Media Relations

Alternate Formats

Judge Advocate General Policy Directive: # 014/03
Original Date: 07 March 03
Update: 21 April 11
Subject: Media Relations

Cross Reference: QR&O, Articles 19.36 (Disclosure of Information or Opinion), 19.37 (Permission to Communicate Information) and 19.375 (Communication to News Agencies) DAOD 2008-2 (Media Relations and Public Announcements) JAG Policy Directive 001/99 (Media Relations)

APPLICATION OF POLICY

1. This policy directive is issued by the Director of Military Prosecutions (DMP) and applies to all Prosecutors1 serving with the Canadian Military Prosecution Service (CMPS).

INTRODUCTION

2. Public confidence in the administration of justice depends on access to full and accurate information on court proceedings. Open courts are a hallmark of a free and democratic society. Canadian courts martial are public proceedings.2 Part and parcel of this openness is media access to information about the military justice system. By providing appropriate information, Prosecutors can help ensure that Canadian Forces members and other citizens have a fair opportunity to determine whether the military justice system is functioning effectively.

POLICY STATEMENT

3. Prosecutors are encouraged to respond to reasonable media enquiries in a timely manner provided that in so doing there is no infringement of their legal and professional obligations.

4. Relationship to Other Regulations and Directives. This policy directive provides specific guidance to Prosecutors. It is intended to complement, and is to be read with, the following:

  1. The Queen's Regulations and Orders for the Canadian Forces (QR&O), Articles 19.36 (Disclosure of Information or Opinion), 19.37 (Permission to Communicate Information) and 19.375 (Communication to News Agencies);
  2. Defence Administrative Order and Directive (DAOD) 2008-2 (Media Relations and Public Announcements); and
  3. Judge Advocate General (JAG) Policy Directive 001/99 (Media Relations).3

5. Rules of Professional Conduct. Prosecutors shall comply with any rules and regulations made by their provincial law societies with respect to the making of public statements.4 Also, Prosecutors are to have regard to the principles of professional conduct set out in Chapter XVIII of the Canadian Bar Association's Code of Professional Conduct (Public Appearances and Public Statements by Lawyers).

6. Authorisation. Subject to any limitations mentioned herein, Prosecutors are authorised to assist and represent the DMP by responding to media enquiries.5

7. Protection of the Accused. Prosecutors must ensure that their public comments do not impair an accused person's right to a fair trial.6

8. Decorum. All statements to the media must be assumed to be both "on the record" and directly attributable to the speaker. As such, Prosecutors must maintain the utmost of decorum when addressing the media. Prosecutors will, at all times, be courteous and dispassionate. A Prosecutor must remember that, once a statement is made, he or she will not be able to control how it is edited or the context in which it is published. On this subject, the Canadian Code of Trial Conduct states that:

A lawyer should try the case in court and not in the newspapers or through other media. A lawyer's communications with the media should be restrained and disassociated from any desire for personal aggrandizement. They should be limited to disclosure of that information which the public needs to know in order to understand the nature and course of the proceeding. A lawyer should refrain from discussing anticipated evidence with the media which has not yet been tendered in evidence.7

9. Educational Function. Members of the public, including the media, may have limited knowledge of legal matters. This is especially true of the military justice system. As such, it is incumbent upon Prosecutors to educate the public by providing the media with clear, accurate, complete, and easily understood answers.

10. Responsiveness. A Prosecutor must never put answering media questions ahead of trial preparation. However, Prosecutors must remember that members of the media play a very important role in Canadian society and that they too have deadlines. As such, every effort should be made to respond promptly to media enquires. If a question cannot be answered, the Prosecutor must explain to the reporter why it would be inappropriate to respond.8 If a Prosecutor is unsure of the appropriateness of answering, or does not know the answer, he or she should defer answering the question and seek the guidance of his or her Deputy DMP (DDMP).

11. Personal Opinions. Prosecutors shall refrain from offering personal opinions or speculation. Prosecutors shall restrict themselves to providing factual information on subjects such as the operation of the military justice system and the role of CMPS within that system. Prosecutors may also comment on specific cases but, in so doing, great care must be taken to protect the integrity of the trial process.

12. Pre-Charge Media Enquiries. The media may seek to confirm that an investigation is ongoing or that charges are pending. Answering such enquiries could compromise an investigation or prejudice an individual. As such, Prosecutors shall neither confirm nor deny the existence of an ongoing investigation or pending charges. If a reporter makes such an enquiry, he or she is to be informed that such matters are confidential and will not be discussed publicly.9

13. Post-Trial Media Enquiries. Prosecutors shall not comment on the correctness of a verdict or sentence nor shall they comment on whether a decision will be appealed (i.e., before a notice of appeal is filed). They may, however, explain in general terms the process used to determine whether a case will be appealed (refer to DMP Policy Directive No. 015/04).

14. Publication Bans. Publication bans are most often used to prevent the publication of the identity of the complainant or witness in proceedings involving sexual offences.10 Other instances where publication bans may be ordered include: protecting the victim or witness from intimidation, retaliation, or other significant harm;11 preventing the publication of information concerning the sexual activity of a complainant;12 preventing the publication of information about the accused's potential mental disorder;13 preventing the publication of the identity of a juror (panel member);14 and preventing the publication of information heard at a show cause hearing.15 Although there are no specific provisions in the NDA respecting publication bans, military judges have the power to impose publications bans pursuant to both statute and the common law.16 Prosecutors must be aware of the sorts of information that is properly the subject of either a mandatory or a discretionary publication ban and, as appropriate, must be prepared to make representations to a court martial concerning publication bans. Finally, when addressing the media in cases where a publication ban has been ordered, Prosecutors should remind members of the media of the existence of the publication ban in order to prevent the inadvertent disclosure of information subject to the ban.

15. Media Contacts Initiated by the Prosecutor. There will be occasions where it would be appropriate for the Prosecutor to initiate media contact. For example, a Prosecutor may conclude that initiating media contact would serve to correct inaccuracies or omissions in prior media reporting. However, there will be instances where it would be more appropriate to instead issue a CMPS press release at the national level. Therefore, to ensure that a coordinated approach is taken that reflects pan-CMPS considerations, individual Prosecutors shall not initiate media contact without first obtaining the approval of his or her DDMP. Any subsequent media contact that is authorised to be initiated by the prosecutor shall be effected in consultation with a representative of the nearest CF Public Affairs office.17

16. Relationship with Public Affairs Officers. Prosecutors will ensure that they respond in a timely fashion to information requests made by Public Affairs Officers and may communicate and seek guidance from them on a case by case basis.

17. Internal Communication. After a Prosecutor responds to a media enquiry, he or she shall, as soon as practicable, inform his or her DDMP of the questions asked and the responses given. DDMPs shall inform the DMP and the Assistant DMP of any issues likely to attract significant media attention.

AVAILABILITY OF POLICY DIRECTIVE

This policy directive is a public document and is available to members of the Canadian Forces and the public.


Footnotes

1 In this policy directive, the term "Prosecutor" refers to an officer who serves in the CMPS and who has been authorised to assist and represent the DMP pursuant to s. 165.15 of the National Defence Act (NDA).

2 See NDA s. 180.

3 Of particular note, a section entitled "Media Relations and Criminal Proceedings" is found at paras. 11-15 of JAG Policy Directive 001/99.

4 See e.g. Law Society of Upper Canada Rule of Professional Conduct 6.06 (Public Appearances and Public Statements).

5 See NDA s. 165.15 and QR&O 19.375(2).

6 See e.g. JAG Policy Directive 001/99, para. 15 for a list of topics that could impair an accused person's right to a fair trial.

7 Canadian Code of Trial Conduct (Irvine, California: American College of Trial Lawyers, 1999), para. 23.

8 Information which cannot be provided includes: privileged or classified information; the existence of resolution discussions; calls for comment on a judge's decision, etc.

9 See JAG Policy Directive 001/99, para. 11.

10 Criminal Code s. 486.4.

11 Criminal Code s. 486.5.

12 Criminal Code s. 276.3(1).

13 Criminal Code s. 672.51(11).

14 Criminal Code s. 631(6).

15 Criminal Code s. 517(1).

16 NDA s. 179.

17 See JAG Policy Directive 001/99, para. 8d and DAOD 2008-2.

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