The Crown sought an injunction against the Canadian Broadcasting Corporation, demanding the deletion of an online article referring to an underage murder victim whose identity was subsequently subject to a court-ordered publication ban.
The case was unusual in that the publication ban was not being enforced as a prior restraint, but a retrospective take-down of a pre-existing article. In these circumstances, “the chambers judge determined that the compromising of CBC’s freedom of expression, and of the public’s interest in that expression, outweighed any harm to the administration of justice that would result from leaving the two impugned articles on CBC’s website.”
The Supreme Court reaffirmed the chambers judge’s decision, holding that injunctive relief against a broadcaster was not warranted unless “a strong prima facie case” of criminal contempt could be established. This would require “a strong likelihood on the law and the evidence presented that [Crown] would be successful in proving CBC’s guilt of criminal contempt of court.” The Court of Appeal implicitly conceded that this was not the case, noting that “either position is arguable,” and was therefore wrong to interfere with the chambers judge’s discretionary decision.
R. v. CBC reminds us that there is a heavy onus upon the Crown to justify restraints on freedom of expression; and in an arguable case, the balance of convenience favours freedom of expression over injunctive censorship.
Decided by the Supreme Court of Canada on February 9, 2018.
Click here for the full text of the decision.