Thank you very much.
Good afternoon to the committee. Thank you for inviting me to testify on behalf of CJFE.
I am currently the president, although you should know that I'm not a journalist. I'm actually a lawyer. My practice includes representing, defending and supporting the media in Canada. That's my claim to be the president at the present time.
In my remarks, I'd briefly like to touch on three key areas of the environment surrounding journalism today.
If I may start with the government environment, I think the committee knows it's been a challenging year for the media and free expression, in Canada and around the world. I'll give just three examples out of many, obviously, that could have been chosen. In the Middle East, first of all, I think as everyone's aware, we have an allied country whose government, according to U.S. security and intelligence services, may be responsible for the brutal murder of a Washington Post journalist in that country's own embassy. We usually think of embassies as a safe haven for travellers. This is one instance, but it's not the only one.
In the United States, we have a president claiming, in the United States district court, that he has absolute discretion to strip a long-standing, long-accredited member of the White House Correspondents' Association of his hard pass and his access to the White House and ultimately, of his career as a journalist.
Here in Ontario, we have a premier who believes he can divert taxpayers' money, provided to support the legislative and constituency responsibilities of his caucus, to fund his own private news outlet called Ontario News Now.
Those are three examples, all government actions. In my view, how Canadians and how Canadian laws and institutions react to these and other events in the government environment will be critical tests of our commitment, not just to the free press but also to the rule of law.
If I turn then to the economic environment, again, the committee will well understand the business climate for news media is another problem area. At a very high level—although there are lots of studies that go into more detail—two main causes are cited. The first is a major draw of advertising revenue away from traditional media that are involved in journalism, as we traditionally understand it, and towards social media that are not involved in journalism. That's the first cause. The other is a serious decline in audiences, particularly and significantly among younger generations.
It's really in that context that I looked at the finance minister's recent announcements, which include a trial balloon, I would say, on possible measures to address the resulting financial pressures on media. I have a number of points. First of all, this has rightly begun as a consultation, not a prescription, and I think that is a good thing. Government funding of our free press is controversial, even among journalists. It will be essential, for the government and for Parliament, to hear strongly held opposing views, on both sides, before choosing among options in this area.
I'm happy to take your questions on those issues, but I offer this. One of the options put forward in the finance minister's recent statement would give the tax credit to subscribers, rather than directly to media outlets. I have to say that appeals to me because it directly addresses one of the two underlying causes that I have just identified, which is the problem of declining audiences. This leads me to another thought. What about a tax credit for advertisers who place their advertising in major media?
Obviously, these options, however you structure them, are not going to completely avoid the need for a process to identify those outlets that should receive public subsidy, presumably because they are contributing to our values and our goals for a free press in Canada. This is where most of the debate and controversy arises. It's not an easy topic and we won't solve it in this hour, I'm sure.
However, these options would give both the public and advertisers a say in which media receive how much of the available government funding, if there is to be any. They also, I think importantly, subject the media who receive those subsidies to at least some basic market disciplines in terms of earning the support that the government may be prepared to offer or at least make available.
Lastly, I want to briefly turn to the legal environment, obviously the area that I know most directly and the best. In this area, I think we have a little more cause for optimism. A number of developments in recent years have been positive in, I think, the view of everyone who deals with media and represents their interests in the legal process.
The first, of course, was the passage by Parliament last year of the Journalistic Sources Protection Act. This brings long overdue protection to a critical area of news reporting, which is the protection of sources. I think you as parliamentarians all know that the ability to speak to the press off the record and to give background without attribution is critical. The discourse between sources and journalists and protecting that discourse, that discussion and that exchange of information from undue intervention in the legal system is critical.
The interpretation of the protections for journalists and sources created by that act is already before the Supreme Court of Canada in a hearing that will take place in the spring. We look forward to the court's interpretation.
The second legislative initiative I think is worth noting. Many provinces, including recently the Province of Ontario, have now enacted anti-SLAPP laws. Strategic lawsuits against public participation are, unfortunately, still far too common in Canada. They include actions brought by large corporations in Canada and others. Recent decisions by our Ontario Court of Appeal interpreting the new Ontario statute are very welcome in giving strong effect to the deterrent aspects of the legislation, particularly in terms of litigation that targets free speech.
I think Parliament has before it currently in the Senate the reform of the federal Access to Information Act. CJFE has contributed to that process recently, and we look forward to your deliberations.
In terms of the courts, courts across Canada continue to implement recent decisions by the Supreme Court that have strengthened key defences in libel actions. The defence of fair comment on matters of public interest is of particular importance to your deliberations, and that was strengthened by the court some years ago in WIC Radio. The defence of responsible communication, which was developed by the court and accepted by the court recently in Grant v. Torstar, has been applied now several times and is a very welcome addition to the defences for appropriate media reporting in our court system.
Where I think I would identify a need for more protective legislation and more judicial awareness and sensitivity is in terms of the role of the media reporting on our criminal justice system. I say, unfortunately, publication bans, whether they are imposed by statute or discretionary on the part of the judges sitting on criminal cases, really seem to be increasingly the norm, not the exception. I say it should be the exception, because our charter defines the right to a fair trial. Everybody talks about a right to a fair trial. It's actually the right to a fair and public trial. The public nature of a criminal trial is very important, and the ability—
