A Saskatchewan Court of Queen’s Bench justice recently struck down a controversial piece of legislation that denied public sector workers the right to strike. The legislation was deemed unconstitutional for infringing on public sector workers’ rights to freedom of association, guaranteed by section 2(d) of the Charter of Rights and Freedoms.

Enacted in 2008, the Public Service Essential Services Act listed various government services and programs that could be declared essential and subjected to a “designated” or “controlled strike,” which utilizes an independent adjudication process to maintain essential services through a period of work strikes. While the Saskatchewan Federation of Labour submitted that the legislation infringed on workers’ rights under sections 2, 7 and 15 of the Charter, Justice Ball adopted the approach of the Supreme Court of Canada in Dunmore v Ontario (Attorney General), 2001 SCC 94, which treated the rights of workers to organize, bargain collectively, and strike as part of freedom of association under section 2(d).

While Ball J found that the act “substantially interferes” with the workers’ section 2(d) rights, he also suggested that the right is not absolute as it can be limited for employees who are “engaged in the delivery of truly essential services to the community.” In light of this limitation, the main question on appeal considered “the extent to which the protected freedom to strike can be restricted.”

Under the test set out in R v Oakes, [1986] 1 SCR 103, for justifying an infringement of a right, Ball J found that by ensuring “the continued delivery of essential services to the community during a labour dispute,” the impugned legislation met the first requirement that the legislation must have a “pressing and substantial objective.” However, the act failed to meet the Oakes proportionality requirement because its deleterious effects on the employees clearly outweighed its benefits.

Amongst the many reasons provided in his decision, Ball J emphasized the fact that the Act “does not contain a dispute resolution process nor does it provide compensatory access to an impartial and effective dispute resolution process for those employees who are prevented from engaging in meaningful strike action.” He also found the Act’s provisions to be inconsistent with its purported objective to employ a “controlled strike model.” Interestingly, while Ball J concluded that the government did not have a duty to consult the unions before enacting the Act, he suggested this factor should be considered when determining whether the right had been impaired.

The decision, which is considered to be the first challenge to essential services legislation in Canada, is significant because it sends a clear message to governments that there are limits when it comes to legislating around workers’ rights to organize and protest. While the government has twelve months to revise a more constitutionally sound piece of legislation or appeal the decision, it is likely to do both. Further appeals would be helpful for confirming the SCC approach adopted by Ball J and for shedding further light on the definition of essential services, which recently came under scrutiny following the lock out of Canada post employees and the subsequent Air Canada dispute.

ISPs Off the Hook for Canadian Content Funding

The Supreme Court released its decision on the Broadcasting Act Reference, 2012 SCC 4. Thursday, ruling that Internet Service Providers (ISPs) are not subject to broadcast regulations.  The reference, on appeal from the Federal Court of Appeal, addresses whether ISPs (such as Rogers, Bell, and Telus) conduct “broadcast undertakings” and as such are bound by the Broadcasting Act.

More to the point, at issue was whether the Act’s provisions that require those who conduct “broadcast undertakings” to financially support the production of Canadian media content should apply to ISPs.  The appellants in the case included the Alliance of Canadian Cinema, Television and Radio Artists, the Canadian Media Production Association, the Directors Guild of Canada and Writers Guild of Canada – groups who stood to gain millions of dollars in funding if the Court ruled that ISPs were in fact subject to the Act’s provisions.

Upholding the judgment of the Federal Court of Appeal, the SCC held that ISPs do not conduct “broadcast undertakings” since they “take no part in the selection, origination, or packaging of content” and instead “merely provide the mode for transmission.”

The goal of the Act’s impugned provisions is to ensure both the production and distribution of Canadian content that is often overshadowed, both domestically and on the world stage, by the media juggernauts south of the border.  The Court, however, was willing to draw a distinction that saved the ISPs from contributing to the production of Canadian content, at the potential expense of the proliferation of Canadian content online.

Jury Deliberates in Vander Zalm Defamation Suit

The values of freedom of expression and protection of reputation are at war again in British Columbia, where the jury is currently deliberating in the libel suit against former premier Bill Vander Zalm.

The plaintiff in the suit, Ted Hughes, alleges that statements published in Vander Zalm’s 2008 autobiography are defamatory because they portray Hughes as having personal motivations for his findings in a 1991 conflict of interests inquiry that forced Vander Zalm to resign as premier. Vander Zalm has defended his comments as a fair comment on a matter of public interest rather than a statement of facts

Defamation law in Canadian is notoriously plaintiff-friendly compared to other jurisdictions, particularly the United States.  However, the law has evolved significantly in the past decade led by the Supreme Court ruling in Grant v Torstar Corp., 2009 SCC 61, which created the defense of responsible communication.  This defense, however, only protects journalists, and many commentators and practitioners believe Canadian defamation law is outdated and in need of further reform.  The propagation of SLAPP suits and political libel in Canada demonstrate that defamation law in Canada has not evolved far from its roots as a tool to protect the rich and powerful from criticism.  This, however, does not accurately reflect the values most citizens hold in the modern Canadian democracy.

A by-product of the common law tort system is that the law can only evolve if it is presented with the right cases at the right time.  The high-profile of the Vander Zalm case gives it the appearance of a case that may represent the next stage in the evolution of Canadian defamation law to be more in line with the value that Canadians place in freedom of expression.  Alternatively, the jury could do as Hughes’ lawyer urged them and make a substantial award that stalls the evolution of Canadian defamation law in its tracks.

In 2008, after an enormous public outcry and the threat of legal action, the broadcasters backed down and allowed May to participate in the debates, thus setting the precedent for the inclusion of the Green Party Leader and for a leader of a party with no elected seats in the House of Commons. (at the time, one Independent MP had changed allegiances and become a Green Party MP). This time, though, the threat of legal action wasn’t enough and, after it seemed Ms. May would not be allowed to participate, the Green Party filed an application for judicial review in the Federal Court of Appeal on March 31, 2011. A copy of the application can be found here.

Broadcasting Information Bulletin CRTC 2011-218

The policy in question comes in the form of Broadcasting Information Bulletin CRTC 2011-218 (the “Bulletin.”)

First, the Bulletin in general establishes a broadcaster’s duty to ensure the public has adequate knowledge.

“III: It is the broadcaster’s duty to ensure that the public has adequate knowledge of the issues surrounding an election and the position of the parties and candidates. The broadcaster does not enjoy the position of a benevolent censor who is able to give the public only what it “should” know. Nor is it the broadcaster’s role to decide in advance which candidates are “worthy” of broadcast time.”

However, the Bulletin also allows for limits on this duty.

“In Election-period broadcasting: Debates, Public Notice CRTC 1995-44, 15 March 1995, the Commission announced that it will no longer require that so-called “debates” programs feature all rival parties or candidates in one or more programs. The licensee will have satisfied the balance requirement of the Act if reasonable steps are taken to ensure that their audiences are informed on the main issues and of the positions of all candidates and registered parties on those issues through their public affairs programs generally.”

The consortium of broadcasters (which includes CBC/Radio-Canada, CTV Television Network Ltd., Global Television Network Inc. and TVA Group Inc.) made an official statement, stating that the decision was “based on the application of journalistic principles, and the fact that the Green Party has never elected a member to Parliament.”

The Greens’ Position

The Green Party’s legal response was made by way of a s. 28 Federal Courts Act application, which gives the Federal Court of Appeal the jurisdiction to hear and determine applications for judicial review made in respect of the CRTC. Of course, in the interests of expediency the Application also requested allowance for short service. Lawyers will be in court tomorrow (Tuesday) morning.

The Green Party (on behalf of May) made the application for an “order in the nature of mandamus” (so, a mandate) that “electoral fairness” under s. 3 of the Charter requires that the CRTC  issue guidelines for participation in leader’s debates which allow for the participation of party leaders whose parties received at least 2% of the vote in the last federal election..  Additionally, the Party requested these guidelines be implemented prior to the April debates so that May would be able to participate.

In the Application, the Greens cite the 6.8% of the national vote they received in 2008 as a reason to include May in the debates.  The application also focuses on the importance of the debates, suggesting that exclusion from the debates labels one’s political party as a “fringe party” and one that is not taken seriously by voters.

But the crux of the Application suggests that the ruling distorts the electoral process to arbitrarily decide on who may be included in the debates.  Further, they argue that s. 3 of the Charter requires an equitable allocation of broadcast time – and the effect of the debates is so significant that it would be very difficult to give equitable allocation to a party who was excluded, particularly if that party garnered almost 7% (close to 1 million Canadians) of the vote last time around.

The Other Side

Unsurprisingly, the blogosphere is a abuzz in the aftermath of the decision, with politicos taking sides and many editorials popping up in support of one position or another.

It has been suggested that the Greens are a fringe party due to their low voter support and inability to elect a member to Parliament (yet!).

This argument is weak.  The Greens are hardly a marginal party, commanding the votes of a significant number of Canadians.  Additionally, they run candidates in almost every riding all provinces and territories- unlike the Bloc Quebecois.

Another argument against May’s inclusion is the fact the party is unrepresented in the House.  While this post isn’t meant to discuss the flaws in our electoral system, this is a consequence of our first-past-the-post method of electing MPs.  And while the system determines the way in which our MPs are elected, why should it also allow the Consortium to arbitrarily exclude a political party with a significant national following while allow the inclusion of a party that only cares about one province in a federal electoral debate?

Let Her In!

There’s certainly something to be said about a political party that inspires so many Canadians to vote for them, knowing full well it is extremely unlikely their vote will elect a Green MP.  The Greens are hardly “another fringe” party. All other “small” parties combined made up less than 1% of the vote last election compared to the Greens’ 7%. These hard numbers speak for themselves.

This statistic also renders the party eligible for the $2 per-vote subsidy.  The Green Party received close to $2 million dollars as a result of this subsidy – funded by the public.  If the public (theoretically) owns the public airwaves, does the public not have the right to know where the parties they fund stand on relevant issues?

I think Andrew Coyne at MacLeans says it best.

“Personally, I think this is outrageous. It’s obviously impossible to include every single party, no matter how marginal, in the debates, or mayhem would ensue. But the Greens are hardly a marginal party. … The Greens have clearly broken from the pack. They have much more in common with the big four than the others.”

It will be exciting to see how the Court handles this application.  To the best of my knowledge, this sort of challenge is unprecedented in Canadian electoral politics and I personally can’t wait to see if true justice is achieved by providing Canadians with the viewpoints of all nationally relevant political parties.

In this land of the three giants, the spectrum of wireless electromagnetic waves are owned and administered by the Federal Government, who determines what waves may be used by whom, and for what purpose.  In 2008, an auction was held for licenses in the Advanced Wireless Services (AWS) spectrum for telecommunication common carriers (TCC). This auction allowed the smaller TCCs to bid first, to have their chance to challenge the giants.

Globalive (the company responsible for WIND Mobile), a hip, new TCC with no-fixed-term-contracts and the financing of an Egyptian giant called Orascom, paid over $440 million for what they thought was their piece of the pie. Before they could slice into the unsatisfied Canadian market, however, they faced hurdles of red tape. Three years on, Globalive is still fighting for approval to keep their share of the Canadian market, which is growing every day.

This post will review the history of Globalive’s entry into the Canadian telecommunications market, focusing on the recent decision of the Federal Court to quash Cabinet’s grant of an operating license.

The Macro View of this Judicial Review

For clarity, here is an overview of how the issue of WIND Mobile’s continued existence in Canada has played out so far:

1. The Free Market: (2008) – Globalive purchases licenses to transmit over the AWS for $440 billion, but requires approval from the:

2. Minister of Industry: (2009) – who , applying s. 10 of the Regulations of the Radiocommunications Act and Regulations, decides that Globalive meets the requirements. Globealive requires further approval from the:

3. Canadian Radio-television and Telecommunications Commission (CRTC): (2009) – which, applying s. 16(3) of Telecommunications Act (TCA) decides that Globealive is not “Canadian controlled in-fact.”  This decision is reviewed pursuant to s. 12(1) of TCA by the:

4. Governor in Council: (2009) – who decides that Orascom has avenues of influence, but not “control in fact.”  This decision is subject to judicial review, it is later decided, on a standard of correctness by the:

5. Federal Court: (2011) – which finds that the Governor in Council made errors of law and quashes the decision.  The Federal Court’s ruling is appealed to the FCA.

Politics/Backstory:

Globalive obtained a license from the Minister of Industry Tony Clement, who was satisfied that the company was “Canadian-owned and controlled” as per s. 10 of the Regulations (which uses identical language to s. 16(3) of the TCA . Public Mobile, another small TCC vying for market share, was also granted a license by the Minister. Both companies then had to demonstrate to the CRTC that they were within the ownership and control parameters set by the TCA.  The CRTC decided that Globalive was controlled in-fact by Orascom Telecom Holding (Canada) Ltd., its Egyptian financer. As a result, according to the CRTC, Globalive did not meet the requirements of s. 16(1) and was not considered eligible to operate as a common carrier in Canada. It also decided that Public Mobile had to make certain structural changes before it could receive a license.

As a result of this decision, the Minister of Industry brought a motion to review, relying on the rule in the TC which states that within a certain period of time, the TCA grants the power to the Governor in Council (read: Cabinet) to vary or rescind a CRTC decision, or send it back for reconsideration (s. 12).  The parties then made submissions to the Governor in Council, who varied the CRTC decision and determined that Globalive was not controlled in-fact by a non-Canadian (or, in other words, that Globalive was controlled in-fact by Canadians).  It is this decision by the Governor in Counil that is the subject of the judicial review before us, dated February 4^th 2011, from the Federal Court.

At the Federal Court, Mr. Justice Hughes found that Cabinet’s holding that Globealive is Canadian-controlled was based on errors of law and quashed the decision, subject to a forty-five day stay. On February 15^th, the Minister of Industry announced that the government would be appealling the Federal Court’s ruling, stating that:

“Globalive is a Canadian company that meets the Canadian ownership and control requirements under the [TCA]… The policy of our government is to encourage choice and competition in wireless and Internet markets…new entrants mean more competition, lower prices and better quality services for Canadians.”

Read more here.

The Minister’s reading of the TCA as embracing competition and choice by welcoming carriers like Globalive, financed by foreign TCCs, was of top concern to the Federal Court, who relied heavily on that skewed interpretation to quash the Governor in Counsil’s decision.

Clement’s in Denial: The CRTC’s Decision (“The Decision”)

The CRTC found that Globalive is controlled by Orascom, the Egyptian company, and as such fails the requirement of s. 16(3) of the TCA, which states:

16. (1) A Canadian carrier is eligible to operate as a telecommunications common carrier if

(a) it is a Canadian-owned and controlled corporation incorporated or continued under the laws of Canada or a province…

16. (3) For the purposes of subsection (1), a corporation is Canadian-owned and controlled if

(a) not less than eighty per cent of the members of the board of directors of the corporation are individual Canadians;

(b) Canadians beneficially own, directly or indirectly, in the aggregate and otherwise than by way of security only, not less than eighty per cent of the corporation’s voting shares issued and outstanding; and

(c) the corporation is not otherwise controlled by persons that are not Canadians.

Both (a) and (b) describe legal control. Globalive met these requirements by having Canadians sit as board members and own more than 80% of the voting shares.  It is the last category, (c) which refers to “control in fact.” According to the CRTC, the test for de facto control comes from its decision in Canadian Airlines Decision of the National Transportation Agency, No. 297-A-1993, 27 May 1993:

“…There is no one standard definition of control in fact but generally, it can be viewed as the ongoing power of ability, whether exercised or not, to determine or decide the strategic decision-making activities of an enterprise. It can also be viewed as the ability to manage and run the day-to-day operations of an enterprise.”

This decision further notes that many small ties between companies, while on their own may not be enough to exert control, might, when taken together, result in a degree of influence which amounts to control.

In order to determine if Orascom had control in-fact over Globalive, the CRTC looked at (i) Globalive’s corporate governance structure, (ii) the company’s shareholder rights, (iii) it’s external commercial arrangements, and (iv) economic participation between Globalive and non-Canadians.

Under the category of corporate governance, the CRTC examined the composition of Globalive’s Board of Directors, quorum provisions, and the appointment of officers.  It proposed amendments to curtail Orascom’s control, such as reducing the number of directors the financer may nominate. With respect to shareholder rights, the CRTC noted that extensive modifications were needed to reduce the impact of Orascom’s veto powers.

As for the external commercial arrangements with non-Canadians, the CRTC found that Globalive’s Technical Service Agreement (TSA), which allows Globalive to access Orascom’s wireless expertise, results in continued influence by Orascom over operating and strategic decisions at Globalive. Furthermore, the Trademark Agreement for WIND Mobile is with one of Orascom’s subsidiaries, and the CRTC found that Orascom  would have the power to limit how the brand was used [para 89 of CRTC Decision].

Lastly, when considering economic participation of non-Canadians, the CRTC found that Orascom’s equity participation of 65% was likely to result in an avenue of influence, but was not determinative of control.  Moreover, regarding financing, the Commissioner found Globalive’s debt to Orascom ($508 million) to be unacceptably high. The CRTC noted that while there are no statutory limits on the amount of debt that a non-Canadian can provide to a telecommunications provider, it is a strong indicia of where influence really lies.

Altogether, the CRTC found that the factors it considered amounted to “control in fact” by Orascom of Globalive, and therefore that Globalive did not meet the requirements set out in s. 16(3) of the TCA.

What’s the Big Deal Anyway? The Governor in Council’s Decision (“GC’s Decision”)

The GC’s Decision sounds like a very strange document. There are two parts: the first part is a series of “Whereas…” clauses, followed by a concluding “Therefore…” The second part is an attached Schedule of paragraphs from the CRTC Decision.

For the purposes of s. 12(8) of the TCA, which says that where the Governor in Council makes an Order such as this (to vary or reject a CRTC decision) the reasons shall be set out; Hughes J concludes these “Whereas” clauses are the Reasons, and the Schedule is the s. 16 decision, that Globalive is Canadian owned and controlled “in fact.”

The final Whereas on the first page of the GC’s Decision interpreted the CRTC’s decision as being determined by Globalive’s debt financing by a non-Canadian entity. [Para 42]

The GC’s Decision then reviewed the main policy objectives underscoring the Act, (which correspond to what is laid out in ss. 7(b), (c), and (d) of the TCA):

(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;

(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;

(d) to promote the ownership and control of Canadian carriers by Canadians

While Hughes J states succinctly that “one policy cannot be subordinate to another” [Para 47], the GC “considers that, when possible, the Canadian ownership and control requirements should be applied in support of the Canadian telecommunications policy objectives set out in the Act, including enhancing competition in the telecommunications market (emphasis added in Hughes J’s judgment).”

The GC’s Decision indicated that access to foreign capital, technology and expertise was predominantly important to the field of telecommunications, and that the TCA should be interpreted so as to ensure outward growth in this fashion, albeit within the parameters set by the existing control requirements (restricting voting shares by non-Canadians, in particular) [Para 48].

It is further noted, presumably as a heads up to future drafters of such documents, that the test for control is a double negative – (16.3(c) is the corporation not otherwise controlled by persons that are not Canadian). When asked if the double negative was happenstance, counsel for the AG and Globalive said no, arguing that a broadly held, multi-national entity may have control over a TCC and not be forced out by this rule, so long as it was “not a non-Canadian.” Nothing more was said of this point, but it’s a good lesson for those who craft statutes.

The GC’s Decision then recognized that multiple levels of influence can amount to control, but “that is not the case with Globalive.”

In summation:

“Whereas the Governor in Council considers that, on the basis of a careful examination of the facts and submissions before the Commission, it is reasonable to conclude, for the reasons set out in this Order, that Globalive is not in fact controlled by persons that are not Canadian and therefore meets the Canadian ownership and control requirements under the Act and is eligible to operate as a [TCC] in Canada.”

As a nota bene, the second last paragraph of the decision limits the ramifications of finding a company as foreign-owned as Globalive to be Canadian controlled in fact, saying their Decision “has a significant direct impact only on Globalive.” Obviously, the companies that have to compete with Globalive’s $35/month cellphone plans disagree.

The attached Schedule altered the findings of the CRTC regarding: the structure of the board, whether debt-financing structure could result in undue influence by a non-Canadian, the effect of liquidity rights, the definition of eligible purchasers of shares, and the effect of the TSA and Trademark Agreement.

The variable interpretation of the same facts by the two federal entities, listed in such stark language, is remarkable. See Para 85 to watch language, law and politics collide in a tornado of policy and analysis!

The Conclusion aptly sums up the Schedule:

CRTC’s decision: 118.     …In other words, the Commission finds that Orascom has the ongoing ability to determine Globalive’s strategic decision-making activities.

Governor in Council’s decision: 22.      …In other words, Orascom does not have the ongoing ability to determine Globalive’s strategic decision-making activities.

“Took a Look at your Report; Did Not Like it”, Decides the Federal Court

Hughes J identified two main issues in the case before him:

1.     Does Public Mobile have standing to bring this request?

i.         Does it have an effective remedy under the Act, which it has not exhausted?

2.     Did the Governor in Council act within the statutory mandate in varying the CRTC decision concerning Globalive?

Before directly addressing these issues, Justice Hughes speaks to his role in this mess. Paraphrasing Bastarache and LeBel in Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190, he notes that the courts act to supervise the administrative powers exercised by government decision-makers.  All public authority derives from enabling statutes, or the pertinent common or civil law, and the purpose of judicial review is to ensure public figures act within those legal boundaries. When they do not, those authorities transgress the principle of rule of law. As was recently considered in Telezone, reviewed here, (Court.ca link) and as I discussed in the case of the bank-robber McArthur (Court.ca), judicial review is directed at the legality, reasonableness and fairness of the procedures employed and actions taken by the government decision-makers. This authority is derived from s. 18(1) of the Federal Courts Act, which “was enabled to enhance government accountability as well as promote access to justice.” (Para 32 of Telezone). I would suggest that Hughes J doesn’t care whether Globalive gets to compete or not, so long as the law is applied correctly.

Mind Your Own Business: The Issue of Standing

When the Cabinet said it’s “relaxed approach” to interpreting the TCA would only apply to Globalive,  it ruffled a few feathers in the Canadian telecommunications industry.  The applicant in the case before the Federal Court is Public Mobile, one of WIND Mobile’s main competitors.

A preliminary issue for consideration is whether Public Mobile, whose legal entitlements were not impacted by the Governor in Council’s decision, has standing to ask for review of that decision. As the CEO of Public Mobile protested, “[the GC’s Decision] directly impacts my ability to get more money and grow.” Air Canada v. Toronto Port Authority informs judges to determine standing by both the context of the situation and the basis for judicial review. Hughes J. decides that Public Mobile does not have direct standing: in order to be directly affected, one’s legal rights must be imposed upon, or legal obligations adversely prejudiced. However, Hughes J found without difficulty that Public Mobile satisfied the three-fold test set out in Canadian Council of Churches v. Canada (Minister of Employment and Education) [1992] 1 S.C.R. 263:

a)    A serious issue has been raised;

b)   The party seeking public interest standing has a genuine or direct interest in the outcome of the litigation; and,

c)    There is no other reasonable and effective way to bring the issue before the Court.

According to Public Mobile, if Industry Canada allowed them and everyone else to “have the same kind of structure as Globalive and get foreign capital…this application would not have been brought forward.” (Para 77).  Despite what the Governor in Council’s had to say, allowing Globalive to compete as a Canadian TCP amongst other Canadians ignores its foreign funding and expertise, and puts our national carriers at a significant disadvantage. That, according to Public Mobile, is not the intention of the TCA, and the Governor in Council trod on the rule of law by saying it was so.

Did the GC Act Within its Statutory Mandate?

The relevant statute under which both the CRTC and the Governor in Council made their decisions is the TCA. To answer this question, the Federal Court must determine (a) whether the GC’s finding of facts could be reviewed (b) what the standard is for a review of this nature and (c) what determinations were made by the GC that the Federal Court should review.

(a) Can the Governor in Council disturb a finding of fact of the CRTC?

Hughes J first flags as an issue whether the Governor in Council can disturb a finding of fact of the CRTC. Finding that the Governor in Council relied on the same set of facts as the CRTC to come to the opposite position, it was not necessary to pursue this inquiry.

(b) What is the appropriate standard of review?

In Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (S.C.C.) the Court demonstrated how an error on a question of mixed fact and law can amount to an error of pure law, subject to the standard of correctness.  Relying on this case, Hughes J finds it is really the legal determination of the Governor in Council that we are concerned with, since it and the CRTC relied on the same set of facts. So, despite the Governor in Council’s overall inquiry being a question of mixed fact and law, Hughes J disaggregates a question of law from the overall inquiry on which he intends to focus his review.

Hughes J concludes somewhat dubiously that because we are concerned with a question of law the appropriate standard of review must be one of correctness, citing Dunsmuir. The very paragraph he cites (50) recognizes that some legal issues attract the more deferential standard of reasonableness, and the justice offers no reasons why the correctness standard is preferred in this case, and no further analysis.

(c)  The Legal Findings of the GC

The legal basis upon which the Governor in Council has stated that its Decision was made has been set out in pg. 2 of the “Whereas” clauses, in particular:

“…The Act does not impose limits on foreign investment in telecommunication common carriers and should be interpreted in a way that ensures that access to foreign capital, technology and experience is encouraged in a manner that supports all of the Canadian telecommunication policy objectives”

Hughes J finds that in many respects, the GC adhered to the policy objectives of the statute from which it derived authority to act to review the CRTC decision. In the quote above, however, it stepped outside the provisions as specifically set out in the TCA by “inserting a previously unknown policy objective into s. 7; namely, that of ensuring access to foreign capital, technology and experience” [Para 107].

The result of this, he concludes, is that because the statute defines the scope of the discretion applicable when interpreting it, and because the GC acted not within the scope of the statute, that the exercise of discretion to broaden the policy objectives of the act was arbitrary. The Federal Court of Appeal in Canada (Canadian Wheat Board) v. Canada (Attorney General), 2009 FCA 214 (CanLII) declared that it is settled law that the Governor in Council must stay within the boundaries of the enabling statute, both as to empowerment and purpose. The decision-maker must include all relevant criteria, and also exclude irrelevant criteria from consideration (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII) at para 172. Even decisions made in good faith are objectionable and subject to review by the Courts if the decision-maker departs from the objects and purposes of a statute pursuant to which it acts, said Cory J (as he then was) in Doctors’ Hospital and Minister of Health, (1976), 12 O.R. (2d) 164 at page 174.

Referencing the above “Whereas” clause, Hughes J finds that the GC misdirected itself in law by interpreting the ownership and control requirements of the TCA in a way that ensures access to foreign capital and technology. There is no policy objective in the Act that encourages foreign investment. What the TCA does say is that telecommunications has an essential role in the maintenance of Canadian sovereignty and identity, and provides a policy which requires Canadian ownership and control to be promoted. The intent of the TCA seems clear on this point. Whether this is a relic from a simpler time is a moot point – after all, “it is for Parliament not the Governor in Council to rewrite the Act” [Para 117].

If all that wasn’t enough, finds Hughes J, the GC was in error when it declared its Decision only applied to Globalive. He addresses Public Mobile’s concerns about equal treatment by the CRTC by flatly stating: “The Governor in Council cannot restrict its interpretation to one individual and not to others who may find themselves in a similar circumstance.”

I’ve Heard Enough: Conclusions

Thus, the Federal Court found that Public Mobile has standing to seek judicial review of the Decision of the Governor in Council, which was based on errors of law and is quashed. A stay was granted for 45 days.

Globalive and the Federal Government have announced their appeal of this decision, with Globalive arguing in their notice of appeal, filed Feb. 17, that:

“[Hughes J] erred on fact and law in failing to recognize that the Governor in Council, as it was entitled to do, considered ‘access to foreign capital, technology and experience’ to be a means to achieving Canadian telecommunications policy objectives rather than as a policy objective in and of itself.”

The issue of standing is also being appealed.

For those of you who stayed with me until the end, here are my two cents:

I hate my expensive phone contract, and would welcome WIND. As a personal matter, I hope WIND gets the go-ahead to do business here, but also I don’t think that telecommunications plays an important part in Canadian sovereignty and identity. Maybe I’d even feel better about my Canadian identity if we had some half-decent telecom providers. The TCA, however, clearly states that preserving sovereignty and identity through Canadian TCPs is an objective, and that does not mesh well with the free market’s insatiable desire for superior goods and services.

We’ll see what the FCA has to say, but one thing’s for sure: decisions pursuant to a legislative scheme that import non-existent objectives are clearly outside the scope of the executive’s power and is another example of this government blurring the lines of its own authority. Be accountable, be transparent, be forthwith – and stop trying to play fast and loose with the rules, because we (that coveted slice of the pie, Canadian citizens) are listening in.

What links these cases together is the fact that they were brought by one riled plaintiff.  Indeed, most defamation cases are brought by one plaintiff.  But what happens if a defamation suit is brought as a class action?  Success gets a whole lot harder – was the message sent by the SCC in Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, released February 17.  In a 6-1 judgment (Justice Abella dissenting), the Court dismissed the plaintiff’s action for damages, holding that he had failed to show that each member of the group had sustained personal injury from inflammatory comments made by a radio show host.

“Polemicist” radio show host adds last straw

The facts of the case are as follows.  In November 1998, André Arthur, the provocative morning show host of Montreal’s CKVL radio station, made some controversial comments during a discussion on restaurants and hotels in the city.  This was the excerpt included in the SCC judgment:

[TRANSLATION] Why is it that there are so many incompetent people and that the language of work is Creole or Arabic in a city that’s French and English? . . . I’m not very good at speaking “nigger”. . . . [T]axis have really become the Third World of public transportation in Montreal. . . . [M]y suspicion is that the exams, well, they can be bought. You can’t have such incompetent people driving taxis, people who know so little about the city, and think that they took actual exams . . . . Taxi drivers in Montreal are really arrogant, especially the Arabs. They’re often rude, you can’t be sure at all that they’re competent and their cars don’t look well maintained.

Farès Bou Malhab, a taxi driver whose mother tongue was Arabic, heard Mr. Arthur’s comments and launched a class action suit of defamation against Diffusion Métromédia, which operates CKVL.  Justice Guibault of the Superior Court of Quebec held that (unofficial English translation here) Mr. Arthur’s statements were wrongful and awarded damages to those taxi drivers who had heard them.  The majority of the Quebec Court of Appeal overturned the trial judge (French only), holding that personal injury had not been established, as the group targeted by Mr. Arthur’s comments was large enough to dilute the accusations.

SCC re-visits the establishment of “injury” in defamation

In her reasons for the majority, Justice Deschamps first took some time to clarify the principles of civil liability for defamation.  She outlined a three-step analysis in awarding compensation for defamation:

1. Fault – Whether a reasonable person would have made the impugned remarks in the same context;
2. Injury – Whether an ordinary person would have believed that the comments damaged the reputation of each member of that group, with the result that each of them sustained personal injury; and
3. Causal connection between the fault and injury.

With respect to Step 2, Justice Deschamps wrote that “the plaintiff must prove an injury shared by all members of the group.”  More importantly, she introduced a non-exhaustive list of factors to consider in establishing personal injury.  They are:

Size of the group (the larger the group, the more difficult it is to prove each member sustained personal injury)

Nature of the group (homogeneity, history of stigmatization)

Plaintiff’s relationship with the group

“Real target” of the defamation (precision or generality of the allegations)

Seriousness or extravagance of the allegations

Plausibility of the comments and tendency to be accepted

Extrinsic factors (e.g. characteristics of the maker or target of the allegations, the medium used, general context)

Cab drivers fail to measure up to Supreme Court’s meter

In examining the factors she laid out, Justice Deschamps concluded that Mr. Bou Malhab had not proven that each member of the group had sustained personal injury from Mr. Arthur’s accusations.  She found that,

the group is of considerable size and is heterogeneous, that the characteristics attributed to the members of the group are individual and do not lend themselves well to extrapolation, and that the remarks are an extreme, irrational and sensationalist generalization.

She accordingly dismissed Mr. Bou Malhab’s action.

Justice Abella, on the other hand, raised a few salient points in her dissent.  First, she challenged the definition of the “ordinary person” the majority had adopted as one which would embody characteristics such as an awareness of prejudices and discriminatory practices and knowledge of systemic discrimination.  She likened such a description to that of “an ordinary third-year law student.”  Furthermore, although she agreed with Justice Deschamps’ list of personal injury factors, in applying them to this case, Justice Abella reached a different result.  She found that Mr. Arthur had made some serious allegations which distinguished an identifiable and vulnerable group that interacted with the public on a daily basis.  In her opinion, it was clear that this group of taxi drivers could suffer harm both to their reputation and to their business.

Freedom of speech driven too far?

Both the majority and the dissent set this case up as a balance between freedom of expression and the importance of restricting harmful speech.  Justice Deschamps opened her set of reasons with some substantial rhetoric on the importance of free speech and a survey of Western courts that are granting that freedom increasing scope and flexibility.  It was certainly a vigorous attempt to justify the majority’s decision when freedom of speech did not play into the legal analysis nor reappear in the rest of the judgment at all.  The repercussions of Mr. Arthur’s comments on Arab and Haitian taxi drivers, however, did.

In her description of the “ordinary person,” Justice Deschamps emphasized the perspective of “others.”  The ordinary person was “the embodiment of the society that receives the impugned comments.”  However, in its legal analysis, the majority of the SCC did not come close to describing who Mr. Arthur’s audience – which might already hold existing, unfavourable notions about the ethnic groups targeted – was.  I agree with Justice Abella that the targets of Mr. Arthur’s allegations were members of highly vulnerable and stigmatized social groups.  Mr. Arthur had made very serious accusations, which were not intended to be ironic or satirical, against groups that were already marginalized.  In fact, as Justice Abella pointed out, the trial judge had even concluded that the comments were racist.  An “ordinary person” who had heard Mr. Arthur’s serious allegations might very well have a lower esteem of Arab and Haitian cab drivers.  In fact, Justice Deschamps mentioned that another taxi driver who had heard Mr. Arthur’s comments phoned into the radio show to make similar remarks.

In closing, Justice Deschamps noted that defamation suits were not always the appropriate means of legal recourse in discrimination cases.  In this case, however, it is difficult to imagine what else Mr. Bou Malhab could have done.  There was no contractual relationship between him and Diffusion Métromédia, an intentional tort would have been almost impossible to prove, and Mr. Arthur is certainly not a government actor.  Yet his radio comments may have had a far-reaching audience… and far-reaching consequences as well.

In Football Association Premier League Ltd. and Others v. QC Leisure and Others and Karen Murphy v. Media Protection Services Ltd., Cases C-403/08 and C-429/08 – the dubbed “Murphy’s Law” case – Kokott concluded that European Union (“EU”) law does not prohibit live football matches from being shown in UK pubs through foreign broadcasters.  Moreover, she found that contractual provisions that prevent conditional satellite access devices licensed to one EU Member State from being used in another Member State restrict the EU fundamental freedom to provide services set out in Article 56 of the Treaty on the Functioning of the European Union (the “TFEU” – PDF).  (The other three freedoms are the freedom of movement of people, goods and money.)  An ECJ ruling similar to Kokott’s opinion could create broad implications for international copyright law.

Pub fined £8,000 steps up its game

It all began when Karen Murphy, the landlady of The Red, White and Blue Portsmouth, England pub found an alternative to paying the more than £1,000 Sky Sports monthly subscription to show Football Association Premier League (“Premier League”) matches on her pub television.  Instead, she subscribed to NOVA, a Greek satellite broadcaster, for around one tenth of the Sky subscription.  She was sent a Greek decoder card and soon began showing the Premier League football games in her pub.

Here’s the problem: in its licensing agreement with the Premier League, NOVA was clearly prohibited from supplying the decoder cards outside of Greece.  Granting sports broadcasting rights on an exclusive territorial basis was a common commercial practice throughout Europe.  In the UK, Premier League broadcasting rights were granted exclusively to Sky Sports and ESPN.  As a result, Media Protection Services was soon knocking on Ms. Murphy’s door, and the landlady eventually found herself at the centre of criminal proceedings and fined almost £8,000 for using an “illicit access device” contrary to EU Directive 98/84.  Article 4 states:

Infringing activities

Member States shall prohibit on their territory all of the following activities:

(a) the manufacture, import, distribution, sale, rental or possession for commercial purposes of illicit devices;

(b) the installation, maintenance or replacement for commercial purposes of an illicit device;

Article 2(e) defines an “illicit device”:

Definitions

For the purposes of this Directive:

….

(e) illicit device shall mean any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the service provider;

Ms. Murphy appealed to the ECJ, claiming the Premier League had breached the EU free movement of goods and services by restricting her choice of satellite broadcast providers.  The Premier League, on the other hand, argued that Ms. Murphy and NOVA had infringed EU copyright law by supplying and using an illicit access device, and by communicating a copyrighted work to the public by wire or wireless means without authorization, contrary to Article 3(1) of Directive 2001/29.

The Free Movement Advantage

In her opinion, Kokott immediately discounted the argument that Ms. Murphy’s Greek decoder was an “illicit device” under Directive 98/84.  She concluded that a device that was “designed” or “adapted” according to Article 2(e) meant that it was manufactured or modified “with the intention” of providing access to a protected service without the authorisation of the service provider.  Because the Greek decoder was made with the consent of the Premier League and only sold with conditions on its use, the product itself was not an “illicit device.”

Moreover, Kokott stated that showing the Premier League games in a pub did not constitute a “communication to the public by wire or wireless means” in EU law.  She found that the EU legislature had yet to adopt a Berne Convention provision that identified the transmission of works “by loudspeaker or any other analogous instrument” as “public communication” of those works.  Therefore, EU law had yet to contemplate situations in which the public was physically present at the place where the communication originated.  Kokott thus concluded that a copyrighted work was not communicated to the public by wire or wireless means where it was “shown, free of charge, via a single television screen and speakers to members of the public present on the premises.”

Most importantly, Kokott concluded that provisions that made broadcasting rights territorially exclusive actually contravened the EU fundamental freedom to provide services by partitioning and eliminating the internal market.  She further held that such agreements pursued an “anti-competitive object” under Article 101(1) of the TFEU and could frustrate the TFEU’s objective of achieving the integration of national markets into a single EU market.  Kokott challenged the Premier League’s objections by pointing out that users such as Ms. Murphy did pay fees for the Greek decoder.  NOVA may have breached its licensing agreement with the Premier League, but that was a contractual dispute that should have been restricted to the contracting parties – an issue that may now be moot, as Kokott’s opinion effectively questions the place of such provisions in EU law at all.  Although the Advocate General noted that this did not preclude national laws from prohibiting specific communications in pubs, she warned that the restriction on the freedom to provide services could not be “disproportionate” to the share of the protected rights to the broadcast.

“Europe,” the True Champion

The ECJ’s pending judgment will be an intriguing resolution, not merely as a potential blow to European sports broadcasting giants, but as a monumental decision in the EU’s course to becoming a united European economy.

In my opinion, Kokott’s advice meaningfully overlooks immediate wrongs in favour of the grand, European scheme.  There is no question that NOVA had breached its licensing contract with the Premier League.  It supplied numerous subscribers outside of Greece with decoders contrary to the agreement and even created a false name and residential address to overcome the contractual territorial restrictions.  Kokott has also adopted a unique interpretation of EU copyright law.  From an everyday perspective, a television broadcast undeniably constitutes a communication and patrons of a bar are naturally members of the public.  From a legal perspective, current Canadian law holds that a work is “communicated to the public” where: (1) it is intended to be communicated to the public, and (2) the communication is actually received by one member of the public.  Surely NOVA, if not Ms. Murphy, intended the broadcast to be – and it was, in fact – viewed by the public.  A viewing does not suddenly cease to be a communication merely because the audience is physically present at the premises or because the viewing is provided free of charge.  These factors have not historically precluded copyright infringement.

Rather, Kokott’s emphasis on the free movement of services and the expansion of an internal European market sets this case up as the precipitous demise of well-established commercial practices in the pursuit of grand, European Union ideals.  There is no doubt that major broadcasting companies will take an initial hit if the ECJ chooses to adhere to Kokott’s advice.  Consider that Sky and ESPN’s domestic contract with the Premier League has been estimated to be worth £1.78 billion pounds (CAN $2.82 billion dollars) over three years.  That value would drop if Premier League could no longer guarantee exclusive national rights.  Or would it?  A ruling in favour of the freedom to provide services could disincentivize Premier League from contracting again with minor national broadcasters such as NOVA.  Rather, if Premier League were required to license Europe-wide broadcasting rights, there would only be a handful of broadcasting companies large enough to afford the contract.  Although Kokott’s opinion has sought to diversify the European market, it could effectively squeeze out smaller national companies vying for football broadcasting rights.

“Murphy’s Law” is hailed as the case that will protect the European consumer.  But it may be that regardless of the declared winner, the European consumer is bound to lose.

Update: On October 4, 2011, the ECJ released its decision, declaring that national laws which prohibit the import, sale, or use of foreign decoder cards are contrary to the EU fundamental freedom to provide services. It also ruled that while live matches themselves are not protected by copyright, “surrounding media” such as match highlights, the Premier League anthem, and other graphics are. The full judgment can be found here.

On December 23rd 2010, the Supreme Court of Canada (SCC) granted leave to appeal from the judgment of the Federal Court of Appeal (FCA) in Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, et al. [2010 FCA 123]. The debate in the case concerns the interpretation of the word “research” and the issue of whether the offer made to the consumer to preview a 30-second clip of a musical work constitutes fair dealing for the purpose of research within the meaning of section 29 of the Act, which provides that “fair dealing for the purpose of research or private study does not infringe copyright.”

Mo Money Mo Problems

The issue arose in the context of a tariff proposal before the Copyright Board of Canada by The Society of Composers, Authors and Music Publishers (SOCAN). SOCAN applied to the Board for the approval of tariffs calling for a higher rate for downloads with previews than for downloads without previews. SOCAN did not seek a specific tariff for copyright in previews. A number of parties including Bell Canada, CBC, Apple Canada Inc, and Rogers Canada Inc. challenged the proposed tariffs. Although the Board surprisingly did not hear submissions of the affected parties on the scope of research in s. 29 of the Act, the Board took a large and a liberal approach to the interpretation of the word “research”. The Board held the meaning of research in s. 29 to encompass “streaming a preview with a view to deciding whether or not to purchase a download or CD” (at para. 109 of the Board’s decision). The Board also held that a preview constituted a dealing with a musical work for the purposes of research. Taking into account the six considerations set out by Chief Justice McLachlin in CCH v. Law Society of Upper Canada, 2004 SCC 13 for whether a dealing is fair (listed below), the Board held that “generally speaking, users who listen to previews are entitled to avail themselves of section 29 of the Act, as are those who allow them to verify that they have or will purchase the track or album that they want to permit them to view and sample what is available online” (at para. 116 of the Board’s decision).

Last Fair Deal Gone Down

The FCA in reviewing the Board’s decision found the contextual interpretation of the concept of research in section 29 applied by the Board to be neither unreasonable nor in error. “The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it…listening to previews assists in this investigation” (at para. 20 of the FCA decision). The FCA also agreed with the Board’s analysis of the six CCH factors for whether a dealing is fair: the purpose, the character and the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing on the work. Upon judicial review, attention was only drawn to the third factor, but the court found that the Board did not err in taking the amount of  dealing to be the length of each preview in proportion to the length of the complete work rather than considering the aggregate number of users and previews and the resulting hours of uncompensated music. The FCA could not find the Board’s decision regarding fair dealing with respect to previews to be unreasonable or in error.

I Can’t Get to Sleep, I think about the Implications

The practical significance of the FCA’s decision is that it broadens the activities that may fall under the section 29 exemption of the Act. The struggle in copyright law is a battle between the rights of creators and the rights of users. Does the exception recognized by the Copyright Board and FCA decisions strike a balance between the competing interests? Is this the way we should be moving considering our evolving digital economy? Are we taking the correct approach by considering previews from the point of view of the consumer, or should we put greater emphasis on the idea that previews are a marketing tool used by digital download services to increase sales and profits?

I recently made my first purchase on eBay: a new pair of used glasses. I initially went into an optical store, tried them on and discretely wrote down the model number of the pair I liked (admittedly, I felt a bit guilty about not buying them there). I went home, immediately searched for the model number online. I found the model number and a Canadian vendor in Montreal – but how was I to know whether the one’s being sold were the correct pair? Conveniently, the vendor had put an image up. The vendor likely copy and pasted the image of the glasses from the eyewear designer’s website. Would anyone think twice about whether royalties were paid for that image?* Likely not. Should the eyewear designer be entitled to a royalty on that image? I’m not too sure I would say yes. However, when it comes to musical works – I might be one to disagree. Composers, authors and music publishers have been notoriously taken advantage of by record companies for decades. Why did Radiohead release In Rainbows as a pay-what-you want digital download? SOCAN reasonably did not seek a specific tariff for copyright in previews; they just wanted a higher tariff for downloads with previews. Are the digital download services becoming the new record companies? I’m not too sure. However, what I do know is that the last album I downloaded, I did so directly from the artist’s website, where previews and youtube clips were abundantly available.

(*Note, I realize I may be missing some copyright law exceptions out there, as I am not an expert in the field.)

R. v. White

R. v. White, [2008] A.J. No. 956, decided late last year, was the first case heard. In it, the chambers judge concluded that the objective of s. 517 is to protect the accused’s right to a fair trial by an impartial jury, and that this objective was sufficiently pressing and substantial to meet the first stage of the s. 1 justification test of R. v. Oakes, [1986] 1 S.C.R. 103. In the remaining other stages of the Oakes test (rational connection, minimal impairment, and proportionality), however, the chambers judge held that the mandatory aspect of the provision was wholly unconstitutional, and the discretionary aspect was unjustifiable in a non-jury context. With the text of the relevant provision being…

517.  (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. [My emphasis.]

… the chambers judge ordered that the mandatory portion of “and shall on application by the accused” be declared invalid, and that “Where a jury trial is possible” be read in at the beginning of the section.

The focal point of the Alberta Court of Appeal’s disagreement with the chambers judge’s ruling was his view of the objective(s) of the provision. Justice Slatter, writing for the court, held that the chambers judge had taken too narrow a view by holding that the law’s objective was solely to protect the accused’s right to a fair trial by an impartial jury. The Court identified at least seven additional objectives directed at preservation of fair bail hearing and a fair trial (as summarized by Justice Rosenberg in the other case under discussion today, Toronto Star Newspapers Ltd. v. Canada):

(a) The mandatory ban is necessary because placing any burden on the accused undermines the presumption of innocence and the right to remain silent. For example, it would be inappropriate to expect an accused to rebut evidence at the bail hearing directed at his character, lifestyle and associates prior to trial.
(b) It is unfair to expect the accused to “defend his entitlement to judicial interim release on fair terms against the interests of the media”.
(c) It is illogical to expect the accused to identify in advance the “specific evidence” that would justify a publication ban, especially since bail hearings are conducted informally without strict application of the rules of evidence and before the Crown has made full disclosure.
(d) It would be impossible for the judge to rule on the application without first hearing the evidence; while the judge could make a temporary ban, the accused would have to gamble on whether the ban would be made permanent.
(e) Requiring the accused to justify a publication ban could require preparation on the part of the accused and thus delay the bail hearing.
(f) The proceedings would be lengthened with the intervention of third parties such as the media and the need to call expert evidence.
(g) The expenditure of time and resources for the many bail hearings that are heard each day cannot be justified on a systemic basis.

Justice Slatter found that “[t]he very narrow view taken of the objectives of the section affected the application of all the subsequent stages of the Oakes test.” Thus, in light of these additional objectives, the Court found that the mandatory aspect of s. 517 was rationally connected to them, that its impairment was minimal, and that its salutary effects were proportionate to its deleterious effects. s. 517 was held to be justified under s. 1 of the Charter.

Toronto Star Newspapers Ltd. v. Canada

Toronto Star Newspapers Ltd. v. Canada (2009), 94 O.R. (3d) 82, decided early this year, answered the constitutional question differently. Justice Rosenberg, dissenting (Justice Juriansz concurring), wrote the bulk of the judgment, writing first and dealing with the preliminary procedural issues.

Going into the Oakes analysis, Justice Rosenberg characterized the objective of the infringement, which he found to be sufficiently pressing and substantial, as follows:

Section 517 ensures that accused have a fair trial by an impartial jury, by providing the accused with an effective and expeditious means to prevent jurors from being exposed to prejudicial information that may be disclosed at the bail hearing.

Relying on the “common sense” standard of Justice McLachlin (as she then was) in RJR-MacDonald Inc. v. Canada (Attorney-General), [1995] 3 S.C.R. 199, and exploring the fundamental aspects of the bail hearing, which finds constitutional protection under s. 11(e) of the Charter, Justice Rosenberg found the rational connection portion of the Oakes test to be satisfied. Reviewing a number of alternatives to the current legal provision and rejecting them for not being able to adequately achieve the law’s objective, Justice Rosenberg found that the provision survived the minimal impairment stage of the Oakes test as well.

As for the final portion of the Oakes s.1 test, proportionate effect, dissenting Justice Rosenberg wrote:

Where the mandatory ban fails the s. 1 test is the requirement of proportionality between the deleterious and the salutary effects of the measure. In my view, the deleterious effects of s. 517 are substantial and the salutary effects are in many respects speculative and limited.

These salutary effects of a mandatory ban, found to be speculative and limited, were: 1) protection against juror contamination (here, Rosenberg J.A. drew on social science evidence), 2) avoidance of delay and expense for an accused who seeks the mandatory/automatic publication ban, 3) prevention of witness contamination, 4) protection of  ongoing criminal investigations, 5) encouraging witnesses and sureties to come forward, and 6) protection of the privacy interests of the accused, witnesses, and victims. Justice Rosenberg accordingly found the mandatory wording “and shall on application by the accused” unjustifiably unconstitutional, and would have declared it invalid (with discretionary bans remaining justifiable under the test in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835).

Justice Feldman, writing for the majority (Justices Laskin and Simmons concurring), held that the mandatory aspect of s. 517  did not pass the rational connection and minimal impairment stages of an Oakes analysis if a hearing was not tried by a jury. The mandatory publication ban was, however, demonstrably justified under s.1 in the instance of a jury trial.

A publication ban is needed in jury cases to protect an accused’s right to a fair trial under s. 11(d) and s. 7 of the Charter by preventing potential jurors from learning of prejudicial information from bail hearings which may never be heard at trial. In my view, because it is also critically important that the rights of an accused under s. 11(e) and s. 7 of the Charter to reasonable bail following an expeditious bail hearing be protected in possible jury cases, the publication ban must be mandatory at the request of an accused and not merely available at the discretion of the justice following a hearing on that issue.

Contrary to Justice Rosenberg’s result, Justice Feldman found that the mandatory ban in instances of a jury trial satisfied the final, proportionate effects stage of the Oakes test. Justice Feldman took issue with Justice Rosenberg’s discussion of deleterious effects. More importantly, Justice Feldman disputed Justice Rosenberg’s conclusion (which was based, in large measure, on social science evidence) that a mandatory publication ban would not protect against jury contamination. Justice Feldman further stressed the factors of practicality and expediency in his discussion of salutary effects.

Justice Feldman ordered that the limiting words “where and for so long as the charge(s) may be tried by a jury” be read into the provision after “and shall on application by the accused”.

Discussion

Thus the Supreme Court has before it three different judicial opinions on the constitutionality of s. 517 of the Criminal Code. Justice Slatter in R. v. White would allow for the mandatory publication ban. Justice Feldman for the majority in Toronto Star Newspapers Ltd. v. Canada would allow for the mandatory publication ban only in jury trials, with the discretionary publication ban applicable otherwise. Finally, Justice Rosenberg for the dissent in Toronto Star would only allow for the discretionary ban, jury trial or not. (A fourth opinion, which most stringently upholds s. 2(b), can be found in the the overruled decision of Justice Brooker, the chambers judge in R. v. White, which would allow only for the discretionary publication ban in jury trials, with no ban allowed otherwise.)

As for my opinion, I agree with the result arrived in Toronto Star by both Justices Feldman and Rosenberg that, contrary to R. v. White, the mandatory publication ban cannot be justified in non-jury hearings. Justice Rosenberg, analyzing White, makes the crucial point:

[Slatter J.A.] seems to have concluded that a publication ban could be justified even in non-jury cases. His reasoning is reflected in para. 39, where he concluded that Brooker J. erred in holding that preservation of an untainted jury is the only objective of s. 517:

[Brooker J.'s] analysis also overlooked the other important objectives of s. 517. It precludes consideration of any argument that trial judges (even though they are trained to ignore such matters) should be insulated from pre-trial publicity when possible.

I cannot agree with the Alberta Court of Appeal that an objective of the provision could be to insulate trial judges from pre-trial publicity. Trial judges are expected to ignore such matters; our entire system of non-jury trials is built on the theory that judges can ignore highly prejudicial and inadmissible evidence. Trial judges are routinely asked to rule on the admissibility of confessions, bad character evidence and constitutionally inadmissible evidence. The system depends on the ability of trial judges to ignore evidence deemed inadmissible when reaching the merits of the case. I am not aware of any case that holds that a publication ban can be justified on the basis that a trial judge should not be tainted by pre-trial publicity.

I am less certain about the s. 1 justifiability of the mandatory publication ban in jury trials and the related differing proportionate effects analyses in Toronto Star. I am personally partial to Justice Rosenberg’s dissenting judgement, which is highly comprehensive in its exploration of the deleterious and salutary effects of the provision, thoroughly relies on social science evidence, and revisits Global Communications Ltd. and Canada (Attorney General) (Re) (1984), 44 O.R. (2d) 609. In the end, however, my preference counts for little, as it is up to the Court to determine which route to take.

According to Adbusters, this action raised awareness of the statutory right of all Canadian citizens to have “a reasonable opportunity…to be exposed to the expression of differing view on matters of public concern” (section 3(i)(iv) of the Canadian Broadcasting Act, 1991, c.11).

Who are the Adbusters Media Foundation?

Adbusters Media Foundation (Adbusters) is a not-for-profit, anti-consumerist organization based in Vancouver. Adbusters also publishes an ecological magazine that examines the relationship between human beings and their physical and mental environment. They describe themselves as “a global network of artists, activists, writers, pranksters, students, educators and entrepreneurs who want to advance the new social activist movement of the information age.”

Adbusters has launched numerous international social marketing campaigns including “Buy Nothing Day” and “TV Turnoff Week”. They are particularly known for their “subvertisements”, which are spoofs of popular advertisements.

Background

On September 13, 2003, Adbusters filed a suit against six major Canadian television broadcasters including CanWest Global, Bell Globemedia, CHUM Ltd., and CBC for refusing to air advertisements critical of commercial advertising. CBC agreed to run some of the ads, but not at the time that Adbusters desired. The B.C. Supreme Court dismissed Adbusters’s statement of claim for not establishing a reasonable cause of action. On April 3rd, 2009, the B.C. Court of Appeal overturned the B.C. Supreme Court decision in Global Television Network Inc. and Global Communications Limited v. Adbusters Media Foundation, 2009 BCCA 148 (Adbusters).

Adbuster’s claim: Violation of section 2(b) of the Charter

Adbusters claimed that Global TV’s subjective and selective refusal to air certain ads was a violation of section 2(b) of the Charter, that is, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. Adbusters claimed that both Global TV and CBC were “government bodies” and as such were subject to the Charter. Their responsibilities, which included implementing government broadcasting policies that control expression on the airwaves (a public space), strongly indicated that they were government bodies.

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, is the leading authority establishing that the Charter applies to all the activities of the government, private or not.

The SCC has also recognized that the Charter may apply to non-governmental entities in certain circumstances. It has held that a private entity implementing a specific government program is subject to the Charter with regard to that program. Justice La Forest in Eldridge stated, “the Charter will apply to a private entity when engaged in activities that can in some way be attributed to government.” He repeated this proposition in McKinney v. University of Guelph, (1990) 3 S.C.R 299, where he held that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy.

The test to determine whether a private entity is subject to the Charter is based on the entity’s conduct and whether it is governmental in nature. Adbusters would have to prove, first, that Global TV is a governmental body and, second, that Global TV’s conduct is similar to that of a governmental body and is therefore, subject to the Charter.

Global TV’s Argument: No Reasonable Claim

At trial, Global TV sought an order to dismiss the proceedings pursuant to Rule 19(24)(a) of the B.C. Court Rules Act, B.C. Reg. 221/90, which provides that at any stage of a proceeding the court may order to strike out or amend whole or any part of an endorsement, pleading, petition or other document on the ground that it discloses no reasonable claim.

Justice Donald from the B.C. Court of Appeal found that the test under Rule 19(24) was uncontroversial. The test as set out in Hunt v. Carey Canada Inc., (1990) 2 S.C.R. 959, asked the courts to determine if it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action. This analysis is not dependent on the length and complexity of the issues, the novelty of the cause of action, or the potential for the defendant to present a strong defence. It is a stringent test and the action fails only when there is a “radical defect” in the statement of claim.

A similar dispute was adjudicated in Adbusters Media Foundation v. Canadian Broadcasting Corp., 2008 BCSC 71, (Adbusters No 1). In Adbusters No. 1, the courts dismissed the Charter claim on the grounds that CBC was not under the control of the federal government and therefore their refusal to run certain ads was not government action subject to Charter scrutiny.

The B.C. Supreme Court judge in Adbusters found no distinguishing factors between the two cases that would oblige him come to a different conclusion. However, Justice Donald of the B.C. Court of Appeal disagreed with the trial judge and allowed the appeal, stating that the trial judge erred in “treating the implementation of government policy theory as having being settled by Adbusters No 1, and in considering themselves bound by that decision.”

SCC’s Decision to Dismiss the Application for Leave to Appeal and its Implications

On September 17, 2009, the SCC dismissed Global TV’s leave to appeal without costs, allowing the case to now proceed.

The significance of the case lies in whether public broadcasters that are given a license to operate by Parliament have the right to determine who gets to speak on public airwaves. This cases raises numerous questions regarding the nature and scope of freedom of expression in the Canadian broadcasting system. It will decide whether Canadians have the right to walk into their local TV stations and buy airtime under the same rule and conditions as corporations do.

Well, it turns out that we do, sort of, but our Court still has a ways to go. Since February 2009, videos of its hearings have been available online, and, perhaps more importantly for those really looking to dig deep into every angle of a case, there are also copies of each party’s facta from appeals argued after that date. (These developments were first reported here at TheCourt.ca by Rebecca Ross, and commented on by Daniel Del Gobbo). These are good first steps, but that is what they are: first steps. More can (and should) be done to make these materials even more valuable, and accessible, to law students, academics, and the legal community.

What’s the big deal?

Previous posts on this topic have argued that the main advantage of making these resources available is that they give the public a clearer idea of what goes on at the Supreme Court. That may be true, but a more important benefit is that it gives new law students and young lawyers a seat in the courtroom. Students are often told that what appears in a judgment can bear little resemblance to what was argued in a factum or before the Court; putting those arguments online allows for more insight into what the judges had to work with and how they may have been persuaded one way or another.

Practicing law is still very much a profession based on apprenticeship. Students and young lawyers learn by doing and by watching others. For those interested in a career in the courtroom, being able to see some of Canada’s top advocates in action is a fantastic way to see what works (and what doesn’t) in an argument. For those just starting out, it’s also an easy way to see what is actually involved in the hearing of an appeal, and to get a sense of the rapid-fire back and forth that often happens between judges and lawyers.

Problems and solutions

Despite these advantages, anyone trying to actually find the resources is in for a bit of a treasure hunt.

The most immediate problem is that the Court’s website is not exactly easy to navigate. The material is there, but it is tucked away into different corners of the site, connected via links that aren’t immediately obvious. The Webcasts page allows for searching by date, but if you are not sure of when the appeal was argued, it is not the most efficient way to search, especially as the Court’s archive grows. A search by court file number or by keyword are two alternative options, although the keyword function does not always return the most relevant results.

Another issue is with the videos themselves: they are the raw, unedited feeds from the Court. If you are interested enough to watch an appeal, you will have the pleasure of sitting through long stretches of silence at the beginning, watching the lawyers prepare before the hearing. Halfway through you’ll have time to grab some milk and cookies, as the brief recesses are brought to you without commercial interruption. Because the videos are streamed (and not available for download), it is difficult to fast forward through these moments of dead time.

How may these problems be remedied? Transcripts of the oral argument should be made available online as soon as possible after it is finished. The U.S. Supreme Court does this, and the transcripts are often posted, in searchable PDF format, the same day a case is argued.

To make the information more accessible, Canada’s legal community needs a site like Oyez.org. The U.S. Supreme Court has been audio-recording arguments since 1955, and since the late 1980s Oyez has been digitizing them and putting them online, along with summaries of the cases and transcripts of the arguments. The audio is downloadable or can be played alongside a scrolling transcript. (Listen to Sotomayor’s question, during Floyd Abrams’s argument in Citizens United, here. Of more historical interest might be the argument in Bush v. Gore, or Roe v. Wade.) While perusing Oyez’s archives, I could not help but think that there must be Supreme Court of Canada hearings recorded and archived somewhere in Ottawa; they should be made available and accessible on a website like Oyez. At the very least the transcripts should be uploaded. What was said during oral argument in cases like Oakes, Morgentaler, or Keegstra is surely as important as the judgments themselves.

This may not be a job for the staff maintaining the official Supreme Court website. There are likely government-imposed constraints on the look and feel of the website which will always keep it a few steps behind the leading edge. The LexUM legal technology lab, based at the University of Montreal, would be an ideal candidate to take on such a task. They already house copies of Supreme Court judgments going back decades—they should expand their database to include transcripts, recordings, and copies of the materials alongside the judgments.

Making webcasts and facta available was a good first step. The Court should continue to build on these resources to make them even better.

That said, the spectre of defamation continues to pose a significant threat to freedom of expression in Canada. While it is clear is that the Supreme Court’s ruling in Mair will make the provision of damages for defamation more elusive, the extent of its ability to occasion a genuine thaw in journalistic expression is less apparent. In two respects, addressed in partially concurring opinions by Justices Lebel and Rothstein, Mair falls far short of neutralizing the chilling effect of defamation lawsuits on freedom of expression.

Facts and Procedural History

Kari Simpson, an anti-gay rights activist brought a defamation suit against Rafe Mair, a radio personality who had derided Ms. Simpson for her opposition to the presence of “gay lifestyle” in B.C. public schools on his radio program. Among other things, Mair compared Simpson to various ignoble historical figures (Adolf Hitler and segregationist Alabama Governor George Wallace to name a few). At trial, the comments in question were found to be defamatory; however, Mr. Mair successfully found shelter in the defence of fair comment. A divided B.C. Court of Appeal overturned the trial judge’s ruling, finding that the impugned comments were not subject to the fair comment defence. Mr. Mair appealed, and the matter proceeded to the Supreme Court.

The Tension Between Defamation and Freedom of Expression

Writing for the majority, Justice Binnie restored the trial judge’s decision, finding that although Mr. Mair’s comments were defamatory, they constituted fair comment. The majority’s decision is ably canvassed here, by Ryder Gilliland. Binnie J. began his analysis by identifying the need for a common law account of defamation that was more sensitive to the threat posed by defamation to freedom of expression:

The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, the Media Coalition [of intervenors in Mair] contends, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.

While Binnie J. did not launch into an extensive discussion about the common law account of defamation, in obiter, (the issue of whether or not the impugned statements were defamatory was not before the Supreme Court), Lebel J. argued that Mr. Mair’s comments were not prima facie defamatory. Using a Charter values argument, he asserted that defamation constituted a very limited exception to the Charter guarantee of freedom of expression articulated in s. 2(b):

The law of defamation — whose purpose is to protect reputation — exists as a limitation on freedom of expression, which is protected by s. 2(b) of the Canadian Charter of Rights and Freedoms. Reputation is an important element of human dignity and must be protected. However, even if a fair comment defence is available, it cannot be consistent with the Charter value of freedom of expression to treat spirited statements of opinion in a debate on matters of public interest as being prima facie defamatory.

From a policy perspective there are compelling reasons to adopt a more restrictive approach to defamation. Making it tougher to make out a prima facie claim of defamation would would in turn make defamation lawsuits a far less effective means of intimidating would-be defendants into silence under the threat of litigation.

Regardless of whether a viable fair comment defence exists, the prospect of litigation is in itself often sufficient to suppress expression. Making it more difficult to establish defamation prima facie, however, would help reduce the use of defamation lawsuits for nefarious purposes.

Honest Belief as a Precondition for Fair Comment

Binnie J. began his discussion on the applicability of fair comment by reciting the test for fair comment established in Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognisable as comment

(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. [Emphasis added; emphasis in original deleted; pp. 1099-1100.]

(citing Duncan and Neill on Defamation (1978), at p. 62)

While he registered concerns about the B.C. Court of Appeals application of the honest belief requirement to the defence of fair comment, Binnie J. was not in favour of altogether dispensing with it. Doing so, he reasoned, would be inconsistent with the incremental approach to the common law endorsed by Canadian courts.

Moreover, Binnie J. added, the elimination of the honest belief requirement was not necessary to bring the common law in line with Charter values. (As a private law matter, the Charter itself does not apply, however courts have consistently held that Charter values animate the common law). Instead, Binnie J. endorsed a broader conception of “honest belief” then had been advanced by the B.C. Court of Appeal:

“Honest belief”, of course, requires the existence of a nexus or relationship between the comment and the underlying facts. Dickson J. himself stated the test in Cherneskey as “could any man honestly express that opinion on the proved facts” (p. 1100; emphasis added). His various characterizations of “any man” show the intended broadness of the test, i.e. “however prejudiced he may be, however exaggerated or obstinate his views”(at p. 1103, citing Merivale v. Carson (1887), 20 Q.B.D. 275, at p. 281). Dickson J. also agreed with the comment in an earlier case that the operative concept was “honest” rather than ‘fair’ lest some suggestion of reasonableness instead of honesty should be read in” (p. 1104).

Binnie J. went on to conclude that the appropriate test for honest belief was “whether anyone could have honestly expressed the defamatory comment on the proven facts.”

In their partial concurring judgments, both Rothstein and Lebel JJ, indicated their preference for scrapping the honest belief requirement. Pointing to shifting precedent on fair comment in various Commonwealth countries, Lebel J. disputed Binnie J.’s contention that abandoning the honest belief requirement would constitute more than an incremental approach to the common law.

Moreover, as Rothstein J. explained, the “objective honest belief” was a redundant stage in the fair comment analysis:

If objective honest belief means the honest belief of anyone, no matter how “prejudiced . . . exaggerated or obstinate” in his or her views, I cannot think of an example in which the test of objective honest belief could not be met once it is demonstrated that the comment has a basis in true facts.

Worse still, Lebel J. explained, “the only additional protection for reputation afforded by a requirement of objective honest belief is an inappropriate one, in that it places a reasonableness restriction on the opinions a person may legitimately express.” Lebel J. added that “the common law courts in this country and in the U.K. have long been uncomfortable with the idea of limiting fair comment to what is reasonable, even in the broadest sense.” He accordingly concluded that the “time has come to formally acknowledge that such a reasonableness requirement has outlived its purpose and that, in any event, in its present broad form, it provides little or no protection for reputation.”

What is most damning about the honest belief requirement however, is the “unnecessary complexity” (to use Rothstein J.’s words) that it adds to the fair comment analysis. Even in Binnie J.’s broader formulation of honest belief, its objective component makes it an imprecise science; it is difficult to discern the presence of an objective honest belief prior to pleading the defence of fair comment at trial. The practical effect of the ambiguity generated by the honest belief requirement is that it dampens the effectiveness of the fair comment defence in neutralizing the chilling effect on expression created by the spectre of a defamation lawsuit.

Striking the Right Balance

In an age where obscure independent bloggers can attract a magnitude of audience traditionally reserved for well-established newspapers and networks, the tort of defamation has taken on a heightened significance. Defamation has at once become increasingly important — as a means by which individuals can vindicate damaged reputations — and increasingly injurious to freedom of expression. In Mair the Supreme court creditably realigned the balance between freedom of expression and the protection of reputations, to render it more consistent with Charter values.

However the Supreme Court could have gone further. Establishing a higher threshold for the prima facie establishment of defamation and eliminating the “objective honest relief” requirement to the defence of fair comment would substantially limit the ability of defamation lawsuits to compromise freedom of expression.