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From Ad IDEM / CMLA
Welcome to the Ad IDEM/Canadian Media Lawyers Association Website
The Canadian Media Lawyers Association (Ad IDEM) was created by a small group of dedicated lawyers more than 14 years ago. Throughout its existence, its members have collaborated to expand defamation defences, protect journalists and their sources, facilitate meaningful media access to government, and foster an open and accountable justice system. Our membership has continued to grow, our governing structure has evolved and our website has become a more functional and interactive resource. As an organization, CMLA continues to play an important advocacy role for the rights of the press and the public to freedom of expression, and to ensure that the Canadian justice system is transparent. That ongoing commitment has been demonstrated by our intervention in several important media cases at the Supreme Court of Canada, ensuring that free expression interests have a voice that reflects a broad spectrum of media perspectives.
Ad IDEM hosts an annual conference at which recent developments in the law from Canada and from around the world are reviewed and analyzed. This year, our conference will be held on November 5 and 6, 2010 in Toronto. Information and registration details can be found in “Upcoming Events” as the date approaches.
CMLA also fosters relationships with colleagues in the United States and other common law countries to facilitate an ongoing dialogue about emerging legal and political issues touching on the news media.
We encourage you to explore our website, and to get in touch with us with questions, comments, or suggestions.
Fred Kozak
Events
2010 Conference
November 5 and 6, 2010
Toronto, Ontario
For registration and hotel information, click on this link as the dates approach.
New Developments
| June 16, 2010 | Ontario (Public Safety and Security) v. Criminal Lawyers Association | |
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| 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."
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| 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.
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| 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.
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| 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.
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| 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.
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| Justice Reporter | ||
| A new Justice Reporter is born... thanks to Tracey Tyler and Tony Wong.
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| September 15, 2009 | Crookes v. Newton | |
| Hyperlinks to defamatory material on other websites may expose website owners to liability in defamation...
The B.C. Court of Appeal has held that hyperlinks will not in themselves implicate a website owner in publishing defamatory material found on the hyperlinked website. But if the hyperlinking website endorses or adopts the defamatory content, or explicitly encourages the reader to link to the offending material, then the hyperlinking website owner may be deemed to have participated in a republication of the offending material, and face liability and damages. A seemingly large number of ‘hits’ on a webpage with hyperlinks will not in itself lead to an inference that any reader ‘clicked’ onto the hyperlink and thereby read the offending material.
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| June 27, 2008 | WIC Radio Ltd. v. Simpson | |
| 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.
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| March 17, 2008 | St. Elizabeth Home Society v. Hamilton (City) (In the matter of the citation of Ken Peters for contempt) | |
| 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.
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| Older Developments... | ||
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