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PROCEDURE - Trials - Publication bans and confidentiality orders

Friday, February 09, 2018 @ 1:35 PM  


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Appeal by Canadian Broadcasting Corporation (CBC) from a judgment of the Alberta Court of Appeal which set aside the decision that dismissed the Crown’s motion for an interlocutory injunction. In March 2016, the Crown obtained a publication ban in connection with the trial of an accused who was charged with the first degree murder of a person under the age of 18. Two articles which pre-existed the publication ban and which identified the victim by name and photograph, continued to exist on CBC’s website. Because CBC would not remove from its website the victim’s identifying information, the Crown sought an order citing CBC in criminal contempt of the publication ban, and an interlocutory injunction directing removal of that information from the website. The chambers judge concluded that the meaning of s. 486.4(2.1) of the Criminal Code (Code) was not so obvious that the Crown could “likely succeed at trial” in showing that this text would capture the impugned articles on CBC’s website, since they had been posted prior to the issuance of a publication ban. The Court of Appeal held that the chambers judge had erred by characterizing this matter as requiring the Crown to demonstrate a strong prima facie case of criminal contempt. The majority explained that the request for the interlocutory injunction was “tied back” to the request for an order removing the identifying information, and not to the request for a criminal contempt citation. The Court of Appeal allowed the appeal and granted the injunction.

HELD: Appeal allowed. To obtain a mandatory interlocutory injunction, an applicant was first required to demonstrate a strong prima facie case that it would succeed at trial. This entailed showing a strong likelihood on the law and the evidence presented that, at trial, the applicant would be ultimately successful in proving the allegations set out in the originating notice. The conclusion of the Court of Appeal majority that the basis for the injunction was an “entitlement to a mandatory order directing removal of the identifying material from the website” begged the question: what, precisely, was the source in law of that entitlement. An injunction was not a cause of action, in the sense of containing its own authorizing force. It was a remedy. This was undoubtedly why, before both the chambers judge and the Court of Appeal, the Crown framed the matter as an application for an interlocutory injunction in the proceedings for a criminal contempt citation. On that point, it was not for the Court of Appeal to re-cast the Crown’s case as a civil application for an interlocutory injunction pending a permanent injunction. The Crown was bound to show a strong prima facie case of criminal contempt of court. The first stage of the test required the Crown to satisfy the chambers judge that there was a strong likelihood on the law and the evidence presented that it would be successful in proving CBC’s guilt of criminal contempt of court. The Crown failed to discharge this burden. The text of s. 486.4(2.1) of the Code could be reasonably taken as prohibiting only publication which occurred for the first time after a publication ban. The majority at the Court of Appeal conceded that either position was arguable. That was, in substance, an acknowledgment that the Crown had not shown a strong prima facie case of criminal contempt.

R. v. Canadian Broadcasting Corp., [2018] S.C.J. No. 5, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., February 9, 2018. Digest No. TLD-Feb052018011SCC