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From Ad IDEM / CMLA
Welcome to the Ad IDEM/Canadian Media Lawyers Association Website
Greetings for Law Day 2012! Our organization has chosen Law Day this year, the 30th anniversary of the adoption of the Charter in Canada, to announce its initiative to improve openness in Canadian courts. We are preparing for publication shortly a report on openness rules and restrictions across the country.
It is a challenging project. Despite the fact that the Supreme Court of Canada has pronounced a consistent standard, approaches differ greatly between jurisdictions and court levels. Some provinces and territories have court registry access practices that are not public.
Here are some of the themes:
- Only three provinces have electronic publication ban notice systems. With today's technology those who lag behind need to catch up.
- Only three provinces allow video and audio filming in court buildings (with location restrictions they consider appropriate). Surely this should illustrate to the rest that blanket prohibitions are too restrictive. The Supreme Court of Canada has ruled that news gathering of that nature is protected by the Charter, such that restrictions must be minimal and demonstrably justifiable.
- Most Canadian jurisdictions do not provide electronic access to court files. Those who have made advances in this area are to be congratulated for this important step towards better openness. They have also shown it can be done, and have cleared a path we hope the other provinces will follow.
- While all provinces and territories enunciate principles of presumed openness, several have cumbersome, and expensive procedures for access to court transcripts or documents that create barriers to openness.
We hope you will watch our site for our report, which will provide greater detail about how our provinces and territories are doing on these and and other important components of openness.
We are in communication with all three court levels as well as Attorneys General in every Canadian jurisdiction. Our hope is that through this communication and our comparative research we can encourage consistent best openness practices in all Canadian courts.
That would truly be something to celebrate on Law Days to come.
And a word about our organization and this website:
The Canadian Media Lawyers Association (Ad IDEM) educates and advocates on issues of openness and free expression in media. In addition to our annual conference, where most of Canada's media lawyers keep abreast of developments in media law, we have now intervened eleven times in Supreme Court of Canada appeals ranging from defamation to openness of the courts, and have made submissions on draft legislation affecting media. We have organized events bringing together different groups with an interest in free expression.
During the 15 years since the organization began around a boardoom table in Toronto, it has grown to the point that its annual conference draws in the range of 100 attendees, representing media lawyers from across the country. Many of our members have been at the leading edge of the most important media law developments since the introduction of the Charter of Rights in Canada. The resources we provide on this website, including case summaries and articles, are valuable to lawyers as well as journalists and students.
As a way of raising awareness of openness and expression issues, we encourage everyone to explore this site, follow our twitter feed @CanMediaLawyers, and if you are a lawyer who principally defends media, contact us to become a member where you can benefit from our Members Area resources and conference. The next one is November 2-3, 2012 in Toronto.
Dan Burnett
CMLA President
New Sections
- AdIDEM News Feeds: Topical news picks as well as alerts about Ad IDEM activities. Follow Adidem on:Twitter.:
Events
2012 Conference
November, 2012
Toronto, ON
Please click for more details.
2011 Conference
November 4 and 5, 2011
Montreal, Quebec
Please click for more details.
New Developments
| May 10, 2012 | Revised Draft Defamation Act 2012 | |
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| After recommendations from the Joint Committee on the Draft Defamation Bill (the Mahwhinney Committee) in the U.K., the revised draft of the Act now contains a defence in s. 5 for website operators with respect to user generated content.
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| April 27, 2012 | Canwest Publishing Inc. v. Wilson | |
| The British Columbia Court of Appeal has ruled that a journalist who is being sued for defamation is entitled to protect the identity of her confidential source. In overturning the lower court decision, the court found that the identity of the confidential source was not relevant to whether Canwest or the journalist had acted maliciously.
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| April 24, 2012 | R. v. Dingwell | |
| The CBC and Guardian newspaper applied to the Supreme Court of Prince Edward Island to have access to audio recordings of 911 calls, video and audio tapes of three statements made by the accused and a police video of the crime scene, all of which were being used in evidence in the second degree murder trial of the accused.
After applying the Dagenais-Mentuck test Justice Mitchell ordered copies of the 911 calls and the accused's video-taped statements to police to be released to the media. Mitchell J. placed restrictions on the use of the crime scene videotape, citing privacy interests of the innocent.
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| April 20, 2012 | 1654766 Ontario v. Stewart and The Globe and Mail | |
| The Ontario Superior Court has ruled that a journalist should not be required to disclose the identity of confidential sources even though the published statements of those sources were possibly in breach of provincial securities law.
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| April 18, 2012 | Éditions Écosociété Inc. v. Banro Corp | |
| The Court held (unanimously) that the appeal is dismissed and finds that a real and substantial connection exists between the action and the Ontario court's territory. The Court concludes that although the "claim has connections to more than one forum, given the strength of the connections between the plaintiff and Ontario, it is not at all clear that the plaintiff is engaged in libel tourism and that Quebec would be a clearly more appropriate forum".
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| April 18, 2012 | Breeden v. Black | |
| The Supreme Court of Canada held (unanimously) that the appeal is dismissed and concludes that an Illinois court does not emerge as a clearly more appropriate forum than an Ontario court for the trial of the libel actions brought by Lord Black.
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| April 2, 2012 | Out-of-Home Marketing Association of Canada v. Toronto | |
| The Ontario Court of Appeal set aside a sealing order, reversing the lower court's decision.
Justice Epstein, writing for the court on the issue of the sealing order, states that "a request to have exhibits sealed implicates the open court principle, and must be approached with great care". Epstein J. finds that the applicant for the sealing order failed to meet the first part of the Dagenais/Mentuck test, which requires that the order be "necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk".
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| March 2, 2012 | National Bank Financial Ltd. v. Potter | |
| The Halifax Herald and the CBC opposed an application by a witness in a civil action for a Confidentiality Order. The Supreme Court of Nova Scotia dismissed the application for the Confidentiality Order, and found that "the deleterious effects of the Confidentiality Order requested would outweigh the speculative positive effects of granting such an order."
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| March 1, 2012 | R. v. Larue | |
| A Yukon court refused to grant a publication ban on the trial of a co-accused in a first degree murder trial, after finding that the application was "seriously lacking in terms of the evidence required of a party seeking a publication ban". Justice Gower states that "while the accused is entitled to a "fair" trial, he is not entitled to the most favourable trial possible" and that alternative measures exist to protect the co-accused's fair trial rights.
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| February 16, 2012 | Erdmann v. Institute of Chartered Accountants of Alberta | |
| The Court of Appeal of Alberta denied a publication ban on an appeal from an administrative proceeding on the basis that the applicant had "not demonstrated any compelling reason to seal (the) file". The applicant had been seeking an order to have the files of the Court of Appeal sealed, that she be permitted to prosecute her appeal under a pseudonym, and that the oral argument of the appeal be held in camera.
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