Journalists off hook if ban breached

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.

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.