R v Canadian Broadcasting Corporation, 2016 ABQB 204

Court of Queen ’ s Bench of Alberta Citation: R v Canadian Broadcasting Corporation, 2016 ABQB 204 Date: 20160407 Docket: 160339594X1 Registry: Edmonton Between: Her Majesty the Queen Applicant - and - The Canadian Broadcasting Corporation Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ I. Introduction [ 1 ] The Crown applies for mandatory injunction to force the Canadian Broadcasting Corporation to remove certain impugned information from its website. For reasons which follow the application is dismissed. II. Background

[2] On March 5, 2016 Tyrell Perron, was charged with the first degree murder of D.H., a person under the age of 18 (“thevictim”). On March 15, 2016 the Crown requested and a judge ordered a mandatory ban under s. 486.4(2.2) of the Criminal Code,R.S.C., 1985, c. C-46.

The order prohibits the publication, broadcast or transmission in any way of information that could identify thevictim. [3] As of March 16, 2016, two articles which pre-existed the publication ban, and which identified the victim by name andphotograph (“the articles”), continued to exist on the CBC Edmonton website. [4] In response to a March 16, 2016 Edmonton Police Service inquiry, a senior digital producer with CBC Edmonton advisedthat no future stories would contain the victim’s identifying information. [5] On March 18, 2016, however, the pre-publication ban articles remained on the website, unaltered. [6] One of the articles contains some evidence that the victim’s identity appears already in wide circulation, by way of socialmedia, but also by reason of the fact the victim attended school and lived in a smaller Alberta community where the murder is alleged tohave occurred. [7] On March 18, 2016 the Attorney General brought an Originating Notice seeking to have the CBC cited in criminal contemptof court for breaching the March 15, 2016 publication ban.

The application also seeks an interim injunction requiring the CBC toremove the articles from its website, pending the outcome of the contempt application. [8] This is a decision on the interim injunction application. The contempt application has yet to be scheduled. The CBC hasalso given notice it will challenge the constitutionality of s. 486.4(2.2) on freedom of expression grounds. III. The law on publication bans and injunction applications [9] The Criminal Code provisions are as follows: Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identifythe victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271,272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conductalleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make anapplication for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 - other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victimis under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify thevictim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years,the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. [10] Citing RJR MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, (SCC) and MedicalLaboratory Consultants Inc. v Calgary Health Region, 2005 ABCA 97, 43 Alta. L.R. (4th) 5, the parties agree on the following legaltests, each of which must be satisfied in its own right, for the granting of a mandatory injunction: (

a) Does the Crown have a strong prima facie case? (

b) Will the Crown suffer irreparable harm if the injunction is not granted?

(

c) Will greater harm or inconvenience result if the application is not granted, than if it were? [11] As to what is a “strong prima facie case”, I note that in Airco Aircraft Charters Ltd. v Edmonton Regional AirportsAuthority, 2010 ABCA 364, 36 Alta. L.R. (5th) 375, at paras 21-22 the court dealt with the language of a “very strong probability” forthis part of the test on a mandatory injunction application. In Modry v Alberta Health Services, 2015 ABCA 265, 23 Alta.

L.R. ( 6th)247, at para 37, the court added further insight: …as noted in Medical Laboratory Consultants Inc v Calgary Health Region, 2003 ABQB 995 at para 14, aff’d 2005 ABCA97 , the first step of the tripartite test is modified when the applicant seeks a mandatory interlocutory injunction requiring therespondent to carry out a positive act. The applicant must demonstrate a strong and clear prima facie case.

For a definition of “strongprima facie case”, see IBM Canada Ltd v Almond, 2015 ABQB 336 at para 29 (a strong prima facie case is one that will“probably prevail at trial” or is “likely to succeed at trial”), citing with approval BrettYoung Seeds Limited Partnership v Dyck, 2013ABQB 319 at para 13; see also B-Filer Inc. v TD Canada Trust, 2008 ABQB 749 at para 17. IV. Analysis A. Does the Crown have a strong prima facie case? The law of criminal contempt [12] The case in question is the Crown’s application to have the CBC cited in criminal contempt of court.

The test at common lawis articulated by McLachlin J. (as she then was) in UNA v Alberta (Attorney General), (SCC), [1992] 1 SCR 901, 89DLR (4th) 609 (“United Nurses”), at para 25: To establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus),with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court (themens rea). The Crown must prove these elements beyond a reasonable doubt.

As in other criminal offences, however, the necessarymens rea may be inferred from the circumstances. An open and public defiance of a court order will tend to depreciate the authority ofthe court. Therefore when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he orshe was at least reckless as to whether the authority of the court would be brought into contempt.

On the other hand, if thecircumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessarymens rea would not be present and the accused would be acquitted, even if the matter in fact became public.

While publicity is requiredfor the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, as the union contends, butrather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as tothe fact that the act would publicly bring the court into contempt. [13] At para 27, McLachlin J. adds that: Criminal contempt, thus defined, does not violate the Charter. It is neither vague nor arbitrary.

A person can predict in advance whetherhis or her conduct will constitute a crime. [14] For the purposes of this interim injunction application no authorities other than the United Nurses case were provided. [15] A further case of interest, though decided before United Nurses, is Alberta (Attorney General) v Interwest Publications Ltd., (AB KB), [1990] A.J. No. 615, 73 D.L.R. (4th) 83, a decision of Berger J. (as he then was), and its comment that: The jurisdiction to deal with contempt ex facie has always been vested in the superior courts.

Section 8 of the Criminal Code haspreserved the power, jurisdiction or authority of the Court to impose punishment for criminal contempt, whether by

summary procedureor by indictment: R v Vermette (SCC), [1987] 1 S.C.R. 577. The Courts have acknowledged that this power should beexercised sparingly: Re Rex v Wallbridge (ON SC), [1936] O.R. 482 (Ont. S.C.); Steiner v Toronto Star Limited (ON SC), [1956] O.R. 14 (Ont. H.C.); Campbell v Cowper (1934) 83 C.C.C. 36 (Alta. C.A.). [emphasis added]. [16] The Interwest decision was cited in Alberta v The Edmonton Sun, 2003 ABCA 3221 D.L.R. (4th) 438, although that courtdoes not specifically endorse, or withdraw from, the ‘sparingly’ comment. Nor is it a publication ban case as such. Neither was UnitedNurses.

The Edmonton Sun decision does however discuss the approach in United Nurses, and in other cases, to what it calls“publication contempt”: 20 Criminal contempt is, therefore, clearly aimed at punishing public acts which tend to bring the administration of justice intodisrepute and interfere with the due administration of justice. In United Nurses, the Court was dealing with public defiance of a Courtorder. The public defiance element is present in publication contempt when widespread publication of information creates a serious riskof prejudice to the administration of justice.

Whether the risk impairs the accused's right to a fair trial, or otherwise deprecates theauthority of the court, the actus reus of publication contempt is made out. 21 In Poje v British Columbia (Attorney General), (SCC), [1953] 1 S.C.R. 516 and in Re Duncan, (SCC), [1958] S.C.R. 41, the Supreme Court of Canada adopted the definition of publication contempt set out by Lord Russell in R vGray, [1900] 2 Q.B. 36 at 40: Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of theCourts is a contempt of Court. 22 Canadian courts have consistently applied a definition which finds its origin in Lord Russell's commentary.

In Manitoba

(Attorney-General) v Groupe Quebecor Inc. (1987), (MB CA), 45 D.L.R. (4th) 80 (Man. C.A.), Philp J.A., writing forthe Court on this issue, noted that the circumstances in that case raised the conflicting public interest of protecting a fair trial andpreserving freedom of speech.

He nevertheless adopted the traditional test for publication contempt, being the "real risk, as opposed to aremote possibility" (at 90) of prejudice. [emphasis added] He found that the impugned news stories, which disclosed the identities andcriminal records of two murder suspects, were calculated to interfere with the proper administration of justice. [17] As noted in Halsbury’s Laws of Canada (2012), publication of the following have been found to be contemptuous in thecriminal law: press release: R v Carocchia (1973), (QC CA), 15 C.C.C. (2d) 175 (Que.

C.A.); publication of similarfact evidence: R v CHEK TV Ltd., (BC CA), [1987] B.C.J. No. 299, 33 C.C.C. (3d) 24 (B.C.C.A.); publication ofcriminal record: Alberta (Attorney General) v Interwest Publications Ltd., (AB KB), [1990] A.J. No. 615, 58 C.C.C.(3d) 114 (Alta. Q.B.); R v Bowes Publishers Ltd. (1995), (AB KB), 30 Alta. L.R. (3d) 236 (Q.B.); and publication ofbanned preliminary hearing evidence: R v Southam Press (Ontario) Ltd., (ON CA), [1976] O.J. No. 561, 31 C.C.C.(2d) 205 (Ont.

C.A.). [18] None of these cases involve the courts’ consideration of a party’s liability for criminal contempt of court for an alleged breachof a publication ban as such. None come close on the facts to what is before me in this interim injunction application. The positions of the parties [19] In answer generally to the Attorney General’s cause for showing a ‘strong prima facie case’, properly understood, the CBCsays it has complied faithfully with the March 15, 2016 order. It argues that its earlier articles pre-date that order and cannot thereforebe said to be in breach of it.

It says there is nothing in the Criminal Code which deals squarely with when web-based articles are‘published, broadcast or transmitted’. Nor it argues is there certain, unambiguous law or authorities to guide the CBC when decidingwhether the web-based articles in question are offside an order such as the one made March 15, 2016. [20] The Attorney General points to analogous sources of such guidance. It says that on these analogies there is ample authority tohave guided the CBC against acting in criminal contempt of court.

It says the CBC’s disregard of the impact of the March 15, 2016order on the earlier articles meets the test in United Nurses of an accused that has ‘defied or disobeyed a court order in a public way withintent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court’. [21] What are these analogous sources of guidance or authority? [22] The Attorney General refers to s. 299 of the Criminal Code which defines “publish”, in the context of defamatory libel, whichexists if one “(

a) exhibits it in public, (

b) causes it to be read or seen, or (

c) shows or delivers it, or causes it to be showed or delivered,with intent that it should be read or seen by the person whom it defames or by any other person”. [23] The word “publish” is not otherwise defined in the Criminal Code. [24] The Attorney General refers also to civil defamation cases which consider publication in the context of limitation periods. It relies on comments in Black v Breeden, (ON SC), 2009 CarswellOnt 170, 309 DLR (4th) 708 (SCJ) that in aninternet context publication occurs “when the words are heard, read or downloaded”.

Similar sentiments are stated in Kent v Martin,2012 ABQB 507, and Carter v Federation of Foster Parents Assn., 2005 BCCA 398. [25] The Attorney General also refers to the English Court of Appeal’s decision in Loutchansky v The Times Newspaper Ltd. &Ors, [2002] QB 783, 2 WLR 640, another civil case dealing with a limitation period.

The Attorney General relies on the case foramongst other things its beguiling comments that the “maintenance of archives” is a comparatively insignificant aspect of freedom ofexpression and less deserving of protection than, say, “the dissemination of contemporary material” (at para 74). Perhaps that will beargued further when the parties get to the merits.

In any case, Loutchansky also discusses the so-called “single publication” rule in theinternet context, and says this, at para 73: [The Appellants] must establish under [the single publication rule], placing a publication on their website constitutes a single publicationthat occurs at the time it is placed on the website regardless of the period during which it remains there. The latter is by no means clear,but at least it is arguable.” [emphasis added] [26] On these criminal and civil analogies, the Attorney General argues for a “broad

interpretation” of the terms “publish” and“transmit” in the publication ban context, and indeed in the criminal contempt context. Decision on the ‘strong prima facie case’ element of the test [27] Of course the merits remain to be decided.

On the applicable test for this element of mandatory injunctive relief, however, Iam unable to agree that the Attorney General has a strong prima facie case, properly understood, of criminal contempt of court. [28] What I have called the Attorney General’s analogies, based on the criminal libel provision or civil defamation cases, are notirrelevant but neither are they decisive. [29] The civil defamation cases in particular are decided on their facts and in a considerably different context from what is beforeme. Loutchansky too is no more persuasive an authority for the Attorney General’s position.

And for what it’s worth, the commentemphasized above would, on its face, tend to support the CBC’s position. [30] In coming to my conclusion on this part of the test for mandatory injunctive relief, I have been guided by Modry and likedecisions mentioned above that make clear that the applicant must ‘demonstrate a strong and clear prima facie case’, one ‘that willprobably prevail at trial’ or ‘is likely to succeed at trial’.

[ 31 ] I have applied those standards to the common law ‘elements of the offence’ of criminal contempt of court: that on the standard of proof beyond a reasonable doubt the Attorney General must prove the CBC defied or disobeyed a court order in a public way with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court.

I have taken into account as well the many further criminal contempt authorities mentioned above, but none involving a party alleged to have violated a publication ban – not to mention a publication ban in the unique factual setting before me in this application. [ 32 ] I am mindful too of the admonition in Interwest Publications and the cases cited therein that the courts’ criminal contempt powers should be exercised sparingly.

And likewise, the endorsement in the Edmonton Sun case of the so-called traditional test for publication contempt, being the "real risk, as opposed to a remote possibility" of prejudice. [ 33 ] In all, on my reading of them the criminal contempt of court cases suggest a restrained approach, the opposite of the Attorney General’s call for a “broad

interpretation” of the terms “publish” and “transmit” in the publication ban/criminal contempt of court context. [ 34 ] On the record before me, I am not persuaded that the Attorney General has the necessary strong and clear prima facie case that will likely succeed at trial. I am not persuaded that on such a standard it will likely succeed in proving beyond a reasonable doubt that the CBC, by leaving the impugned articles on its website, was and continues to be in ‘open and public defiance of the court order’ in the sense described in the United Nurses case, at para 25.

Or that the CBC’s action (or inaction) constitutes a public act of defiance of the court in circumstances where it knew, intended or was reckless as to the fact that its act (or failure to act) would publicly bring the court into contempt. Finally, I am not persuaded that on the appropriate standard the Attorney General will likely succeed in proving that the CBC – by leaving the impugned articles on the website after March 15, 2016 – is a party who “can predict in advance whether his or her conduct will constitute a crime” ( United Nurses , at para 27). B.

Will the Crown suffer irreparable harm if the injunction is not granted? [ 35 ] If I am wrong on the first element of the test for injunctive relief, I will now deal with the second element. That is to ask whether the harm suffered by the applicant is of such a nature that it cannot be cured if the injunction is not granted. [ 36 ] As noted in RJR-MacDonald , “irreparable" refers to the nature of the harm suffered rather than its magnitude.

Much of the argument under this part of the test focuses on who is harmed, and on what evidence exists in support of any such harm. [ 37 ] Of relevance here, s. 486.4 (2.2) of the Criminal Code obliges the court to impose a ban on the publication, broadcast or transmission on any information that could identify a victim, under the age of 18 years, of any offence not already mentioned in s. 486.4(1)(a). The offences specified in that subsection are, on the whole, offences of a sexual nature. [ 38 ]

Section 486.4 (2.2)(

b) entitles the victim, or the prosecutor, to apply. Neither the victim nor the prosecutor need apply on evidence. If there is an application, the order must be given. [ 39 ] The s. 486.4(1) protection given to young persons victimized or allegedly victimized by a sexual offence was thus extended to young persons victimized or allegedly victimized by any offence . This extended protection came into force as part of the Victims Bill of Rights Act SC 2015 c.13, in force July 22, 2015 (“the Act ”).

One of its clear purposes is to adequately protect the privacy of young victims/alleged victims by, amongst other things, making “publication bans for victims under the age of 18 mandatory on application”, as quoted from ss. (

g) of the “Summary” of the Act. [ 40 ]

Section 2 of the Act also defines “victim” broadly as: an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence. [ 41 ]

Section 3 of the Act sets out those who may exercise a victim’s rights under the Victims Bill of Rights “if the victim is dead or incapable of acting on their own behalf”. [ 42 ] Finally, the Act, again by way of its “Summary”, states: This enactment amends the Criminal Code to (

a) align the definition of victim with the definition of victim in the Canadian Victims Bill of Rights ; [ 43 ] This alignment appears to have taken place by substituting the prior Criminal Code definition of victim – “Victim includes the victim of an alleged offence” – with the following, at s. 2 of the Criminal Code , now defining “victim” as: A person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and including, for the purposes of sections 672.5, 722, and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person. [ 44 ] The CBC argues that (

a) owing to the tragic death of the young person in this case, there is no evidence before me of irreparable harm to that young person; (

b) the definition of victim does not include a person other than one against whom an offence has been committed or alleged to have been committed; and (

c) in any event, there is no evidence before me of any other harm, irreparable or otherwise, that would result if the injunction is not granted. [ 45 ] On the basis of these submissions the CBC concludes that while the s. 486.4(2.2) publication ban must be granted even without evidence of harm, an interim injunction cannot.

[46] The Attorney General does not deny the absence of ongoing harm to the deceased young person. Nor does it deny the absenceof actual evidence of harm to any other person who, arguably under the amended s. 2 of the Criminal Code, might assert the rights of avictim on an application such this. [47] Nevertheless the Attorney General argues there will be irreparable harm to the administration of justice if the injunction is notgranted.

In this regard the Attorney General refers to the recognition by Parliament and the courts of the need to protect young personsaffected by crime, and of the need to protect anonymity – even in the case of deceased young persons – to ensure that other youngpersons will not be deterred from “seeking therapeutic assistance and other remedies, including legal remedies where appropriate”: A.B.(Litigation Guardian of) v Bragg Communications Inc., [2012] S.C.J.

No. 46, 2012 SCC 46 at paras 25-26. [48] The Bragg Communications case speaks to the need to protect young, vulnerable victims of “sexualized cyberbullying” andto the harm of re-victimization on publication. At para 23 Abella J. notes the inevitable harm to the administration of justice if suchvictims fail to take steps to protect themselves “because of the risk of further harm from public disclosure”. Further, at para 25: In the context of sexual assault, this Court has recognized that protecting a victim’s privacy encourages reporting: Canadian NewspapersCo. v Canada (Attorney General), (SCC), [1988] 2 SCR 122.

It does not take much of an analytical leap to concludethat the likelihood of a child protecting himself or herself from bullying will be greatly enhanced it the protection can be soughtanonymously. [49] It cannot be doubted that these interests are recognized and valid in the context of sexual offences. Another good example isthe case of R v Canadian Broadcast Corp., (NWT SC), [1997] NWTJ 83, WCB (2d) 488, aff’d [1998] NWTJ 156(CA), referred to me by both counsel on this application in their supplementary written submissions.

In that case the CBC was convictedof criminal contempt for breaching a publication ban relating the identification of a complainant in a sexual assault, who died subsequentto the ban being imposed. [50] In his decision affirmed on appeal, Vertes J. agreed that while a deceased victim has no ongoing privacy interest, the samecannot be said for another live victim, when considering whether or not to report a crime or alleged crime, and whether that live victimwould be deterred from reporting if she had a concern for her dignity, reputation and the like – those interests manifestly protected by s.486.4(1). [51] These comments are unassailable in the context of sexual assault offences.

Outside of that context, however, the case isdistinguishable. This is apparent on the face of the decision when Vertes J. refers at para 86 to: …the object of the legislation, indeed the raison d’etre of the mandatory aspect, [being] the pool of other and future victims of suchcrimes, to give them the assurance that they can come forward and still maintain some semblance of privacy. [emphasis added] [52] The reference to the emphasized “such crimes” is a clear limitation in the decision.

And it is worth noting that at the time ofVertes J.’s decision, mandatory publication bans in the Criminal Code applied only to the listed sexual offences at s. 486.4(1).

Thebroader, all-encompassing and mandatory s. 486.4(2.2), or any equivalent, did not exist in the Criminal Code when Canadian BroadcastCorp. was decided. [53] (I note as well that in the appeal, the NWTCA allowed that “there may be circumstances where a variation of [a publicationban] order is warranted” (at para 16), without expanding however on what those circumstances might be.) Decision on the ‘irreparable harm’ element of the test [54] I agree therefore with the submissions of counsel for the respondent CBC in the application before me that the conclusionreached in Canadian Broadcast Corp. loses much force in the context of a young murder victim.

I have considered as well the manyother authorities provided. I agree with the respondent that the policy objectives of encouraging young victims to come forward, socompellingly proven in cases of sexual offences, are largely not present here.

I am unable to accept the proposition, without evidence,that young victims of any offence, or even some category of them, will be deterred from coming forward if the identity of a youngmurdered victim is not protected. [55] I am also reminded of the facts of the case before me – that while the articles remain searchable and linkable, the CBC hascomplied with the March 15, 2016 publication ban for any articles prepared and posted since that time, and that no links are available totake readers from any newer articles back in time to the older ones. [56] On these facts and circumstances, I must agree again with the respondent that there can be little if any suggestion that to fail toprotect this young victim’s anonymity would discourage other young victims to come forward, or otherwise prevent some type of harmto the administration of justice, on that basis.

C. Will greater harm or inconvenience result if the application is not granted,than if it were? [57] If I am wrong on both the first and second elements of the test for injunctive relief, I will now deal with the third element,which is to ask: of the two parties to this application, who will suffer the greater harm or inconvenience from the granting or refusal ofthe injunction, pending a decision on the merits? [58] As noted in RJR-MacDonald, the various matters to be considered in assessing the ‘balance of inconvenience’ are numerousand will vary with the individual case.

In this case those matters may include the nature of the litigation and of the relief sought, theharm the parties contend they will suffer, and where the public interest lies.

[ 59 ] With these things in mind, arguably this litigation is very much ‘public’. The Attorney General invokes not so much the privacy interests of the deceased victim but the broader impact of an injunction not being granted on the administration of justice. The CBC invokes freedom of expression, its own, but also the interest of the reading public in having reasonable access to the CBC’s expression.

While the constitutional challenge is not before the court, and may not figure in the forthcoming criminal contempt hearing, still no one can deny that in any publication ban case Charter freedom of expression guarantees are potentially compromised.

Put another way, even if one concedes as valid the reach of the March 15, 2016 publication ban to the earlier articles, undeniably that reach compromises the CBC’s freedom of expression, and the public’s interest in that expression. [ 60 ] I agree that such compromise is an aspect of harm that must be balanced against the evidence of harm to the administration of justice if the injunction is not granted.

As noted, on the evidence I have concluded that harm to the administration of justice is slight, if it exists at all. [ 61 ] The CBC argues that it will suffer the greater harm – in the sense of inconvenience – if it is required to take down the impugned articles entirely, or leave them up in an anonymized form. Evidence of even that inconvenience is hard to find, however, on the record before me. [ 62 ] The CBC says that a relevant matter at this stage of the test is the alleged inefficacy of the publication ban’s reach to the articles in question.

The CBC points for example to the “272 shares” noted on the face of one of the articles exhibited in evidence before the court. [ 63 ] I pause to question if these ‘shares’, and other identifying information already in circulation, do not undermines the CBC’s position – in the sense that the public’s interest in the identity of the young victim can be satisfied, to some extent, even if the CBC’s own articles are taken down or anonymized. [ 64 ] More to the point, however, I find that there is no other satisfactory evidence before me that gives meaning to the reference to ‘272 shares’, and only vague evidence about other identifying information already in circulation from whatever source.

Nor am I convinced in law – no authorities having been provided to me on the point – that in circumstances like these a publication ban’s inefficacy is particularly relevant to any harm or inconvenience the CBC can raise at this stage of the injunction test. [ 65 ] Finally, I agree with the CBC that its post-March 15, 2016 compliance with the publication ban should not be interpreted as any lack its commitment to the importance of the identifying information in the earlier articles.

Decision on the ‘balance of harm or convenience’ element of the test [ 66 ] While the CBC would be little inconvenienced if ordered to comply with the publication ban, the harm to its freedom of expression outweighs the harm, if any, to the administration of justice by leaving the impugned articles on the website, on the facts and circumstances of this case. V. Conclusion [ 67 ] For the reasons given the Attorney General’s application for an interim mandatory injunction is dismissed. Heard on the 31 st day of March, 2016. Dated at the City of Edmonton, Alberta this 7 th day of April, 2016.

Peter Michalyshyn J.C.Q.B.A. Appearances: Julie Snowdon Alberta Justice

for the Applicant Sean Ward Reynolds Mirth Richard & Farmer for the Respondent