R v Canadian Broadcasting Corporation 2018 ABCA 391

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Note

The ABCA dismissed the Crown's appeal and upheld the lower court decision, confirming that "publication" only occurs once and that publication bans are not retroactive.

Decision Summary

The Crown appealed the acquittal of the CBC of criminal contempt for violating a publication ban issued under section 486.4(2.2) of the Criminal Code, RSC 1985, c C-46. On an application for a section 486.4 ban, it is mandatory that the presiding judge impose it when the victim of the crime is under the age of 18: s 486.4(2.2)(b). The Ban prohibits “any information that could identify the victim” from being “published in any document or broadcast or transmitted in any way”: s 486.4(2.1).

...I am of the view that section 486.4 is capable of two interpretations. That is, arguments for both the broad and narrow interpretation of “published” and “transmitted” are plausible using the modern approach of statutory interpretation. This leaves a reasonable doubt as to their meaning and scope, which requires us to apply the rule of strict construction.
The “highest degree of clarity, explicitness and specificity” in a Criminal Code offence is necessary before concluding that Parliament intended to authorize a justified infringement of CBC’s Charter-protected right to publish. Parliament did so in other Criminal Code publication ban provisions and in the YCJA. Further, it is critical for an accused to know precisely what constitutes the order which it is alleged to have breached.
...I conclude that the narrow definitions of published and transmitted apply. That is, “published” and “transmitted in any way” do not capture the CBC’s refusal to remove or redact previous identifying information after the Ban issued. In this respect online publication of identifying information is no different than if reported in traditional media. If section 486.4(2.1) and (2.2) are intended to apply when identifying information is published and transmitted before a section 486.4 ban issues, statutory amendments are required.

References

R v The Canadian Broadcasting Corporation 2018 ABCA 391

R v The Canadian Broadcasting Corporation 2017 ABQB 329

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