File:R v CBC 2018 ABCA 391.pdf

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the court appeal alberta citation canadian broadcasting corporation abca date docket 1703-0136-a registry edmonton between: her majesty queen appellant and respondent court: honourable justice peter martin madam patricia rowbotham sheila greckol reasons for judgment reserved concurred from decision t.d clackson dated 16th day may (2017 abqb 160339594x1) (canlii) introduction crown appeals acquittal cbc criminal contempt violating publication ban issued under section 486.4(2.2 code rsc c-46 application mandatory that presiding judge impose when victim crime age prohibits “any information could identify victim” being “published any document broadcast transmitted way” 486.4(2.1 before posted news story its website identifying 14-year old homicide although did not post more after refused remove crown’s position each time new reader accessed online content child’s was “published” “transmitted” cbc’s failure comply with constituted act contempt. turns trial judge’s statutory interpretation meaning used while similar provisions prohibit making “available” “accessible” narrowly worded even this case common law clear state prosecution purposes form object proceeding thus underlining nature some forms disobedience see carey laiken scc paras [2015 scr particularly assertion “public defiance” para envacon inc ltd morasse nadeau-dubois [2016] key feature construction analysis which follows rule conduct should never uncertain legal footing. background march body child found articles included name photograph other information. first appearance person accused killing child. however requests solicitor general page were still accessible website. injunction compelling rev’d supreme concluded had discharged burden proving “a strong likelihood” would ultimately successful guilt part because “might also reasonably taken prohibiting only occurred ban”: result injunctive relief—interlocutory mandatory—was granted compel acquitted alta 6th (the civil but appealed applied test united nurses attorney dlr 4th una majority held like order distinction “rests concept public defiance accompanies contempt” requires prove disobeyed way intended knew likely depreciate undermine court’s authority 15– reviewing similarities penal required interpret strictly resolve ambiguity favour. accept argument definition “publication” youth [ycja 2(1)—which includes “making accessible”—informs “publish” 26-27 nor context defamatory libel assisted interpreting include “access” “accessing plainly what going here there evidence doing anything opening library allowing access” specifically limit “accessing” 20–25. amount “transmitting” “broadcasting” consist “broad dissemination” rather than mere access prohibited “[g]etting hold material ‘accessing’ transmitting something must done similarly good enough end view fact maintains original archives can does transmission broadcast.” 41–42 emphasis [10 iii grounds standard review [11 contends erred his “transmitted misapprehended failed recognize significance argues requirements adding element mens rea. [12 right question alone 676(1 reviewable correctness housen nikolaisen 8–9 [2002 national railway canada [2014 [13 anomaly sections necessary set out most provisions. [14 provides: subject subsection make directing witness shall published proceedings respect following offences: offence 162, 272, (ii read subparagraph comes into force alleged referred two offences dealt same least one paragraph reasonable opportunity inform eighteen years made prosecutor such witness, order. (2.1 years, (emphasis added) (2.2 soon feasible their [15 every who fails 486.4(1 486.5(1 guilty punishable summary conviction. [16 curiously 486.6(1 charging relative bans applies subsections states conviction explain why brought originating queen’s bench requesting cited contempt, open assume parliament merely overlooked 486(2.2 list instance reference reason compare carson wcb inclusion readily available option. [17 define “broadcast” means principles determine since issue further it. [18 i-21 “[e]very enactment deemed remedial given fair large liberal best ensures attainment objects.” starting point all legislation, including statutes modern principle “words are entire grammatical ordinary sense harmoniously scheme intention parliament” rizzo shoes quoting driedger 2nd toronto: butterworths recently “‘their harmoniously’ relevant part’s undergirding purpose ” jones [2017 [19 reconciling former “strict construction” approach explained hasselwander [1993 412–13 canlii citations omitted apparent conflict between strict statute resolved according subsidiary role … becomes applicable attempts neutral suggested leave doubt scope text statute. [20 “courts resort where ambiguity” mac [21 summarize words provision capable engaged demands “statutory language highest degree clarity explicitness specificity support conclusion authorize infringements rights absolutely underlying legislative intent completely explicit” university calgary aff’d [2016 pierre-andré côté legislation toronto carswell, c2011 475-482 ruth sullivan markham, ontario lexisnexis discussion [22 discuss turning statutes. [23 provides publishes exhibited causes seen “shows delivers shown delivered whom defames person” restricted libel. [24 defamation word settled statement communicated someone defamed breeden black [2012 “publication occur[s impugned statements downloaded republished well established repetition republication constitutes publication” ibid black, allegedly press release three newspapers them establishing proof “the defendant has, conveyed single third party has received it” crookes newton [2011 hyperlinking without repeating due passive lack control 26-27. [25 orr’s stated sub nom leong wwr ccc considered now 163(1 publishing obscenity [publication special meanings will invention involve acceptance those connection unrelated subjects assign bear english speech writing certainly involved attribute extraordinary involving culpability hew line resolving possible favour accused. [26 orr adopted ‘publish’ “to publicly generally known” private screening film among small group friends “[n]o invitation public” “no suggestion commercialism” film. [27 giftcraft [1984 distinguished 457(1 (which likeness banknotes technical copyright dictionary ‘publish,’ ‘published’ distributed though printed them. [28 media guide,” appears: print radio television via internet restrict viewing searching copying use. [29 defines publish meaning—‘to known’—has been interpreted broadly none these interpretations addresses arises whether refers one-time accesses previously concerned defamation, intellectual property turn broader way”. [30 oxford definition: transmit – i.1.a cause thing pass another person, place send across intervening space” [31 corresponds ‘transmission’ act. definitions ‘broadcasting’ ‘radiocommunication’ refer data ‘telecommunications’ 35(1 through emitting receiving process sending destination. [32 “transmission” law: society composers authors music publishers assn providers [2004 socan defendants, service located copyrighted passages illuminate ‘transmitted’ added “content provider” uploads usually host server then forwarded destination computer user users connect modem contract provider. response request sent over “pull” provider transmits breaks down units called “packets” various packets until they reach operated reconstitution user’s work either later saved computer. [33 foregoing suggests occurs acknowledged “plays against much larger conundrum trying apply laws fast-evolving technology essence respects boundaries” “internet liability vast field harvest beginning ripen” ibid. [34 spencer skca sask passively hosting 163.1(3 pornography criminalizes excerpts hansard amended “transmits” cover one-to-one distribution e-mail “makes available” capture posting publicly-accessible taking steps distribute indicates terms criminalize situations might otherwise constitute “distributes” caldwell makes disseminates facilitates dissemination pornography.” activity 163.1(3) both “overt acts i.e sell import export facilitation carrying advertise possess)” based different presumed have fault ‘makes available’ require positive ‘transmits’ file-sharing programs remitted back express agreement ja’s reasoning narrower socan. [35 applying lead maintaining existing about ‘made accessible’ ‘transmit’ ‘making conduct. [36 qualifier “in nothing identified second holds “neither vague arbitrary” “person predict advance crime” freedom charter-protected clearly delineated justifiable. [37 relevance qualify correct sufficiently ensure predictability give notice criminal” sun narrow transmit—host spencer—it doubtful adds appeal. [38 regard parts provision’s purpose. [39 enacted victims bill states: enacts specifies security privacy appropriate authorities system amends application; [40 parliament’s enacting appears components: method selected implement allow undermines objective contrary legislation. [41 “expand ability grant ….” clark use identical related therefore interpretive guidance. [42 disclosure course administration known community” 486.4(4 arguable once continued existence “mak[ing community”. [43 communicating “transmits, distributes sells advertises imports exports possesses transmission” commits noted above courts drawn spencer. 162(4 (voyeuristic recordings ‘publishes’ available’, suggesting 162.1(1 (intimate images consent uses lends separate distinct contextual reading involves presumption consistent expression throughout recognizes connote “forms expression” lists distinguish agraira safety emergency preparedness [2013 contino leonelli-contino [2005 true rebutted barreau québec quebec (attorney distinguishes term take hint itself wilson j’s effect unlikely simply leaving un-redacted [44 ycja “dealing coherent” “interpretations favouring harmony prevail discordant ones” pointe-claire city labour [1997 scj 2(1 “accessible telecommunication electronic means” “disclosure” mean communication certain circumstances neither tends suggest meant broad came enactments differences intentional inadvertent. [45 having carefully arguments plausible using interpretation. leaves construction. [46 fully appreciate harm reduced issuance nevertheless serious “may imprisonment constituting denial liberty” violation reported appellate-level cases reveals six four-month sentences lengthy probation periods uncommon, example regina cunningham (1994 [1994 macmillan bloedel simpson bcac puddester newfoundland nlca nfld peir [47 “highest specificity” concluding justified infringement critical know precisely breached. [48 accordingly conclude apply. refusal redact previous traditional 486.4(2.1) issues amendments required. [49 pervasive concern stays forever initiate desired reform need address err code. [50 dismissed. heard june filed 23rd november concur j.a. authorized sign appearances: kuklicz s.e ward t.c layton

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