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The Supreme Court of Canada and Free Expression 2008-13: Tidal Wave or Tidal Wash?

By Brian Macleod Rogers*

Introduction

Since 2008, the Supreme Court of Canada has rendered some 15 decisions on cases involving media law and free expression.  A paper four years ago examined the pending “tidal wave” of appeals to the Supreme Court of Canada and raised the question, “Will a new legal landscape emerge?”[1]

We now know the answer. There has been no seismic shift, no dramatic new landscape.  The effects of the “tidal wave” have been more akin to those of some North Atlantic breakers.  However, there can be no question that the contours are more clearly defined, and in some areas, there has been real progress in advancing free expression interests.

In particular, Canada’s common law of libel has caught up with the rest of the world, and even surpassed some of it, in protecting free speech concerns. However, this has occurred in a manner that has left some academic critics wondering whether the constitutional protection for “freedom of expression, including freedom of the press and other media of communication” under s. 2(b) of the Canadian Charter of Rights and Freedoms has meant any real difference.  After all, other common law jurisdictions have managed to arrive at much the same place without it.[2] There can be no surprise that advances in protecting free expression have been in areas where matters of public interest are engaged.  The Court has firmly grasped that an informed populace is needed in a democratic society; this has underlain the Court’s approach to openness in judicial proceedings since the Charter’s earliest days.  Those in public life, no matter how sensitive, will have to learn to accept that “public controversy can be a rough trade.”

However, the jurisprudence makes clear the Court’s deep-seated reluctance to turn s. 2(b) of the Charter into a true constitutional weapon to advance free expression.  Instead, it has muted the provision’s effect by insisting that traditional common law maintain its primary role.  In the end, the Court uses “Charter values” to inform their interpretation and application of the common law, with a generous nod to free expression concerns.

What follows is no more than a brief survey of developments in case law over the past five years. At best, it offers a starting point for examining the wide-ranging issues addressed by the Supreme Court of Canada and the senior appellate courts over the past five years.

1.         Libel

Perhaps the most important advances by the Supreme Court of Canada (the “SCC”) have been in libel law, reshaping the balance between protection of reputation and free expression – at least in speech that engages matters of public interest.  Both the reinvigorated defence of fair comment and the brand new defence of “public interest responsible communication” are focused on speech and publications that play an important role in informed debate of public issues.

These advances, however, have not changed the basic structure of the tort. It remains one of strict liability, with its presumption that defamatory publications are false and damaging, and the onus remains on the defendants to establish a valid defence.  What’s changed is that, where the subject-matter raises public interest concerns, the defendants’ odds have been dramatically improved.  The Charter value of free expression has been relied on to interpret and apply the common law in order to better protect informed public discussion. This is in line with the “middle road” between protecting reputation and permitting free expression that has been adopted by other common law courts.

Fair Comment

The first step occurred in WIC Radio Ltd. v. Simpson, 2008 SCC 41, where a “‘shock jock’ radio talk show host” compared a family values activist to Adolf Hitler and Governor George Wallace, and the Court held that: “his expression of opinion, however exaggerated, was protected by the law.  We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones.”  When it came to the field of public debate, the existing law failed to strike the right balance between reputation and free expression:

When controversies erupt, statements of claim often follow as night follows day, not only in the 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.  (WIC Radio, Binnie J., para. 4)

The SCC’s test simply reflected traditional common law, requiring the defamatory statement to be a statement of opinion, not fact, on a matter of public interest and to be based on true facts. An “objective test” was applied as to whether any person could honestly express the opinion on the proven facts.  As long as there is some nexus or relationship between the underlying facts and the comment, there should be no attempt to assess whether the opinion expressed is “reasonable or proportionate”, much less “fair-minded,” as recent Canadian case law had suggested.  Similarly, while the plaintiff can prove malice – some indirect or improper motive – to defeat the defence, it must be the dominant purpose.  There is much in the Court’s language on each element of the test to encourage robust and wide-open debate.

However, other difficulties remain.  The BC Court of Appeal has shown that the requirement that “the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made” may prove difficult.  In two cases involving a controversial advocate against salmon farming, a central issue was whether important facts had been properly referenced or deliberately omitted so as to deprive him of the defence.  Creative Salmon Co. Ltd. v. Staniford, 2009 BCCA 61; Mainstream Canada v. Staniford, 2013 BCCA 341 (leave to appeal to SCC being sought).  If the SCC now steps in to resolve the issue, the decision of the UK Supreme Court in Spiller v. Joseph, [2010] UKSC 53 (not referenced in the recent BCCA decision) may help the Court recognize that, when it comes to opinions, it is pointless to insist that sufficient facts be referred to in the article to enable readers to decide whether or not they agree.  After all, it is only an opinion, and these days, as long as its subject-matter is evident, any reader wishing to explore the issue will have little difficulty tracking down facts and many more opinions. The absence of supporting facts may depreciate the force and value of the opinion, but this should not alone cause loss of the defence.

Responsible Communication

The next and more dramatic step by the SCC involved protecting defamatory statements of fact, even if they cannot be proven true. Grant v. Torstar, 2009 SCC 61. The SCC built on the Reynolds/Jameel defence developed by the House of Lords, rejecting the narrower qualified privilege defences adopted in Australia and New Zealand that are more focused on political affairs. Reynolds v. Times Newspapers, [1999] H.L.J. No. 45; Jameel v. Wall Street Journal (Europe) Sprl., [2006] UKHL 44; Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96 (H.C.); Lange v. Atkinson, [1998] 3 N.Z.L.R. 424 (C.A.); varied (1999) J.C.J. No. 46; [2000] NZCA 95.

The Court emphasized that its “public interest responsible communication” defence is a “new defence,” quite distinct from the traditional common law defence of qualified privilege, which has been left unaffected.  The responsible communication defence protects defamatory factual statements (as well as ones of opinion) which turn out to be false or simply cannot be proven true, as long as they concern matters of public interest and sufficient care has been taken to ensure their reliability.  In essence, it permits publication of information that the public ought to know, in a timely fashion, although it may later turn out not to be true.  It is available not just to journalists but to anyone who can meet its requirements, including bloggers and others on online media, hence the defence’s name.  The Court recognized that “productive debate is dependent on the free flow of information.”

“While the law must protect reputation, the level of protection currently afforded 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.  But such communications advance both free expression rationales mentioned above – democratic discourse and truth-finding – and therefore require some protection within the law of defamation.  When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”  (Grant, pre McLachlin C.J.C., para. 65)

While a trial judge is to decide whether the publication is on a matter of public interest – which is to be given a very broad scope – the jury (if there is one) has to determine whether the publication was “responsibly made” and the defendants were sufficiently “diligent in trying to verify the allegation.”  The Court set out eight “relevant factors” intended to be “non-exhaustive but illustrative guides”:

1.      The seriousness of the allegation;

2.      The public importance of the matter;

3.      The urgency of the matter;

4.      The status and the 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.  (Grant, para. 126)

The “reportage” element (no. 7) creates, in effect, a distinct defence similar to that recognized in England (Roberts v. Gable, [2007] EWCA Civ. 721). It requires that statements be attributed and that the report set out both sides and the context, while indicating, expressly or implicitly, that the truth has not been verified.  It provides a means to describe a controversy without attracting liability.

Under the new defence, all potential meanings should be considered by the jury in assessing whether the communication was “responsible,” with the defendant’s version taken into account in assessing the adequacy of efforts made to verify it.  No separate inquiry into malice is required since it is subsumed by the other factors.

To date, there have been only a few cases going to trial which focused on the new defence.  It has proven successful in some (Shavluk v. Green Party of Canada
, 2010 BCSC 804, aff’d, 2011 BCCA 286, political party press release; Vellacott v. Saskatoon Starphoenix Group Inc., 2012 SKQB 359, criticism of local M.P. in newspaper), but not in others (Hansen v. Harder, 2010 BCCA 482, student newspaper failed to meet the required standard of diligence in verifying facts and getting the plaintiff’s side of the story; James v. Black Press Group Ltd. 2012 BCSC 1969, newspaper published the wrong photo in connection with conviction of a sexual offence, and the seriousness of the allegation required greater efforts to get it right; the photo was of the son of the man who was convicted).  However, there can be no doubt it has placed a significant hurdle in the way of the plaintiffs wishing to capitalize on the media’s mistakes or its difficulties in proving truth, and plaintiff counsel  say it has helped in reducing the number of libel claims.

Hyperlinks

In a case involving online defamation, the SCC held that a website publisher is not liable for a hyperlinked article, even if notice of the alleged defamation in that article had been given.  Crookes v. Newton, 2011 SCC 47.  Unless there has been actual repetition of the defamatory content, hyperlinks should be regarded as akin to footnotes, facilitating the reference to a source without exerting any control over it.  The plaintiff can still pursue the actual originating publisher for redress.  Therefore, “such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.”

In effect, the online publisher does not “publish” the hyperlinked article: “Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.  Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats a defamatory content, should that content be considered to be “published” by the hyperlinker.” (per Abella J., para. 42) In a separate concurring judgment, the Chief Justice and Justice Fish would lower the bar for a finding of publication: “in our view, a hyperlink would constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” (per McLachlin C.J. and Fish J., para. 50) The majority (six of nine justices) viewed its approach to this issue as essential in the digital age:

“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.”  (Crookes, per Abella J., para. 36)

Single Publication Rule

One issue that has not yet reached the SCC concerns the “single publication rule” that has been accepted in the United States but not by other common law courts (eg. Berezovsky v. Michaels, [2000] 2 ALL E.R. 986 (H.L.); Dow Jones and Co. Inc. v. Gutnick, [2002] H.C.A. 56).  However, just this year the United Kingdom adopted a version of it through legislative amendment (Defamation Act 2013 (UK 2013, c. 26, s. 8).  No mention was made of this fact in an Ontario Court of Appeal decision on this point released in June 2013; the case was argued before the UK adopted the new law.  Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405.

This case joins an earlier decision of the BC Court of Appeal in rejecting the single publication rule and upholding the traditional approach:  “Every republication of a libel is a new libel.”  Carter v. B.C. Federation of Foster Parents Association, 2005 BCCA 398.  The Ontario Court specifically found that it would be unfair to apply the rule “across different mediums of communication” “that are intended for different groups or that may reach different audiences.”  “If the publication reaches a new group, the repetition justifies a new cause of action”, citing the Restatement of the Law, Second: Torts.  The Court emphasized that the Internet has tremendous power to harm reputation and may well motivate a plaintiff to sue whereas a limited circulation magazine might not, citing an earlier case: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.) (In turn, at para. 32, it quoted from an academic paper: “The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that ‘the truth rarely catches up with a lie.’”)  However, the Court left open the issue as to whether the notice and limitation periods under Ontario libel legislation could bar the plaintiff’s action in the circumstances.  These periods start running when the plaintiff has knowledge of the alleged libel, rather than the date of publication. (Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 5 and 6).

Jurisdiction and Forum

One procedural area that the SCC has addressed, concerns challenges of jurisdiction and forum for libel actions in Canadian courts involving foreign defendants.  The Court clarified its “real and substantial connection” test by adopting four “presumptive connecting factors” giving rise to jurisdiction.  One such factor is if “the tort was committed in the province,” even when the defendant has no connection there.  This presumption would appear difficult to rebut; however, the Court left open the door for “a case involving a multi-jurisdictional tort where only a relatively minor element of the tort has occurred in the province.” Club Resorts Ltd. v. Van Breda, 2012 SCC 17.

The two libel cases considered by the Court at the same time did not raise this issue.  Editions Ecosociete Inc. v. Banro Corp., 2012 SCC 18 (French-language book published in Quebec, but a small number of copies distributed in Ontario where the plaintiff mining company sued and had its corporate offices); Breeden v. Black, 2012 SCC 19 (international businessman, Lord Conrad Black, suing in Ontario over a report released online in the US about his alleged misconduct operating a US public company that was also subject to SEC and criminal proceedings in the US; the report’s findings were covered by media in Ontario, where the plaintiff had lived and still maintained his original family home).  Indeed, these cases made it clear that it doesn’t take much to prove the tort of libel has been committed in a jurisdiction:

“The defamation law of Canada has not adopted the substantial publication standard.  In Canada, the evidentiary standard for proving publication remains the traditional common law standard, according to which a single instance of publication is sufficient for the tort to crystallize. … It is well settled in Canadian law that the tort of defamation occurs upon publication to a third party – that is, when the allegedly defamatory material is read or downloaded by someone other than the plaintiff or the publisher.”  (Banro, per Lebel J., paras. 55 and 57.)

Jurisdiction may be difficult to dispute, but the question of forum can provide greater ambit.  While requiring a defendant to show that another jurisdiction is “clearly more appropriate” – a very high standard - the Court made it clear that that the law of the forum should not necessarily apply.  The factors for determining forum include the usual practical points about location of parties, witnesses and evidence, as well as avoiding multiplicity of proceedings or conflicting decisions in different courts and questioning how an eventual judgment might be enforced.  While the applicable law is also a factor, the Court pointed out that the governing law may well not be the domestic law of the forum: “If parties plead the foreign law, the court may well need to consider the issue and determine whether it should apply that law” and urged trial courts to “refrain from leaning too instinctively in favour of its own jurisdiction.  (Van Breda, per Lebel J., para. 111)

The Court went on to point out that “there would be little strategic advantage to forum shopping if the conflicts rules were to require application of the same law regardless where the matter was tried.”  (Banro, para. 49)  Noting that “the tort of libel should be held to take place where its effects are felt” since “the harm occasioned by the publication of a defamatory statement is not the publication itself, but rather injury to the plaintiff’s reputation” (Banro, paras. 50-1, 57), the Court suggested that the governing law perhaps should be the one existing where the most substantial damage occurred to the plaintiff, wherever the lawsuit might take place.  As a result, for example, a plaintiff with a substantial US presence and reputation but choosing to bring an action in Canada over publications primarily focused in the US might still find itself facing US libel law, on the basis that that is where the most substantial harm to its reputation occurred.  Unfortunately, the SCC found it did not have to determine this issue on the facts in the cases before it, leaving it to some future case.

Group Libel

In a Quebec case involving group defamation, the SCC drew out distinctions between Quebec’s civil law and the common law.  Bou Malhab v. Diffusion Metro Media CMR Inc., 2011 SCC 9.  In particular, the Court discussed the difference between an “ordinary person” (civil law) and a “reasonable person” (common law) standards under libel law:  “Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamental rights, care must be taken not to idealize the ordinary person and consider him or her to be impervious to all negligent, racist or discriminatory comments.”  (Deschamps J., para. 41)  The case involved some racist, “extreme, irrational and sensationalist generalizations” about Arab and Haitian taxi drivers in Montreal.  Under civil law, damage is not presumed and must be proven; each individual must show damage to his or her reputation.  The Court determined that “an ordinary person, while sensitive to such excessive remarks, would not … have formed a less favourable opinion of each Arab or Haitian taxi driver, considered individually.” (Deschamps J., para. 92)  Consequently, the $220,000 damage award made at trial was set aside.  Quebec may be the only jurisdiction where group defamation claims can be brought as class actions; however, this decision will make it all the more difficult to do so - consistent with results in common law provinces. (Eg. Gauthier v. Toronto Star Newspapers Ltd., [2004] O.J. No. 2686 (C.A.); lv. denied [2004] S.C.CA. No. 411)

2.         Confidential Sources

For the first time, the SCC recognized the need to protect journalists’ confidential sources, acknowledging that “unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression and debate on matters of public interest would be badly compromised.  Important stories will be left untold and the transparency of accountability of our public institutions will be lessened to the public detriment.”  R. v. National Post, 2010 SCC 16 (per Binnie J. at para. 33). This set to rest an earlier decision that cast doubt on any special protection while side-stepping the issue. Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572.

However, the Court held that there was no constitutional protection, nor any class privilege, for confidential sources but instead applied the criteria developed by Professor John Henry Wigmore to determine common law claims of privilege based on confidentiality. As applied by the SCC, the Wigmore criteria require anyone claiming privilege to establish four elements:

1.  A communication must originate in a confidence that the informant’s identity not be disclosed;

2.  This confidence must be essential for the relationship;

3.  The relationship must be one that should be “sedulously fostered” in the public good; and

4.  Whether the public interest served by protecting the informant’s identity outweighs the public interest in getting at the truth, based on the evidence involved.

(National Post, para. 53)

The SCC, while nodding to the importance of free expression and protecting sources, required a journalist claiming privilege to bear the onus of proving all four criteria:  “While confidential sources are not constitutionally protected, their role is closely aligned with the role of ‘the freedom of the press and other media of communication’, and will be valued accordingly but, to repeat, at the end of the analysis the risk of non-persuasion rests at all four steps on the claimant of the privilege.” (per Binnie J., para. 64)  Such a claim may be made by a blogger, rather than a professional journalist, and the same criteria would apply, but likely with greater skepticism.

In the unusual facts of the case, the search warrant and assistance order against the National Post’s journalist and editor were upheld on the basis that the police sought physical evidence of an actual crime.  What was sought was an envelope and allegedly forged document provided by a confidential source, and the crime under investigation was forgery.  The original documents were needed for fingerprint and DNA evidence to attempt to identify the forgerer.  Since the alleged crime related to the then Prime Minister of Canada, the investigation was regarded as particularly serious.  However, these unusual facts invite journalists on future occasions to keep only copies of the documents involved, but not the originals, where similar risks to sources could arise.

In a subsequent case, the Court applied the same approach to the disclosure of confidential sources in a civil proceeding under Quebec law. Globe & Mail v. Canada (Attorney General), 2010 SCC 41.  This case arose when a reporter was found in contempt for refusing to disclose his confidential source, in the context of contentious civil proceedings against the government of Canada.  The source had been key to helping the Globe & Mail uncover the Sponsorship Scandal involving millions of misspent dollars that helped defeat the sitting government and led to a federal commission of inquiry and criminal charges.  While citing Wigmore’s four-part test, the Court held where the journalist was simply a third-party witness in a civil case, a court must be particularly cautious.

“If relevant information is available by other means and, therefore, could be obtained without requiring a journalist to break the undertaking of confidentiality, then those avenues ought to be exhausted.  The necessity requirement, like the earlier threshold requirement of relevancy, acts as a further buffer against fishing expeditions and any unnecessary interference with the work of the media.  Requiring a journalist to breach a confidentiality undertaking with the source should be done only as a last resort.”  (Globe & Mail, per Lebel J., para. 63)

The case also dealt with an ancillary issue that arose out of a publication ban imposed by the judge on the same journalist for his coverage of the ongoing court proceedings.  A confidential source had provided details of settlement negotiations between the government and the plaintiff company.  While holding that these discussions were highly confidential, the SCC struck down the publication ban since there was no evidence that the journalist “was anything other than a beneficiary of the source’s desire to breach confidentiality.”  Citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) and Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that the unlawful acts of others should not affect a journalist who was not a participant in the illegal act.

“There are sound policy reasons for not automatically subjecting journalists to the legal constraints and obligations imposed on their sources.  The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process.  History is riddled with examples.  In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not providing the information in breach of any legal obligations.  A journalist is under no obligation to act as legal adviser to his or her sources of information.” (Globe & Mail, per Lebel J., para. 84)

The case-by-case privilege has been applied by the BC Court of Appeal to the discovery process where a journalist defendant in a libel case sought to protect a confidential source; in effect, this extended to British Columbia the “newspaper rule” that was already in place in many provinces, as it is in the UK.  Canwest Publishing Inc. v. Wilson, 2012 BCCA 181.  In an Ontario Court of Appeal case, it was also successfully applied to oppose a Norwich order for production that would have required a third-party journalist to identify a confidential source in the context of civil proceedings; the plaintiff alleged the journalist’s source had breached a duty of confidentiality and had caused the investment losses that were at the heart of his claim.  1654776 Ontario Ltd. v. Stewart, 2013 ONCA 184.  However, the Court’s reasons bring home how precarious a journalist’s claim for privilege can be:

“In the final weighing up I would conclude that the greater public interest is served by upholding the respondents’ claim of privilege. The public interest in free expression must always be weighed heavily in the balance. The balance may well have been shifted, had the apparent strength of the appellant’s case been compelling; however, the appellant has not put forward such a case.” (per Juriansz J.A., para. 145)

3.         Privacy

The SCC has made a number of pronouncements on the importance of privacy but has yet to determine the scope for any tort of invasion of privacy.  Nevertheless, in the context of its important defamation decision, Grant v. Torstar Corp., 2009 SCC 61, the Chief Justice devoted a paragraph to it, citing a number of previous SCC decisions, and made the following point:

“While in other contexts, privacy protection has been recognized as “essential for the well-being of the individual,” it does not figure prominently in defamation jurisprudence.  One reason for this is the defamation law is concerned with providing recourse against false injurious statements, while the protection of privacy typically focuses on keeping true information from the public gaze.  Legislation in several provinces provides a separate cause of action for the violation of privacy [British Columbia, Saskatchewan, Manitoba, Newfoundland and Quebec].  That said, protection of privacy may be a factor complementing the protection of reputation in the development of defamation law.”  (Grant, McLachlin C.J., para. 59; citations omitted)

While the SCC has yet to deal with the issue, the Ontario Court of Appeal opened the door to the common law tort of invasion of privacy for the first time in an important decision by a respected appellate justice, Robert Sharpe, and joined by the Chief Justice of Ontario.  Jones v. Tsige, 2012 ONCA 32.  This case involved a defendant’s snooping through the plaintiff’s financial records at least 174 times over a period of four years through her access as a bank employee.  While the defendant had been involved with the plaintiff’s former husband during some of the period, the motivation was far from clear, but the Court of Appeal accepted that no record or publication of the private information had been made.  After a broad review of jurisprudence on invasion of privacy, including Professor Prosser’s four-tort catalogue and case law in Canada, the U.S. and the Commonwealth, the Court found a right of action for “intrusion upon seclusion”:  “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”  (Restatement (2nd) of Torts (2010))

However, the Court kept damages deliberately low ($20,000 maximum) and specifically acknowledged that there may be competing claims – “foremost are claims for the protection of freedom of expression and freedom of the press”, quoting from Grant v. Torstar as an appropriate analogy:  “Once proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.” (Grant, para. 65)

In view of Canada’s strict liability defamation law, it seems unlikely that courts will ever adopt a “false light” privacy tort, but the tort of misappropriating commercial personality rights has long been recognized. (Krouse v. Chyrsler (1973), 1 O.R. (2d) 225 (C.A.)).  The combination of Grant v. Torstar and Jones v. Tsige suggests that the tort of “public disclosure of embarrassing private facts” cannot be too far behind.  Already, various publication bans to protect privacy interests can be obtained in court proceedings, particularly in family law; in one criminal case, the identity of a man convicted of murdering his wife was banned to protect his young children, based on psychological evidence before the court.  R. v. Steven H, (Ontario Superior Court of Justice (Thomson J.), March 16, 2004). The law developing in the United Kingdom (eg. Campbell v. MGN Ltd., [2004] UKHL 22) and elsewhere in the Commonwealth (eg. Lenah Game Meats Pty. Ltd. v. Australian Broadcasting Corp., [2001] H.C.A. 63; Hosking v. Runting, [2004] NZCA 34) can also be expected to have an impact and encourage development of the new tort in Canada.

4.         Hate Speech

In 2007-8, considerable controversy arose over free speech concerns when a number of complaints were made by Muslim groups to human rights tribunals over published criticisms of Muslim fundamentalists that they believed crossed the line into “hate speech”.  Ultimately, only one of the complaints went through a full hearing process, and none resulted in findings against the publications.  However, the controversy led to a revisiting of human rights legislation being used against media publications and its impact on freedom of expression.  The Canadian Human Rights Commission engaged Professor Richard Moon to report on whether the provision in its legislation prohibiting hate speech through telecommunications such as the Internet should be amended, despite its successful use against anti-Semitic websites over the previous decade.  This ultimately led to the repeal of the provision (section 13(1), Canadian Human Rights Act, R.S.C. 1985, c.H-6) in June 2013 through a private member’s bill in Parliament.

In the midst of this, a case worked its way up from the Saskatchewan Human Rights Tribunal to the Supreme Court of Canada.  Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11.  The case arose from flyers opposing teaching about homosexuality in schools – one was headed “Keep homosexuality out of Saskatoon’s public schools!” – distributed by a fundamentalist Christian minister and his group, “Christian Truth Activists.”  At the Supreme Court, it attracted 21 interveners from all parts of the spectrum, and the Court took more than 16 months to render a decision even though an earlier case upholding the federal law served as precedent.  Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.  That earlier case, however, was marked by a narrow majority (four to three), with the current Chief Justice dissenting; this left many curious to see if the Court might take a different tack.  This time around Chief Justice McLachlin joined a unanimous judgment written by Justice Rothstein that upheld the law, with some important caveats.  The test for what constitutes offensive speech worthy of attracting human rights protection was narrowed and strengthened, and part of the law was struck down as unconstitutional in respect of expression that merely “ridicules, belittles or otherwise affronts the dignity of those” in a group protected under the legislation.

In redefining “hatred”, the Court clarified its earlier test and imposed three principles for hate speech prohibitions:

1.  The test is objective, not subjective – “whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred”;

2.  Only extreme manifestations amounting to “detestation” and “vilification” rise to the level of “abhorrence, delegitimization and rejection” that is sufficiently harmful; and

3.  The analysis must focus on the effect of the expression, not its author’s intention.

(Whatcott, paras. 55-59)

The Court was clearly focused on a concern that democracy could be undermined through exposing a protected group to hatred, evoking fascist Italy and Nazi Germany, as well as more recent examples in Yugoslavia, Cambodia, Rwanda, Darfur and Uganda.  Leaving it to the “marketplace of ideas” was not sufficient to meet this concern, and criminal law could only deal with “the most extreme forms of hate speech, advocating genocide or inciting a “breach of the peace.”

“Hate speech, therefore, rises beyond causing emotional distress to individual group members.  It can have a societal impact.  If a group of people are considered inferior, sub-human or lawless, it is easier to justify denying the group and its members’ equal rights or status.

“Hate propaganda … impacts on that group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.  Indeed, a particularly insidious aspect of hate speech is that it acts to cut off any path of reply by the group under attack.” (per Rothstein J., paras. 74-75).

Of the four flyers distributed by the respondent, only two met the newly defined test, with penalties of $2,500 and $5,000 in compensation upheld by the Court.

5.         Covering the Courts

The earliest developments of the Canadian Charter of Rights and Freedoms’ protection for free expression, after it came into force in April 1982, came in rulings over the openness of courts and other tribunals.  The Charter proved an invaluable tool to combat clubby secrecy in various venues. The appellate courts could quickly appreciate the importance of the justice system being open to the public and subject to close scrutiny, and the media were recognized as the best means of informing the public.  Eg. Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326. Facing a rising use of publication bans and in camera hearings, the SCC developed the what is now known as the “Dagenais/Mentuck test” through a series of decisions, and it has been applied to a wide range of discretionary restrictions on the courts’ openness.  Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (quashing injunction over pre-trial publicity (TV docudrama) that was alleged to be prejudicial to pending criminal trials); R. v. Mentuck, 2001 SCC 76 (no ban of disclosure at trial of police investigative technique); Vancouver Sun (Re), 2004 SCC 43 (opening investigative hearing for terrorism offence); Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (unsealing court’s search warrant file); but not in Re Named Person v. Vancouver Sun, 2007 SCC 43 ( the absolute privilege afforded a police confidential informant removes any discretion to order an open hearing, although “the judge must accommodate the open court principle to as great an extent as possible without risking a breach of the informer privilege”).

Succinctly put, under the Dagenais/Mentuck test, a party seeking any restriction on the openness of courts or freedom of the press in relation to judicial proceedings must establish that:

a)  such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

b)  the salutary effects of the restriction outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

(Toronto Star Newspapers Ltd. v. Ontario, para. 26)

The “serious risk” must be “real, substantial and well grounded in the evidence.”  (Toronto Star Newspapers Ltd. v. Ontario, para. 27)

Bail Hearing Ban

Buoyed by the string of successes, media in both Alberta and Ontario challenged the Criminal Code ban on the “evidence taken, the information given or the representations made, and the reasons, if any, given … by the justice” at a bail hearing. In particular, they attacked that the ban was mandatory if requested by the accused.  However, the SCC upheld s. 517 of the Criminal Code, ruling that such orders should not be merely discretionary. Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21. After giving a nod to the effects of preventing the public from learning about bail hearings, the Court made its ruling based on more practical concerns at such an early stage of criminal proceedings:

“the deleterious effects of a publication ban should not be downplayed.  Section 517 bars the media from informing the population on matters of public interest which could otherwise be subject more widely to public debate.  To this extent, it impairs “[t]he freedom of individuals to discuss information about the institutions of government, [and] their policies and practices.”

“The ban prevents full access to, and full scrutiny of, the criminal justice process.  Moreover, the bail hearing may attract considerable media attention and its outcome may not be fully understood by the public … In such cases, the media would be better equipped to explain the judicial process to the public if the information they could convey were not restricted.

“Nonetheless, on balance, I must find that in the context of the bail process, the deleterious effects of the limits on the publication of information are outweighed by the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information; in other words, to guarantee as much as possible trial fairness and fair access to bail.  Although not a perfect outcome, the mandatory ban represents a reasonable compromise.”  (Toronto Star (2010), per Deschamps J., paras. 58-60)

This result was certainly disappointing, but a strong dissent from Abella J. served to bring home the consequences of the ruling on “the public’s presumptive right to know what goes in a courtroom,” especially in light of the fact that most proceedings never reach a jury trial, so that prejudicial publicity plays little role. For the SCC, the practical realities of the criminal process outweighed the importance of openness. As a consequence, the basis for obtaining release of an accused on bail remains one of the most misunderstood aspects of the criminal process, and public debate concerning it is inevitably poorly informed and ineffectual.

Courthouse Access

A number of issues involving media access to courts in Quebec were considered by the SCC in two cases brought by the Canadian Broadcasting Corp. and others.    The first case arose over new limits imposed by the government on where media can film, take photographs and conduct interviews within courthouses in Quebec. Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2.  Unusually in Canada, the media had pretty much free range within the corridors of Quebec courthouses until these limits were introduced in 2005.  Other provinces generally exclude all cameras and recording devices (except possibly for note-taking purposes) from courthouses although journalists are free to interview participants provided they don’t interfere with the court process.  Limited permission can be obtained for photography, but filming of actual court proceedings would usually require the consent of all parties, witnesses and the trial judge (eg. Courts of Justice Act, R.S.O. 1990, c.C.43, s. 136; R. v. Pilarnos, [2001]B.C.J. No. 1936 (S.C.); lv. granted and then dismissed, [2001] S.C.C.A. No. 497 (where an appeal of a trial judge’s ruling against cameras in a criminal case involving a former B.C. Premier was quashed on the basis it was moot).  The new Quebec rules limited the media to filming, taking photographs and conducting interviews in designated areas of each courthouse and strictly controlled how the media should approach those participating in proceedings inside courthouses.

While the Court accepted that the Charter’s protection for freedom of the press under section 2(b) was infringed by the measures, it found a countervailing concern for the fair administration of justice needed to be taken into account, referring to evidence that up to 30 or 40 journalists were present during certain trials and photographers and camera operators were often acting aggressively. Clearly the Court was concerned over the intrusiveness of journalists and modern technology within the courthouse and found limiting them to designated areas was within a range of reasonable alternatives.  It pointed out that limits were placed on the media in courthouses in other jurisdictions and held such a step would deal with the fear of participants of being pursued by the media, thereby avoiding the additional stress on witnesses and interference with their privacy, and enabled lawyers and their clients to use the hallways to meet and discuss their cases.

The second issue in the same case was a prohibition on the use of official court recordings for broadcast purposes.  Again, this was found to infringe the media’s Charter rights, but the Court focused on the adverse impact on witnesses that could undermine the integrity of the judicial process.  “Journalists have a right to use those recordings to enhance the accuracy of reports they are preparing, but they cannot use them in a way that would have an impact on the testimony itself.”  In the Court’s view, it was one thing for witnesses to be compelled to appear in court but another to have their testimony subject to public broadcast; this could add to their unease in court and somehow affect their truthfulness. On the other hand, the Court did not think being able to broadcast the recordings would add much to media coverage:

“Although I accept that the broadcasting of official audio recordings would add value to media reports and make them more interesting, I cannot find that the prohibition against broadcasting these recordings adversely affects the ability of journalists to describe, analyze or comment rigorously on what takes place in the courts.”  (CBC v. Canada, per Deschamps J., para. 84)

Access to Exhibits

The second CBC case involved an accused’s video statement to police that was made an exhibit at trial in Montreal. Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3. The accused, who was under an intellectual disability, was acquitted of the charge of aiding his mother’s suicide, and the Crown’s appeal was later dismissed.  Media access to trial exhibits has long been a sore point, and the SCC made it clear that the Dagenais/Mentuck test should apply at all times as a “corollary to the open court principle”, while accepting that “every court has a supervisory and protecting power over its own records.” In doing so, the Court limited the effect of its earlier decision in Vickery v. Nova Scotia Supreme Court, [1991] 1 S.C.R. 671, made before Dagenais on non-Charter grounds; that case upheld a refusal to provide media access to video and audio tapes of a confession that had been key exhibits at trial. By the time access was sought, the accused had been acquitted on appeal because the confession had been thrown out for having been improperly obtained by police in contravention of his constitutional rights. In a six-three split ruling, the Court held that it was appropriate to protect “the innocent,” i.e., the accused, in such circumstances.

In the 2011 CBC case, the video recording had been played in open court at trial, and journalists were permitted to review the video statement but were prohibited from obtaining a copy or broadcasting it.  The Court said that the trial judge applied the wrong test (by relying on a court rule that did not apply) and would have sent the decision back to be made on proper principles.  However, since the trial was over and the appeal dismissed, the Court found this was “a situation requiring protection of vulnerable individuals, especially after they have been acquitted” and dismissed the appeal, but without costs.  The SCC added that it might be best for a trial judge to wait for an “appropriate time”, such as the end of trial, before deciding how such an exhibit might be treated, and “to weigh the factors at stake and ensure that the serenity of the hearing, trial fairness and the administration of justice are preserved,” as well as assessing its potential impact on the accused or on another trial of a co-accused.  This certainly poses issues for timely and complete reporting of trials and all too easily enables judges to prevent important evidence from being broadcast, particularly when an accused is acquitted.

Access to videotape exhibits and their broadcast has also been considered by provincial appellate courts, with strong rulings by both the Ontario and British Columbia Courts of Appeal.  In the BC case, the Court overruled the trial judge and permitted access, including copying, to a two-hour videotape exhibit taken as undercover police officers obtained the accused’s confession through what has become known as a “Crime Boss” scenario.  R. v. Fry, 2010 BCCA 169. The technique involves recruiting the suspect as a member of what appears to be a criminal gang but, in fact, has been created by police; he moves through the ranks until the time comes when he must answer all questions and confess to all crimes before being accepted as a full member by the “Boss.”  It has been used repeatedly with remarkable success. Here, the accused was convicted, and the real concern was protecting the identity of undercover officers, so the Court developed a careful protocol to ensure just that.

In the Ontario case, the CBC accepted various limits on how it would use videotape taken of a young offender’s final moments as she committed suicide in her cell while guards watched. R. v. Canadian Broadcasting Corp., 2010 ONCA 726. In particular, prison staff sought to ensure they would not be recognized, and the broadcaster agreed to this. However, the federal government still opposed access, despite the fact that the inmate’s mother wanted the CBC to get the video.  The Court overruled the court below and permitted access. It applied the Dagenais/Mentuck test and held that “the right to access exhibits includes the right to make copies,” subject to a trial judge’s “finding of potential harm … to a legally protected interest;” none existed on the facts of the case, especially given the mother’s support.

Cyberbullying and Privacy

Another SCC case involving the privacy of litigants received a great deal of public attention since it involved allegations of teenage cyberbullying.  A.B. v. Bragg Communications Inc., 2012 SCC 46.  A 15-year-old girl from Halifax, Nova Scotia, was trying to track down the source of an offensive anonymous Facebook posting denigrating her looks and making sexually explicit references.  On inquiry, Facebook had pointed to a particular Internet service provider in Halifax, and the girl sought to bring a proceeding anonymously to obtain the information from it.  The motion for anonymity was successfully opposed by local media because there was no actual evidence of any potential harm to the girl if she were identified; it was also difficult to conceive of a defamation action being conducted anonymously. The girl’s appeal on this issue also failed before the NS Court of Appeal, so she took the case to the Supreme Court of Canada.  Again, the SCC applied the Dagenais/Mentuck test, however not as rigorously as it had on other occasions.  Even though the girl had given no evidence of any kind concerning her reasons for anonymity, the Court found that “objective harm” could be established.  Given the “inherent vulnerability of youth”, “it is logical to infer that children may suffer harm through cyberbullying”:

“The critical importance of the open court principle and a free press has been tenaciously imbedded in the jurisprudence and need not be further revisited here.  What does need some exploration, however, are the interests said to justify restricting such access in this case:  privacy and the protection of children from cyberbullying.  These interests must be shown to be sufficiently compelling to warrant restrictions on freedom of the press and open courts.  … The girl’s privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from.  It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying.”  (A.B., per Abella, J., paras. 13-14)

6.         Access to Information

In a pair of cases, the SCC was asked to apply the Charter right to freedom of expression to legislation providing for “freedom of information” in the Province of Ontario and federally.  In the first case, while grudgingly opening the door for such constitutional challenges, the Court firmly shut it in the face of the applicants on the facts.  Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23. The Court’s reasoning does not hold out much prospect for the usefulness of section 2(b) of the Charter in this field.

This case arose under Ontario’s Freedom of Information and Protection of Privacy Act (R.S.O. 1990, c. F.31) and focused on its “public interest override” provision.  It arose after a trial judge dramatically stopped a murder trial and stayed the charges on the basis that state officials had been engaged in abusive conduct.  A police investigation was launched, and a “terse” press release was later issued saying the officials had been exonerated, without giving reasons. Despite the controversy, the investigation’s report was never made public.  The Criminal Lawyers’ Association went after the report and related documents, using access to information legislation.  The government refused to disclose them on the basis of discretionary exemptions for law enforcement records and solicitor/client privilege; under the legislation, these particular exemptions also escaped the additional test as to whether a compelling public interest in disclosure outweighed the exemptions’ purpose – a “public interest override” – as required for other discretionary exemptions.  However, the Ontario Court of Appeal ruled the absence of such an override for these exemptions violated s. 2(b) of the Charter.

The position of the SCC was summarized in a few paragraphs of its decision:

“Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society.  Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.

“Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees freedom of expression, but does not guarantee access to all documents in government hands.  Access to documents in government hands is constitutionally protected only where it is shown to be a necessary precondition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned.

“There is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. … However, the claimant must go on to show that the protection is not removed by countervailing considerations inconsistent with production.”  (per McLachlin C.J. and Abella J., paras. 1, 5, 37 and 38)

In short, as a starting point, an applicant has to prove, without the benefit of the documents in question, that their disclosure is critical to informed public discussion on a matter of public interest, so much so that it outweighs all other considerations.  That’s a very difficult test to meet; it serves as a barrier rather than a reasonable hurdle. So, despite the public controversy and a disturbing ruling by a senior trial judge, the Court found that this first step was not met and, further, that exemptions for law enforcement investigations and solicitor/client privilege did not need to be subject to any further evaluation on the basis of the public interest since s. 2(b) was not engaged.

The second case concerned the federal Access to Information Act (R.S.C. 1985, c. A-1) and requests made for records held in the offices of Ministers, as opposed to their departments, as well as the Prime Minister’s agenda which was held by the Royal Canadian Mounted Police and the Privy Council Office.  Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.  The Court, based on a close interpretation of the legislation, shut the door on all these requests, holding that the Act did not apply to Ministers’ offices and that the agenda was “personal information” exempted by the legislation.  Section 2(b) of the Charter made no appearance at all in the Court’s opinion.  It relied on a quote from the judge at first instance to make its point:

“The question for the Court is not whether the documents should be accessible to the public under Canada’s “freedom to information” law, but whether the documents are currently accessible to the public under Canada’s existing law.  The Court does not legislate or change the law; it interprets the existing law.”  (per Charron J., para. 12, quoting from Kelen J.)

This brings home the point that any real change for public access to government records must be legislated, not achieved through the courts. However, despite wide-ranging criticism and even proposals made by parliamentary committees, governments at all levels have been very slow to accept any expanded access to records under their control.  This cannot be surprising. Indeed, the current federal government has achieved new records for slowing down and blocking access, and the Ontario government has recently been censured by the provincial Information and Privacy Commissioner for deleting electronic records in violation of the law.

Conclusion

It has been a most interesting ride, surfing the recent wave of media-related cases in Canada, with both highs and lows.  It seems likely to be some time before anything like it occurs again.  The SCC’s jurisprudence must be digested, and new issues will need time to work their way through the trial and appellate courts.  However, it seems clear that issues concerning privacy and cyberspace are bound to become the next focus of attention.  The new contours of the judicial landscape will continue to be exposed and clarified.  We can only hope that concerns for freedom of expression will play a significant role in developing the law.


* Brian MacLeod Rogers is a media law Barrister and Solicitor in Toronto, Canada, and Co-Chair of MLRC's International Committee.

[1] Brian MacLeod Rogers, “The Supreme Court of Canada’s Free Expression Docket: Will a New Legal Landscape Emerge?,” MLRC Bulletin, Sept. 2009.

[2] Jamie Cameron, “Does Section 2(b) Really Make a Difference? Part 1: Freedom of Expression, Defamation Law and the Journalist-Source Privilege,” Osgoode CLPE Research Paper No. 28/2010.

 
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