Daniel W. Burnett

Media appellants challenged the application of the automatic publication ban in s. 648(1) of the Criminal Code to pre-empanelment proceedings in two unrelated criminal cases.

In the first case (Silva), the ban was imposed on a Garofoli application and a motion for a stay of proceedings for abuse of process.

In the second case (Coban), media sought a declaration that s. 648(1) applied only after the jury was empanelled.

The Supreme Court of Canada held unanimously that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5), which confers on trial judges jurisdiction to deal with matters that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

Both appeals were dismissed.

The appellants sued the respondent for defamation after the respondent posted an article on his website containing hyperlinks to other websites with allegedly defamatory information about the appellants.

The Supreme Court of Canada held that a hyperlink, by itself, is content-neutral and merely refers to other content without repeating it.

Therefore, creating a hyperlink does not constitute publication of the defamatory material to which it links.

The appeal was dismissed.

The appellant radio talk show host broadcast an editorial comparing the respondent, a social activist opposed to positive portrayals of homosexuality in schools, to Hitler and the Ku Klux Klan.

The respondent sued for defamation.

The trial judge dismissed the action on the basis of fair comment.

The Court of Appeal reversed, finding no evidentiary foundation for the imputation that the respondent would condone violence.

The Supreme Court of Canada allowed the appeal and restored the trial judgment, modifying the 'honest belief' element of the fair comment defence to an objective test: whether any person could honestly express the defamatory opinion on the proved facts.

During an extradition hearing, the appellant disclosed in camera that he was a confidential police informer.

The extradition judge appointed an amicus curiae and subsequently ordered that media counsel and representatives be granted access to the amicus documents, subject to confidentiality undertakings, to argue whether the proceedings should remain in camera.

The Supreme Court of Canada allowed the appeal, holding that informer privilege is absolute and non-discretionary, subject only to the innocence at stake exception.

The Dagenais/Mentuck test for discretionary publication bans does not apply.

The extradition judge erred in ordering the disclosure of privileged information to the media.