From Ad IDEM / CMLA
Graham v Star Phoenix 2017 SKQB 42 (February 7, 2017)
In this highly fact specific case, the SKQB made a finding of malice against the defendants and awarded aggravated damages in addition to general damages.
Veneruzzo et al v Storey 2017 ONSC 683 (January 27, 2017)
This recent ONSC decision in a motion brought under s. 137.1(3) includes an analysis of what constitutes “the public interest”.
Awan v Levant 2016 ONCA 970 (December 22, 2016)
Ezra Levant appealed the finding of libel and the quantum of damages awarded in a decision of the ONSC in 2014. The ONCA upheld the trial judgment.
Stringam Denecky LLP v Sun Media Corporation 2016 ABQB 692 (December 8, 2016)
This judgment deals with the principle of journalist source privilege.
Platnick v Bent 2016 ONSC 7340 (December 1, 2016)
This is the latest and most substantial decision yet on the new Ontario anti-SLAPP law, s. 137.1 of the CJA, from the ONSC.
Sergakis c Peter McQueen 15 November 2016 Cour superieure du Quebec (November 15, 2016)
The Court dismissed, at a preliminary stage, an action in defamation brought by Peter Sergakis, a well-known bar and restaurant owner, against Montreal city councillor Peter McQueen, deeming Sergakis’ action to be abusive and a SLAPP.
Able Translations Ltd v Express International Translations Inc 2016 ONSC 6785 (November 8, 2016)
The first successful use of the new Ontario law, s. 137.1, of the CJA recently introduced by the Protection of Public Participation Act.
Foulidis v Foulidis 2016 ONSC 6732 (October 28, 2016)
In this ONSC judgment, a sealing order in a family court file was set aside and limits were put on a publication ban. The judgment also speaks about the new Ontario Notice Procedure.
Morasse v Nadeau-Dubois 2016 SCC 44 (October 27, 2016)
A majority of the court dismissed the appeal and held that a conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice.
Endean v British Columbia 2016 SCC 42 (October 20, 2016)
The majority of the court held that superior court judges have a discretionary power to sit together outside their home provinces to hear a motion without oral evidence in the context of a pan‑Canadian settlement agreement. And, that a video link between the out‑of‑province courtroom where the hearing takes place and a courtroom in the judge’s home province is not a condition for a judge to be able to sit outside his or her home province.
2016 SKQB 300 (September 13, 2016)
The SKQB grants an order for judicial review quashing a decision of the Provincial Court on a publication ban. And, it analyzes some jurisdictional issues related to who can seek pub bans under Section 486.4 of the Criminal Code.
R v Derbyshire 2016 NSCA 67 (September 13, 2016)
The NSCA refused to extend a publication ban on the names of undercover officers, citing the importance of court openness.
HMQ v Vader ABQB September 13 2016 (September 13, 2016)
The Alberta Court of Queens Bench allowed cameras to broadcast a murder trial verdict.
R v Daviau 2016 ABQB 511 (September 13, 2016)
The ABQB denied an application for a discretionary publication ban under section 486.5 of the Criminal Code after careful consideration of the factors set out in s. 486.5(7) and analysis under the Dagenais/Mentuck test.
Owens v Post Media Network Inc 2016 SKQB 289 (September 1, 2016)
After rejecting a human rights complaint brought against the Regina Leader-Post, the SKQB commented on the important and vital role of a free press.
Canadian Broadcasting Corporation - Radio-Canada v Canada (Attorney General) 2016 FC 933 (August 15, 2016)
The Federal Court found that the Court Martial Administrator erred in finding that publication bans required the redaction of the names of the complainants when providing access to the requested court martial decisions to the media.
2016 Quebec Superior Court Djermane Judgment (July 20, 2016)
This decision of the Quebec Superior Court (in French) upholds the lower court decision in which the judge denied an application for a publication ban on sworn statements in support of search warrants. The lower court judge also found that the expert report lacked the basic qualities that would allow her to admit it into evidence as per the Mohan test.
2016 Quebec Superior Court Ghalmi Judgment (May 31, 2016)
Representatives for several media were successful in obtaining a copy of a sworn statement presented ex parte by an RCMP officer to a Quebec Court judge tasked with issuing a summons under s. 810 of the CCC.
Ben Aissa Judgment 2016 Quebec Superior Court (July 20, 2016)
This decision of the Quebec Superior Court (in French) confirms that the lower court judge made no reviewable error in holding that a publication ban issued at a bail hearing or a preliminary inquiry does not automatically apply to information in an ITO, even if that information is the same as the evidence tendered at either the bail hearing or preliminary inquiry.
Mulgrew v The Law Society of British Columbia 2016 BCSC 1279 (July 11, 2016)
British Columbia Supreme Court confirms production order under British Columbia Legal Profession Act, S.B.C. 1998, c. 9 to compel the Vancouver Sun and its journalist to produce their notes of communications with a lawyer under Law Society investigation.
HMQ v Postmedia Network Inc et al 2016 SKPC 089 (June 30, 2016)
The SKPC refused to grant a mandatory publication ban and determined that Section 486.4(2.2) of the Criminal Code is unconstitutional. Judge Martinez also refused to grant a discretionary publication ban under Section 486.5 of the Criminal Code.
Goldhar v Haaretz.com 2016 ONCA 515 (June 28, 2016)
The ONCA found that Ontario courts have jurisdiction over an action for libel, commenced by a billionaire Canadian businessman against Israel’s oldest daily newspaper and two of its reporters.
R v Cabero et al 2016 ONSC 3844 (June 14, 2016)
The Court rejected an application by defence counsel for a publication ban over an ITO used to get DNA search warrants.
Casses v Canadian Broadcasting Corporation 2016 BCSC 949 (May 27, 2016)
Following on a successful responsible communication defence in Casses v CBC et al, summarized earlier, the trial judge has now awarded costs on an increased scale to CBC and “special costs” (similar to solicitor-client costs) to the individual defendants.
J.K. v The Korea Times et al 2016 ONCA 375 (May 18, 2016)
This ONCA decision summarizes the analysis required in considering the adequacy of a libel notice.
Nazerali v Mitchell 2016 BCSC 810 (May 6, 2016)
The BC Supreme Court has awarded 1.2 million in damages in a case of extreme internet defamation.
John v Ballingall et al 2016 ONSC 2245 (April 1, 2016)
This ONSC decision states unambiguously that online publication of a newspaper article is subject to the notice and limitation provisions in the Libel and Slander Act “unless specific facts dictate otherwise.”
R v Vice Media Canada Inc et al 2016 ONSC 1961 (March 29, 2016)
The ONSC upheld a production order which directed Vice Media and one of its journalists to produce certain documents and data from the reporter's instant messenger chat logs.
Canadian Union of Postal Workers v Quebecor Media Inc 2016 ONCA 206 (March 14, 2016)
The ONCA overturned a lower court judgment on a Rule 21 motion, finding that the appellant met the notice requirements of the LSA.
Canadian Broadcasting Corporation v Whatcott 2016 SKCA 17 (February 10, 2016)
This recent decision from the Saskatchewan Court of Appeal overturns the Court of Queen's Bench findings of malice and of aggravated damages, and reduces the general damages award to a nominal amount of $1,000. The appeal regarding the meaning of the publication was dismissed based on the standard of review.
Inquest Motion re broadcasting Provincial Court of Manitoba 2016 28 January (January 28, 2016)
The media applicants sought an order to be permitted to record, videotape and broadcast inquest proceedings into the deaths of Durval David Tavares and Sheldon Anthony McKay at Stony Mountain Institute. They were granted the right to record audio only and to broadcast those recordings.
Taseko Mines Limited v Western Canada Wilderness Committee 2016 BCSC 109 (January 25, 2016)
A defamation action by a mining company against an environmental organization over five internet articles was dismissed after trial, with special costs for a substantial portion of the proceeding.
Office of the Chief Coroner v Canadian Association of Elizabeth Fry Societies QBG 1640 of 2015 (January 15, 2016)
The Saskatchewan Court of Queen's Bench denied applications to close the court room during a judicial review application and for a sealing order of a report into the death of a women offender at the Regional Psychiatric Centre, Prairie Region prepared by a Board of Investigation appointed under the Corrections and Conditional Release Act.
500-36-006633-138 2016 Court of Quebec (January 14, 2016)
The Court of Quebec allows the media to publish information contained in an ITO to obtain a restraint or freeze order even if that same information is covered by a publication ban in the bail hearing and in the ongoing preliminary inquiry.
R v Nuttall 2016 BCSC 73 (January 11, 2016)
The judge in this criminal trial, dealing with a question of entrapment, held that the Dagenais/Mentuck analysis applies regardless of CSIS concerns over identifying a possible “CSIS human source”. The judge reversed an earlier decision to go in camera and released a transcript, redacting information identifying the source for their safety.
R v Barrett 2016 NSSC 11 (January 8, 2016)
Accused to stand trial on two separate counts of second degree murder. First trial to take place 9 months before second trial. Accused seeks a publication ban on evidence at the first trial until conclusion of his second trial. Application denied.
Crouch v Snell 2015 NSSC 340 (December 10, 2015)
Nova Scotia's Cyber-safety Act is found to be unconstitutional based on s.2(b) and s.7 infringements.
Casses v Canadian Broadcasting Corporation 2015 BCSC 2150 (November 24, 2015)
In a lengthy judgment following a 7 week trial, CBC succeeded in a responsible communication defence in relation to an investigative series regarding a surgeon.
R v Clark 2015 ABQB 729 (November 17, 2015)
Several media outlets successfully applied to quash a publication ban that had been imposed at a preliminary inquiry in which the new sections 486.4(2.1) and (2.2) of the Criminal Code were cited.
R v Shawyer 2015 ABQB (November 6, 2015)
This decision deals with Bill C-51 amendments to the Witness Protection Programs Act, and the recent enactment of the Safer Witnesses Act and a successful application for disclosure to the media.
Blacklock's v Canadian Vintners Association et al 2015 CanLII 65885 (October 16, 2015)
The plaintiff news corporation was found to have had its copyright breached and the defence of fair dealing was found NOT to apply in this judgment from the Ottawa Small Claims Court.
Robinson v Furlong 2015 BCSC 1690 (September 18, 2015)
In a rare instance, a journalist brought a defamation action against the person about whom she wrote.
Goldhar v Haaretz.com et al 2015 ONSC 1128 (August 13, 2015)
The defendants brought an unsuccessful motion for an order to stay this defamation action on several grounds, including forum non conveniens.
Canadian Broadcasting Corporation v Attorney General of Ontario 2015 ONSC 3131 (July 23, 2015)
The media applicants in this case brought an application for a declaration that the practice of OPP officers impersonating journalists for purposes of criminal enforcement and investigation violated s. 2(b) of the Charter. Although the application was dismissed, the OPP now has a Statement of Principles on this issue.
Kent v Postmedia Network Inc 2015 ABQB 461 (July 17, 2015)
Paul Godfrey, CEO of the National Post and Gordon Fisher, former publisher of the National Post, are granted summary judgment in dismissing all claims against them in this defamation action brought by Arthur Kent.
Canadian Union of Postal Workers v Quebecor Media Inc 2015 ONSC 4511 (July 15, 2015)
This judgment sets out what constitutes proper notice and the ability of unions to sue for defamation.
Chandra v CBC 2015 ONSC 3945 (July 3, 2015)
This interim decision concerns the admissibility into evidence of confidential materials from an unrelated proceeding, obtained by journalists in good faith.
Jane Doe v London Free Press 2015 ONSC 4239 (July 2, 2015)
A witness in a sexual assault trial sues the London Free Press for breaching a publication ban.
Lukacs v Canada (Canadian Transportation Agency) 2015 FCA 140 (June 5, 2015)
The Federal Court of Appeal has upheld the principle of openness and access to documents with respect to a government agency – the Canadian Transportation Agency.
Postmedia Network Inc. v Merrifield 2015 ONSC 2847 (April 30, 2015)
The media applicants brought an unsuccessful application for a declaration that their rights under s. 2(b) of the Charter had been infringed and to set aside an earlier order which excluded the public from the trial proceedings and sealed all court records relating to the matters being heard.
Michael Elder v Toronto Life Publishing Co. Ltd. 2015 ONSC (April 20, 2015)
Michael Elder failed in his motion for an interlocutory injunction to prevent further dissemination of the May issue of Toronto Life magazine, which contained an article about him.
Figueiras v Toronto (Police Services Board) 2015 ONCA 0208 (March 30, 2015)
In this judgment the Court weighs freedom of expression and other "fundamental" liberties strongly in the balance when denying police at the G20 summit the power to detain, turn back, or search protestors approaching the summit area, as an exercise of common law police powers.
Baglow v Smith 2015 ONSC 1175 (February 23, 2015)
Fair comment prevails in the battle between the bloggers.
R. v Jha 2015 ONSC 1064 (February 18, 2015)
A publication ban is varied to prohibit ONLY the publication of names of any surviving children of an accused in this second degree murder trial.
Weaver v Corcoran 2015 BCSC 165 (February 5, 2015)
The court concludes that as long as defamatory reader comments are removed promptly after being brought to the attention of the host site, there has been no publication, and there is no need to consider the defence of innocent dissemination.
R v Bourque 2014 NBQB 263 (December 4,2014)
Justice David D. Smith denies the Crown and offender a publication ban on digital materials presented at the sentencing hearing.
Yukon Chapter CPAWS v Government of Yukon 2014 07 03 SCY (July 03,2014)
The CBC was granted permission to film a portion of a civil trial in Yukon, under specific terms.
Alberta v AUPE 2014 ABCA 197 (June 17,2014)
The Alberta Court of Appeal struck several paragraphs from a lower court contempt order after applying the Dagenais/Mentuck test.
Equustek Solutions Inc v Jack 2014 BCSC 1063 (June 13,2014)
The BCSC has ordered Google to remove the websites of a technology company from its search engine results worldwide.
Jiang v. Sing Tao Daily and Hai Tao Li, 2014 ONSC 287 (April 25,2014)
A prominent lawyer in the Chinese community unsuccessfully sued for defamation.
R. v. Magnotta (presence media) April 17 2014 QCCS (April 17,2014)
In this decision in the Luka Magnotta case, the court concludes that the open court principle does not apply to rogatory commissions conducted under S. 709 and ff. of the Criminal Code.
Trout Point Lodge Ltd. v. Handshoe, 2014 NSSC 62 (February 14,2014)
Trout Point Lodge has received another judgment and damages assessment from the Nova Scotia Supreme Court against Mississippi blogger Doug Handshoe for his continued on-line defamation of Trout Point Lodge and two of its owners.
CONSTRUCTIONS LOUISBOURG LTÉE c. SOCIÉTÉ RADIO-CANADA QCCA (January 27,2014)
The QCCA has upheld the lower court judgment in Constructions Louisbourg, in which Radio-Canada was found NOT to be in contempt of court and were NOT ordered to reveal the identity of a confidential source.
Edmonton Journal v Canada (Justice) 2013 ABPC 356 (December 18,2013)
A recent decision from Alberta allowing access to an unredacted ITO, used to obtain a Production Order served on the Edmonton Journal, in an ongoing police investigation.
MHR Board Game Design Inc. v. Canadian Broadcasting Corporation 2013 ONCA 728 (December 3,2013)
The ONCA upholds the lower court judgment and finds that the release signed by the Plaintiff gave the CBC sole discretion to edit the recording as it saw fit and to portray a factual, fictional or defamatory image of the appellants.
R. v. Huth 2013 BCSC 2123 (November 22,2013)
In addition to granting access to videotape exhibits to CTV in this judgment, from the BCSC, Justice Macaulay sets out a media exhibit access protocol to be followed in future criminal trials in B.C.
2013 SKCA 122 (November 15,2013)
A Saskatchewan Court of Appeal judge has dismissed a publication ban application in a protracted securities hearing and awarded costs to the Leader Post.
Canadian Broadcasting Corporation and Others v HMQ 2013 ONSC 6983 (November 13,2013)
In a continuation of a series of applications from several media organizations for access to more information contained in an ITO, Nordheimer J. lifted the sealing order on the ITO used for Project Traveller, leaving only specific portions redacted.
R. v. Haevischer 2013 BCSC 2014 (November 5,2013)
A coalition of media organizations including Postmedia, Global and the CBC united in opposing this application for a publication ban. The applicant "failed to establish that the publication ban he seeks is necessary...application dismissed."
THE Globe and Mail and Others v. HMQ, 2013 ONSC 6836 (November 5,2013)
The applicants were seeking, by way of certiorari, to review and set aside a lower court judgment in which they were denied access to an ITO. The issue being determined at this stage was whether s. 193 of the Criminal Code prohibits the disclosure of the ITO to the applicants. S. 193 provides complete prohibition against the disclosure of non-consensual interceptions subject only to the exceptions set out in s. 193(2). Nordheimer J., set aside the lower court judgment and found that even if s. 193(1) does operate as a blanket prohibition against the disclosure of non-consensual intercepted private communications the ITO at issue was covered by the exemption in s. 193(2)(a).
Re: CBC et al v. HMQ, Alexander Lisi & Jamshed Bahrami (October 30,2013)
The applicant media organizations sought production of an ITO that was used by the police to obtain search warrants involving, among others, the accused Lisi and Bahrami. Nordheimer J. wrote this endorsement allowing those portions of the ITO that were unredacted to be released to the media.
R. v. CTV 2013 ONSC 5779 (September 20,2013)
Two accused were charged with terrorism offences arising from train derailment. Sealing orders were granted in relation to six ITOs. This judgment arose from an application by several media outlets to unseal orders that were granted relating to search warrants, general warrants, and production orders, and to be able to publish contents with agreed upon redactions. The application was granted in part.
Toronto Star Newspapers Ltd. v Ontario 2013 ONCJ 506 (September 16,2013)
This judgment arose from an application by several media organizations to vary the order imposed by the lower court sealing an ITO. The search warrant was one of many obtained by the Toronto Police during what is known as Project Traveller, an investigation into alleged gang-related activity concentrated in the northwest of the city.
R. v. Wilks 2013 CM 4017 (August 29,2013)
This decision comes from a Military Court in which it was deemed functus to modify a publication ban. The decision also sets out the practice for future applications.
Christian Advocacy Society of Greater Vancouver v. Arthur 2013 BCSC 1542 (August 26,2013)
This application arose in relation to a defamation action concerning the publication of a Report authored by Joyce Arthur on behalf of the Pro-Choice Action Network. The defendants brought the application under the BC Supreme Court Civil Rule 9-7 (15)(a) on the issue of whether the defamatory content set out in the statement of claim was "of and concerning the plaintiffs" and rule 9-5(1)(a) to have paragraphs of the said claim struck for "failing to disclose a reasonable claim". Russell J. ruled that "the plaintiffs' action with respect to the alleged defamatory content of the Report is dismissed pursuant to R. 9-7(15) of the Rules."
Roshard v. St. Dennis 2013 BCSC 1388 (August 1,2013)
The defendant, Patrick St. Dennis, was a candidate for re-election on a local council, and gave an interview which was published on a website and portions of which were quoted in a newsletter. The plaintiff, Christ'l Roshard, was running for re-election as mayor. Schultes J. ruled in favour of the plaintiff.
Northwest Organics Limited Partnership v. Maguire 2013 BCSC 1328 (July 26,2013)
The defendants applied for an order dismissing the plaintiffs' claim of defamation as a "strategic lawsuit against public participation" (SLAPP). The defendants proposed that the tests under Rules 9-5 and 9-6 (of the British Columbia Supreme Court Civil Rules) be revised in the context of SLAPP cases. Savage J. declined to address the application under Rules 9-5 and 9-6.
Mainstream Canada v. Staniford 2013 BCCA 341 (July 22,2013)
The BCCA allows this appeal and finds that the trial judge erred in finding the test for the defence of fair comment was satisfied. The trial judge's order dismissing the appellant's claim is set aside and the permanent injunction is granted.
Unrau v. McSween 2013 BCCA 343 (July 17,2013)
The plaintiff appealed from an order dismissing his defamation action for want of prosecution. The appeal from the dismissal of the action was dismissed on the grounds that the chambers judge made no reviewable error in finding that there had been inordinate delay for which no adequate explanation had been provided and in finding that the defendants had suffered prejudice as a result of the delay.
Nu Fibre Inc. v. Ishkanian 2013 BCSC 1255 (July 15,2013)
In this defamation action, the Defendant, Ishkanian, relied upon the defences of justification, qualified privilege, fair comment on a matter of public interest, and responsible communication. Grauer J. ruled in favour of the Defendant on the basis of qualified privilege.
Kwok v Canada (NSERC) 2013 ABQB 395 (July 12,2013)
The Court of Queen's Bench of Alberta has ruled that journalistic source privilege applies to some of the contents of the information given to a journalist, even though the sources of the information are known to the plaintiff.
"...the relationship between Ms. Munro (journalist) and her sources is one that ought to be fostered by the community. It must be remembered that NSERC is a public body and that the funding it provides comes from public funds. Public funds must be properly accounted for and used for their intended purpose."
Toor v. Harding 2013 BCSC 1202 (July 5,2013)
In this defamation action, the Vancouver Sun appealed a lower court ruling in which they had asked for words to be pruned from a notice of civil claim, and which had been dismissed. The decision of the Master was upheld.
Guergis v. Novak 2013 ONCA 449 (June 28,2013)
With one exception, the Ontario Court of Appeal agreed with the lower court that "the statements and letters upon which the allegations of defamation are based are either not capable of being defamatory or are protected by absolute privilege." The Court struck torts pleaded in the alternative to defamation on the basis that they were “dressed up” defamation. The Court also upheld a claim for absolute privilege for communications between officers of state (it is only the second decision in Canada which has applied this privilege), and the Court held that a statement in which someone is alleged to have engaged in criminal conduct is not defamatory.
R. v. Wiens 2013 BCSC 1538 (June 27,2013)
The editor of the Penticton Info Tel news website, Marshall Jones, applied to the court for the release of an exhibit during a murder trial. The accused, Keith Wiens, was alleged to have written a three page letter, addressed to the victim, which had been entered into evidence. Barrow J. ruled that the exhibit would be made available to the media for viewing and note taking purposes.
Shtaif v. Toronto Life Publishing Co. Ltd. 2013 ONCA 405 (June 17,2013)
This ONCA decision has a number of important implications for the law of Internet defamation. The Court addressed the issues of how the limitation periods in Ontario's Libel and Slander Act (LSA) apply to allegedly defamatory Internet publications, rejected applying the American "single publication rule" in Ontario, and clarified the circumstances when defamation and negligence claims can be brought concurrently. (original article written by members, Ryder Gilliland and Max Shapiro of Blakes, published by Mondaq)
Canadian Broadcasting Corporation et al v. Saint John Police Force et al NBQB 167 (May 17,2013)
Justice William T. Grant, of the New Brunswick Court of Queen's Bench quashed a publication ban, previously granted by a provincial court judge, on the names of the persons searched and of the murder suspect in the on-going investigation into the 2011 murder of Richard Oland.
Casses v Canadian Broadcasting Corporation, 2013 BCCA 200 (May 1,2013)
The BC Court of Appeal has rejected an attempt by a plaintiff surgeon to restrict a defamation action to narrow pleaded meanings (such as "was negligent in his treatment of Edith Backer") and has upheld a defence that pleaded different meanings and particulars of other surgical cases raising competence issues.
Plimmer v. Google Inc. 2013 BCSC 681 (April 18,2013)
In this proposed class action proceeding, the plaintiff applied, on an ex parte basis, to have their application for preliminary court approval of the plaintiff's retainer agreement heard and for a temporary sealing order and publication ban on the application. An interim sealing order and publication ban were imposed pending the outcome of the hearing. Griffith J. concluded there should be no sealing order or publication ban in respect of the application and judgment.
1654776 Ontario Limited v. Stewart 2013 ONCA 184 (March 27,2013)
The Ontario Court of Appeal has upheld a lower court decision which ruled that a journalist should not be required to disclose the identity of confidential sources. "The public interest in promoting compliance with the disclosure regime regulated by the Securities Act can be adequately served without granting disclosure."
Asselin v. McDougall 2013 ONSC 1716 (March 25,2013)
Madam Justice Toscano Roccamo of the Ontario Superior Court rejects an application for an interim injunction in this defamation action, in which the plaintiff is suing the defendants for defamation under the Simplified Procedure over two videos and comments made by the defendant and others on YouTube in relation to the videos.
The Queen v. Luka Rocco Magnotta, Court of Quebec - Criminal Division, 2013 03 12 (March 12,2013)
The court rejected a motion to hear a preliminary hearing in camera in a high profile murder case where the defense raised concerns about the mental health of the accused and the possibility that foreign media might breach the publication ban. The court sided with openness and refused to go in camera.
Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCC 11 (February 27,2013)
Justice Rothstein, on behalf of the Supreme Court, held that "the benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression."
The Court found that, while Section 14(1)(b) of The Saskatchewan Human Rights Code does infringe s. 2(b) of the Charter, the infringement can be justified on the grounds that it "exposes or tends to expose to hatred" a person or class of persons on the basis of a prohibited ground of discrimination.
Rothstein J. also states that "the protection of vulnerable groups from the harmful effect emanating from hate speech is of such importance as to justify the minimal infringement of expression".
R. v. Renderos 2013 BCPC 0010 (January 21,2013)
During the sentencing of Renderos an application was brought by the CBC for release of an audio exhibit. These were audio recordings of 911 calls made to the police during the 2011 Stanley Cup riots in Vancouver. Citing privacy interests of the victims of the riot, Palmer J. withheld the recordings, but permitted transcripts of the recordings to be released.
Commission of Inquiry on the awarding and management of public contracts in the construction industry (November 8,2012)
The Charbonneau Commission partially lifted a publication ban and released extracts of the testimony of Lino Zambito, former head of Quebec construction firm, Infrabec.
B.C. Civil Liberties Association v. Regina 2012 (October 29,2012)
This judgment arose from an application by the BC Civil Liberties Association and the media to obtain access to the information used to obtain a search warrant.
The Provincial Court of British Columbia rejected a bald assertion by the RCMP that parts of the Information to Obtain had to remain sealed because their release would impact an ongoing investigation.
Berthiaume c. Carignan 2012 QCCS 4628 (October 2,2012)
Quebec Justice Marc-Andre Blanchard ruled that journalist, Andre Noel, would not have to answer questions or provide documents that would identify confidential sources.
Blanchard J. ruled that the identity of the confidential sources was not relevant to the proceedings in the action between Berthiaume and the defendants.
Saint John Police Force v. Canadian Broadcasting Corporation et al 2012 NBPC 17 (September 28,2012)
The Provincial Court of New Brunswick orders search warrant information to obtain details unsealed in the Richard Oland homicide investigation.
Mainstream v. Staniford 2012 BCSC (September 28,2012)
Justice Adair, of the Supreme Court of British Columbia, rules in favour of the defendant. While finding that Mr. Staniford's statements are defamatory of the plaintiff, Adair J. concludes he should succeed on his defence of fair comment because Staniford had an honest belief in the statements he made and "injuring Mainstream because of spite or animosity was not his dominant purpose..."
A.B. v Bragg Communications Inc. (September 27, 2012)
Justice Abella, on behalf of the Supreme Court, reversed the courts below, in part, and held that the father of a 15 year old has the right to anonymously obtain an order requiring an Internet provider to disclose the identity of a fake Facebook profile on his daughter, so that he could identify potential defendants for an action in defamation on her behalf. She did not have to prove specific harm to her from publicity to justify the anonymity order, as "reason and logic" support a finding in this case of "objectively discernable harm" based solely on her age and the general harms of cyberbullying, for which some social science evidence was cited. Given the anonymity order, though, there's no need for a ban on the details of the application.
Vellacott v. Saskatoon Starphoenix Group Inc. 2012 SKQB 359 (August 31,2012)
The Court of Queen’s Bench for Saskatchewan finds that the criteria for the defences of responsible journalism (communication), qualified privilege and fair comment are all met in this defamation action, brought by Saskatoon-Wanuskewin MP Maurice Vellacott against the Saskatoon StarPhoenix and two of its reporters.
In his decision, Justice Danyliuk summarizes the defences of responsible journalism, qualified privilege and fair comment.
Coltsfoot Publishing Limited v Foster-Jacques, 2012 NSCA 83 (August 16,2012)
The Nova Scotia Court of Appeal (NSCA) overturned a Supreme Court (Family Division) decision which had imposed a sealing order on an entire court file in a divorce proceeding. The NSCA ordered that Coltsfoot Publishing was prohibited from publishing, disclosing, communicating or using information in the court file that might lead to identity theft; something which Coltsfoot had already agreed to do, at both the trial level and at the Court of Appeal.
Manitoba Commission of Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair (July 12,2012)
The Honourable E.N.(Ted) Hughes, Commissioner of the Manitoba Commission of Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair denied a request for a publication ban. Hughes J. also denied the request to restrict audio and video recording and broadcasting of the portions of the inquiry sought to be restricted by the applicants.
R. v. T.(B.) 2012 NSPC 60 (June 29,2012)
In Nova Scotia, a youth court judge trying a youth for murder (provincial court), refused to entertain a ban application from an adult co-accused who has been committed to be tried in Supreme Court on the basis she had no jurisdiction.
Baglow v. Smith (June 14,2012)
The Ontario Court of Appeal allows the appeal and directs that the action in which a blogger sued another for defamation proceed to trial. The Court finds that because there is no existing case law which examines whether different legal considerations apply in determining whether a statement is or is not defamatory in the “blogosphere” than apply to the publication of an article in a traditional media outlet, a trial will permit “important conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and quite possibly with the assistance of expert evidence”.
Centre de la communauté sourde du Montréal métropolitain c. Institut Raymond-Dewar (June 4,2012)
A Quebec court refused to grant a confidentiality order requested by the Clerics of St. Viateur. The clerics, as well as the Institute Raymond-Dewar, are named defendants in a class action lawsuit launched by former students. According to students who attended the all-boys institute between 1940 and 1982, violent sexual assaults took place there.
Canwest Publishing Inc. v. Wilson (April 27,2012)
The British Columbia Court of Appeal has ruled that a journalist who is being sued for defamation is entitled to protect the identity of her confidential source. In overturning the lower court decision, the court found that the identity of the confidential source was not relevant to whether Canwest or the journalist had acted maliciously.
R. v. Dingwell (April 24,2012)
The CBC and Guardian newspaper applied to the Supreme Court of Prince Edward Island to have access to audio recordings of 911 calls, video and audio tapes of three statements made by the accused and a police video of the crime scene, all of which were being used in evidence in the second degree murder trial of the accused. After applying the Dagenais-Mentuck test Justice Mitchell ordered copies of the 911 calls and the accused's video-taped statements to police to be released to the media. Mitchell J. placed restrictions on the use of the crime scene videotape, citing privacy interests of the innocent.
1654766 Ontario v. Stewart and The Globe and Mail (April 20,2012)
The Ontario Superior Court has ruled that a journalist should not be required to disclose the identity of confidential sources even though the published statements of those sources were possibly in breach of provincial securities law.
Éditions Écosociété Inc. v. Banro Corp (April 18,2012)
The Court held (unanimously) that the appeal is dismissed and finds that a real and substantial connection exists between the action and the Ontario court's territory. The Court concludes that although the "claim has connections to more than one forum, given the strength of the connections between the plaintiff and Ontario, it is not at all clear that the plaintiff is engaged in libel tourism and that Quebec would be a clearly more appropriate forum".
Breeden v. Black (April 18,2012)
The Court held (unanimously) that the appeal is dismissed and concludes that an Illinois court does not emerge as a clearly more appropriate forum than an Ontario court for the trial of the libel actions brought by Lord Black.
R v Tse 2012 SCC 16 (April 13,2012)
Justices Moldaver and Karakatsanis, on behalf of the Supreme Court, upheld the BC lower court judgment, which had found that s. 184.4 contravened the right to be free from unreasonable search or seizure under s. 8 of the Charter and that it was not a reasonable limit under s. 1.
Out-of-Home Marketing Association of Canada v. Toronto (April 2,2012)
The Ontario Court of Appeal set aside a sealing order, reversing the lower court's decision. Justice Epstein, writing for the court on the issue of the sealing order, states that "a request to have exhibits sealed implicates the open court principle, and must be approached with great care". Epstein J. finds that the applicant for the sealing order failed to meet the first part of the Dagenais/Mentuck test, which requires that the order be "necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk".
National Bank Financial Ltd. v. Potter (March 2, 2012)
The Halifax Herald and the CBC opposed an application by a witness in a civil action for a Confidentiality Order. The Supreme Court of Nova Scotia dismissed the application for the Confidentiality Order, and found that "the deleterious effects of the Confidentiality Order requested would outweigh the speculative positive effects of granting such an order."
CONSTRUCTIONS LOUISBOURG LTÉE c. SOCIÉTÉ RADIO-CANADA (March 1, 2012)
Constructions Louisbourg, owned by Antonio Accurso, asked the court to find Radio-Canada in contempt, on the basis that their journalists had violated a sealing order and breached the confidentiality of the file. They were also seeking the identity of a confidential source.
The judge ruled that Radio-Canada was not in contempt and that the identity of the confidential source should not be revealed.
R. v. Larue (March 1, 2012)
A Yukon court refused to grant a publication ban on the trial of a co-accused in a first degree murder trial, after finding that the application was "seriously lacking in terms of the evidence required of a party seeking a publication ban". Justice Gower states that "while the accused is entitled to a "fair" trial, he is not entitled to the most favourable trial possible" and that alternative measures exist to protect the co-accused's fair trial rights.
Erdmann v. Institute of Chartered Accountants of Alberta (February 16, 2012)
The Court of Appeal of Alberta denied a publication ban on an appeal from an administrative proceeding on the basis that the applicant had "not demonstrated any compelling reason to seal (the) file". The applicant had been seeking an order to have the files of the Court of Appeal sealed, that she be permitted to prosecute her appeal under a pseudonym, and that the oral argument of the appeal be held in camera.
R. v. Gregson (February 7, 2012)
Justice Rutherford ordered that "any personal electronic device [PED] ...must, subject to the terms of this order, be turned off while Court is in session." However, Rutherford J., provided that "a journalist who is from a recognized media organization may obtain permission in writing from the presiding judge to use the PED..." upon completion and Court approval of the application attached as an Annex to his Order.
Jones v. Tsige, 2012 ONCA 32 (January 18, 2012)
Ontario Court of Appeal recognizes "intrusion upon seclusion" as tortious conduct. Brief comments indicate Court's awareness of possible section 2(b) implications.
R. v. Schertzer et al (January 9, 2012)
Justice Pardu held that in principle, "in this era of newspapers on the internet", journalists should be able to transmit information from court whether they do so by stepping into the hall for a moment, or doing so unobtrusively in the courtroom. Provided that the proceedings are not disrupted, this means the ability to use Blackberries, laptop computers and similar devices from inside the courtroom, and to use those devices to record any portions of the proceedings in which they are interested for the purposes of supplementing or replacing handwritten notes.
Crookes v. Newton, SCC (October 19, 2011)
The Court is unanimous in its dismissal of the appeal. The majority describes hyperlinks as "references", fundamentally different from publication.
R. v. Kossyrine and Vorobiov (October 13, 2011)
An Ontario Court refused to grant a publication ban on a co-accused's guilty plea in a first degree murder trial. The deciding upheld the importance of media's role in reporting court activity to the public and made some important observations about the relationship between the media an juries. "the accused are entitled to an impartial jury not an uninformed jury.".
R. v. Sipes 2011 BCSC 1329 (October 5, 2011)
The B.C. Supreme Court ruled that a publication ban application under s. 486.5 of the Criminal Code was not governed by the Dagenais/Mentuck test, although the test provided guidance in interpreting and analysing the s. 486.5 criteria. The Court granted a ban on publication of the identity of five inmate witnesses, four of whom were serving life sentences for murder.
However, the Court denied a publication ban sought by a lawyer who had acted for some of the accused and was awaiting trial on a charge of participating in the activities of their alleged criminal organization. In this instance the Court found the Dagenais/Mentuck test to be the appropriate legal framework within which to analyse the application for a publication ban.
A.B. v. Bragg Communications Inc., 2011 NSCA 26 (March 4, 2011)
A young person started a defamation claim using initials and simultaneously applied for a publication ban. CMLA members including Nancy Rubin and Al Parish, acting on behalf of media clients successfully intervened and the Nova Scotia court firmly rejects the proposition that a defamation plaintiff (even a young person) can start an action anonymously.
Bou Malhab v. Diffusion Métromédia, 2011SCC9 (February 17, 2011)
The Supreme Court overturns a class action award by Quebec's Superior Court of damages to a non-profit organization representing all members of the class. The Court held that no reasonable person would have taken the impugned comments seriously or believed that they applied to all members of the class.
Canadian Broadcasting Corp. v. Canada (Attorney General) (January 28, 2011)
The good news? Media activity within the courthouse is protected by s. 2(b) of the Charter. The bad news? Justice Deschamps, on behalf of the Supreme Court of Canada, upheld the constitutional validity of a total ban on broadcast of official audio recordings of court proceedings. The rationale was that permitting broadcast of them would interfere with the purpose of making them, i.e. to preserve the record, by potentially influencing witness anxiety and behaviour, and, as a result, affecting the record itself.
The Supreme Court also upheld a restriction on the freedom of movement of media cameras within court corridors. In Quebec, cameras must stay in corridor locations designated by the court, where journalists can record comings and goings, and can invite and conduct consensual interviews with witnesses, lawyers or the public. The silver lining: Media in other provinces can now argue that they should not have to live with the existing total bans on camera and microphone access to court corridors there.
Note: The ban on media camera access to court proceedings in Quebec was not challenged by the media or addressed by the court, and remains an open question.
Canadian Broadcasting Corp. v. Canada (January 28, 2011)
Broadcasting exhibits is not the same issue as broadcasting from court. The Supreme Court overturned a lower court finding that they were related, and confirmed that the test to be used when considering the broadcast of exhibits is the Dagenais/Mentuck test, where the onus is on the party wanting to restrict broadcast to demonstrate that it's necessary. The court added considerations to that test related to the impact on the trial of any co-accused and the accused personally, including in this case his vulnerability as an intellectually disabled person, and his acquittal. In the end, the Supreme Court dismissed the appeal and denied Radio-Canada and TVA the right to broadcast the accused's police interview exhibit on the grounds that given other developments in his case the original access argument had become moot.
Lougheed v. Wilson, 2010 BCSC 1871 (January 10, 2011)
This decision by the BC Supreme Court applies an extremely narrow interpretation of Globe and Mail (the "Polygone" decision by the Supreme Court). The dangerous circular reasoning at the heart of this decision says that in a defamation case, the motive of the source providing information to the journalist is relevant. To discover the source's motive, the Court requires his or her identity. This decision will be appealed.
R. v. Rafferty 2010 (December 16, 2010)
The Crown applied for direction from the court regarding the extent to which an automatic publication ban, provided for under s. 648 of the Criminal Code of Canada, would apply to pretrial motions and applications, in Michael Rafferty`s trial for the murder of Victoria Stafford. Justice Heeney of the Ontario Superior Court ordered a blanket publication ban on all pre-trial motions and applications, with the option for the media to apply for leave to publish.
A blanket publication ban with the option to apply for leave to publish provides the appropriate mechanism both to ensure compliance with applicable statutory bans, as well as to act as a temporary stay on publication until such time as a publication ban hearing can be held and the merits of a common law ban determined.
Spiller v Joseph, 2010 UKSC 53 (December 2, 2010)
UK Supreme Court Comments on "Fair Comment".
R. v. Canadian Broadcasting Corporation (November 1, 2010)
The CBC obtains access to audio-visual exhibits filed in the preliminary inquiry into the death of Ashley Smith in custody.
"The last step in a longstanding struggle by the CBC to maintain the full vigour of the Dagenais/Mentuk test and the open court principle, specifically in relation to exhibits filed in court, and particularly those which record disturbing events." ~M. Philip Tunley.
Globe and Mail v. Attorney General of Canada (October 22, 2010)
Held: The journalist‑source privilege appeal should be allowed and the matter remitted to the Superior Court of Quebec for consideration in accordance with the reasons for judgment. The publication ban appeal should be allowed and the order prohibiting the publication of information relating to the settlement negotiations quashed. The discontinuance appeal should be dismissed as moot.
Turmel v. CBC (Dragons’ Den), 2010 ONSC 5318 (October 16, 2010)
While the Ontario Court agrees that The Dragons on CBC's television show Dragon's Den were "unkind" to the plaintiff, the failure to properly serve a notice of libel under the Libel and Slander Act serves as grounds for summary dismissal. Justice Lofchik also generously takes time to consider whether the plaintiffs unplead breach of contract claim reveals a genuine issue. Here the consent form, signed by the plaintiff effectively bars any such claim. This case serves as an example of the effectiveness of the libel notice requirements as well as the prudence of requiring consent forms.
Prud’homme vs. Municipalité de Rawdon (September 30, 2010)
Anne-Julie Perrault has shared with AdIDEM her summary and comments on a decision last March in the Quebec Court of Appeal overturning a number of injunctions and orders against a website and its users. The Court of Appeal held that the presence of some prima facie defamatory comments on a website did not justify ordering the entire website offline.
Responsible Communication Defense applied in an Ontario Jury Trial (September 13, 2010)
David Helwig, News Director of SooToday.com and defendant in a defamation suit, writes about a decision by the Ontario Superior Court of Justice to dismiss a libel claim against the same news website as well as the Sault Ste. Marie Police. Justice Edware Koke noted that this was one of the first Jury cases to rely upon "responsible communication."
Ontario (Public Safety and Security) v. Criminal Lawyers Association (June 16, 2010)
The failure to include a public interest override in respect of the law enforcement and solicitor-client exemptions does not violate s.2(b) of the Charter. In an unanimous decision co-written by the Chief Justice and Justice Abella, the Supreme Court held that "access to documents in government hands is constitutionally protected only where it is shown to be a necessary pre-condition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned."
Toronto Star v Canada (June 10, 2010)
The constitutionality of the bail hearing publication ban that is automatic at the request of the accused was upheld by the Supreme Court of Canada in two cases emanating from Alberta and Ontario, the Michael White murder case, and the Toronto 18 terrorism case.
Shavluk v. Green Party of Canada (June 9, 2010)
The British Columbia Supreme Court applied the defence of Responsible Communication, again in a non-media context. In this case, the defence used it successfully. See also Hunter v. Chandler
Hunter v. Chandler (May 25, 2010)
The British Columbia Supreme Court applied the new libel defence of Responsible Communication in a non-media case. On this occasion, the defence is unsuccessful.
R. v. McClintic 2010 ONSC 2944 (May 19, 2010)
The Ontario Superior court granted a temporary publication ban on information that mentioned or referred "in any way either directly or indirectly to anything stated directly or indirectly in court about Michael Thomas Christopher Stephen Rafferty" at the trial of Terri-Lynne Ruth McClintic. The ban is no longer in effect as the trial of Mr. Rafferty has been completed and a verdict has been rendered.
National Post, et al. v. Her Majesty the Queen (May 7, 2010)
While confirming the importance of confidential sources to journalists in normal circumstances, the Supreme Court of Canada dismissed the appeal of the National Post against an order requiring it to give the police documents obtained by its reporter in a brown envelope, documents which it maintained would have to have been given up even by lawyers claiming solicitor-client privilege. The documents, they held, were potential evidence of a crime, uttering a forged document. The court maintained the Wigmore test as is, leaving the onus on the media to establish all its elements, including that the public interest in protecting a secret source outweighs the public interest in a criminal investigation.
R. v. Fry (April 6, 2010)
The British Columbia Court of Appeal affirmed the media's right to access court exhibits and limit the application of the decision in Vickery v. Nova Scotia Supreme Court (Prothonotary).
Grant v. Torstar (December 22, 2009)
The Supreme Court of Canada has just given us the new defence of Responsible Communication on Matters of Public Interest...
Audette v. Radio-Canada and Gravel (September 23, 2009)
An injunction sought to stop an invasion of privacy was denied, even though Radio-Canada's source taped the plaintiff without his knowledge, and contrary to his wishes. The Dagenais/Mentuck test was not met...
Crookes v. Newton (September 15, 2009)
Hyperlinks to defamatory material on other websites may expose website owners to liability in defamation...
MacDonnell v. The Halifax Herald Ltd. and Stephen Maher (June 8, 2009)
Freedom of the press trumps privacy rights in accidental Ministerial tape recording...
R. v. O'Brien re Blackberry (May 4, 2009)
Can you use Blackberrys in court? You can for the Ottawa mayor's trial...
Saint John Pension Plan v Ferguson, Marks 3rd Party (April 29, 2009)
An editor's correspondence is protected from 3rd party production in a libel trial against an outside commentator
R. v. Imona-Russel (January 8, 2009)
This is a publication ban case where the defence and crown both sought a ban on certain evidence from the accused's sexual assault trial that was being heard by a judge alone. The grounds for the publication ban were that the accused was also facing a jury trial in an unrelated murder charge eight months later and the jury would be tainted by media coverage of the sexual assault trial. The judge declined to order a publication ban on the grounds that the media coverage of the accused's two criminal cases had been limited and challenges for cause would protect the accused's fair trial rights and ensure an unbiased jury was chosen for the murder trial.
Toronto Star Newspapers v. Canada (January 26, 2009)
The Ontario Court of Appeal has now ruled in the media's constitutional challenge of the mandatory publication ban at bail hearings.
The decision was 3:2, with the majority (written by Feldman JA, concurred in by Laskin, Simmons JJA) declaring that Criminal Code s. 517 (the publication ban section for bail hearings) should be read down by adding after "shall on application by the accused" the following words "where and for so long as the charge(s) may be tried by a jury".
The dissent, written by Justice Rosenberg, and concurred in by Juriansz JA, would have declared the words "and shall on application by the accused" in s.517 to be of no force and effect, wiping out the mandatory ban completely. They would have suspended the invalidity for 12 months.
This decision contrasts with the decision of the Alberta Court of Appeal, which held recently in R v White that the section was constitional as written.
Grant v. Torstar (November 28, 2008)
This is the first appellate decision to apply the defense of responsible journalism in Canada.
WIC Radio Ltd. v. Simpson (June 27, 2008)
The Supreme Court of Canada has reinvigorated the Fair Comment defence. In the process it overturned its own 1979 decision in Cherneskey v Armadale, so that media organizations can publish the opinions of others, without having to agree with those opinions themselves. Justice Binnie, on behalf of the seven member majority, made it clear that the traditional test for the defence does not include a requirement that a court must find "fairness" in the opinion or the person offering it. If the opinion could honestly be held, fairness is in the ear of the beholder. Oh, and Rafe Mair won. Unanimously.
St. Elizabeth Home Society v. Hamilton (City) (In the matter of the citation of Ken Peters for contempt) (March 17, 2008)
The Ontario Court of Appeal allowed the appeal of Ken Peters, a reporter with the Hamilton Spectator, setting aside his citation for contempt for refusing to answer questions that would identify his confidential source. Justice Sharpe, writing for the court, reviewed the importance of confidential sources to journalists, limited the effect of the Moysa decision, and incorporated Dagenais/Charter principles into the Wigmore analysis of privilege and the court's consideration of contempt. Contempt is a last resort. Here, the trial judge used it too quickly, and applied it when it was not necessary to do justice. This judgment sets out important principles, and does so very well. The only consideration limiting the usefulness of this decision in future is that in the end, the source was not protected. The pressure on the journalist resulted in the source revealing himself.
Cusson v. Quan et al (Ottawa Citizen) and Barager (November 13, 2007)
Earth-shattering or simply incremental change to Ontario's libel law... it depends on your perspective. Justice Sharpe, on behalf of the Ontario Court of Appeal reviewed recent libel developments around the world and Canada, and incorporated a new made-in-Canada Reynolds/Jameel "public interest responsible journalism" defence into our law. The “chill” from the traditional Canadian common law of defamation is gone, replaced by the "thrill" of publishing stories that journalists investigate and have "every reason to believe" are true, on matters “the public has a legitimate interest in hearing”.
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- Grant v. Torstar.pdf
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- R. v. Imona-Russel.pdf
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- R. v. Peters.pdf
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