equally firm in pointing out that the iniquitous things w hich w ere alleged to have happened to Sm ith w ere an issue quite separate from his refusal to te stify .27 Q uite clearly it is possible to condem n the rather high-handed treatm ent w hich Sm ith w as reported to have received and still favor the requirem ent that the journalist nam e his sources in appropriate situa­ tions. Som e critics28m ade the m istake of regarding the M ontreal incident as introducing a new threat, one perhaps unique to Q uebec. In doing so they show ed ignorance of C anadian contem pt citation precedents. T he

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fact is, o f co u rse, that W igm ore’s four canons, discussed earlier in this c hapter, apply equally throught C anada. People know ledgeable in the law thought it a m istake to regard the Q uebec contretem ps as unique. T he Q uebec legislation w as not a piece o f isolated legislation, they said, since there w ere a sim ilar act at the federal level and an Inquiry Act in each o f the provinces. T hey called attention to the fact that any Suprem e Court judge could com m it reporters for refusal to disclose. Indeed, som e felt that any Suprem e C ourt judge in C anada m ight have im posed a longer sentence than the M ontreal Fire Investiga­ tion C om m ission d id .” M any journalists, in a spontaneous reaction to a situation about w hich they w ere not too know ledgeable, seem ed to regard the c o n ­ troversy as a contest betw een an all em bracing requirem ent o f d isc lo ­ sure under all circum stances and a com plete and absolute protection of journalists under all circum stances. As a result they conceived the defencelessness o f the journalist to be far greater than it actually is; and they called for an absolute protection w hich could not, under the free press-fair trial philosophy w hich p revails in C anada, be justified. The fact is that the m edia enjoy a degree o f protection far greater than g enerally realized. A s has been indicated earlier, it is also true that to grant the m edia the absolute privilege o f keeping their sources secret m ight produce injustices that w ould outw eigh any hardships im posed on the press by the requirem ent to nam e sources. R elated to the average jo u rn alist’s ignorance about his obligation to disclose w as a com parable ignorance about the previously discussed privileges o f others involved w ith the law : husband and w ife; solicitor and client; penitent and priest; d octor and patient. Such faulty know l­ edge w as typified by John Sm ith w hen he claim ed for the journalist the law yer’s privilege o f confidentiality on the grounds that such co nfiden­ tiality w as as essential to the jo u rn alist’s function as it w as to the law y er’s. In doing so he show ed no aw areness o f the difference be­ tw een the law yer-client and journalist-inform ant relationships— a dif­ ference w hich has already been e x am in ed .30 T here w as still another facet o f the John Sm ith affair about w hich com m entators and editorialists w ere not too clear. M any discussed the C BC jo u rn a list's citation for contem pt as though he had been punished for refusing to nam e sources, w hen, in point o f fact, his o ffence had been to decline to answ er any questions put to him by the C om m ission. B oth H yliard C happell and Bruce Phillips on the “ Som ething E ls e " program com m ented m ore know ledgeably. T hey w ere exceptional in realizing, as not too m any journalist com m entators d id , that w hat Sm ith had done w as, in fact, to say, “ I refuse to give any evidence w hat­ s o e v e r;" 31 they felt that Sm ith should have accepted the sum m ons and then decided what answ ers to give after the questions w ere put. As Bruce Phillips com m ented, “ It’s pretty hard for him to defend not

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turning up at the h earing at all. If, on the other hand, he w ent and they dem anded discolosure of sources he w ould have been on an entirely different w icket. H e d o e sn 't even know . . . for sure . . . w hat qu es­ tions w ere going to be put to him . I think it's better to go to court and m ake a case th e re .” ” In his statem ent to justify his refusal to testify before the M ontreal Fire C om m ission, John Sm ith protested that he w as being required to reveal sources even though he h a d not been charged with a crim inal offence. In doing so he im plied that the requirem ent of disclosure was an exceptional one. T he G lobe a n d M a il editorial previously c ite d ” and D oug C ollins in the program already referred toMalso gave the im pres­ sion that they thought it rem arkable that Sm ith should be so dealt with even though he w as not arraigned under crim inal proceedings. Yet there w as nothing abnorm al in w hat the Fire C om m issioner had done, as w as illustrated by the previously considered B lair Fraser, Jacqueline S irois and M arie T orre cases, three earlier precedents w hich did not involve crim inal prosecutions. P erhaps the m ost influential journalist to speak out against the treatm ent of the C B C staffer and in favor o f protection of sources was G erard P elletier. Interview ed15 by Patrick W atson, the Secretary of State took the view that under appropriate c onditions, the m ost notable being that the privileged reporter be a bona fid e journalist investigating stories in the perform ance of his professional duties, “ the public interest will be best serv ed ” by granting him im m unity. M r. Pelletier m ade it clear that he felt that the decision for or against disclosure should be in the hands o f the press rather than o f the judiciary.T he decisiveness o f his answ er w as perhaps partially accounted for by the form used by W atson in one of his questions. A fter describing a hypothetical situation in w hich, through interview , a new spaper had learned that som eone had been responsible for separatist v iolence, the C B C interview er asked, ‘‘You w ould not feel obligated to go to the police and say, ‘H e re 's how we got this sto ry ’? ” N aturally enough, perhaps, P elletier rem arked in the course of his answ er, “ . . . w e are not police inform ers, we are inform ers o f the public . . . ” Yet the picture thus conjured up hardly represents the disclosure vs. anonym ity issue. T h ere is a w orld o f difference betw een (on the one hand) running to the police every tim e the press gets inform ation that m ight c onceiv­ ably affect public security, and (on the other) w riting new s stories based on such inform ation and being w illing to divulge sources on those rare occasions when the journalist is sum m oned to appear before a properly constituted court or com m ission. An objection to the P elletier assessm ent o f the disclosure question is that it leaves it to the journalist exclusively to w eigh the countervailing considerations o f public and press interest, and to decide w hether

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sources are to be divulged. Part o f the argum ent against the granting of such a privilege arises out of the uncertainty of the status of journalism . It is not a profession, has no code o f ethics, is not subject to self­ regulation as is the case with law o r m edicine, and in C anada is just beginning to face the gentle and by no m eans ubiquitous scrutiny of press councils. Both its failure to achieve professional status and the unw isdom o f setting up press councils with anything m ore than the pow er to adm onish derives from the nature o f the freedom it claim s. It is a platitude that freedom o f the press is no different in kind or degree than the freedom to w hich any citizen in the country is entitled. It m ight be argued that both the w orking journalist and the casual “ m an in the s tre e t" correspondent should be subject to the sam e type o f Press C ouncil supervision. T he sam e line o f reasoning suggests that if the press w ere granted the privilege o f unvarying confidentiality so too should any m em ber o f the public be granted that privilege. M r. C happell stated an opinion w idely held by thoughtful students of the question when he said that he could not see how the privilege of c onfidentiality could be granted to the journalist w ithout granting the sam e privilege to doctors, psychiatrists, social w orkers, probation officers and religious people. T o e xtend the privilege that far, he thought, w ould seriously im pair the ability o f the courts to fu n c tio n .16 O thers have m ade the sam e point about stockbrokers, accountants, detectives and officials o f banks and trust co m p an ies, for w hich the right of confidentiality has som etim es been claim ed. Several com m entators have expressed scepticism o f the press in claim ing privilege. T hey contend that if the journalist can repeat stories but conceal their so u rce, he can invent stories and use privilege to conceal the pretense. T hey feel that the real m otive for privilege is not zeal for the public g o o d , but the desire for prestige or readership attention. M r. C happell felt that under the guise o f confidentiality the new spaper m ight perpetrate a sim ple h o a x .37 D esm ond M orton, O sgoode Hall law school professor, considered the public interest not to be served by keeping confidentiality. He called attention to the fact that new spapers publish for a wide variety of reasons, one of w hich is to sell copies and m ake m oney, and that m any journals, w hile speaking o f the public interest at a high level of abstraction, w ere really concerned with their ow n private interest o f trying to get a headline. W hile conceding that there m ight be o ccasions w hen such headlines m ight incidentally serve the public interest w here a creative piece o f journalism w as involved, he felt that all too often such stories w ere only m arginal to the public interest. T hus he did not believe journalism w as justified in asking for a g e n era lize d (italics m ine) protection w hen the value of non-disclosure w as by no m eans p ro v e d .58 All four legal authorities interview ed by Patrick W atson on the

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program , “ T he W ay It Is ,” (M orton; M axw ell C ohen, dean of the M cG ill L aw S chool; M ichel C o te, legal adviser to the M ontreal Police D epartm ent; and Joseph S edgw ick, a distinguished practising law yer w ith 46 y e a rs' experience refused to accept W atso n ’s suggestion that the law should require the court to show that it w as in the public interest before it could com pel a journalist to reveal his so u rc es.39 E ven M ax­ well C ohen, w ho seem ed m ost aw are of the jo u rn alist’s w atch-dog role in exposing public acts to public scrutiny, felt that, in term s o f W igm o re ’s fourth canon, “ . . . the onus is really on the journalists to prove that they are on balance ham pered in their job by the general duty to d isc lo s e .” 40 W hen W atson persisted and questioned w hat public interest would be served by putting Sm ith in jail, M orton replied readily that S m ith ’s punishm ent fulfilled the p o u r encourager les a u tres principle. H e felt that w hat w as done to Sm ith w ould encourage reporters not to rely on their unnam ed sources but to go out and verify their inform ation with evidence they could expose to public sc ru tin y .41 M r. Sedgw ick supplem ented the M orton answ er by saying that, u nless co ntum acious journalists w ere to be punished for defiance of the co u rts, the courts w ould be effectively am ending the law , and that they w ould be im plying that journalists have a protection w hich they do not, in fact, h av e.43 All four legal authorities w ere at pains to point out that the law lays no heavy hand on the press through indiscrim inate contem pt citations. T hey firm ly rejected W atso n ’s im plications that the fact that tw o L a P resse reporters had just been excused from testifying in a M ontreal trial indicated that the treatm ent o f John Sm ith had som ehow gone beyond w hat w as right and p ro p e r.43 M r. S edgw ick felt that “ In the case o f Mr. Sm ith it w as thought that the public interest dem anded that he should disclose [his source]. In the case o f the tw o L a Presse reporters it w as thought that it d id n 't. ’' He took this to sh o w that the law as it stands is able to settle such questions w ith w isdom and discretio n .44 W hile there seem ed to be a consensus that the pow er to punish contem pt w as needed to check irresponsibility and to protect the private and public interest. P rofessor C ohen at least show ed an aw areness of jo u rn a lism 's praisew orthy role in com batting governm ent secrecy. He said , “ W here you are dealing w ith an enorm ously com plex series of relationships o f the state to the individual, and w here the state is still in m any respects highly secrecy-oriented . . . journalism becom es a kind o f countervailing pow er to unloosen the congealed secrecies that d o n ’t m ake the dem ocratic process perhaps as loose-lim bed as it ought to b e .” He believed that one o f the prices society should be prepared to pay for the loosening process w hich the journalist helps to accom plish

REV EA LIN G O F SO U RCES

39

m ight be an increase in the area o f insecurity resulting from an increased confidentiality o f sources. But he felt that any changes in this direction should be m ade w ith ‘ ‘a certain sense of the o th er price w e ’re paying for it, nam ely that you m ay be providing new p rivileges, the total consequences of w hich you cannot fo re se e .” 45It is less a m atter of irony and m ore an illustration o f the intricacy o f the revealing of sources question that journalists should claim the privilege of secrecy in order to help them thw art governm ent secrecy. C anadian journalists seem aw are that-the law s o f contem pt hold h a za rd s.46 B ruce Phillips perhaps typified such a view point w hen he said, speaking o f the John Sm ith case, “ I'm q uite prepared to live with [the] situation and refuse to divulge sources and take the consequences. M y view is that Sm ith and any other new spaperm an w orth his salt w ould behave that w ay. If he is given inform ation in confidence he has his ow n bond upon it, and unless it is som ething affecting the security o f the co u n try o r a m atter o f that ch aracter, he has no choice if he w ishes to go on being a journalist except to defend the confidence that he has been given . . . I think the press is able to take care of itself in cases like this. I think that w e 'v e got to accept the fact there are going to be situations w here the c o u rt's requirem ent for inform ation is going to directly conflict w ith the re p o rte r's obligation to his source of inform a­ tion . . . Som etim es [journalists] are g oing to land in jail because of it, but it w o u ld n ’t be the first tim e a journalist w ent to j a i l ." 47 Journalists w ho did go to jail under the conditions described by Mr. Phillips w ould at least have been dealt w ith under the w ell-understood concept o f “ due p ro c e ss " o f law , w ith the requirem ent to divulge being exacted only by a properly constituted court or com m ission. If the A lberta Press A ct o f 1937 had not been ruled ultra vires the governm ent itself w ould have been em pow ered to com pel disclosure w ithout the journalist enjoying any o f the p rotections built into the procedures w hich m ake up “ due p ro c e s s ." O ne of its harsh term s w as that it w ould have required any new spaper “ to nam e w ithin tw enty-four hours sources of any sta te m e n t" m ade by that paper “ w ithin sixty days of the m aking o f an o rder so to d o . " Failure to com ply w ould have brought dire punishm ents. Journalists all across C anada recognized in the Bill a genuine threat to freedom and reacted w ith anger. Both the principles involved in the successful fight against the enactm ent and the public reaction to the m easure m ade the affair a true C anadian cause celebre. By the A lberta Press Bill yardstick, the John Sm ith affair w as not a cause celebre.

T H E LA W A N D T H E PRESS IN CANA D A

C R IM IN A L L A W

C IV IL L A W

Seditious libel B lasphem ous libel (or blasphem y) O bscene libel (or obscenity)

D EFA M A T IO N

D efam atory libel

Libel S lander

Chapter V Civil Defamation It is appropriate, after the foregoing rather extended discussion of contem pt o f court and its “ c o ro llarie s” , to turn attention to the subject o f libel. T he term “ lib e l" itself is a som ew hat confusing one. A lthough it m ay be used in a generic sense to include all four kinds o f crim inal libel and the one kind o f civil libel, it usually refers sim ply to that civil libel alone. In o rder to distinguish am ong the various kinds o f libel w ith w hich the law deals, the schem a (page 40) is offered. As seen from the above chart, crim inal libel m ay be seditious, b lasphem ous, obscene o r defam atory. T he only libel dealt with by civil law is libel as a form of defam ation. T his type o f libel is referred to w ithout any accom panying adjective, so that w hen the sim ple term “ lib e l" is used, civil libel is usually understood. W hen the w ords “ defam atory lib el” are em ployed, crim inal libel is the sense intended. Slander is a form o f defam ation w hich is dealt w ith by civil law only. D efam atory libel, seditious libel and blasphem ous libel will provide the subject m atter o f chapter six. O bscene libel, o r “ o b sc e n ity ” as it is now c alled , will be considered in ch ap ter seven. T he present chapter will concern itself w ith civil defam ation, that is, libel and slander.

D e fin itio n s, C o n cep ts a n d G e n e r a l O b serva tio n s R e la te d to L ib e l a n d S la n d e r G atley says that “ a defam atory im putation is one to a m a n 's discredit, or w hich tends to low er him in the estim ation o f o th ers, or to expose him to hatred, contem pt o r ridicule, o r to injure his reputation in his office, trade o r profession, o r to injure his financial c re d it.” 1Libel and slander are torts ch aracterized by the publication o f m atter w hich conveys a defam atory im putation. Libel and slander are usually e x ­ pressed in w ords, but, as G atley points out, “ [sjtatues, w axw orks, piclures, photographs (particularly in collocation with w ords), cartoons, cinem a o r television pictures, m arks on a pavem ent, burning a m an in effigy, hanging a sign outside his house o r hissing him , signs and gestures have all been capable of conveying a defam atory im puta­ tio n .’” 41

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TH E LAW A N D T H E PRESS IN CANA D A

T here are m any definitions o f libel. A textbook definition in current vogue reads: “ Any w ritten or printed w ords w hich tend to low er a person in the estim ation o f right-thinking m en, o r cause him to be shunned or avoided, o r expose him to hatred, contem pt o r ridicule, constitute a l i b e l . I n 1882, w hat M r. (now O ntario Suprem e Court Justice) A lexander Stark has called “ surely the neatest and best and the m ost accurate definition of a ll" '4w as provided by M r. Justice C ave: “ A libel is a false statem ent about a m an to his d is c re d it." 5 A prevalent m isconception is that it is still possible to distinguish betw een libel and slander on the basis of w hether the defam ation is oral o r w ritten. A t one tim e, it w as possible to do this, but the advent of talking pictures, radio and television has blurred the distinction. T oday a m ore accurate statem ent w ould be as follow s: Libel involves publica­ tion of defam atory m atter in perm anent form ; slander involves publica­ tion o f defam atory m atter in transitory form . T h u s, although spoken defam ation, uttered over the back fence, constitutes slander, broadcast defam ation constitutes libel.6 A case in w hich the plaintiff brought a successful action for libel (rath er than slander even though the w ords used w ere m ainly oral rather than printed) w as Y o u sso u p o ff v M e tro-G oldw yn-M ayer.1 In this case Princess Y oussoupoff alleged that she w as portrayed in the talking picture entitled “ R asputin, the M ad M o n k " in the character nam ed Princess “ N a tash a ” as having been seduced by R asputin. On the g rounds that she had been defam ed she w as aw arded dam ages of $ 1 2 5 ,0 0 0 . T he low er court verdict w as sustained on appeal. It should be noted that, except under certain special circum stances to be considered later, it is im m aterial to the fact of libel w hether it w as the intention of the alleged libeller to com m it libel o r not. A ccording to G atley: Even a bona fid e belief that the w ords are true will afford no d efence in the absence o f privilege, though such belief m ay be urged in m itigation o f dam ages. “ A m an in good faith m ay publish a libel believing it to be true, and it m ay be found by the jury that he acted in g ood faith, believing it to be true, and reasonably believing it to be tru e, but that in fact the statem ent w as false. U nder those circum ­ stances he has no defence to the action, how ever ex cellen t his in te n tio n .” 1 A classic illustration of the irrelevance of intention to the fact of libel occurred in 1910. A s a result o f the case’ w hich provides the foregoing q u otation, it has been said that the ghost of A rtem us Jones has haunted E nglish new spapers ever since. T he affair started in Ju ly 1908 w hen the Paris correspondent o f the S u n d a y C hronicle w as told to w rite a feature

C IV IL D EFA M A TIO N

43

piece on the subject o f the French resort, D ieppe, and its com ing M otor W eek. In his account headed “ M otor-M ad D ie p p e ,” the reporter said: U pon the terrace m arches o f the w orld, attracted by the m otor races— a w orld im m ensely pleased w ith itself, and m inded to draw a w ealth o f inspiration— and, incidentally, o f golden cocktails— from any schem e to speed the passing h o u r. . . “ W hist! T here is A rtem us Jones w ith a w om an w ho is not his w ife, w ho m ust be, you know — the o th er th in g !” w hispers a fair neighbour of m ine excitedly in her bosom frien d ’s ear. R eally, is it not surprising how certain o f our fellow -countrym en behave w hen they com e ab ro ad ? W ho w ould suppose, by his goings on, that he w as a churchw arden in Peckham ? No o n e, indeed, w ould assum e that Jones in the atm osphere of L ondon w ould take on so austere a job as the duties of ch u rch w ard en . H ere, in the atm osphere o f D ieppe, on the French side o f the C hannel, he is the life and soul o f a gay little band that haunts the C asino and turns night into d ay , besides betraying a m ost unholy d elight in the society o f fem ale b u tte rflie s.10 A rtem us Jones, like the incident described, w as a creation of the re p o rte r's overfertile im agination. For this reason the reporter and the officers o f the n ew spaper w ere disagreeably startled when a real T hom as A rtem us Jones first dem anded a retraction and apology and then, dissatisfied with the n e w sp a p er's ungenerous disclaim er, filed a libel suit on account o f the offending article. T he plaintiff w as not m arried, he did not live in Peckham and he w as not a churchw arden. T he defence em phasized these facts and the fact that the correspondent and S u n d a y C hronicle had no intention o f libelling anyone. T he reac­ tion o f the Court w as this: “ W hat does intention m a tte r? ” T h is w as in accord w ith the m axim that a m an is presum ed to intend the conse­ quences o f his actions. A nd certainly, since the real-life A rtem us Jones w as thought by som e readers to be the A rtem us Jo n es referred to and others teased him for his supposed indiscretions, the dam age w as done w hether the defendants intended the dam age o r not. T he trial court found the defendants liable and aw arded the plain tiff £1 ,7 5 0 dam ages. T he case w as appealed, first to the C ourt o f A ppeal, and then to the H ouse o f L ords. Both appeals w ere denied and the original aw ard w as allow ed to stand. T he law distinguishes betw een statem ents which are defam atory and those w hich are m erely injurious. B oth are falsehoods told by one man to the prejudice o f another. Both are punishable. T he m erely injurious falsehood does not affect a m an ’s reputation. A defam atory statem ent does. T o w rongly say a tradesm an has ceased to carry on business is an injurious falsehood; if it causes actual dam age and the falsehood w as

44

T H E LA W A ND T H E PRESS IN CANA D A

wilful the statem ent is actionable. T o w rongly say the sam e m an is incom petent o r dishonest is a defam atory statem ent; it is usually action­ able a ls o .11 T he law distinguishes betw een defam ation p e r s e and defam ation p e r quod. In defam ation p e r se no special (in contrast to general) dam age has to be proved. A ccording to S alm ond, the special dam age required to support the case in defam ation proceedings actionable p e r q u o d m ust be the loss o f som e definite m aterial a d v a n ta g e .12 T he d am age, w hich Salm ond suggests m ight m ore accurately be called “ a c tu a l" rather than “ sp e c ia l,” m ust not consist m erely o f the loss o f reputation itself. L oss o f the voluntary hospitality of friends and a resulting separation of a husband and w ife are cited as exam ples o f such special d am age. A com parable dam age is to be seen in the follow ing sort o f new spaper error w hich could result in a successful action for defam ation: T he social pages of a new spaper m ay carry an erroneouss\oxy to the effect that D r. X attended a party on a certain evening. T hat same evening one of Dr. X 's patients phones to say she is quite ill and needs his m edical services at once. But the telephone answ ering service handling his calls says that Dr. X cannot attend her because the doctor h im self is ill. W hen she later reads the new spaper account o f the party, the patient c oncludes that the doctor was lying about his illness and angrily gets h erself a different doctor. By show ing how he has lost his reputation— indeed, by show ing how he lost specifically one patient— the doctor m ight w in his libel action. N ot all libel is direct and explicit. S om etim es statem ents w hich are innocuous on the surface carry a second and defam atory m eaning. T his is know n as an innuendo. In the language o f G atley, “ w ords may convey a defam atory im putation only by reason of som e special know l­ edge available to those to w hom they were p u blished, o f the circum ­ stances o f p ublication, or o f som e special m eaning o r inference to be attached to o r draw n from the w o rd s .” 15 A ccording to H arry Street, “ T o put a top-flight sin g e r’s nam e third, instead of first, on an ad v ertis­ ing bill for a concert w as actionable; a caption under a new spaper photograph to the effect that it w as M r. C. and his fiancee was defam atory o f the plaintiff, the w ife of M r. C ; to include a cartoon of an am ateur golfer in an advertisem ent for chocolate im plied that he w as prostituting his am ateur s t a tu s ." 14 T he plaintiff who alleges innuendo often runs the d anger that the defendant m ay plead that the innuendo is true. T h is perm its the defendant to put on the record dam aging facts against the plaintiff to support his plea. In C anada libel actions are tried by both a judge and jury (consisting o f six persons). T he law lays dow n this requirem ent except w here

CIV IL D EFA M A TIO N

45

parties to the action agree that the trial shall be held before the judge alone. In practice they alm ost never do so a g re e .15T he first task o f the judge is to decide w hether the w ords com plained o f are capable of constituting libel; and then the jury determ ines w hether in fact there w as a libel. It is also necessary to point out that, in the w ords of R onald G. A tkey, “ Libel is, technically, an every day occurrence in m ost C an a­ dian new spapers, yet few actions are ever com m enced because o f the lim ited likelihood o f the person ‘libelled ' being able to prove su b stan ­ tial dam ages thus m aking the suit w orth w h i l e ." 16 A nd finally, it is to be noted by w ay o f general observation, that it is legally im possible to libel the d e a d .17 G atley says on the subject: [D jefam atory w ords published o f a deceased person are not deem ed to inflict on the surviving relatives any such legal dam age as will sustain an action if th eir reputation is not affected. Libel and slander are essentially personal w rongs, and the right o f action, therefore, d ies with the person defam ed. But it is a crim inal offence to w rite and publish defam atory w ords o f any deceased person if it be done with intent to injure and bring contem pt on his fam ily, and so provoke them to a breach of the p e a c e .18 A C anadian case illustrative o f the fact that libel is a personal w rong w as K n o x v . Spencer. (S e e C ase N o . I I )

L e g isla tio n P ro v id in g C a n a d a 's P re se n t C ivil L a w o f D e fa m a tio n Libel is dealt w ith in C anada by both statute law and com m on law. B ecause each C anadian province has its ow n statute dealing with defam ation, civil law , unlike the crim inal law o f libel, varies from province to province. Q uebec legislation, being based on the C ode N ap o leo n , is the m ost different from the general pattern. T he m ost skim py statute is that o f N ew foundland, w hich deals w ith slander only. As a result, N ew foundland relies even m ore heavily on com m on law than do her sister provinces. A t the tim e this book w as being w ritten the follow ing provincial defam ation and o th er related civil law statutes w ere in effect: (B ritish C olum bia) Libel and Slander A ct, R .S .B .C . 1969, c. 218 (A lberta) T he D efam ation A m endm ent A ct, S .A . 1972, c. 105 (S askatchew an) T he Libel and S lan d er A ct, R .S .S . 1965, c. 107 (M anitoba) T he D efam ation A ct, R .S .M . 1970, C. D 20, T he N ew s­ papers A ct, R .S .M . 1970, c. N90

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T H E LA W A ND T H E PRESS IN CANA D A

(O ntario) T he Libel and Slander A ct, R .S .O . 1970 c. 243 (Q uebec) N ew spaper D eclaration A ct, R .S .Q . 1964, c .4 9 , Press Act, R .S .Q . 1964. c. 48 (N ew B runsw ick) D efam ation A ct, R .S .N .B . 1952, c.58 (N ova Scotia) D efam ation A ct, R .S .N .S . 1967, c.7 2 (Prince E dw ard Island) T he D efam ation A ct, R .S .P .E .I. 1952, c .41 (N ew foundland) T he Slander A ct, R .S .N fld . 1970, c .3 5 2 . Journalists are advised to consult library holdings o f provincial statutes to keep them selves abreast of any am endm ents o r statute revisions of the defam ation law for the province in w hich they are practising.

S ta tu te D e fin itio n s a n d P re co n d itio n s U nlike the Crim inal C ode, the various provincial statutes do not define libel. T herefore, the courts trying civil actions are governed by com m on law interpretations. In m any cases the defences open in law against libel suits depend upon the p u b lic a tio n 's fulfilling the definition o f a •‘n ew sp ap er” as set dow n in the appropriate defam ation act. T he Libel and S lander Act of O ntario reads as follow s: *‘[N ]ew spaper” m eans a paper containing public new s, intelligence, or occurrences, o r rem arks o r observations thereon, printed for sale and published periodically, o r in parts or num bers at intervals not exceeding thirty-one days betw een the publication of any tw o such papers, parts or num bers, and includes a paper printed in o rder to be m ade public w eekly or m ore often o r at intervals not exceeding thirty-one days and containing only, or principally, adver­ tisem e n ts.19 R ather sim ilar definitions appear in the A cts o f British C olum bia, A lberta, S askatchew an, M anitoba, Q uebec, N ew B runsw ick, Nova S cotia and Prince E dw ard Island. T he N ew foundland Act contains no such definition. L icensing o f new spapers in the sense w ritten about by M ilton in his A reo p a g itica is not part of the C anadian experience, although several provinces do require that new spapers be registered. In such cases the requirem ent is another precondition of som e o f the protections p ro ­ vided by appropriate defam ation acts. Provinces w hich provide for registration (or annual “ re tu rn s " or “ particulars o f o w n e rsh ip " or

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47

“ filing o f affid av its” o r “ d eclaratio n s” ) are Saskatchew an, M anitoba, and Q uebec. Such provisos are connected with court proof o f publica­ tion o f m atter com plained about. M any provinces have ruled that the identification of responsible publishers will be furnished by requiring that the nam e o f the proprietor and publisher and address o f the publication be stated in a conspicuous place in the new spaper. A lberta, Saskatchew an, M anitoba (w ith variations), O ntario, Q uebec (printer and publisher), N ew B runsw ick, N ova Scotia and Prince E dw ard Island legislation spells out requirem ents o f this kind. M any provinces couple w ith this the provision that production in evidence o f a printed copy of a new spaper is p rim a fa c ie p ro o f o f the publication o f the m atter specified in the legal case. A lberta, S askatchew an, M anitoba, O ntario, N ew B runsw ick, N ova Scotia and Prince Edw ard Island are so served. U nlike the C rim inal C ode, civil law in C anada does not define publishing, although the M anitoba D efam ation A ct defines “ publica­ tio n ” as “ any w ords legibly m arked upon any substance or any object signifying the m atter otherw ise than by w ords, exhibited in public or caused to be seen o r show n o r circulated o r delivered w ith a view to its being seen by any p e rso n .” 20 P rovincial legislation w hich deals w ith broadcast defam ation in the sam e w ay as w ritten defam ation is that o f B ritish C olum bia, A lberta, M anitoba, O ntario, N ew B runsw ick, N ova Scotia and Prince Edw ard Island. T he O ntario and B. C. A cts explicitly call broadcast defam ation “ lib e l," both saying defam atory w ords in a broadcast shall be deem ed to be published and constitute lib e l.21 T he O ntario A ct says w ords shall be construed as including a reference to pictures, visual im ages, g e s­ tures o r o th er m ethods o f signifying m eaning. T he N ova Scotia D efa­ m ation Act (w hich says that “ w o rd s” include pictures, visual im ages, gestures or other m ethods of signifying m eaning) further stipulates that “ the broadcasting o f w ords shall be treated as publication in perm anent form . ’ ’22 A s has been pointed out, it is perm anence w hich is the quality w hich distinguishes libel from slander. T he statutes o f A lberta, M anitoba, New B runsw ick and Prince E dw ard Island are less explicit than those o f O ntario, B ritish C olum bia and N ova Scotia in treating broadcasting as libel, but they do deal w ith it as libel by im posing sim ilar conditions on the defences o f privilege and fair com m ent. T hey also m ake sim ilar concessions and exact sim ilar penalties in their treatm ent o f publishing and broadcasting. Five o f the seven provinces m entioned use, w ith or w ithout slight m odification, the follow ing definition o f “ bro ad castin g ” : the dissem ination o f any form o f radio-electric com m unication, including radiotelegraph, radio-telephone and the w ireless transm is­

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sion o f w riting, signs, signals, pictures and sounds o f all kinds, by m eans of H ertzian w aves intended to be received by the public directly or through the m edium o f relay sta tio n s.23 A lberta and B ritish C olum bia speak of electrom agnetic w aves and gigacycles rather than H ertzian w aves. Provinces w hich treat broadcasting libel in the sam e w ay as printed libel (B ritish C olum bia, A lberta, M anitoba, O ntario, N ew B runsw ick, N ova Scotia, Prince E dw ard Island) lay dow n stipulations w hich entitle the b roadcaster to the benefits o f the Act. T hese conditions are com par­ able to those laid dow n for the registration o f new spapers, publication o f the nam es o f new spaper personnel and their addresses on the new s­ paper m asthead, and production of a printed copy o f a new spaper as p rim a fa cie evidence o f pu blication. R epresentative of the seven sta­ tutes is section 8(3) o f the O ntario Act: W here a person, by registered letter containing his address and addressed to a broadcasting station, alleges that a libel against him has been broadcasted from the station and requests the nam e and address o f the ow ner and operato r of the station sections 5 and 6 [sections w hich give certain benefits to the publisher o r broadcaster] do not apply w ith respect to an action by such person against such ow ner or operato r for the alleged libel unless the person w hose name and address are so requested delivers the requested inform ation to the first-m entioned person, o r m ails it by registered mail addressed to him , w ithin ten days from the date on w hich the first-m entioned registered letter is received at the broadcasting sta tio n .24

D e fe n c e s A va ila b le in L ib e l A c tio n s T h ere are three m ain defences w hich m ay be resorted to in a libel action: the plea of truth; the plea o f privilege; the plea of fair com m ent. /. Truth T he plea of truth is know n in law as a plea o f justification. If a defendant pleads and proves that a defam atory statem ent is true, no libel action will lie for the publication o f that statem ent. T his condition seem s evident from the definition of libel quoted supra, that “ a libel is a false statem ent about a m an to his d isc re d it,” w herefrom falsehood is seen to be an essential ingredient o f libel. T h is fact suggests why it is said that truth is a com plete defence against a libel action. O f course it m ust be forgotten that what is needed is not m erely truth

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but p ro v a b le truth, and it is not alw ays easy to prove truth. T he burden o f proof rests with the d e fen d an t; it is for him to prove that the statem ent is true, not for the plaintiff to prove that it is fa lse.25 A ccording to G atley, “ W here the defendant pleads justification sirnpliciter the bur­ den lies on him to prove the truth o f the w ords in their natural and ordinary m e a n in g ." 36C iting “ P e r Col Iins M. R. in D ig b y v . F inancial N e w s L td . [ 1907] 1 K. B. at p. 5 0 9 " and related judgm ents, G atley also says, “ ‘A plea o f justification m eans that all the w ords w ere true and covers not only the bare statem ents o f fact in the alleged libel but also any im putation w hich the w ords in their context m ay be taken to c o n v e y '.” 27 It perhaps needs to be added, as various provincial statutes specify, that the m ere fact that a statem ent is proved does not m ake the d efen ­ dant im m une from legal penalty if the publication or broadcast com ­ plained o f is blasphem ous, seditious o r indecent;3* but in this case the offence is that o f blasphem y, sedition o r obscenity rather than of defam ation. J. J. R obinette, Q . C ., w hen answ ering questions put to him at a legal-journalism sem inar o f T hom son N ew spapers L im ited, illustrated the situation in w hich a plea o f truth m ight be offered in defence o f a libel action. T he question he w as asked w as this: In the “ M any Long Y ears A g o " colum n here, a reporter one day last y ear described the shenanigans o f a m an he presum ed to be by this tim e long since dead. T he m an had struck som eone and had been found guilty in court. N ow forty years later the report had com e back to haunt him . He claim ed he alm ost lost his job through the story. Is there any cause for action?” M r. R obinette answ ered: In m y opinion, no, because w hat the new spaper w as publishing w as the truth. He had in fact been convicted forty years ago and there w as no untrue statem ent. T he new spaper can carry history, it can carry som ething that has happened one hundred years ago. It m ay be very uninteresting history, it m ay have been very unfair and not the right thing to have done from a m oral standpoint, to drag up a conviction o f forty years ago against a m an; but if in fact he w as convicted and the new spaper publishes it, the defence is sim ply truth. He w as convicted. S o there w ould be no cause for a c tio n .’0 A lth o u g h , a s w e h a v e s a id , p ro v e d tru th p ro v id e s a p e rfe c t d e fe n c e in a lib el a c tio n , an u n su c c e ss fu l p le a o f tru th m ay be c o n s id e re d to be an a g g ra v a tio n o f th e lib e l. A s G a tle y s a y s , “ A d e fe n d a n t sh o u ld n e v e r p la c e a p le a o f ju s tific a tio n o n the re c o rd u n le s s he has c le a r an d

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sufficient evidence of the truth of the im putation, for failure to establish the defence at the trial m a y properly be taken in aggravation o f the dam ages.*'31 Several C anadian provinces have adopted som e of the provisions of the B ritish D efam ation Act of 1952. O f these provisions the N ova Scotia and O ntario statutes have borrow ed one o f particular benefit to defendants using justification as a plea in libel actions. In alm ost identical w ords the tw o acts state the follow ing: In an action for libel or slander for w ords containing tw o o r more distinct charges against the plaintiff, a defence o f justification shall not fail by reason only that the truth of every charge is not proved if the w ords not proved to be true do not m aterially injure the plain tiff's reputation having regard to the truth o f the rem aining c h arg e s.32 T he im plication here, according to R obinette, is that “ . . . although prior to 1958 you had to prove the substance o r the gist of every a llegation, today that is not strictly true. If you prove the truth o f one, w hich destroys reputation for all practical purposes, it is not injurious to the plaintiff to call him som ething else w hen he has really not m uch reputation l e f t ." 33 2. P rivilege, q u a lified and absolute C anadian law allow s the plea o f privilege as a defence in libel proceed­ ings. Privilege m ay be absolute or qualified, A bsolute privilege m ay be defined as relating to a statem ent that is o f such a nature that it is not a ctionable, no m atter how false and defam atory it m ay be, and even though it is published w ith m alice. M alice, in its legal context, is not to be confused with spite or ill-w ill; it relates rather to the purpose for w hich the publication is m ade, a m alicious statem ent being one pub­ lished for som e purpose other than the purpose for w hich the law confers the priviliege of m aking it. G atley34 describes m alice in the follow ing term s: T he m alice essential to support the action is som e dishonest or otherw ise im proper m otive. Such a m otive will be inferred on proof that the w ords w ere calculated to produce actual d am age, and that the defendant knew that they w ere false w hen he published them , o r w as recklessly indifferent as to w hether they w ere false o r not. “ The publication o f a statem ent w hich to the d efendant’s know ledge is false and calculated to injure is m alicious, and is treated as intended to in ju r e ." 35 “ A statem ent m ade by a m an w ho know s that it is false,

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is m ade m aliciously. S o also if he know s that it is likely to injure and has no belief w hether it is true o r false, and m akes it recklessly, not caring w hether it is true o r f a ls e ." 36 But m ere negligence is not m alice. A statem ent false in fact and calculated to produce actual dam age will therefore not support such an action if it w as m ade in the belief, even the careless belief, that it w as true. A gain, " th e m ere absence of just cause o r excuse is not of itself m alice. M alice in its proper and accurate sense is a question of m otive, intention, o r state o f m in d " 37 O f the seven cases of absolute privilege applicable in G reat Britain, six w ould seem to apply in C anada: 1.

2. 3. 4. 5. 6.

A ny statem ent m ade in the course o f and w ith reference to judicial p roceedings by any judge, jurym an, party, w itness, or advocate; Fair, accurate, and contem poraneous reports o f public judicial proceedings published in a new spaper; A ny statem ent m ade in P arliam ent by a m em ber o f either H ouse; Parliam entary papers published by the direction o f either H ouse, and any republication thereof by any person in full; A ny statem ent m ade by one officer o f State to another in the course o f his official duty; C om m unications betw een husband and w ife .38

T he only instances applicable to new spapers and broadcasting seem to be 2 and possibly 4 . T hus the A lberta, S askatchew an, M anitoba, O ntario, N ew B runsw ick and Prince E dw ard Island statutes speak of p roceedings publicly heard before any court as being absolutely privileged. T he B ritish C olum bia, Q uebec and N ova Scotia acts use the w ord “ p riv ile g e d " only, w ithout the adjective “ a b so lu te ” w ith regard to court proceedings. T he British C olum bia, A lberta, M anitoba, New B runsw ick and Prince Edw ard Island A cts are the only provincial statutes to deal w ith S alm ond’s fourth instance o f absolute privilege cited above (that is, “ Parliam entary papers published by direction of either H o u s e .” ) T he B. C. statute talks of “ publication at the request of any G overnm ent office o r d e p artm e n t,” but it is clear that o n ly q ual­ ified privilege is intended since it specifies that publication m ust be w ithout m alice. T he A lberta, M anitoba, N ew B rusw ick and Prince E dw ard Island statutes use the expression “ p riv ile g e d " w ithout an accom panying adjective. In the provincial statutes, conditions laid dow n for the reporting of

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c ourts, w here absolute privilege is claim ed, are m ore stringent than those concerning o th er m eetings. T he O ntario Libel and Slander A ct, w hich m ay be taken as representative, specifies the follow ing: 4 (1) A fair and accurate report w ithout com m ent in a new spaper o r in a broadcast o f proceedings publicly heard before a court of ju stice, if published in the new spaper o r broadcast contem poraneously with such proceedings is absolutely privileged unless the defendant has refused o r neglected to insert in the new spaper in w hich the report com plained o f appeared o r to broadcast, as the case m ay be, a reasonable statem ent o f explanation o r contradiction by o r on behalf o f the p lain tiff.59 It is to be noted that not only m ust reports be fair and accurate but they m ust be m ade w ithout com m ent and issued contem poraneously with court proceedings. (Som e A cts perm it reportage up to thirty days after the trial.40) A pparently to be “ f a ir " a report does not have to be verbatim et seriatim . T hat is, a sum m ary w hich does not adhere to the strict chronology and exact language of w hat is reported is acceptable so long as that sum m ary does not distort w hat it purports to report. T o com m ent on su b ju d ic e m atter is to invite contem pt of court citations, of course. A n occasion o f qualified privilege is one in w hich a person, provided he is not actuated by m alice, is entitled to m ake defam atory statem ents about another. Statem ents, to enjoy qualified privilege, m ust be made honestly and w ithout any indirect o r im proper m otive. T he privilege given is g iven for som e reason, and the defendant forfeits the protection of the privilege if he uses the occasion for a d ifferent and w rong reason. If a defendant does not genuinely believe in the truth o f a statem ent he m akes, the law regards that fact as conclusive proof o f m alice and of im proper m otive. But the converse is not necessarily true. It does not necessarily m ean that if a defendant genuinely believes in the truth of his statem ent he is devoid o f m alice o r that his m otive is a proper one. T he foregoing are som e o f the considerations w hich apply to occa­ sions o f qualified privilege. S alm ond lists the chief instances o f qu a l­ ified privilege as follow s: 1. 2. 3. 4.

Statem ents m ade in the perform ance o f a duty; Statem ents m ade in the protection of an interest; R eports o f parliam entary, judicial and certain other public pro­ ceedings; Professional com m unications betw een solicitor and c lie n t.41

O bviously the fourth instance does not apply to new spapers. Statutory

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protection, in all provinces except N ew foundland, is given for fair and accurate reports o f situations o f w hich those specified in the O ntario Act m ay again be taken to be ty p ical: proceedings o f Parliam ent or any legislative o r adm inistrative body or public com m ission of inquiry or of any organization w hose m em bers represent a public authority4-’ ; public m eetings4’; reports, bulletins, notices or other docum ents publicly issued by governm ent44; and findings o r decisions o f certain specified associations in reference to persons w ho are m em bers o f or co n tractu ­ ally subject to such asso ciatio n s.45 In those statutes w hich go into detail there is little variation from province to province. R eportage o f public m eetings, for exam ple, is an o ccasion o f qualified privilege the conditions o f w hich are rem arkably uniform . M any statutes specifically define “ public m e e tin g s ." The British C olum bia Libel and Slander Act describes the public m eeting as “ any m eeting bona fid e and law fully held for a public purpose, and for the furtherance o r discussion of any m atter o f public concern, w hether the adm ission thereto be general or restricted. “ 46S im ilar definitions are to be found in the A lberta, Saskatchew an, M anitoba, N ew B runsw ick, N ova S cotia, and Prince Edw ard Island statutes. Even statutes w hich do not define a “ public m e e tin g " spell out conditions under w hich reports o f m eetings enjoy qualified privilege, and also enum erate related and com parable privileged events and subjects. Several p ro v in ­ cial statutes have adopted the restriction that public m eetings have to be law fully convened for a law ful purpose and have to be open to the public; the report o f the m eeting has to be fair and accurate; publication o f the m atter at issue m ust be for the public benefit; and the person against w hom com plaint is m ade m ust ‘ ‘publish in a conspicuous place in the new spaper a reasonable explanation o r contradiction by the person defam ed in respect o f the defam atory m a tte r ." 47 The provincial statutes lay dow n the condition, as they do with defam ation o f a less specific nature, that reports m ust not contain m alice. T hey also specify, alm ost as an autom atic rem inder, the “ c o -co n d itio n s" w hich the d efendant m ust observe if he is to avoid not only action for d e fam atio n , but for related crim inal offences as w ell: his reports or broadcasts m ust be free o f seditious, blasphem ous and indecent m atter. In any case, unw illingness to publish the explanatory statem ent referred to earlier m ay be taken as evidence o f m alice on the part o f the defendant. The converse is also true. M any acts extend these sam e conditions to all sorts o f m atters such as proceedings of Senate, C om m ons, legislatures, parliam entary com m ittees, m unicipal councils, school boards and boards o f education. A s R onald G. A tkey says, “ T he com m on law . . . provides a num ber o f form s o f qualified privilege which are useful to new sp ap ­ e r s ." 411 H e continues:

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For exam ple, statem ents m ade by a new spaper in discharging som e m oral, social o r legal duty are protected. An erroneous new s story reporting som eone as m issing m ight qualify for this protection if it is not m ade m aliciously. A gain, statem ents m ade to a person who has a com m on interest in a subject with the person w ho m akes them provides another instance o f qualified privilege. If one new spaper in a chain unjustly criticizes another new spaper in the sam e chain by w ay o f an open letter to that other n ew spaper, the privilege m ight well be invoked. S tatem ents m ade in self-defence can also claim qualified privilege as w ell. For exam ple, if one m an attacks another in the public press, the latter m ay m ake a reply, and the reply may contain countercharges against his assailant, if they form a reasona­ bly necessary part of h is d efen ce.49 Professor A tkey also m akes the follow ing useful observation: T he difference betw een qualified and absolute privilege, i.e.the w aive: o f the im m unity if the publication is m ade m aliciously in the case o f qualified privilege, is a difference m ore apparent than real. M ost C anadian new spaperm en in their day-to-day operations regard the rules o f qualified privilege as their prim ary “ rules o f th u m b " in potentially libellous situations, and there have been few cases in w hich a new spaper has been alleged to have m aliciously published otherw ise privileged re p o rts.50 A case illustrating the conditions under which a plea o f privilege may or m ay not be m ade w as tried on appeal in M anitoba in 1950. (S e e Case N o . 12) A nother interesting case follow ed publication in the T oronto G lobe a n d M a il o f an editorial entitled ‘ ‘M ission A ccom plished. " (See C ase N o. 13) 3. F air C om m ent A s defence in an action for defam ation, a defendant m ay plead that the m atter com plained o f is fair com m ent on a m atter of public interest. A ccording to Salm ond, the requirem ents to be fulfilled are that the m atter m ust on the face o f it appear to be com m ent, that it m ust be fair, and that it m ust be a m atter o f public interest. R elated conditions are that the facts on w hich the com m ent is based m ust be truly stated, that com m ents m ust be honestly believed to be true, and therefore not m otivated by m alice, and that any im putations o f corrupt m otives must either be proved true o r else be a correct inference from the facts com m ented upon. T he privilege o f fair com m ent as being on m atters of public interest extends also to com m ents on m atters subm itted to public

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criticism by the persons concerned. C riticism s o f dram atic p e r­ form ances, books, m usical concerts and so forth fall into this categ o ry .51 In the light o f the foregoing it is apparent that a new spaper m ay deal with a m an ’s public conduct m uch m ore severely than with his private c onduct, particularly if that private conduct has no connection w ith the public good. A m an w ho runs for public office, an a uthor w ho p u b ­ lishes a book, an artist w ho paints a picture, an actress w ho goes on the stage are usually fair gam e for a kind o f criticism w hich.could not with legal safety be levelled against a private person. T h u s, as A lexander Stark im plies in D angerous W ords, it w as because the C herry sisters, attem pting a theatrical com eback, had offered them selves for public judgm ent that they w ere unable to w in a legal action against the D es M o in es L e a d e r after the new spaper had w ritten the follow ing d escrip ­ tion o f their perform ance: E ffie is an old jade of fifty sum m ers, Je ss is a frisky filly o f forty, and A ddie, the flow er o f the fam ily, a capering m onstrosity o f thirtyfive. T h eir long skinny arm s equipped w ith talons at the extrem ities, sw ung m echanically, and anon w aved frantically at the suffering audience. T he m ouths o f their rancid features opened like caverns and sounds like the w ailings of dam ned souls issued therefrom . T hey pranced around the stage with a m otion that suggested a cross betw een the danse du ventre and a fox trot— strange creatures with painted faces and hideous m ien. E ffie is spavined, A ddie has stringhalt and Je ssie , the only one w ho show ed her stockings, has legs w ith calves as classic in their outline as the curves o f a broom h a n d le .52 It is m ost unlikely that the sam e new spaper w ould find it legally safe to use the sam e language to describe a private citizen. N or w ould it safely so ch aracterize a painter o r an author, since the physical appearance of such m en w ould be unrelated to w hat they are offering for public a p p ro v al. A nother illustration of w hat m ay o r m ay not be subject of fair com m ent is to be found in w hat one m ight say about a public building, for exam ple. T he value judgm ent that that building is an architectural m onstrosity is certainly not actionable; the false statem ent that its ceilings and floors are unsafe and persons entering the building run the grave risk o f being killed is certainly actionable. A defence plea w hich com bines both truth and fair com m ent is know n in law as a “ rolled-up p le a .” It is frequently used because editorials in new spapers usually com bine facts and com m ents closely intertw ined. A ccording to G atley, the form the pleading takes is this: “ In so far as the w ords com plained of co n sist o f statem ents of fact, they

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are true in substance and in fact; and in so far as the said w ords consist of expressions o f opinion, they are bona fid e and fair com m ent m ade in good faith and w ithout m alice on the said facts w hich are m atters of public in te rest.” 53 R. F. V. H euston says there is considerable judicial opinion support­ ing the view that fair com m ent differs in its nature from qualified privilege even though S alm ond him self believed that fair com m ent w as sim ply an instance of qualified priv ileg e.54 H euston points out that the d efence o f fair com m ent is a denial of the libel but that the defence of privilege is an adm ission of the libel along w ith the claim that the libel w as published in circum stances giving the defendant an im m unity not available to persons w ho w ere not operating w ithin the area of priv ileg e.55 A nyone in the co u n try m ay m ake fair com m ent on a work of art. But it w ould take such an instance as the p re ss's reporting of a m em ber o f p arliam e n t's rem arks during a sitting of the house to enjoy the qualified privilege o f uttering, with legal im m unity, the falsehood that “ M r. X. is a convicted c rim in a l." H ueston says: . . . T here are tw o adm itted differences betw een the defence o f fair com m ent and the defence o f qualified privilege. If the publication w as upon a privileged occasion, the burden is upon the plaintiff to p rove express m alice; the defendant, on the other hand, has first the burden of show ing that a com m ent is fair before the burden of proving m alice is cast back upon the plaintiff. On the o th er hand, the plaintiff w ho has subm itted his w ork o r his acts for public criticism s b ears the onus o f proving a p rim a fa c ie protected occasion is not in fact protected, w hereas the defendant w ho relies upon qualified privilege has affirm atively to prove the existence o f the priv ileg e.56 In their provincial statutes. N ova Scotia and O ntario, as in the case w ith regard to partial proof in justification, have copied the British D efam ation Act o f 1952 w ith regard to fair com m ent. B oth acts say, in alm ost identical language: In an action for libel o r slander in respect o f words con sistin g partly o f allegations o f fact and partly of expressions of opinions, a defence o f fair com m ent shall not fail by reason only that the truth o f every allegation o f fact is not proved if the expression o f opinion is fair com m ent having regard to such of the facts alleged o r referred to in the w ords com plained o f as are p ro v e d .57 A n exam ple o f an unsuccessful plea of fair com m ent is provided by the 1970 libel suit against Judy L aM arsh. (S e e C ase N o. 14) The o ffence described on page 9, w hich resulted in a contem pt citation,

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also caused Eric Nicol and his em ployers to be found liable for a civil defam ation. {See C ase N o. IS) A case w hich illustrates that a defam a­ tion im puting a crim inal offence is actionable p e r se w as tried in A lberta in 1964. A “ rolled up p le a ” w as also an ingredient of the trial. (S e e C ase N o. 16) A significant precedent to allow w ider latitude in com m ents on political m atters w as provided by an E nglish case in 1968. W hat gave rise to it was the publishing o f letters to the ed ito r of T he D aily T elegraph in w hich it w as alleged that a solicitor w ho had form erly been T ow n C lerk and then legal advisor to a private com pany with property interests contrary to those o f the tow n had been dishonest. T he letter w riter im plied that the so licitor had used “ back d oor in flu e n ce " w ith T ow n C ouncil em ployees to gain concessions for the com pany. T he solicitor and his firm sued both the letter w riter and T he D aily T elegraph for libel. Lord D enning, M aster o f the R olls, ruled that the letters w ere fair com m ent on a m atter o f public interest and gave the follow ing significant ratio decidendi in deciding the case: If he w as an honest m an expressing his genuine opinion on a subject of public interest, then no m atter that his w ords conveyed derogatory im putations: no m atter that his opinion w as w rong or exaggerated or prejudiced; and no m atter that it w as badly expressed so that other people read all sorts o f innuendoes into it; nevertheless, he has a good defence o f fair com m ent. His honesty is the cardinal test. He m ust honestly express his real view . So long as he does this, he has nothing to fear, even though other people m ay read m ore into i t . . .1 stress this because the right o f fair com m ent is one o f the essential elem ents w hich go to m ake up our freedom of speech. W e m ust m aintain that right intact. It m ust not be w hittled dow n by legal refinem ents. W hen a citizen is troubled by things going w rong, he should be free to “ w rite to the n e w sp a p e r" : and the new spaper should be free to publish his letter. It is the o n ly w ay to get things put right. T he m atter m ust, o f course, be one o f public interest. T he w riter m ust get his facts right: and he m ust honestly state his real opinion. But that being done, both he and the new spaper should be c lear o f any liability. T hey should not be deterred by fear o f libel a ctio n s.58

O th e r F ea tu re s o f S ta tu te L a w o f B e n e fit to J o u rn a lis ts In c lu d in g P ro c e d u r a l D e fen c es A lthough not a com plete defence, the offer o r m aking of an apology m ay be given in evidence to m itigate dam ages against the defendant.

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V arious C anadian civil statutes lay dow n the conditions under which dam ages against the defendant m ay be m itigated. T o receive such consideration the defendant m ay plead that he published o r broadcast the libel w ithout m alice and w ithout gross negligence, and that, before com m encem ent of the action or at the earliest opportunity, he published o r broadcast full apology. T he A lberta Act is fairly typical of w hat the civil law says about the conditions w hich m ake possible the lesser punishm ent of special dam age. “ S pecial” dam age is d efined in term s w hich contrast it w ith “ gen­ e ra l” dam age. A ccording to Salm ond, G eneral dam age is that kind of dam age w hich the law presum es to follow from the w rong com plained of and w hich, therefore, need not be expressly set out in the p la in tiff's pleadings. Special d am age, on the other hand, is dam age o f such a kind that it will not be presum ed by the law and therefore m ust be expressly alleged in those pleadings so that the defendant m ay have due notice o f the nature o f the claim — otherw ise the plaintiff w ill not be perm itted to give evidence of it nor will the jury be at liberty to aw ard com pensation in respect of it.59 Section 18(1) o f the A lberta Act says the plaintiff shall recover only special dam age if it appears on the trial a) b)

that the alleged defam atory m atter w as published in good faith, that there w as reasonable grounds to believe that the publication thereof w as for the public benefit, c) that it did not im pute to the plain tiff the com m ission of a crim inal offence, d) that the publication took place in m istake or m isapprehension of the facts, and e) that i) w here the alleged defam atory m atter w as published in a new spaper, a full and fair retraction o f and a full apology for any statem ent therein alleged to be erroneous A) w ere published in the new spaper before the co m m en ce­ m ent o f the actio n , and B) were so published in as conspicuous a place and type as w as the alleged defam atory m atter, OR

ii) w here the alleged defam atory m atter w as broadcast, the retraction and apology w ere broadcast from broadcasting stations from w hich the alleged d efam atory m atter w as broadcast, on at least

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tw o occasions on different days and at the sam e tim e of day as the alleged defam atory m atter w as broadcast or at a tim e as near as possible to that tim e .60 Provinces w hich deal w ith the m atter in a sim ilar w ay are British C olum bia, S askatchew an, M anitoba, O ntario, N ew B runsw ick, N ova S cotia and Prince E dw ard Island. T he Q uebec A ct has substantially the sam e provisions but they are not spelled out in such detail. It is to be noted that in this part o f the various statutes the A lberta, M anitoba, N ew B runsw ick, N ova S cotia, and Prince E dw ard Island acts speak of “ s p e c ia l" dam ages. T he B ritish C olum bia, S askatchew an and O ntario acts speak of “ a c tu a l" dam ages. T he Q uebec statute deals with “ actual and re a l” dam ages. In m ost libel actions the best tactic for reducing the dam ages the new spaper will be required to pay is to apologize, prom ptly, ungrudg­ ingly and fully. A nom alous though it m ay seem , it is possible for a defendant to plead both justification and publication o f a retraction. T his contention w as upheld in a 1963 action involving the T oronto Star. (S e e C ase N o . 17) In B ritish C olum bia in 1970 a case heard on appeal involved the defen d a n ts’ failure to apologize, their unsuccessful plea of fair com m ent, and the co u rt’s acceptance of the plain tiff’s claim o f innuendo. (S e e C ase N o . 18) An apology is likely to be m ore effective w here the plaintiff has launched his suit in order to clear his nam e and reputation rather than to win m oney dam ages in com pensation. Indeed, in such cases there is often a good likelihood that the apology will dissuade the plaintiff from continuing w ith his action, w ith the result that the suit does not com e to trial. T he apology does not exculpate the new spaper from all liability, of co u rse, and som etim es it m ay constitute an adm ission o f the libel. O ccasionally, w here apologies are insincere o r a subterfuge for inflict­ ing a further but “ d isg u ise d ” libel, such apologies m ay aggravate rather than m itigate dam ages. A suit by a union official against a union-published new spaper in B ritish C olum bia illustrated just such a “ sp u rio u s” apology. (S e e C ase N o . 19) M ost civil statutes outline requirem ents w hich p laintiffs m ust fulfill to support a libel action. For exam ple, the A lberta statute requires the plaintiff to give seven d a y s’ notice o f his intention to bring action in the case o f a d aily n ew spaper and fourteen d a y s’ notice in the case o f any other new spaper or o f a broadcasting station. T hat notice has to specify the defam atory m atter com plained of, and it has to be delivered within three m onths after the defam atory m atter has com e to the plain tiff’s notice o r know ledge. M ost provincial defam ation law s lim it the tim e after w hich a libel action m ay be brought against new spaper or against broadcasting personnel. Such law s also require that plaintiffs observe

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certain form alities in bringing action against defendants. T he statutes also stipulate the tim e w hich has to elapse betw een the giving of notice o f the legal action and the filing o f the suit against the defendant. Perhaps the N ew B runsw ick statute (section 18) m ay be taken as representative o f this area o f the law . H ere notice o f intention to begin the libel action m ust be delivered w ithin three m onths after the alleged defam atory m atter has been published o r has com e to the attention of the plaintiff. T he notice m ust specify the defam atory m atter com ­ plained of. In the case o f the d aily new spaper the notice m ust be given at least seven days before the suit is launched, and, in the case o f any other new spaper o r o f a broadcast, at least fourteen days before. The purpose of the “ b u ffe r” period set dow n is to give the new spaper or b roadcaster an opportunity to publish o r broadcast the apologies, retractions o r corrective statem ents w hich m ay help to m itigate the dam ages subsequently assessed. T here is also a “ statute o f lim ita­ tio n s” im plication in section 14 of the New B runsw ick law w hich stipulates that actions for defam ation m ust be com m enced w ithin six m onths after publication of the defam atory m atter has com e to the attention o f the person defam ed. A m odification o f this provision says that any action brought and m aintainable for defam ation published w ithin that period m ay include “ a claim for any other defam ation published against the plaintiff by the defendant in the sam e new spaper or from the sam e station w ithin a period o f one year before the com m encem ent of the a c tio n ." 61 British C olum bia and N ew foundland are the only provinces with legislation deficient in this area of the libel law . M any provincial defam ation statutes sp ecifically em pow er juries to give their verdicts not m erely on the fa c t o f publication, but on the defam atory content of the published m atter com plained o f as well. L egislation w hich is specific on this point (and w hich em pow ers the jury to decide both general and special dam ages) is that o f British C olum bia, A lberta, S askatchew an, M anitoba, O ntario, New B runs­ w ick, N ova Scotia and Prince E dw ard Island. T he stipulation perpetuates a benefit conferred in E ngland by F ox’s Libel Act o f 1792. It m eans, in e ffect, that if a plaintiff is to win a legal case he m ust receive the favorable “ v o te " of both judge and jury; to w in his case the defendant needs o nly to w in the favor o f e ith er judge or ju ry . H arry S treet, in reference to the E nglish situation, is of the opinion that the scales are w eighted in favor of the defendant in a libel action. His rem arks seem equally applicable to C anada: It is often said proudly that in E ngland the jury decides w hether a statem ent is defam atory. But if the judge rules that the statem ent is not capable of being defam atory the jury never has the chance to

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decide the point. And even if the trial judge does let the jury decide, the C ourt of A ppeal can still overrule the ju ry 's verdict that the statem ent w as libellous by holding that the trial judge should never have left the issue to the jury because the statem ent could not be d efam ato ry .62 O f im portance to defendant as well as to plaintiff is the place w here actions for defam ation are tried. W here the subject is covered by provincial statute, the law is quite uniform . T he acts stipulate that the action shall be tried in the judicial district w here the c h ie f office of the new spaper is, o r w herein the plain tiff resides at the tim e the action is brought. H ow ever, provision is m ade to change the trial venue on application o f either plaintiff or defendant if the change appears to be in the interests o f justice o r seem s necessary to prom ote a fair trial. British C olum bia, A lberta, Saskatchew an, M anitoba, O ntario, New B runs­ w ick, N ova Scotia and Prince E dw ard Island m ake the foregoing p rovision. All except Saskatchew an include broadcast libel under the “ place o f tria l" stipulations of their A ct. T hey speak o f the “ judicial d istric t" [or “ c e n tre " or “ c o u n ty " ] w here the ow n er o r operator o f the broadcasting station is situated o r o f the judicial district or centre in w hich the plaintiff resides as the place w here the case m ay be tried if the actionable libel is a broadcast libel. A nother provision w hich benefits new spaper and broadcast perso n ­ nel w ho m ight be defendants in libel actions has to do with the posting o f security for costs. T his is the requirem ent that the plaintiff, not possessing property sufficient to answ er the costs o f an action, post m onies or m ake guarantees in other fashion satisfactory to the court so as to g uarantee that, if required, the plaintiff will pay the costs o f the case should the defendant w in it. T he effect of this law is to discourage frivolous, nuisance, o r speculative suits that m ight otherw ise be unfair to the new spapers o r broadcasting stations against w hich they m ay be filed. T he requirem ent is not unconditional, how ever. Security for costs is usually granted only if a) b) c)

the defendant has a good defence upon the m erits of the case; the statem ents com plained o f w ere published in good faith; and the grounds o f the action are trivial or frivolous.

E ven these conditions are not sufficient to call for security for costs if the m atter com plained o f im putes that the plain tiff has been convicted of a crim inal offence; although special circum stances do perm it even this exception to be overriden. Provinces with “ security for c o s ts " requirem ents are B ritish C olum bia, S askatchew an, O ntario and Q uebec. In Q uebec “ (t]he judge m ay . . . order the plain tiff to furnish

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security for costs provided that the defendant him self furnishes security to satisfy the ju d g m e n t.” 63 A feature o f som e statutes deals w ith new spaper headlines and captions. W here dealt w ith they are to be considered reports w ithin the context o f those sections o f the statutes c oncerned w ith fair and accu­ rate reports o f m atters subject to privilege. So considered, headlines and captions are subject to the sam e conditions o f privilege as outlined in those parts o f the statutes. Prince E dw ard Island, M anitoba, New B runsw ick and N ova Scotia deal with this m atter. A lberta relates h eadlines and captions to reports o f court proceedings only. All provincial statutes except those of N ew foundland and S askatche­ w an deal m ore strictly w ith libelling of a candidate for parliam entary or m unicipal election than they do with plaintiffs w ho are not running for public office. U sually the m itigation o f dam ages w hich the defendant m ay earn by retraction and tender of am ends and by fulfilling other conditions is perm itted in the libelling o f a candidate only if the retraction o f the charge against the candidate is m ade editorially o r by broadcast in a conspicuous m anner at least five days before the ele c ­ tion. In the case o f Q uebec, ‘‘[N ]o new spaper m ay avail itself o f the provisions o f this Act . . . [w ]hen the article com plained o f refers to a c andidate and w as published w ithin the three days prior to the n om ination-day and up to the polling-day in a parliam entary or m unici­ pal e le c tio n .” 64 M anitoba is unique in being the only C anadian province w hich perm its legal action to be taken against persons accused o f libelling a race or the adherents to a religious creed. Section 19 o f its D efam ation A ct reads as follow s: 1)

2)

T he publication o f a libel against a race o r religious creed likely to ex p o se persons belonging to the race o r professing the relious creed to hatred, contem pt or ridicule, and tending to raise unrest or d isorder am ong the people, entitles a person belonging to the race, o r professing the religious creed , to sue for an injunction to prevent the continuation and circulation o f the libel; and C ourt o f Q u e e n 's Bench m ay entertain the action. The action m ay be taken against the person responsible for the authorship, p ublication, o r circulation o f the lib e l.65

A s has been said , the M anitoba provision is exceptional. Elsew here in C anada the com m on law prevails. T his m eans that to sustain a libel action the plain tiff m ust show that the defam atory statem ent has been m ade about him . O utside o f M anitoba the law is pow erless to interfere with group libels. W hen no particular m em bers o f a group are sp ecifi­ cally libelled, no individual can sue. T h u s, for exam ple, w hereas

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attacks on R om an C atholics o r Jew s as a class are actionable in M anitoba, elsew here they are n o t.66 A city o r a m unicipal corporation o r a governm ent is not entitled to sue for libel.61 T he nature o f this proposition is indicated by the 1921 judgm ent given by Judge F isher o f the C ircuit Court o f C ook C ounty against the plaintiff C ity C orporation of C hicago w hich sued the C hicago Tribune. T he case had arisen after the new spaper criticized M ayor “ Big B ill" T hom pson and his adm inistration, using such state­ m ents as “ The C ity is b ro k e ,” “ B ankruptcy is just around the corner for the C ity o f C h ic a g o ,” and “ T he C ity governm ent has run on the ro c k s .” M ayor T hom pson persuaded the City C orporation to issue a w rit claim ing libel dam ages o f ten m illion dollars. T he C ity based its claim on the contention that the T rib u n e's strictures had dam aged its credit and prevented the sale of its bonds to the extent of the ten m illion dollars asked. Judge F isher allow ed a dem urrer and gave judgm ent in favor o f the new spaper. C learly the rem edy that w as sought w as not the right one; rather it should have been a libel suit brought by T hom pson and his fellow officials on their ow n behalf as private in dividuals.68

D am a g es Libel or slander m ay result in m oney aw ards by the defendant to the person defam ed. Injunctions against the defendant m ay provide alter­ native and additional rem edies. D am ages m ay be com pensatory, nom i­ nal o r exem plary. A ccording to P. G . O sborn, dam ages are [c o m p e n sa tio n or indem nity for loss suffered ow ing to a breach of contract o r tort. T he principle is that the injured party should be put as nearly as possible in the sam e position, so far as m oney can do it, as if he had not been injured . . . N om inal dam ages are o f a trifling am ount aw arded contem ptuously, o r for the m ere invasion o f a right w ithout dam age. E xem plary [also called “ p u n itiv e” ] dam ages are aw arded not only by w ay of com pensation, but as a punishm ent to the offen d er.6’ In C anada punitive dam ages are aw arded only reluctantly. The courts prefer to restrict libel aw ards to their prim ary purpose o f com ­ pensating the plaintiff for his injuries. O nly in occasional, extrem e cases, w here the m edia have acted recklessly, w here they have unreasonably declined to apologize, o r where the libel results in a profit to the m edia w hich is larger than the norm al com pensation aw arded to the libel victim , have the courts aw arded punitive dam ages.

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Punitive dam ages w ere aw arded by the Suprem e Court o f O ntario in P latt v. Tim e In ternationa l o f C anada L td . ( S e e C ase N o . 20) T he apportionm ent o f court costs in C anadian cases differs from that o f m ost A m erican jurisdictions. In the latter each party pays his own court costs w hatever the outcom e of the case. T he p lain tiff's law yer takes a fixed percentage o f the aw ard as a contingent fee. In C anada the court costs o f plaintiffs and defendants are separate item s and m ust be borne by the losing party. Such costs include a large part o f both law y ers’ fees.

S la n d e r A s has been indicated above, it is the transitoriness o f slander w hich is the m ain quality which distinguishes it from lib e l. In com m on law , libel is alw ays actionable p e r s e , slander is alw ays actionable p e r quod.™ For slander to be actionable p e r se it is necessary for statute law to spell out the fact, w hich is w hat several C anadian statutes do for certain kinds of slander. G atley, speaking o f the E nglish situation, says “ |t]h e cases in w hich an action for slander w ill lie w ithout proof of special dam age fall under four heads: (1) W here the w ords im pute a crim e for w hich the plain tiff can be m ade to suffer physically by w ay o f punishm ent. (2) W here the w ords im pute to the plaintiff a contagious or infec­ tious disease. (3) W here the w ords are calculated to disparage the plaintiff in any office, profession, calling, trade or business held o r carried on by him at the tim e of publication. (4) By the Slander o f W om en A ct 1891, w here the w ords im pute adultery o r unchastity to a w om an or g irl.71 B ecause, under com m on law , slander is defam ation p e r qu o d rather than p e r se, it becom es necessary, in statute law , to specifically m ake slander actionable p e r se w herever it is intended that action for the slander shall lie w ithout proof o f actual o r special dam age. T hus in m any provinces the im puting o f unchastity o r adultery to w om en in a slander is sp ecifically described as being actionable p e r se. British C olum bia, S askatchew an and O ntario statutues say that special dam age does not have to be proved w hen slander is alleged. T he N ew foundland S lander A ct does not restrict this provision to girls and w om en but includes “ p e rso n s" in the protection provided. T he O ntario A ct describes as slander p e r s e spoken w ords calculated

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to disparage the plain tiff in any office, profession, calling, trade or business, and states that special dam age does not have to be proved. A lso in O ntario, action for slander o f title, slander o f goods o r other m alicious falsehood is handled in the sam e w ay as slander im puting unchastity, provided that certain conditions are fulfilled.

Chapter VI Criminal Libel A s has been pointed out, crim inal libel m ay be defam atory, blasphem ­ o u s, seditious o r obscene.

D efam atory L ib el C an ad a’s law dealing with defam atory libel is provided by the Crim inal C ode, w hich, being an enactm ent of the federal p arliam ent, has a uniform , C anada-w ide application. T he crim inal law o f defam ation is set dow n in section 261 to 281 and 434, 5 1 3 , 656 and 657. D efam atory libel is defined by the C rim inal Code o f C anada as " m a tte r published, w ithout law ful justification o r ex cu se, that is likely to injure the reputation of any person by exposing him to hatred, contem pt o r ridicule, or that is designed to insult the person of or concerning w hom it is p u b lis h e d ." 1 In the w ords o f the C ode, it " m a y be expressed directly o r by insinuation o r irony (a) in w ords legibly m arked upon any substance, or (b) by any o bjects signifying a defam atory libel otherw ise than by w o rd s.’’2 C rim inal libel m a y involve only tw o persons, or as H alsbury has w ritten, publication to the person defam ed alone m ay support a libel pro secu tio n 3 “ p ro v id e d ," according to G atley, “ the w ords are of such a character as reasonably tend o r are calculated to provoke a breach of the p e a c e .’’4 (A m odification o f this legal view point is indicated in the B a n k e rs'T o a d ie s case, discussed in the appendix as C ase N o . 2 / .) This is in contrast to the civil law , w here publication to support an action for libel m ust be to a third p e rso n .5

D e fe n c e s in D e fa m a to ry L ib e l P ro se c u tio n s As w ith civil libel, the m ain defences available in a defam atory libel 66

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prosecution are the plea of truth, the plea o f fair com m ent, and the plea o f privilege. T he C rim inal C ode takes account of the plea of truth when it speaks o f “ true m a tte r" and it refers specifically to “ fair c o m m e n t," but it avoids the w ord “ p riv ile g e " com pletely. H ow ever, it includes a num ber of sections beginning “ N o person shall be deem ed to publish a defam atory libel . . and specifies the situations w hich are nondefam atory. T hese include the sam e m atters w hich are specifically designated as “ p riv ile g e d " in the provincial defam ation statutes and o thers besides. A pparently it is privilege w hich is im plied by the w ords “ o r e x c u s e " in the statem ent, “ A defam atory libel is m atter published w ithout law ful justification or excuse . . . " 1. Truth U nder proper conditions, truth is a defence under the crim inal law governing defam atory libel. T hat this is so follow s from the fact that the definition o f defam atory libel, like that of civil libel cited in the previous chapter, m akes falsehood an ingredient o f the libel. In the C rim inal Code definition it is the w ords “ w ithout law ful ju stific atio n " w hich carry the sense o f “ fa ls e " as used in the C ave definition. As Salm ond say s, “ T he defence that a statem ent is true is term ed a plea o f ju stification, the defendant being said to justify the publica­ tio n ." 6 It w ould seem that the defence o f truth under crim inal law is a m ore conditional defence than it is under civil law. T h is is suggested by section 275 o f the C rim inal Code which says: “ N o person shall be d eem ed to publish a defam atory libel w here he proves that the publica­ tion o f the defam atory m atter in the m anner in w hich it w as published w as for the public benefit at the tim e w hen it was published and that the m atter itself w as t r u e ." 7 In other w ords, truth is not a com plete defence under crim inal law . Public benefit has to be proved as well. In view o f section 275 o f the C ode it w ould seem that M r. R obi­ nette’s “ M any Long Y ears A g o ” answ er discussed in C hapter 5 (at page 49) w ould not apply to a prosecution for defam atory libel launched against the paper m entioned. S alm ond says, “ the publication of the truth, how ever defam atory, is no longer a crim inal offence if the jury is o f opinion that the publication of it w as for public benefit. ” 8T he plea of truth wou Id protect the new spaper only in the unlikely event that the paper could prove that the publication o f the m atter com plained of w as for the public benefit. If, for exam ple, the com plainant in the prosecution w ere a c andidate for public office and the conviction reported by the paper related to his future com petence in that office it seem s likely that the paper could defend itself by pleading that the statem ent m ade had been true and in the public interest.

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2. F air C om m ent T he C rim inal C ode o f C anada deals with fair com m ent in section 274, w hich reads as follow s: N o person shall be deem ed to publish a defam atory libel by reason o n ly that he publishes fair com m ents a) upon the public conduct o f a person w ho takes part in public affairs, or b) upon a published book o r other literary production, o r any com ­ position o r w ork of art o r perform ance p u blicly exhib ited , o r on any other com m unication m ade to the public on any subject, if the com m ents are confined to criticism thereof." 3. M a tte rs fo r W hich the C rim in a l C ode P rovides a D efence A g a in st D efam atory L ib e l C harges, P resum ably on the G rounds o f Privilege In addition to the tw o defences discussed above, the C rim inal C ode sets forth certain saving provisions from defam atory libel w hich correspond to the usual defences in a civil action for libel. C ases in w hich a person is not deem ed to publish a defam atory libel include: publishing pro­ ceedings of courts of ju stic e ;10 publishing parliam entary p a p ers;11 pub­ lishing fair reports o f parliam entary o r judicial p ro c ee d in g s;12publish­ ing fair reports of public m ee tin g s;1-' publishing m atters of public interest for the public b e n e fit;14 publications invited o r necessary in se lf-d efe n ce ;15 answ ers to in q u irie s;16 giving inform ation to persons having a com m on interest;17 and publication in good faith for the redress o f w ro n g s.18

O th e r P ro v isio n s o f th e C rim in a l C ode Secion 280 o f the C rim inal C ode specifies that a person accused of publishing d efam atory libel m ay successfully defend h im self by pro v ­ ing that the m atter com plained of w as contained in a paper published by order o r under the authority o f the Senate o r H ouse o f C om m ons or a leg isla tu re .” As they are under civil law , new spapers are entitled to certain protections against prosecution under the C rim inal Code by virtue of the fact that they fulfill conditions laid dow n by the C ode. O ne of these conditions is specified in the C ode definition o f a new spaper. Section 261 defines a “ n e w sp a p e r" as any paper, m agazine o r periodical containing public n ew s, in­

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telligence or reports o f events, o r any rem arks o r observations thereon, printed for sale and published periodically or in parts or num bers at intervals not exceeding thirty-one day s betw een the publication of any tw o such pap ers, parts o r nu m b ers, and any paper, m agazine or periodical printed in order to be dispersed and made pu blic, w eekly o r m ore often, o r at intervals not exceeding thirty-one days, that contains advertisem ents exclusively or p rin cip ally .20 U nlike the provincial statutes dealing w ith libel, the C rim inal Code defines “ p u b lish in g .” Section 263 says: A person publishes a libel w hen he (a) exhibits it in public, (b) causes it to be read o r seen, or (c) show s or d elivers it, o r causes it to be show n o r delivered, with intent that it should be read o r seen by the person w hom it defam es or by any other p e rso n .21 It is to be noted that the third part of the definition (re " th e person w hom it d e fam es” ) conform s to the H alsbury statem ent that a crim inal d e fa ­ m ation m ay be published to the person defam ed alone. T he C rim inal C ode contains valuable protection for new spaper p ro ­ prietors and sellers o f new spapers and books. A p roprietor m ay avoid punishm ent for publishing defam atory m atter if he can prove the m atter w as inserted in his new spaper w ithout his know ledge and without negligence on his part. If his editor inserts such m atter in his paper the publisher m ay successfully plead that he w as not guilty of negligence, provided he can show that he did not give his editor general authority to insert such m atter, o r that, the nature o f the m atter having becom e know n, he did not continue to c onfer such general authority. T he relevant section o f the Code is 2 6 7 .22 Section 268 provides, in sim ilar fashion, that booksellers are not to be held responsible for know ing what their books, m agazines, new spapers, “ o r other th in g ” contain, and they are not therefore to be considered guilty o f publishing a libel unless any o f the item s com plained about habitually contained such m atter.2’ Section 421(2) o f the C rim inal Code says, “ E very proprietor, p u b ­ lisher, ed ito r or other person charged w ith the publication o f a defam a­ tory libel o r with con sp iracy to publish a defam atory libel in a new s­ p aper shall be dealt w ith, indicted, tried and punished in the province in w hich the new spaper is p rin te d .” 24 T his regulation, w ith its provision for conspiracy to publish, w as enacted as a result o f the “ B abies For E xport” trial in 1948. In keeping with F o x 's Libel Act o f 1792. the C rim inal C ode, as do

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som e provincial statutes for civil libel, defines the pow ers and duties of judge and jury in determ ining a defam atory libel verdict. Section 281 of the C rim inal C ode says this: W here, on the trial of an indictm ent for publishing a defam atory libel, a plea of not guilty is pleaded, the jury that is sw orn to try the issue m ay give a general verdict o f guilty o r not guilty upon the w hole m atter put in issue upon the indictm ent, and shall not be required o r directed by the judge to find the defendant guilty m erely on proof of publication by the defendant o f the alleged defam atory libel, and o f the sense ascribed thereto in the indictm ent, but the judge m ay, in his discretion, give a direction or opinion to the jury on the m atter in issue as in other crim inal proceedings, and the jury m ay, on the issue, find a special v e rd ic t.35

P unishm ent a n d P enalties T he C rim inal C ode deals w ith the use o f defam ation as a m eans of extortion. Section 266 provides the follow ing: (1) Every one com m its an offence w ho, with intent (a) to extort m oney from any person, or (b) to induce a person to confer upon o r procure for another person an appointm ent or office o f profit or trust, publishes o r threatens to publish o r offers to abstain from publishing o r to prevent the publication o f a defam atory libel. (2) E very one com m its an offence w ho, as the result of the refusal of any person to perm it m oney to be extorted o r to c onfer or procure an appointm ent o r office of profit o r trust, publishes or threatens to publish a defam atory lib e l.36 Subsection (3) stipulates that every one w ho com m its an offence under this section is guilty of an indictable offence and is liable to im prisonm ent for five y e a rs.37 Section 264 o f the C rim inal C ode rules that: E very one w ho publishes a defam atory libel that h e kn o w s to be fa ls e [italics m ine] is guilty o f an indictable offence and is liable to im prisonm ent for five y e a rs.38 Section 265 of the Code provides that:

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E very one who publishes a defam atory libel is guilty of an indictable offence an d is liable to im prisonm ent for tw o y e a rs.29

T w o C a n a d ia n C a ses D efam atory libel prosecutions in C anada have been infrequent. O ne of these w as the “ B a n k ers' T o ad ies” affair in 1938. (S e e C ase N o . 21) No C anadian defam atory libel cases w ere reported betw een this case and the G eorgia S tra ig h t conviction o f 1969. (S e e C ase N o . 22)

S e d itio u s L ib e l T he C rim inal Code d efin es seditious libel in term s o f intention. Section 60(2) say s, “ A seditious libel is a libel that expresses a seditious in te n tio n .” 30 Section 60(4) says, “ W ithout lim iting the g enerality of the m eaning o f the expression ‘seditious in ten tio n ’, every one shall be presum ed to have a seditious intention w ho . . . (b) publishes or circulates any w riting that advocates the use, w ith­ out the authority o f law , o f force as a m eans o f accom plishing governm ental change w ithin C a n a d a .” 31 T o ensure that the foregoing provisions will not inhibit legitim ate debate and legal political action, the C ode m odifies the prohibitions of Section 60. Section 61 states: N otw ithstanding subsection (4) o f section 60, no person shall be deem ed to have a seditious intention by reason only that he intends, in good faith, (a) to show that H er M ajesty has been m isled o r m istaken in her m easures; (b) to point out errors o r defects in (i) the governm ent o r constitution o f C anada o r a province, (ii) the Parliam ent o f C anada o r the legislature o f a province OR

(iii) the adm inistration o f ju stice in C anada, (c) to procure, by law ful m eans, the alteration o f any m atter of governm ent in C anada, or (d) to point out, for the purpose o f rem oval, m atters that produce or tend to produce feelings o f hostility and ill-w ill betw een dif­ ferent classes o f persons in C a n ad a .32

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Punishm ents for seditious offences may be severe. Section 62 stip u ­ lates that “ [e]very one w ho . . . (b) publishes a seditious l i be l . . . is guilty o f an indictable offence and is liable to im prisonm ent for four­ teen y e a rs.’’” A lthough prosecutions for sedition have not been com m on and prosecutions for seditious libel have been even m ore rare, the law has been invoked in tim es of w ar and other crisis. Until com paratively recently the test applied in determ ining seditious offences has been the “ S te p h e n " test. It states: A seditious intention is an intention to bring into hatred or contem pt, o r to excite disaffection against the person o f, H is M ajesty, his heirs o r successors, or the governm ent and constitution of the United K ingdom , as by law established, o r either H ouse o f Parliam ent, or the adm inistration o f justice, o r to excite H is M ajesty ’s subjects to attem pt otherw ise than by law ful m eans, the alteration of any m atter in C hurch o r State by law established, or to incite any person to com m it any crim e in disturbance o f the peace, o r to raise discontent o r disaffection am ongst H is M ajesty ’s subjects, or to prom ote fe el­ ings o f ill-w ill and hostility betw een different classes of such sub­ je c ts.”

T he “ S tephen T e s t" w as used in five out o f six reported cases in W estern C anada during the First W orld W ar. It w as also applied in D u v a l v . /?,” a Jehovah W itness prosecution in 1938. H ow ever, the Q u e b ec ’s “ B urning H a te " case has caused the Stephen definition to be superseded by a far m ore liberal test. It w as held by all justices except the chief justice that, for there to be sedition, not only m ust the w ritings com plained about raise discontent o r disaffection am ong subjects or provoke ill-w ill o r hostility betw een different classes, but it m ust be intended to produce disturbance o r resistance to established a u th o rity .(S e e C ase N o. 23) T he new er test, popularly called the B oucher test, is radically differ­ ent from the test previously used to establish seditious intention. It m akes conviction far less likely than previously w as the case. T his is b ecause of the extrem e d ifficulty o f establishing beyond reasonable doubt an intention to incite to rebellion. A s D. A. S chm eiser has said, “ T here is a trem endous gap betw een proving such an intent and p roving an intent to bring the governm ent or adm inistration o f justice into hatred o r contem pt o r to create hostility betw een different classes. T he B oucher case o verrules m ost of the previous C anadian cases . . . ’’’6

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B la s p h e m o u s L ib e l T he law o f blasphem ous libel is dorm ant in C anada today. In its original concept it w as taken to m ean the defam ing o f G od. A ccording to W illiam H. W ickw ar, during the 1819-32 period in E ngland, “ the essence o f blasphem ous libel cam e to consist in its offence ‘against the peace of our L ord the K ing, his crow n and d ig n ity ,' m ore than its being ‘to the high displeasure o f A lm ighty G od, to the g reat scandal o f the C hristian religion, and to the evil exam ple of all o th e rs ,' all o f w hich tendencies w ere alleged in in d ic tm e n ts.” 37 In the m om entous days w hen R ichard Carlile w as fighting his court battles for press freedom in E ngland, the charge w as often that o f blasphem ous libel because, according to W ickw ar, “ C onsidering the state o f L ondon opinion at that tim e there can be no doubt that blasphem ous libel w as the charge m ost likely to obtain a c o n v ic tio n .” 38 T hom as D aw son points out that, “ Even up to the latter part of the nineteenth century it w as held by M r. Justice Stephen . . . th a t ‘a denial of the truth o f C hristianity in general o r in the existence o f G od, w hether the term s of such publication are decent o r o th e rw ise ,' w as a crim inal o ffe n c e .” 3" A different view o f the law o f blasphem y cam e to prevail after 1883 w hen Lord C hief Justice C oleridge directed the jury in R . v. R a m sa y a n d F oote that “ if the decencies o f controversy are observed, even the fundam entals of religion m ay be attacked w ithout a person being guilty o f blasphem ous lib e l.” 40T he C h ief Justice adopted the definition found in Starkie on L ib e l that, “ T he law visits not the honest e rrors, but the m alice of m ankind. A w ilful intention to pervert, insult, and m islead others, by m eans o f licentious and contum elious abuse applied to sacred o b jects, o r by wilful m isrepresentations or w ilful sophistry, calculated to m islead the ignorant and unw ary, is the criterion and test o f g u i lt ." 41 T he C rim inal C ode of C anada does not define blasphem ous libel. Section 260(2) says, “ It is a question o f fact w hether o r not any m atter that is published is a blasphem ous lib e l.” 42 T he C ode preserves the spirit o f the C oleridge dictum . Section 260(3) p rovides that “ No person shall be convicted o f an offence under this section for expressing in good faith and in decent language, o r attem pting to establish by argu­ ment used in good faith and conveyed in decent language, an opinion upon a religious su b je c t.” 4' Section 260(1) lays dow n that “ E veryone w ho publishes a blasphem ous libel is guilty of an indictable offence and is liable to im prisonm ent for tw o y e a r s .” 44 In 1927 E. J. M urphy w rote an A nnotation entitled “ B lasp h em y " in C anadian C rim inal C ases.” In it he pointed out that the law o f blas­ phem y had slept in obscurity in C anada, and prior to the case w hich

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prom pted the A nnotation only tw o prosecutions had taken place under it: R . v. P elletier and R . v. K inler. T he c ase, R . v. Sterry, w as unreported but M urphy com m ented on it q uite extensively. (S e e Case N o . 24) No further C anadian blasphem ous libel prosecution occurred until R . v. R ahard. ( S e e C ase N o . 25)

Chapter VII Obscenity and Censorship T he law finds few concepts m ore difficult to deal w ith than the concept o f obscenity. T his is because public and private attitudes to the subject reflect so m uch uncertainty and disagreem ent. R eactions to the ques­ tion vary betw een the w idest extrem es. For this reason, before an attem pt is m ade to set dow n and discuss the law o f obscenity, it is perhaps helpful to consider the clim ate and m ilieu w ithin w hich the law is enacted and applied.

T h e B a c k g r o u n d A ltitu d e s T o w a rd s O bscenity In the realm of m oral censorship there are m any gradations o f opinion betw een the extrem es o f deeply-ingrained C om stockery and com plete perm issiveness. Perhaps the ultim ate in C om stockery occurred w hen som e censorious people refused to allow books w ritten by m ale authors to be placed on bookshelves beside books w ritten by fem ale authors. T he term “ C o m sto c k e ry " itself derives form the activities o f A nthony C om stock, a reform er spokesm an for the N ew Y ork Society for the S uppression o f V ice. In the 18 7 0 ’s he won a dubious glory by helping to create law s w hich banned books, objects o f art, stage plays and subsequently m otion pictures. O ne o f the m ore notable feat o f his follow ers w as to contribute in spectacular fashion to the fam e of “ S eptem ber M o rn ," a previously obscure painting w hich depicted an innocently-naked and nym ph-like girl. A fter an enterprising press agent had hired som e children to grim ace at the painting and m ake rem arks about it, the predictable reaction of the C om stockians helped to bring popularity and a fortune to the painter. By contrast, the opposite in perm issiveness is suggested ironically by an A rt B uchw ald article, “ T he A n tip o rn o g rap h e rs.” 1 In it, M al­ colm M cM oral, author o f the first antipornographic novel, A K iss on the C heek, tells his interview er, “ It’s true that the clean novel is considered avant-garde at the m om ent, but that d o e sn ’t m ean it's w rong. Som eday there will be so m any clean books on the m arket that no one will be shocked any m o re ." T he com m onest argum ent against obscenity and for censorship m ay perhaps be typified by Pam ela H ansford Jo h n so n ’s On Iniquity. It is an 75

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account of the ghastly torture and m urder o f three c hildren on the M idland M oors o f E ngland, for w hich Ian B rady and his m istress, M yra H indley, w ere convicted in 1967. O ne m ain thesis o f the book is that the increase in crim es o f sex and violence is largely attributable to obscenity, pornography and sadism in books, film s and television. It is a b elief that enjoys wide currency. O n e thought-provoking line o f reasoning, put forth by a w riter friend w hose w riting is neither “ d irty ” nor prissily afraid of sex , focuses on the “ sk in ” m agazines, the P layboy im itators that claim so m uch space on tobacco-store new s stands. He observes that the alm ost exclusive p reoccupation o f such periodicals is with w o m a n 's body, particularly the erogenous areas. H e feels that, to the m ale voyeur w ho obsessively reads and looks at such publications, w om an is m ade into an “ o b je c t,” the sharer o f the sex act and nothing m ore. “ L iterature” o f this sort helps to im plant the conviction that w om an is not a p e rso n ,2 hardly a hum an being— only an organ o f sex , designed for the g ratification of the m an w ho pays his SI .00 for the m agazine or w ho brow ses at the c o m e r new s stand. W hat happens, according to m y friend, is that a pa rt o f a w om an has, for the observer, becom e the w hole w om an. B ut this sort o f d istortion— the confusing o f the part w ith the w hole— is the essence o f one form of insanity. In extrem e form it can m ean the sick m ind o f the m adm an. T he contention is that, through p andering to the prurient interest o f the sensualist, that w hich is obscene can convert a m entally unhealthy but otherw ise harm less m ind into the m ind o f the psychopath, a disaster both for the person w ho becom es th u s unbal­ anced and for the society endangered by his violent acts. A ccording to such a theory pornography and obscenity are the fatal catalysts o f the tragic change. T he theory is one to w hich the H icklin T est (to be discussed later), w ith its applicability to the low est com m on d e nom inator o f society, w ould subscribe. A variant on the them e just considered has been enunciated by Sarel E im erl. He has said: T hese days the w orst harm is inflicted by dirty books w hich give the im pression that all w om en are prom iscuous and orgies com ­ m onplace. T h is is absolute nonsense, and I have long suspected that it is propagated by men w ho are ugly, charm less, and probably virginal, and w ho are using pornography not only to m ake m oney, but also, out o f revenge, to degrade other m en to their ow n level of fru stratio n .3 A novel objection to obscenity also directs attention to m a n 's attitude tow ards w om en. It has been put forw ard by H ugh M acL ennan. O f the grow th o f published obscenity the C anadian novelist has said:

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T his strikes m e as a significant sym ptom o f a probable change tow ard authoritarianism . W e are now living in an extrem ely pe rm is­ sive (m atrist) society which is m anifestly c orrupt, intelligent, w illing to experim ent with anything, luxurious and indifferent to discipline as it used to be understood. It w as like this in the late M iddle A ges w hen the C hurch w as perm issive in everything except heresy and the collection of tithes— thus, in a m odern state, ev erything is allow ed except treason and non-paym ent o f taxes. W hen the puritans (w ho w ere patrists) attacked the late M edieval C hurch, they used personal p o rnog­ raphy— w hich is the surest w ay o f degrading w om en. T his is not healthy baw dry; it is absolute hostility and aggression. I therefore believe that the deluge o f po rnography now flooding the m arket is a sym ptom of a trend tow ard a return to patrist authoritarianism .4 T he rationale for the perm issive approach to obscenity and p ornog­ raphy is to be discerned in the libertarian argum ents for freedom generally. M ilto n 's A re o p a g itica and M ill's E ssa y On L ib e rty are only tw o o f m any w ritings relevant to the problem . T he philosophical basis for perm issiveness in m atters involving obscenity is part and parcel of the lib erals' w ider argum ent for the unrestricted clash and interplay of opinion in the free m arketplace o f ideas. That argum ent is too well know n to require repetition here. It needs only to be added that to the literature o f press freedom that the form al and system atic docum ents of M ilton and M ill represent, supporters o f the w idely tolerant approach have joined their ow n com m ents about the anom alies and irrationalities of m oral censorship. T o arrive at an attitude tow ards obscenity and censorship that is personally acceptable it is perhaps instructive to contrast the approach o f the C om stockians w ith that of the “ p o rn o g rap h e rs." T he C om stockians say that there is a sm all part of life w hich is “ b a d ,” unfit to be depicted; this “ e v il” segm ent m ust be cut out of the picture and only the good and w holesom e part m ay be show n. By contrast, the “ p o rnog­ ra p h e rs '' say that such an expurgated version falsifies life, that reality is not reality unless it includes the “ b a s ic ," carnal facts of life. A ppar­ ently to redress the balance, their response has been to focus attention on w hat the C om stockians have rejected and to ignore the larger and m ore innocent body o f experience w hich m akes up life and w hich the C om stockians consider to be alone fit to be d ep icted .5 Perhaps it is not too sententious to say that each response is untrue to reality, because each fails to consider life as a whole.- It seem s self-evident that both “ d e c e n t" and “ in d ec en t” m ust be part of the picture, but each in its proper and natural proportion. All of w hich leaves unsettled the debate over obscenity and c en so r­

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ship. Such a debate seem s unlikely to be settled as long as there is such a dearth o f objective d ata concerning the effects o f obscene or indecent m aterial. H ow ever, four studies in this area, w hile not conclusive, do deserve m ention. O ne o f these w as m ade in C anada in 1952 by the special Senate C om m ittee on Salacious and Indecent L iterature.6 T he C om m ittee found that the public shared with th e courts concern about literature that (1) m ight produce lew d thoughts, o r (2) m ight induce overt anti-social conduct, o r (3) m ight generally affect the read ers’ m oral standards and those o f society, o r (4) m ight shock or disgust those who m ight read the m aterial. T he testim ony w hich w as received show ed that the public was also interested in m atters not considered in the various C anadian court d ecisions. Fear w as also expressed that objectionable m aterial m ight have a harm ful effect (5) particularly upon the personality and character o f young people, and that (6) such m atter w ould give young people a distorted view o f life generally and the nature o f m an and his relations w ith the opposite sex especially. A nother study o f obscenity and pornography w as A m erican. It was m ade by the nineteen-m em ber C om m ission on O bscenity and Pornog­ raphy w hich reported in 1970. Its chairm an w as W illiam B. Lockhart. By its term s o f reference the C om m ission w as required to perform four tasks: (1) . . . t o analyze the law s pertaining to the control o f obscenity and pornography; and to evaluate and recom m end definitions of obscenity and pom ogrpahy; (2) to ascertain the m ethods em ployed in the distribution of o b ­ scene and pornographic m aterials and to explore the volum e of traffic in such m aterials; (3) to study the effect o f obscenity and pornography upon the public, and particularly m inors, and its relationship to crim e and oth er antisocial behavior; and (4) to recom m end such legislative, adm inistrative, or o th er advis­ able and appropriate action as the C om m ission deem s necessary to regulate effectively the flow o f such traffic, w ithout in any way interfering with constitutional rig h ts.7 T he R ep o rt w as replete w ith tables o f w hich "O p in io n s of Sex E ducators A bout Erotic M a terials,” 8 “ Sex A ttitudes and Exposure to E rotica, A ge and C hurch A tte n d a n c e ,” 9 and “ Percent R eporting A do­ lescent E xposure o f P hotographic D epiction o f C o itu s” 10 m ay be taken as representative. D espite the thoroughness of its statistical approach, the labors o f the panels “ fail|ed ] to establish a m eaningful

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causal relationship o r even significant correlation betw een ex p o su re to erotica and im m ediate o r delayed antisocial behavior am ong adults. O f the nineteen com m issioners, one resigned before the C om m ission m ade its report. T w elve o f the reporting m em bers recom m ended that “ F ederal, state and local legislation prohibiting the sale, exhibition and distribution of sexual m aterials to consenting adults should be re p ea le d .” 12 Five m em bers d issented. C harles H. K eating Jr., the only m em ber appointed to the C om m ission by President N ixon and one of the com m issioners m ost forthright in his advocacy o f censorship, abstained. T w o o f the dissenters. R abbi Irving L ehrm an and M rs. C athryn Spelts, subscribed how ever to the bulk of the m ajority report, w hereas Professors O tto N. L arsen and M arvin E. W olfgang (num ­ bered am ong the tw elve supporting the m ajor recom m endation) w ished to go farth er than the m ajority did in its finding. T hree o th er recom m endations o f the C om m issioners’ m ajority report w ere as follow s: that juveniles should be protected from pornog­ ra p h y ;13 that blatantly sexual public displays should be prohibited and thai C ongress should im pose tougher regulations on sex m atter sent unsolicited through the m ails;14 and that a m assive sex education program be launched im m ediately to overcom e “ fear and preju d ice” and to give people o f all ages a health ier attitude tow ards s e x .'5 T he recom m endations o f the L ockhart C om m ission have not been im plem ented. In predicting that they w ould not be, C live Barnes theorized that w hen C ongress decided the traffic in obscenity and pornography to be “ a m atter o f national c o n ce rn ” it felt that it had discovered an issue w hich m ight be the subject o f po p u lar legislation. He calls the C om m ission “ unusual in that it tells C ongress som ething that C ongress did not expect to h e a r.” 16 T he C om m ission said, in effect, that traffic in obscenity and pornography w as not a m atter of national concern. T hereupon it w ould seem that C ongress, not finding the issue a popular election issue, lost interest in the subject. T he corresponding B ritish study w as that of the Longford C om m ittee on P ornography w hich reported in 1972.17 It w as under the ch airm an ­ ship o f the Earl o f Longford and its m em bership w as m ade up o f fifty d istinguished public figures and experts. Its findings w ere far less liberal than those o f the A m erican L ockhart C om m ission. T he B ritish Study G roup, as it w as som etim es called, m ade generally an ti­ obscenity recom m endations in the areas o f broadcasting, cinem as and theatres, books, m agazines and new spapers, advertising, sex education and the legal field. In January 1973 the Prohibited and Regulated C onduct Project published for the C anadian Law R eform C om m ission a prelim inary study on o b sc e n ity .18T he m ajor part o f that publication was a thought­

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fully analytical study paper prepared by R ichard G. Fox, associate professor, C entre of C rim inology and Faculty o f L aw , U niversity of T oronto. Its considerable value w as not to provide em pirical data but to isolate and classify the difficult sub-problem s that inhere in the com ­ plex question of obscenity. By w ay of a preface the Prohibited and R egulated P roject indicated in tentative fashion the direction of its thinking w hen it said: . . . th e P ro je c t g ro u p b e lie v e s th at, w h e re a d u lts are c o n c e rn e d , the p o s s e s s io n , sa le a n d d istrib u tio n o f “ se x u a lly e x p lic it m a te r ia l" s h o u ld n o lo n g e r b e p e n a liz e d .19

T he Project believes that the prohibition of obscene m atter should be m aintained and applied strictly w here c hildren are co n ce rn ed .20 T he project believes that the flood o f advertising and public display of sexual m aterial should be elim inated so that persons w ho have no interest in such m aterial and do not want access to it will be protected from the nuisance that it represents.21 All four studies just glanced at fail to m ake definitive judgm ents, based on quantified d ata, about the m any factors w hich are ingredients o f the larger obscenity question. But they do suggest how difficult are the problem s that the question of obscenity poses. Indeed, som ething of the frustration felt by jurists w ho have had to w restle w ith obscenity cases w as suggested by Judge S truble in an O hio trial in 1948. H e said the follow ing: O bscenity is not a legal term . It cannot be defined so that it m eans the sam e thing to all people, all the tim e, everyw here. O bscenity is very m uch a figm ent o f the im agination.22

T h e B a sic C a n a d ia n L a w Figm ent of the im agination o r not, obscenity has long been regarded as a legal concept. T he law has w restled with that concept with indifferent success for m any years. A s has been p ointed out, today there are few areas w hich the law deals w ith in less satisfactory fashion. S ection 159(8) a n d the H icklin Test U ntil recent tim es C anada has relied on the com m on law in its dealings w ith obscenity. E ven in 1892, w hen section 179 of the C rim inal Code w as enacted to deal with obscene publications, the Code did not define

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“ o b sc e n e ,” considering that the sense conveyed by the expression itself w as sufficient for purposes of the law . Section 179 m ade it an indictable offence to offer o r expose any obscene book or printed m atter for public sale. L acking a definition of obscenity, the judges w ere left w ithout any uniform standards to apply in adm inistering this part o f the C ode. In their reliance on com m on rather than statute law , they quickly cam e to depend on the H icklin Test, an 1868 d efinition enunciated by C hief Justice C ockburn o f E ngland in the Queeri v. H icklin.-' Cockb u rn 's stipulation w as that “ the test o f obscenity is this, w hether the tendency o f the m atter charged as obscenity is to deprave and corrupt those w hose m inds are open to such im m oral influences and into whose hands a publication o f this sort m ay f a ll.” E ver since it w as first form ulated, there have been m any disag ree­ m ents with the H icklin Test.-* O ne objection is that the test is too subjective, too speculative. It requires the judge to assess the co rru p t­ ing and depraving effect o f the m aterial com plained of upon a g ro u p of unknow n readers. A second stricture is that the test m akes the basis of censorship the “ low est com m on d e n o m in a to r" of the readership. T h u s, because adolescent or em otionally unstable persons m ay get hold o f the m aterial com plained of, that m aterial is denied to m ore m ature, stable and discrim inating people. A third com plaint is that the H icklin criteria, through their failure to deal with the question, perm it of the “ isolated p a ssa g e " test for obscenity, as w as the case with the early A m erican interpretation o f the H icklin R ule. T h is test seem s to derive from the questionable “ I-d o n ’t-need-to-eat-the-w hole-egg-to-know that-it-is-rotten analogy. T he “ isolated p a ssa g e " test takes a part of a w ork out o f context and judges it w ithout regard to the literary, artistic or m oral purpose o f the w ork and to its overall im pact. C ertainly the rigid application o f the H icklin Test has inhibited freedom o f speech and expression and has im posed unnatural restraints on literary crea­ tion. It w as to give greater precision to the law and to overcom e the objectionable features o f the H icklin Test that Justice M inister Davie Fulton introduced in 1959 the Crim inal C ode am endm ent w hich w as to becom e Section 150(8), and w hich w as renum bered Section 159(8) in the 1970 C rim inal Code revision. T he change w as m otivated by what Fulton called the “ p u lp tra s h " w hich w as appearing on C anadian new s-stands in vastly increased q uantities follow ing the Second W orld W ar. H e did not agree with those w ho believed that, w hen properly applied, the existing law and the H icklin criteria w ere adequate to deal w ith the problem . Instead he sought a definition w hich, as he said, w ould allow C anadian judges to m ake their decisions with “ speed and c e rta in ty " by applying sim ple objective tests in addition to the vague subjective test w hich had form erly been the only one available. W hat

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he hoped to do w as to m ake it possible to distinguish easily betw een such “ pulp tra s h " and w orks of genuine literary, artistic o r scientific m erit. T he result w as subsection 8 of Section 150 (now Section 159), which said that: For the purposes o f this A ct, any publication a dom inant ch arac­ teristic of which is the undue exploitation of se x , o r o f se x , and one or m ore o f the follow ing subjects, nam ely, crim e, horror, cruelty and violence, shall be deem ed to be o b sc e n e.25 T he new subsection w as to be applied in conjunction w ith Section 150 (renum bered 159 in 1970), subsection 1(a), and subsection 2(a) w hich had been placed on the statute books at a m uch earlier date. Subsection 1(a) reads: Every one com m its an offence who (a) m akes, prints, publishes, distributes, circulates, o r has in his possession for the purposes of publication, distribution or circulation any obscene w ritten m atter, picture, m odel, phonograph record or other thing w h a tso e v er.26 Subsection 2(a) reads: E very one com m its an offence w ho know ingly, w ithout lawful justification o r excuse, (a) sells, exposes to public view or has in his possession for such a purpose any obscene w ritten m atter, picture, m odel, phonograph record o r o th er thing w h atso ev er.27 T he change in the law m ade by the addition o f subsection 8 was not greeted with unanim ous approval. M any critics found the Fulton am endm ent just as vague as the H icklin Test. It w as pointed out that the phrases “ undue e x p lo ita tio n " and “ dom inant c h ara cte ristic" are so subjective that m oral censorship becom es a highly personal m atter. It w as contended that the law lends itself to abuse by narrow and bigotted people. Som e critics m aintained that, although a case could be m ade for linking sex and violence in the definition, it w as a grievous error to m ake sex so central to that definition. But the m ost serious shortcom ing of the new law w as that it did not m ake clear w hether the F ulton am endm ent w as intended to replace the H icklin Test o r m erely to supplem ent it. T he evidence o f H ouse of C om m ons debates and of M r. F u lto n 's ow n statem ents is that it w as the second alternative w hich w as proposed. T he Justice M inister thought

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o f the new section as a sim ple, easily-applied form ula for dealing with cheap, sex-oriented, m eritless new s-stand m aterial, while still reserv­ ing the H icklin T est for assessing publications that had som e redeem ing features. But the legislators did not translate their intention into law . The uncertainty they created w as resolved by the L a d y C h a tte rle y's L o v e r and subsequent court decisions. T he result w as contrary to what Justice M inister F ulton had intended. In the L ady C hatterley case (S e e Case N o . 26) five justices found the novel not to be obscene, and four held it to be obscene. Professor C harles neatly points up the lack of unanim ity o f the court: H ow w as the novel D. H. L aw rence judged by the co u rt? O f the m ajority, C artw right J ., Judson J ., M artland J ., and A bbott J., judged the book by applying section 150(8) [original num bering] exclusively w hile M r. Justice R itchie applied both the H icklin test and the statutory test. O f the m inority, Justices K erw in, T aschereau and L ocke applied 150(8) exclusively and M r. Justice Fauteaux applied both the H icklin test and the statutory definition. O f the two justices w ho applied the H icklin test, one found the book obscene w hile the other did not. O f those w ho applied the statutory definition, four found the book obscene and five did n o t.2’ O ther judgm ents found the Fulton am endm ent to be exhaustive and rejected the H icklin test. O ne such w as the Fanny Hill case, R eg in a v. C. C oles Co. L td . ( S e e C ase N o . 27) O thers w hich follow ed the L a d y C hatterley precedent and strengthened support for the exclusivity of the statutory definition w ere R eg in a v. C am eron (S e e C ase N o . 28) R eginaw . D u th ie B o o k s L td . ( S e e C a s e N o . 29), R e g in a v . S a lid a (S e e C ase N o . 30) and R eg in a v . M c L e o d a n d G eorgia S tra ig h t P ublishing L td . (S e e C ase N o . 31) O f the com peting m erits o f H icklin and the statutory definition, M a rtin 's A n n u a l C rim in a l Code, 1972 said: It is possible that the w ord “ u n d u e ” can only be interpreted by reference to som e test such as that used in R . v. H icklin, but the better view seem s to be that the test for obscenity as set out in R . v. H icklin has now been entirely superseded by s 159(8).2’ P rofessor C harles com m ents: Instead of having tw o tests for use, one of w hich w ould be a strict, sim ple and objective test o f fact involving little subjective opinion, w e find ourselves w ith one test, a statutory test, m oulded by the

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judiciary until it presents a far m ore liberal test than the com m on law rule it w as intended to supplem ent. N ot a very encouraging exam ple of the effectiveness o f the legal process as a m ethod o f social c o n tro l.30 C rim e C om ics L egislation: Section 159, s. 1(b), a n d s. 7. A nother law relevant to the question of the press and m orals (if not of obscenity directly) is that dealing w ith C rim e C om ics. T he m em ber of parliam ent associated with this legislation, as he w as to be w ith the 1959 am endm ent just discussed, w as the H on. Davie Fulton. In this instance he w as in opposition w hen he achieved the considerable feat of m oving a private m em b e r's bill and seeing it m ade law . T he result, enacted in 1955, w as an addition to subsection 1, and a new subsection 7 o f Section 150(now Section 159) of the C rim inal Code. Subsection 7 defines a crim e com ic as “ any m agazine, periodical or book w hich exclusively or substantially com prises m atter depicting pictorially (a) the com m ission o f crim es, real or fictitious, o r (b) events connected w ith the com m ission of crim es, real o r fictitious, w hether occurring before o r after the com m ission o f the c rim e .“ 3I It seem s fair to observe that the C rim e C om ics legislation has been no m ore satisfactory than has been the new definition of obscenity. The defects o f the C rim e C om ics legislation are described by D. A. S chm eiser in C ivil L ib e rtie s in C a n a d a * Section 160 A t the sam e tim e as the 1959 F ulton am endm ent w as put on the statute books supposedly as an alternative to, but in fact as a replacem ent for, the H icklin Test, parliam ent enacted law s w hich outlined the legal procedure for dealing w ith charges involving obscenity and C rim e C om ics. T he new legislation w as Section 150A of the C rim inal C ode, renum bered 160 in the 1970 revision. T his provided w hat is know n as an “ in r e m ' ’procedure, a procedure brought not against the individual, but against the publication itself. M odel for the am endm ent w as the U nited K ingdom ’s O bscene Publications A ct o f 1957. It seem s w orthw hile to outline the m ain provisions o f the C anadian legislation. (a) A judge w ho is satisfied by inform ation on oath that there are reasonable grounds for believing that any publication, copies of w hich are kept for sale or distribution in prem ises w ithin the jurisdic­ tion o f the court, is obscene o r a crim e com ic, shall issue a w arrant under his hand authorizing seizure o f the copies.

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(2) W ithin seven days o f the issue o f the w arrant, the judge shall issue a sum m ons to the o ccupier o f the prem ises requiring him to appear before the court and show cause w hy the m atter should not be forfeited to H er M ajesty. (3) T he ow ner and the author o f the m atter seized and alleged to be obscene or a crim e com ic m ay appear and be represented in the proceedings in o rder for the forfeiture of the said m atter. (4) If the court is satisfied that the publication is obscene or a crim e com ic, it shall m ake an order d eclaring the m atter forfeited to Her M ajesty in the right o f the province in w hich the proceedings take p lace, for disposal as the A ttorney G eneral m ay direct. (5) If the court is not satisfied that the publication is obscene o r a crim e com ic, it shall order that the m atter be restored to the person from w hom it w as seized forthw ith after the tim e for final appeal has e x p ire d .” O ne feature o f Section 160 for w hich it has been praised is that its provisions prevent vendors of a book from being found guilty “ retroac­ tiv e ly ” o f a crim e just because a book o r periodical is ruled to be obscene. T he vendor m ay be found guilty o f a crim inal act only if he persists in selling o r offering it for sale after the court w arrant against the book or periodical has been issued and unless and until a court order has restored it to the vendor. O ne im plication o f Section 160 that has been criticized rather than praised is that, unless the m atter is appealed to higher co u rts, the verdict o f a single judge m ay determ ine w hether C anadians all across C anada m ay read a certain book or p e rio d ica l. A case in point w as the C anadian status o f F anny H ill w hich needed a favorable verdict o f the O ntario C ourt o f A ppeal to restore it to circulation after it had been w ithdraw n in 1964.*

S o m e J u d ic ia l C o n se q u e n ce s o f th e C h a n g e d O b scen ity L a w In addition to the C rim inal C ode sections 159(8) and 160, there is other C anadian legislation w hich has been enacted to deal with obscenity. B ecause this is perhaps less consequential than the basic law just d iscussed, it is perhaps better left until later in this chapter after the effects o f the 1959 legislative changes have been considered. W hen section 159(8) superseded the H icklin T est, the question of “ undue e x p lo itatio n ” and (although this did not give rise to so m uch judicial uncertainty) “ dom inant te n d e n c y " replaced “ the tendency to corrupt and d e p ra v e " as subjects o f judicial opinion. T he “ isolated p a s s a g e " test lost its legal validity. A determ ination o f “ undue ex­

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p lo ita tio n ” under the Fulton am endm ent o p en ed up to C anadian juris­ prudence such concepts as “ shock and d isg u st,” “ com m unity stan­ d a rd s ,” “ hum an m easuring s tic k ," “ evidence o f artistic and literary m e r it," and “ m otives and in te n tio n s" of the w riter o r artist. Iso la ted P assage Test A story is told about the m eddling w om an w ho com plained that a male neighbor w as offending her sense o f decency by undressing near his uncurtained w indow . A policem an investigated her com plaint. “ But m a d a m ," he said , “ from your house you cannot see anyone standing beside that w in d o w .” “ O h yes you c a n ," she said . “ If I put this chair under m y bathroom w indow and stand tiptoe on the ch air, I can see him as plain as a n y th in g ." T h is sort o f out-of-context view ing is com parable to the “ isolated p a s s a g e '' test w hich w as for a long tim e habitually applied in assessing obscenity. A sking them selves, “ Is the publication to be judged as a w hole, that is, by its dom inant effect, or is it to be judged by reference to isolated p a ssa g e s ? " jurists have adopted the second alternative. W ith m inor exceptions” it w as not until the statutory definition replaced the H icklin Test that the “ isolated p assag e” approach was abandoned in C anada. In the U nited States the practice w as changed by Judge John M . W oolsey in the fam ous U lysses decision of D ecem ber 6, 1933. His verdict w as affirm ed in 1934 by higher court decision, for w hich Justice A ugustus N. H and w rote the m ore im portant parts o f the judgm ent: T h at num erous long passages in U lysses contain m atter that is obscene under any fair definition o f the w ord cannot be gainsaid; yet these are relevant to the purpose of d epicting the thoughts o f the characters and are introduced to give m eaning to the w hole, rather than to prom ote lust or to portray filth for its ow n sake . . . T he book a s a w hole is not pornographic, and, w hile in not a few spots it is c oarse, blasphem ous and obscene, it does not, in our opinion, tend to prom ote lust. T he erotic p assages are subm erged in the book as a w hole and have little resultant effect . . . . . . T he question in each case is w hether a publication taken as a w hole has a libidinous effect. T he book before us has such por­ tentous length, is w ritten with such evident truthfulness in its depic­ tion o f certain types of hum anity, and is so little erotic in its result, that it does not fall w ithin the forbidden class. It is true that the m otive of an author to prom ote good m orals is not the test of w hether a book is obscene, and it m ay also be true that the applicability o f the statute does not depend on the persons to w hom

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the publication is likely to be distributed . . . W e believe that the proper test o f w hether a given book is obscene is its dom inant effect. In applying this test, relevancy o f the objectionable parts to the them e, the established reputation o f the w ork in the estim ation of approved critics, if the book is m odern, and the verdict of the past, if it ancient, are persuasive pieces o f evidence; for w orks o f art are not likely to sustain a high position w ith no better w arrant for their existence than their obscene c o n te n t.34 Inclusion of the phrase “ dom inant characteristic” in Section 159(8) o f the Crim inal C ode m akes acknow ledgm ent of the Justice Hand interpretation. But the laym an, unlike the law professional, has not com pletely elim inated from his thinking the “ isolated p a ssa g e " approach to the obscenity question. T hus, although the late H onorable G eorge N ow lan w as deservedly praised for his refusal to use his office as M inister o f R evenue to m ake him a censor o f im ported b o o k s,” he w as reputed by the new spapers to have said, “ I only have to read a ch ap ter o r a few pages to judge w hether a book is obscene o r n o t." G enerally speaking, C anadian jurists have, since 1959, com e to accept the concept o f the “ w ork as a w hole” in adjudicating obscenity, even though they have not alw ays been explicit in rejecting the “ iso­ lated p a ssa g e " test. O ften their approach to the question has been im plicit in the overall m anner in w hich they have form ulated their decisions. H ow ever, som e have m ade positive pronouncem ents as part of their ratio decidendi or ob iter dicta. In the L a d y C h a tterley's L o v e r c ase, for exam ple, M r. Justice Judson said: N o reader can find a dom inant characteristic on a consideration of isolated passages and isolated w ords. U nder this definition the book now m ust be taken as a w hole. It is not the p articular passages and w ords in a certain context that are before the C ourt for judgm ent but the book as a com plete w ork. T he question is w hether the book as a w hole is obscene, not w hether certain passages and certain w ords, p art o f a larger w ork, are o b sc e n e.38 M r. Justice Ritchie supported M r. Justice Ju d s o n .39 It is interesting to note that in R egina v. D om inion N e w s G ifts (1962) Ltd. M r. Justice Freedm an said o f the tw o m agazines on trial: "V ie w in g both m agazines as a w hole I am unable to say they are o b sc e n e ” w hereas M r. Justice M onnin said: “ Strip the publications o f the references to sex and sex m atters and there is hardly anything salable left in th e m .” (S e e C ase N o . 32) “ T he book should be view ed as a w hole to assess the purpose o f the author— w hether it w as a serious purpose, o r a base p u rp o se " w as the

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opinion o f C hief Justice Porter in the F anny /////ju d g m e n t.40 “ I tested m y reaction to them by trying to see each of them w h o le” said Mr. Justice Laskin in describing how he tried to assess the pictures in the C am eron Art G allery c ase.41 O ther cases w hich took judicial notice of the principle o f ‘‘considering the w ork as a w h o le” w ere R e g in a v. D uthie B o o k s Ltd.*2, R egina v. M c L e o d a n d G eorgia S tra ig h t P ublish­ ing L t d . a n d R e g in a v . O 'R e illy a n d F our O thers. (S e e C ase N o . 33)

D om inant C haracteristic T he elem ent of the new legal definition w hich m ilitated against the “ isolated p a ssa g e ” approach w as “ dom inant c h ara cte ristic.” “ W hether undue exploitation o f sex has been a dom inant characteristic of the m atter being adjudged has n o t,” according to W . H. C harles, “ troubled the courts g r e a tly ." 44 In reaching his L a d y C hatterley decision C hief Justice K erw in con­ sidered and rejected the claim that the dom inant characteristic w as “ to show the evils of industrialism in England and the dam age it does to the hum an s o u l." 45 M r. Justice T aschereau, ho w ev er, pointed out that “ [t]he law says a dom inant and not the dom inant ch ara cte ristic.” 46 Sim ilarly M r. Justice Fauteux said , “ T he expression ‘a dom inant ch aracteristic' does not have a m eaning equating to that o f the e x p res­ sion ‘the dom inant c h aracteristic’. ” 47 P resum ably any o f the justices m ight have accepted the contention that a dom inant characteristic of L a d y C h a tte rle y ’s L o v e r w as to show the evils o f industrialism and its dam aging effect on the hum an soul, and still have ruled the book to be obscene if he had found a n o th er dom inant characteristic to be the “ undue exploitation of s e x .” A s M r. Justice F auteux said , “ Thus c onstrued, the subsection still has scope to bar the defence based on the contention that only /^ p re d o m in a n t characteristic o f the publication is to be c o n sid ere d .” 48 In point o f fa ct, all three justices did find L a d y C hatterley to be obscene, and did find a dom inant characteristic to be the undue exploitation of sex. U ndue E xploitation T he question of w hat constitutes undue ex p loitation, as W . H . C harles points out, has proved to be o f greater difficulty to the courts than has the question o f dom inant ch aracteristic.4’ “ T he phrase ‘undue exploita­ tio n ' is not self-explanatory and does not indicate the standard by which the undueness is to be m ea su re d .” 50 M em bers o f the judiciary have offered definitions during the course o f C anadian trials and appeal cases. M r. Justice T aschereau has said, “ ‘U n d u e ’ in the ordinary E nglish language m eans o f course ‘un­

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re aso n a b le ,' 'u n ju stifia b le .' It conveys the idea that w hat is said goes beyond w hat is appropriate o r necessary to prove the proposition that one endeavours to dem onstrate to the p u b lic ." 51 M r. Justice Fauteux resorts to the S h o rte r E nglish D ictionary, w here he finds " u n d u e " defined as follow s: N N ot appropriate or suitable; im proper, unreasonable. U njustifi­ able, illegal. G oing beyond w hat is appropriate, w arranted or natural; excessive and “ e x p lo itatio n ” as: T he action o f turning to account; the action o f utilizing for selfish p u rp o se s.52 O f the definitions, he says:

R ead together, the first qualifying the second, these w ords indicate that P arliam ent recognizes that, w ithin som e lim its, exploitation of sex in a publication is by no m eans illegal and never w as indeed so considered. C om m on in literature, m oving p ictures and other form s o f entertainm ent, and even in com m ercial publications, exploitation o f sex , w ithin o r beyond these lim its, w ould entirely be banned by s . s . (8) were it not for the presence o f the w ord “ u n d u e " in the provision. T he prevention o f such a result is truly the intended purpose and purport of the w ord. T hat this m ay well be its true significance is suggested by its otherw ise unbounded vagueness and consequential ineffectiveness to indicate p e r se w ith any degree of the certainty required in crim inal m atters, the lim its beyond w hich exploitation o f sex in a publication is prohibited. On this view “ u n d u e " is synonym ous to “ ille g a l," one o f the dictionary m ean­ ings ascribed thereto, and one then m ust and only has to refer to the o th er provisions o f s. 150 [now s. 159], w hich exhaustively states the substantive law o f obscenity, to ascertain the lim its beyond which exploitation o f sex in a publication becom es illegal.5’ M r. Justice Judson, w hose L a d y C h a tte rle y's L o v e r decision was opposite to that of Justices T aschereau and Fauteux, agreed that “ [t]he use o f the w ord ‘u n d u e ' recognizes that som e exploitation o f the them e is a com m on o c c u rre n c e ," 54 but added, “ W hat I think is aim ed at is excessive em phasis on the them e fo r a base purpose. But I do not think that there is undue exploitation if there is no m ore em phasis on the them e than is required in the serious treatm ent o f a novel with honesty and uprightness. T hat the work under attack is a serious work o f fiction

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is to m e beyond question. It has none of the characteristics that are so often described in judgm ents dealing with obscenity— dirt for d irt's sake, the leer o f the sensualist, depravity in the m inds o f an author with an obsession for dirt, pornography, an appeal to a prurient interest, e t c . " 55 In R e g in a \. D om inion N e w s & G ifts (1 962) Ltd. M r. Justice Schultz said o f an article w hich he ch aracterized as “ using dirt for d irt's sa k e " that “ [i]t w ould be difficult to find a m ore obvious instance o f undue exploitation of s e x .” 56 In R egina v. C. C oles Co. L td . M r. Justice R oach associated a definition of “ se x ” w ith definitions o f “ u n d u e " and “ ex p lo itatio n " w hen he said: Sex m eans sim ply the division o f the hum an species into m ale and fem ale. It includes the physical differences betw een m ale and fem ale relative to the reproductive faculties o f each and the phenom ena consequent upon that division. E xploitation o f sex sim ply m eans the utilization o f sex as an elem ent in the com position o f the w ritten m atter. U ndue m eans not agreeable to a standard, excessive, im m oderate, inordinate.57 In the sam e case C h ief Justice Porter (Justices G ibson and M acK ay concurring) asserted, ‘‘T he test of ‘u n d u en ess’ is objective and requires consideration o f a num ber o f fa c to rs.” 58 W hat these factors m ight be will be discussed later in this chapter. D elivering the judgm ent o f the C ourt, M r. Justice B ull, in R eg in a v. D uthie B ooks L td ., related exploitation to baseness w hen he said: T o m y m ind it is equally “ b a se ” to treat sex in a vulgar, repulsive and ugly m anner for the purpose o f encouraging people to think of it and treat it as som ething less than beautiful and no rm al, and to sw eep it from o n e ’s consciousness and under the rug. I am convinced that an exploiting purpose to bestialize and vilify sex is as base as to use it as an aphrodisiac or aid to p ru rien c y .” 59 O ther C anadian judgm ents have also m ade baseness a criterion of undue exploitation. T here has been som e disposition to equate the “ u n d u e n e s s" of exploitation w hich is a criterion o f the obscenity definition w ith the financial gain w hich m ay be m ade by selling obscene m aterial. But in R eg in a v. P rairie S ch o o n er N e w s Ltd. a n d P ow ers (S e e C ase N o. 34),

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M anitoba A ppeal C ourt Justice Freedm an characterized as erroneous “ the learned trial J u d g e 's view . . . that the phrase ‘undue exploitation of se x ' m eant exploitation in the econom ic sense, that is to say exploita­ tion for p r o f it." 60 M r. Justice D ickson, now a Suprem e C ourt of C anada justice, observed: In the early part o f his judgm ent the Judge adopted the definition of “ e x p lo ita tio n " contained in the A m e rica n C ollege D ictionary, “ utilization for profit, selfish u tiliza tio n ” and concluded that w hich is forbidden is the use o f sex for the excessive and selfish purpose of profit. He held that the appellants w ere guilty o f m aking profits out o f sex , and in the result found them guilty. T he Ju d g e ’s finding in this respect w as, w ith respect, in error . . . T here is nothing in the authorities to support the interpretation placed on the phrase ‘undue e x p lo itatio n ' by the Ju d g e .61 “S h o c k a n d d is g u s t" versus “corrupt a n d deprave. ” W hen the statutory definition of obscenity replaced the H icklin Test, it shifted the em phasis from the “ tendency to corrupt and dep rav e” to the potential o f the offensive m aterial to “ shock and d isg u st.” W hether a w ork o r action shocks o r disgusts has been taken as one of the determ in­ ants o f “ undue e x p lo ita tio n " as a “ dom inant c h a ra c te ristic ." It seem s useful, at this point, to try to reconstruct, albeit a little speculatively, w hat reasonably seem s to have been the thinking of som e o f the legislators w hen they enacted the F ulton am endm ent. T his m ay be done in term s of “ corrupt and d ep rav e” and “ shock and d isg u st.” W e m ay theorize that the form ulators and supporters o f the new subsection (8) felt that the existing test w as too lenient w hen it judged the plethora o f “ pulp tra s h ” by its tendency to corrupt and deprave. N ow , under the new law , just so long as it shocked and disgusted (shocked w hom they did not say), it w ould be adjudged obscene. It d id n 't need to tend to corrupt and deprave. M ore m eritori­ ous m aterial— U lysses, L a d y C h a tte rle y's L o v e r and the like— could still shock and disgust w ithout being declared obscene. It w as only when that m ore w orthw hile m aterial had a tendency to corrupt and deprave' that it exceeded allow able lim its. U nexpectedly, of course, C anadian courts have m ade “ undue e x p lo itatio n ” as a “ dom inant ten d en cy ” with its im plication of “ shock and d isg u st” the test o f both types o f m aterial being assessed. Perhaps even m ore unexpectedly, as W . H. C harles has e x p la in ed ,62 w hat w as intended to be a test m ore severe than the H icklin rule has been c onverted, by judicial decision, into a m ore lenient test. (H ow this has occurred is indicated later in this

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ch ap ter in the consideration o f “ H um an M easuring S tic k ," “ C o m ­ m unity S ta n d a rd s ," “ E vidence o f M e rit" and “ M otive and Inten­ tio n ." ) Several legal decisions subsequent to 1959 have taken account of w hether m aterial alleged to be obscene is shocking and disgusting. Mr. Justice T aschereau observed o f L a d y C h a tte rle y's L o v e r that, “ N obody w ould seriously think that the novel could be show n on television o r that any respectable publisher w ould m ake available to the public in a n ew spaper o r a m agazine the com plete story o f ‘Lady C h a tte rle y ’s L o v e r’ w ithout shocking the feelings o f norm al citi­ z e n s .” 63 Justice Fauteux found the m eaning o f “ o b sc e n ity ” to be expanded to include a publication a dom inant characteristic of which is exploitation o f sex “ if . . . such an exploitation is shocking and d isgusting, though not n ecessarily show n to have the tendency to corrupt or d e p ra v e .” 64 M r. Justice Judson gave it as his opinion that “ the enactm ent o f s. 150(8) had the effect of expanding the m eaning of the w ord ‘o b sc e n e ’ . . . and thus o f protecting the public against the shocking and disgusting in addition to the depraving and corrupting aspects of o b sc e n ity .” 65 In R eg in a v. M c L e o d a n d G eorgia S tra ig h t P ublishing L td ., C ounty C ourt Justice D arling spoke o f obscenity as having “ m ore to do w ith the capacity to disgust o r offend rather than any potential to ‘deprave o r c o r r u p t'.” 66 It is interesting to note that som e w itnesses before the 1952 Senate C om m ittee on Salacious and Indecent L iterature67 both m aintained that they w ere shocked and disgusted by m uch of the literature under review and also that such m atter w ould corrupt and deprave those w ho would read it. Yet the point has som etim es been m ade that som ething cannot shock and disgust a n d a ls o c o n u p t and deprave. T his w as the view point expressed in R. v. Beaver.'* As M r. Justice M acL aren said , “ T h ere can be no doubt that the language com plained o f is so foul and disgusting that it w ould be repulsive to m ost persons reading it, and is so g ro ss that there w ould be no d anger of its corrupting their m orals. ” MT he reason­ ing is that the tw o ideas are m utually exclusive b ecause it is the attractive and not the replusive that seduces and causes addiction. A som ew hat sim ilar anom aly w as suggested by the hum orous con­ tretem ps w hich occurred w hen m em bers o f the A lberta legislature and their w ives view ed the film Tom Jones in order to assess its obscenity. T heir verdict w as that it did corrupt and deprave. T he verdict prom pted a critic to m ake the tongue-in-cheek dem and that the governm ent resign on the grounds that they had view ed a film that, by their ow n adm is­ sion, w as corrupting, and that they had becom e a corrupt governm ent. T h e H um an M e a su rin g Stick In any consideration of obscenity, the factors of “ corrupting and

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deprav in g ,* ' "sh o c k in g and d isg u stin g ” and “ undue e x p lo itatio n " suggest subsidiary questions: W ho is to be shocked and disgusted? W ho is to be corrupted and depraved? W ho is to be exploited unduly? Is the test to be individual and personal? Is it to be applied with reference to a com m unity and if so what co m m unity? W hat allow ance is to be m ade for the m otives and intentions o f the author? W hat weight is to be attached to the opinions o f literary experts? A question that m ust be asked about the m atter being tested is this: Is the tendency to deprave and corrupt o r to shock and disgust to be judged by reference to an average o r reasonable adult o r by reference to a child o r abnorm al adult? In the U nited States in 1913 Ju d g e L earned H and “ pronounced a fam ous criticism o f the rule w hich judged literature by its effect on the y o u n g , the salacious and the w eak, but he felt constrained to follow i t.” 70 T he m onum ental U lysses d e cisio n 71 delivered by Judge John M. W oolsey on D ecem ber 6, 1933, offers m ore helpful guidance, not only in the U nited States, but in other countries as w ell. T o assess the effect o f the book, Judge W oolsey read it once in its entirety and read the p assages com plained o f m any tim es. W hat he tried to do was determ ine the reaction U lysses w ould produce in the “ reasonable m a n ," the ‘ ‘person w ith average sexual instincts, ’ ’ the m an described as / ’hom m e m oyen se n su e l by the French. T o avoid m aking “ his reagent too su b serv ien t’ ’ to his ‘ ‘own id io sy n cra sies" he enlisted the aid of w hat he called “ literary a sse ss o rs.” W hat he did w as check his im pressions with tw o o f his friends w ho satisfied the standard of taste and judgm ent he had outlined. W ithout telling them his opinion, he provided each independently with a legal definition o f ‘ ‘o bscen ity ' ’ and asked each to read the book and to say w hether he thought U lysses to be obscene a ccording to that definition. Judge W oolsey reported that, “ Both agreed w ith m y opinion that reading U lysses in entirety . . . did not tend to excite sexual im pulses but that its net effect on them w as only that o f a som ew hat tragic and pow erful com m entary on the inner lives o f m en and w o m e n .” 72 An obliquely related consideration w as suggested in the “ tria l" of L a d y C h a tte rle y's L o v e r in E ngland in I960. Even the circular nature of the “ ten d ency-to-corrupt-those-likely-to-be-corrupted" aspect of the H icklin T est seem ed to provide no argum ent for the censorship of the book if the evidence given by M iss Sarah Beryl Jones, C lassics M istress at K eighley’s G ram m ar School, w as to be accepted. She said that m ost schoolgirls knew the m eanings o f the four-letter w ords w hen they w ere 10, that m ost girls younger than 17 found L a d y C h a tte rle y's L o v e r boring, but that the book had an educational value to girls older than 17 .7' W hich brings to m ind the apocryphal quip o f the m an who w as indignantly asked how he w ould like it if his fifteen year old

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d aughter read L a d y C h a tte rle y's Lover. His answ er: “ I w o u ld n ’t m ind. B ut I 'd hate to have m y g am ekeeper read i t . " Som e C anadian decisions have m ade an attem pt to distinguish be­ tw een the reactions o f the m ature-norm al and the im m ature-abnorm al. In R . v. StrolV 4 it w as held that there w as no obscenity in displaying in shop w indow s ties on w hich colored silhouettes of w om en were im printed even though fem ale breasts w ere revealed. Judge Proulx, of the M ontreal C ourt of S essions, w ho said, “ If these ties are suggestive, then it w ould be necessary to put brassieres on cow s and diapers on d o g s ," 75 ruled that “ the law w as m ade to protect the m odesty of norm al persons, not to bridle the im agination of hot-blooded, vicious or overly scrupulous p e rs o n s ." 76 In R. v. N a tio n a l N e w s C o., (1953), C. C . C. 26, the O ntario C ourt of A ppeal passed judgm ent on fo u r novels and seven picture m agazines. A lthough the C ourt did find the m aterial obscene, it tried to assess its effect on a norm al segm ent o f the com m unity. T he m entally unbalanced and lunatic fringe w ere thereby excluded from consideration. H ow ever the effect of the m aterial on young people w as still m ade a yardstick of judgm ent.

The C om m unity Sta n d a rd s Test It w ould be a m istake to try to decide what co nstitutes obscenity w ithout reference to the m ilieu in w hich the obscenity o r supposed obscenity is com m itted. T he tastes, feelings and state o f m ind o f the com m unity do have a bearing on w hether w riting should be tolerated or suppressed. A book w hich w ould horrify a V ictorian society that insisted on speaking o f the “ d a rk " and “ w h ite " m eat of a chicken because it considered the w ords “ le g " and “ b re a st" im proper m ight not cause the slightest stir in an E ngland used to the H ogarthian realism of the eighteenth century. Judges need to consider how perm issive is the society w hose law s they try to adm inister. T h is suggests that there should be a com m unity standards test for obscenity. Judge L earned H and fostered this approach, and gave a definition of obscenity at the sam e tim e, w hen he based the test on “ the present critical point and the com prom ise betw een candor and sham e at w hich the com m unity has arrived here and n o w ." 77 H ow this applies has been well described by Professor C h a rle s,78 particularly with regard to the L a d y C h a tte rle y's L o v e r case. He m akes a pointed analysis o f the legal issues involved and concludes that it was this case w hich has been responsible for m aking the c om m unity stan­ dards test a part o f C anadian jurisprudence since 1962. M r. Justice Fauteux took account o f the concept because he felt the F ulton am end­ m ent had expanded the H icklin rule. M atter could now be

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obscene even though it did not necessarily have a tendency to corrupt and d eprave, if the dom inant characteristic o f the publication w as an exploitation w hich w as undue. A nd the test o f undueness w as w hether the exploitation w as shocking and disgusting, “ having regard to the existing sta n d a rd o f decen cy in the com m unity. ” (italics m ine)7'' M r. Justice Judson also m ade the “ standards o f acceptance prevailing in the c o m m u n ity " the test of the “ u n d u e n e ss" as stipulated in Section 159(8). H e pointed out that this test had been accepted in A ustralia and N ew Z ealan d after F ullagar, J ., in R . v. C lo se ( 1948) V .L .R . 455 at p. 465 had enunciated it: T here does exist in any com m unity at all tim es— how ever the stan­ dard m ay vary from tim e to tim e— a general instinctive sense of what is decent and w hat is indecent, o f w hat is clean and w hat is dirty , and, w hen the distinction has to be draw n, I do not know . . . that today there is any better tribunal than a ju ry to draw it . . . I am very far from attem pting to lay dow n a m odel direction, but a Judge m ight p erh ap s, in the case of a novel, say som ething like this: “ It w ould not be true to say that any publication dealing w ith sexual relations is obscene. T he relations o f the sexes are, of co u rse, legitim ate m atters for discussion everyw here . . . T here are certain standards of decency w hich prevail in the com m u n ity , and you are really called upon to try this case because you are re ­ g arded as representing, and capable o f justly applying, those stand­ ards. W hat is obscene is som ething w hich offends against those sta n d ard s.80 M r. Justice Ritchie also found that the Fulton am endm ent expanded the m eaning o f the w ord “ o b sc e n e " and also regarded the H icklin T est as leaving “ out o f account publications w hich are obscene in the sense of being offensive and shocking to the com m unity standards o f decency unless they can also be said to have a tendency to deprave and c o r­ r u p t ." 81 H ow ever, he also said: I do not think that this C ourt is bound by, nor w ould I follow , those authorities w hich have tended to construe the H icklin definition as m eaning that literature available to the com m unity is to be lim ited by the standard o f w hat is considered to be suitable reading m aterial for adolescents, but I do think that in discharging his duty under s. 150A [now s. 160] if a Judge is satisfied that the publication before him is likely to have a low ering effect on the m oral fibre of adolescent boys and g irls o r o f any o th er significant segm ent o f the com m unity he w ould be justified in declaring such a publication to be ‘o b ­ sc e n e ' . . .8!

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H e considered that the burden o f determ ining w hat w as offensive to com m unity standards rested w ith the ju d g e ,83 and w as firm in asserting that w hat w as to be deem ed obscene “ m ust be offensive to com m unity standards or be likely to deprave o r corrupt a recognizable segm ent of the p u b lic .” 84 In 1962, the year the L a d y C h a tte rle y's L o v e r case w as decided, w hen the M anitoba A ppeal C ourt confirm ed the low er court decision that E scapade and D ude w ere o b sc e n e,85 M r. Justice Sam uel Freed­ m an , dissenting, professed to judge the m agazine by the standards of the com m unity. H e w arned that the judges m ust be w ary of erecting their personal tastes o r prejudices into legal principles. H e considered that the num ber o f readers a publication had w as a relevant factor in determ ining co m m unity acceptance even though it w as not an abso­ lutely definitive test. C om m unity standards w ere to be determ ined neither by those w ith the low est taste o r interest nor exclusively by the rigid, austere, conservative and puritan segm ent o f society. Rather, a ccording to M r. Justice Freedm an, som ething approaching the general average o f com m unity thinking and feeling needed to be determ ined. D ifficult as they are to apply, objective standards are preferable to subjective assessm ents, based on the personal tastes and predilections o f individual judges. A nd for M r. Justice F reedm an, c om m unity stan­ dards should be contem porary, taking into account present day attitudes to sex. M oreover, in his opinion, those standards m ust also be local, w hich m eans they have to be C anadian.86 T he im portance of Mr. Justice F re e d m a n 's opinion w as affirm ed w hen the Suprem e C ourt of C anada reversed the M anitoba A ppeal C ourt decision. T he seven Suprem e C ourt justices unanim ously approved and adopted the reasons he gave for his dissenting ju d g m e n t.87 O ther cases in w hich the Court subscribed to the Freedm an ratio decid en d i on com m unity standards w ere R eg in a v. D uthie B o o k s Ltd. ,*8 and R eg in a v. O 'R e illy a n d F our O th e rs.89 In the case o f R . v. C am erorf0 the O ntario C ourt of A ppeal rejected the appeal o f M iss D orothy C am eron from her conviction on charges of exposing to public view obscene pictures. T he finding of the Court was that “ [t]he standards o f the com m unity by w hich obscenity is to be tested are contem porary and C anadian and are the m iddle path of interest and tolerance in the com m u n ity , not standards set by those with an interest in art and for the style and m ethod o f the a rtis t.” ’1 T h e R eg in a v. G reat W est N e w s L td . et at* brought an opinion on the relation o f expert evidence to the determ ination o f com m unity standards. M r. Justice D ickson gave it as his opinion “ that the courts have not found it necessary to call upon expert testim ony to describe the standards o f the com m unity. Such evidence is, o f co u rse, adm issible but that is not the sam e thing as saying it is e sse n tia l.” 93

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R egina v. M c L e o d a n d G eorgia S tra ig h t P ublishing L td .9* elicited further d icta on the subject. M r. Justice D arling said: “ Society seem s to have m oved from a ‘patern alistic' to a ‘perm issiv e' one, certainly in the area o f sex m ores . . . but this does not m ean to say that the c om m unity has m oved to the degree o f m aturity in m y opinion n eces­ sary to enable the law to abandon all obscenity strictures o f any kind. ” * R eg in a v. O ’R e illy a n d F our O t h e r s drew from Y ork C ounty C ourt Justice L yon the ruling that in determ ining the lim its o f com m unity acceptability or tolerance the “ m anner and circum stances of the ex p o ­ sure are re le v a n t. . . and thus w hat m ay be tolerated as acceptable in a legitim ate theatre m ay not be tolerated w hen another m edium , for exam ple, television, is u tiliz e d .” 97 G iving the findings o f the w hole C ourt, O ntario A ppeal Court Justice M cG illivray ruled the film show ing o f C olum bus o f S e x by M cM aster U niversity students w as obscene. (S e e C ase N o . 35). H e rejected the defence contention that special allow ance should be m ade for the fact that the audience cam e from the university com m unity, saying “ no exception is to be m ade for the university com m unity even if it is view ed as having standards differing from those o f the C anadian com m unity about i t.” 98 T he adm issibility o f com m unity survey techniques in determ ining c om m unity standards w as usefully discussed by M r. Justice D ickson in R . v. P rairie S c h o o n er N e w s L td . a n d P ow ers. " H e said:

E ssential to adm issibility is the requirem ent that the w itness tes­ tifying be possessed o f expert know ledge. E ssential also is the selection o f the proper “ u n iv erse,” i.e. that segm ent of the p o p u la­ tion w hose characteristics are relevant to the question being studied. In the case at bar, the “ c o m m u n ity " w hose records are being considered is all of C anada. T he universe from w hich the “ s a m p le ,” i.e . the individuals to be polled, is to be selected m ust be representa­ tive o f C anada and not be draw n from a single city. If, and only if, the sam ple is correctly selected can it be said that the opinions found to exist in the sam ple are representative o f the entire u n iv e rse .100

O f the survey results that had been offered in the low er c ourt, Mr. Justice D ickson said: It cannot seriously be contended that the m iniscule and parochial sam ple selected . . . constitutes a prototype o f national tolerance to the particular publications, the subject o f the present charges. If the survey w as intended sim ply as a non-scientific am algam of the view s

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o f a sm all num ber o f u nidentified people it falls foul o f the rule against hearsay. In m y view the survey w as w holly inconclusive, of no probative value, and the Judge w as correct in declining to perm it it to be adm itted as e v id e n ce .101 In R . v. T im es S q u a re C inem a L td ., ( S e e C ase N o . 36) an opinion survey w as found to be no m ore acceptable. At the low er court trial the d efence had sought to introduce expert testim ony as to the com m unity standard of tolerance and acceptance based on tw o opinion survey polls. In rejecting the polls, M r. Justice Jessup asserted, In m y view , w hen an opinion survey or poll is put forw ard sim ply as the foundation o f an e x p ert’s opinion as to com m unity standards, then questions w hich w ould be vital on the question of adm issibility, if the survey w ere put forw ard as evidence p e r se, becom e m atters going sim ply to the w eight o f the ex p ert’s opinion because they affect the prem ises o f such opinion. Such questions include w hether public opinion polling is, in fact, a science, w hether approved statistical m ethods w ere used, w hether adequate social research techniques and interview s w ere em ployed and w hether the questions asked w ere scientifically evocative o f a fair sam ple o f opinion. A further m atter g oing to the w eight of the e x p ert’s opinion is the breadth o f the com m unity reflected in the survey. I think clearly the opinion o f an expert as to com m unity standards o f tolerance m ust be as to the standard o f the w hole com m unity of C anada and an opinion with respect to the standard in only a segm ent o f such national com m unity is irrelevant and perhaps in ad m issib le.102 The E vidence o f Literary, S c ie n tific a n d O th er M erit A consideration parallel to that just discussed is suggested by the q uestion “ T o w hat extent, if at all, is evidence adm issible about the literary, artistic, scientific o r o th er m erit of the p u b lic a tio n ? '' Judge W oolsey thought it proper to solicit the opinions of tw o friends w hen he w as assessing the w orth of U lysses, but in this case it w as the am ateur of good sense w ho served as his “ literary a s s e s s o r." N o literary and certainly no scientific experts w ere called upon. Indeed it had been the practice until very recent tim es, particularly in British law and particu­ larly under the H icklin Test, to debar the “ e x p e rt" from obscenity trials. O ne of the first d epartures from this practice occurred in the E nglish trial o f L a d y C h a tte rle y's L ow eralready referred t o .103A few of m any w itnesses for the defence w ere G raham H ough and M rs. Joan B ennett, C am bridge lecturers in E nglish, and H elen G ardner, reader in R enaissance E nglish literature at O xford, as well as R ebecca W est, the

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B ishop o f W oolw ich, Professor V ivian P into, Francis W illiam s, E. M. Forster,' N orm an St. John S tevas, S tephen Potter and C. D ay L ew is. A C anadian exam ple in line with the changed trend occurred in the Peyton P lace hearing in 1958. Dr. A. M . B eattie as a professor of E nglish, Professor Frank U nderhill as an em inent historian, and C am p ­ bell M cD onald as a w orking jo urnalist, gave expert testim ony on the m erit o f the book. It seem s clear that all three w itnesses w ould have been h appier to m ake their stands on behalf of a w orthier candidate but they felt that to reject Peyton P lace because o f its literary and related w eaknesses w ould have m ade it m ore likely that m uch better creations w ould be sim ilarly denied entry at a later tim e. It should be rem em bered the the P eyton Place c a s t w as heard by the tariff board rather than by a court o f law , but the hearing m ay have had a certain precedent value in that several subsequent legal cases adopted the p ractice o f hearing expert evidence. T hat evidence o f m erit is a legitim ate concern o f the courts is im plied by Section 159(3) of the Crim inal C ode. T hat subsection states: N o person shall be convicted o f an offence under this section if he establishes that the public good w as served by the acts that are alleged to constitute the offence and that the acts alleged did not extend beyond w hat served the public g o o d .10* Section 159(3) is to be applied in conjunction with Section 159(4) w hich says: F o r the purposes o f this section it is a question o f law w hether an act serves the public g o o d , but it is a question of fact w hether the acts did or did not extend beyond w hat served the public g o o d .105 T he low er court proceedings w hich led up to the Suprem e Court hearing that produced the landm ark decision in the L a d y C h a tterley's L o v e r c a s t heard o ral evidence from three literary experts. T hese were Hugh M acL ennan, M orley C allaghan and H arry T . M oore, w ho tes­ tified on the literary and artistic m erit o f L a d y C h a tte rle y's L o v e r and D. H. L aw re n c e's place in E nglish literature. W ritten evaluations by A m erican literary critics w ere also considered. T his expert opinion was review ed w hen the Suprem e C ourt gave its judgm ent. O f the four justices g iving the m inority verdict against the book, C hief Justice K erw in found that the onus o f m aking the final decision about ob scen ­ ity m ust lie w ith the tribunal rather than w ith the e x p e rts.106 M r. Justice T aschereau said “ too m uch w eight has been attached to the expert evidence a d d u c e d " 107 and “ art can co-exist with obscenity and does not exclude i t . " 10* M r. Justice Fauteux held that "e v id e n c e o f experts . . .

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has been excluded under H ic klin jurisp ru d en ce” IWand “ [w ]hatever be the outstanding position held by L aw rence as a w riter, this book offers no evidence that an expert in literature n ecessarily qualifies, for that reason as a c ustos m o re s."'"3 M r. Justice L ocke m ade no reference to the issue. O f the five justices giving the m ajority opinion for the book, M r. Justice R itchie found expert evidence to be adm issible under the H icklin R u le and C rim inal C ode, section 150(8) [now section 159(8)]. M r. Justice Judson said, “ O ne cannot ascertain a dom inant characteris­ tic o f a book w ithout an exam ination o f its literary or artistic m erit and this . . . renders adm issible the evidence o f the author and others on this p o in t...... Justices C artw right, A bbott and M artland concurred w ith M r. Justice Judson. R obertson D avies and A rnold E dinborough w ere the literary experts w ho gave low er court evidence in the F anny H ill case. In review ing that low er court v erd ict, O ntario C ourt o f A ppeal C hief Justice P orter said, “ It is our duty, after carefully exam ining the book itself, to determ ine what w eight should be put upon any expert evidence that m ay be ten d e red .” " 2 But M r. Justice R oach said , “ although the elem ent of ‘un d u en ess’ in the proscription im posed by s. 150(8) m akes the e v i­ dence of experts in the field of literature relevant as to the literary and historical m erits o f the publication in question, the essential purpose of the statute is to protect public m orals and such experts are not, usually, experts on questions o f m orality and accordingly they should not be asked nor perm itted to give opinion evidence as to the m oral qualities of a b o o k .” " 5 - In the D orothy C am eron c a se "4 five expert w itnesses gave evidence for the defence. C onflicting opinions about their acceptability were expressed by M r. Justice A ylesw orth and M r. Justice L askin. Mr. Justice A ylesw orth felt that “ w here there is a clear and unequivocal o ffence against com m unity standards, artistic m erit will not obliterate the obscenity that is thereby e sta b lish e d .” " 5 He also held that “ [t]he argum ent that the pictures conferred a benefit on art students by depicting w ith artistic m erit the hum an form , and on the public by educating them in the appreciation o f art failed because to accom plish these ends the exposure o f obscene draw ings w as u n n e ce ssa ry .” "6 By contrast. M r. Justice L askin held that: E xpert evidence is adm issible on the issue of “ undueness” although even w hen such evidence is uncontradicted it m ust be w eighed by the C ourt. T he determ ination o f contem porary com m unity standards, view ed in national term s, m ust com e from experience o f art since a standard connotes som ething m ore than a personal reflex. A ccord­ ingly, expert evidence to assist the C ourt is indispensable and the Court ought not to be left by the C row n to rely on the pictures

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them selves to m ake its appraisal o f the d raw ings in the light of c om m unity standards. W hile the M agistrate w as entitled to discount the expert evidence for the defence, he w as not en titled , w hen artistic m erit had been clearly show n, to rely on an entirely subjective appraisal and so find that the C row n had proved its case beyond a reasonable doubt. He w as not en titled to supply the evidence that should have com e from the C row n. A lthough the existence o f artistic m erit in the w ork does not necessarily preclude a finding o f undue exploitation o f sex as a dom inant characteristic, it will be a rare instance in w hich the d om inance can be so suppressed by a sexual them e as to m ake the exploitation o f sex a dom inant characteristic w hich is u n d u e ."7 In the C ounty C ourt hearing w hich led to the order for forfeiture of L a s t E xit to B rooklyn, five experts gave evidence. T he B ritish C o lu m ­ bia C ourt o f A ppeal rejected the appeal from the low er courts order."* D elivering the judgm ent o f the C ourt, M r. Ju stice Bull said “ that any literary o r artistic m erit there m ay be therein, and any sincere and valid purpose o f the a uthor disclosed thereby, are clearly subm erged by the undue and decided over-em phasis o f the objectionable ch aracteris­ tic s .” "9 In R eg in a v. G rea t W est N e w s L td . et a l'20 M r. Justice D ickson, giving a judgm ent in w hich M anitoba C hief Justice Sm ith concurred, said “ In som e o f the cases a book or w ork o f art m ay be predom inantly characterized by an appeal to sexual interests but also em body literary o r sociological o r other values. E xpert evidence to assist the court is, in such circum stances both adm issible and d e sirab le.” 121 In R eg in a v. G oldberg a n d R e itm a n 122 the experts w hose evidence w as considered w ere Pierre B erton, Joan F ox, an experienced film critic; the c urator of the C anadian Film A rchives in O ttaw a; a m em ber of the O ntario B oard o f O b sce n ity ;121 a c urator from the Art G allery o f O ntario; and three p rofessors from M cM aster U niversity. At the W ent­ w orth C ounty C ourt trial, they testified that the film “ on tria l” had artistic m erit. But w hen it w as assessed by the O ntario C ourt of A ppeal their evidence did not prevail and the appeal from the low er court obscenity conviction w as dism issed. M o tiv es a n d Intentions It is often hard to dissociate literary, artistic and o th er m erit from the m otives and intentions o f the creative artist. T herefore, if com m unity standards and evidence o f m erit are to be factors in the determ ination of obscenity, so too should be m otives and intentions. In the past, as long as the H icklin T est dom inated obscenity decisio n s, they have not

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been. Even until fairly recent tim es the practice has been to disregard the purpose for w hich the book w as w ritten or the w ork o f art created. T his approach has accorded with the presum ption that a person intends the natural consequences o f his a c ts .124 In the A rtem us Jones libel appeal decision, Lord C hancellor L oreburn w as denying the relevance of m otives, no m atter how blam eless, w hen he said of the S u nday C hronicle reporter, “ H is intention . . . is inferred from w hat he d id .” 125 In the past, censors and judges considering obscenity have usually done the sam e. In som e instances the jurists have m ade a nom inal acknow ledgm ent o f the fact that m otive m ay be relevant w ithout allow ing such m otive to determ ine their verdicts. M ore recently they have taken account of the intention o f the w riter, artist o r perform er. In the U nited S tates, in the U lysses decision already c ited, for exam ple, Judge W oolsey left no doubt about his stand. A t one point he spoke o f “ another aspect o f the book w hich I have further to consider, nam ely, Jo y c e ’s sincerity and his honest effort to show how the m inds o f his characters o p e ra te .” 126 H is verdict w as: “ I do not anyw here detect the leer o f the sen su alist” 127 and “ Joyce sought to m ake a serious experim ent in a new , if not w holly, literary g e n re .” 128 In C anada a w illingness to consider m otives and intentions seem s to have com e about w ith the supplanting o f the H icklin T est by section 159(8) o f the C rim inal Code. O n the face o f it, a consideration of the purpose of the creato r o f “ o b scen ity ” w ould seem to run counter to section 159(5) of the C ode, w hich says: “ For the purposes of this section the m otives o f the accused are irrelev a n t.” 129 Som e recent C anadian judicial o pinions w ould seem to d isregard this enactm ent, except that in these cases it is u su a lly the seller, the distributor o r the exhibitor rather than the “ c rea to r” who is accused. T hat “ in ten tio n " w as to be m ade a criterion o f obscenity rulings w as perhaps im plied in the phrase “ undue e x p lo itatio n " o f the Fulton definition. T he expres­ sion w as introduced to take account o f “ the traffickers in pulp tra sh " w hose overriding m otive w as to sell sex either alone or in conjunction w ith crim e, horror, cruelty or violence for crass com m ercial profit. Presum ably financial profit w as not to be regarded as a legally accept­ able m otive, w hereas serious literary or artistic o r scientific purpose w as considered justification under the law for the m atter being as­ sessed, although, as indicated by Justices Freedm an and D ickson in the P rairie S c h o o n er c ase 130 “ undue e x p lo itatio n " w as not to be defined in term s o f econom ic gain.

O th e r O b sce n ity L a w s H aving considered the im plications o f the basic obscenity law , w e may

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now turn our attention to o th er C anadian legislation dealing with obscenity. T a r iff Item 99201-1 T he use o f the courts to determ ine obscenity applies not only to m atter dealt w ith by the C rim inal Code but also to m aterial handled by T ariff Item 99201-1 o f S chedule C o f the C ustom s T a riff.131 T his item p ro ­ hibits the im portation into C anada of “ books, printed paper, draw ings, p aintings, prints, photographs or representations o f a treasonable or seditious, o r o f an im m oral o r indecent c h a ra c te r.” 132 B efore 1958 it w as the duty of the M inister o f N ational R evenue, acting on the advice o f senior m em bers o f his departm ent, to judge w hether certain im port­ able books and periodicals w ere obscene. A list o f banned books w as then prepared, on the basis of w hich such publications m ight be denied entry at the border. For m any years such publications as F aulkner’s San ctu a ry , Jo y c e ’s U lysses and R adclyffe H a ll's W e ll o f L o n elin ess were thus excluded. A fter B lair Fraser had begun preparation of a M aclea n P article entitled “ O ur H ush, H ush C e n so rsh ip ,” 133 the prohibition against U lysses w as quietly lifted. But the system itself w as not to be changed until after the 1958 appeal by Dell Publishers against the ruling w hich had excluded Peyton Place, a novel by G race M etalious. T he appeal w as heard by the T ariff B oard. E xpert testim ony favoring adm ission o f the book w as given by P rofessor Frank U nderhill, Dr. A. M . B eattie, and M r. C am pbell M cD onald. A w itness opposing the book w as the Rev. Jam es R. M utchm or. T he Board voted tw o to one to adm it P eyton Place. At the tim e the decision w as given, no appeal from a tariff board ruling w as possible, except w here a question of law w as involved, in which case the E xchequer C ourt o f C anada w ould be called in to adjudicate the special legal issues raised. Shortly after the Peyton P lace hearing, how ever, an am endm ent of the A ct took aw ay from the T ariff Board the pow er to hear appeals, and gave the jurisdiction to C ounty o r D istrict C ourt judges outside Q uebec, and to Superior C ourt judges in the province o f Q uebec. T he change w as w elcom ed by the T ariff Board, w hich had not enjoyed having to perform a difficult task for w hich it felt it had no special com petence. It is to be noted that just because a book o r periodical is allow ed by C ustom s to enter C anada, this does not m ean that it is im m une from subsequent p rosecution under S ections 159 o r 160 of the Crim inal C ode. T his fact w as tested in R egina v. P rairie S c h o o n er N e w s Ltd. a n d P ow ers.'3* C ontending, in the low er co u rt, that 227 paperback books and 29 m agazines, charged as obscene w ere not obscene, the defence m aintained “ that even if the publications are obscene they should still be acquitted because they operated under a b ona fid e

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m istake o f fact that the publications were not obscene. T h is defence is based on the circum stance that the m agazines and books, all originals in the U nited States, had been allow ed entry into C anada by the C anadian C ustom s D e p a rtm e n t." '3-' M r. Justice Freedm an disposed o f the ques­ tion by ruling, “ T o say that non-prohibition of these publications by the C ustom s D epartm ent has the effect here claim ed w ould be to deprive the court of its proper function . . . T he sim ple truth is that the determ ination o f obscenity is essentially a m atter o f opinion . . . If, som ew here along the w ay, som eone (no m atter how highly placed, and w hether in the C ustom s D epartm ent o r elsew here) expressed an opin­ ion that a publication w as not obscene, it w ould rem ain just that, an opinion and no m o r e ." '36 T his judgm ent m ade it unnecessary for the M anitoba jurist to settle another m atter only glanced at: “ W hether the phrase ‘of an im m oral o r indecent c h ara cte r' in Item 99201 - 1 o f Sched. C of the C ustom s T a r iff is the equivalent of the term ‘obscene* in the C rim inal C ode is d e b atab le .'* '37 The P ost O ffice A c t Section 164 of the C rim inal C ode provides that “ Every one com m its an o ffence w ho m akes use o f the m ails for the purpose of transm itting or delivering anything that is obscene, indecent, im m oral o r scurri­ lous . . . " ‘3S [although there are certain exem ptions from the prohibi­ tion as m entioned in subsection (4) o f section 162J. Section 7 o t the Post O ffice A c t139 provides a m eans o f censorship against such o ffen ­ sive m aterial, and this includes obscene as well as blasphem ous or seditious m atter. U nder the term s of the A ct, the Postm aster General m ay prohibit delivery o f mail directed to o r m ailed by persons whom he, on reasonable grounds, believes to be com m itting an o ffence by m eans o f the m ails. T he only right o f appeal against such a prohibition is to a board of review , com posed o f three persons nom inated by the Postm aster G eneral. T h is board m ust include a m em ber o f the legal profession. Sole pow er of the board is to m ake recom m endations to the Postm aster G eneral, who is not required to accept its advice. H e may decide to rescind his original o rder or allow it to stand, a fter w hich no further appeal is perm itted. It is also w ithin his discretion to revoke his prohibitory order after he is satisfied that the person affected will not again use the m ails for a w rongful purpose. T he Postm aster G eneral m ay require an undertaking to that effect from the person against w hom the order has been m ade. O bscenity In The M ovies A form of the m ass m edia, if not of jou rn alism , w hich seem s particular­

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ly “ obscenity p ro n e " is the m ovies. C ensorship o f m otion pictures com es under provincial law . All provinces except Prince Edw ard Island have acts to regulate the operation o f theaters and the show ing of film s. T hese are: (B ritish C olum bia) M o tio n P ictures A c t'* (A lberta) A m u se m e n ts A c t 141 (Saskatchew an) The T heatres a n d C inem atographs A c t142 (M anitoba) The A m u se m e n ts A c t143 (O ntario) T heatres A c t'u (Q uebec) C inem a A c t'iS (N ew B runsw ick) T heatres, C inem atographs a n d A m u se m e n ts A c t146 (N ova Scotia) T heatres a n d A m u se m e n ts A c t 117 (N ew foundland) The C ensoring o f M o v in g P ictures A c t144 T he foregoing statutes deal w ith such m atters as the building w here film s m ay be show n and the licensing o f projectionists, but they also concern them selves w ith the censorship o f film s. T he A lberta, O ntario, N ew B runsw ick, N ova Scotia and N ew foundland acts provide a censor or board o f censors to approve, prohibit o r regulate the exhibition of film s w ithin their respective provinces. T he M anitoba act provides that the L ieutenant G overnor in Council m ay appoint a film classification board com posed o f not m ore than fifteen p e rso n s,149and that, if deem ed desirable the L ieutenant G overnor in C ouncil m ay co-operate w ith the governm ents o f o th er provinces in C anada in appointing a joint film classification board, com posed o f not m ore than fifteen p e rso n s.150 It is to be noted that in 1973 a film classification board classification w as insufficient to protect the film , L a s t Tango In Paris, from prosecution for obscenity under the regular obscenity law s, and it took acquittal on the obscenity charges rather than a favorable classification to provide perm ission for the film show ing in M anitoba. In B ritish C olum bia the officer w ho perform s these functions is know n as the “ film classifica­ tion d ire c to r,“ and appeals from his decisions m ay be m ade to an appeal b o a rd .151 In Saskatchew an the d irector appointed to adm inister the A ct is the chairm an o f the S askatchew an Film C lassification B o a rd .152 In Q uebec regulation o f film s w as perform ed by the Board of C inem a C ensors until the 1966-67 session changed the nam e of the body to “ C inem a S upervisory B o a rd ,” and the nam e o f the Act from “ M oving Pictures A c t” to “ C inem a A ct. ” l5’T o cen so r film s show n in that province. Prince E dw ard Island borrow s the services o f the New B runsw ick censor. N ot only are the censorship agents em pow ered to approve or d isa p ­ prove m otion picutres in toto, but in the British C olum bia,

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S askatchew an, O ntario statutes it is specified that they m ay also “ rem ove by cutting or o th e rw is e " parts of film s they do not approve o f. O ther m atters o f a related nature that are dealt with in a consistently sim ilar fashion include: stam ps or certificates of approval for film show ings; the issuance o f licences; penalties in the form o f fines and im prisonm ent for violations of the respective statutes. P rovision for the censorship o f m otion picture advertising is included in the British C olum bia, A lberta, Saskatchew an, M anitoba, O ntario and Q uebec law s. Som e provinces use a system of film classification. Section 9(2) of the B ritish C olum bia act classifies film s as follow s: (a) G eneral, being suitable for all persons; (b) A d u lt, being unsuitable for or of no interest to persons under the age o f eighteen years; (c) R estricted, being suitable only for persons o f the age of eighteen o r o v e r.154 S ection 9(3) says: “ U nless authorized by the d irector, o r unless the person is accom panied by his parents or other responsible adult person, no person under the age o f eighteen shall attend or be perm itted to attend a m otion-picture theatre at w hich a film classified as ‘restricted' is exhibited o r d is p la y e d ." 155 By section 2 9 . 19(i) o f the provincial act, the A lberta L ieutenantG overnor in C ouncil m ay m ake regulations “ prescribing the classifica­ tion o f film s as fam ily pictures o r pictures for universal exhibition or any other system o f d iv is io n ." '5* By section 8(2)(c) o f its a ct, Sas­ katchew an classifies film s as general, adult and restricted a d u lt.157 Section 3(2) o f the O ntario T heatres Act says that the Board o f C ensors “ has p o w e r . . . (e) to classify any film as adult entertainm ent, and (f) to classify any film as restricted e n te rta in m e n t.” '51 By im plication any other accepted film s not so classified are “ general” film s. Section 21(4) o f the O ntario Act stipulates that “ N o person apparently under eighteen years o f age shall be perm itted to purchase a ticket o f adm is­ sion o r be granted adm ission to o r perm itted to rem ain in a theatre w here a film classified as restricted entertainm ent is about to be or is being e x h ib ite d .” '59 By an am endm ent enacted in 1967, Section 10 o f the C inem a A ct of Q uebec provides that the C inem a Supervisory Board shall authorize the show ing o f a film by m eans o f a visa indicating as follow s the class o f spectators for w hich it is granted: (a) “ Film for a ll” : spectators o f all ages

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(b) “ Film for adolescents and a d u lts” : spectators at least four­ teen years o f age (c) “ Film for adults o n ly ” : spectators at least eighteen years of a g e .160 T he Board m ay also issue a special visa indicating a p articular class of spectators to w hom (also when and w here) a film m ay be sh o w n .161 W hat is not acceptable for public view ing is left to the discretion of the censors in B ritish C olum bia, A lberta, O ntario, N ew B runsw ick and N ova Scotia. Section 4 o f the N ew foundland act speaks o f film s considered “ injurious to the m orals o f the p u b lic .162 Section 10 o f the Q uebec C inem a A ct, an am endm ent placed on the statute books in 1967, perm itted a film to be show n if, in the opinion o f the C inem a Supervisory B oard, “ its show ing is not prejudicial to public o rder and good m o ra ls.” 163 Section 23(2) o f the M anitoba A ct provides that the film classifica­ tion board shall “ (a) classify any film o r slide w hich in its opinion is unsuitable for view ing by children o r by a fam ily by reason o f sex, n udity, violence, foul language or o th er reason, in such a m anner that the film o r slide shall be restricted to view ing only by persons eighteen years o f age o r o v e r .” 1M Section 24(1) says: “ A ny peace officer or inspector on the instruction o f the board m ay order the rem oval from all public places o f any advertisem ent relating to any film o r slide if the advertisem ent is o f an im m oral, obscene, o r indecent nature, o r depicts any m urder, robbery, o r crim inal assult, o r the killing o f any p e rso n .” 165 S ection 15(1) o f the S askatchew an statute says that, N o person m ay insert in a new spaper or periodical any advertisem ent regarding a film that (a) gives details o f a crim inal action o r depicts crim inals as adm ir­ able o r heroic characters; (b) is im m oral o r obscene o r suggests lew dness o r indecency; (c) offers evil suggestions to the m inds o f young people or children; (d) is for any other reason injurious to public m orals o r opposed to the public w e lfa re .166 U nder the old Q uebec M otion Pictures A ct, children under the age of 16 w ere, with certain very lim ited excep tio n s, not adm itted to picture show s, but by an am endm ent enacted in 1967 (w hich a lso changed the nam e o f the act from M otion P ictures Act to C inem a A ct) this strict prohibition w as lifted and children w ere allow ed to attend according to the categories of film s previously indicated.

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M ost acts provide for regulations by w hich the lieutenantgovernor-in-council m ay m ake specific stipulations w hereby the Act is enforced.

M isc e lla n e o u s L eg isla tio n T here are m any law s relating to obscenity w hich have a general rather than a specifically journalistic application. In this connection, the part of the C rim inal C ode entitled ‘‘O ffences T ending To Corrupt M o ra ls," (w hich includes Section 159 and Section 160 previously discussed as w ell as S ections 161 to 167) provides a useful reference. Section 159(2)(c) and (2)(d) should be o f special interest to the advertising departm ents o f new spapers. Section 159(2)(c) says: E very one com m its an o ffence w ho know ingly, w ithout lawful justification o r excuse, . . . offers to sell, advertises, publishes an advertisem ent o f, o r has for sale o r disposal any m eans, instructions, m edicine, d rug or article intended o r represented as a m ethod of causing abortion o r m isca rria g e .167 Section 159(2)(d) says: E very one com m its an o ffence who know ingly, w ithout lawful justification o r excuse, . . . advertises or publishes an advertisem ent o f any m eans, instructions, m edicine, d rug o r article intended or represented as a m ethod for restoring sexual virility o r curing venereal disease or diseases o f the generative o rg a n s.168 T hese tw o subsections are rarely invoked. In 1961, after the accused com pany had m ailed to W innipeg householders circulars advertising its prophylactic and condom p roducts, K eystone E nterprises L td. was tried sum m arily under section 150(2)(c) [now 159(2)(c)]'wT he defence that it w as the intention o f the accused to advertise an article to be used for safeguarding health w as rejected, and the defendant w as convicted and fined $ 2 5 .0 0 . But in giving judgm ent, M agistrate R ice noted, “ T here is only one reported case on the subject, decided som e 60 years ago, but it had to do with m edicine and not the product advertised by the a c c u s e d ." 170

O b sce n ity p e r se a n d L o g o p h o b ia If a concept m ay be borrow ed from the area of libel, it m ay be said that

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the obscenity thus far dealt with is obscenity p e r quod. In our exam ina­ tion o f legal d ecisions, and in our consideration o f such questions as “ com m unity sta n d a rd s,” “ hum an m easuring stic k ” and “ m otives and in te n tio n s” the idea has been im plicit that accom panying circu m ­ stances are the determ inant o f w hat is obscene. By c ontrast, a narrow er view point is that a specific act o r piece of w riting o r display m ay be denom inated “ o b sc e n e ” by reason o f som e intrinsic quality o f that act o r piece o f w riting o r display. Such ob scen ­ ity m ight be called obscenity p e r se. T hose w ho subscribe to the belief that obscenity is inherent— and these m ay be a decreasing num ber of people— are the farthest rem oved in their thinking from those w ho consider that obscenity is a figm ent of the im agination. T hose w ho are of the obscenity /?e rse sc h o o l subscribe to the “ isolated p a ssa g e " test o f obscenity. T hey are the people who believe that nakedness is o b sc e n e .171 A nd they are usually afflicted with logophobia. “ L o g o p h o b ia " m eans fear of w ords. M uch censorship derives from logophobia. T hus, for the censorious, it is not the act but the nam ing of the act w hich is shocking. Such persons are less d isturbed by the new s that a w om an is living in sin than they w ould be by the speaking or w riting o f the four letter verb w hich denotes the basic action of living in sin. C ritics claim that such an attitude is akin to the taboos o f prim itive trib e s.172 A parallel is to be seen in the preference for the euphem ism to the blunt expression. An exam ple from the social w elfare field will illus­ trate. T hus in past days there were p e o p le , just as there are today, w ho suffered hardship because they w ere poor. A ltruists helped them by giving them m oney, food o r clothing. In doing so the benefactors were said to be displaying charity, one of the trinity of the virtues, faith, hope and ch arity , so that the benevolence becam e know n as ‘ ‘c h a rity .' ’ F o r a tim e the term w as an honorable o n e, but presently it took on a d ero g a­ tory co nnotation. T h e beneficiaries resented the w ord as som ething to be asham ed of. So a new w ord, free from such connotations, w as sought. L anguage-m akers reasoned that the act o f benevolence was perform ed to relieve hardship and suffering. So “ re lie f" becam e the euphem ism for what had form erly been “ c h a rity " . B ut after an interval pejoration set in again, and the w ord “ re lie f" lost respectability in its turn. So now “ social w e lfa re " has becom e the substitute expression. And it m ay be that “ social w e lfa re " will w ear out eventually also. It is possible that the shock w ords of sex and scatology have under­ gone a sim ilar process, dating back to m ediaeval tim es when priests c ould, in an unem barrassed w ay, use all the four-letter w ords in describing bodily functions in letters o f instruction and adm onition w hich they addressed to the convent nuns for w hose m oral w elfare they had a responsibility.

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O ne m ight even theorize, w ith at least a sm all claim to plausibility, that the “ o b scen ity ” of som e w ords and the “ no n -o b scen ity ” o f others relate in part to their sounds. Som e w ords describing sex and excretion use guttural, den tal, labial and hissingly sibillant sounds— and are unacceptable. Som e w ords are liquid, unstaccato, and soothingly sibil­ lant sounds— and are acceptable. T he difference in sound if not in acceptability is illustrated by the contrast betw een the last verse of M asefield’s C argoes and the first tw o verses. T he serenity and tranquil­ ity of Q uinquirem e o f N inevah from distant O phir, R ow ing hom e to haven in sunny Palestine, W ith a cargo o f ivory, And apes and peacocks, Sandalw ood, cedarw ood, and sw eet w hite w ine. OR

Stately Spanish galleon com ing from the Isthm us, D ipping through the T ropics by the palm -green shores, W ith a carg o o f diam onds, E m eralds, am ethysts, T opazes, and cinnam on, and gold m oidores. is strikingly different from the abrupt ugliness of Dirty B ritish coaster w ith a salt-caked sm oke stack. B utting through the C hannel in the m ad M arch days, W ith a cargo o f T yne coal, R oad-rails, pig-lead. F irew ood, iron-w are, and cheap tin tra y s.17' It m ight not be com pletely fanciful to suggest that m ere oral and aural differences account for the fact that of tw o w ords w hich m ean the same thing one is considered, in polite society, to be proper, and one is considered im proper. “ C o p u late ” is acceptable; “ f u c k ," unaccept­ able. “ C o itio n ,” “ fo rn ic a te ," “ v a g in a ," “ c lito ris ,” “ p e n is ,” “ tes­ tic le s ,” “ u rin a te " and “ d e fe c a te " are sanctioned w here their use is necessary. “ C u n t," “ c o c k ," " b a l l s ," “ p is s " and “ sh it” are taboo w ords. It m ight be claim ed that the oral-aural taboos being discussed are m ore a m atter o f aesthetics than o f obscenity. And aesthetics w ould seem to be a factor in determ ining not only sex taboos but scatology

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laboos as w ell. U se o f the w ord “ d irty " to describe “ o b sc e n e " w riting m akes the point. A nother theory is that the distinction betw een “ o b sc e n ity " and “ n o n -o b sc en ity " is a social one. T he so-called “ lo w e r” classes m ay be im m une from logophobia. T he fact that there is an increasing use of the once-forbidden w ords m ay m ean that class distinctions are breaking dow n. Increasing linguistic freedom m ay be in part a trium ph for the “ natural m a n " L aw rence extolled in L a d y C h a tte rle y 's Lover. It has reasonably been argued that logophobia should not e x ist. It has reasonably been argued that there is no obscenity in w ords but rather in the hatred and cruelty behind the w ords. T his w as the thesis of A rnold E dinborough and R obertson D avies w hen giving expert evidence in the F anny H ill c a s e .174W hen, as reported to the author, a num ber o f young people “ lib e ra te d " a W innipeg church by running dow n the aisles during a service and shouting four letter words, the obscenity surely lay in the cru elty and hostility o f the invaders rather than in their w o rd s.175 E dw ard Sagarin condem ns the use o f the word “ sc u m ” as m eaning “ s e m e n " because o f the attitude the w ord conveys. And this is scum ! T hat is w hat our language calls these m ost precious drops w ithout w hich hum anity could not continue. T his is m ore than sim ple irony. It is bitter tragedy. T h is is m ore than a confession of m an ’s contem pt for sex, his view o f sexuality as an abom inable and g enerally dirty practice. It is a confession o f his contem pt for life— particularly and specifically his ow n, the hum an life .176 By c ontrast, opponents of the obscenity p e r s e school o f thought find no obscenity in calling a m an a “ son of a b itc h ,” w hile sm iling and poking him playfully in the ribs— thereby conveying the idea that the person so addressed is a “ gay d o g .” E ven if Prim e M inister T rudeau did say to his H ouse o f C om m ons opponents “ Fuck o ff!” there w ould be no obscenity if he said it in such a w ay as to convey the idea o f “ fuddle d u d d le ,” “ fiddle fad d le” o r “ pish tu s h .” T here is probably more hum or than obscenity in the pseudo-philologist’s derivation of the word “ fu c k " as an abbreviation o f “ file under carnal k n o w le d g e ." It was innocent am usem ent that caused E nglish and C anadian Second W orld W ar soldiers to use the neologism s, “ s n a fu ," “ ta r f u ," “ f a f u ," and “ f u b a r." T hey d id s o know ing “ sn a fu ” w as an abbreviation of “ situa­ tion n o rm al, all fucked u p ,” “ ta rfu ” an abbreviation o f “ things are really fucked u p ,” “ f a fu " an abbreviation o f “ fucking aw ful fuck u p ," and “ f u b a r," an abbreviation o f “ fucked up beyond all recogni­ tio n ."

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An innocence of a different kind w as displayed by Robert B row ning w hen he tried his hand at etym ology. As N oel Perrin tells it: . . . the editors o f the O x f o r d E nglish D ic tio n a r y ,. . . interested to find a contem porary use o f “ tw a t” w rote to B row ning to ask in what sense he w as using it. B row ning is said to have w ritten back that he used it to m ean a piece of headgear for nuns, com parable to the cow ls for m onks he put in the sam e line. T he editors are then supposed to have asked if he recalled w here he had learned the w ord. Brow ning replied that he knew exactly. H e had read w idely in seventeenth century literature in his youth, and in a broadside poem called “ V anity o f V a n itie s,” published in 1659, he had found these lines, referring to an am bitious cleric: T hey talk ’t o f his having a C a rd in a lly H at; T h e y 'd send him as soon as an O ld N u n ’s T w at. If you are sufficiently delicate and sheltered, it is possible to take the last w ord as m eaning som ething like a w im ple, and B row ning did. A fugitive and cloistered virtue can get into difficulties that even M ilton d id n ’t think o f .177

M o ra lity a n d L a w T hose w hose approach is liberal and perm issive contend that such factitious elem ents o f so-called obscenity as have just been discussed should not govern o u r h a ndling o f w hat is claim ed to be pornographic or indecent. T h ey believe also that m any of the m easures taken to deal w ith obscenity m ay have ridiculous consequences. Past m oral cen so r­ ship o f the m ovies provides an exam ple: Soon after the H ays office was set up, a film contained a sequence in w hich a m an and a wom an entered the w om an’s bedroom and spent a few innocuous m inutes together, after w hich the m an left. But the H ays code said that no scene m ight depict a m an and w om an, unaccom panied and not m an and w ife, together in a la d y ’s bedroom — and this couple w as unm arried and unaccom panied. So the bedroom scene w as deleted . W hat the audience saw w as a m an and a w om an open a bedroom door and enter the room beyond it. T h ey saw the d oor close, looked at the outside o f the door, saw the door op e n , presum ably after a tim e lapse, and then saw the man em erge alone. W herefrom the audience concluded that the “ w o rst” had happened. A final consideration reiterates a thesis strongly believed by m any serious students o f the obscenity question. It is their conviction that, in

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an individual personal context at least, it is a m istake to m ake obscenity the subject o f crim inal law . W hat C anadians do in private circu m ­ stances is a m oral question and not a legal question at all. B ecause C anadian society is a pluralistic society, w hat one segm ent o f that society adopts as its m oral law m ust not be im posed on the rest o f the nation by m eans o f c rim inal law . W ith one exception obscenity m ay be treated as sin but m ust not be treated as crim e: it is only w hen w hat is term ed “ o b sc e n e ” c au ses overt behavior dangerous to the w elfare o f society or o f other individuals that the intervention o f the law is justified. T o anyone fam iliar with Prim e M inister T ru d ea u 's announce­ m ent that he intended to take the governm ent out of the bedroom s of the nation and with the philosophy underlying the C rim inal C ode am en d ­ m ents concerning hom osexuality and gross in d ec en c y ,178 the rationale for divorcing im m oral behavior in obscenity m atters from the law is well know n.

Chapter VIII Copyright If the law o f obscenity is uncertain and unsatisfactory, so too is the law w hich deals with copyright. In the case o f obscenity a critical source of difficulty is the problem o f bringing a legal concept into harm ony with the heterogeneous social m ores of the com m unity and o f the nation. In the case o f copyright, technology is the ingredient in the situation w hich has caused confusion in and ineffectiveness of the law . A nd in the case of copyright also, international law com plicates the situation for the C anadian journalist, author, m usician and artist.

D e fin itio n s In his authoritative book, The C anadian L a w o f C opyright an d Indus­ trial D esigns, Dr. H arold G . Fox quotes tw o definitions o f co p y rig h t.' O ne is: “ the right to m ultiply copies of a published w ork, o r the right to m ake the w ork public and still retain the beneficial interest th e re in .” -’ T he second is: “ the exclusive right of m ultiplying copies of an original work o r com p o sitio n , and consequently preventing others from so d o in g .” 3 A nother useful w orking definition o f copyright is “ the right, secured by law , to authors o f literary, m usical and artistic w orks to prevent any reproduction o f their w orks w ithout their c o n se n t.” 4 The definition contained in the C anadian C opyright A ct is half a page long and is m ore d e ta ile d .5 T he right inherent in copyright is seen to be o f a dual kind: it involves the exclusive right to publish and the exclusive right to m ultiply copies o f a w ork. T h u s, w hereas a reader w ho buys a novel m ay otherw ise do w hat he w ants w ith his copy he m ay not republish that book nor m ay he m ake copies o f it, those rights being vested in the publisher w ho m ade the contract w ith the novelist and paid m oney to him for his copyright. W hat the reader buys is a p h y sic a l property. W hat the copyright holder retains is said to be incorporeal property.6

H istorical B a ck g ro u n d o f C a n a d a 's P resent C opyright L aw C a n a d a 's present copyright law is the result of several developm ents. It 114

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has been m arked by a change from com m on to statute law . It has been influenced by early p ractices and legislation in E ngland. It has been affected by C a n a d a 's place and role in the B ritish E m pire, particularly before the C anadian C opyright A ct o f 1921. A nd it has been c o n ­ ditioned and shaped by international law , so that it is virtually im pos­ sible to e xtensively consider C anadian dom estic copyright w ithout reference to international agreem ents in the copyright field. For these reasons it seem s useful to lead up to a consideration of current C anadian copyright by sketching in the historical background o f the subject. T he reader interested in a m ore detailed discussion m ight profitably consult H arold G . F o x ’s T h e C anadian L a w o f C opyright a n d Indus­ trial D e sig n s,7 The P rotection o f L itera ry Property* by Philip W itten­ b erg, and C opyright, M o d ern L a w a n d P ractice ,9 by P. F. C arterRuck, E . P. Skone Jam es and F. E. S kone Jam es. Fox points out that, under R om an law , the right o f an a uthor to ow nership o f his pro d u c­ tions, at least if they w ere literary as opposed to artistic, w as u n k n o w n .10 D uring the M iddle A g es, before the invention o f printing from m oveable type, copying w as generally perm itted provided the copier did not claim a u th o rsh ip ." Som e years after the introduction of printing into England in 1476, restrictive legislation w as passed, m ore to protect the dom estic printing industry and to serve as a censorship device than to safeguard the rights o f authors in their w o rk s.12 H enry V III’s 1529 statute instituted royal control o f printing through the granting o f both privilege and p aten t13 but “ these printing privileges w ere not granted in any w ay as a recognition o r protection o f the au th o r’s right but only as a com m ercial m onopoly of p rin tin g .” '■‘ T he genesis o f the p rin te r’s o r bo o k seller’s copyright derived from the m onopolies granted to the S tationers' C om pany in the late sixteenth century and th ere afte r.15 Until its abolition in 1641 the Star C ham ber C ourt w as the agency by w hich the C row n exercised authority over the p re s s .16 In 1649 the first statute regulating printing required the licens­ ing o f books and provided for fines a gainst those w ho pirated books registered w ith the S tatio n ers’ C om pany, but the c om pany w as denuded o f m uch o f its pow er in 1653 and 1655.17 L icensing A cts of 1662, 1685 and 1692 added little to the protection o f a u th o rs.18 In the 1709-1710 session o f parliam ent E n g la n d ’s first C opyright A ct w as e n a c te d .19A lthough the new law set a lim it on the duration of copyright, L ondon booksellers, registered with the S tatio n ers’ C om pany, tried to m aintain that they held copyright to certain books in perpetuity under the com m on law .20 A lthough there w as som e question as to w hether copyright existed at com m on law p rio r to the 1709 legislation, various legal judgm ents and judicial opinions supported the idea that com m on law copyright had so e x iste d .21 But that the 1709 A ct superseded the com m on law right w as established by D onaldson v. B eckett, (1774), 4 Burr. 2408, 2 Bro P. C . 129.22 T hat A ct w as

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replaced by the L iterary C opyright Act o f 1842, w hich in turn w as replaced by the C opyright A ct, 1911.23 T he Im perial C opyright A ct o f 1842 had legal effect in the British colonies and therefore in the provinces that w ere to becom e C a n ad a .24 T h is despite the fact that L ow er C anada had passed its ow n copyright act in 18S223 and the united province of C anada had enacted legislation in 1841.26 A fter the B ritish N orth A m erica A ct created the new D om in­ ion o f C anada in 1867, the federal governm ent passed copyright acts in 1868 and in 1872, although the latter w as disallow ed by the Im perial authorities on the ground that it conflicted w ith Im perial legislation.27 A copyright act o f 1875 w as em bodied in the R evised Statutes o f C anada 1886, and preserved with am endm ents in the R evision of 1906.28A n e w C anadian C opyright A ct, 1921 cam e into force on January 1 ,1 9 2 4 .^ It had the effect o f repealing all the enactm ents relating to copyright that had been passed by the Im perial Parliam ent so far as they applied to C a n ad a .30 T his latter developm ent w as part and parcel o f the grow ing auton­ om y o f the D om inion. If copyright had been a purely dom estic m atter, it w ould have been easy enough to be g overned by consideration of autonom y alone, and to pass copyright law s w ithout reference to any o th er country. B ut a publisher in one country m ay publish for readers, view ers or listeners o f that country the books, plays, pictures, film s or m usic created by the authors, playw rights, p ainters, film m akers or m usicians o f another country. A nd this applies not only to countries of the B ritish com m onw ealth, but to other countries as w ell. T he fact that literary, m u sical, dram atic and artistic creation crosses international boundaries com plicates the copyright question. If the w hole w orld follow ed one uniform copyright practice the situation w ould be com ­ paratively sim ple. B ut it does not. T he fact is that, w hile living in their ow n country, nationals are not subject to the law s o f another country. T hus C ountry A m ay pass a copyright law . C itizen b o f C ountry B flouts that law by plagiarizing or pirating a book w ritten by C itizen a o f C ountry A. C itizen a has no redress. C itizen b is not punished. L ater, C ountries A and B rem edy the situation by signing a c opyright treaty w hich provides m utual protec­ tion for the citizens of both countries. But this d o esn ’t do author a or author b any good if citizen c o f C ountry C , w hich has no copyright treaty w ith C ountries A and B, decides to plagiarize and pirate the creations o f authors a and b. W hat is needed to assure authors of invariable copyright protection is a copyright convention to w hich all c ountries subscribe. T he trouble is that it is m ost difficult to secure a consensus am ong all countries. W hat in fact has happened is that som e c ountries have signed one convention, som e countries have signed

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another c onvention, w hile the rem aining countries have signed no convention. T his m eans that authors, artists and m usicians have protec­ tion w ithin the countries o f their ow n c onvention, but they still run into trouble from the signatories o f the rival conventions or from non­ convention countries. O f course, w here countries subscribe to m ore than one convention, the authors, m usicians and artists in that country enjoy a w ider protection. T ypical o f the grievances w hich authors have against the copyright practice o f an earlier day have been the experiences o f such prom inent w riters as C harles D ickens. A m erican publishers pirated m any o f his w orks, publishing him w ith im punity in the U nited States and paying him nothing. W hat is som etim es forgotten is that D ickens was not the only person m ade unhappy by the practice. M any A m erican authors c om plained that if the publishers had not concentrated on D ickens and other foreign w riters, native authors w ould have had a b etter chance to be published in their ow n country. It w as to rem ove this kind o f injustice that agreem ents betw een countries w ere signed and copyright conventions ev olved. T he U nited K ingdom ’s International C opyright A ct o f 1844 did not protect foreign authors sufficiently to allow G reat B ritain to be represented at the International C opyright C o n v en tio n , but that situation w as rem edied by the International C opyright A ct o f 1886.31 G reat Britain joined the conferring pow ers w hich drew up the B erne C onvention o f 1886, establishing an International C opyright U n io n .32 T he C onvention was am ended at Paris in 1896 and revised at B erlin in 1908, at R om e in 1928, and at B russels in 1948.33 T en countries w ere m em bers o f the U nion when it w as first form ed but its num bers have grow n to m ore than fifty .34 W hen G reat Britain joined the U nion in 1887 it did so also on behalf o f its colonies and possessions, and these included C anada. T he A dditional Act o f Paris in 1896 a lso had effect in C anada, but it w as not until the C anadian C opyright A ct o f 1921 cam e into force in 1924 that the R om e R evision of 1908 applied to C anada. T his delay w as in spite of G reat B rita in 's earlier adherence. C anada also adheres to the R om e R evision, but so far has not taken steps to put the B erlin R evision into fo rc e .35 A second convention, the U niversal C opyright C onvention, w as form ulated at G eneva in 1952.36 It w as U .N .E .S .C .O . sponsored. T here w ere ninety signatories, including C anada, but w hen the C o n ­ vention cam e into effect Septem ber 16, 1955, C anada w as not a m em ber. A s of M arch, 1956 those countries w hich subscribed to the C onvention w ere A ndorra, C am bodia, C h ile, C osta R ica, F rance, the G erm an Federal R epublic, H aiti, the H oly See, Israel, Japan, Laos, L uxem bourg, M onaco, Pakistan, the P hilippines, S pain, Sw itzerland,

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and the U nited States. A notable absentee from both C onventions was Russia, but M ay 27, 1973 it began to adhere to the U niversal Copyright C o n v e n tio n .37 Philip W ittenberg has contrasted the B erne and G eneva C onven­ tions: Unlike B erne, the U niversal C opyright C onvention is not selfenacting legislation. T he protection given by it is w hat is called 'n a tio n a l' p rotection, that is, citizens of each state of the U nion enjoy in the other states the rights accorded by that state to its citizens. Since the rights m ust be determ ined by dom estic legislation, each m em ber country is required to have an effective copyright system . T here is no definition or enum eration of w orks protected, such as has been contained in the B erne C onvention. All such d etails are left to the several c o u n tries.3* T he third m ajor copyright convention is the B uenos A ires C onven­ tion, w hich is one o f the Pan-A m erican C opyright C onventions. The P rotection o f L itera ry P roperty, w hich w as published in 1968, listed its m em bers as follow s: A rgentine, B olivia, B razil, C hile, C olom bia, C osta R ica, D om inican R epublic, E cuador, G uatem ala, H aiti, H on­ d u ra s, M exico, N icaragua, P anam a, Paraguay, Peru, the U nited States and U ru g u ay .39 N otw ithstanding the advantages gained through adheren ce to the B erne or International C opyright C onvention after 1924, C anadian w riters and sim ilar creative artists w ere for a long tim e dissatisfied with the am ount o f protection their w orks w ere given. T he cause o f their bitterness w as their relationship to A m erican publishers. In the days w hen the poetry o f E dna Jacques enjoyed a popularity com parable to that of E dgar G uest, an A m erican organization m ade a large sum of m oney through the sale o f one o f the C anadian p o e t's poem s for which they paid her no royalties. W hen Joseph M cC arthy w as at the height of his w itch-hunting activities, an obscure A m erican record com pany pirated and sold a recording o f the CBC p lay , “ T he In v e stig a to r," w ithout acknow ledgm ent and w ithout paym ent being m ade. M ore recently A m erican publishers have reaped the profits on text books w ritten by C anadians, printed and distributed only in sm all num bers by C anadians before the A m erican publisher took over production and sale o f the book w ithout consulting author o r C anadian publisher. C ause o f these and m any other injustices w as the fact that the U nited States did not subscribe to the B erne C opyright C onvention, that C anada did not subscribe to the G eneva C onvention, and that the 1924 C opyright agreem ent betw een C anada and the U nited States contained

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clauses which m ost C anadian w riters considered inim ical to C anadian literary interests. T he 1924 agreem ent gave the U nited States the full protection of the C anadian C opyright A ct w ithout the perform ance o f any special for­ m alities. C anadian citizens w ere entitled to U nited States copyright b e n efits.40 H ow ever, the condition o f this enjoym ent w as that the published w ork should be w holly m anufactured in the U nited S ta te s.41 Som e relief from this restriction w as possible to C anadians through a special provision o f the U. S . A ct. T his perm itted a tem porary, o r a d interim , copyright to be secured in the U nited States for a foreign work in the E nglish language, if application w as m ade by the foreign copyright h older w ithin six m onths o f publication. T he tem porary protection had tw o lim itations. It lasted for on ly four m onths w hen the agreem ent w as first m ade, although the period w as extended to five years in 1949.42 R egulations perm itted the im port into the U nited States of not m ore than 1500 copies of the w ork during the a d interim period of p ro tectio n .43 D issatisfaction over copyright in C anada led to the appointm ent of the Ilsley Royal C om m ission w hich reported in 1958 after a three-anda-half year study. Fifteen recom m endations w ere m ade on m atters w hich ranged from the “ b ro ad casters' r ig h t," recordings, m usical w orks, and photographs to books and ratification o f the U niversal C opyright C onvention. E ffective A ugust 10, 1962, C anada becam e a m em ber of that U ni­ versal C opyright C onv en tio n .44 T h is m em bership gives protection to C anadian w orks in the other countries that have ratified the c o n v en ­ tion.45 C anada still retains the protection provided in m ore than fifty countries by the B erne C onvention. T he m ost w elcom e gain achieved by the 1962 action w as the rem oval of the handicap for C anadian authors w ho w ish to sell their w orks in the U nited States. H ugh M acL ennan, T hom as R addall, Pierre B erton and other C anadian authors popular abroad m ay print and publish their w orks in C anada and then collect royalties on those w orks. T he fact that since ratification o f the G eneva C onvention the Q u e e n ’s Printer has exported at least 1 , 5 0 0 , 0 0 0 copies o f the r c a f books on 5 b x and 1 0 b x exercises to the U. S. A ir Force illustrates the kind o f gain m ad e.44 O ne feature o f the situation still leaves the C anadian publishers and printers unhappy. An A m erican author w ho w ished to publish first in C anada to obtain the protection provided by both the B erne and G eneva C onventions risks the loss of U .S . dom estic copyright. He is ham pered by the condition that, under the term s o f the “ m anufacturing c la u s e ,” no m ore than 1,500 copies o f his work m ay be im ported into the U nited States w ithout forfeiting protection in his own country. T he result is

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that A m erican authors are unlikely to seek out C anadian printers and publishers. C anadian printers and publishers are thus deprived o f the right to tender on equal term s w ith A m erican com panies for A m erican works. In addition to its application to the w orks o f the U nited States and d o m iciliaries, the foregoing restriction applies to the follow ing two categories o f w orks as described by Philip W ittenberg: 2. W orks which could have qualified protection under our [A m eri­ can] law by virtue of the U C C , but w hich have not qualified for the exem ption from the requirem ents o f the m anufacturing clause because o f failure to use the notice o f copyright provided for in the C onvention. 3. W orks by authors w ho are citizens o f countries w ith w hich the U nited States has established copyright relations, but w ho are not citizens of a country party to the U C C and w ho do not first publish the w ork in a country party to the C o n v e n tio n .47

C o p y rig h t T o d a y A s It A ff e c t s C a n a d ia n s A s has already been indicated, copyright in C anada is governed by the C opyright A ct o f 1921, as subsequently am ended, and by C a n ad a 's adherence to the International C opyright C onvention (B erne C onven­ tion) and the U niversal C opyright C onvention (G eneva C onvention.) D r. Fox m akes the point that, " T h e C onventions identify the countries the citizens of w hich enjoy copyright protection, but it is the text of the C opyright Act that definitively provides the protection. International law does not have priority; it is the dom estic law that is su p rem e.48 Term o f C opyright D uration o f copyright for the International C opyright C onvention countries is the lifetim e o f the author and a period of fifty years after his death. Section 5 o f the C anadian C opyright Act m akes the sam e stipulation w ith respect to C an ad a’s dom estic copyright. U nder the U niversal C opyright C onvention, the term o f copyright is a m uch m ore com plicated m atter. It is dealt w ith in A rticle IV. T hat article states: 1. T he duration of protection of a w ork shall be governed . . . by the law o f the C ontracting State in w hich protection is claim ed. 2. T he term o f protection for w orks protected under this C onvention

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shall not be less than the life of the author and 25 years after his death. H ow ever, any C ontracting State w hich, on the effective date of this C onvention in that State has lim ited this term for certain classes o f w orks to a period com puted from the first publication o f the w ork, shall be entitled to m aintain these exceptions and to extend them to other classes o f w orks. For all these classes the term o f pro tec­ tion shall not be less than 25 years from the date o f first p ublica­ tion. A ny C ontracting S tate w hich, upon the effective date o f this C onvention in that S tate, does not com pute the term of protection on the basis of the life of the author, shall be entitled to com pute the term o f protection from the date of the first publication of the w ork or from its registration p rior to publication, as the case m ay be, provided the term o f protection shall not be less than 25 years from the date of first publication o r from its registration prior to publication, as the case m ay be. If the legislation o f a C ontracting State grants tw o or m ore su cces­ sive term s of protection, the duration of the first term shall not be less than one o f the m inim um periods specified a b o v e .49 F or the C anadian a uthor w riting in E nglish, his m ost im portant nonB erne treaty m arket is undoubtedly the U nited States. In that country books m ay be copyrighted for tw enty eight years after publication or registration, with the option o f renew ing for an additional tw enty eight years. T h is is the copyright w hich C anadian w riters m ay enjoy in the U nited States by co m plying with UCC and U nited States copyright conditions. Section 8( 1) o f the C anadian C opyright A ct specifies that in the case o f joint authorship the fifty years of posthum ous copyright shall date from the death o f the last author to d ie .50 Section 9 provides that copyright in a photograph shall subsist for fifty years from the m aking o f the original negative. C opyright is to be vested in the ow ner o f the negative at the tim e that negative w as m ad e .51 C om parable conditions govern copyright in records, perforated rolls and other contrivances by m eans of w hich sounds m ay be m echanically produced. In this case first ow nership o f the plate from w hich the contrivance derives d eter­ m ines w here copyright ow nership lies. T his is laid dow n in Section 10.52 Section 11 describes conditions under w hich copyright belongs to the c ro w n .53 A rticle IV 3 o f the U niversal C opyright C onvention provides “ that the term o f protection in these C ontracting States w hich protect p hoto­ graphic w orks, o r w orks o f applied art in so far as they are protected as

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artistic w orks, shall not be less than 10 years for each of said classes of w o rk s.” 54 R egistration o f C opyright It is only with reference to the U niversal C opyright C onvention that the C anadian author needs to take steps to ensure copyright. W ithin the context o f the International (B erne) C onvention and o f the Canadian C opyright A ct there appears to be little the author need do to ensure copyright for his ow n w ork. In C anada the author does not have to apply for copyright. T h at is, copyright is autom atic. In C anada, the C anadian author has the exclusive right of m ultiplying for sale copies of an original w ork o r com position in literature and art. A s Dr. Fox points out, citing K in g F eatures S y n d ic a te Inc. v. K le e m a n L td ., [ 1941 ] 2 All E .R . 403 at 407 p e r Lord M augham , “ It is useful to rem em ber that the C opyright Act 1921, requires no registration and confers a right in an unpublished as well as a published w o rk .” 55 T he B erne C onvention o utlines the sam e condition. A fter A rticle 4(1 ) has referred to the rights o f the nationals o f the countries of the U nion, A rticle 4(2) states: T he enjoym ent and the exercise o f these rights shall not be subject to the perform ance o f any form ality; such enjoym ent and such exercise are independent o f the existence of protection in the country o f origin o f the w ork. C onsequently, apart from the express stipula­ tions of the present C onvention, the extent o f protection, as well as the m eans o f redress secured to the author to safeguard his rights, shall be governed exclusively by the law s o f the country w here protection is cla im e d .56 T he U niversal C opyright C onvention m akes greater dem ands on the a uthor o r other creative person. C ertain form alities do have to be com plied w ith. A rticle III 1 o f the C onvention requires that copies of the work for w hich copyright is claim ed w ithin the cou n tries o f the U nion shall bear the sym bol © accom panied by the nam e of the copyright p roprietor and the year o f publication ‘ ‘placed in such m an­ ner and location as to give reasonable notice o f claim o f c o p y rig h t.” 57 A rticle III 4 s a y s : ‘‘In each C ontracting State there shall be legal m eans o f protecting w ithout form alities the unpublished w orks of nationals of o th er C ontracting S ta te s.” 58 It is to be noted, how ever, in connection with U nited States copyright, that: A lthough copyright is secured by publication with statutory notice

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there are certain form alities that m ust be com plied with as a prere­ quisite to the right to sue for the enforcem ent o f copyright. T hese include registration and deposit, w hich are covered by S ections 11, 13 and 14 o f the [A m erican] C opyright Law . Section II m erely provides that a person entitled to copyright m ay obtain registration by com plying w ith the provisions o f the law , including the deposit of copies, and that upon such com pliance the R egister o f C opyright shall issue a certificate. Section 13 provides that after copyright has been secured by publication there shall be prom ptly deposited in the O ffice o f the R egister of C opyrights tw o com plete copies o f the best edition thereof then published, o r if the w ork has been published in a foreign country and is by an a uthor w ho is a citizen o r subject o f a foreign state o r nation, one com plete co p y of the best edition then published in such foreign c o u n try .59 As the sam e author says: . . . Each contracting state has the right to im pose conditions prerequisite to judicial relief, provided that such conditions are equally applicable to nationals o f the state in w hich protection is claim ed. In addition, a concession w as m ade to the U nited States in that any contracting state w as allow ed to regard as its ow n nationals dom iciled therein. T his perm its us to require o f foreigners dom iciled in the U nited States the sam e form alities as are im posed on our own c itize n s.60 In the C anadian dom estic field, even setting aside the requirem ents o f the u c c and o f the U nited States C opyright A ct, the question of c opyright is not such an academ ic m atter as the rem arks m ade earlier about not perform ing special form alities w ould suggest. For one thing, “ to ho ld c o p y rig h t" is not alw ays quite the sam e as “ to pro v e c o p y rig h t." For this reason it is som etim es useful to take steps w hich will protect against plagiarism by publication of an a u th o r’s work w ithout perm ission. T hus an author m ay register his w ork in o rder to establish priority of authorship. R egistration is m erely a certificate of ow nership. Its value is to provide proof of authorship and copyright. Section 37 to 40 o f the C opyright Act deal w ith registration of copyright, and Section 41 sets forth the fees to be paid for that registra­ tio n .61 Section 52 p rovides for the deposit of tw o copies o f the co p y ­ righted book with the librarian o f parliam en t.62 It has been suggested that a m easure o f value w hich an author m ight take is to m ail his own m anuscript to him self by registered m ail. By

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preserving his registered parcel unopened he can thereby create w orth­ w hile evidence should authorship of the w ork ever be disputed. It is also o f value to w rite "C o p y rig h t R e se rv e d " o r som e such phrase on m anuscripts w hen the author w ants to m ake it clear that by putting his w ork into typescript he is not surrendering copyright. T his device w ould appear to be w orthw hile w ith respect to lim ited publica­ tion. Philip W ittenberg deals w ith the concept lucidly w hen he says: T he author, in the very act o f creating, creates in him self a right of property in the w ork produced. O ut o f his labor com es a property from w hich he has the right to exclude others . . . T he property exists not in the paper o r o th er physical em bodim ent, but in the expression. T he m aking o f copies will not in and o f itself divest the author o f his right. It is only w hen he distributes the copies to the public that his right is lost. T here m ay be restricted publication w hich does not indicate an intention to dedicate the w ork to the public. So, for instance, if a teacher distributes notes to a class, but w ith the understanding that the students will not m ake or give copies thereof and that the notes will be used solely for the purposes of the classroom , that is is not a dedication to the public generally . . . T he p ublication, to be effective as a dedication, m ust be a general publication. A lim ited publication w hich com m unicates the contents o f a m anuscript to a definite group and for a lim ited pu rp o se, and w ithout the right of diffusion, reproduction, distribution, o r sale, is considered a " lim ite d p u b lic a tio n ," w hich does not result in loss of the au th o r’s com m on-law right to his m anuscript.65 O f course, involved copyright questions arise w hen authors sign contracts w ith publishers. ‘‘F irst Serial R ights O n ly " and "N o rth A m erican R ights O n ly " are phrases w hich suggest that authors do not sell all rights in their com positions, and that author-publisher contracts are not uniform . Says Dr. Fox: It will be seen . . . that, w hile the usual form of contract is one in w hich the publisher agrees to bear the entire cost o f publication, paying to the author either a royalty on each copy sold o r a percen ­ tage o f the profits resulting therefrom there m ay be variations o f such contracts in that the a uthor m ay bear the entire expense o f printing and publishing, m erely em ploying the publisher. In o th er cases the publisher m ay purchase the w ork from the author, publish at his own expense and reap the entire profit, w hile in other cases the p ublica­ tion m ay be a joint adventure betw een the author and publisher. W orks m ay , th erefo re, be published in consideration o f royalties o r on a profit-sharing basis, or on com m ission, o r for a single

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paym ent. T he publisher m ay reserve an option on future w ork of the author and on rights such as dram atic, film o r foreign rights not com prised in the original gran t.w C learly w here copyright is under consideration, each contract m ust be considered separately. R ecip ro ca l R ights T he key to satisfactory copyright arrangem ents on an international basis is the granting of reciprocal rights. T he w ider the reciprocal rights granted the w ider the area o f c opyright coverage. T he International C opyright (B erne) C onvention provides for recip­ rocal rights in A rticles 4 , 5 and 6. A rticle 4 states: A uthors w ho are subjects o r citizens o f any o f the countries of the U nion shall enjoy in countries other than the country o f origin of the w orks, w hether unpublished o r first published in a country of the U nion, the rights w hich the respective law s do now o r m ay hereafter grant to natives as well as the rights specially granted by the special C o n v e n tio n .65 A rticle 5 provides: A uthors being subjects or citizens o f one of the countries of the U nion w ho first publish their w orks in another country of the Union shall have in the latter country the sam e rights as native a u th o rs.66 A rticle 6 stipulates: A uthors not being subjects or citizens of one o f the countries o f the U nion, w ho first publish their w orks in one o f those countries, shall enjoy in that country the sam e rights as native authors, and in the other countries o f the Union the rights granted by the present C o n ­ v e n tio n .67 T he U niversal C opyright C onvention confers a com parable reciproc­ ity by A rticle II o f the C onvention: 1. Published w orks o f nationals o f any C ontracting State and w orks first published in that State shall enjoy in each other C ontract­ ing State the sam e protection as the other State accords to w orks o f its nationals first published in its ow n territory. 2. U npublished w orks o f nationals o f each C ontracting State shall

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enjoy in each other C ontracting State the sam e protection as that other State accords to unpublished w orks o f its own nationals. 3. For the purpose o f this C onvention any C ontracting State, m ay, by dom estic legislation, assim ilate to its ow n nationals any person dom iciled in that S tate.68 T he C anadian C opyright A ct contains provisions to im plem ent the reciprocal arrangem ents o f the International C opyright C onvention. Section 4 o f the C opyright Act enacts that: (1) Subject to the provisions o f this A ct, copyright shall subsist in C anada for the term hereinafter m entioned, in every original literary, dram atic, m usical and artistic w ork, if the author w as at the date of the m aking of the w ork a B ritish subject, a citizen o r subject o f a foreign country that has adhered to the C onvention and the British protocol thereto set out in the Second Schedule, o r resident within H er M ajesty’s D om inions; and if, in the case o f a published w ork, the w ork w as first published w ithin H er M a jesty 's D om inions or in such foreign country; but in no other w orks, except so far as the protection conferred by this Act is extended as hereinafter provided to foreign C ountries to w hich this A ct does not extend. (2) W here the M inister certifies by notice, published in the C anada Gazette, that any country that has not adhered to the C on­ vention and the A dditional Protocol thereto, set out in the Second Schedule, grants or has undertaken to grant, e ith e r by treaty, conven­ tion, agreem ent or law , to citizens of C anada the benefit of copyright on substantially the sam e basis as to its ow n citizens o r copyright protection substantially equal to that conferred by this A ct, such country sh all, for the purpose of the rights conferred by this Act, be treated as if it were a country to w hich this A ct extends; and the M inister m ay give such a certificate as aforesaid, notw ithstanding that the rem edies for enforcing the rights, or the restrictions on the im portation o f copies o f w orks, under the law of such co untry, differ from those in this A ct.69 A few exam ples will illustrate how reciprocity of copyright operates. A C anadian author may w rite a book in w hich copyright w ould inhere in British C om m onw ealth countries and in o th er B erne C onvention countries such as G erm any until fifty years after his death. By fulfilling the condition of im printing the sym bol © as well as the nam e o f the copyright ow ner and year o f publication on each copy o f his book he can gain copyright o f tw enty eight years and the option to renew for a further tw enty eight years in the U nited S tates. It should be re­

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m em bered, how ever, that the conditions of registration and deposit as described above should be com plied with. By publishing his book in C anada, an A m erican author can secure the protection of the B erne C onvention for the period of his lifetim e and an additional fifty y ears in the countries o f the International C opyright U nion. O r a citizen o f A rgentina m ight first publish his book in Canada and gain in C anada the copyright privileges of the C anadian Copyright Act and in the other B erne C onvention countries the rights granted by that C o n v e n tio n . O r the A ndorran author o f an unpublished book w ould enjoy in the U nited States the protection an A m erican national enjoys, since both A ndorra and the U nited States subscribe to the U niversal C opyright C onvention. O rig in a lity a n d C o p y rig h ta b ility For a w ork to be copyrightable it m ust be original. A s used here the w ord ‘ ‘original ’ ’ is not to be taken as m eaning ‘ ‘never-to-have-existedb e fo re .” It need not involve an idea that has never been previously thought of. T he essence o f originality is not novelty. Indeed, ideas are not copyrightable and the courts have not protected property in ideas unless those ideas can be reduced to a concrete form , as w hen a patent for an industrial design is involved.70 It is the expression o f thought in w hich the w ork is clothed o f w hich originality is re q u ire d .71 In effect this m eans that to possess copyright as au th o r’s w ork m ust not be copied from another n o r m ust the w ork have been in the public d o m ain .72 E laborating on the concept o f originality, Dr. Fox has said: In order to be en titled to copyright a work m ust be original in the sense that the a uthor has created it by his ow n sk ill, labour and judgm ent. It will be seen, therefore, that the ow ner of copyright has no m onopoly in the subject m atter. O thers are at liberty to produce the sam e result provided they do so independently and though they are not the first in the field their w ork is none the less original in the sense in w hich that w ord is used in the C opyright A ct.73 It is only in their form or expression that them es, plots o f novels or plays, and subjects o f essays or articles can be protected. A case illustrative of the problem s o f copyrightability just touched on w as D e ek s v. W ells. (S e e C ase N o . 37) Titles o f W o rk s As Dr. H arold Fox explains in fuller detail in T he C anadian L a w o f

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C opyright a n d Industrial D esig n s,74 titles o f books or other w orks are, generally speaking, not copyrightable. An exception is m ade only w here the nam e o r title o f such w orks is of such a length as to constitute a literary com position o f the author. O therw ise, an author of a book w ith a certain title m ay successfully launch an action to prevent a second author from using the sam e or sim ilar title only on the grounds that the second a uthor is “ passing o ff” his w ork as the first a u th o r's w ork, and not on the grounds o f copyright infringem ent. O ne m ight well surm ise that such a suit m ight have been appropriate in 1795-6 w hen L ouis R oy launched a new spaper w ith the sam e title as Edw ard E d w ard s’ M o n tre a l Gazette. In addition, “ [t]he new paper w as made alm ost identical in form at, apparently in an attem pt to confuse the reader and capture opposition p a tro n a g e.” 75

N e w sp a p e r C o p y rig h t In the public m ind at least the copyright considerations of the new spa­ per journalist are less w ell-know n than copyright for the short story w riter, novelist or poet. T he central fact that should be understood is that new s as such is not copyrightable, but that the form o f the new s report and the language w ith w hich that new s is clothed do enjoy co p y rig h t.76 E xcept for serial stories and tales, articles from one new s­ paper m ay be freely reproduced by other papers unless such borrow ing has been expressly forbidden, but the source o f that article m ust be indicated. T hese conditions are laid dow n in A rticle 9 o f the Revised Schedule of the second B erne C onvention, w hich also provides that the legal consequences o f the breach of this obligation shall be determ ined by the law s of the country w here protection is c la im e d .77T he portion of A rticle 9 w hich excepts serial stories and tales from the privilege reads: Serial stories, tales, and all other w orks, w hether literary, scientific, o r artistic, w hatever their ob ject, published in the new spapers or periodicals o f one of the countries of the U nion m ay not be repro­ duced in the o th er countries w ithout the consent o f the au th o rs.78 T he different nature o f new s is spelled out in the sam e article: ‘‘The protection o f the present C onvention shall not apply to new s of the day or to m iscellaneous inform ation w hich is sim ply o f the nature of item s of n e w s .” 79 T hat the borrow ing w hich A rticle 9 otherw ise perm its is som etim es forbidden is indicated by the follow ing typical new spaper notice:

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T he C anadian Press is exclusively entitled to the use for republication of all new s dispatches credited to it or T he A ssociated Press or R euters in this paper and also the local new s published therein. All rights for publication of special dispatches herein are also reserv ed .80 T he fact that new spaper editors and reporters deal in new s, a c o m ­ m odity w hich is in the public dom ain, probably accounts for the long tradition o f free exchange of new s-item s in C anadian journalism . W itness the first issue o f C an ad a’s first new spaper, The H alifax Gazette, w hich w as m ade up m ainly o f E uropean new s stories. Or w itness the new spapers of W illiam Lyon M ac k en z ie 's day, when R eform journals w ere filled w ith borrow ings from other R eform jo u r­ nals, and tory papers w ere filled w ith borrow ings from o th er tory papers. T oday T he C anadian Press is able to operate because there is a co-operative pooling of stories. E ditorials as well as new s item s are borrow ed and not by C. P. m em bers alone. Such practices are consid­ ered to be q uite proper, although, as has been pointed o u t, only w hen acknow ledgm ent is m ade and only w hen the ow n er o f copyright does not prohibit the borrow ing. Far from resenting the borrow ing of editorials, m ost new spapers feel flattered to have th eir ideas repeated by their colleagues. T hey do not expect paym ent by the debtor new spaper. Indeed, a daily (e.g . The O ttaw a Journal in those years w hen it is so) will boast that it is the “ m ost q uoted new spaper in C a n a d a .” T o docum ent its boast, the proud claim ant will refer not only to the H a n sa rd record but to the evidence o f borrow ing provided by the national clipping service to w hich it subscribes. T o the T im es-Journalo f what w as Ft. W illiam and to the N ew s-C h ro n icle o f what w as Port A rthur, such papers m ust be especially grateful because, in the past at least, the L akehead organs seem to have printed m ore borrow ed than original editorials. T he long tradition o f free and easy new spaper borrow ing should not lead the journalist to believe that he can reprint anything his colleagues have published. A s has been noted, the language of a new spaper article is copyrightable. (T his im plies, o f course, that the passage for w hich originality is claim ed m ust be substantial enough and long enough that the so-called borrow ing is not the result o f an accidental sim ilarity of p hrasing.) T he protection seem s only fair. It w ould not be ju st, for exam ple, that Robert J. C . Stead should have had to give up all his rights to his poem “ K itchener” just because he w rote it first for m em ber new spapers in the W estern Press A ssociation w hich carried the m em orial verses a day o r tw o after the British w ar h e ro ’s death in 1916. T oday the notation that such-and-such an item is exclusive to the

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O ttaw a Journal and the G uardian o f M anchester, o r that an item is “ C o p y rig h t, the T oronto S ta r ' is a rem inder that an editor is not free to pick up ev erything he sees. It should be rem em bered that C anadian new spapers w ere able to carry the “ A sk H e n ry " colum n only because they paid the T o ro n to T elegram syndicate for the privilege of doing so. The O ttaw a C itizen has run the Sydney H arris colum n regularly only because it has paid m oney to the syndicate w hich handles the colum n. O ur earlier discussion about new s not being copyrightable should be contrasted with the fact that w here confidential new s or inform ation is involved, it is possible to protect it not by legal proceedings claim ing infringem ent o f copyright but by legal action w hich has as its basis an im plied contract o r obligation not to d isc lo se.81 A s D r. Fox points out: [I]n the several E xchange T elegraph Co. cases it w as held that a c om pany carrying on the business o f supplying inform ation relative to the price o f stocks and shares, the results o f race m eetings and cricket new s, had a right of property in such new s and inform ation and w as en titled to an injunction, restraining a third party from surreptitiously obtaining o r copying any such new s collected by it and from p ublishing, transm itting o r com m unicating any such new s if obtained from a subscriber in breach o f confidence o r con­ trac t.82 A nother case outside the realm o f cop y rig h t, but dissim ilar to the E xchange T elegraph cases, involved the protection o f new s as a “ q u a si-p ro p erty " against u n fair com petition. T his w as International N e w s S e rv ic e v. A sso c ia te d Press.*' In it the International N ew s Ser­ vice w as alleged to have taken new s from the A ssociated Press and given it to its ow n clients. M r. Justice Pitney described the nature of the o ffence claim ed: C o m p la in an t's service, as well as d e fe n d a n t's , is a d aily service to d aily new spapers; m ost o f the foreign new s reaches this country at the A tlantic seaboard, principally at the C ity o f N ew Y ork, and because o f this, and o f tim e differentials due to the e a rth 's rotation, the distribution o f new s m atter throughout the country is principally from east to w est; and, since in speed the telegraph and telephone easily outstrip the rotation o f the earth, it is a sim ple m atter for d efendant to take co m p la in a n t's new s from bulletins or early editions o f co m p la in a n t's m em bers in the eastern cities and at the m ere cost of telegraphic transm ission cause it to be published in w estern papers issued at least as early as those served by com plainant. B esides this, and irrespective o f tim e differentials, irregularities in telegraphic transm ission on different lines, and the norm al consum ption of time

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in printing and distributing the new spaper, results in perm itting pirated new s to be placed in the hands o f d e fe n d a n t's readers so m e ­ tim es sim ultaneously with the service of com peting A ssociated Press papers, occasionally even e a rlie r.84 In finding in favor of the A ssociated Press, M r. Justice Pitney characterized the a ctions o f International N ew s Service in the follow ing term s: S tripped of all disguises, the process am ounts to an unauthorized interference w ith the norm al operation of c o m p la in a n t's legitim ate business precisely at the point w here the profit is to be reaped, in o rder to divert a m aterial portion o f the profit from those w ho have earned it to those w ho have not: w ith special advantage to defendant in the com petition because o f the fact that it is not burdened with any part o f the expense of gathering the new s. T he transaction speaks for itself, and a court o f equity ought not to hesitate long in characteriz­ ing it as unfair com petition in b u sin ess.85 T he learned justice said further to the decision favorable to the com plainant: It is to be observed that the view we adopt does not result in giving to com plainant the right to m onopolize either the gathering o r d is­ tribution o f the n ew s, o r, w ithout com plying w ith the copyright act, to prevent the reproduction o f its new s articles; but only postpones participation by co m p lain an t’s com petitor in the process o f distrib u ­ tion and reproduction o f new s that it has not gathered, and only to the extent necessary to prevent that com petitor from reaping the fruits of co m p la in a n t's efforts and expenditure, to the partial exclusion of com plainant, and in violation o f the principle that underlies the m axim sic utere tuo, e tc .86 M r. Justice Pitney also condem ned the International N ew s S erv ice’s behavior in the follow ing words: R egarding new s m atter as the m ere m aterial from w hich these tw o com peting parties are endeavoring to m ake m oney, and treating it, therefore, as quasi property for the purpose of their business because they are both selling it as such, d e fen d an t’s conduct differs from the ordinary case o f unfair com petition in trade principally in this that, instead o f selling its ow n goods as those of com plainant, it su b sti­ tutes m isappropriation in the place o f m isrepresentation and sells co m p la in a n t's goods as its o w n .87

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O f special interest to the w orking journalist is the situation which arises w hen a reporter or colum nist (such as Eric N icol, G arry Lautens or M aggie G rant) w ishes to collect som e o f his past w ritings and issue them as a book. W hen he first w rote the piece he gave rights in them to the new spaper or new s service (e.g . Southam N ew s S ervices) w hich em ploys him . T his m eans that if he w ishes to issue those collected selections as a book he m ust get perm ission from his paper or new s service. But this does not m ean that the paper o r new s service can issue a collection of his w ritings w ithout his consent. T he practical effect of this situation is that there m ust be a m utual agreem ent betw een journal­ ist and em ployer before such a book m ay be published. T his provision is taken care o f by Section 12(3) of the C opyright Act w hich states: W here the author w as in the em ploym ent o f som e other person under a contract o f service or apprenticeship and the w ork w as made in the course o f his em ploym ent by that person, the person by whom the author w as em ployed sh all, in the absence o f any agreem ent to the c ontrary, be the first ow ner o f copyright; but w here the w ork is an article or o th er contribution to a n ew spaper, m agazine, o r sim ilar periodical, there shall, in the absence of any agreem ent to the c ontrary, be deem ed to be reserved to the author a right to restrain the publication of the w ork, otherw ise than as part of a new spaper, m agazine o r sim ilar p e rio d ica l.88 N ew spaper sum m aries o f public lectures do not infringe the copyright in those lectures. Indeed, even full reports are perm itted “ u n le s s ," in the w ords of Section (2)(e) of the C opyright A ct, “ the report is prohibited by a conspicuous w ritten o r printed notice affixed before and m aintained during the lecture at o r about the m ain entrance of the building in w hich the lecture is given, and, except w hilst the building is being used fo r public w orship, in a position near the lec tu re r.89 It should perhaps be added that if a lecture is delivered to only a sm all select audience rather than to the general public, its publication m ay be restrained on the grounds that such publication w ould be a breach of confidence. H ow ever, it should be noted, according to Section 18 of the C opyright A ct, that, “ N otw ithstanding anything in this A ct, it shall not be an infringem ent o f copyright in an address of a political nature delivered at a public m eeting to publish a report thereof in a new s­ p a p e r ." 90

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D r o it M o r a l An author, even after he has surrendered copyright in his w ork, has the right to prevent distortion o f that w ork. In continental jurisprudence this is know n as d ro it moral. A s laid dow n in Section 12(7) o f the C opyright A ct the provision reads: “ Independently o f the a u th o r’s copyright, and even after the assignm ent, either w holly or partially, of the said copyright, the a uthor shall have the right to claim authorship of the w ork, as well as the right to restrain any distortion, m utilation or other m odification o f the said w ork w hich w ould be prejudicial to his honour o r re p u ta tio n .’ ’91 T he w ording here is practically identical with that of A rticle 6 bis (1) o f the R om e R evision o f the International C opyright C onvention. Dr. Fox m akes the point that w hen such m utila­ tion occurs an author has the right to sue for dam age to his reputation, but the basis o f the action he m ight launch w ould be in the area o f libel rather than in the area o f cop y rig h t.92

Im m o r a l W o rk s T he question som etim es arises as to w hether a w ork o f an im m oral nature is copyrightable. O ne im portant case w ith a bearing on the m atter w as P asickniak v. D ojacek. (S e e C ase N o. 38) D r. Fox has com m ented on this and related decisions to sum up the present law on the question: Copyright is not denied in a w ork that is im m oral o r otherw ise o b jectionable, but . . . the courts will not lend the plaintiff any assistance in the m aintenance o f his rights in such a case. W here the work is m erely coarse and n asty, relief will not necessarily be refused, but w here the w ork is found to be so obscene or im m oral that the publication o f it w ould be an offence against the law , the plaintiff cannot recover dam ages because he could not law fully have sold the w ork. G enerally speaking, it m ay be said that if a w ork is obscene or im m oral, indecent, blasphem ous o r irreligious to an extent am ount­ ing to blasphem y, scandalous, fraudulent, tending to deceive the public, o r seditious or libellous, the court will not intervene to protect such a w ork from infringem ent.93 C atalogues, D irectories a n d O th er C om pilations A

copyright in a catalo g u e, directory o r other com pilation differs from

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a copyright in a n ovel, a history, a philosophical treatise o r oth er more “ c re a tiv e " w ork. An author w ho creates a novel, history orp h ilo so p h ical treatise and obtains copyright for his w o rk , m ay restrain publication by a second author o f a book that closely approxim ates the first au th o r's w ork. In such a case it m ay be assum ed that plagiarism has occurred. In contrast, tw o authors, w orking independently, m ight each com ­ pile a directory o f the sam e city. B ecause the “ raw m a te ria l" is identical in each case it is m ore than likely that each m a n 's product will be virtually identical to the other m a n 's product. But this fact does not im ply that one m an has copied from the other. N either will be em pow ­ ered to restrain publication by the other. T he copyright each man enjoys has been earned by the original la b o r he has expended. T here will be nothing to prevent a third entrepreneur from m aking a third and sim ilar directory and selling it in com petition with the others. W hat he m ust not do is sim ply copy one o f the existing directories. If he does so he m ay be sued for infringem ent o f copyright. It will be readily seen that w here a “ cut and d rie d " w ork such as a directory is involved, it m ay be hard to tell w hether the sim ilarities of tw o publications is the result of identity o f subject o r of plagiarism . T o detect such plagiarism and to entrap the plagiarist som e com pilers insert deliberate errors in their w ork. If the errors reappear in the riv al’s w ork, this is taken as evidence that literary theft has o ccu rred .9*

R a d io , T elevisio n , F ilm s a n d M e c h a n ic a l C o n triva n c e s R adio, television, film s and m echanical contrivances have raised c opyright problem s at least as difficult as those raised by the print m edia. T he basic rights conferred on the copyright holder, be he author o r anyone to w hom the author has assigned that copyright, is specified as a so le right. Section (1 )(d) assigns that right " i n the case of a literary, dram atic, o r m usical w ork, to m ake any record, perforated roll, cinem atographic film , or o th er contrivance by m eans o f w hich the work m ay be m echanically perform ed or d e liv e re d ." 9-' As has been m en­ tioned earlier, the term o f copyright in records and perforated rolls is fifty years from the m aking o f the original plate from w hich the contrivance w as directly o r indirectly derived. T he person w ho w as the ow n er o f such original plate at the tim e w hen such plate w as m ade is deem ed to be the author o f the con triv an ce.96 Section 3(1 )(e) says that the “ copyright . . . includes the sole right in the case o f any literary, dram atic, m usical or artistic w ork, to reproduce, adapt and publicly present such w ork by cinem atograph, if the author has given such work an original character; but if such original character is absent the

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cinem atographic production shall be protected as a p h o to g rap h .” 97 As has been previously indicated, the term o f copyright for photographs is fifty years from the m aking of the original negative from w hich the photograph w as directly o r indirectly derived. T he ow ner o f such a negative at the tim e w hen such negative w as m ade is deem ed to be author of the photograph so d e riv e d .98 Section 3( 1)(f) assigns sole right ‘‘in case of any literary, dram atic, m usical or artistic w ork, to c o m ­ m unicate such w ork by radio c o m m u n ica tio n .” 99 T he C anadian C opyright A ct does not m ention television, but appa­ rently it is taken account o f by such phrases as “ o r o th erw ise ” w hen section 2(g) defines “ dram atic w o rk ” as including “ any piece for recitation, choreographic w ork o r entertainm ent in dum b show , the scenic arrangem ent o r acting form of w hich is fixed in w riting o r otherw ise [italics m ine] . . . ” 100 A s provided by the C opyright A ct, com posers o f m usical w orks and the authors of the lyrics are paid royalties for the public perform ance of their w orks, w hether live or m ech an ical.'01 Such paym ents are m ade for radio and television program s, including co m m ercials, w hich are policed to determ ine m onies d u e .'02 The process that produces a m otion picture film is not identical with the process by w hich telecasting produces im ages on the television screen. T he difference w as described by M r. Justice C am eron in C anadian A d m ira l C orporation v. R ediffusion Inc. et al:m In an ordinary cam era, light from the scene to be photographed is focused by m eans o f a lens on a sensitive em ulsified surface of a film o r plate. A change is produced in the em ulsion w hich can be d eveloped by the proper chem icals into a reproduction of the scene in negative form ; and by reprinting from the negative a postive picture is produced. C inem atographic film s are produced in m uch the sam e w ay. T he result in each case is a negative and photograph, or a series o f negatives and photographs in m aterial form having a m ore o r less perm anent endurance. T he function o f a television cam era is quite d ifferen t, nam ely, to convert a picture— w hich is light— into an electric signal w hich can be transm itted o r radiated as electrom agnetic w aves (H erzian w aves) through the ether. Dr. Fox states that “ there cannot be copyright in a m ere oral broadcast nor can there be copyright in the telecasting o f a public event such as a football m a tc h ." " ” It perhaps needs to be stressed that the rem arks m ade earlier in a more general context about the copyrightability of language, about the uncopyrightability o f new s, and about the question o f originality apply

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w ith equal force with reference to radio, television, film and m echani­ cal contrivances. A fuller discussion o f the copyright problem s in these areas m ight easily take o u r study beyond the am bit o f this book. The reader interested in exploring further the intricacy o f copyright in the electronic m edia field m ight look at an A m erican case o f recent vin­ tage. T his w as F ortnightly C orporation v. U nited A r tis ts Television In c .,'0> a case w hich grew out o f the cable transm ission o f film s, w ithout paym ent of additional royalties, to view ers beyond the view ing areas of originating stations. It is probably because of the kind of problem s w hich this case explored that the A m erican C opyright Act has been called the “ M odel T C opyright L a w .106

F a ir D e a lin g a n d th e E ffe c ts o f R e p r o g ra p h y In sim ilar vein, the C anadian C opyright L aw has been called “ a horse and buggy a c t.” 101 T hat the description is apt arises from the fact that not only is television not m entioned in the C anadian C opyrig ht Act but also that m odern reprography is operating to subvert the fair dealing provisions o f the Act to the considerable detrim ent o f the copyright holder. P rovision for fair dealing is contained in Section 17 of the C opyright A ct. Section 17(2) says in part: T he follow ing acts do not constitute an infringem ent of copyright: (a) any fair dealing w ith any w ork for the purposes of private study, research, criticism , review , or new spaper sum m ary . . . I0S T his proviso accom panics recognition o f the right to quote short p a s­ sages w ithout perm ission and to paraphrase longer passages that do not constitute a substantial portion o f that w ork as a w hole. T hus a person m ight quote a line or tw o from a poem o r a few paragraphs from a book either in a literary criticism o r as a part o f a piece o f independent creative w riting. T he real criterion o f fair use is that there should not be an act of stealing sufficiently serious to result in dam age to the author. Until recent tim es the m echanical d ifficulty o f copying m aterial for the m odest use just described deterred abuse of fair dealing provisions. But the invention o f the photocopier and o th er instrum ents o f reprog­ raphy has dram atically changed the situation. Form erly w hen handcopying w as the chief m ethod at hand o r w hen m im eo and ditto d uplicators w ere the m ost sophisticated devices available it was uneconom ical to m ake single copies o f extensive length. T he latter process required a m aster, a stencil the special preparation o f which w as tim e-consum ing and expensive. By contrast, because the p hoto­

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copier requires no m aster (indeed, the original is the “ m a s te r" ) it is cheap and easy to m ake copies by X erox and related m e th o d s.IW M any uses of the photocopying process are legitim ate and very useful. C om panies can send their clients copies of their accounts. R eceipts can be issued. Photographs o f w anted persons can be sent across the nation. C heques, price lists, prospectuses, m edical inform a­ tion and so on can be reproduced and distributed rapidly. In this w ay, thousands o f dollars and thousands o f expensive m an-hours of labor m ay be saved. R oy C. Sharp has assessed other results of this technology, how ever. He has w ritten: C opy m achine installations have increased from a few thousands in the early 1950s to m any hundreds o f thousands in the m id-1960s; the num ber o f copies m ade by these m achines has expanded from a few m illion in the early 1950s to over 10 billion in 1965 and w ill, it is estim ated , have increased to over 25 billion for 1970. A study of photocopying practices in the U nited K ingdom reports that the 409 libraries surveyed m ade 1,118,143 photocopies o f articles and jour­ nals, and 5 5,674 photocopies o f extracts o f books in the year under review . P hotocopying is even m ore extensively practised in North A m erican than in the U nited K ingdom . . . [I]n the U nited S tates it [w as] estim ated that 3 billion pages of published m aterial were copied in 1969, o f w hich alm ost 1.8 billion pages w ere copyrighted m aterial. By extrapolation, it can be conservatively estim ated that by 1971 som e 2 .2 billion pages o f copyrighted m aterial will be copied an nually. O f this, 1.7 billion pages will be from journals and perio di­ c als, 4 0 0 m illion pages will be from books, and 100 m illion pages from other copyrighted m a te ria l.110 E lsew here M r. Sharp has pointed out that there are no com parable studies on copying in C anada but that the situation is not too dissim ilar. H e gives as an exam ple a publicly funded school board m aking several hundred copies o f a substantial part of copyrighted books w ithout perm ission o f the c opyright h o ld e r.'11 C hris B raithw aite has called attention to the follow ing exam ples: T he U niversity of T oronto library provides copies to students for 5 cents a book page, turning out about 3 3 ,0 0 0 copies a m onth on five m achines. T he T oronto Public L ibrary copies 1.5 m illion pages a year for patrons o f its reference collection at rates about 15 cents to $ 1 .5 0 a page. The E ducation C entre L ibrary answ ers about 20 requests a day for

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research m aterials. T hey com e from students, teachers, psycholg ists, guidance counsellors and adm inistrators. U nless the original is requested, the m aterial is copied from books o r directly from m i­ crofilm ed periodicals. T he c e n tre 's docum entation departm ent m akes particularly im aginative use o f its X erox m achine. Seven m agazines nam ed C ontent are published there and distributed to the Board of Education staff. Each consists o f copies o f the table o f contents o f the scholarly journals in a particular field. S taff m em bers can obtain copies of the articles that interest them by circling the titles. T he departm ent indexes about 300 journals in C ontent, and copies roughly 2 0 ,0 0 0 articles a y e a r." 2 An excerpt from a C anadian A uthors A ssociation brief to the E conom ic C ouncil o f C anada (w hich in 1970 w as studying C anadian copyright law) adds further detail to the picture of the C anadian situa­ tion: C opyright is being eroded d aily in C anadian and A m erican educa­ tional institutions from kindergarten to postgraduate university course. T he m assive am ount of m im eographing and photocopying in schools and libraries is staggering. Part o f the reason for this is the com plex school budget, w hich allow s little for book purchase, but “ any a m o u n t” for stationery, including photocopying paper. T he pap er is paid for, but never the author. Som e educational institutions have used their tax-provided funds to establish com m ercial presses w hich advertise photocopying ser­ vices. In defiance of copyright the U niversity o f M ichigan notori­ ously photocopies entire books for sale. Such abuse o f the a u th o r's m aterial is in breach of the law , and as taxpayers authors are com pelled to support the robbery. Indeed, we know of instances o f photocopying w ithout a single sale by pub­ lisher, and not a cent of royalty to the author. T he pub lish ers' sam ple copies are used, o r a copy sent on approval, even a gift copy from a uthor to teacher. Part o f the invasion of copyright is due to ignorance on the part of teachers, librarians, and professors. Som e fantastic and false excuses are prom ulgated, such as “ any am ount o f an au th o r’s w ork m ay be copied so long as you do not put the a u th o r's nam e on it!" A single exam ple is that o f a professor of E nglish at a T oronto univer­ sity asking the sten o g rap h ers' pool to m im eograph 5 0 0 copies (for free distribution) of 27 poem s by a C anadian p o e t." 3 Special photocopying problem s are raised by large corporations

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involved in industrial and technical research. Such corporations have their ow n industrial libraries w hich will copy technical articles for departm ents w ithin the corporation. W hat often happens is that a departm ent m ay request and receive from the library one copy o f the article, after w hich the departm ent m ay use its ow n photocopier to run off thirty or forty additional copies, one for each m em ber of the sta ff.1IJ An advance on “ on-th e-sp o t” reprography is lo n g d istan ce m achine copying. Facsim ile transm ission has been achieved by the use of telephone lines and m icrow ave system s. H ow this further com plicates the c opyright situation will be considered presently. W hat has been called adjuncts to m achine copying are the m i­ crophotographic processes know n as m icrofilm and m icrofiche. M i­ crofilm is photographic reproduction reduced in size. M icrofiche is sim ilar in being photographic copy, but here the size reduction is vastly greater. A s “ T he L aw o f C opyright: R eprography and C om puter” says: Sixty to seventy slides, each containing a copy o f an eight by eleven inch page, m ay be placed on one four by five m icrofiche card. B oth o f these m edia are trem endous space savers; for exam ple, in m icrofiche form , the E ncyclopedia B ritannica could easily be stored in a shoe b o x ." 5 T he seem ingly lim itless duplication o f copyrighted m aterial w hich technology has m ade possible and w hich has just been indicated appears to have been m ade only through a clear violation o f the C opyright A ct. U nder the fair dealing provision, a student m ay X erox a single co p y o f a substantial part o f a w ork for his ow n private study and research. B ut, according to R oy C . S harp, he m ay not m ake copies for others. N or m ay libraries legally m ake copies and distribute them to students and re sea rc h ers."6 T hose w ho go beyond the lim ited privileges allow ed by the fair dealing proviso o f the C opyright A ct have been condem ned. H erm an W ouk, author o f the C aine M utiny, has said , “ C opying w ithout c o m ­ pensation is p ira c y .” " 7 An opposite view point is held by m any librarians w ho feel they have a m oral obligation to serve the public by dissem inating know ledge, through the use o f photocopiers if necessary. A s C hris Braithw aite points out, “ M ost librarians are c onvinced . . . that the provision o f a single copy o f a copyright w ork is both m oral and le g a l.” " 8 It seem s clear that the conflicting view points represent a serious dilem m a: how is the free interchange o f know ledge to be encouraged

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w ithout robbing the author and publisher of the just returns for their labors? H ow are the interests o f author and publisher to be protected w ithout inhibiting the spread o f learning for the public good? O ne solution to that dilem m a that has been suggested involves the paym ent o f royalties on photocopies. T he system proposed would depend on identifying books by a nine-digit Standard B ook N um ber. P hotocopiers w ould be licensed and equipped to m ake a taped record of the num ber of every book copied. T he tapes w ould be sent periodically to a clearing center w here royalties w ould be levied on m achine users and sent to the ow ners o f copyright. T he proposal seem s a prom ising one— o r at least if w ould be if it w e re n 't for the fact that facsim ile transm ission o f copyrighted m aterial m ay bypass the registering devices that can be installed in a static photocopier. M iniaturized storage and facsim ile transm ission com ­ bined w ith indexing and access by com puter suggest problem s of co p y rig h t120 w hich have not yet been fully explored and with w hich the present law of copyright is not adequate to deal.

Chapter IX The Problem of Privacy T he areas o f the law thus far discussed are, despite th eir shortcom ings, reasonably com plete. T hey are recognized legal concepts. On the other hand, the right o f p riv a c y ,1w hich is an aspect of the individual’s liberty which ought to be o f concern to the jo urnalist, does not enjoy the sam e sort o f recognition in C anada o r in the U nited K ingdom . A nthony A. T hom pson has pointed out that “ the concept o f privacy, as such, is unknow n and unprotected by E nglish la w .’’: In C anada there is no recognized com m on law right to p riv a c y .’ In both countries som e law in other areas does confer a lim ited right w hich is akin to the right of privacy and this will be discussed presently. But in E ngland the gains for the principle o f w hat has been called the right to be let alone are indirect ones. In C an ad a, with three exceptions w hich will be c o n ­ sidered below , the sam e fact is true. T h e A m e r ic a n P riva cy L a w Such is not the case in the U nited S tates. In that country there is a privacy law . It seem s useful to consider its nature so that, using it as a basis for com parison, it will be p ossible to m ore clearly delineate the C anadian legal situation in this area. Alan W estin4 has traced w ith som e care the genesis o f the privacy right from the earliest days of the A m erican republic. He says: [T]he notion put forw ard by legal com m entators from B randeis dow n to the present— that privacy w as som ehow a “ m o d ern ” legal right which began to take form only in the late nineteenth century— is sim ply bad history and bad law .5 N evertheless, for the purposes of this short chapter, it is probably sufficient to take as starting point a landm ark article w hich appeared D ecem ber 15, 1890 in V olum e IV , N um ber 5 of the H a rva rd L a w R eview . T he sem inal study w as entitled “ T he R ight to P riv acy ” and w as w ritten by Sam uel D. W arren and L ouis D. B randeis.6 W hat m otivated it w as w hat the authors apprehended to be an increase in intrusive gossip w ithin the pages of the m ass circulation new spapers of 141

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the d a y .7 In tracing the developm ent of the idea of privacy, W arren and B randeis considered the existing law s to guard the individual from battery in its various form s, to afford him freedom from actual restraint and to protect his property. T hey extended the principles underlying such concepts to include the processes and products o f the m ind. T hey cited the E nglish decision in A lb e r t v. S tra n g e .8 T hat case had its beginning w hen Q ueen V ictoria and the Prince C onsort m ade etchings for their own pleasure and that of their friends and intim ates. M r. W illiam S trange, a printer and publisher, obtained plates of som e of those etchings, advertised their public display and offered for sale a catalogue of his projected exhibition. Prince A lbert filed suit to recover the etchings and to have all previously printed copies o f the catalogues destroyed. W arren and B randeis em phasized the fact that, in finding in favor o f the p laintiff, the court not only prohibited the reproduction of the etchings but also the publishing of a description of them . They construed the decision as recognition of a m ore liberal doctrine than that of the m ere protection of property. T heir reasoning took them to the view point “ that the protection afforded to thoughts, sentim ents and em otions expressed through the m edium o f w riting or of the arts, so far as it consists in preventing publication, is m erely an instance o f the enforcem ent o f the m ore general right o f the individual to be let alone.*’9 T hey asserted that the “ principle w hich protects personal w ritings and all o th er personal productions, not against theft and physical appropriation, but against publication in any form , is in reality not the principle o f private property, but that of an inviolate p erson­ a lity .’’10 H aving arrived inductively at their thesis, the authors then proceeded to reinforce and elaborate on it, draw ing their exam ples this tim e not from property-related cases, but from cases the ratio decid en d i of w hich are grounded on an illegal breach o f an im plied co n tract o r of a trust o r confidence. T aking into account the fact that techniques of photography had so im proved as to m ake it possible for photographers to take pictures surreptitiously, w hereas previously tedious sittings had been required, the em inent jurists m aintained that a narrow interpreta­ tion of doctrines involving contract, trust or confidence is insufficient to co v er m any contem porary situations and that once again it was necessary to invoke a doctrine o f inviolate personality. T hey used sim ilar reasoning and arrived at a sim ilar conclusion after a discussion o f the law of trade secrets. N ot only did W arren and B randeis assert the existence o f the law of privacy. T hey also described and delim ited w hat they conceived the law to be. T hey did so in a series o f six propositions: 1. T he right to privacy does not prohibit any publication of m atter w hich is o f public or general in terest."

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2. T he right to privacy does not prohibit the com m unication o f any m atter, though in its nature private, w hen the publication is m ade under circum stances which render it im m une from attack according to the law o f slander and lib e l.12 3. T he law w ould probably not grant any redress for the invasion of p rivacy by oral publication in the absence o f any special d a m a g e .13 4. T he right to privacy ceases upon the publication of the facts by the individual, o r with his c o n se n t.14 5. T he truth of the m atter published does not afford a d e fe n se .15 6. T he absence of ‘m alice’ in the publisher does not afford a d e fe n se .16 T he tw o jurists recom m ended that rem edies for an invasion of privacy should be an action for dam ages in all cases, and, in a very lim ited class o f cases, an injunction to prohibit and prevent the continu­ ation o f the offence. M ore tentatively, they felt that though it was “ desirable that the privacy o f the individual should receive the added protection o f the crim inal law , . . . the protection o f society m ust com e m ainly through the recognition o f the rights o f the in d iv id u a l.’’17 In the years since the 1890 article, the right o f privacy as conceived by W arren and B randeis has been expanded in A m erican law . In 1903 N ew Y ork state passed the n a tio n 's first privacy statute. It prohibited the unauthorized use of a p erson’s nam e o r picture for advertising or trade purposes. V irginia, Utah and O klahom a are o th er states which have enacted privacy leg isla tio n ,1* as has the D istrict o f C o lu m b ia .19 D onald G. P em ber lists the follow ing as the states in w hich the law of privacy has been recognized: A labam a, A laska, A rizona, A rkansas, C alifornia, C onnecticut, D elaw are, F lorida, G eorgia, Illinois, Indiana, Iow a, K ansas, K entucky, L ouisiana, M aryland, M ichigan, M issis­ sippi, M issouri, M ontana, N ew H am pshire, N ew Je rse y , N ew Y ork, N orth C arolina, O hio, O klahom a, O regon, P ennsylvania, South C aro lin a, South D akota, U tah, V irginia, and W'est V irginia.20 T he D istrict o f C olum bia falls into the sam e categ o ry .21 T he only states in which the concept has been rejected are N ebraska, R hode Island, T exas and W isco n sin .22 In the rem aining states, either no reported cases to test the p rivacy concept have been found, o r reported cases have neither recognized privacy nor rejected it, o r cases in w hich the right to privacy seem ed to be an issue have been decided on other g ro u n d s.23 A footnote in D onald R. P em b er’s P rivacy a n d th e P ress conveys an idea o f the extent o f A m erican privacy litigation. H e says:

A bout 600 cases provided the basis for this study, [i.e. the study of w hich his book consists] Of this total, betw een 350 and 4 5 0 can be regarded as true invasion o f privacy suits, depending on how an

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T H E LA W AND T H E PRESS IN CANA D A

invasion of privacy is defined. T he rem ainder w ere actions based on copyright v iolations, unfair co m petition, libel and o th er adjacent legal areas. U sing the base figure of 350 privacy suits reported during the past 82 years, 149 o f these w ere litigated in N ew York. F ollow ing N ew Y ork, C alifornia reported 20 suits, G eorgia and K entucky each reported 15, and Pennsylvania reported 14. A gain, of the 350 total, 216 involved the m ass m edia, broadly defined to include such m edia as handbills and labels on consum er products. D uring the first forty years o f the la w 's grow th there w ere only 53 suits reported. O f this n um ber, N ew Y ork recorded 3 2 .24 T he field covered by A m erican privacy law is suggested by Dean W illiam Prosser, w hom G illm or and Barron have called the doyen of A m erican tort sc h o lars.23 H e has classified the right to privacy as em bracing four separate w rongs: 1. Intrusions into an individual’s seclusion, solitude o r private affairs; 2. Public disclosure o f em barrassing facts about an individual; 3. Publicity w hich places an individual in a false light in the public eye; 4 . A ppropriation, for the d e fe n d a n t's advantage o f the p lain tiff's nam e o r lik e n e ss.26 It m ust not be im plied that any absolute judicial agreem ent exists c oncerning the w eight to be attached to the privacy law or to the countervailing interests represented by that law and the first am end­ m ent provision to guarantee press freedom . Just how diverse are the opinions w hich relate to the right of privacy as a legal concept in the U nited States m ay be gathered from a reading o f pages 471 to 501 of D onald M. G illm or and Jerom e A. B arron’s M a ss C om m unication L aw .

T h e E n g lish P riva c y L a w , o r L a c k o f It A s has been pointed out, E nglish privacy law is very deficient, particu­ larly by contrast with A m erican privacy law . Speaking o f B ritain, A nthony A. T hom pson has w ritten: “ O nly one law designed for the protection of personal privacy as such has ever been passed in this country— eavesdropping . . . T he law w as repealed as obsolete in 1964.” 27 H. Phillip L evy has described how Lord M ancroft’s bill in 1961 failed to pass because o f the difficulty of defining privacy in such a w ay as to establish an acceptable balance betw een the freedom o f the

T H E PR O B L EM O F PR IV A C Y

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press and the rights o f the individual. He has noted that tw o private m em b ers' bills introduced into the B ritish parliam ent in 1967 were equally unsuccessful.-’1 T he concept o f privacy still rem ains unknow n and unprotected in E nglish law . T here have been rare occasions when the law has aw arded