Freedom of expression

The defendant brought a motion under s. 137.1 of the Courts of Justice Act to dismiss an action brought by the plaintiff, an anti-abortion organization.

The plaintiff alleged that the defendant led an online campaign of harassment and defamation against it via TikTok videos, encouraging false sign-ups for prayer vigils and shopping cart abandonment.

The court found that while the expression related to a matter of public interest, the plaintiff's claims for defamation, internet harassment, and civil conspiracy had substantial merit.

The court concluded that the harm suffered by the plaintiff outweighed the public interest in protecting the defendant's expression, which was aimed at disrupting the plaintiff's activities rather than engaging in public debate.

The motion to dismiss was denied.

The plaintiff brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the defendant's counterclaim, arguing it was a SLAPP intended to silence his allegations of a poisoned workplace.

The plaintiff also moved to strike the counterclaim under the Rules of Civil Procedure, amend his statement of claim, and for summary judgment.

The court dismissed the anti-SLAPP motion, finding the plaintiff failed to show the counterclaim arose from his expressions.

The court also denied leave to amend the statement of claim as the proposed claim for deferred bonuses was statute-barred.

The remaining motions were deferred pursuant to the mandatory stay in s. 137.1(5) of the Courts of Justice Act.

The defendant brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action arising from a tweet about the plaintiff media outlet.

The court found the tweet related to a matter of public interest.

While the plaintiff established a real prospect of success on the merits and that the defences of fair comment and justification might not succeed, it failed to demonstrate the existence of harm resulting from the tweet.

The court concluded the public interest in continuing the action did not outweigh the public interest in protecting the defendant's freedom of expression.

The action was dismissed with costs awarded to the defendant.

The applicant, a retired television broadcaster charged with criminal harassment, sought a publication ban on his name, arguing that publication would violate his rights under sections 7 and 11(d) of the Charter and cause irreparable damage to his reputation.

The court dismissed the application, finding that the Charter does not protect a privacy interest to prevent media publication of an accused's name, nor does publication compromise the presumption of innocence.

The court also held that the common law Mentuck test was not met, as the applicant's concerns were purely personal and lacked a public interest component.

The Crown applied for a temporary publication ban on portions of an agreed statement of fact and bail synopsis relating to an adult accused who pleaded guilty to manslaughter.

The ban was sought to protect the fair trial rights of a young person co-accused who was scheduled to be tried for second-degree murder at a later date.

The court applied the Dagenais/Mentuck test and concluded that a broad ban was not necessary, as alternative measures like jury instructions and the passage of time would mitigate prejudice.

However, a limited ban was granted for evidence that could identify the young person or would be presumptively inadmissible at their trial.

The applicant mother brought a motion for a sealing order and publication ban regarding her family law file following the highly public suicide of the respondent father, who died in a car explosion outside the courthouse.

Several media outlets intervened to oppose a broad ban.

The court applied the Dagenais-Mentuck-Sierra Club test, balancing the open court principle against the risk of harm to the children.

The court denied a complete sealing order but granted a tailored publication ban protecting the identities and personal information of the children, the mother, and extended family, and ordered the file to be initialized.

The applicant, a candidate in a federal election, sought an injunction to prevent the respondent municipality from enforcing its election sign by-law against him and from organizing candidates' debates without his participation.

The applicant argued that city staff were unlawfully removing his compliant signs.

The court dismissed the application, finding that exempting the applicant from the by-law would be untenable and unfair to other candidates, and that the prospect of the city organizing an exclusionary debate was highly speculative.

No costs were awarded.

The applicant challenged the constitutionality of section 91 of the Canada Elections Act, which prohibits certain false statements during an election period, and sought an urgent hearing timetable to have the matter decided before the end of the ongoing federal election.

The court dismissed the request for an expedited timetable, noting that the applicant delayed in bringing the application despite the legislation being in force for months.

The court emphasized that complex Charter challenges require careful preparation and should not be decided under artificial urgency, especially when a decision would likely not be rendered in time to materially impact the election.

The appellant appealed an order sealing court files relating to the estates of Bernard and Honey Sherman, who were murdered in December 2017.

The motion judge had granted sealing orders ex parte, citing the need to protect the privacy and dignity of the victims and their loved ones, as well as concerns about the personal safety of estate beneficiaries and administrators.

The Court of Appeal set aside the sealing orders, finding that the respondents failed to meet the necessity threshold required for sealing orders.

The court held that personal privacy concerns alone cannot justify sealing, and that the evidence of risk to beneficiaries and administrators was speculative rather than based on concrete facts.

The appellants appealed the motion judge's decision refusing to dismiss a defamation action under the Anti-SLAPP provisions of the Courts of Justice Act.

The respondents, a cigarette manufacturer and its CEO, sued over a magazine article published by the appellants that connected them to organized crime, terrorism, and tobacco smuggling.

The motion judge found the action had substantial merit, that no valid defences existed, and that the harm to the respondents outweighed the public interest in protecting the appellants' expression.

The appellants argued the motion judge erred in balancing public interests, in assessing harm without evidence of financial loss, and in rejecting the justification defence.

The Court of Appeal dismissed the appeal, upholding the motion judge's decision.

The defendant was charged with threatening death contrary to s. 264.1 of the Criminal Code.

The Crown alleged that a passage in an article published in Your Ward News, which the defendant edited, constituted a threat to kill Warren and Lisa Kinsella.

The passage referenced the possibility that "some hothead" devoted to the defendant might "bludgeon the Kinsella's to death." The court applied the objective test established in R. v. McRae, examining both the plain and ordinary meaning of the words and contextual factors.

Although the court found that a threat interpretation was possible given the hostile history between the parties and the defendant's careful use of language, it concluded that the most likely interpretation was the plain meaning of the words.

The court acquitted the defendant, finding that the Crown had not proven beyond a reasonable doubt that the only reasonable interpretation was a threat to kill.

The respondent was arrested by Ontario Provincial Police officers on May 24, 2009, near Douglas Creek Estates in Caledonia while carrying a Canadian flag to participate in a flag-raising rally.

The trial judge found the arrest was unlawful and awarded damages for false arrest, wrongful imprisonment, and breach of Charter rights.

On appeal, the majority (Nordheimer and Cronk JJ.A.) found the arrest was lawful as a preventive measure to avoid an imminent breach of the peace, but remitted the case for a new trial on the issue of excessive force.

Huscroft J.A. dissented, finding the arrest was unlawful and that the trial judge's findings should not be disturbed.

The applicant political party brought an application and motion for an interlocutory injunction against the respondent member and his campaigns, alleging unauthorized use of the party's confidential membership list to send emails criticizing the party leader.

The respondents brought a cross-motion to dismiss the application under the anti-SLAPP provisions of the Courts of Justice Act.

The court granted the anti-SLAPP motion, finding that the proceeding arose from expression on a matter of public interest (political debate), the applicant failed to show its claims had substantial merit and no valid defence existed, and the public interest in protecting the expression outweighed the public interest in allowing the proceeding to continue.

The action was dismissed.

The defendant was charged with two counts under the Niagara Parks Act, Regulation 829: disturbing other persons and using abusive or insulting language that unnecessarily interfered with the use and enjoyment of the park.

The charges arose from the defendant's conduct at Grand View Plaza in Niagara Falls on August 2, 2016, where he displayed a sign with profane political commentary and engaged in loud, aggressive, and profane interactions with park visitors and police officers.

The defendant raised a Charter s.2(b) freedom of expression defense and sought to stay the charges based on a prior Superior Court decision.

The court dismissed the first count as lacking statutory foundation but convicted on the second count, finding that the defendant's conduct constituted abusive and insulting language that unnecessarily interfered with park visitors' enjoyment and caused an overtly manifested disturbance.

The applicant sought a publication ban, sealing order, and anonymity for a physician-assisted dying application under the Carter exemption.

The applicant also requested to dispense with notice of the motion to the media.

The court declined to hear the motion without notice to the media, emphasizing the open court principle and the presumption that the media must be notified of requests for sealing orders.

The motion and application were adjourned to allow for notice to the media.

The accused was charged with two counts of criminal harassment under section 264 of the Criminal Code for repeatedly communicating with two women, Stephanie Guthrie and Heather Reilly, via Twitter between August 1 and November 20, 2012.

The Crown alleged that the accused's tweets caused both complainants to reasonably fear for their safety.

The accused was also charged with violating a peace bond.

The court found that while the accused engaged in repeated communication and the complainants were harassed, the Crown failed to prove beyond a reasonable doubt that the accused knew the complainants were harassed or that the complainants' fear for their safety was reasonable in all the circumstances.

All charges were dismissed.

The applicant, a self-represented individual, sought a declaration that a one-year trespass notice barring him from attending municipal council meetings violated his Charter rights.

The municipality issued the notice following an incident where the applicant questioned a councillor and refused to stop videotaping.

The Superior Court of Justice found that the trespass notice infringed the applicant's freedom of expression under s. 2(b) of the Charter.

The court held that the complete ban was not minimally impairing and could not be justified under s. 1, as there were less intrusive means to maintain order, such as expelling him from specific meetings if he became disruptive.

The application was allowed and the trespass notice was declared invalid.

During a first degree murder trial, the Crown sought a publication ban under s. 486.5 of the Criminal Code to prevent publication of information identifying the deceased victim, primarily to shield an elderly relative from learning distressing details of the death through media reporting.

The court held that the Dagenais/Mentuck framework governs discretionary publication bans even when sought under a statutory provision.

The Crown failed to establish that the order was necessary to prevent a serious risk to the proper administration of justice or that a significant public interest justified limiting openness.

The concern raised was characterized as a private interest unsupported by medical evidence demonstrating likely harm.

The interim publication ban was therefore set aside.

Media organizations applied under section 487.3(4) of the Criminal Code to unseal and publish portions of an Information to Obtain (ITO) a search warrant in Project Traveller proceedings.

The court had previously ordered the unsealing of a heavily redacted version with a publication ban.

The accused sought to maintain restrictions on publication regarding: (1) evidence adduced at bail hearings, (2) criminal antecedents, and (3) references to a prior search warrant.

The court declined to rule on bail hearing evidence, continued the publication ban on criminal antecedents, and lifted the ban on prior warrant references except for the name of the individual searched.

The plaintiffs brought a defamation action against the defendant arising from a public response letter published after a newspaper article criticizing the defendant’s investigation into farm animal conditions.

The defendant moved for summary judgment arguing the publication was protected by qualified privilege, while the plaintiffs cross-moved to strike the defence.

The court held that the evidentiary record was insufficient to determine whether the defence of qualified privilege applied or had been defeated by malice.

Numerous factual disputes concerning the underlying investigation, the accuracy of the statements made, and the defendant’s dominant motive required credibility assessments that could only properly occur at trial.

Both motions were therefore dismissed and the issue of qualified privilege left to be determined on a full evidentiary record.