In particular, both appeals concern the denial of sealing orders over motion records for r. 7.08 settlement approvals.
The appeal was dismissed.
The ONCA deals with a range of issues that will be helpful to the media in other matters, including finding that privacy was not at serious risk in these cases. Regarding the DM/Sherman Estate test, the Court held that the appellants’ bases for seeking a sealing order (in addition to privacy, they relied on the protection of vulnerable litigants, and protection of solicitor-client privilege) all fail the first step of the test.
Sossin J went on to say that even if any of these had made it past the first step, they would have failed at the second and third steps as well. There is also an endorsement of the appropriateness of tailored orders where something is necessary, rather than broad brush sealing.
[75] … Medical records may be, but are not necessarily, revealing of core aspects of a person’s identity. Where they are, anonymizing those records or otherwise redacting the record may address any risk without the need for a sealing order. Similarly, the appellants have not demonstrated that information, including the motion record, in the public court file would undermine Dr. C.’s dignity by striking at his “biographical core.” These issues were properly addressed by the motion judge and found to not meet the high bar of a serious risk to an important public interest.
In addition, there is strong endorsement of the importance of oversight when dealing with vulnerable litigants, a determination that parens patriae doesn’t grant a freestanding reason for a sealing order.
On solicitor client privilege, the Court endorsed the view that there is nothing inherent in Rule 7.08 that compels the disclosure of privileged material and it’s incumbent upon counsel to draft their affidavits accordingly.
]]>Randy Riley was acquitted by a jury of second-degree murder and unlawful
possession of a firearm on October 5, 2023. Kaitlin Fuller testified for the Crown,
was examined and cross-examined at length, and was the subject of a Vetrovec
caution. She was mentioned in reporting by the CBC, but her evidence was
reported in greater detail in two online articles by the Halifax Examiner, an online
publication. After the Halifax Examiner’s articles were posted, the Federal
Attorney General, representing the Witness Protection Program (WPP), applied for
a retroactive confidentiality order in relation to the details of Ms. Fuller’s evidence.
Justice Arnold states:
[42] I acknowledge that there was an obvious alternative measure that could have
prevented the present situation: the WPP, aware that a protected person was
testifying in a murder trial and that her evidence might touch upon information
pertinent to her WPP status, could have monitored the situation and raised its
concerns — through the PPS Crowns if necessary — before news organizations,
reasonably believing they were bound only by the existing publication ban,
published allegedly objectionable information.
[43] This leaves the final question: do the benefits of the proposed order
outweigh its negative effects? This issue requires some consideration of the
broader background to this application, and of the details of the remedy sought.
[51] To purport to make this order retroactive would result in potential
criminalization of reporting and publishing done in good faith reliance on an
existing publication ban. As counsel for the Attorney General conceded in the
hearing, the WPP could have monitored the trial, and specifically Ms. Fuller’s
evidence. They could have acted promptly. They were fully aware that Ms. Fuller
would be cross-examined and that the subject of her relationship with the WPP would arise in her evidence. I reject any suggestion that the WPP can claim to have
been taken by surprise. Having opted not to take what they now say are necessary
steps when they might have been effective, they now request draconian measures
after the horse has left the barn. In effect the Attorney General seeks an absolute
veto over public reporting before, during, and after a trial where a protected person
testifies, with no public disclosure of the specifics of what is being objected to, and
which can be invoked after the fact, when the impugned information has already
been published. Going further, they ask that the court act simply as a mouthpiece
for the WPP in imposing these ex post facto measures, without really undertaking
any balancing or exercising any discretion.
[53] The Attorney General concedes that they have no authority that would
support giving a publication ban retroactive effect — that is, to deem the new
order as having been in effect during the trial. There is no dispute that in some
contexts the court can order material removed from a website, such as defamatory
material, material published in contravention of a publication ban, or material that
violates a statue, such as the Youth Criminal Justice Act. I would not rule out the
possibility that section 11.5(4) might permit such an order in appropriate
circumstances, particularly where information has been disclosed in violation of an
existing order or publication ban. That is not the case here.
[55] I conclude that it would be disproportional to any good that would be
accomplished to make an order that would retroactively criminalize good faith
publication simply because the Attorney General and the WPP chose not to take
the necessary steps ahead of time, or because they later changed their minds. In
addition to the potential consequences for those who published the information, to
make such an order would have a chilling effect on freedom of speech in any
proceeding where a WPP-protected witness testifies.
In its decision overturning the lower court judgment, the MBCA found that CBC was entitled to rely upon the responsible communication defence. In the event that the Court is found to be incorrect on liability, the Court also lowered the damages assessment to $100,000.
This decision affirms the principles underlying the responsible communication defence.
]]>The application judges in both cases dismissed the media applications, concluding that the automatic publication ban found in s. 648(1) of the Criminal Code that prohibits the publication of information about portions of a criminal trial at which the jury is not present applies not only after but also before the empanelment of the jury.
The automatic publication ban in s. 648(1) of the Criminal Code applies not only after the jury is empanelled but also before the jury is empanelled with respect to matters dealt with pursuant to s. 645(5) of the Criminal Code, which confers upon trial judges the jurisdiction to deal with certain matters before the empanelment of the jury.
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Section 140(13) of the Corrections Act imposes an explicit limit on victims’ access to audio recordings, a limitation which applies to the families of the victims.
The FCA found that the Federal Court did not err in dismissing the families’ applications for a review of Corrections Canada’s and the Parole Board’s refusal to disclose the withheld information.
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The chambers judge allowed the application and dismissed the action. He held both that H had a valid fair comment defence and that the value in protecting his expression outweighed the resulting harm done to N.
The Court of Appeal disagreed on both counts and reinstated the action.
“The chambers judge did not err in concluding that the public interest weighing exercise mandated dismissal of the underlying action or that N failed to adequately challenge the validity of H’s fair comment defence. Accordingly, his order dismissing the defamation action should be restored.”
]]>The Court ultimately held Google liable in defamation and awarded the sum of $500,000 in moral damages to the plaintiff.
The Court additionally granted an injunction ordering Google to remove the publications from Google’s search results within the province of Quebec. The Court denied the plaintiff’s request for punitive damages and the plaintiff’s request for a confidentiality order protecting his identity and the identities of the plaintiff’s family members.
]]>The Court rejected the applicant’s argument that an individual’s opinion about the sensitivity of their information is the paramount consideration in determining whether there is an important public interest, which was the interpretation of the scope of dignity interests discussed in Sherman Estate by another Alberta Court of King’s Bench judge in Doe v Canada (Attorney General).
The Court confirms that whether privacy interests are an important public interest is not a subjective matter: the focus of the analysis is not whether the information is personal to the individual but whether a larger societal interest requires protection (at para 25, citing Sherman Estate v Donovan at para 33). The court also found that there is no important public interest in confidentiality in this case, and that there is no risk to a fair trial of the issues.
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