BOARDS AND TRIBUNALS

No authority in tribunal to award legal costs

Complainant filed human rights complaint alleging the Canadian Forces discriminated against her on ground of sex, contrary to provisions of Canadian Human Rights Act. Canadian Human Rights Tribunal concluded sexual harassment complaint substantiated and awarded complainant $4,000 for suffering in respect of feeling or self-respect. Complainant applied for legal costs. Tribunal decided it had authority to award legal costs pursuant to s. 53(2) of Act, and awarded complainant $47,000 for legal costs. Attorney General of Canada’s application for judicial review of tribunal’s costs decision unsuccessful. Federal Court of Appeal allowed Attorney General’s appeal, concluding tribunal had no authority to make costs award. Appeal to Supreme Court of Canada dismissed. Tribunal’s decision to award legal costs reviewable on standard of reasonableness. Precise interpretative question before tribunal was whether words of s. 53(2)(c) and (d), which authorize tribunal to “compensate the victim . . . for any expenses incurred by the victim as a result of the discriminatory practice”, permit award of legal costs. Tribunal’s decision they did not reasonable. While words “any expenses incurred by the victim”, taken on their own, wide enough to include legal costs, when words read in statutory context, clear they cannot reasonably be interpreted as creating stand-alone category of compensation capable of supporting any type of disbursement causally connected to discrimination. Phrase appears twice and each reference to expenses preceded by specific, but different, wording. Expenses referred to in each paragraph take character from sort of compensation contemplated by surrounding words of each paragraph. Text, context and purpose of legislation clearly show that no authority in tribunal to award legal costs and no other reasonable interpretation of relevant provisions.

Canada (Attorney General) v. Mowat (Oct. 28, 2011, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ., File No. 33507) Decision at 312 D.L.R. (4th) 294, 182 A.C.W.S. (3d) 419 was affirmed. 207 A.C.W.S. (3d) 185 (43 pp.).

LIBEL AND SLANDER

Insert of hyperlinks could not amount to publication

Appellant claimed he had been defamed in various articles that appeared on Internet. Respondent operated web site and authored article that hyperlinked alleged defamatory articles. Appellant took position that when hyperlinks created, respondent became publisher of impugned articles found at hyperlinked sites. Trial judge dismissed appellant’s action for defamation on basis that appellant failed to prove publication of defamatory material. He found that hyperlinking did not amount to publication. Majority of Court of Appeal dismissed appellant’s appeal, finding no basis for presumption of publication of hyperlinked articles and mere fact that respondent hyperlinked impugned sites did not make him publisher. Appeal to Supreme Court of Canada dismissed. To prove publication element of defamation, plaintiff must establish defendant has, by any act, conveyed defamatory meaning to single third party who has received it. Form defendant’s act takes and manner in which it assists in causing defamatory content to reach third party are, traditionally, irrelevant. Breadth of activity captured by traditional publication rule vast and recent jurisprudence suggested some acts so passive they should not be held to be publication. Question is whether simple reference, like hyperlink, to defamatory information is type of act that can constitute publication. Reference to other content fundamentally different from other acts involved in publication as does not involve exerting control over content. Communicating something distinguished from merely communicating that something exists. Hyperlinks are, essentially, references. Content of secondary article often produced by someone other than person who inserted hyperlink in primary article. Inserting hyperlink gives primary author no control over content in secondary article. When person follows link they are leaving one source and moving to another. Ease with which referenced content can be accessed does not change fact that, by hyperlinking, individual referring reader to other content. Individuals may attract liability for hyperlinking, however, if manner in which they have referred to content conveys defamatory meaning. Nothing on defendant’s page itself alleged to be defamatory. Insertion of hyperlinks, by itself, could not amount to publication.

Crookes v. Wikimedia Foundation Inc. (Oct. 19, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33412) Decision at 311 D.L.R. (4th) 647, 181 A.C.W.S. (3d) 389 was affirmed. 206 A.C.W.S. (3d) 640 (71 pp.).

DISTRIBUTION OF LEGISLATIVE AUTHORITY

Division of powers does not exempt clinic from application of Controlled Drugs and Substances Act

In partnership with non-profit organization, health authority providing injection supervision service to chronic drug addicts at Insite. Health care workers at Insite exempted by Minister of Health from prosecution for possession and trafficking offences, but Minister subsequently revoking exemption. Division of powers does not exempt clinic, as health facility, from application of Controlled Drugs and Substances Act as exercise of federal jurisdiction over criminal law. Minister’s revocation of exemption, however, contravened s. 7 Charter rights of Insite staff and addicts using its services.

PHS Community Services Society v. Canada (Attorney General) (Sep. 30, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33556) Decision at 87 W.C.B. (2d) 39 affirmed. 96 W.C.B. (2d) 322 (78 pp.).

SEARCH AND SEIZURE

Charter breach minor and made in good faith

Search incident to arrest. Accused convicted of possession of cocaine for purpose of trafficking. Officer finding cocaine after searching vehicle incident to arrest based on reasonable grounds accused committed indictable offence of possession of marijuana in excess of 30 grams. Officer basing reasonable grounds on smell of burnt marijuana and discovery of large amount of cash on accused. Evidence of smell of drugs and large amount of cash sufficient to support inference that grounds for arrest for commission of indictable offence existed. Alternatively, evidence would not be excluded as Charter breach minor, made in good faith and real evidence discovered in location in which accused had reduced privacy interest.

R. v. Loewen (May 5, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ., File No. 33914) Decision at 90 W.C.B. (2d) 273 affirmed. Reasons in full. 96 W.C.B. (2d) 339 (9 pp.).

NO SUBSTANTIAL WRONG

Admission of accused’s criminal history was harmless error

Accused charged with robbery and related offences arising from knife-point robbery of variety store carried out by robber wearing a blue Halloween mask. Knife and blue mask with accused’s DNA found near the store. Police officer at accused’s trial testified that accused had lengthy criminal history. Trial judge did not refer to evidence of criminal history in his reasons for conviction. Majority of Court of Appeal set aside convictions on basis that trial judge erred in admitting evidence of the accused’s bad character. Appeal allowed and convictions restored. Admission of accused’s criminal history was harmless error. Reasons for conviction were clear that trial judge relied solely on DNA evidence and not on propensity evidence in convicting accused.

R. v. O’Brien (June 9, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Abella, Rothstein and Cromwell JJ., File No. 33817) Decision at 90 W.C.B. (2d) 32 reversed. 95 W.C.B. (2d) 553 (25 pp.).

GROUNDS

Court of Appeal erred by applying authorities concerning unreasonable verdict rather than misapprehension of evidence

Accused charged with manslaughter and aggravated assault. Victim was beaten by three men and left unconscious in the road where he was fatally run over by a passing car. Trial judge concluded that accused had participated in beating and convicted him of manslaughter. Court of Appeal set aside conviction and ordered new trial. Court of Appeal found that trial judge had erroneously believed there was evidence that before the fatal attack the accused had made plans to commit a robbery with his co-accused. Appeal allowed and conviction restored. Verdict was not unreasonable and Court of Appeal erred by applying authorities concerning unreasonable verdict rather than misapprehension of the evidence. Trial judge’s reasons demonstrate no misapprehension of the evidence. Trial judge concluded that accused took part in attack on victim based on circumstantial evidence unrelated to any plan to commit a robbery.

R. v. Sinclair (July 28, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33359) Decision at 84 W.C.B. (2d) 349 reversed. 95 W.C.B. (2d) 552 (51 pp.).