Journalists off hook if ban breached
News
Journalists who inadvertently violate a publication ban imposed on a court case have not committed a crime, Ontario’s top court says in a January 2007 ruling. Media outlets are ultimately responsible for what gets published and only their bosses can be prosecuted. But Toronto media lawyer Lorne Honickman warns that reporters broadcasting live from the courthouse or posting directly to online blogs can still be charged with violating a ban. By Dean Jobb.
Journalists who reveal banned evidence in news stories can only be convicted of a crime if there’s proof they intentionally set out to violate a publication ban, the Ontario Court of Appeal has concluded.
In R. v. Helsdon, one of the few a rulings to explore who’s criminally responsible when a news outlet runs afoul of a Criminal Code publication ban, the court found that publishers and broadcasters bear the ultimately criminal responsibility if news coverage discloses banned names or evidence.
“It’s an extremely crucial decision for people working in the industry,” says Lorne Honickman of Toronto’s Goodman and Carr LLP. “A reporter may have been negligent, he may have been careless, forgot to check (whether a ban was in place), whatever … that reporter doesn’t have the ultimate decision on publication, should not be held criminally responsible.”
But the newspaper or broadcast outlet that employs that journalist, as the principal to the offence, can still be convicted, he adds, “and that’s the right decision, the way it should be.”
“If you’re a newspaper publisher, you say to yourself, ‘I have to ensure that the people I have out there – my editors, my reporters – understand the law, understand what needs to be done, and I’m going to supervise.’”
Honickman acted for Jeff Helsdon, a reporter for the Tillsonburg News who was charged in 2002 with violating a ban, s. 486(3) of the Code – now s. 486.4(1) – on publishing any information that could identify the complainant in a sexual assault case.
Courts routinely impose the ban but Helsdon did not cover the pre-trial stages of the case and the Court of Appeal accepted he was not aware the ban had been imposed a year earlier. His front-page report on the verdict in the case used the complainant’s name no fewer than ten times.
After the paper was alerted to the ban, Helsdon’s editor sent a letter notifying the trial judge that the name had been published and expressing regret for the “inadvertent” breach. Both Helsdon and Annex Printing and Publishing Inc., the paper’s publisher, were charged with the summary offence of violating the ban.
The judge at the trial level convicted the publisher but acquitted Helsdon, ruling the reporter could not be convicted under s. 21 of the Code as a party to the offence because he had nothing to do with the final decision to publish his story.
[node:ad]The Crown appealed and Justice John F. McGarry of the Superior Court of Justice overturned the acquittal, on the grounds the reporter filed his story in the expectation it would be published, making him a party to the offence as an aider or abettor. Annex and Helsdon were fined $3,000 and $500 respectively.
Ontario’s Associate Chief Justice, Dennis O’Connor, writing on behalf of the Court of Appeal, ruled that the reporter did not have the necessary degree of mens rea to be liable as an aider or abettor to the offence.
Justice O’Connor rejected that Crown’s submission that requiring subjective mens rea for a party accused of breaching a publication ban – the higher level of culpability required to convict the principal to an offence – would “open the floodgates to the abuse” of such orders.
“Principals, those who publish, are liable on the basis of the mens rea for the principal offence …. Without principals, there can be no offending publications,” he wrote.
“In addition, reporters such as the appellant are generally subject to supervision, or at least some control from those who actually publish. It is not unreasonable to expect that publishers should assume the ultimate responsibility for determining that information being published does not contravene a publication ban.”
Had the court accepted the Crown’s argument, Honickman says, the floodgates would indeed have been opened – any editor who handled a story, regardless of whether he or she knew a publication ban had been breached, could have been convicted.
While the ruling is a comfort to print reporters, he cautions that journalists who violate a publication ban in a live report on radio or television, or online in a blog posting, could still be convicted as the principal to the offence.
“This ruling provides no security or safety net for that particular reporter,” he says. “This is really key for newspaper reporters who sit in their office, type the story, hit enter and may not have any intention of breaching any ban.”
This article originally appeared in The Lawyers Weekly, February 9, 2007.
August 21, 2007
I think Lorne’s assessment
I think Lorne’s assessment of the impact of the Helsdon case may be a bit too broad.
It is important to remember that this unusual case involved a relatively rare charge against a journalist under section 21 of the Code — that is, purposely aiding and abetting another person in committing a crime. At trial, the Crown had failed to establish its case that both the reporter and the employer had breached the ban issued under s. 486(5) [now s. 486.6(1)]. The trial judge’s finding of fact was that only the newspaper was responsible. The Crown’s attempt to make the charge against the report under s. 21 appears to have been a Hail Mary pass of sorts.
In fact, when the case eventually reached the Court of Appeal, the court made a point of noting the “sole issue on the conviction appeal” is whether the lower court judge erred in finding the reporter had the mens rea or intention to make him liable as an aider or abettor. The appeal court also noted it was the Crown’s choice not to argue the journalist committed the offence of publishing the article in contravention of the 486(5) ban through negligence or lack of due diligence.
The appeal court went on to say: “A person may be convicted under that section upon the Crown establishing that the person intended to publish the offending information and upon proof of a failure to meet an objectively determined standard of care… I should also not be taken as having decided that the appellant could not be convicted as a principal. As indicated, Crown counsel in this court fairly did not press that issue given the position taken in the appeal court.”
My reading of that is that the appeal court might have delivered an entirely different result if the Crown had pressed the case that the reporter should be convicted in the same way as his employer. Indeed, plenty of cases have made it clear that both print and electronic journalists can be held responsible even when they had no intention of breaching a ban (R. v. Daly (2003), 178 C.C.C. (3d) 31 (B.C. S.C.); R. v. CHBC Television (1999), 132 C.C.C. (3d) 390 (B.C. C.A.); A.G. Manitoba v. Winnipeg Free Press Co., [1965] 4 C.C.C. 260 at 263 (Man. Q.B.); and R. v. Aster (No. 1) (1980), 57 C.C.C. (2d) 450 (Qué. S.C.)).
All that said, Lorne’s victory in the Court of Appeal was commendable and very cleverly won.