Law school exam question: In a news report on its website, the CBC names an Alberta girl who was murdered. Twelve days later, during the accused murderer’s first appearance in court, the judge bans publication of the girl’s name. From then on, the CBC does not name the girl in any of its stories. Does it also have to remove her name from website stories posted before the ban?
This is the context of CBC v. The Queen, released last Friday (Feb. 9, 2018) by the Supreme Court of Canada. The larger case could well establish new law on what Canadian legalese means by “publishing.” Does the word include permitting internet access ad infinitum?
Under some influential provincial law, defamatory material on a website is said to be published or broadcast every time someone “accesses” it. Related law also says that transmitting amounts to publishing. The Alberta Crown has argued that these principles should apply in the CBC website case – that, by not taking down the girl’s name, the CBC is in contempt of court, because it is still publishing her identity.
Usually, disobedience of a court order is a civil contempt. The prosecution still has to prove it beyond a reasonable doubt, but it is not criminal (supposedly more serious, although these days, business-people and battling spouses flout court orders so arrogantly that the penalties can be severe for their “civil” breaches) unless the disobedience is public and undertaken with the intent or knowledge that the court’s authority will be, or is likely to be, undermined or depreciated. In the civil context, contemnors need not intend to thumb their noses at the court: they simply must deliberately do the act that the order forbids – here, supposedly “publishing” the girl’s name.
But the Alberta Court of Queen’s Bench has already said that the CBC is guilty neither of criminal nor civil contempt, and the Supreme Court of Canada has yet to consider that decision. In the Friday judgment, the high court simply has declined to order the CBC to take down the girl’s name pending the Crown’s appeal of the contempt motion. (I.e., the Crown argues in a separate appeal that the motion court wrongly decided there was no contempt.)
If the Queen’s Bench contempt ruling stands, “publishing” for the purposes of contempt law will be different from publishing in other areas of our jurisprudence. To understand this, you have to parse its contempt ruling to distinguish what the court says about publishing from what it says about criminal contempts.
The court has a reasonable doubt about publication because: the CBC did not publish the name after the ban, it simply allowed access to it; “access” to material does not necessarily mean it is published, never mind that “access” and “publication” can be synonymous in defamation law and under the Youth Criminal Justice Act; the media guide issued by the Alberta Court of Appeal says that allowing access is not publishing; an infringement of a constitutional right such as free expression must be precisely defined, and whether there is disobedience here is debatable; allowing access is not transmitting or broadcasting.
The court has a reasonable doubt about criminal contempt because: the girl’s name is available elsewhere all over the Internet and in print, including in newspapers and publicly-available court records; the CBC is not disobeying the order so much as disagreeing with Alberta’s interpretation of it, such that it is not “defying” anything; the CBC has a right and duty to report. As well, Alberta’s Queen’s Bench holds that CBC has not been “strident or even disrespectful” but principled in its disagreement with the Alberta Crown’s view of the ban, and that, with potential libels, we know our obligations from the start whereas here the CBC would have had to predict the future here (i.e., that the publication ban would issue).
Perhaps anticipating all these difficulties regarding a criminal contempt, the Crown had argued that, alternatively, the CBC is in civil contempt. The court responds that the same doubt as to disobedience applies. This suggests that the Crown has failed to show (beyond a reasonable doubt) that the CBC intended to do what the order forbids.
The Supreme Court’s injunction decision (refusing to order the CBC to take down the name temporarily) does hint at what that highest court might say if the contempt appeal reaches it. First, Justice Brown (for all nine judges) says that that the Crown’s application for an injunction and the contempt motion are linked, given that the Crown seeks temporary removal of the name based on its continuing allegation that permitting access to it is a contempt. Then he notes that, in (wrongly) ordering the CBC to take down the name pending the appeal of the contempt decision, the majority of the Alberta Court of Appeal admits that both the Crown and CBC positions are “arguable.” This, Justice Brown concludes, is “an acknowledgment that the Crown had not shown a strong prima facie case of criminal contempt.” Because the Crown could not show contempt even in this arguable, presumptive sense (for the purposes of a temporary ban on access), the Supreme Court overturns the injunction – which is why it might well find that there is no contempt for internet access to material that is posted before a court bans that publication.
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