Law and the Media Flashcards
1
Q
Civil law is based off of ______. It is practiced in Quebec and a European based system.
A
the Civil Code. Soundness of reasoning over precedence
2
Q
The Constitution is also known as______. (1867)
A
The British North America Act. It was signed in PEI, and is the foundation of all laws in the country
3
Q
Pertaining to the Constitution, the Federal Parliament was given the power to:
A
regulate trade and commerce, taxation, borrowing of money, military, banks, postal service, immigration and penitentiaries
4
Q
Pertaining to the Constitution, the Provincial Parliament was given the power to:
A
tax, make provincial offices, run some prisons, hospitals and healthcare, municipal institutions, liquor, local works, incorporating companies, property ownership
5
Q
What are the 3 branches of the government?
A
- Legislature: makes and passes the law
- Executive: PM office, cabinet, ministries, CRA
- Judicial: courts, judges, police- Enforce the law
6
Q
Name 4 forms of laws
A
- Constitution
- statutes
- regulations
- common law
7
Q
What was the significance of the Constitution Act, 1982 (34 years ago)?
A
Canada became a Federation, so it could pass its own laws without England’s involvement. It also introduced the Charter of Rights and Freedoms into the new constitution.
8
Q
Name a few of our Fundamental Freedoms outlined in the Charter of Rights and Freedoms
A
- of conscience/religion
- of thought, belief, opinion and expression, including freedom of the pres and other media of communication
- of peaceful assembly
- freedom of association
- freedom of mobility (within/outside Canada, etc).
- freedom of life, liberty, security of person
- equality before and under the law
9
Q
What country has the oldest constitution?
A
The U.S. (1776)
10
Q
What are the two types of law that we discussed in class?
A
- criminal law
- civil law
11
Q
What does criminal law pertain to?
A
This is when someone is charged with an offense for breaking the law
12
Q
What does civil law pertain to?
A
this is when an individual is looking for compensation after having been civilly wronged
13
Q
Who defines the law?
A
The courts (judiciary) interpret the laws.
14
Q
Who makes the law?
A
the legislative (parliament)
15
Q
True of False: Courts of specialization have the same amount of authority as trail court
A
True: they are a specific type of trial court that specializes in specific areas.
16
Q
In civil court cases who has the burden of proof?
A
The plaintiff. It is based off of a balance of probabilities, after a preponderance of the evidence.
17
Q
In civil court cases who are the two parties?
A
The plaintiff and the defendant, the defendant is being found liable or not.
18
Q
In criminal court cases who has the burden of proof?
A
The Crown has the burden of proof. They must prove the accused is guilty “beyond a reasonable doubt”
19
Q
In criminal court cases who are the two parties?
A
The Crown and the defendant
20
Q
What are the 3 levels of the court system?
A
- Supreme Court (of Canada)
- Appeal Court
- Trial Court (including Courts of Specialization)
21
Q
List people who are present in a courtroom
A
- Plaintiff
- Defendant
- Judge
- Lawyers
- Bailiff
- Jury (not always)
22
Q
The legal system that relies heavily on case precedence is called___.
A
Common law
23
Q
When can you go to a court of appeal?
A
You can go to a court of appeal when you were legally denied justice. This may be because:
- an improper law was applied to the matter
- the Judge or 4 jurors slept during the trial
- improper instructions were given to the jury at end of the trial
24
Q
What is the purpose of a court of specialty?
A
They are used to streamline trial courts. They can include family court, juvenile court, or traffic court.
25
True or False: Over 90% of cases are settled before they ever go to trial
True: Plea bargains occur in criminal cases, and pretrial settlements occur in civil court. Here the settlement can be controlled by the two parties instead of a third party (judge/jury, etc)
26
What is the jury's role in a case?
The jury is very important. The judge becomes the referee, and the jury is presented the facts.
27
When do cases go to the Supreme Court of Canada?
- matter is of significant national importance
| - when two parties from different areas can't do provincial courts (ex. Ontario vs. Alberta)
28
True or False:When a court makes a ruling it becomes the law
Technically the court is interpreting the law. When a court makes a decision it can set a precedence, which in turn is then common law
29
True or False: If an Ontario judge does not have a case of precedence to look to in Ontario they must base their decision on another Province's case (ex. Alberta)
False: The judge can look to the other case as guidance, but does not have to use it
30
True or False: If an Ontario judge finds a case of precedence in an Ontario appeal court they have to use it.
True: They must site this case. Because it is the same province. It is called "binding precedent"
31
One major area where there is binding precedent for a trial judge's decision is________.
when referring to a Supreme Court of Canada decision
32
Try to summarize the civil trial court process (stages)
1) Statement of claim is filed and then served
2) Evidence is gathered
3) Discovery: each side is entitled to review the other side's evidence. Questions are answered under oath
4) Trial:opening statements (burden of proof on plaintiff), calling of witnesses, cross examinations, closing statements
5) Trial: rendering of decision- liable or not liable
6) Reward recommendation/judge's final decision
33
Try to summarize the criminal trial court process (stages)
1) Crime/event takes place
2) Police arrest/search
3) Charges are laid within 48hrs
4) Accused is jailed or out on bail
5) Crown/Police get evidence together
6) Preliminary hearing: show evidence, accused could get let go
7) Trial: Jury selection, burden of proof goes to Crown
8) Trial: defense, examining and cross examining
9a) Trial: jury may be dismissed if evidence is questionable, while judge discusses with lawyers
9b) Trial: Closing arguments, jury deliberates
10) Trial: verdict (conviction/not
11) Sentencing
12) Possibility of appeal
34
True or False: the freedom of expression is absolute
False: You can not express yourself in a way that violates the rights of others. Ex. yelling "bomb" at an airport
35
What are some reasons the media attends court cases? (4)
- make public aware of decisions that affect them
- watchdogs: fairness
- educational to public
- providing trust in the institution of the courts and democracy (openness)
36
What is a standard definition for contempt?
Doing something which offends, goes against, disobeys, or puts the court in a bad light. Whether you are in contempt is sometimes up to the judge.
37
What are the two areas in which contempt can take place? (latin names)
In Facie Curiae: In the face of the court
| Ex Facie Curiae: Away from the face of the court
38
What does ex facie curiae mean? Give an example
- Away from the face of the court.
- One example of this would be disobeying a court summons
- or a journalist questioning a judge's motive for a ruling
39
True or false: Yelling at a judge and saying that they didn't know how to do their job is an example of "in facie curiae" defamation
False: this is a type of contempt, not defamation
40
Why is the judge able to use contempt?
The power of contempt keeps the administration of justice intact. This action gives judge's their power to interepet and enforce the law
41
What is civil contempt? Example?
Civil contempt is disobeying a civil court order/judgement. This order is not against the court, rather against the person is owing.
One example would be failure to pay child support. The contempt would be against the spouse to receive the support.
42
What is criminal contempt? Example
Criminal contempt is any behaviour that prejudices or unjustly insults the administration of justice in either civil or criminal proceedings.
Ex. A reporter calling an accused a "mob boss" before or during trial (goes against the right to a fair trial, innocent until proven guilty)
43
What are some consequences of being in contempt?
- fine
- jail time
- both
44
What are some danger zones to be held in contempt?
Once someone has been arrested for the crime there is the possibility of contempt.
- Leading up to a court case, the closer you are the more dangerous it is to say anything about the case
- reporting on a preliminary hearing
- interviewing lawyers/witnesses who are going to testify
45
True or false: Reporting about a preliminary hearing, ex. whether a defendant plans to plead guilty is a danger zone of being held in contempt
True: the reporting of this information could influence potential jury members, as this is new information to them, and the defendant may change their mind before the trial.
46
When journalists accuse the court of bias, perversion of justice or improper motives this is called:
scandalizing the court. There is an action of undermining the court's authority; ridiculing a court or judge. Criticisms must be within fair comment or provable with facts; no malice
47
True or false: A person's right to a fair trial is of greater importance than the freedom of the press.
False: The Dagenais case is one important example, leading to the Supreme Court of Canada saying that while a fair trial is very important, the freedom of the press is of equal and sometimes greater importance.
48
During the Dagenais case the courts ruled that a ban is only necessary: (2)
1) to prevent a real and substantial risk to the fairness of a trial
2) when the need for the ban outweighs "the deleterious effects to the freedom of expression of those affected by the ban.
49
What does it mean to sequester a jury?
The jurors are isolated from the public for some or all of a trial to prevent contact with outside influences. ex. news media
50
True or false: judges will allow "trial by newspaper" or "trial by press" to take place
False: no judge will allow this. They wish the person to have a fair trial, one where the jurors have not been swayed beforehand, whether it be because of popular public opinion or information given not pertinent to the case itself
51
What factors will a judge consider when looking at an accusation of contempt?
Effect on the hearing:
- reputation of court
- sensationalism
- prominence of story
- lead or headline
- if there is a jury
- timing of article release
52
When does the danger of contempt start? (civil vs. criminal)
Criminal: warrants issued, arrests made
Civil: service of the writ or notice
53
When does the danger of contempt end?
After the appeal or appeal period.
54
True or false: Journalists are shielded from being held in contempt by their employers, as the employers have the final say in publication.
False: reporters have been held equally responsible, though there are occasions where only the employer was found guilty of contempt of a publication ban (textbook pg. 220)
55
What is the significance of the Dagenais case?
This case involved a publication ban. The national ban was lifted in showing a TV movie, and the local area around the trial was banned from seeing it so that the jury (found from around the area) would not be affected, but the rest of the country would have the opportunity to see it. The case gave the media the right to report, attend, express about the trial, making the right to a fair trial on equal grounds with the freedom of the press.
56
Who can punish for contempt?
Judiciary, quasi-judiciary, and legislative bodies (superior courts)
57
If a judge makes a decision "at law" it means that:
the judge is making the decision based off of their legal authority, meaning what the law has given them.
58
If a judge makes a decision "at equity it means that:
The judge is making the decision based off of the effect it would have on others. They want the case to be played out. Ex. workers are striking. The judge orders the workers back to work, and wants the union and employer to work out the issue.
59
What are the two kinds of publication bans?
- statutory
| - non-statutory
60
What does a statutory publication ban mean?
Statutory bans are written law. A judge has to issue a ban. An example is youth identification. The media know what is automatically banned.
61
What is a non-statutory publication ban?
These bans are at the discretion of a judge. This type of ban is more common.
62
What are 2 main reasons a judge may issue a non-statutory publication ban?
1) It is necessary to prevent risk to the proper administration of justice
2) the lasting effects of the ban outweigh the deleterious effects on the rights and interests of the parties and public (freedom of expression, right of accused to a fair and public trial)
63
True or false: the party wanting a publication ban bears the burden of justifying the limitation on freedom of expression
True:judges must keep bans as limited as possible. Crown or accused must prove reasoning.
64
What occurred in the Mentuck case?
An RCMP officer was gathering evidence on a murder undercover. The Crown asked for a publication ban of the officers's name and the methods they used. A judge ruled banned the names for 1 year but not the methods. The test for issuing a publication ban was reconsidered under new factors.
65
What is the new test that the judge considered during the Mentuck case?
1) necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk
2) the salutary effects of the publication ban outweighs the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice
66
Explain the reasoning behind the changes of the Dagenais case (via the Mentuck case)
Broaden the test, to allow judges to not only consider the impact of the ban on the case, but also to consider other rights or outside factors, particularly the ADMINISTRATION OF JUSTICE
67
Explain the Toronto Star case
The case looked at bail hearings, and whether section 517 of the Criminal Code's mandatory ban on some bail hearing info was a justifiable infringement of freedom of expression. The judge ruled that the Dagenais/Mentuck test was only applicable to non-statutory publication bans, not the mandatory one around bail hearings.
68
List some examples where there are statutory publication bans
- youth identity (18)
- sexual assault (encourage victims to come forward)
- preliminary hearings (is there even enough evidence?)
- Trial (striking information)
69
What happened in the Rafordy case?
Tori Stafford was abducted and found in a field in Woodstock, On. Rafordy was apprehended, and during police questioning said that his greatest fear was losing his life. The jury did not hear this, and he asked for a retrial. Rafordy claimed that he was not the murdered, rather the accomplice on Oct 24/16.
70
What is a plea bargain?
When there are multiple defendants one can often seek a plea bargain by giving a first hand account of what happened. They will receive a reduced sentence. During the preliminary hearing they will see if the Crown will still proceed to trial.
71
True or false: publishing the name of an assault victim at the sentencing hearing, after they say they want their name to be let out (to encourage others to come forward) is cause for being held in contempt
True: The news media could apply to a superior court judge for an order quashing the ban on the ground that neither the common law rule nor the Criminal Code authorize publication bans that limit Charter rights in an unjustifiable manner. (in this case the reporter did not go through the courts, pg 269)
72
What does "voir dire"(noun) mean?
A voir dire is a portion of the trial at which the jury was not present. A jury member takes an oath to tell the truth, in that they do not know of the information. Relates to the competency of a jury member. This information can not be published because of the right to a fair trial (influence of jury)
73
In what cases could the media public an accused youth's identity?
1) they receive an adult sentence;
2) receives a youth court sentence for murder, attempted, manslaughter, sexual assault, patterns of convictions of serious violent offenses
3) At large after having committed an indictable offense (chargeable), and is necessary to help apprehend youth- permission ends after 5 days
4) authorizes publication after they become an adult and is not serving a sentence in custody; or
5) is not yet an adult but the youth court judge is satisfied the publication is in the best interests of the youth
74
True or false: the court is generally reluctant to issue publication bans involving civil action
True. Though publication bans in civil court trials are the same in certain respects as those in criminal trials (ex. voir dire info)
75
Can the name of a diseased child be publish?
Yes. (textbook pg. 287-88)
76
What is a search warrant?
A court order (paper) used by Police to investigate a matter of interest that is issued by a judge. Magistrates order them in emergency situations. This paper is needed because of the Charter's right to be free of unreasonable search and seizure. It guarantees the information is collected professionally and legally.
77
What happens if a search warrant is found to be faulty?
The evidence found is not able to be used because of the right to be free of unreasonable search and seizure.
78
To issue and remain valid a warrant must:
- Be in the possession of the police using it
- be exhibited for inspection upon request
- first be a demand to enter before forced entry
- only use necessary force
79
What would a police officer do if a minor answered the door?
The officer would ask if the adult was present. If none were, the officer would ask the child to call their parent, and wait.
80
When will a judge issue a search warrant? (4 minimum criteria)
- reasonable and probable grounds, established on oath, that offense has been committed
- believe that the evidence of offense will be found at the place searched
- the area search must be fully described, and limited to that area
- authorization must come from neutral person, judge/magistrate.
81
When can the police use force?
They can use the necessary amount of force to get a person under control.
They can only use deadly force when they are threatened with deadly force. This is the cause of much controversy over police abuse.
82
If the media has a videotape/interview/ document and has no intention of turning it over, what might the police do?
The police may ask for a warrant (subpoena) to seize a copy.
The media is notified, and can make a case as to why the warrant should not be issued.
83
How should the media be involved in police investigations?
Should not get in the way. Media can't cross yellow tape, and can't intrude or obstruct and investigation. This is a fine line when interviewing witnesses, etc. Media is not a substitute for police investigation
84
What is one reason a media person may refuse to give information to the police?
If a reporter was given evidence/ testimony in confidence, that being that the source and reporter had an agreement that they would be kept anonymous.
85
True or false: police can ask the media for information about their investigation because it is much faster than re-interviewing the witnesses, etc.
False: police should exhaust all their leads before coming to the media. The media is a last resort.
86
True or false: once information /testimony has been broadcast the police can ask for a copy
True: once it is broadcast the information has become public information, and the police may ask for a better/unedited copy.
87
What is a subpoena/when is it used?
A request (court-ordered) for the production of documents, or a request to appear in court or other legal proceeding. Basically you are subpoenaed to do something.
88
What is an injunction?
An injunction is used to restrain an act for a limited period of time or forever (ex. stop the cutting down of Clifford's tree until dispute is settled)
89
What is an affidavit?
A written statement confirmed by sworn testimony, for use as evidence in court.
90
The Lessard decision was mentioned in class very briefly. What did these two cases involve? (affidavits)
In these cases videotapes were seized from journalists. They had both aired, and warrants were granted. The media claimed that the police had not exhausted all other sources. The judge ruled that there was no way to know if all possible ways had indeed been exhausted, especially since a judge had issued a warrant, meaning they had tested the sources available. (read more on pg 301 of the textbook)
91
If a reporter is interviewing/ filming a accused sex offender, and a police officer is listening, but not recording the interview, can they ask for a copy after part of the interview was shown?
Yes. Special conditions for this case can be found on pg. 303. Information has already been past into public domain when the interview was broadcast.
92
True or false: injunctions are common occurrences, used often
False: courts do not want to limit the press's freedom. Very carefully calculated.
93
True or false: An injunction could be issued to stop picketing, ordering workers to go back to work
True
94
Subpoenas are effective because of___.
The threat of contempt. (most probably civil contempt)
| -failure to appear, or failure to produce are contemptuous
95
If you are issued with a injunction the first thing you should do is:
Call a lawyer. They could get it quashed, and can advise on how to properly comply with it. Injunctions need to be obeyed exactly.
96
There are four types of injunctions (pg. 307). What is an "ex parte" injunction?
This is when it is issued without hearing from the part it effects. It is issued when time is important. Usually issued to stop a broadcast or publication that could be defamatory or contemptuous.
97
If you do not comply with police directions you are most likely:
Obstructing justice.
| Ex. not answering questions, etc.
98
Citizens have rights when arrested. Name a few:
- right to an attorney
- right to be told why you were arrested
- right to remain silent
- right to trial/judication quickly
99
If someone flees a crime scene, the police are then in_____.
Hot pursuit
100
True or false: if police are in hot pursuit they can go wherever it takes to catch the felon
True: there is then no constitutional protection to privacy/ search and seizure.
101
If a police officer is chasing someone, and they enter a house and see someone bagging drugs can they arrest that person?
Yes. Because they were in hot pursuit they were given the right to enter the home, and the drugs/person was in plain view
102
What is defamation?
It is to defame someone. To be liable for defamation the reporter/person would have made "a believable communication about someone, putting them in a false light, to a third party, that causes damages".
103
What are Clifford's 5 (+1) ingredients to defamation?
1) A communication
2) Made about an identifiable person
3) False
4)to a third party
5) that causes damages
6)Malice (intent)
The statement must be believable.
104
What is libel?
Libel is a written form of defamation. Printed/distributed/ sent
105
How might a publication try to rectify defamation that they did?
They can try to limit/ lessen damages by retracting the statement and apologizing.
106
Name 4 defenses to defamation.
1) The statement is true
2) Absolute privilege
3) fair comment
4) qualified privilege
107
How is truth a defense to defamation?
If the information is true then it is not false/ shown in a false light. This can be contested by the idea that you don't need to spread it even if it is true. (malice/intent could be claimed, as in harassment, damages to character, etc. )
108
How is absolute privilege a defense to defamation?
This takes place in a legislature or court of law. The idea that discussion should take place in order for a democracy to function. We want stuff to come out.
109
How is fair comment a defense to defamation?
These are editorials. They are allowable if:
- public interest
- lay out facts/background, first words give facts
- come to a conclusion using your opinion (recognizable as commentary)
- anyone could reasonable come to your conclusion
- article is not being written with malice.
110
How is qualified privilege a defense to defamation?
This is used by the majority of media. The matter is:
- of public interest
- fair and accurate
- balanced (other side was contacted for input)
111
If a lawyer is asking for a reporter to give up their anonymous source, and a judge orders them to they may be:
Held in contempt. This could lead to jail time.
112
True or false: If an informant asks for their info shared to confidential half way through the convo, the information must all be kept confidential
False: anything after they mentioned confidentiality is now confidential
113
True or false: Formal agreements about sources should be signed as an agreement between source and journalist
True: makes it easier to prove to a judge that you had an agreement with the source.
114
In terms of anonymous sources, the Wigmore Test gives the following 4 criteria:
1) Communication had to originate in confidence they would not disclose
2) the element of confidentiality was the essence of the relationship between the confident and reporter
3) the community would back this relationship
4) the benefit of keeping the informant confidential outweighs the benefit of revealing them
115
What is a reasonable expectation of privacy?
Ex. confines of a house
| ex. sunbathing in yard with wire fence vs. wood one. If a reporter looked over a wooden fence it is different
116
Why might a journalist go to jail instead of giving up a source?
The journalist's reputation of sticking to their guns makes them look good, and they would have an easier time getting info from sources in the future.
117
True or false: A third party can record a phone conversation
False(ish): they can only record the conversation if one of the parties has given them permission. Otherwise a warrant is needed.
118
True or false: harassment by solicitors can be considered an invasion of privacy
True: they have rules about hours of operations and about the frequency of their calls etc.
119
True or false: everyone has the right to approach your house/you
True: these licensees are given the right to approach your house through reasonable expectation of privacy. They are not allowed to linger, prowl or go around to the back door (ex. Trick or treating)
120
When investigating a story a reporter should: (4)
- not invade privacy (spring out of bushes, not tap phones)
- remain factual in investigation (qualified privilege), -give other side a chance to respond/ comment
- not sensationalize for the sake of headlines.
121
True or false: what you blog/ communicate/ put online is not fair game if someone wants to sue you
False: everything is fair game. Subpoenaing internet service providers can be prime evidence for defamation, publication bans, interfering with police investigations, etc.
122
What are copyrighted?
Legally protected productions (artists-drawn work), written works, music/ recording. Published or unpublished
123
True or false: if you write for an employer they own the copyright
True. Freelancers give one time use of their material for a fee
124
How long does copyright last?
It lasts for 50yrs after the person dies, then becomes public domain.
125
Name things that are not copyrightable:
- news, ideas or pure info
- copying for private study
- commenting on parts of work, so quoting it
- complete or substantial re-writes
- speeches, lectures or public readings or recitations of works
- permanently displayed art (pictures of it, ex. sculpture/building in public place
126
You can infringe on copyright by: (5)
- substantial or wholesale reproduction of original work
- copying form of expression of an idea or info
- translating/ substantiating reproduction
- converting non-dramatic work/novel into dramatic work or vice versa
- visual or audio recording of literary, dramatic or musical work, except in small portions
127
True or false: copyright comes into effect 24hrs after writing (etc)
False: immediately
128
True or false: if you give a license to someone and they use it for something you find morally wrong you have a case
True: you can not use it if the person sees it as morally wrong
Ex. Coca-Cola license to someone, can't use it towards a prostitution house (puts coca-cola in a bad light)
129
True or false: exclusive reports can be used by other news agencies
False(ish): the other agencies can pay a fee to use the report, or they must give credit to the other news source/reporter
130
Can you publish intimate photos of a celebrity leaked onto the web without his/her permission?
No (criminal code, 2014) -see of 107 of textbook
131
Is a website operator or news media outlet responsible for what visitors say on discussion boards?
yes, has to moderate
132
true or false : generally areas of contempt , defamation, court orders, intellectual property, are they same whether online or not
True
133
True or false: if you exercise control over an image online you will not be responsible for damages it caused.
False
134
True or false: if you remove defamatory comments online you may still be liable
true, there may be a reduction in damages awarded for violating their freedom of expression
135
True or false: you can not go around a court order by using a server or tech outside of Canada to published banned info etc
True
136
true or false: most material on the web is public domain
False: not Public domain. permission Is likely needed to reproduce or use a substantial portion
137
True or False: a publisher does not need to make a separate agreement with a freelancer when publishing their work online vs in print
False: another agreement is needed , including when making an archival database of articles available
138
True or false: defamation is the most common danger zone involving blogs
True
139
What does the term "twibel" mean?
Libel via social media (Twitter)
