Tag Archives: freedom of expression

Court won’t redact or take down its decision

15 Sep

On September 7th, the Court of Appeal for British Columbia dismissed an application to have part of its reasons redacted or to have the reasons withdrawn from the Court’s website. 

The applicant believed that part of the reasons – released in 2004 – were harmful to his reputation, a problem he said was facilitated by internet search. The Court dismissed the application because redaction would offend the principle of finality. It held that redaction alone would effectively amount to an amendment of the Court’s (substantive) conclusions. (This is a non-obvious point of principle of some significance.) The Court also relied on the open courts principle, which it affirmed. 

MacGougan v. Barraclough, 2017 BCCA 321 (CanLII).

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Case Report – Ont. C.A. says communication defence to mischief offence should be broadly construed

1 Jul

Yesterday, the Ontario Court of Appeal acquitted an individual accused of mischief for parking an old van on his front lawn while his neighbors attempted to sell their house (as displayed below). The Court held that the defence in section 430(7) of the Criminal Code applied notwithstanding the accused admitted that he employed the prop as an admitted tactic for causing his neighbors to withdraw an unrelated lawsuit.

Section 430(7) reads:

No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

The Court of Appeal stated that this provision, “protects acts done for the purpose of communicating information that would otherwise constitute mischief regardless of whether the intended results of that communication were to interfere with or interrupt the use or enjoyment of another person’s property.” It also held that the defence, as ambiguous in meaning, must be interpreted applied consistently with the values embodied in section 2(b) of the Charter. Recognizing that the line between lawful and unlawful communication “will not always be easily drawn,” it suggested the degree to which the communication obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property will differentiate lawful from unlawful communication. Not easily drawn indeed!

R. v. Tremblay, 2010 ONCA 469.

Case Report – SCC says informer privilege absolute

13 Oct

In a judgment released October 11th, the Supreme Court of Canada weighed the interest protected by the informer privilege against the interest in open courts. An 8 – 1 majority held that informer privilege is an absolute bar on the disclosure of an informer’s identity subject only to the innocence at stake exception.

The majority strongly affirmed the mandatory character of the informer privilege. Writing for the majority, Bastarache J. said:

The informer privilege rule is mandatory (subject only to the “innocence at stake” exception). To permit trial judges wide discretion in determining whether to protect informer privilege would undermine the purposes of the rule. Part of the rationale for a mandatory informer privilege rule is that it encourages would-be informers to come forward and report on crimes, safe in the knowledge that their identity will be protected. A rule that gave trial judges the power to decide on an ad hoc basis whether to protect informer privilege would create a significant disincentive for would-be informers to come forward, thereby eviscerating the usefulness of informer privilege and dealing a great blow to police investigations.

Despite this forceful position, the majority did leave open the possibility that the rule might be the subject of a Charter challenge. It was disinclined, however, to embark on a constitutional analysis in the circumstances because the appeal was of a discretionary order.

The core of the majority judgement is directed at how the judiciary should operationalize the privilege, for even though the privilege must always be respected it is clear that a judge also has a duty to apply it in a manner that minimally impairs the open court principle. The majority recognized that meeting this duty can be challenging for judges because the parties will frequently consent to an in camera process.

In recommending a model process to assist judges in meeting this challenge, the majority held that:

  • a judge can appoint an amicus curiae for the limited purpose of addressing whether the evidence supports the conclusion that a person is a confidential informer
  • the media does not have standing to address this question
  • the media may have standing after the privilege has been established in a second hearing to address the issue of minimal intrusion
  • members of the media should be provided with notice rather than be hand picked
  • whether notice to the media is given is a matter of the judge’s discretion
  • the media should not be provided with identifying information and, more generally, should only be provided with information essential to making an argument

LeBel J. was the lone dissenter. Unlike the majority he framed the contest as between a constitutionally-protected principle (open courts) and a judge made rule that promotes the administration of justice (the informer privilege). He held that an absolute rule was not warranted because the privilege is not an end in and of itself. He also suggested that the majority should have embarked upon a constitutional analysis even though a Charter challenge to the common law rule was not formally made. Given the qualifier made by the majority, LeBel J. may some day get another chance to make his point.

Named Person v. Vancouver Sun, 2007 SCC 43.