To succeed in a defamation action, a plaintiff must first prove that defamatory words were published. The decision in Crookes stands for the proposition that a hyperlink, by itself, is not publication of the content to which it refers. Publication will only occur if the hyperlink is presented in a way that repeats the defamatory content. This article discusses the decision’s background, reasoning, and implications.

Background

The appellant brought numerous defamation actions against various individuals and organizations alleging that he had been defamed in several articles on the internet. After those actions were commenced, the respondent posted an article on his website which commented on the implications of the plaintiff’s defamation suits for operators of internet forums. The respondent’s article included hyperlinks to websites containing some of the allegedly defamatory articles that were the subject of the plaintiff’s actions. However, the respondent’s article did not reproduce or comment on the content in those articles.

The appellant discovered the respondent’s article and advised him to remove the hyperlinks. When the respondent refused, the appellant brought an action seeking damages for defamation on the basis that the hyperlinks constituted publication of the allegedly defamatory articles. There was evidence that the respondent’s article had been viewed 1,788 times, but no evidence as to how many times, if any, the hyperlinks in the article had been followed.

Decision of the Supreme Court of Canada

The issue on appeal was whether creating a hyperlink to allegedly defamatory material constitutes publication of that material. The reasons of the six-justice majority, penned by Abella J., began by describing the evolution of the “publication rule.” Under this rule, any act which had the effect of communicating defamatory words to a third person constituted publication. The breadth of activity caught by the publication rule over the years has been vast. For example, a person whose role was to manually operate a printing press was, in one older case, found liable for defamatory words contained in the publication, despite being unaware of its contents.

The majority observed that the harshness of the publication rule was later alleviated by the development of the “innocent dissemination” defence, which protects defendants that play a role in the distribution of potentially defamatory material.  Defendants, such as booksellers and libraries, may avoid liability if they had no actual knowledge of alleged libel, were not aware of circumstances that would give cause to suspect a libel, and were not negligent in failing to discover the libel.

The majority also recognized that, in recent years, the application of the publication rule has been tempered by cases which suggest that some acts of communication are so passive that they should not be considered publication. For example, the majority referred to English cases in which internet service providers and search engines were not held liable as publishers because they only played a passive instrumental role, and acted without knowledge, in the process of publishing the defamatory words. In other cases referred to by the majority, courts had held that merely making a reference to defamatory material was not publication.

In light of these developments, the majority concluded that creating a hyperlink to defamatory material is not the type of act that constitutes publication. In the majority’s view, modern realities made it necessary to interpret the publication rule to exclude references, such as hyperlinks, in order to accord with Charter values, recent jurisprudence, and the evolution of communications technology.

In declining to expose hyperlinks to the wide breadth of the traditional publication rule, the majority reasoned that hyperlinks are essentially content neutral references to material that hyperlinkers have not created and do not control. Although a hyperlink communicates that information exists and may facilitate the transfer of information, it does not, by itself, communicate information.

It is also significant that the majority’s reasons focused on the important role of the internet in promoting freedom of expression, and the importance of hyperlinks in facilitating access to information on the internet.  As Abella J. writes,

[36]      The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.  Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

However, the majority also recognized that a hyperlink will constitute publication if it “presents content from the hyperlinked material in a way that actually repeats the defamatory content.” This might occur, for example, where a person inserts a hyperlink in text that repeats the defamatory content in the hyperlinked material. In these cases, the hyperlink would be more than a reference; it would be an expression of defamatory meaning. This had not occurred in the case at bar, so the majority dismissed the appeal.

McLachlin C.J.C. and Fish J. substantially agreed with the majority, but held that “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” In their view, a hyperlinker should be liable for linked defamatory content if the surrounding context communicates agreement with the linked content. In these cases, the hyperlink “ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”

Deschamps J. agreed with the result, but disagreed with the approaches taken by the other justices. In her view, the blanket exclusion of all references from the scope of the publication rule erroneously treats all references alike. According to Deschamps J.’s reasons, the majority’s approach “disregards the fact that references vary greatly in how they make defamatory information available to readers and, consequently, in the harm they cause to reputations.” To address this concern, Deschamps J. proposed a nuanced and highly fact-driven framework under which a hyperlink would constitute publication if the plaintiff established two elements: that the defendant “performed a deliberate act that made defamatory material readily available to a third party in a comprehensible form,” and that “a third party received and understood the defamatory [material].”

To establish the first element under Deschamps J.’s approach, plaintiffs would need to demonstrate that the defendant played more than a passive instrumental role in making the information available, and make reference to numerous factors bearing on the ease with which the referenced information could be accessed. To establish the second element, plaintiffs would need to adduce direct evidence that a third party had received and understood the defamatory material, or convince the court to draw an inference to that effect based on the totality of the circumstances.

Implications

Crookes presented the Court with a welcome opportunity to consider the proper balance between the competing interests of freedom of expression and the protection of reputation in the context of internet communications. Five years ago, defamation law leaned significantly towards protecting reputation. Today, as a result of Crookes and other landmark cases – such as WIC Radio Ltd. v. Simpson, 2008 SCC 40, and Grant v. Torstar, 2009 SCC 61 – defamation law better protects and promotes the fundamental right to freedom of expression.

However, the decision in Crookes could have undesirable consequences in certain circumstances. As the Court recognized, the internet’s borderless and far-reaching mode of publication has tremendous power to harm reputation. As a result of Crookes, a victim of internet defamation who wishes to vindicate their reputation and prevent the spread of defamatory material only has a remedy against the person who created and controls the material – not persons who have referred their readers to it.

It is surprising that in the majority’s view this approach creates “little or no limitation to a plaintiff’s ability to vindicate his or her reputation.” Yet, in some cases, the majority’s approach may create opportunity for abuse that significantly limit a plaintiff’s ability to vindicate their reputation. The creation of a hyperlink is a means by which defamatory material can be rapidly disseminated. Defamatory material contained on an obscure website may, for example, receive the attention of a vast number of readers if a popular blogger hyperlinks to it. In these circumstances, the plaintiff would have no action against the hyperlinker, even if they created the hyperlink with the malicious intent of spreading the defamatory words.

Such a situation would be especially troubling if the victim were also unable to pursue a remedy against the creator of the defamatory material because they published the material anonymously – a common occurrence on the internet. In addition, if the defamatory material were posted on a third party’s website operated in the United States, and that website passively hosted the material, legislation would apply to immunize the operator of the website from liability: see Communications Decency Act, 47 U.S.C. § 230 (1996); see also Crookes at para. 28. If the operator of the website refused to remove the defamatory material, it would remain visible for the world to see. The victim would be left without any remedy and, meanwhile, the use of hyperlinks could cause the defamatory material to rise from obscurity to notoriety.

Although this concern might be alleviated by adopting the more contextual and nuanced approaches suggested by McLachlin C.J. and Fish J., and Deschamps J., those approaches lack the welcome certainty of the majority’s bright-line rule. McLachlin C.J. and Fish J.’s test for publication is dependent on the presence of indicia of “adoption or endorsement,” the scope of which is inherently uncertain. Deschamps J.’s approach is similarly fact-driven. If either test applied, it would be difficult to predict in advance whether a hyperlink constituted publication. Uncertain exposure to liability might then deter the public from using hyperlinks, which could inhibit the internet as a medium for free expression. This very concern likely drove the majority to establish its bright-line rule.

The non-majority approaches would also have the undesirable effect of shifting the weight of litigation to defendants. Once a plaintiff establishes a prima facie case of defamation, the onus shifts to the defendant to raise any available defences. Both of the non-majority approaches would lower the threshold to be met by plaintiffs in order to establish a prima facie case. As a result, more internet users would be thrown into the costly position of having to justify their conduct by reaching for the protection of a defence. Although the wide availability of defences for hyperlinkers may, as Deschamps J. suggests, “dissuade overeager litigants from having a chilling effect on hyperlinking,” it would not deter plaintiffs who wish to stifle criticism by intimidating defendants through costly litigation.

Lastly, it is important to recognize that the decision in Crookes may not be the final word on defamation liability for hyperlinks. The Court expressly left open the question of whether the same principles apply to embedded or automatic hyperlinks, which automatically display referenced material with little or no prompting from the reader. These hyperlinks are distinguishable from the user-activated hyperlinks in Crookes, which require users to click on the hyperlink in order to access content. Although the Court declined to comment on the legal implications of automatic or embedded hyperlinks, it appears that they would constitute publication, according to the majority’s reasoning, to the extent that they make third party content appear as part of the website that the hyperlinker controls.

Matthew Nied is a guest contributor to TheCourt.ca. He is currently an articling student in Vancouver.

On October 1, 2010, The Lawyer’s Weekly, a news source for the Canadian legal community, published an article entitled “Drop in caseload worries Supreme Court of Canada observers.” Thus far, it appears to have made an accurate prediction for the SCC. In addition to asking if the SCC is taking on enough cases, the article points out the fact that “the top court has decided fewer cases— and opened its doors to fewer litigants— in the first nine months of 2010 than in any comparable period in the court’s modern history.”

In addition to pointing out a caseload drop, the article reported a “continuing…downward trend in the number of appeals [the SCC] accepts to hear.” More notably, are its predictions for the upcoming year:

[From January 1, 2010 to October 1, 2010], the judges only accepted 31 cases of the 341 leave applications (nine per cent) they decided in 2010, according to court statistics. If that pattern persists, the court’s schedule could be lighter in 2011-2012 than it has been in 2010…

Here at The Court, we’ve started a tradition of compiling an annual list of top SCC cases at our OZZY Awards. This year may be a difficult choice to make a list of earth-shattering SCC precedents because we may only come up with a scant few truly ground-breaking cases. (Note: Readers are free to differ).

Perhaps one of the most striking lower court decisions of the year was handed down by Justice Susan Himel of the Ontario Superior Court of Justice in Bedford v. Canada, which struck down Ontario’s prostitution laws. The case continues to wind its way through the justice system towards its most likely final destination, the Supreme Court. A fellow editor here at The Court covered this case here.

Arguably, decisions handed down by the SCC itself has shown waffling decisions that are unlike major precedent setting standards as exemplified in 2009 by R. v. Grant as our Criminal Judgment of the Year in 2009 and Grant v. Torstar as our Civil Judgment of the Year. This year’s OZZY awards may be somewhat less spectacular given our options for 2010.

If this trend continues, the troubling result may be fewer heavily weighted High Court precedents in Canadian legal jurisprudence. Will ONCA decisions be left as our most innovative precedents? Will the SCC be busier in 2011-2012?

Now that it’s a new year, hopefully we’ll see things pick-up pace at the SCC. Stay tuned as The Court continues to follows its latest developments— in the meantime, developments in the lower courts here and high courts abroad will occupy our editorial dockets. Stay tuned for the release of our OZZY nominations on January 25th, 2011 that coincides with Hollywood’s Oscar film nominations and our final winners will be announced on February 27th, 2011.

Due to the economy, we decided to forego the red-carpet awards gala we had planned in Roy Thomson Hall with the leading luminaries of the Canadian legal profession in attendance in their finest evening wear (maybe next year). Now, without further ado:

Criminal Judgment of the Year

Nominees:
R. v. Grant
R. v. McNeil
R. v. Patrick
R. v. Suberu

Interestingly, represented in this category are half the tetralogy of cases that reformed the law on the exclusion of evidence as a Charter remedy under s. 24(2). Meanwhile, joining Grant and Suberu among the nominees are McNeil, which dealt with disclosure of third party records in the hands of police (but declined to discuss another interesting issue considered by the OCA, which was the scope of the duty of post-conviction disclosure), and Patrick, which found that a police search of garbage bags placed for collection on the accused’s property was reasonable.

And the Ozzy goes to…

R. v. Grant – No surprises here. Not only did this highly anticipated case lay down a new test for the exclusion of evidence under s. 24(2), it set out a new definition of (and test for) psychological detention under ss. 9 and 10. It has left the world of criminal practitioners and academics alike abuzz with speculation on how the new tests will play out, and has rendered my Crim Pro summary from last year essentially useless (not that it wasn’t anyway).

Civil Judgment of the Year

Nominees:
A.C. v. Manitoba (Director of Child and Family Services)
Alberta v. Hutterian Brethren of Wilson Colony
Grant v. Torstar Corp.
Nguyen v. Quebec (Education, Recreation and Sports)

Three of these decisions involve the Charter rights of minority communities. In AC v. Manitoba, a 14-year-old Jehovah’s Witness unsuccessfully claimed that a law allowing a judge to order her to undergo a blood transfusion contrary to her religious beliefs violated her Charter rights under ss. 2(a), 7, and 15. In Hutterian Brethren, members of a small religious community who believe that getting their photos taken breaches the Second Commandment filed a s. 2(a) claim that their religious rights were infringed by a law making photos mandatory for driver’s licences; their claim was rejected by the SCC. Finally, in Nguyen, the Court released a controversial decision striking down a provision of Quebec’s language laws that restricted access to English-language education. Added to this mix is Grant v. Torstar Corp., in which the SCC recognized a new “responsible communication” defence to defamation.

And the Ozzy goes to…

Grant v. Torstar Corp. – Drawing from Charter values and jurisprudence from other common law jurisdictions, the SCC opened up a new “responsible communication” defence to dispose of two defamation suits launched against the Toronto Star and the Ottawa Citizen. Showing their sensitivity to modern technological developments, they went further than the “responsible journalism” defence recognized by the English jurisprudence and the OCA’s decisions, defining the new defence broadly enough to encompass not just journalistic media but all forms of public communications – including, for instance, online blogs. All of us at TheCourt.ca subsequently breathed a huge sigh of relief and named Torstar Civil Judgment of the Year in gratitude.

Charter Judgment of the Year

Nominees:
A.C. v. Manitoba (Director of Child and Family Services)
Alberta v. Hutterian Brethren of Wilson Colony
R. v. Grant
R. v. Suberu

Given the prominence of Charter litigation in modern Supreme Court jurisprudence and in our hearts, we decided to create a category just for these cases. It was a particularly busy year for Charter jurisprudence, with some real heavyweights up for the top prize.

And the Ozzy goes to…

R. v. Grant – A very close race here, with AC v. Manitoba and Hutterian Brethren also in the hunt. But in the end, Grant comes out on top by a hair. Grant is shaping up to be a big winner here, taking two of three Ozzies thus far.

Concurring Opinion of the Year

Nominees:
Binnie J. in R. v. Grant
Deschamps J. in R. v. Grant
Rothstein J. in Canada (Citizenship and Immigration) v. Khosa

Once again, some heavy representation here from R. v. Grant. Both Binnie J.’s disagreement with the definition of “detention,” as well as Deschamps J.’s criticism of the new s. 24(2) test, have made it on to the shortlist. Rounding out the group is Rothstein J. and his forceful argument in Khosa that the reasonableness standard of review should be limited to cases with a strong privative clause.

And the Ozzy goes to…

Deschamps J. in R. v. Grant – The accused seeking to exclude evidence under s. 24(2) of the Charter this year had no friend in Deschamps J., who was the only judge to vote to admit the impugned evidence in all four (three if you don’t count Shepherd) s. 24(2) cases. In Grant, she questioned the majority’s new three-pronged test focusing on the seriousness of the breach, the impact on the accused’s Charter-protected interests, and society’s interest in adjudication on the merits. Seeing a measure of overlap and redundancy in the first two factors, she instead advocated a simpler test which would balance the public interest in protecting Charter rights against the public interest in adjudication on the merits. Personally, I do see merit in the majority’s approach, which highlights that there may be occasions where the reprehensibility of state conduct may in and of itself warrant the exclusion of evidence independently of its actual impact on the accused’s rights. That said, Deschamps J. is correct in pointing out that the two could be linked together into a broader consideration focusing on the public interest as a whole.

Dissenting Opinion of the Year

Nominees:
Abella J. in Alberta v. Hutterian Brethren of Wilson Colony
Abella J. in Plourde v. Wal-Mart Canada Corp.
Binnie J. in R. v. Suberu
Fish J. in Canada (Citizenship and Immigration) v. Khosa

A strong dissent can be as worthy of acclaim as a strongly written majority opinion. It adds value to a decision and offers a refreshing alternative perspective. And a particularly effective dissent can in time become the majority position – most recently, LeBel J.’s scathing attack on the two standards of reasonableness in judicial review of administrative action in Toronto (City) v. C.U.P.E., Local 79 led to the Court unanimously collapsing patent unreasonableness and reasonableness simpliciter into a single standard of reasonableness in Dunsmuir v. New Brunswick (although this was technically a concurring opinion).

And the Ozzy goes to…

(Tie) Abella J. in Plourde v. Wal-Mart Canada Corp. – It was noteworthy to see all of the judges with a background in labour law – LeBel, Abella, and Cromwell JJ. – register dissenting votes in the Wal-Mart case. As a company, Wal-Mart is widely deplored for its repressive anti-union policies and practices and has been mired in pitched battles with Canadian unions (notably UFCW) and our more generous labour laws since its arrival in this country. Recently, it has been in the practice of closing stores in response to successful union drives in Canada. Hardly an endearing tactic, but the question that came before the SCC was whether certain provisions of Quebec’s Labour Code granted access to a remedy where a store was closed for anti-union purposes. The majority ruled that the particular provisions in question did not, although there were other provisions that did. In a particularly forceful dissent, the three judges led by Abella J. drew from a thorough analysis of Quebec jurisprudence and academic literature to lambast the majority for departing from Quebec case law and undermining legislative objectives. A strong dissent should methodically attack the weaknesses in the majority’s reasoning and cause the reader to seriously question whether the majority got it right. This is exactly what Abella J.’s hard-hitting dissent in Wal-Mart does.

(Tie) Binnie J. in R. v. Suberu – Citizen: “I guess I can go.” Police officer: “Wait a minute. I need to talk to you before you go anywhere.” To most lay people, it would probably seem far-fetched that any ordinary citizen would actually feel free to walk away after this simple interaction. Yet the majority in Suberu ruled this was not a psychological detention. The legal profession is notoriously segregated and isolated from the rest of Canadian society, and Suberu is one of those decisions that leave readers wondering whether SCC judges, after so many years on the bench, are still in touch with the realities faced by ordinary Canadians. However, this difficulty with the majority’s reasoning did not escape all the judges. In his characteristically understated yet persuasive manner, Binnie J. (joined by Fish J.) pointed out how most citizens would likely interpret this interaction: “Constable Roughley was replying to Mr. Suberu, who had essentially said, “Can I leave?”, by essentially  saying, ‘No’.” In this respect, he failed to get the support of most of his colleagues – but he does get the Ozzy and, therefore, the last laugh.

Most Disappointing Refusal of Leave

Nominees:
Amnesty International Canada v. Canadian Forces, 2008 FCA 401
Boulter v. Nova Scotia Power Incorporated, 2009 NSCA 17
Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522

An awards post such as this one will necessarily be concerned primarily with singling out particular judges and/or judgments for praise. That said, no one wants to read a piece that is entirely laudatory and it’s important to mix in a little criticism. Hence this category, where we pick the judgment we would most have liked to have seen make it to the SCC.

And the Ozzy goes to…

(Tie) Amnesty International Canada v. Canadian Forces – Most members of the Canadian Forces would likely be stunned to learn that the Charter does not apply to their actions overseas. Yet this was the decision reached by the Federal Court of Appeal in the Amnesty International Canada case. The FCA, for its part, was merely dutifully applying the precedent set in R. v. Hape, where a 5-4 majority of the SCC, unprompted by any of the parties, reached the rather alarming finding that the Charter, with narrow exceptions, essentially has no extraterritorial effect. There, Binnie J. wrote a vigorous dissent in which he cautioned that making findings much broader and more sweeping than necessary to dispose of the case would foreclose argument in future matters of vital importance. To illustrate his point, he had cited this very litigation which was at the time pending before the Federal Court. LeBel J. for the majority retorted that “[w]e cannot always know what new issues might arise before the courts in the future, but we can trust that the law will grow and evolve as necessary and when necessary in response.” Now, with the denial of leave to appeal in Amnesty International Canada, it appears that Binnie J.’s premonitions have been borne out.

(Tie) Sagen v. VANOC – Sadly, despite the great efforts that have been made to eradicate the patriarchal institutions that have scourged human society for millennia, women across the globe continue to be subjected to brutal oppression. In Pakistan, a woman may be murdered by relatives for bringing dishonour upon her family by refusing an arranged marriage. In Iran, a woman may be sentenced to death for adultery after being raped. And in Canada, a woman with a particular talent for jumping really far in the air on a pair of skis may be precluded from competing with other women from around the world for a bunch of shiny baubles on strings.

Okay, so maybe the question of why the SCC did not want to hear a case about women ski-jumpers is one that really answers itself. Still, there were many other questions we were hoping to get answered. Like: does anyone actually watch ski-jumping? Why do they even have the male version of this obscure sport in the first place? And if you can do something that looks as cool as ski-jumping, who cares if you can do it further than anyone else in the world of the same gender?

Okay, so perhaps Sagen isn’t the most compelling case out there. But don’t blame us if we’ve caught the fever and would rather talk about the Olympics than pressing issues of national importance. We’re not the only ones – just ask Stephen Harper.

Judge of the Year

Nominees:
Abella J.
Binnie J.
McLachlin C.J.
Rothstein J.

Yikes – don’t want to be commenting too much on this one. I’ll just say loud and clear that, in my mind, all nine are Judge of the Year. Four judges got nominations here, and I’ll merely add a few words about those that did not. Cromwell J., the rookie, of course came in a little late in the game to be in the running, but he’s off to a strong start and looks to be a cornerstone of the Court for years to come. Deschamps and Fish JJ. each have concurring or dissenting opinions nominated in other categories. LeBel J., meanwhile, was entrusted with the delicate task of writing what was probably the Court’s most politically controversial decision of 2009, Nguyen v. Quebec (Education, Recreation and Sports). Finally, it is tough to explain the absence of criminal specialist Charron J. from the list of nominees, given the series of important judgments she wrote last year, including Grant which has taken just about every other award here.

And the Ozzy goes to…

Abella J. – Our current Chief Justice has been a master at building consensus and fostering coherent, unified statements of the law that eliminate all ambiguity. However, we at TheCourt.ca still strongly appreciate the value of a dissent. It is always refreshing to see a healthy diversity of opinion on the Court, and Abella J. contributed greatly to diversity of judicial opinion with a series of memorable and hard-hitting dissents, notably in Patrick, Hutterian Brethren, and Wal-Mart. This award recognizes that the dissenting judge is more than the judge who couldn’t convince the rest of her colleagues. In this case, she’s Judge of the Year.

Judgment of the Year

Nominees:
Grant v. Torstar Corp.
Alberta v. Hutterian Brethren of Wilson Colony
R. v. Grant
R. v. Suberu

Already the big winner this year has been R. v. Grant, with wins in two categories, as well as an award for Deschamps J.’s minority opinion in the Concurring Opinion category. Will Grant cap it all off with Judgment of the Year?

And the Ozzy goes to…

R. v. Grant – With Grant v. Torstar Corp. winning Civil Judgment honours, and with Abella J. winning Judge of the Year, Dissenting Opinion of the Year, and being on the coram that denied leave to appeal in Amnesty International Canada, the words Grant and Abella run through every Ozzy given out this year. Meanwhile, R. v. Grant is clearly the big winner, taking 4 of 8 awards. Is it truly an epic judgment on that scale? Or does this merely reflect some sort of criminal law bias among the staff? Let the heated debates by the water cooler begin.

Chief Justice McLachlin wrote the majority decision representing eight of the nine members in coram. Justice Abella wrote a brief concurring opinion while mostly agreeing with the majority’s reasoning. Regarding the current state of the law (the old law) McLachlin CJC noted as follows:

I conclude that the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law–in effect a regime of strict liability–is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. (at para.65)

Background
Grant v. Torstar Corp. involved a defamation suit filed by Peter Grant against the Toronto Star, arising out of a 23 June 2001 article regarding a proposed private golf course development on Grant’s estate. The article included interviews with various neighbours who were critical of the development and suspected that Grant was using his political influence to get his proposals passed. The key quotation at issue in the defamation suit was one neighbour’s comment that “Everyone thinks it’s a done deal because of Grant’s influence — but most of all his Mike Harris ties.” Before publishing the article, the reporter Bill Schiller attempted to verify the allegations including contacting Peter Grant who chose to provide no comment. After publication of the article on 23 June, Grant filed a defamation suit against Torstar Corp.

At trial, the plaintiffs argued that the article painted Mr. Grant in negative light and accused him of improperly using his political influence. The defendants attempted to raise a novel expanded qualified privilege defence based on the concept of responsible public interest journalism. The trial judge rejected this defence and the issue went to the jury on the question of the defence of truth or the defence of fair comment. The jury rejected both defences and awarded damages to the plaintiff totalling $1.475 million.

The Ontario Court of Appeal held that the trial judge erred in not leaving the defence of responsible journalism with the jury and ordered a new trial.

The New Defence
The Supreme Court of Canada agreed with the Court of Appeal, reaffirming the order for a new trial. The Supreme Court held that at the new trial, the judge should instruct the jury of three possible defences that arise on the facts of this case: (i) the defence of truth/justification, (ii) the defence of fair comment, and (iii) the (new) defence of responsible communication on matters of public interest.

At para.126, McLachlin CJC summarizes the new defence as follows:

A. [The judge must decide that] The publication is on a matter of public interest
and:
B. [The jury must decide that the publication was responsible. That the] publisher was diligent in trying to verify the allegation, having regard to:

1. the seriousness of the allegation;
2. the public importance of the matter;
3. the urgency of the matter;
4. the status and reliability of the source;
5. whether the plaintiff’s side of the story was sought and accurately reported;
6. whether the inclusion of the defamatory statement was justifiable;
7. whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
8. any other relevant circumstances.

Matters of Public Interest
The first prong of this two-step framework, determination of matters of public interest, is bound to undergo considerable development in later jurisprudence. Under this step, the judge must be satisfied that the publication is on a matter of public interest. There is no static or formulaic test to determine what is of public interest. The matter must be one encompassing more than “mere curiosity or prurient interest” with the public having a “genuine stake in knowing about the matter published” (at para.105).

The judge must first determine the subject matter of the publication in question. The judge should view the subject matter broadly, taking into consideration the publication as a whole (rather than focusing in on the impugned statement) (at para.109). It is not necessary that the plaintiff be a public or prominent figure, nor that the communication relate to government or political matters. Many matters “ranging from science and the arts to the environment, religion, and morality” and more broadly, the democratic interest in “wide-ranging public debate” could be considered a matter of public interest (at para.106).

If the publication, viewed as a whole and with its subject-matter defined broadly, raises to the level of being a matter of public interest (also defined broadly), the new defence is available. The judge must leave the defence with the jury for evaluation of the second step of the framework.

Scope
In discussing the nomenclature of the new defence, McLachlin CJC rejected the name “responsible journalism” defence because “the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists” (at para.96). Quoting Lord Hoffman, McLachlin CJC held that “the new defence is available to anyone who publishes material of public interest in any medium” (ibid.).

This indicates that as long as the speech or communication in question rises to the level of being of public interest (thereby fulfilling part one of the two-part framework), it would be covered by the responsible communication defence regardless of the type, form, or mode the communication takes. As noted above, the public interest and the subject matter of the communication are also to be viewed broadly by the judge in applying step one of the framework, thereby giving an almost blanket scope to the defence.

The Role of Juries
In a short concurring opinion, Justice Abella parts with the majority’s reasoning on one point: Agreeing with the new responsible communication defence and the two-part framework set out by the majority, Justice Abella asserts that the second step should not be for the jury to decide. Determining whether “responsible” communication is established entails a complex legal analysis requiring “balancing freedom of expression, freedom of the press, the protection of reputation, privacy concerns, and the public interest” (at para.143). Thus both steps of the defence are properly decided by the judge rather than the jury.

Justice Abella goes on to recognize that her formulation contradicts a historical context under which juries ought to have a primary and preeminent role in defamation cases. However, the “highly complex legal determination” and “protecting the integrity of the interests and values at stake [...] takes [the defence] beyond the jury’s jurisdiction and squarely into judicial territory.” (at para.145)

What Is Not Covered by the New Defence?
One can envision problems that could arise under the current formulation of the test and will ultimately have to be addressed and refined by later jurisprudence. The extremely broad (almost blanket) scope of the first step of the framework (the public interest), coupled with the primary role of the jury under the second step, is problematic. McLachlin CJC cautions against too broad an approach under step one, recognizing that such an approach “might render the test a mere rubber stamp and bring unworthy material within the protection of the defence” (para.107).

However, the formulation itself, and the guidance provided in the reasons, does not place sufficient limits on defining both the subject matter of the communication and of what constitutes the public interest to ward off such a predicament. On the second step, the problems noted by Justice Abella of leaving the questions wholly with the jury are noteworthy. It is likely that the broadness of the first step will further highlight these problems associated with the second step in future cases.

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.

Introduction

This is the second installment of a three-part article on the Supreme Court’s current bout of spring cleaning in the law of defamation.

The first installment considered the various formulations of qualified privilege in the common law of defamation, and showed an important reason why the Hoffman/Hale formulation in the English case of Jameel, as applied by the Ontario Court of Appeal in the Cusson and Grant cases, fail to provide adequate protection of reputation in modern Canadian society.

This installment will consider whether any of those various formulations could withstand scrutiny under the Canadian Charter of Rights and Freedoms.

A constitutional question

In the Cusson and Grant cases, the Chief Justice took the unusual step of stating constitutional questions – even though no legislation or State action was involved. On that invitation, it is therefore appropriate to consider the balance between freedom of the press and reputation through the lens of constitutionality.

Charter-protected rights and interests

Freedom of expression

The importance of freedom of expression, particularly on matters of public interest, is sufficiently well-known not to need repeating here, (see for example Harper v. Canada – except for this.

While freedom of expression enjoyed by the media has traditionally been considered no greater than that of other members of Canadian society, (WIC Radio Ltd. v. Simpson), specific Charter protection of freedom of the press must surely contemplate a separate and different standard based on media-specific considerations.

For example, if freedom of the press appropriately includes a privilege to publish to the world, it should at the same time include a higher standard of responsibility as to what is being published. The reason for both the increased latitude and the higher standard is that freedom of the press, responsibly exercised, is a wellspring for the freedom of expression exercised by everyone else.

The Reputation Interest

The Supreme Court of Canada has recognized that reputation has implicit protection under the Charter. In Hill v. Scientology, the court expounded upon its importance, concluding as follows, (see also Reynolds v. Times Newspapers Limited and Others):

Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.

Further, reputation is intimately related to the right to privacy which has been accorded constitutional protection. …. The publication of defamatory comments constitutes an invasion of the individual’s personal privacy and is an affront to the person’s dignity. The protection of a person’s reputation is indeed worthy of protection in our democratic society and must be carefully balanced against the equally important right of freedom of expression.

In addition, Canadian courts have long recognized the importance of enabling individuals to take part in public life free of the risk of defamatory attacks on their personal reputations. (Snyder v Montreal Gazette (1978), 87 D.L.R. (3d) 5, rev’d. 5 D.L.R. (4th) 206, rev’d. [1988] 1 S.C.R. 494).

That includes not only running for political office, or serving as a government official, but also many other ways of taking part in the public life of our communities.

In cases like Hill and Vogel v Canadian Broadcasting Corp., (1982), 35 B.C.L.R. 7 (S.C.), reputation comes under attack not only in personal terms (dignity and privacy) but also as an incident of one’s public participation. The facts in Hill are well-known. The facts and findings in Vogel were as follows.

In March, 1980, the CBC ran a series of television reports alleging that then-British Columbia Deputy Attorney General Dick Vogel had sought to interfere with the exercise of prosecutorial discretion in a number of cases involving friends of his.

In finding liability, the court noted that, in addition to attacking Mr. Vogel personally, the defamation had created an apprehension about the credibility of the criminal justice system and the standard of performance of those who are charged with its administration. On its release the defamation was regarded “as a most serious indictment of the plaintiff and of the ministry”, with implications of a cover-up by the ministry. It caused enough embarrassment to shake the foundations of government.

The court further noted that, according to the prevailing view, the defamation of Vogel had “destroyed his usefulness” to government, whether or not he had done anything wrong. Indeed, even after the highest award of damages in Canada to that date, Mr. Vogel’s effectiveness as Deputy Attorney General was apparently still impaired: he left the position a few months later.

It is in the larger public interest to enable individuals like Casey Hill and Dick Vogel to take part in public life. Indeed, it is not so far-fetched to characterize Mr. Grant’s case as one in which his involvement in public life through political donations was the genesis of the defamatory imputation against him. Risk of an unwarranted attack on one’s reputation may chill such persons’ public participation.

Public participation is both a product and an aspect of free expression. Accordingly, defamatory attacks on persons like Hill and Vogel and Grant not only infringe Charter-protected reputation per se. They also constitute an infringement of their Charter-protected freedom of expression.

Charter compliance

In Canada, where two or more Charter-protected interests come into competition, “the … task is not to prefer one or the other by ordering a ‘hierarchy’ of rights”. (WIC Radio Ltd. at para. 2).

One finds an important point of departure, in that regard, between the law in Canada and the common law of England in the closing words of Lord Nicholls’s judgment in Reynolds:

Above all, the court should have particular regard to the importance of freedom of expression. …. The court should be slow to conclude that a publication was not in the public interest and therefore the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication. (Reynolds, at 205)

Lord Nicholls’s approach would, in principle, allow the expression interest to trump the proper value of reputation. That is not the mandated approach in Canada. The Charter requires a balance to be achieved that fully respects the importance of both interests.

So, in the law of defamation, even if the quality and subject matter of news material provide a basis to make its publication privileged, the constitutionality of any defence of media privilege must also include considerations of rationality and proportionality vis a vis the reputation interests. Those are the sort of considerations which would arise under section 1 of the Charter – when considering whether an infringing law is demonstrably justified in a free and democratic society. (See R. v. Oakes; Dagenais v. Canadian Broadcasting Corp.,)

Charter section 1

What is the infringing law?

On any section 1 analysis, the first task is to identify what aspects of the impugned law potentially infringe a Charter-protected right or interest involved in the case.

In theory, any law which inhibits media publication in any way may be said to infringe Charter-protected freedom of the press. Within the common law of defamation, that would include anything short of an absolute privilege to publish. In particular, it would include any qualifications on media privilege – such as liability for publication with knowing or reckless falsity, or to the world, or with “improper purpose” malice. Indeed, even the requirements of “responsible journalism” may be said to inhibit freedom of the press – although irresponsible journalism may be the equivalent, for that purpose, of shouting “fire” in a crowded theatre.

Similarly, any law which allows publication of any defamatory statements may be said to infringe Charter-protected reputation interests. Within the common law of defamation, that would include any defence other than justification. In particular, it would include any publication with knowing or reckless falsity, or to persons who had no personal connection or need to receive the information, or publication with intent to harm, or irresponsibly.

There is notable symmetry in the aspects of the existing law of defamation which may be said to infringe one or the other of the competing Charter-protected rights and interests engaged here.

Pressing and substantial objective

Having identified the infringing law, the next step in the justification analysis under section 1 is to consider whether that law is in pursuit of pressing and substantial objectives.

In doing so, the courts appropriately make reference to the social context. Context can be established by reference to the nature of the harm sought to be addressed by the law; the vulnerability of the person or group protected by the law; their subjective fears and apprehension of harm; and the nature of the activity infringed by the law. In that regard, the courts may, in the absence of scientific evidence, rely on logic and reason. (Thomson newspapers ltd. v. Canada (Director of investigation and research, restrictive trade practices commission),)

In considering context, it does not require anything beyond logic and reason to conclude that a law protecting both freedom of the press and reputation is an objective sufficiently pressing and substantial in our free and democratic society as to justify limiting the competing Charter right or interest.

Rational connection

Justification under section 1 also requires a rational connection between the laws and the objectives. There is clearly a rational connection between the existence of some sort of media privilege and the dual objectives of the common law of defamation. Some form of privilege is required to protect freedom of the press. Some qualifications on that privilege are required to protect reputation. The question is what.

Minimal impairment

Then, a section 1 analysis turns to consider minimal impairment of the right(s) or interest(s) involved. The governing principle is that the law must be carefully tailored so that rights are impaired no more than necessary. The standard is not perfection but the infringing must fall “within a range of reasonable alternatives”.

(i) Freedom of the press

In general, the courts in Canada and elsewhere have for some time evidently considered that traditional qualified privilege fails to meet what, under a Charter analysis, would be termed minimal impairment of freedom of the press. In remedying that defect, some jurisdictions, notably the United States, (New York Times Co. v. Sullivan), have gone further than others. Grenier and other more recent Canadian cases were attempts to achieve minimal impairment within the traditional defence – to find a middle ground. So, on one reading, (i.e. Jameel per Lords Bingham and Hope), was Reynolds.

At trial in Cusson, counsel for the Ottawa Citizen argued for the version of qualified privilege set out in the Grenier line of cases. However, the trial judge found that that test required “a compelling, moral or social duty to publish” and could not say “with sufficient confidence that [the stories] were in the public interest to the extent that they needed to be heard [by the public at large]”. The newspaper argued that inserting “compelling” set the test too high, and that a moral or social duty to publish had been established. The Court of Appeal did not deal with that issue at all. Rather, it adopted the more “media-friendly” Hoffman/Hale formulation from Jameel as meeting the requirements of Charter compliance.

At trial in Grant, the defence argued both traditional qualified privilege and the Reynolds defence of “responsible journalism”. The trial judge conflated the two and found the defence did not apply. The judge found that the subject-matter was a local issue and of little concern to those outside the area. That, combined with the way the judge applied the Reynolds factors, led to a finding that neither form of the defence could apply. The Court of Appeal found the trial judge erred, including by defining media privilege based on publication to those who have an interest in receiving information on an issue (i.e. the traditional duty/interest paradigm). (See Grant at para. 63)

So, in Cusson, we have an example of the problem, in any updated version of the traditional defence of qualified privilege, with requiring that there be a duty to publish; and in Grant, of the problem with requiring a corresponding interest in receiving the published information.

By adopting the Hoffman/Hale formulation in those two cases, the Ontario Court of Appeal must be taken to have concluded that focusing on the occasion of publication and requiring reciprocal duty and interest is not within the range of reasonable alternatives sufficient to protect freedom of the press, including for purposes of a minimal impairment analysis.

(ii) Reputation

The ten factors of the “responsible journalism” test articulated in Reynolds are clearly directed toward appropriate protection of reputation. So is Lord Hoffman’s requirement, in Jameel, that the more serious the defamation, the more central the person and his or her reputation must be to the story. The question is whether those safeguards are sufficient to achieve minimal impairment for Charter purposes.

The defendants in Cusson did not lead evidence with respect to “responsible journalism”. However, the defendants in Grant did rely on that defence. The trial judge considered some of the ten Reynolds factors but apparently did so in a selective manner, in favour of the plaintiff. The Court of Appeal found that, on the contrary, “[i]t was incumbent on the trial judge to apply the relevant factors in a way that sought to favour publication if the article was researched and published responsibly” (Grant, at para. 67, emphasis added).

In Grant, the trial judge’s application of the Reynolds factors may have been an example of the ‘hurdles’ approach criticized by the House of Lords in Jameel. However, the Ontario Court of Appeal’s ‘box ticking’ approach, applied in favour of publication, is properly subject to the same general criticism. More important, ‘box ticking’ is hardly an effective way to achieve a major goal of “responsible journalism” – namely, protection of reputation, including for Charter purposes of minimal impairment.

Conclusion

The Grenier and Reynolds approaches rely on shifting of onus, back and forth, ending in an opportunity for the plaintiff to prove malice. In doing so, the law is sensitive to the deleterious effect of infringement of reputation in any particular case. However, the uncertainty flowing from the fiction of a reciprocal duty and interest can in some cases create significant impairment of freedom of the press.

Reynolds is less deleterious, in that duty-interest touchstone is supplemented and informed by Lord Nicholls’s statements of principle and the non-exhaustive list of ten factors. However, as we have seen, points of principle can be overlooked or misinterpreted, and the ten factors can be applied as hurdles, and thus become barriers to free expression.

Hoffman/Hale, on the other hand, does away with the potential deleterious effect of the duty-interest paradigm. However, by presuming an occasion of privilege for subject matter in the public interest, Hoffman/Hale takes away the courts’ ability to protect reputation on occasions where, despite the importance of the subject matter, the circumstances of publication make it contrary to the larger public interest to publish.

In the result, neither Grenier, nor Reynolds, nor Hoffman/Hale likely achieves minimal impairment of both expression and reputation, as required under section 1 of the Canadian Charter of Rights and Freedoms. The answer to the Chief Justice’s constitutional questions is probably No.

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.

FACTS

In June 2006, seventeen individuals – twelve adults and five young persons – were arrested for terrorism-related offences. There was extensive media coverage of the arrests and of allegations that the accused had bomb-making materials and were plotting to blow up various public buildings such as the Parliament buildings, that they had attended terrorist training camps, and that they were inspired by al-Qaeda and had links with terrorist organizations in the United States and Europe.

On June 12, 2006, at the request of one of the accused, Justice of the Peace Currie imposed a ban on the publication of proceedings at the bail hearings pursuant to s. 517. Although some of the accused did not want a publication ban, it was ruled that since they were jointly charged, the ban applied to the proceedings in relation to all of them.

Media organizations – Toronto Star Newspapers Ltd., The Canadian Broadcasting Corporation, The Associated Press and CTV Television Inc. – subsequently sought an order quashing the publication bans in relation to those accused who did not seek the bans, and a declaration that the mandatory publication ban violates s. 2(b) of the Charter and should be declared of no force and effect. The application judge followed Re Global Communications Ltd and Attorney General for Canada, [1984] O.J. No. 3066, finding that when one of several jointly charged accused persons seeks a mandatory order under s. 517 it applies to the bail hearings of all the accused, and upheld the validity of the impugned provision.

ONTARIO COURT OF APPEAL

A five-judge panel presided at the hearing at the Court of Appeal, as the appellant media organizations requested the court to overrule its prior decision in Re Global Communications Ltd. and Attorney General for Canada. The Ontario Court of Appeal allowed the appeal, finding that Re Global Communications “does not reflect the values of the Charter as they are now understood, and the decision is inconsistent with later decisions of the Supreme Court of Canada, especially Dagenais.” (para. 117) The court agreed with the application judge that a publication ban imposed under s. 517 must apply to all jointly charged accused even where only one accused asks for it. What divided the court, however, was the scope of the unconstitutionality of s. 517 and the appropriate remedy.

However, there was no debate that the s. 517 infringed s. 2(b) of the Charter, and the court was unanimous in finding that it was not saved by s. 1. The court accepted the Crown’s submissions that the objectives of the legislation were not only to protect the accused’s right to a fair trial by an impartial jury but also to ensure expeditious show cause hearings. To require the justice to give notice to the media and hold a hearing to consider whether a discretionary ban is appropriate whenever an accused requests a publication ban under s. 517 could result in unreasonable delay in the bail proceedings.

The majority of the Court of Appeal, per Feldman J.A., found that the s. 517, to the extent that it mandated a publication ban on bail proceedings where a future jury trial was not possible, failed the Oakes test; however, once the mandatory ban was limited to situations where a future jury trial was possible, the provision could be saved under s. 1 of the Charter. Thus, the majority added some words in order to read down the section so that it would only apply where the accused could be tried by a jury:

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 where and for so long as the charge(s) may be tried by a jury, … [emphasis in original]

The dissent, per Rosenberg J.A., on the other hand, was of the opinion that the impact of pre-trial publicity was merely “speculative” and that other measures short of a contemporaneous ban on publication of the entire proceedings would be sufficient to protect the fair trial rights of the accused. Rather than imposing a mandatory publication ban in any bail hearing, Rosenberg J.A. would have declared the words “and shall on application by the accused” in s. 517 to be of no force and effect, thereby leaving only the discretionary ban. Rosenberg J.A. also would have suspended the declaration of invalidity for 12 months to give Parliament the opportunity to consider whether it would be necessary to amend s. 517 so that a justice of the peace or judge can impose a limited publication ban.

At bottom, the difference between the majority and dissenting opinion is informed by the different perspectives of each judge. While Rosenberg J.A. is concerned with theory, Feldman J.A.`s opinion discloses a greater sensitivity to the practical concerns relating to the operation of publication bans in the electronic age.

For example, Justice Feldman rejected the reasoning of Justice Rosenberg that in the period of time between the bail hearing and the trial — which may be months or longer — any prejudicial information which potential jurors may have heard or read through the media would have faded in their memory. As she noted at para. 177: “[o]nce something has been published, any juror need only “Google” the accused on the Internet to retrieve and review the entire story. She also observed that a change of venue may no longer be an effective remedy to eliminate the risk to a fair trial from publication of prejudicial information from the bail hearing “because the Internet preserves pre-trial publicity and search engines like Google make it easy for any person to access this information, regardless of location or time.” (para. 222)

Another practical matter considered by the majority is the issue of cost to the accused, especially where the accused is dependent on legal aid:

[230] At this point in time, it is unclear how legal aid will approach and address the problem that counsel will require funding to seek discretionary publication bans or tailored remedial orders such as change of venue, as well as to conduct trials out of town if changes of venue are ordered. We know that legal aid funds are limited and are being stretched to accommodate increasing needs. This is also a practical factor when we are discussing the salutary versus deleterious effects of a current measure that is simply applied and cost-effective.

Feldman J. also recognized how unreasonable it would be for bail courts to hold extended hearings for discretionary publication bans and the very possible likely result of such were to occur:

[198] In Ontario, the current problem with overburdened bail courts was recently highlighted by the decision of De Filippis J. in R. v. Jevons [2008] O.J. No. 4397 (Ont. C.J.), where he stayed criminal charges on the date fixed for trial because of the delay in the accused’s bail proceeding. In his reasons, De Filippis J. gave a detailed account of the accused’s 8-day ordeal waiting for a court to have the time to hear his bail application. In his affidavit on the stay motion, the accused testified that when the Crown finally agreed to consent to bail, he was “prepared to agree to just about anything to secure…release” and he had “serious doubts” that he would ever obtain a bail hearing (para. 13).

[199] De Filippis J. also described the backlog plaguing the bail courts in the Durham region and the fact that, for the week in question, the court was unable to deal with the majority of contested bail applications and only had time for consent bails and adjournments. De Filippis J. concluded that the accused was the victim of systemic delay in the bail system in Durham region and that his Charter right to reasonable bail under s. 11(e) was infringed, as was his liberty interest under s. 7.

[200] In summary, in order to be of practical value to an accused seeking to protect his or her fair trial right through a publication ban on the bail proceedings, the ban must be mandatory and not discretionary. The existing procedure for seeking a discretionary ban under Dagenais puts a heavy and difficult onus on the accused and, if implemented following Rosenberg J.A.’s analysis, appears to have little likelihood of success. In fact, counsel for the appellants acknowledged that very few discretionary bans would likely be granted and eventually accused persons seeking bail would not ask for publication bans, thereby solving any delay and cost problems associated with seeking the discretionary order.

[201] The consequence could be that accused persons could be forced to choose between compromising their fair trial rights by proceeding with their bail application without a publication ban, or foregoing the right to seek bail in order to ensure that prejudicial information disclosed in the course of the bail hearing is not published.

Indeed, anyone who has visited a courthouse in downtown Toronto would see that, in such a hectic environment, it would be extremely difficult for an accused to make any submissions at length and for the presiding judge to carefully balance all relevant factors to decide whether a publication ban ought to be imposed.

CONCLUSION

The majority decision is not without its shortcomings. According to Feldman J.A., the ban under s. 517 “is time limited and does not preclude the public and the press from attending the hearing . . . [T]he temporary nature of the ban ensures that the proceedings are not in any way being hidden from the public or that they will not be subject to public scrutiny.” (para. 232) However, Justice Rosenberg’s observation that s. 517 is “a dramatic curb on freedom of expression” is certainly worth noting:

[33] While s. 517 does not prevent anyone from attending court to witness the operation of the bail system first hand, the section effectively prevents access to the courts for most of the population. As has been repeatedly said, very few people have the time to attend court proceedings; everyone else must depend upon the media for information about the court system. Section 517 thus interferes with the effective operation of the principle of open courts.

However, the biggest issue with this judgment is that the Ontario Court of Appeal has changed the law with regard to publication bans in bail proceedings. Both the majority and the dissent invited Parliament to consider amending s. 517 “to achieve the constitutional objectives of the legislation.” (para. 253) However, the Ontario Court of Appeal`s decision seems to run afoul of a recent decision of the Alberta Court of Appeal with on a similar issue, R. v. White, 2008 ABCA 294. Therefore, it seems reasonable to suspect that Parliament will stay out of the fray until the Supreme Court of Canada weighs in on one of the decisions.