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.
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.
R v National Post
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
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”.
Named Person v. Vancouver Sun
For the first time, the Supreme Court of Canada moved away from the Dagenais test in a media attempt to open up an in-camera hearing. Media lawyers had won the right to see information about a police informer who was the subject of an extradition hearing, so that they could review the informer's status and argue for more openness. The Supreme Court held that informer privilege is an absolute bar, if it applies, and a judge has no discretion to reveal any information which would reveal the informer's identity. The Dagenais test only applies directly to discretionary orders, not orders that are mandatory by common law or statute. As for police informers, the court provided general guidelines to judges and parties on both process and principle for consideration of openness for non-identifying information.
R v. Baltovich (Finkle Subpoena)
In 1992, Robert Baltovich was convicted of murdering Elizabeth Bain. In 1998, journalist Derek Finkle wrote a detailed 800-page book about the case called "No Claim to Mercy" that was critical of the police investigation and cast doubt on Baltovich's guilt. In 2004, the Ontario Court of Appeal quashed Baltovich's conviction and ordered a re-trial. A year before the re-trial was scheduled to begin, the Crown issued a witness subpoena for production of evidence to Finkle. Justice Watt of the Ontario Superior Court of Justice quashed the subpoena and found that the Crown did not meet the required standard that Finkle was likely to give material evidence at the re-trial. He held that the subpoena amounted to a fishing expedition under a colourable licence issued without authority and stated that, "fishing season is closed".
London (City) v. RSJ Holdings Inc.
The Supreme Court of Canada reiterated the importance of the open meeting requirement in municipal law. An interim control by-law was struck down because it was debated in closed session, and rubber stamped in an 8 minute public hearing. Charron J., speaking on behalf of the Court, noted that "Municipal law was changed to require that municipal governments hold meetings that are open to the public, in order to imbue municipal governments with a robust democratic legitimacy. The democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law. When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference.
R. v. White
A new day has dawned. The bail hearing ban set out in Section 517 of the Criminal Code has been re-written by Justice Brooker of the Court of Queen's Bench of Alberta in response to an application by CBC, the Edmonton Journal, Bell Globemedia (the Globe and Mail, CTV) and the Edmonton Sun. The ban will now not be available in cases that won't involve a jury, and, unless the Code is amended within 12 months, the ban won't be automatic on the application of an accused... it will be a matter of judicial discretion, if sought.
R v Bryan
It’s official. Ignorance is bliss… at least according to the majority of Supreme Court of Canada judges ruling in the Bryan case. On federal election night, Canadians who want to ignore election news from polling locations further East than they live now have a constitutionally approved right to vote in ignorance of that news, and to require fellow Canadians who’d rather know what’s going on, almost one in three of us, not to learn that news from radio, television or the internet.
R.
v. Toronto Star, CBC, Sun Media
A unanimous Supreme
Court of Canada upheld the decision of the Ontario Court of Appeal in favour
of the media's unsealing of a search warrant in respect of the premises
of the Aylmer Meat Packing plant in southern Ontario. The search was conducted
to investigate allegations that the plant was processing dead stock. In
doing so, the court reaffirmed its decision in the MacIntyre case,
and, as in the Vancouver Sun case, confirmed the applicability of
the Dagenais/Mentuck test to all stages of court proceedings, even
the investigative stage. The ruling was written by Fish J. on behalf of
the entire court.
R v. Pickton
Justice Williams
denied the accused's application for what amounted to an in camera order
to protect the trial from adverse publicity coming out of pre-trial motions.
He noted that s.648, properly interpreted to ban prejudicial information
from those motions, would suffice... except he did ban publication of information
that would identify any websites publishing prohibited information.
Gomery Commission
Lifting a publication
ban is a good thing, especially when the whole country is waiting for real,
as opposed to widely-rumoured, "explosive" political information.
On April
7 , Commissioner Gomery lifted most of his March
29 publication ban on the testimony of Mr. Brault after it was given,
retaining a temporary ban on a number of pages peripherally relating to
the criminal conspiracy charge against him. What also remains banned for
now is the testimony of two others whose trials are coming up, until after
they testify and their words can be similarly reviewed ex post facto. Until
the ban, few outside Quebec seemed to care. Will the impact of the upcoming
ban on the new testimony repeat the national anxiety? Film at 11. (Or, is
that no film at 11?!!)
St. Elizabeth Home Society v Hamilton et al (Ken Peters in contempt)
A Notice
of Appeal has now been filed from the above decision. Justice Crane's
decided to find Ken Peters in contempt of court for failing to answer the
question "Who is B?" and in the process attacked the journalistic
culture that requires a journalist, when asked for the identity of his confidential
source, to break the law and endure the punishment. The judge felt that
journalistic organizations should instruct their journalists to promise
to protect sources only "to the full extent of the law", and not
beyond.
Neron
v. Chambre des notaires du Quebec
In Quebec defamation
law, the truth will not set you free. The Supreme Court of Canada
has now made this abundantly clear. For journalists to win, they must live
up to the standard of the reasonable journalist, and publishing the truth,
in the public interest, is not enough. Manners and additional context may
also be required.
CHOI-FM
- Free Expression loses to the CRTC
Believers in
Canada's Charter right to free expression cannot read the decision of the
CRTC not to renew the licence of CHOI-FM without considerable discomfort.
Canadian values don't permit abusive, disrespectful language, at least on-air.
Facts don't appear to matter. Vague prohibitions are relied on as the foundation
for silencing speech. Surely the Charter guarantee of free expression guarantees
more exact standards than this. Chilling reading.
Society
of Composers, Authors and Music Publishers of Canada v. Canadian Association
of Internet Providers
A landmark decision
by the Supreme Court of Canada addresses for the first time the reach of
Canadian copyright law into the worldwide internet. It recognizes that "the
capacity of the Internet to disseminate works of the arts and intellect
is one of the great innovations of the information age. Its use should be
facilitated rather than discouraged" but notes that "this should
not be done unfairly at the expense of the creator of the works". The
court adopts the "real and substantial connection to Canada" test,
and considers a variety of factors, not simply the location of the host
server. ISPs, if acting in a content neutral fashion, are protected from
copyright liability, and the creation of a "cache" copy for technological
efficiency does not make them liable for the content passing through their
systems. This is must reading.
Zundel
(Re)
A victory for
journalist Andrew Mitrovica who fought a subpoena and won. Holocaust-denier
Ernst Zundel served the subpoena as part of his fight against a finding
that he is security threat and therefore inadmissible to Canada. Mitrovica
is the author of a book exposing the failings of CSIS. A few pages of the
book are devoted to the Service's dealings with Zundel. Mitrovica argued
that any information he would have would be hearsay and that he would not
want to betray any confidential sources. Justice Pierre Blais of the Federal
Court quashed the subpoena, finding that "the benefits of having Mr.
Mitrovica testify seem rather doubtful, as against certain harm to the freedom
of the press."
Vancouver
Sun (Re)
The relationship
between openness of the courts and judicial investigative hearings into
terrorism is explored for the first time by the Supreme Court, in the context
of the Air India case. The Dagenais and Mentuck principles are reaffirmed,
and more openness mandated. There are no guarantees of open proceedings,
however.
Harper
v. Canada (Attorney General)
Freedom of expression,
once again, takes a back seat to deference to the government, and on this
occasion, it is our most valuable form of expression: political expression,
that has been put in its place. The Supreme Court of Canada now gives lip
service to the Oakes test. The contexual analysis it relies on more and
more makes the application of its Charter measuring stick difficult to predict.
The majority's gloss over the lack of evidence supporting the notion that
the wealthy will "dominate" political debate if third parties
are permitted to spend real money in electoral discourse is breathtaking
and disappointing. Their test: "Given the difficulties in measuring
this harm, a reasoned apprehension that the absence of third party election
advertising limits will lead to electoral unfairness is sufficient."
Surely the requirement in Oakes for evidence should mean something. The
practical reality, however, is that new forms of communication, like the
internet, remain permitted to third parties and can be both pervasive and
persuasive. Ironically, despite the now approved restrictions, third party
messages will still get to voters, but in a different form.
BMG Canada et al v. John Doe et al
Download this.
The Federal Court of Canada holds that the Canadian Recording Industry cannot
require ISPs to give up the real names of people who file share their recordings.
There is no copyright infringement under Canadian law in this activity.
CCH Canadian Ltd. v. Law Society of Upper Canada
The Supreme Court
of Canada filled in the meaning of fair dealing for the purposes of research
in a unanimous ruling in favour of the defendants' limited photocopying
of cases used by lawyers for legal research. Fair dealing is a "user's
right" built into the Copyright Act, and "must not be interpreted
restrictively".
Assessmed Inc. et al v. CBC
CBC's the
fifth estate program wins a marathon defamation case (76 hearing days)
on the basis of fair comment. Justice Paul Rivard of the Ontario Superior
Court of Justice found that the program "Prove It If You Can",
about the treatment of accident victims by insurance companies and doctors
who they relied upon, treated the plaintiffs fairly. CBC could not be faulted
for the plaintiffs' failure to respond to specific questions in advance
of broadcast.
R v. National Post
This decision
is a milestone in the protection of a confidential source in Canada from
the blunt instruments of a Search Warrant and an Assistance Order issued
under the Criminal Code. Notice is required to permit the media to
contest this process before it is permitted. The importance of sources
to the media is documented, lauded, and constitutionally enshrined. The
Crown will appeal.
Sullivan Entertainment Group Inc. v. Macdonald Butler
This is not a
media case, except for the fact that it is a defamation case, involving
one of Canada's most beloved literary and television stories, Anne of Green
Gables. Kevin Sullivan sued the family of Lucy Maud Montgomery, the author
of the famous Anne books, for defamation in respect of their public complaints
that he failed to honour his royalty agreements with them. He lost, and
in the process generated a defamation judgment that seems to have captured
all the defamation principles correctly. An interesting read.
Phillips
v. Vancouver Sun
Access to an
Information to Obtain a Search Warrant is permitted even where there are
no charges laid. The fact that the search involved potential breach of trust
by a police officer, and that the search was of his office, not his home,
did not hurt the access application. The case applies the Eurocopter
decision.
Sealing the Ottawa Senators financial fate
When the Ottawa
Senators and their home, the Corel Centre, were sold, the details were sealed
in court. Media applications to unseal those details failed. This decision
finds that the media should not be penalized in costs for the attempt.
R v. Eurocopter
The information
to obtain a search warrant is presumptively public. There is a high onus
on the person seeking to keep it sealed from public view. Fair trial concerns
can be overcome. This ruling, which CBC obtained after three years of combined
argument and delay, should make it more difficult to seal such documents
in the future. (For readers of the Globe and Mail, this is the result in
the famous "Secret" proceeding which covered its front page for
three days in November, 2003.)
Bahlieda
v. Santa
Is information posted on a website "broadcast" within the meaning
of the Libel and Slander Act? Yes, according to the judgment of Pierce
J on a summary judgment motion, but Not Necessarily, according to the
Ontario Court of Appeal, which overturned the decision, sending the issue
back to trial.
Toronto
Star, CBC, London Free Press v. R.
Access to a search warrant information is still possible, and the familiar
police excuse that it can't be released because of an ongoing investigation
is no longer enough to keep the information from the public. Here, the
only information kept from the public is information that could lead to
the identity of the police informant. This warrant was issued to get to
the bottom of the Aylmer meat packing scandal.
Gauthier
v. Toronto Star Newspapers Limited
The Ontario Court
of Appeal upheld the motions judge's finding that a series appearing in
the Toronto Star about racial profiling by the Toronto Police Force did
not suggest that every officer, or any particular officer, was racist and
that, therefore, there could be no action for defamation. For the earlier
ruling, see: Gauthier v. Toronto Star
Young v. Toronto
Star
Former Ontario
Coroner Dr. Young won a libel judgment against the Toronto Star for reports
of a court case that did not take into account court proceedings that were
banned from publication at the time. The judgment will be posted here shortly.
R.
v. Daly and Global Communications Limited
This is the first
case interpreting the scope of the traditional bail hearing ban, and its
not helpful for the media. Daly and Global lost their appeals from their
conviction in Provincial Court for breach of this ban. The court refused
to confine the ban to prohibiting prejudicial information alone, was not
swayed by the fact that the report in question did not identify the accused,
and found that a reporter could be held guilty as a party to a publication
ban even though he's not in control of publication. The accused are considering
a further appeal, and would welcome input from Ad IDEM members.
Guitouni
c. Societe Radio-Canada
The Supreme Court of Canada refused Mr. Guitouni leave to appeal the
Quebec Court of Appeal's substantial reduction of his damage award against
Radio-Canada. The Court of Appeal had acknowledged the right of journalists
to express opinions on matters of public interest in news stories, and
re-stated the fair comment test in Quebec to ensure courts can permit
defence of opinions that they may not share.
Ager v. Canjex (Canada Stockwatch), Woods, Mudry
Stockwatch lost
this defamation case while defending on the basis of fair and accurate reporting
of court documents, and fair comment. To add insult to injury, its reporting
of the its own defamation trial added $50,000 to the tab. Overall, $300,000
in damages, plus special costs. The case is under appeal.
Campbell
v. Jones and Derrick
The Supreme Court
of Canada dismissed the plaintiff's leave application. So a revitalized
qualified privilege for lawyers to speak out now stands as the law in Nova
Scotia, and inspiration for the rest of the country.
R. v.
Quintal
Judge Lefever considered an application by Quintal to seal a forensic
assessment filed in criminal proceedings. The application was successfully
opposed by The Edmonton Journal and The Edmonton Sun. This is an extensive
review of open justice, and a ringing endorsement of open justice in the
context of criminal sentencing. It is mandatory reading for media lawyers.
Makow v. The
Winnipeg Sun
University life and defamation suits. Professor Makow obtained an award
of $5000, but the jury is still out on whether it was worth it. The appeal
of this trial decision has been heard, and the judgment reserved.
Miller
v. CBC and Harper
This case is notable
as a victory for the media in a defamation action on a motion for summary
judgment, on the basis of substantial truth. The truth of the words the
plaintiff focussed on was held to be immaterial.
Ritter
and Newport Pacific Financial Group SA v. Hoag et. al
Ritter's application to have the court file sealed was successfully opposed
by The Edmonton Journal and the Globe and Mail. Both sides argued the
recent SCC case, Sierra Club of Canada. Justice Burrows concluded that
the plaintiff's failed to establish "an important commercial interest"
as required in Sierra.
Alberta
v. The Edmonton Sun
The law of contempt
outside the face of the court remains as is, despite the Charter... or does
it? There may be a new defence of publication in the "public interest",
according to Berger J.A., writing in the minority. The majority left this
defence for another day, while acquitting the Sun chain of contempt for
publishing the prior criminal record of an accused at the time charges were
laid.
Prud'homme
v. Prud'homme
The Supreme Court of Canada has now said, unanimously, that journalists
enjoy a qualified privilege for the publication of "defamatory information
in the public interest that he or she honestly believes to be true."
Journalist protected - the Hague War Crimes Tribunal (Court of Appeals)
Washington Post
reporter Jonathan Randal cannot be compelled to testify in the trial of
alleged Serbian war criminal Radoslav Brdjaninin: "If war correspondents
were to be perceived as potential witnesses for the prosecution... they
may have difficulties in gathering significant information because the interviewed
person may talk less freely with them and deny them access to conflict zones...
(and) war correspondents may shift from being observers of those committing
human rights violations to being their targets." (see also concurring
opinion: Judge
Shahabuddeen )
R. v.
Clark (television camera access to court)
The Supreme Court
of Canada surprised everyone in the Clark appeal by agreeing to a motion
by a lawyer for Mr. Pilarinos that the appeal was now moot. When the case
was first brought to the Court, it held that an expedited hearing could
not be held as the trial was getting close. Then, granting leave to appeal,
it scheduled the appeal for a date after the trial had to be over. After
factums were filed, and six weeks before the hearing date, they pulled the
plug. It's hard to read between the lines when there are so few lines to
read between.
Dow Jones: Australian jurisdiction over US publication
An Australian court has refused Dow Jones
leave to appeal a decision of the Supreme Court there that an Australian
businessman could sue it for defamation in Australia over an article published
in the U.S. and posted on its website. The Supreme Court ruled that
the article was technically published wherever it was accessed from the
Internet, regardless of its intended audience outside the country, in this
case, in the U.S.. Dow Jones tried to have the case heard in New York.
Johnson
v. Arcand
Former Quebec premier Daniel Johnson and his wife (Suzanne Marcil) were
awarded damages and costs for defamation by controversial radio host André
Arthur.
Murray
Phillips v. Vancouver Sun
A successful application
for access to a search warrant regarding disgraced police officer was quashed
by a higher court. The right of privacy defeated the right of access.
Canada's highest court will not review Leenen and Myers v. CBC
The Supreme Court
of Canada has refused CBC leave to appeal two decisions of the Ontario Court
of Appeal against it in respect of one program "The Heart of the Matter"
broadcast on the CBC's the fifth estate . The decisions leave free
expression advocates a legacy of troubling pronouncements.
Clark v
Ward
Language doesn't
have to be "bland" to be protected by the law.
R v. Farrell
& Marks
Application for Publication Ban On Identity of Crown Witness Under s.
486(4.1) Dismissed
Dix v. AG Alberta et al
In the Jason Dix civil suit in Alberta
against the federal and provincial Crowns and numerous police officers for
wrongful imprisonment, malicious prosecution and negligent investigation,
Justice Ritter of Alberta's Court of Queen’s Bench ruled that a publication
ban was only necessary in respect of pseudonym names used by the RCMP undercover
operators, and any description of the officers themselves.
Lac D'Amiante: summary
The Supreme Court of Canada ruled unanimously
that the implied undertaking rule applies to civil actions in Quebec.
Leenen v. CBC et al and Myers v. CBC et al: highlights
CBC filed leave to appeal the decisions
of the Ontario Court of Appeal on June 12 in the cases of Drs. Leenen and
Myers against it for a program of the fifth estate entitled "The
Heart of the Matter" broadcast in 1996. The Ontario Court of Appeal
affirmed concepts of "meaning", "fair comment" "privilege" and "malice"
that are contrary to earlier precedent, and very troubling for advocates
of free expression. See the Leenen
and Myers
decisions in the Ontario Court of Appeal.
Ross
v. Beutel
Cartoons are protected by the law of fair
comment!
R. v. Dunlop
Audio tape exhibits of 911 phone calls
can be accessed by the media in court.
Uni-Jet Industries and Baziuk v. AG Canada et al
Uni-Jet obtained $65,000 from the RCMP
for their tip to the media about the execution of a search warrant involving
the company. The tip to one media outlet alone, as a favour, was held to
be improperly motivated.
R. v. Dawson and Pacific Press
Sequestered juries cannot be prejudiced,
648 bans do not cover parallel information obtained outside court, a judge
can issue a ban extending a 648 ban until verdict in extraordinary circumstances
and an individual reporter without the authority to make a publication decision
cannot be convicted of a "publication" offence including contempt.
R.
v. Edmonton Sun, Calgary Sun
The Edmonton Sun and its sister paper
the Calgary Sun were convicted of contempt for publishing the prior criminal
record of an accused a few days after charges were laid against him.
R.
v. Budai, Gill, Kim
A publication ban was denied on a fresh
evidence hearing in the British Columbia Court of Appeal.
Irving v. Penguin Books and Lipstadt
David Irving sued a U.S. author for libel
in England for her comments on his revisionist writings on the holocaust.
He lost. The rest is history.
iCraveTV.com
iCraveTV.com craved to be an internet
cable company, retransmitting Canadian and U.S. broadcast signals in a modified
form, adding advertising banners and stripping out picture elements, to
all who claimed they lived in a region with a Canadian telephone area code.
Viewers came from everywhere. So did plaintiffs. iCraveTV was shut down.
Lee
Kuan Yew v. The Globe and Mail et al
Madam Justice Swinton decided to decline
to strike a plea of qualified privilege in Lee Kuan Yew v. The Globe and
Mail et al., notwithstanding that the matters reported on took place
in Singapore in 1985.
R.
v. Cho
There is a constitutional right to have
a camera at a trial, with the onus on those opposed to demonstrate the need
for limits.
Hit Man case: Commentary
This book, banned in a suit argued by
Rod Smolla, who is usually a free speech advocate, has now been downloaded
to more people than bought the book itself.
Germany
v. Somm
A state court in Germany overturned the
infamous conviction of a CompuServe executive there for failing to block
child pornography on the internet.
R. v. Sharpe
The BCCA upheld a controversial decision
striking down a portion of child pornography legislation. The Supreme Court
of Canada reversed.
R.
v. BCTV and Hope
BCTV pleaded guilty to contempt of court
for reporting, on the first day of a jury trial, that the accused, "a convicted
killer" was back in court.
R. v. McCullough
An Ontario Court of Appeal judge has permitted
a Hamilton Spectator reporter to attend and report on an out-of-court cross-examination
of a police officer on an affidavit that the Crown proposed to file to counteract
earlier testimony in open court in the Perrin murder case.
Wilson v. Layne: context
The US Supreme Court ruled in Wilson
v. Layne that media entry into a home with the police during the execution
of a search warrant violates the Fourth Amendment.
Chadha v. Dow Jones
When a plaintiff sues a publisher over
publication on the internet, and both are resident outside England, the
onus is on the plaintiff to show that he has a sufficient connection with
and a sufficient reputation in England for the case to be heard there.
Braintech, Inc. v. Kostiuk
Which jurisdiction has jurisdiction over
internet communications? According to the British Columbia Court of
Appeal, that may depend on which one has a real and substantial connection
to the defendant.
Godfrey v. Demon Internet
An ISP can be held liable for defamation
for an anonymous message stored on its newsgroup server despite a law protecting
the ISP for innocent dissemination of libel.
Classics:
Supreme Court of Canada:
Ontario Court of Appeal:
Great Britain: House of Lords:
June 27, 2008