Final Prep Flashcards
What is Law by SM Waddams
Key Points
Law is a social science and humanity
Law is society’s atempt to resolve the most basic human tensions
Law is not the same thing as justice
Social movements change laws
Legislatures and courts are the chief sources of law
According to SM Waddams, what is justice?
Justice is complex, not all cases have a “right” result
The idea of justice and rule of law are part of western society’s dreams
Give an example of a social movement that changed laws
Removal of abortion laws fro the criminal code in Canada, as it contradicted the Charter and was no longer a social value.
Vander Zalm v Times Publishers
Bill Vander Zalm (former BC Premier) V. Times Publishers (Vancouver Sun)
The Vancouver Sun published a cartoon that depicted him as a cruel man
Defamation case: damaged Zalm’s reputation
BC Court agreed
The case was overturned in BC Court of Appeal, as it was a matter of fair opinion and public interest
Constitution Act 1982
Part I
gurantees fundamental rights such as freedom of expression, equality, legal rights, and democratic rights
protects official language rights
Constitution Act 1982
Part II
Affirms and protects the existing Indigenous and Treaty rights
Constitution Act 1982
Part V
Changes to the Constitution typically need approval from Parliament and 2/3 of provinces, representing at least 50% of the population.
Some decisions need unanimous consent.
Constitution Act 1982
Section 52
Constitution is supreme law
Inconsistent laws are invalid
The Drybones Case is an example of what? (2 answers)
Section 52 of the Constitution Act
Entrenchment
Constitution Act 1982
Section 53
Renaming the British North America Act 1867 to the Constitution Act 1867
Constitution Act 1982
Section 91
Gives provincial government the power to make laws on local/regional matters like education, health care, roads, natural resources, etc.
Legislative Branch
body of authority to create statutory law
National (federal) branch is parliament
MLA
Member of the Legislative Assembly representing a riding
Parliament
Composed of elected house of commons, the appointed senate, and the Governor General (Queen)
Executive Branch
Conducts, executes, and enforces all laws created by the legislative branch
Composed of Queen (Governor General), Cabinet (PM + premier), and administration
Judicial Branch
Deals with justice without interference from other branches
Rule of Law
Everyone is equal under the law
Laws must be clear, public, and applied fairly
Governments must act according to the law
Courts have the right to review government actions
Common Law System
Legal principles evolve over time through cases decided by the court
Statutes take priority over common law
Statutes
Written Law
Civil Law
Based on the principal of codifying legal principles in written form
10 books: Persons, Family, Evidence, Property, Obligations, Prior Claims, Prescription, Successions, Publication of Rights, Private International Law
Primarily associated with Quebec, other provinces are common law
Public Law
Involve the state in some way
Contempt of court, access to information, etc.
Private Law
provincial governments have responsibility over private law
Arise between private individuals or organizations
Debt colelction, accidents, insurance, contract, etc.
Supreme Court
Highest court in Canada
Dcisions are binding across the Country
Court of Appeal of a Province
highest court in the province
judges appointed by the federal government by candidates within the province
Provincial Superior Court
AB–> Court of the Queen’s Bench
Provincial Court
Jurisdiction is defined by statues
Judges appointed by the federal government by candidates within the province
Child Welfare, Criminal Charges, Small claims, Youth Court
Federal Court of Appeal
Appeal for federal court and tax court
Appeals and arguments about law
Judges appointed by federal government
Federal Court – Trial Division
Relates to matters which the federal government is responsible for
Maritime, tax, copyright, aboriginal
Plaintiff
Party who initates a civil suit
Defendant
Also known as the accussed
Intervener
a non-party who intervenes in a law suit or appeal to represent another cause
Respondent
Party responding to an appeal
Crown
the government that prosecutes the accused
also known as Regina or Her Majesty the Queen
Canadian Charter of Rights and Freedom
Section 32
the charter appliues only to government actions, not private organizations or individuals
Entrenchment
the constitution is the supreme law, and laws that conflict are invalid, including the Charter of Rights and Freedoms (section 52)
Reasonable Limits
there can be justified limits to the constitution
freedoms can be limited if they serve a legitimate goal and is proportional to the claim
Oakes Test
Resonable Limits test
Component 1: does the law or action greatly impact the community (is it hate speech?)
Component 2: is the restriction proportionate with the action? does it impair the freedom of expression as little as possible?
Freedom of Expression
anything that attempts to convey a messafe–excluding acts of violence and threats
R v. Jacob
Gwen jacob went topless to convey a message, her public nudity was a freedom of expression
Saskatchewan V. Whatcott 2013
Bill Whatcott distributed flyers with strong anti-LGBTQ+ messages
The Human rights commission arues he violated the province’s human rights code
Whatcott argues it was his right to freedom of expression
Freedom of expression can be limited to prevent hate speech that harms the dignity and equality of the community
Two flyers were deemed to be hate speech, while two were deemed to be freedom of expression
Lund V. Boissoin
Rev. Stephen Boissoin wrote a letter to the editor criticizing homosexuality
Dr. Darren Lund argues it was hate speech
The AB court of appeals determined it was offensive, but not harmful to the LGBTQ+ community.
Hate Speech under the Criminal Code
does it advocate or promote genocide against an identifiable group
does it incite hatred against an identifiable group in a public place that is likely to lead to a breach of the peace
does it wilfully promote hatred against an identifiable group other than in private conversation
does it wilfully promote antisemitism by denying, condoning, or downplaying the Holocaust
Tort
a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability
stare decisis
requires that judges follow the previous rulings (precedents) of other judges in higher courts on the same issue
Factum
Documents filed by the appellant, respondent, and interveners, that set out their legal arguments on the appeal
Costs
Legal fees, disbursements, and other expenses incured by a party in a legal proceeding
Independence of the Judiciary
ensures that the judiciary operates free from any influence or interference, allowing judges to make decisions based solely on law and evidence (judicial branch)
According to SM Waddams, Canadian judges view themselves as
interpreters of the law, not law makers
Imagine that a blog is posted by an individual in Alberta, on a web server in British Columbia, and read by another individual in Nova Scotia. Why would this situation present problems for Canadian courts in determining the jurisdiction in which an individual named in the blog could sue for defamation and which province’s defamation statute would apply?
–precedents sets by provincal courts of appeal are bound to the specific province, but can still be used in other provincial courts
–all courts are bound by precedents set by the Supreme Court of Canada
–Defamation courts are primarily handed under provincial civil tort law, so it varies from province to province.
–Where did the harm occur?
Canadian Broadcasting Corp V. Canada (Attorney General)
CBC, Groupe TVA, La Presse and the Federation professionnelle des journalistes du Quebec challenges the constitutionality of various rules of court that limit where filming, photographs, and interviews may take place in the courthouses.
Applying the Oakes Test, the court held that the limitis imposed on freedom of expression by the Ryles are reasonable and justified – prevents adverse consequences to the administration of justice, limits disruptions and maintains decorum.
Reference Re Alberta Statutes - The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act (1938)
Alberta passed three controversial statutes during the Social Credit government era:
The Bank Taxation Act, The Credit of Alberta Regulation Act, The Accurate News and Information Act
The federal government challenged their constitutionality under the British North America Act, 1867 (now the Constitution Act, 1867).
Supreme Court Ruling (1938): All three laws were unconstitutional.
The case reinforced that provinces cannot legislate in areas assigned to the federal government, preserving Canada’s division of powers.
One of Canada’s earliest protections of press freedom.
Affirmed judicial power to strike down unconstitutional laws.
Set the tone for limiting provincial overreach in national matters.
The Bank Taxation Act
Targeted banks with punitive taxes.
Unconstitutional: Banking and currency are federal matters (Section 91), so Alberta could not regulate them
The Credit of Alberta Regulation Act
Tried to regulate credit and banking, a federal power.
The Accurate News and Information Act
Forced newspapers to publish government statements and disclose sources.
Unconstitutional for violating the implied right to freedom of expression and press, even though the Charter didn’t yet exist (pre-1982).
Saumur v. City of Quebec (1953)
Jehovah’s Witness member Laurent Saumur challenged a Quebec City bylaw requiring prior permission from the Chief of Police to distribute literature in public.
He was arrested for distributing religious pamphlets without a permit.
The case became a freedom of religion and expression issue.
Split decision (5–4)
The majority did not strike down the bylaw entirely but found that its enforcement infringed federal jurisdiction over freedom of religion and speech—which they viewed as part of federal criminal law power.
Though Canada didn’t yet have a Charter of Rights, the Court recognized religious freedom as a fundamental value tied to federal powers.
The bylaw gave discretionary censorship powers to the police chief, effectively limiting freedom of religion and expression.
The decision emphasized that municipal or provincial laws can’t interfere with matters of federal concern, including freedom of religion.
Switzman v. Elbling (1957)
In 1937, Quebec enacted the Padlock Act, which allowed authorities to shut down any premises used to promote communism or Bolshevism.
Fred Switzman rented a room to a person accused of spreading communist propaganda.
Elbling, the landlord, tried to evict Switzman, citing the Padlock Act.
Switzman challenged the constitutionality of the Act.
Freedom of Expression:
The Court recognized freedom of thought, belief, opinion, and expression as essential in a free society, even before the Charter of Rights and Freedoms (1982).
The Act attempted to punish subversive speech, a matter that falls under federal criminal law power (Section 91(27) of the Constitution Act, 1867)—not provincial jurisdiction.
The Court condemned the use of vague, sweeping laws to suppress political ideology, emphasizing the need for civil liberties and the rule of law.
Landmark case affirming freedom of expression in Canada.
One of the first major civil liberties victories in Canadian constitutional law.
Helped lay the foundation for the Charter’s Section 2(b): freedom of expression.
Guarantee & Limitation Clause (Section 1 of the Charter)
Guarantee:
The Charter guarantees fundamental rights and freedoms (e.g., freedom of expression, religion, equality rights).
Limitation:
But those rights are not absolute.
The government can limit a Charter right if the limit is:
Prescribed by law
Reasonable
Justifiable in a free and democratic society
saving clause
It balances individual rights with the public interest.
Protects against absolutism—no right is completely unlimited.
It “saves” laws from being struck down if they meet certain strict conditions.
You work for a large corporation. When you became an employee, you were required to sign a statement acknowledging that you would keep secret all discussions related to matters of the company, thereby restricting your ability to discuss your job with anyone.
Has your Charter-guaranteed right to freedom of expression been violated? Why?
No, your Charter-guaranteed right to freedom of expression has not been violated—because the Charter only applies to government actions, not to private individuals or private corporations.
Under Section 32 of the Canadian Charter of Rights and Freedoms, the Charter applies to:
Parliament and the federal government
Provincial legislatures and governments
This means private employers are not directly bound by the Charter. Therefore, if you work for a private corporation, the confidentiality agreement you signed is a matter of contract law, not constitutional law. Your freedom of expression may be contractually limited, but this is not a Charter violation.
Irwin Toy Ltd. v. Quebec (1989)
Irwin Toy challenged Quebec’s Consumer Protection Act, which prohibited advertising targeted at children under 13, arguing it violated freedom of expression under Section 2(b) of the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada ruled that while the law infringed on freedom of expression, it was justified under Section 1 of the Charter.
Freedom of Expression:
The Court defined freedom of expression broadly, including advertising as a form of expression.
Section 1 Analysis:
Oakes Test:
Objective: Protect children from manipulative advertising.
The law was rationally connected to this goal and was a minimal impairment of expression.
Libel Mecca
United Kingdom
For many years its defamation laws provided particularly ample opportunity for individuals and corporations, even those from other countries, to retaliate against critics by suing.
McDonald’s Corporation V. Steel & Morris
McLibel Case
1990-2005
McDonald’s was sparing no expense in its efforts to stifle the anti-McDonald’s pamphleteering of environmental activists Helen Steel and David Morris by pursuing a defamation action against Steel and Morris based on the arcane libel laws in force in the United Kingdom at the time.
The defendants (Helen Steel and David Morris) bore the entire burden of proving the truth of each allegation in their pamphlet, because the law included a presumption that the impugned statements were false (and therefore defamatory).
The court of appeal reduced the award to McDonald’s to £40,000.
Steel and Morris took their case to the European Court of Human Rights in Strasbourg, arguing that denial of legal aid had breached their rights to freedom of expression and to a fair trial as guaranteed under the European Convention on Human Rights[6], and setting out a highly detailed case for what they believed to be the oppressive and unfair nature of UK libel laws in general. Given the jurisdiction of the European Court, this was not an appeal as such, rather it was a new action, and it was against the government of the United Kingdom, not directly against McDonald’s.
Morris and Steel had to represent themselves since legal aid was not available in defamation actions
Steel and Morris were found liable for defamation and McDonald’s was awarded £60,000 in damages.
On February 15, 2005, the European Court of Human Rights ruled that Morris and Steel’s rights to a fair trial (Article 6) and freedom of expression (Article 10) had been breached. They found that the laws of the United Kingdom had failed to protect the public right to criticize corporations whose business practices affect the lives of individuals and the environment; and that the trial had been biased because of the defendants’ comparative lack of resources in the face of complex and oppressive libel laws.
The government of the United Kingdom was ordered to pay Steel and Morris £57,000 in compensation.
McDonald’s has never pursued payment of its Court of Appeal award.
SLAPP
Strategic Litigation Against Public Participation
A lawsuit that is purposed to censor, intimidate, or silence a person or group of people who speak out about or take a position on an issue of public interest.
The plaintiff hopes the defendant(s), faced with enormously costly litigation, will abandon their critical activity. Even the threat of such a lawsuit may be sufficient to convince a financially vulnerable opponent to surrender.
Libel
Written form of defamation
Can the Charter protect parties against SLAPP targets?
No.
Although the Canadian Charter of Rights and Freedoms guarantees the right to freedom of thought, belief, opinion and expression including freedom of the press, as well as freedom of peaceful assembly, it does not afford a constitutional defence to Canadians facing a SLAPP. This is because the Charter only applies to government action, not in disputes between private parties. This means that in Canada, SLAPP targets cannot invoke the protection of the Charter where they are being sued in a civil action by another private party.
Grant V. Torstar Corp 2009
Peter Grant V. Torstar Corp (Toronto Star)
Defamation claim against article alleging Grant used political influence to secure approval for a golf course development.
Majority Opinion: Jury awarded him 1.475M in damages
Supreme Court: Recognized a new defense in Canadian defamation law: responsible communication on matters of public interest.
Elements of the Defense:
The subject matter must be of public interest.
The defendant must have acted responsibly in attempting to verify the information, considering the circumstances.
The Court dismissed both the appeal and cross-appeal, remanding the case for a new trial with the new defense.
Galiano Island V. MacMillian Bloedel 1992
One fo the earliest Canadian SLAPPs
A small B.C. conservancy group known as the Galiano Conservancy Association had successfully lobbied a local Council to enact zoning bylaws that restricted MacMillan Bloedel’s ability to use its extensive land holdings on Galiano Island for a large-scale residential and commercial development.
MacMillan Bloedel launched a lawsuit against the Conservancy, the Council, and three councillors, seeking substantial money damages and a declaration quashing the bylaws, its allegations including illegal conspiracy between the Conservancy, Council, and councillors.
MacMillan Bloedel maintained its suit for about a year, dropping it only a few weeks before the scheduled trial date.
Fraser V. Saanich
First Canadian case which a court explicity characterized as a SLAPP
Fraser, had applied for permits to redevelop a property she owned, which was a recently closed hospital located in a residential neighbourhood. Local residents petitioned the District of Saanich to rezone the property or have the building designated a heritage building and in 1998, the District enacted bylaws changing the zoning of the building, precluding redevelopment. Fraser sued the District and eight neighbourhood residents, her claims included negligence, interference with contractual relations, and the torts of conspiracy and collusion. Justice Singh of the BC Supreme Court dismissed all the allegations against the neighbourhood residents, finding that not only was it ‘plain and obvious’ that the statement of claim disclosed no reasonable cause of action, but that the action was being ‘used as an attempt to stifle the democratic activities of the defendants’
Qubec Anti-SLAPP legislation
On June 3, 2009 the Quebec National Assembly assented to An Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate.
The Act modifies Quebec’s rules of civil procedure to create an opportunity for a defendant to bring a motion for “summary dismissal of a SLAPP suit,” stopping an action in its tracks early in the proceedings. As well, a judge who believes an action is a SLAPP may order the plaintiff to post substantial money security before being allowed to proceed. It further allows certain remedies—including punitive damages—for judicially found abuse of the civil justice system.
Ontario Anti-SLAPP Legislation
On November 3rd , 2015, Ontario’s An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act in order to protect expression on matters of public interest received Royal Assent. As in the Quebec Act, the proposed Ontario legislation creates an opportunity for a defendant to bring a motion to dismiss the proceeding. The new statute, which also amended some aspects of Ontario’s libel and slander law, was the focus of considerable debate before and after its passage.
Richard Warman
Canadian human rights lawyer whose personal crusade has been combatting hate speech, in particular hate speech over the internet
Warman V. Fournier
Significant Canadian case addressing the balance between protecting individuals from defamation and preserving the anonymity of online speakers.
Richard Warman, a human rights lawyer, sued Mark and Connie Fournier, operators of the Free Dominion website, along with anonymous users (“John Does”) who allegedly posted defamatory comments about him
Warman Test
Reasonable Expectation of Anonymity: Assess whether the anonymous individuals have a reasonable expectation of privacy in the specific circumstances.
Prima Facie and Good Faith: The plaintiff must establish a Prima Facie case and demonstrate that the request for disclosure is made in good faith.
Efforts to Identify: The plaintiff should show that reasonable efforts have been made to identify the anonymous parties and that these efforts have been unsuccessful.
Balancing Interests: The court must balance the public interest in disclosure against the legitimate interests of freedom of expression and privacy rights of the anonymous individuals.
Morris V. Johnson
In 2010, the former mayor of Aurora, Phyllis Morris, sued three local bloggers and several unknown individuals for defamation. The lawsuit alleged that the former mayor was defamed in anonymous comments to blog posts on the Aurora Citizen blog during her re-election campaign. The unknown defendants were alleged to have posted the defamatory comments, while the named defendants were alleged to be moderators of the site with the ability to publish or delete the allegedly defamatory comments.
The former mayor then brought a motion seeking an order requiring the named defendants, their lawyer, and the host of the Aurora Citizen website to provide whatever information they had concerning the identities of the anonymous commenters.
Justice Brown concluded that the former mayor’s motion should be dismissed. She held that Morris had failed to establish a prima facie case of defamation, since her statement of claim did not set out the specific words from the postings that she alleged were defamatory.
Justice Brown also held that the unknown commenters had a reasonable expectation of privacy in the particular circumstances of this case, since they were free to identify themselves, write under a pseudonym or remain anonymous, and chose to write under pseudonyms. The judge was not convinced that Morris had taken reasonable steps to identify the anonymous defendants, since she had not yet proceeded to the discovery process under the rules of civil procedure.
The case solidifies the emerging test for identifying anonymous posters on the Internet, establishing a balance that sends a message that anonymous speech is worthy of protection, but that the law will not support hiding your identity with the intent to defame.
Peruse the reports of the decisions in Warman v. Fournier and Morris v. Johnson , and find the references to the engagement of Charter values in strictly private litigation. Summarize what was said. Explain the significance of the test that the court developed in Warman and applied in Morris in relation to the development of the common law in Canada.
Affirms that freedom of expression and privacy rights must be weighed in all legal contexts.
Shows how Charter principles shape common law when interpreting legislation or procedural rules.
Protects anonymous speech online, unless disclosure is justified under a structured legal test.
Dagg V. Canada (Minister of Finance) 1997
Michael Dagg requested access to weekend sign-in logs from the Department of Finance to assist in union bargaining. The Minister provided the logs but redacted employees’ names, identification numbers, and signatures, citing these as “personal information” under section 3 of the Privacy Act.
In a 5–4 decision, the Court held that while the redacted details are “personal information,” they fall within the exceptions outlined in section 3(j) of the Privacy Act, which permits disclosure of information relating to the position or functions of a government employee. Therefore, the information should be disclosed.
The decision aligns with the broader public policy objectives of both the Privacy Act and the Access to Information Act. This ensures transparency in government operations while protecting individuals’ privacy when appropriate.
Access to Information Act (1985)
Federal legislation
A right of access to information in records under the control of a government institution in accordance with the principles that governmetn information should be available to the public.
Freedom of Information and Protection of Privacy Act
Alberta legislation
Applies to schools and municipalities
Health Information Act (2000)
Alberta Legislation
Governs access to health information about an individual
Access to Information Request Timeline (Alberta)
30 days to respond
Section 11 of FOIP Act
Freedom of Information and Protection of Privacy Act (FOIP)
6(1) An applicant has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.
(2) The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record, an applicant has a right of access to the remainder of the record.
(3) The right of access to a record is subject to the payment of any fee required by the regulations.
When might access to information be rejected?
Depends on Jurisdiction
Generally speaking, a government institution will not, and cannot, honour a request that would require it to reveal “personal information” about an identifiable individual.
Information “obtained in confidence” from another government or organization cannot be disclosed unless consent is obtained from the agency in which the information originated.
“Third party information”; a category which includes information that could result in financial loss or gain or could prejudice the competitive position of a third party.
Records of Cabinet meetings (and advice to Cabinet) and any information that might threaten an individual’s safety or public security are generally exempt (military information, ongoing police investigations)
Alberta, Office of the Information and Privacy Commissioner. Adjudication Order #2. May 24, 2002.
Concerned with the excessive fees ($59,571 and $60,696) charged by Alberta Justice for FOIP requests.
Adjudicator reduced fees to $2,500 and $500, recognizing the public interest and unfairness of extreme costs.
FOIP Public Interest Test
Government accountability and transparency
Public understanding of issues
FOIP Test for Waiving Fees
Is there a public interest in disclosure?
Would paying the fee be a financial hardship?
What is the purpose of the request?
Would waiver of the fee significantly benefit the public?
What are some of the criticisms of Canada’s current access-to-information legislation? Why have some suggested that Canada is falling behind?
Stanley L. Tromp – Canada is falling behind other democratic Nations in terms of access to government information. Canada is not proactively transparent.
Critics assert that current provincial and federal protection policies are effectively enabling government officials to evade addressing the public about urgent issues and major concerns.
R V. Patrick (2009)
police had seized Patrick’s garbage and found evidence to support their charge of trafficking in a controlled substance
the Supreme Court found that Patrick had abandoned his privacy interest in the information when he placed the garbage bags for collection at the back of his property.
While the courts have ruled that there is no reasonable expectation of privacy in garbage once it has left a person’s property (R. v. Patrick 1997), ethical concerns related to journalistic methods still exist.
Trespass
Trespass means physically going onto another person’s property without permission.
No proof of damage to that property or injury to the person is necessary to establish a claim in trespass. A property owner can be protected from anyone entering his or her property for any purpose. The ability to make a claim of trespass may help to protect one’s enjoyment of property and one’s privacy on that property.
Somebody who comes into your yard without your permission is clearly trespassing, whether that person intends to take your picture or to go through your garbage. However if your garbage is at the curb then it may be considered “fair game.”
Motherwell V. Motherwell
the plaintiffs (the brother, sister-in-law, and father of the defendant) were subjected to continual harassment by the defendant in the form of a barrage of phone calls, mail, and false accusations
The Alberta Court of Appeal made an order that the defendant had to stop the phone calls, which amounted to undue interference with the plaintiffs’ enjoyment of their home.
The court recognized the right to enjoy one’s own premises without deliberate harassment from another person.
It is notable that the harassment was a non-physical intrusion into someone’s “space,” yet the court found it no less debilitating than a physical intrusion.
Therefore, a limited right to privacy—to be free from harassment in one’s own home—can be protected in law.
Misappropriation of Personality
Arises in a commercial context where there is an unauthorized use of one’s picture, signature, or name for commercial purposes.
This type of claim would protect Wayne Gretzky from having his photo used without his permission to market a new breakfast cereal. However, if the purpose of the photo’s use is not to directly sell something, there is very little protection
The Privacy Act (1985)
Individuals have the right to access personal information about themselves held by federal government organizations, and to request correction of that information if it is inaccurate.
Privacy Act Section 3
provides a definition of “personal information” which is also used for the Access to Information Act.
personal information means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(a) race, national or ethnic origin, colour, religion, age or marital status of the individual,
(b) education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,
(f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual,
(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include
(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,
(i) the fact that the individual is or was an officer or employee of the government institution,
(ii) the title, business address and telephone number of the individual,
(iii) the classification, salary range and responsibilities of the position held by the individual,
(iv) the name of the individual on a document prepared by the individual in the course of employment, and
(v) the personal opinions or views of the individual given in the course of employment,
The Privacy Act Section 4
No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.
The Privacy Act Section 5(2)
With some exceptions, when a government institution collects an individual’s personal information from the individual, it must inform the individual of the purpose for which the information is being collected.
The Privacy Act Section 7
With some exceptions, personal information under the control of a government institution shall not be used, without the consent of the individual, other than for the purpose for which the information was obtained or a use consistent with that purpose.
The Privacy Act Section 8
With some exceptions, personal information under the control of a government institution may not be disclosed, even under access to information legislation, unless the individual consents.
The Privacy Act Section 12
Every Canadian citizen or permanent resident has the right to be given access to personal information that is under the control of a government institution and is reasonably retrievable by the government institution and is about them, and to request correction if the information is inaccurate.
The Privacy Act Section 29
The Privacy Commissioner of Canada must receive and investigate complaints, including complaints that an individual was denied access to his or her personal information held by a government institution.
Personal Information Protection and Electronics Documents Act (PIPEDA) (2000)
applies to private sector entities engaged in commercial activity that fall under federal jurisdiction, and it also applies to private sector entities and commercial activity falling under provincial jurisdiction unless the province in question has passed legislation that is “substantially similar” to the federal Act
The legislation governs how private sector entities collect, use, and disclose personal information in the course of commercial business.
Godbout V. Longueil (1997)
The City of Longueuil required all new permanent employees to reside within city limits.
Michèle Godbout, upon becoming a permanent employee, signed a declaration agreeing to this condition.
Approximately a year later, she moved to a neighboring municipality.
Upon refusing to return to Longueuil, her employment was terminated
The Court held that municipalities, as governmental entities, are subject to the Canadian Charter.
The residence requirement infringed upon Godbout’s right to liberty under Section 7 of the Canadian Charter.
It also violated her right to privacy under Section 5 of the Quebec Charter.
The infringement was not justified by any compelling public interest.
Affirms that all levels of government, including municipalities, must respect Charter rights.
Establishes that employment conditions cannot unjustifiably infringe upon fundamental personal choices.
Highlights the importance of individual autonomy in decisions central to personal dignity and independence.
The Youth Criminal Justice Act
contains some provisions that could be considered privacy-protecting
no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (Section 110(1))
Alberta’s Child, Youth and Family Enhancement Act
Section 126.2 prohibits publication of any information serving to identify a child who has come to the minister’s attention under the Act.
Why was the Alberta Personal Information Protection Act found to be unconstitutional? Who and what should privacy guarantees protect, and from what and whom?
The Supreme Court of Canada found PIPA unconstitutional because it unjustifiably infringed upon the right to freedom of expression guaranteed by Section 2(b) of the Canadian Charter of Rights and Freedoms.
PIPA was found unconstitutional because it gave absolute privacy protection without accommodating Charter rights, particularly freedom of expression in public spaces. Privacy laws must balance rights, not eliminate one to protect another.
Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, 2013
The case involved a union that recorded and photographed individuals crossing a picket line during a lawful strike. The union wanted to use the footage in a public campaign. PIPA prohibited this without consent.
The Court held that PIPA was too broad and inflexible, failing to balance privacy rights with freedom of expression, especially in matters of public interest like labour disputes.
It did not include sufficient exceptions for expression connected to political or social advocacy.
As a result, PIPA was struck down, but the declaration of invalidity was suspended for 12 months to allow the Alberta legislature time to amend the law.
Who and What Should Privacy Guarantees Protect?
Privacy guarantees should protect:
Individuals’ personal information from unauthorized collection, use, or disclosure.
The right to control how one’s personal data is shared and used.
They should protect individuals from:
Intrusion by powerful organizations (e.g., employers, businesses, governments).
Surveillance and non-consensual use of their image or data.
Reputational harm and identity theft.
But privacy laws must also:
Allow reasonable exceptions for freedom of expression, especially when expression serves the public interest or promotes democratic discourse.
Spycatcher (1985)
A former MI5 secret service employee wrote a book called Spycatcher about his experiences
The British government (under Prime Minister Margaret Thatcher) immediately obtained a court ruling banning the book in England, as well as gag orders on English newspapers.
Outside of England the book continued to be legally available worldwide, including in Scotland and Australia whence copies were regularly brought into the UK. It was therefore determined that the information was no longer confidential and the ban was overturned.
Because it was held that the author had breached his duty of confidentiality to the Crown, he was barred from receiving royalties from the sale of the book in the United Kingdom
Whistleblowing
involves exposing a corporation’s unethical or illegal activities
To address the negative consequences associated with whistleblowing, laws have been established to protect those who speak out.
Section 425.1 of the Criminal Code
makes it a criminal offence to punish an employee for providing information to law enforcement about an offence committed by someone within their organization
The Public Servants Disclosure Protection Act
protects whistleblowers from any repercussions related to disclosing information about wrongdoing within their organization
Public Interest Disclosure (Whistleblower Protection) Act
is a provincial law that protects public sector employees from retaliation if they report misconduct within their organization
Tort of Breach of Confidence
protects private information that is conveyed in confidence
Actionable Breach of Confidence can occur in two ways
When any of the parties to a confidence tells someone else or uses that information for his or her own benefit. That is, a breach of confidence occurs when one of the parties to a confidence betrays the confidence.
When a third party (such as a media outlet) obtains the information and uses it. So, a third party, such as a media outlet, could be liable for the use of information which it obtained as a result of a breach of confidence. For instance, a journalist and their employer could be found to have committed a breach of confidence for publishing the contents of documents when it is clear or becomes apparent that those documents were obtained through a breach of confidence.
Coco V. A.N. Clark (Engineers) Ltd. (1969)
English court held that three elements are normally required if, apart from contract, an action for breach of confidence is to succeed:
The information must have the necessary quality of confidence about it.
The information must have been imparted in circumstances importing an obligation of confidence. Megarry J. said: “if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose on him the equitable obligation of confidence.”
There must be an unauthorized use of that information to the detriment of the party communicating it.
Martin & Ors v Giambrone
Following a hearing related to some failed investments, Mr. Giambrone posted the following comment on his Facebook site, “they thought they knocked me down, now they will see the full scale of my reaction. F* them, just f* them. They will be left with nothing.”
Mr. Giambrone alleged that using his comment in this way constituted a breach of confidence since it was meant to be accessible to “friends” only. The court found that the use of the comment did not constitute a breach of confidence. The test for breach of confidence required that the information be:
(1) Confidential and/or private, and
(2) The plaintiffs must have known that it was confidential and/or private.
The court determined that the information was not confidential because it was posted to the Internet and therefore in the public domain. “When [Mr. Giambrone] decided to make the posting on Facebook even if it was only to his friends, he did so in the sure knowledge that those “friends” were able to forward the posting on to whomsoever they wished.” Regarding the second stage of the analysis, “the law imposes a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential [or] private.” The court determined that none of the “friends” could have understood that this comment bound them to a duty of confidence
The Wigmore Criteria
Under the Wigmore criteria, four conditions must be met in order for communications to be defined as confidential.
The Wigmore criteria are as follows:
The communications must originate as the result of a confidence that they will not be disclosed.
The element of confidentiality must be essential to the maintenance of the relationship between the parties.
The relationship must be one which in the opinion of the community is important and ought to be encouraged.
The injury that would result to the relationship from the disclosure of information must be greater than the benefit to the community of maintaining the confidential relationship.
True or False: Marking a document “confidential” or “top secret” does not necessarily make it so. Conversely, information that is not stamped “confidential” may be classed as such, if certain conditions are met.
True
R v. McClure (2001)
the Supreme Court considered the categories of confidential relationships:
The Court concluded that certain types of relationships have traditionally been recognized as privileged, and that those relationships produce a presumption of confidence. The relationships protected by “class privilege” are solicitor-client, spouse-spouse, and informer-police.
The Court also recognized that other relationships sometimes warrant protection as privileged, saying:
Other confidential relationships are not protected by a class privilege, but may be protected on a case-by-case basis. Examples of such relationships include doctor-patient, psychologist-patient, journalist-informant and religious communications.
R v. National post (2010)
In 2000, Andrew McIntosh, a journalist employed by the National Post, was investigating a conflict of interest allegation involving then-Prime Minister Jean Chrétien, a federally funded bank, and a loan to a hotel that owed money to the Chretien family. McIntosh received a document in a brown paper envelope from a secret source that seemed to be proof of the alleged conflict of interest.
The document was later suspected to be a forgery. Police sought a search warrant and assistance order to seize the document and envelope from the journalist to investigate the alleged crime.
The National Post resisted, arguing that journalistic source confidentiality should be protected under Section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms and the common law.
The Court ruled against the National Post.
However, this case created precedence that confidential journalist-source relationships may be protected on a case-by-case basis using the Wigmore Test.
In this case the Wigmore Test was not met. The Court found that the police had reasonable grounds to believe that the document was a forgery. Therefore, the Court concluded, the National Post had failed satisfy the fourth criterion: the public interest in protecting the secret source in this case did not outweigh the public interest in a criminal investigation.
Wasylyshen V. CBC et al
Robert Wasylyshen, former Chief of Police of the Edmonton Police Service, sued the CBC for defamation, claiming that the television program “Disclosure” had implied that while he was a member of the Edmonton Police Services he engaged in sexual relations and illegal activity with prostitutes.
As part of the pre-trial discovery, Wasylyshen requested that the CBC produce all relevant documents in its possession. The CBC objected to producing unredacted copies of documents that contained confidential source information.
Justice Ouelette of the Alberta Court of Queen’s Bench considered the Charter, Wigmore’s test, and McClure. Finding that the question of a journalist-source privilege should be answered on a case-by-case basis he held that in this case the interests served by protecting the communication outweighed its immediate disclosure. He therefore denied the application for immediate access to the names of the CBC’s confidential sources.
Bill C-426 39th Parliament 2nd Session
An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants)
This bill sought to protect the confidentiality of journalistic sources by allowing journalists to refuse to disclose unpublished information or the identity of sources unless a judge determined that such disclosure was in the public interest. It also proposed specific conditions for issuing search warrants related to journalistic materials.
The legislation died on the order paper and there is no similar type of legislation being proposed
Professor Schulz suggests that before promising to protect someone’s identity reporters should:
Understand the nature of the information being provided. Based upon the importance and availability of the information, consider whether the promise is justifiable.
Be clear about the terms of the promise. Are you only agreeing to keep someone’s name out of a story, or are you promising to go to court, or even jail, before you will reveal a source? Do not use terms like “off the record,” “background,” or “deep-background,” since these mean different things to different sources.
Star Chamber
Synonymous with secretive and arbitrary judicial proceedings.
Edmonton Journal V. Alberta
Supreme court recognized that many Canadians could not attend trials and rely heavily on the media to report the proceedings.
Media are “surrogates” to the public.
complete reports of what takes place in the courtroom is rooted in the need to :
(1) to maintain an effective evidentiary process
(2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society
(3) to promote a shared sense that our courts operate with integrity and dispense justice
(4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them
Gag Order
Publication ban
Vickery V. Nova Soctia Supreme Court (1991)
Applicant: a journalist
They wanted access to a videotaped confession that, after it had been shown in the proceedings, was found to have been obtained in breach of the accused’s Charter rights and thereby ruled inadmissible.
The accused was acquitted. The person’s right to privacy—now that they’re innocent—was more important than the public’s interest.
Once the trial was done, there was less need for public oversight. So, the media wasn’t allowed to see or copy the tapes.
The Court majority “unfortunately” declined to consider whether the restrictions they recognized infringed Charter rights.
Dagenais V. CBC
The Boys of St. Vincent – a fictional account of abuse of boys by Catholic priest, similar to a trial at the time
The accused in that criminal trial applied to the Court to ban the broadcast of the CBC production, alleging that the broadcast would taint the potential jury pool so that it would be impossible for him to get a fair trial by jury. The lower court judge agreed and the matter progressed to the Supreme Court of Canada.
The Supreme Court set out rules governing the exercise of a judge’s discretion to order a publication ban (either under statute or the common law).
R V. Mentuck
involved evidence obtained by way of a “sting” operation. During the trial the Crown moved for a publication ban to protect the identity of the police officers involved, and the operational methods used, in the “sting.” The accused and two intervening newspapers opposed the motion.
The trial judge granted a one-year ban as to the identity of undercover police officers, but refused a ban as to operational methods.
On appeal by the Crown the Supreme Court of Canada, in a unanimous judgment, reinforced and extended the principles in Dagenais v. CBC, applying the Dagenais test to a broader range of cases.
The court made clear that publication bans are a last resort, and are only to be granted on the basis of evidence of serious risk, not speculation.
The court noted that this is not a police state. There has to be room for public discussion of police activity.
Dagenais/Mentuck Test
A publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk
the “risk” in the first prong of the analysis must be real, substantial, and well-grounded in the evidence
b) The positive effects of the publication ban are more important than the negative effects it might have on people’s rights—like freedom of expression, the accused’s right to a fair and public trial, and the proper working of the justice system.
Publication Ban
Gag Order
Allows individuals to attend a court hearing, but prevents them from reporting the information to others, including newspaper and broadcast.
A statute, like the Criminal Code, may leave the judge with no discretion on whether the ban should be granted.
A statute might state the judge may grant a publication ban, which means the judge retains discretion.
In cases of sexual assauly, where publishing the name of the accused may identify the victim, the judge has no discretion and must ba the publication of information.
Contempt of Court
the only crime in Canada that is not specifically included in the Criminal Code
the meaning of contempt continues to evolve and the circumstances to which it applies are not always clearly defined
any act which is calculated to embarrass, hinder or obstruct the court in administration of justice, or which is calculated to lessen its authority or its dignity
ontempt most commonly means disobeying a court order (for example, by defying a publication ban) or prejudicing the right of an accused to a fair trial (for example, by imputing or prejudging guilt or innocence).
in facie contempt
in the face of the court
the need for compliace in the courtroom with the judge’s orders and for orderly courtroom procedures.
Example: a witness refuses to answer a question, or is continuously disturbing the proceeding.
ex face contempt
two types: scandalizing the court and sub judice
takes place away from the court room
Sandalizing the Court
two forms: scurrilous abuse or imputing imporper motives
ex: implying a judge and jury are murderers because they charged a man with the death penalty
ex:saying the judge’s decision is silly and could not have been made by a sane person
Sub Judice
Statement of guilt: the media must ensure that its reports do not expressly or implicity suggest legal guilt
Prior criminal record: mentioning a prior record in the media
Bad character: publishing an article about the accused’s bad character (ex: the accused is a member of the mafia)
Urging a result
Prior Criminal Record
The most common error committed by the media is to refer to an accused’s prior criminal record immediately before, or during, the accused’s trial.
There are well-entrenched rules of criminal procedure which provide: (a) that an accused does not have to testify; and, (b) that in the event that an accused does not testify, the prosecution may not refer to any prior criminal record of the accused.
True or False: Courts will generally grant a publication ban on the name of an accused during a sexual assault trial.
False
Courts generally will grant publication bans to protect the identity of the complainant in sexual assault cases, but not the accused. Under special circumstances, however, the accused may request a ban if they believe that themselves, or the case, are in danger.
If naming the accused with identify the victim, the ban will be put in place.
True or False: The media may publish information from a preliminary inquiry (subject to a publication ban) after the conclusion of a preliminary inquiry.
True
Once a publication ban from a preliminary inquiry has been lifted, media outlets may publish the information, but only after the ban is no longer in effect
True or False: If a sexual assault complainant requests a publication ban on his or her identity, a judge has no option but to order the ban.
True
Under the Criminal Code, publication of the name of a victim of sexual assault, and the publication of evidence given at a bail hearing or preliminary inquiry, is prohibitied
True or False: d. The media may publish the name of a living 16-year-old victim in a young offender proceeding.
False
Under the Youth Criminal Justice Act, publication bans protect the identity of young persons involved in young offender proceedings, including victims and witnesses under 18 years of age
True or False: The media may publish the name of a living 16-year-old victim in a Criminal Code proceeding.
Depends
Youth Criminal Justice Act states that the name of a youth victim of an adult accused may be published, but the name of a youth victim of a youth accused may not.
True or False: A publication ban issued pursuant to Section 486 of the Criminal Code in a sexual assault case continues to have effect even after the conclusion of the trial
i. irrespective of whether the accused is convicted.
ii. only where the accused is convicted.
Both are true
This section is meant to safeguard the complainant’s privacy.
True or False: There might be a risk in identifying the name of a child apprehended by a child welfare department.
True
Identifying children involved with child welfare proceedings can risk violating their privacy, and contravenes with laws that protect the identity of minors, such as Alberta’s Child, Youth and Family Enhancement Act.
These bans are statutory and the court has no discretion.
Civil Contempt
Civil contempt aims to enforce a court order
A person can be punished in civil contempt and held in prison until they comply with court orders
Ex: Failure to pay child support
Criminal Contempt
Punishes behaviour that disrespects or obstructs the court
Ex: Disrupting court proceedings
Punishment can include imprisonment or a fine.
Statutory Contempt
Statutory contempt applies to contempt that is defined within the criminal code.
Ex: Contempt that disrupts court proceedings.
Non-Statutory contempt
Contempt that is held against the “inherent” power of the court
Ex: violating a restraining order in a way that doesn’t link to any statutory law.
True or False: It would probably be an act of contempt to indicate that an accused allegedly murdered a victim while on parole.
True
Sub judice
Sets a prejudice or bias towards the trial
True or False: In some circumstances, it could constitute an act of contempt to publish a picture of an individual accused of a crime.
True
Some identities are protected for the sake of the victim, or due to age restrictions. If a judge has ordered a publication ban, then journalists would be unable to publish a photo of the accused, or else they would be found in ex facie contempt
True or False: The media may legitimately publish an accused’s criminal record after conviction and sentence (and expiry of appeal periods).
True
By publishing the criminal records, which are public record, the journalist is posing no threat to the trial. The goal is to avoid creating prejudice, but if the accused is convicted, then the publishing of previous records would not pose a threat to the trial.
Intellectual Property
Can be either physical or intellectual
A created object is protected under intellectual property rights.
Ex: A photographer you took and edited
Copyright
The right to copy, including duplicates and reproductions
Based entitrely in statute law.
Copyright Act Section 3(1)
For the purposes of this Act, “copyright,” in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work,
(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,
(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,
(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,
(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,
(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,
(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,
(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and
(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner, and to authorize any such acts.
Canadian Copyright Expiry
All copyrights expire Dec. 31 of the year that is 50 years after the death of the author.
Cinar Corporation V. Robinson
Claude Robinson says he spent years developing an educational children’s television show.
Drawing inspiration from the novel Robinson Crusoe, as well as from his own life experiences, he “developed characters, drew detailed sketches and storyboards, wrote scripts and synopses, and designed promotional materials. . . .”
Sometime between 1985 and 1987, Robinson gave a copy of his work to directors of Cinar Corporation (“Cinar”), among others. In 1995, Robinson was “stunned” to see that a new children’s television series, with Cinar involved in the production, was a “blatant copy” of the show he had developed. Robinson sued Cinar for infringement of copyright.
The matter finally came before the Supreme Court of Canada in 2013, with a decision rendered on Dec. 23. The Court upheld most of the trial judge’s decision in favour of Robinson, who was awarded millions of dollars in damages.
Electronic Rights
the right to electronic reproduction remains with the creator of a work, unless it is specifically licensed to another person.
First serial rights
the right to publish the article once
Copyright Act Section 13(3)
In the absence of an agreement, an employer is deemed to hold the copyright for material reproduced by an employee
Moral Rights
the rights held by the creator of a work to insist on the integrity of the work created, and to protect the honour and reputation of the creator
Moral rights cannot be assigned or sold to anybody; only the creator can hold them.
Snow v. The Eaton centre (1982)
Michael Snow, a sculptor, created a display of 60 geese hanging from the ceiling of the Eaton Centre in downtown Toronto. As part of Christmas promotions, the Eaton Centre decorated the necks of the geese with large red ribbons. Mr. Snow successfully argued that this action, which altered the intention of his sculpture, infringed his moral rights by denigrating his work and damaged his honour and reputation. As a result, the Ontario High Court granted an injunction requiring the Eaton Centre to remove the ribbons.
Fair Dealing
allows people to use copyrighted material without permission or payment, as long as the use is considered “fair” and falls under one of the permitted purposes.
Permitted purposes of fair dealing include:
Research
Private study
Criticism or review
News reporting
Education
Parody or satire
Copyright Collectives/Collective Society
Copyright collectives are organizations that collect fees for the use of copyrighted materials in certain venues, then pay fees to the copyright holders using a formula based on average use of their works.
Name the six “fairness factors” in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) and SOCAN v. Bell Canada et al
Purpose of the Dealing: Why was the work used? (e.g., research, private study, education)
Non-commercial and public-interest purposes weigh in favor of fairness.
Character of the Dealing: How was the material used?
One-time, limited use is more fair than wide, repeated distribution.
Amount of the Dealing: How much of the work was used (quantity & quality)?
Using smaller or less significant portions is generally more fair.
Alternatives to the Dealing: Could the purpose have been achieved without copying?
No reasonable alternatives = more fair.
Nature of the Work: Was the work published? Was it meant for public access?
Public, informational, or published works favor fairness.
Effect of the Dealing on the Work: Did the use negatively affect the market for the original?
Minimal or no economic harm supports fair dealing.
Is photocopying the primary tech for copying intellectual works today?
No. Today, most copying happens digitally—through downloads, screenshots, uploads to cloud platforms, screen recordings, or copy-pasting into documents or chats.
Give an example of a fair use scenario in Canada
An online univeristy uploads one chapter of a textbook to teh course’s secure learnign platform, accessible only to enrolled students because the book store has back ordered the book and the students cannot purchase the book yet. The students do not have to pay to access the uploaded chapter, and it is removed after the book store is restocked.
Defamation
To harm his or her reputation.
The use of words and/or pictures, to make false statements about someone’s reputation that would cause sane individuals to think less of that person.
Slander
Oral defamation
Alberta Defamation Act Section 13
no action may be brought against a newspaper or broadcaster unless the plaintiff has given notice of his intention to sue within three months of the allegedly defamatory matter coming to the attention of the plaintiff
Defamation Test
Must answer yes to all of the following:
Is there a defamatory meaning— the words or pictures must have had more effect than hurting the feelings of the plaintiff; they must actually harm his or her reputation by lowering it in the community
Does the defamation refer to the plaintiff – people must be able to understand who is being referred to by the defamatory words, pictures, or both.
Was the defamation published– “Publishing” means “to make public.” In this context, “publication” does not require the defamatory words or pictures to appear in the local paper or on the local news. Rather, all that is required for publication to have taken place is that one other person aside from the plaintiff has been told.
Bordeleau V. Bonnyville Nouvelle Ltd.
a newspaper published a notice they had received from an anonymous person that read: “Surprise! Congratulations Joy Bordeleau on your new coming baby!”
While there was no doubt that the plaintiff was pregnant, she was also eighteen, single, (which was unknown to the newspaper) and lived in a small rural community.
She sued the newspaper for defamation. The notice satisfied the tests for defamation that were applied by the presiding judge, who therefore found that it was defamatory.
The newspaper did not plead truth as a defence (mercifully, perhaps), but rather relied on qualified privilege and fair comment
Those two defences failed: the newspaper had no duty to publish the announcement, so qualified privilege was unavailable. Neither was fair comment, because the plaintiff was not a public figure, therefore the comments were not on matters of public interest.
The newspaper was found liable for defamation; however, the plaintiff’s action failed in the end, because she did not prove any special damages.
Hill V. Church of Scientology of Toronto
Casey Hill, a Crown attorney, was publicly accused by a Church of Scientology lawyer of misconduct (e.g., breaching a court order) during a press conference.
The statements were false and widely reported in the media.
Hill sued the Church and its lawyer for defamation.
The Church argued that the common law of defamation was inconsistent with Charter values, and that a plaintiff should be required to prove malice.
The Court disagreed. It affirmed the common law rule of balancing the protection of an individual’s reputation against the protection of freedom of expression. The Court rejected the actual malice test.
Defences of Contempt
Consent
Truth or Justification
Fair Comment
Privilege
Responsible Communication
Consent (defamation defence)
The alleged consent must be “clear and unequivocal,” and it must apply to the substance of the information published.
if an individual participates in a radio talk show, and he is aware that defamatory allegations will be discussed, he cannot sue the broadcaster for repeating the defamatory material.
Truth or Justification
If an employer tells her staff that employee X was fired because he stole money from the cash register, the employer could be liable for defamation unless she has proof, such as a videotape of X taking money out of the cash register when he was not supposed to, or if X is convicted for the theft.
Fair Comment
Sometimes it is not a factual statement that is at issue, but rather an opinion about some factual matter.
A comment made based on a fair and honest expression of an opinion, made without malice, based on known and provable true facts, about a matter of public interest
the defence is defeated by proof of malice
Honest Belief Test
The Objective Part of the Test:
(i) The subject matter of the comment must be one of public interest;
(ii) The comment must be based on true facts;
(iii) The comment (although it can include inferences) must be recognizable as a “comment”;
(iv) The comment must reflect an opinion that could honestly be held by a person, even if that would have to be an unreasonable or prejudiced person, based on the proven facts. It need not be held by the person making the statement.
(b) The Subjective Part of the Test: Notwithstanding that the objective test is satisfied, if the defendant was motivated by malice in the publication of the statement the defence will fail.
Absolute Privilege
An MP or MLA who calls an opponent “a nefarious scoundrel” will be scolded by the Speaker, but remains immune from legal proceedings by the offended party. When parliamentarians ask one another to “step outside and say that,” they are less likely to be motivated by the desire to throw a punch than by the fact that once their detractor leaves the House, he or she will no longer be protected by privilege.
Absolute privilege also extends to judges, lawyers, and witnesses during judicial proceedings (except in Quebec) and, in most provinces, to journalists who provide a fair and accurate report of those proceedings.
Qualified Privilege
may extend to someone who publishes a defamatory statement in the public interest while carrying out a recognized duty, protecting an important duty, or reporting on public proceedings, provided the statement is made without malice
the defence is defeated by proof of malice
Responsible Communication
Published statements of fact on matters of public interest are now protected, even if the defendant cannot prove the statements were true, provided the defendant can “show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.”
Damages of Defamation
The harm done by defamation usually has two components. The first is a general harm to the dignity of the person being defamed—the harm to his reputation. The second aspect of harm is often the implications of the defamation, an actual financial loss caused by the defamation.
Pros to Defamation Damages
Strong deterrent
Provide a sense of justice
Can help a victim rebuild their life or company
Cons of Defamation Damages
Chilling effect on freedom of expression
Large awards can lead to prolonged hearings and an increase in appeals.
Apology or Retraction
Media, realizing they have made a defamatory statement, can sometimes ward off the threat of litigation by publishing retractions or apologies. It is important to note, however, that an apology or retraction does not bar the plaintiff from suing.
Criminal Defamation: Civil
A person who alleges that defamation has taken place (the plaintiff) must sue the person who allegedly published the defamation (the defendant).
If the plaintiff wishes the services of lawyer, the plaintiff must hire a lawyer directly. The remedy that the plaintiff seeks is payment of money to compensate for the harm done to his or her reputation.
A plaintiff must pay to bring the case to trial. The plaintiff has the burden of proof but needs only show on a balance of probabilities that the defendant did do the Act complained of.
Criminal Defamation: Criminal
It is not concerned about compensation or damages for harm suffered by an individual victim at the hands of a specific defendant. Rather, criminal law is concerned with the recognition of society’s abhorrence of criminal acts, and with the punishment of criminal behaviour.
