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    Constructions Louisbourg, owned by Antonio Accurso, asked the court to find Radio-Canada in contempt, on the basis that their journalists had violated a sealing order and breached the confidentiality of the file. They were also seeking the identity of a confidential source.

The judge ruled that Radio-Canada was not in contempt and that the identity of the confidential source should not be revealed.

February 7, 2012   R. v. Gregson
    Justice Rutherford ordered that "any personal electronic device [PED] ...must, subject to the terms of this order, be turned off while Court is in session." However, Rutherford J., provided that "a journalist who is from a recognized media organization may obtain permission in writing from the presiding judge to use the PED..." upon completion and Court approval of the application attached as an Annex to his Order.

January 9, 2012   R. v. Schertzer et al
    Justice Pardu held that in principle, "in this era of newspapers on the internet", journalists should be able to transmit information from court whether they do so by stepping into the hall for a moment, or doing so unobtrusively in the courtroom. Provided that the proceedings are not disrupted, this means the ability to use Blackberries, laptop computers and similar devices from inside the courtroom, and to use those devices to record any portions of the proceedings in which they are interested for the purposes of supplementing or replacing handwritten notes.

October 19, 2011   Birth of a new Tort? Jones v. Tsige, 2012 ONCA 32.
    Ontario Court of Appeal recognizes "intrusion upon seclusion" as tortious conduct. Brief comments indicate Court's awareness of possible section 2(b) implications.

October 19, 2011   Supreme Court releases Crookes v. Newton, SCC decision today.
    The Court is unanimous in its dismissal of the appeal. The majority describes hyperlinks as "references", fundamentally different from publication.

October 13, 2011   R. v. Kossyrine and Vorobiov
    An Ontario Court refused to grant a publication ban on a co-accused's guilty plea in a first degree murder trial. The deciding upheld the importance of media's role in reporting court activity to the public and made some important observations about the relationship between the media an juries. "the accused are entitled to an impartial jury not an uninformed jury.".

May 31, 2011   AdIDEM Submission on UK Libel Law
    The U.K. is in the process of amending its Defamation Act. The Board of Directors of the Canadian Media Lawyers Association has prepared a submission to the law amendment committee. See: Submission to UK Joint Committee on Draft Defamation Bill

For more details see this entry in our section: U.K. Defamation Act.

May 9, 2011   AdIDEM Prepares Contribution to UK Libel Law
    The U.K. is in the process of amending its Defamation Act. The Board of Directors of the Canadian Media Lawyers Association is currently drafting submissions to the law amendment committee. The submissions are to be made by May 27, 2011.

For more details see this entry in our section: U.K. Defamation Act. .

March 28, 2011   Reference re Constitutionality of s. 293 of Criminal Code of Canada
    Webcast and television news coverage of the closing submissions in this case begins, and is scheduled to last for two weeks.

For Background, see: Electronic Public Access to Court.

March 4, 2011   A.B. v. Bragg Communications Inc., 2011 NSCA 26
    A young person started a defamation claim using initials and simultaneously applied for a publication ban. CMLA members including Nancy Rubin and Al Parish, acting on behalf of media clients successfully intervened and the Nova Scotia court firmly rejects the proposition that a defamation plaintiff (even a young person) can start an action anonymously.

February 17, 2011   Supreme Court maintains limits on class-based defamation claims. See Bou Malhab v. Diffusion Métromédia, 2011SCC9.
    The Supreme Court overturns a class action award by Quebec's Superior Court of damages to a non-profit organization representing all members of the class. The Court held that no reasonable person would have taken the impugned comments seriously or believed that they applied to all members of the class.

February 11, 2011   Ad IDEM comments on proposed amendments to CRTC Regulations
    Ad IDEM joined over 2000 other concerned parties who have made submissions to the CTRC regarding proposed amendments to its regulations. The proposed changes affect: the prohibition on broadcasting false or misleading news; the prohibition on broadcasting programming that contains obscene or profane language; and the submission of information by licensees to the Commission.

January 28, 2011   Canadian Broadcasting Corp. v. Canada (Attorney General)
    The good news? Media activity within the courthouse is protected by s. 2(b) of the Charter. The bad news? Justice Deschamps, on behalf of the Supreme Court of Canada, upheld the constitutional validity of a total ban on broadcast of official audio recordings of court proceedings. The rationale was that permitting broadcast of them would interfere with the purpose of making them, i.e. to preserve the record, by potentially influencing witness anxiety and behaviour, and, as a result, affecting the record itself.

The Supreme Court also upheld a restriction on the freedom of movement of media cameras within court corridors. In Quebec, cameras must stay in corridor locations designated by the court, where journalists can record comings and goings, and can invite and conduct consensual interviews with witnesses, lawyers or the public. The silver lining: Media in other provinces can now argue that they should not have to live with the existing total bans on camera and microphone access to court corridors there.

Note: The ban on media camera access to court proceedings in Quebec was not challenged by the media or addressed by the court, and remains an open question.

January 28, 2011   Canadian Broadcasting Corp. v. Canada.
    Broadcasting exhibits is not the same issue as broadcasting from court. The Supreme Court overturned a lower court finding that they were related, and confirmed that the test to be used when considering the broadcast of exhibits is the Dagenais/Mentuck test, where the onus is on the party wanting to restrict broadcast to demonstrate that it's necessary. The court added considerations to that test related to the impact on the trial of any co-accused and the accused personally, including in this case his vulnerability as an intellectually disabled person, and his acquittal. In the end, the Supreme Court dismissed the appeal and denied Radio-Canada and TVA the right to broadcast the accused's police interview exhibit on the grounds that given other developments in his case the original access argument had become moot.

January 10, 2011   Lougheed v. Wilson, 2010 BCSC 1871
    This decision by the BC Supreme Court applies an extremely narrow interpretation of Globe and Mail (the "Polygone" decision by the Supreme Court). The dangerous circular reasoning at the heart of this decision says that in a defamation case, the motive of the source providing information to the journalist is relevant. To discover the source's motive, the Court requires his or her identity. This decision will be appealed.

January 5, 2011   Ontario Anti-SLAPP Report
    The Ontario government has received a final report by the minister's Anti-Strategic Litigation Against Public Participation (Anti-SLAPP) Advisory Panel. The government is awaiting public response before action. The report is available on as well as the Ontario government's site.

December 9, 2010   Nova Scotia Personal Health Information Act
    Nova Scotia passes Personal Health Information Act despite concerns that its provisions will result in significant infringement on freedom of the press.

December 2, 2010   Spiller v Joseph, 2010 UKSC 53
    UK Supreme Court Comments on "Fair Comment".

November 1, 2010   R. v. Canadian Broadcasting Corporation
    The CBC obtains access to audio-visual exhibits filed in the preliminary inquiry into the death of Ashley Smith in custody.

"The last step in a longstanding struggle by the CBC to maintain the full vigour of the Dagenais/Mentuk test and the open court principle, specifically in relation to exhibits filed in court, and particularly those which record disturbing events." ~M. Philip Tunley.

October 22, 2010   Globe and Mail v. Attorney General of Canada
    Held: The journalist‑source privilege appeal should be allowed and the matter remitted to the Superior Court of Quebec for consideration in accordance with the reasons for judgment. The publication ban appeal should be allowed and the order prohibiting the publication of information relating to the settlement negotiations quashed. The discontinuance appeal should be dismissed as moot.

October 16, 2010   Turmel v. CBC (Dragons’ Den), 2010 ONSC 5318
    While the Ontario Court agrees that The Dragons on CBC's television show Dragon's Den were "unkind" to the plaintiff, the failure to properly serve a notice of libel under the Libel and Slander Act serves as grounds for summary dismissal. Justice Lofchik also generously takes time to consider whether the plaintiffs unplead breach of contract claim reveals a genuine issue. Here the consent form, signed by the plaintiff effectively bars any such claim. This case serves as an example of the effectiveness of the libel notice requirements as well as the prudence of requiring consent forms.

September 30, 2010   Defamation not necessarily grounds to shutdown a website: Prud’homme vs. Municipalité de Rawdon
    Anne-Julie Perrault has shared with AdIDEM her summary and comments on a decision last March in the Quebec Court of Appeal overturning a number of injunctions and orders against a website and its users. The Court of Appeal held that the presence of some prima facie defamatory comments on a website did not justify ordering the entire website offline.

September 23, 2010   AdIDEM News Feeds
    This new page on the website will disseminate media-law news clips and links to articles and items of interest from various online sources. Please follow the link for more information.

September 13, 2010   Responsible Communication Defense applied in an Ontario Jury Trial
    David Helwig, News Director of and defendant in a defamation suit, writes about a decision by the Ontario Superior Court of Justice to dismiss a libel claim against the same news website as well as the Sault Ste. Marie Police. Justice Edware Koke noted that this was one of the first Jury cases to rely upon "responsible communication."

June 16, 2010   Ontario (Public Safety and Security) v. Criminal Lawyers Association
    The failure to include a public interest override in respect of the law enforcement and solicitor-client exemptions does not violate s.2(b) of the Charter. In an unanimous decision co-written by the Chief Justice and Justice Abella, the Supreme Court held that "access to documents in government hands is constitutionally protected only where it is shown to be a necessary pre-condition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned."

June 10, 2010   Toronto Star v Canada
    The constitutionality of the bail hearing publication ban that is automatic at the request of the accused was upheld by the Supreme Court of Canada in two cases emanating from Alberta and Ontario, the Michael White murder case, and the Toronto 18 terrorism case.

May 7, 2010   R. v. National Post SCC
    While confirming the importance of confidential sources to journalists in normal circumstances, the Supreme Court of Canada dismissed the appeal of the National Post against an order requiring it to give the police documents obtained by its reporter in a brown envelope, documents which it maintained would have to have been given up even by lawyers claiming solicitor-client privilege. The documents, they held, were potential evidence of a crime, uttering a forged document. The court maintained the Wigmore test as is, leaving the onus on the media to establish all its elements, including that the public interest in protecting a secret source outweighs the public interest in a criminal investigation.

December 22, 2009   Grant v. Torstar
    The Supreme Court of Canada has added a new defence to Canada's Defamation law: Responsible Communication on matters of public interest. This decision, decided on the same day as the Cusson case, is the principal decision articulating the applicable principles. The new defence applies to everyone publishing information, not just journalists. A judge will decide whether the publication was on a matter of public interest, and the jury will decide if the defence succeeds. The case was sent to a new trial.

December 22, 2009   Cusson v. Quan et al (Ottawa Citizen) and Barager
    The Supreme Court of Canada added a new defamation defence to our law: Responsible Communication on matters of public interest. Together with the lead decision in Grant v Torstar, the new defence brings Canadian law in line with other common law countries. The new defence applies to everyone publishing information, not just journalists. This case was sent back for retrial, with the court holding that the Qualified Privilege defence had been interpreted too narrowly at the original trial.

    Justice Reporter
    A new Justice Reporter is born... thanks to Tracey Tyler and Tony Wong.

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