Category:Cases

From Ad IDEM / CMLA

Grant v. Torstar (December 22, 2009)
The Supreme Court of Canada has just given us the new defence of Responsible Communication on Matters of Public Interest...

Audette v. Radio-Canada and Gravel (September 23, 2009)
An injunction sought to stop an invasion of privacy was denied, even though Radio-Canada's source taped the plaintiff without his knowledge, and contrary to his wishes. The Dagenais/Mentuck test was not met...

Crookes v. Newton (September 15, 2009)
Hyperlinks to defamatory material on other websites may expose website owners to liability in defamation...

MacDonnell v. The Halifax Herald Ltd. and Stephen Maher (June 8, 2009)
Freedom of the press trumps privacy rights in accidental Ministerial tape recording...

R. v. O'Brien re Blackberry (May 4, 2009)
Can you use Blackberrys in court? You can for the Ottawa mayor's trial...

Saint John Pension Plan v Ferguson, Marks 3rd Party (April 29, 2009)
An editor's correspondence is protected from 3rd party production in a libel trial against an outside commentator

Grant v. Torstar (November 28, 2008)
This is the first appellate decision to apply the defense of responsible journalism in Canada - now under reserve by the Supreme Court of Canada

R. v. Imona-Russel (January 8, 2009)
This is a publication ban case where the defence and crown both sought a ban on certain evidence from the accused's sexual assault trial that was being heard by a judge alone. The grounds for the publication ban were that the accused was also facing a jury trial in an unrelated murder charge eight months later and the jury would be tainted by media coverage of the sexual assault trial. The judge declined to order a publication ban on the grounds that the media coverage of the accused's two criminal cases had been limited and challenges for cause would protect the accused's fair trial rights and ensure an unbiased jury was chosen for the murder trial.

Toronto Star Newspapers v. Canada (January 26, 2009)
The Ontario Court of Appeal has now ruled in the media's constitutional challenge of the mandatory publication ban at bail hearings.

The decision was 3:2, with the majority (written by Feldman JA, concurred in by Laskin, Simmons JJA) declaring that Criminal Code s. 517 (the publication ban section for bail hearings) should be read down by adding after "shall on application by the accused" the following words "where and for so long as the charge(s) may be tried by a jury".

The dissent, written by Justice Rosenberg, and concurred in by Juriansz JA, would have declared the words "and shall on application by the accused" in s.517 to be of no force and effect, wiping out the mandatory ban completely. They would have suspended the invalidity for 12 months.

This decision contrasts with the decision of the Alberta Court of Appeal, which held recently in R v White that the section was constitional as written.

WIC Radio Ltd. v. Simpson (June 27, 2008)
The Supreme Court of Canada has reinvigorated the Fair Comment defence. In the process it overturned its own 1979 decision in Cherneskey v Armadale, so that media organizations can publish the opinions of others, without having to agree with those opinions themselves. Justice Binnie, on behalf of the seven member majority, made it clear that the traditional test for the defence does not include a requirement that a court must find "fairness" in the opinion or the person offering it. If the opinion could honestly be held, fairness is in the ear of the beholder. Oh, and Rafe Mair won. Unanimously.

St. Elizabeth Home Society v. Hamilton (City) (In the matter of the citation of Ken Peters for contempt) (March 17, 2008)
The Ontario Court of Appeal allowed the appeal of Ken Peters, a reporter with the Hamilton Spectator, setting aside his citation for contempt for refusing to answer questions that would identify his confidential source. Justice Sharpe, writing for the court, reviewed the importance of confidential sources to journalists, limited the effect of the Moysa decision, and incorporated Dagenais/Charter principles into the Wigmore analysis of privilege and the court's consideration of contempt. Contempt is a last resort. Here, the trial judge used it too quickly, and applied it when it was not necessary to do justice. This judgment sets out important principles, and does so very well. The only consideration limiting the usefulness of this decision in future is that in the end, the source was not protected. The pressure on the journalist resulted in the source revealing himself.

R v. National Post (February 29, 2008)
The Ontario Court of Appeal allowed the appeal of the Crown, and reinstated the search warrant and assistance order against the National Post, ordering its editor-in-chief to produce to the Crown a document received by reporter Andrew McIntosh, along with the envelope it was sent in. Doing so risks revealing the identity of a person the court accepted was McIntosh’s confidential source. The police want to analyze fingerprints on the documents, and saliva on the stamp on the envelope, with a view to furthering their investigation of an alleged forgery, designed to affect the reputation of former Prime Minister Chretien.

Cusson v. Quan et al (Ottawa Citizen) and Barager (November 13, 2007)
Earth-shattering or simply incremental change to Ontario's libel law... it depends on your perspective. Justice Sharpe, on behalf of the Ontario Court of Appeal reviewed recent libel developments around the world and Canada, and incorporated a new made-in-Canada Reynolds/Jameel "public interest responsible journalism" defence into our law. The “chill” from the traditional Canadian common law of defamation is gone, replaced by the "thrill" of publishing stories that journalists investigate and have "every reason to believe" are true, on matters “the public has a legitimate interest in hearing”.

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