R v The Canadian Broadcasting Corporation 2017 ABQB 329

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Note

An important decision from the ABQB, dealing with "unpublishing" after a Criminal Code ban has been imposed, under ss 486.4.

Decision Summary

On Friday, March 4th, 2016, V was found deceased. V was 14 years old at the time. The Canadian Broadcasting Corporation had published a report on its website about the death on March 5th and again on March 8th. Both reports provided the name of V, a photograph of her, and some personal information.

On March 16th, 2016, at the first appearance of the person alleged to have killed V, the presiding Provincial Court Judge made an order that: “any information that could identify the victim shall not be published in any document, or broadcast or transmitted in any way” [the Ban]. Shortly thereafter, CBC became aware of the ban. However, while it did not refer to V by name in any other reports subsequent to the Ban, it did not alter or remove the earlier reports,both of which remain available on its website. When requested to remove or amend the two reports to comply with the ban, CBC refused.

The CBC was charged with criminal contempt and an application was made for an interim order compelling CBC to comply with the ban. That application was heard and denied by Justice Michalyshyn (R v Canadian Broadcasting Corporation, 2016 ABQB 204).

The appeal was heard in September 2016, and the Alberta Court of Appeal granted an interim mandatory injunction.(R v Canadian Broadcasting Corporation, 2016 ABCA 326).

The Court of Appeal’s decision is on appeal to the Supreme Court of Canada, and its order has been stayed pending that appeal.

The criminal contempt trial was in January, 2017. All of the evidence was presented by agreement in a series of affidavits, except for the evidence of one witness, Mr. Dean Jobb, who was called by the CBC. The parties agreed that Mr. Jobb was an expert and could offer expert opinion: “in the area of journalism ethics as they apply to online media, including the impact of online access to published and archived stories; and the role of aggregators and social media users in disseminating mainstream media reports.”

Justice Clackson found that:

...one could, and can still, search the CBC website and gain access to the two impugned articles. Additionally, one could conduct a general Internet search using a search engine, such as “Google,” and be directed to the CBC website as well as other news aggregation websites. Many of the aggregation services will direct the searcher to the CBC website where the impugned article may be accessed, although there are a number of other news aggregators and providers that offer access to the same information by directing the searcher to an information originator other than the CBC.

Clackson goes on to state:

...even if CBC removes or edits the two stories, the prohibited information can still be obtained from other sources. It is also true that there are newspaper reports created prior to the Ban which disclosed the prohibited information. Therefore, someone could gain access to the information from those organizations which maintain print libraries.
Furthermore, the information can be accessed from the court by requesting access. As such, requiring CBC to remove the prohibited information will not, invariably, translate to its removal from the public domain.
...in this case, the CBC had both a right, and in my view, a corresponding duty to report the news. A free and democratic society depends upon a free and active press. We leave to them the judgment as to what is and what is not news. In this case, there is no doubt that the CBC was obliged to report what it wrote on March 5th, and again on March 8th. Therefore, the issue is whether the CBC was obliged to undo the news it had rightfully reported.
In the end, it is my view that the fact that CBC maintains the original articles in its archives, which can be accessed, does not amount to publication, transmission or broadcast.

The Crown also argued that even if the court did not find criminal contempt, it should find civil contempt and compel the CBC to remove the impugned material. On that issue, Justice Clackson stated:

...this is a case where the challenge is not to the Court’s authority but a challenge to the Crown’s interpretation of the Court’s order. That kind of challenge is to be expected and even encouraged in a free and democratic society. The scope or reach of a law or a Court’s order can surely be challenged and questioned instead of being blindly adhered to. The development of our law has depended upon just that kind of debate. Surely, a difference of opinion is not criminal. And certainly, a reasonable position taken against the weight of authority does not become a criminal act because it is taken.

References

See: R v The Canadian Broadcasting Corporation 2017 ABQB 329

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