Challenges of Enforcing Statutory Publication Bans Online

Earlier this month, the Supreme Court of Canada ruled in on this again in R. v. Canadian Broadcasting Corp. on an application for a mandatory injunction. Although much of the commentary on this case has focused on how the Court has modified the historic test used for injunctions, few have looked at other aspects of the ruling, including the enforceability of statutory publication bans online.

An injunction is a powerful tool wielded by the courts, but one that should be applied sparingly. A court will order or compel a party to do something, or refrain from doing something, but will typically do so on an interim basis. This means that a trial decision may reverse this decision, and the moving party would have been provided a right they would otherwise not be entitled to.

For many years now, the prevailing case on injunctions in Canada has been the Supreme Court’s decision in RJR — MacDonald Inc. v. Canada (Attorney General) in 1994. The Court formulated the 3-part test that is still used today, which was itself imported from the House of Lords,

The three‑part American Cyanamid test (adopted in Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.) should be applied to applications for interlocutory injunctions and as well for stays in both private law and Charter cases.

At the first stage, an applicant for interlocutory relief in a Charter case must demonstrate a serious question to be tried…

 At the second stage the applicant is required to demonstrate that irreparable harm will result if the relief is not granted…

The third branch of the test, requiring an assessment of the balance of inconvenience to the parties, will normally determine the result in applications involving Charter rights.

Other versions of this test in Canada, for example the 2-part test found in British Columbia (Attorney General) v. Wale, still include the substantive elements of the RJR-Macdonald test.

Once a judge is satisfied that an application is neither frivolous or vexatious, it is generally not desirable for courts to conduct an extensive examination of the merits or evaluation as to whether a party is to succeed at trial.

There are also other exceptions where this general framework for injunctions is not applied, which were spelled out by the Court,

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits.

The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial…

The second exception to the American Cyanamid prohibition on an extensive review of the merits arises when the question of constitutionality presents itself as a simple question of law alone.

The circumstances for both of these exceptions are rare, but do occur from time to time.

What has been more uncertain is the threshold that should be applied at the first step of the test where an applicant seeks a mandatory injunction, which are rarely ordered and prohibit specific acts. The courts in in Alberta, Nova Scotia and Ontario have required a strong prima facie case, whereas other provinces and jurisdictions in Canada have simply required that there is a “serious issue to be tried.”

The unanimous ruling by Justice Brown in this case preferred the strong prima facie approach,

[15] In my view, on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR—MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise “put the situation back to what it should be”, which is often costly or burdensome for the defendant and which equity has long been reluctant to compel.[25] Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, “the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial”.[26] The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR—Macdonald as “extensive review of the merits” at the interlocutory stage.[27]

The modified RJR-Macdonald test provided by the Court was as follows:

[18]

…(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction.

The case dealt with a publication ban under Sections 486.4(2.1)  and 486.4(2.2)  of the Criminal Code, for an accused charged with first degree murder of a person under the age of 18. The CBC had revealed the identify of the victim on their website, but did so prior to the publication ban being issued. They then refused to remove this information, and the Crown sought the removal of the information on an interlocutory basis while citing the CBC in criminal contempt.

The CBC’s position was that information pre-dating a non-publication order does not constitute a “publishing” or “transmission” under the Code. The Crown argued for a broad interpretation of these terms to include reading online, despite the lack of any reference to the Internet in the Code itself. The restraint called for criminal contempt weighed against this broad interpretation on an interlocutory basis, which formed the core of the motions judge’s decision.

The criminal nature of this case may limit its direct application in civil contexts, in that the old RJR-Macdonald test is not likely to differ significantly on a balance of probabilities than the modified test will. The Court adopted the dissent of the Alberta Court of Appeal, where Justice Greckol stated,

[30] While there is a historical view that “civil courts should not attempt to interfere and forbid by their injunction that which has already been forbidden by Parliament itself” (Robinson v Adams (1925), 1924 CanLII 406 (ON CA)1 DLR 359 at 364-365, 56 OLR 217 (CA)), in Alberta (Attorney General) v Plantation Indoor Plants Limited1982 ABCA 1 (CanLII) at para 5, 34 AR 348, McClung JA rejected the notion that injunctive relief should not issue in aid of enforcement of the criminal law.

[31] It may be that an injunction in a criminal context is only to be used in rare circumstances “where by reason of lack of time or otherwise no other suitable remedy is available should such an injunction be granted to prevent the commission of a crime”: Nova Scotia (AG) v Beaver67 NSR (2d) 28118 DLR (4th) 287 at 301 (CA).

Justice Greckol emphasized the difficulty of demonstrating a strong prima facie case of criminal contempt of court in rejecting the application for a mandatory injunction. The Crown’s failure in this case lay more in their characterization of the mandatory injunction sought in their application materials. She stated,

[26] In the appeal before this Court, the Crown continued to frame its arguments on the basis that its application was for criminal contempt and that the interim injunction was sought in those proceedings. At para 8 of its written submission, the Crown frames its challenge to the findings on the tri-partite test, querying whether the Chambers Judge was correct that the “Crown had not established a strong prima facie case for criminal contempt”. There is no argument by the Crown that the Chambers Judge mischaracterized the question as to the first element of the tri-partite test because it had sought an interim injunction in the context of a “hybrid” application, with the interim application for injunctive relief sounding in civil law.

[27] With respect, it is not open to this Court to re-cast the argument in a fashion that the applicant Crown failed to do. It is not open to this Court to re-cast the language of the application to read as though it were a civil application for an injunction in the interim or pending a permanent injunction, rather than an application for an interim injunction in a proceeding for criminal contempt, as all concerned have understood it to be to this point.

[28] I agree, as the majority posits, that the Originating Notice “was essentially civil in nature”. Civil process may be employed in a common law criminal contempt prosecution, as was the case in United Nurses. Indeed, contempt that commences as civil contempt may be converted to criminal contempt on the court’s own motion, albeit the application was commenced as a civil proceeding.

[emphasis added]

Had this application proceeded separately as a form of civil relief, or if the relief was properly characterized as an interim or interlocutory injunction, the outcome here might have been different. The Crown was unable to do so due to the characterization of their application materials, which was based exclusively on a remedy for allegedly criminal contempt. An injunction is not a cause of action, but a remedy, and although the Crown attempted to characterize their materials as a hybrid application with a civil application for interim relief, this was inconsistent with the materials themselves.

What is also interesting in this decision is how the Crown attempted to make their case. The absence of case law on this subject of mandatory injunctions in the criminal context compelled the Crown to rely on civil authorities in the motions application,

[24] The Attorney General refers also to civil defamation cases which consider publication in the context of limitation periods. It relies on comments in Black v Breeden2009 CanLII 14041 (ON SC)2009 CarswellOnt 170309 DLR (4th) 708 (SCJ) that in an internet context publication occurs “when the words are heard, read or downloaded”. Similar sentiments are stated in Kent v Martin2012 ABQB 507 (CanLII), and Carter v Federation of Foster Parents Assn.2005 BCCA 398 (CanLII).

[25] The Attorney General also refers to the English Court of Appeal’s decision in Loutchansky v The Times Newspaper Ltd. & Ors[2002] QB 7832 WLR 640, another civil case dealing with a limitation period. The Attorney General relies on the case for amongst other things its beguiling comments that the “maintenance of archives” is a comparatively insignificant aspect of freedom of expression and less deserving of protection than, say, “the dissemination of contemporary material” (at para 74). Perhaps that will be argued further when the parties get to the merits. In any case, Loutchansky also discusses the so-called “single publication” rule in the internet context, and says this, at para 73:

[The Appellants] must establish under [the single publication rule], placing a publication on their website constitutes a single publication that occurs at the time it is placed on the website regardless of the period during which it remains there. The latter is by no means clear, but at least it is arguable.”
[emphasis added by the court]

What is more concerning is that the media can employ the interpretation that they are immune from publication bans simply because the information is posted online, instead of in print or through television or radio. This perpetuates the problem that Canadian courts appear to be facing regarding online publication of materials generally, especially around the single publication rule.

The Law Commission of Ontario is currently conducting a study on Defamation Law in the Internet Age, which states in its Consultation Paper,

The phenomenon of ubiquitous internet republication also has procedural implications. Traditionally in defamation law, every communication of a defamatory statement founds a separate cause of action. This means that a new limitation period begins to run in relation to each publication or republication of the statement. It ensures that a plaintiff is able to sue in relation to all reputational harm arising from republication as well as the original publication. This “multiple publication rule” continues to be the law in Ontario.

The multiple publication rule made sense in pre-Internet days where it was more difficult to republish a defamatory statement (publishing another newspaper article for example). It was still possible for the parties to have a relatively clear idea of when the limitation period began to run and when it would expire.

However, the rule is increasingly nonsensical in the internet context where republication of defamatory statements can be virtually endless and impossible to control or even to track, and the first publication is permanently available. In these circumstances, pinning the limitation period to each republication of the statement renders the limitation period virtually meaningless.

Statutory publication bans, though applied in the criminal context, have no strength and fail their societal utility in protecting the identity of minors, if the media can simply beat the courts to the publication or transmission by posting it to the Internet before the order is sought. In the case of most crimes, this will occur in every single instance of news coverage for high profile incidents.

The implications of this go beyond just minors, and include a wide variety of sensitive issues, including s. 276.3 (evidence of complainant’s sexual activity); s. 278.9, (production of complainant’s or witness’ personal records (O’Connor application)); s. 486.5, (proper administration of justice); s. 517 (judicial interim release (bail) hearings); ss. 539 and 542 (preliminary hearings); s. 631(6) (jury selection); s. 648 (jury not present ), ss. 672.51 and 672.501, (Mental Disorder / Review Board hearings).

Given the widespread discussion on reforms around juries and sexual assault processes, these protections have never been more important. In 2015, the government introduced the Canadian Victims Bill of Rights, which provides every victim the right to have their privacy taken into consideration by the justice system.

These rights become moot without an ability to enforce them online, which will remain challenging within the criminal context. Based on this decision, proper enforcement of statutory publication bans requires a prayer for relief that would identify an independent proceeding, ideally of a civil nature that would apply a different standard of proof.

Comments

  1. David Collier-Brown

    At Lexis Nexis, we always considered publication bans to apply to ourselves, and suspended availability of the matter in question, but retained it in our records until the ban expired. We then re-posted it.

    I’m mildly surprised the CBC does not have the same rule. That they do not has wider implications, especially in the debate over whether there is a “right to be forgotten” in Canada.

Leave a Reply

(Your email address will not be published or distributed)