November 23, 2018
R v Canadian Broadcasting Corporation 2018 ABCA 391

The Crown appealed the acquittal of the CBC of criminal contempt for violating a publication ban issued under section 486.4(2.2) of the Criminal Code, RSC 1985, c C-46. On an application for a section 486.4 ban, it is mandatory that the presiding judge impose it when the victim of the crime is under the age of 18: s 486.4(2.2)(b). The Ban prohibits “any information that could identify the victim” from being “published in any document or broadcast or transmitted in any way”: s 486.4(2.1).

The ABCA first looked at statutory interpretation starting at para 17:

The Criminal Code does not define “published”, “broadcast” or “transmitted” for the purposes of section 486.4. This means the principles of statutory interpretation must be applied to determine their meaning. Since “broadcast” is not at issue on appeal, no further reference is made to it.

Para 18 seems to suggest this ruling may also apply to defamation cases. The court highlights “by any act” – and then says that leaving information accessible is not a “act”.

Section 12 of the Interpretation Act, RSC 1985, c I-21 requires that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” The starting point for the interpretation of all legislation, including penal statutes, is the modern principle. The “words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21, 36 OR (3d) 418, quoting E. A. Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87. As the Supreme Court held recently, provisions of the Criminal Code are subject to interpretation in “‘their entire context and in their grammatical and ordinary sense harmoniously’ with [the relevant Part’s] scheme and undergirding purpose …”: R v Jones, 2017 SCC 60 at para 59, [2017] 2 SCR 696.

Then, at para 24, the court states:

Establishing publication or republication requires proof that “the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it”: Crookes v Newton, 2011 SCC 47 at para 16, [2011] 3 SCR 269 with emphasis in original. Hyperlinking to defamatory content without repeating the defamatory content is not publication due to its passive nature and lack of control of the content…

The court goes on to conclude:

…I am of the view that section 486.4 is capable of two interpretations. That is, arguments for both the broad and narrow interpretation of “published” and “transmitted” are plausible using the modern approach of statutory interpretation. This leaves a reasonable doubt as to their meaning and scope, which requires us to apply the rule of strict construction.

The “highest degree of clarity, explicitness and specificity” in a Criminal Code offence is necessary before concluding that Parliament intended to authorize a justified infringement of CBC’s Charter-protected right to publish. Parliament did so in other Criminal Code publication ban provisions and in the YCJA. Further, it is critical for an accused to know precisely what constitutes the order which it is alleged to have breached.

…I conclude that the narrow definitions of published and transmitted apply. That is, “published” and “transmitted in any way” do not capture the CBC’s refusal to remove or redact previous identifying information after the Ban issued. In this respect online publication of identifying information is no different than if reported in traditional media. If section 486.4(2.1) and (2.2) are intended to apply when identifying information is published and transmitted before a section 486.4 ban issues, statutory amendments are required.