January 28, 2011
Canadian Broadcasting Corp. v. Canada
Broadcasting exhibits is not the same issue as broadcasting from court. The Supreme Court overturned a lower court finding that they were related, and confirmed that the test to be used when considering the broadcast of exhibits is the Dagenais/Mentuck test, where the onus is on the party wanting to restrict broadcast to demonstrate that it's necessary. The court added considerations to that test related to the impact on the trial of any co-accused and the accused personally, including in this case his vulnerability as an intellectually disabled person, and his acquittal. In the end, the Supreme Court dismissed the appeal and denied Radio-Canada and TVA the right to broadcast the accused's police interview exhibit on the grounds that given other developments in his case the original access argument had become moot.
January 28, 2011
Canadian Broadcasting Corp. v. Canada (Attorney General)
The good news? Media activity within the courthouse is protected by s. 2(b) of the Charter. The bad news? Justice Deschamps, on behalf of the Supreme Court of Canada, upheld the constitutional validity of a total ban on broadcast of official audio recordings of court proceedings. The rationale was that permitting broadcast of them would interfere with the purpose of making them, i.e. to preserve the record, by potentially influencing witness anxiety and behaviour, and, as a result, affecting the record itself. The Supreme Court also upheld a restriction on the freedom of movement of media cameras within court corridors. In Quebec, cameras must stay in corridor locations designated by the court, where journalists can record comings and goings, and can invite and conduct consensual interviews with witnesses, lawyers or the public. The silver lining: Media in other provinces can now argue that they should not have to live with the existing total bans on camera and microphone access to court corridors there. Note: The ban on media camera access to court proceedings in Quebec was not challenged by the media or addressed by the court, and remains an open question.
January 10, 2011
Lougheed v. Wilson, 2010 BCSC 1871
This decision by the BC Supreme Court applies an extremely narrow interpretation of Globe and Mail (the "Polygone" decision by the Supreme Court). The dangerous circular reasoning at the heart of this decision says that in a defamation case, the motive of the source providing information to the journalist is relevant. To discover the source's motive, the Court requires his or her identity. This decision will be appealed.