2019 QCCA 280, 2019 QCCA 280

Translated from the original French Guimont c. Bussières 2019 QCCA 280 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-009573-178 (200-17-025173-162) DATE: FEBRUARY 18, 2019 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. ROCH GUIMONT CONSTANCE GUIMONT APPELLANTS – Plaintiffs v. IAN BUSSIÈRES LE GROUPE CAPITALES MÉDIAS INC. (LE SOLEIL) GESCA (LA PRESSE.CA) RESPONDENTS – Defendants JUDGMENT [ 1 ] On appeal from a judgment of the Superior Court, District of Quebec (the Honourable Mr.

Justice Simon Hébert), rendered on July 10, 2017 that dismissed the appellants' application against the respondents. [ 2 ] For the reasons of Gagné, J.A., with which Hilton and Ruel, JJ.A. agree, THE COURT: [ 3 ] DISMISSES the appeal, with legal costs. ALLAN R. HILTON, J.A. SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. Mr. Roch Guimont Mrs. Constance Guimont Unrepresented Appellants Mtre Anne-Marie Bonin Lavoie Mtre Catherine Dubé DS LAWYERS CANADA For the respondents Date of hearing: September 18, 2018

REASONS OF GAGNÉ, J.A. [ 4 ] Does the Press Act [1] apply to an

article published on a continuous information website? I conclude that it does not. The definition of the word “newspaper” in the Press Act and the reference to the formalities set out in the Newspaper Declaration Act [2] constitute an insurmountable barrier. [ 5 ] In the case at bar, the

article was published in the Le Soleil newspaper and on Gesca’s lapresse.ca website. Therefore, Gesca cannot avail itself of the provisions of the Press Act , contrary to the conclusion of the trial judge. [ 6 ] The respondents’ subsidiary argument (the application is unfounded in law), however, which the judge did not adjudicate, is well founded. I am therefore of the opinion that the appeal should be dismissed. I. Context [ 7 ] The dispute stems from an

article in the Le Soleil newspaper, entitled [ translation ] “Lawsuit for $1 million dismissed – Quebec City was right to call in the tactical squad”, written by journalist Ian Bussières.

Here is the text of the article, which provides an overview of the context: [ translation ] Lawsuit for $1 million dismissed – Quebec City was right to call in the tactical squad Quebec City and its police force were right to call in the tactical squad at Roch Guimont’s home on December 3, 2008, because the 37- year-old former police technology student, who claims he has been the victim of a conspiracy for the past 11 years, had expressed a desire to commit murder and had an arsenal worthy of a soldier in his home.

This is what Justice Yves Alain of the Superior Court decided a few days ago, when he dismissed Guimont’s $1-million lawsuit against Quebec City following his arrest and trial for death threats, possession of prohibited weapons and careless storage of a firearm. The Quebec City resident had been acquitted of the first charge and convicted on the other two in 2009, and had been sentenced to two years’ probation.

Guimont had been charged after spending an evening at a bar, where he told a waiter about his desire to commit murder and his intention to take justice into his own hands regarding a young woman who had filed a sexual assault complaint against him. The server had complained to the police after going to Guimont’s home, where he had seen the veritable arsenal the six-foot, 250-pound giant possessed: commando knives, an assault rifle, bulletproof vests and night-vision goggles. Expelled In 2001, Guimont had been charged with sexual assault against a young woman; he was tried and acquitted in 2004.

Despite the acquittal, he was expelled from the Institut de police de Nicolet and, since then, has claimed he is the victim of a conspiracy. In his lawsuit, Guimont alleged that Quebec City had not acted in accordance with professional standards when it involved the tactical squad and held him in custody for two weeks for a psychiatric assessment. He claimed $1 million for injury to his dignity, honour and reputation and because he had lost any opportunity to work for a police force or hold any other employment.

Justice Alain, however, was of the opinion that the information the police had received from the waiter at the bar Guimont frequented was troubling and very credible.

All of this, coupled with the disturbing statements found on the 37-year-old man’s website www.injusticecanada.ca, which the judge characterized as lies and fantasies, indicated that he might be suffering from a psychotic disorder. [ translation ] “In all likelihood, a police action involving Roch Guimont was required as soon as possible in order to protect the individual and others [...] The dynamic entry carried out on December 3 was certainly in keeping with the needs identified at that time. Acting otherwise could have endangered the lives of those involved in the police action or others.

If an unfortunate incident had occurred without an intervention, the City’s police force would have been blamed”, wrote the judge in his decision, noting that, in his opinion, Quebec City had not committed any faults.

The judge also pointed out that it would be best for Guimont to stop talking about a conspiracy and seek help. [ translation ] “It would be best for him to stop talking about the events of 2001 and stop making unfounded accusations [...] The jury did not believe the version of the facts presented by the complainant or the witnesses called by the Crown, and he should be glad about this. [...] Roch Guimont must get himself back on the right track and get help, whether from a psychologist or a psychiatrist”, he concluded before dismissing the lawsuit.

Not out of the woods yet Roch Guimont, who claims he has been the victim of a conspiracy since 2001, is not out of the woods yet. Not only was the 37-year-old man’s $1-million lawsuit against Quebec City dismissed by the Superior Court, he now faces charges of having violated the Defence Production Act .

Guimont and an accomplice, 63-year-old Constance Guimont, are facing charges of unlawful possession of night-vision goggles exceeding authorized performance standards in Canada. These charges were laid on January 26, following an investigation by the Royal Canadian Mounted Police. The investigation took place in May 2009 and June 2010. The residence of Roch Guimont in Quebec City and that of Constance Guimont in Saint-Raymond were searched. Among other objects seized, the police found eight image intensifiers mounted inside the goggles.

In Canada, the use of these night-vision goggles, known as third generation goggles, is restricted to certain registered organizations and agencies. [ 8 ] This

article was published on March 14, 2012 in Le Soleil and on Gesca’s lapresse.ca website. [3] In the application, Roch Guimont alleged that he had learned of the

article only on June 14, 2016. Two days later, he sent a demand letter to the respondents asking for a retraction or for the removal of the

article from the website in question. [ 9 ] On December 9, 2016, four years and nine months after the

article was published and nearly six months after learning of it, the appellants Roch Guimont and his mother, Constance Guimont, filed an application against the respondents. They claimed $500,000 for a violation of their fundamental rights. [4] [ 10 ] The respondents moved to dismiss the application. They invoked the failure of Constance Guimont to give a prior notice, and the short prescription period stipulated in the Press Act (three months after having had knowledge of the article, provided the application is filed within one year from its publication).

Subsidiarily, they argued that the application was unfounded in law. [5] [ 11 ] Before the Superior Court, the appellants did not challenge the application of the Press Act to an

article published on the Web. Instead, they relied on paragraph 9(a), pursuant to which a newspaper cannot avail itself of the provisions of the Act “when the party who deems himself injured is accused by the newspaper of a criminal offence”. [ 12 ] On July 10, 2017, the trial judge allowed the respondents’ exception to dismiss and dismissed the appellants’ application. [6] II. The Superior Court judgment [ 13 ] The judge noted that [ translation ] “it is not contested that this case is governed by the Press Act .” He pointed out the short prescription period provided for in the Act and the requirement that the party who deems himself harmed by an

article must give a prior notice. [ 14 ] He observed that [ translation ] “nowhere in the application or the exhibits in support thereof is there mention of a notice from Mrs. Guimont.” Since this failure is a fatal flaw, he concluded that the exception to dismiss invoked against Mrs. Guimont was well founded. [ 15 ] As for the appellant Roch Guimont, according to the judge, [ translation ] “it is the moment when Mr. Guimont initiated the application that is problematic.” He considered the argument based on paragraph 9 (

a) of the Press Act , but stated that, from a reading of the article, he was unable [ translation ] “to find any accusation whatsoever made by the [respondents] against Mr. (or even Mrs.) Guimont.” Given that the application was prescribed under

section 2 of that Act, he allowed the exception to dismiss invoked against Roch Guimont. [ 16 ] In light of the foregoing, the judge did not feel it necessary to decide on the subsidiary ground the respondents raised. III. The issues in dispute [ 17 ] The appeal raises two questions: 1. Does the Press Act apply to an

article published on a continuous information website? 2. Is the appellants’ application unfounded in law, even if the facts alleged are true? [7] [ 18 ] Although it is not necessary to answer the first question in order to rule on the appeal, given my answer to the second question, it seems to me appropriate to do so. First, the trial judge dismissed the appellants’ application based solely on the provisions of the Press Act , without opining on the respondents’ subsidiary ground; second, the discussion on appeal dealt primarily with this question.

It also provides an opportunity for this Court to clarify the law in a context in which many articles are published on continuous information websites nowadays. IV. Analysis A. The relevant legislative provisions [ 19 ] The following are the relevant legislative provisions: ▪ Press Act , CQLR, c. P-19

1. For the purposes of this Act, the word “newspaper” means every newspaper or periodical writing the publication whereof for sale or distribution free of charge is made at successive and determined periods, appearing on a fixed day or by irregular issues, but more than once a month and whose object is to give news, opinions, comments or advertisements. 1.

Le mot « journal » , aux fins de la présente loi, signifie tout journal ou écrit périodique dont la publication à des fins de vente ou de distribution gratuite a lieu à des périodes successives et déterminées, paraissant soit à jour fixe, soit par livraisons et irrégulièrement, mais plus d’une fois par mois et dont l’objet est de donner des nouvelles, des opinions, des commentaires ou des annonces. 2. Every person who deems himself injured by an

article published in a newspaper and who wishes to claim damages must institute his action within the three months following the publication of such article, or within three months after his having had knowledge of such publication, provided, in the latter case, that the action be instituted within one year from the publication of the

article complained of. 2. Toute personne qui se croit lésée par un

article publié dans un journal et veut réclamer des dommages-intérêts, doit intenter son action dans les trois mois qui suivent la publication de cet article, ou dans les trois mois qu’elle a eu connaissance de cette publication, pourvu, dans ce dernier cas, que l’action soit intentée dans le délai d’un an du jour de la publication de l’article incriminé. 3.

No such action may be brought against the proprietor of the newspaper, unless, personally or through his attorney, the party who deems himself injured gives a previous notice thereof of three days, not being holidays, at the office of the newspaper or at the domicile of the proprietor, so as to allow such newspaper to rectify or retract the

article complained of. [ … ] 3. Aucune telle action ne peut être intentée contre le propriétaire du journal, sans que la

partie qui se croit lésée, par elle-même ou par procureur, n’en donne avis préalable de trois jours ouvrables, au bureau du journal, ou au domicile du propriétaire, de manière à permettre à ce journal de rectifier ou de rétracter l’article incriminé. [ … ] 9. No newspaper may avail itself of the provisions of this Act in the following cases: (

a) when the party who deems himself injured is accused by the newspaper of a criminal offence; […] 9. Le journal ne peut pas se prévaloir des dispositions de la présente loi dans les cas suivants:

a) si la

partie qui se croit lésée est accusée par le journal d’une offense criminelle; […] 10. Provided that the facts be accurately reported and in good faith, the publication in a newspaper of the following is privileged: […] (

d) reports of the sittings of the courts provided they be not held in camera, and that the reports be accurate. This provision shall not, however, affect or diminish the rights of the press under common law. […] 10. Pourvu que les faits soient rapportés exactement et de bonne foi, la publication, dans un journal, de ce qui suit est privilégiée: […]

d) les rapports des séances des tribunaux pourvu qu’elles ne soient pas tenues à huis clos, et qu’ils soient fidèles. La présente disposition n’affecte cependant ni ne diminue les droits de la presse en vertu du droit commun. […] 12 . No newspaper may avail itself of the provisions of this Act if the formalities required by the Newspaper Declaration Act (chapter J-1 ) have not been complied with. 12. Aucun journal ne peut se prévaloir des dispositions de la présente loi si les formalités prévues par la

Loi sur les journaux et autres publications (chapitre J - 1 ) n’ont pas été observées. ▪ Newspaper Declaration Act , CQLR, c. J-1

1. No person shall print or publish, or cause to be printed or published in Québec, any newspaper, pamphlet or other paper containing public news, or serving the purpose of a newspaper, or used for posting up or general circulation in detached pieces as a newspaper, until a declaration under oath, made and signed as hereinafter mentioned, containing the matters hereinafter mentioned, has been delivered to the clerk of the Court of Québec for the district in which such newspaper, pamphlet or other paper is printed or published . 2.

Such declaration shall set forth the title of such newspaper, pamphlet or other paper, the real name, style, description and place of abode of every person who is, or who is intended to be, the printer or publisher thereof, and of all the proprietors of the same, if the number of such proprietors, exclusive of the printer and publisher, does not exceed two, and if the same exceeds two, then of two such proprietors, exclusive of the printer and publisher; and also the amount of the proportional shares of such proprietors in the ownership of the newspaper, pamphlet or other paper, and the true description of the house or building wherein it is intended to be printed . 1.

Nul ne doit imprimer ou publier, ni ne doit faire imprimer ou publier, au Québec, un journal, un pamphlet ou autre papier contenant des nouvelles publiques, ou servant aux mêmes fins qu’un journal, ou aux fins d’être affiché ou répandu en feuilles détachées comme un journal, avant qu’une déclaration sous serment faite et signée en la manière ci-après indiquée, et contenant les particularités mentionnées ci- dessous, ait été délivrée au greffier de la Cour du Québec, pour le district où s’imprime ou se publie tel journal, pamphlet ou autre papier . 2. Cette déclaration doit énoncer le

titre de ce journal, pamphlet ou autre papier, les vrais noms, titres, qualités et le domicile de la personne qui en est ou doit en être l’imprimeur ou l’éditeur, ainsi que de tous les propriétaires, si leur nombre, à

part l’imprimeur et l’éditeur, n’excède pas deux; et s’il excède le nombre de deux, alors de deux des propriétaires, à

part l’imprimeur et l’éditeur; ainsi que le montant des parts proportionnelles des propriétaires dans la propriété du journal, du pamphlet ou autre papier, et la désignation fidèle de la maison ou de l’édifice où il doit être imprimé . B. Application of the Press Act to an

article published on a continuous information website [ 20 ] The Press Act came into force in 1929 and has not changed much since, despite some amendments and consolidations over the years. [8] It refers to the formalities in the Newspaper Declaration Act , a statute dating back to 1861. Quite clearly, the legislature did not have the Internet in mind when it enacted these statutes, nor did it foresee the digital revolution of the last few decades. [ 21 ] The words of a statute are generally construed on the basis of the meaning they had when the statute was passed: 1018.

As a general rule, the point of reference of a statute should be the time of its enactment. As the role of the interpreter is to recreate the thoughts underlying the text of an enactment, it seems logical to give the words their ordinary meaning at the time of the legislation’s adoption, taking into account the context in which they were enacted. 1019. This principle was expressed by Lord Esher in Sharpe v.

Wakefield : “... the words of a statute must be construed as they would have been the day after the statute was passed , unless some subsequent statute has declared that some other construction is to be adopted or has altered the previous statute.” 1020. These views were cited with approval by Justice Martland, in Bogoch Seed Co. v. Canadian Pacific Railway Co. , and by Justice Dickson in Perka v. The Queen .

In particular, this principle provides that the meaning of a statute should not be altered by a change in the ordinary meaning of a word or in the overall context of its enactment. [9] [Emphasis added; references omitted] [ 22 ] By no means does this principle imply that a statute cannot apply to new material or social facts. [10] The “law is ever commanding”, according to

section 49 of the

Interpretation Act , [11] and “[b]road statutory categories are often held to include things unknown when the statute was enacted.” [12] The purpose of the statute, however, must allow it to adapt to the new reality, as must its wording: If justified by its aim, and compatible with its wording, a statute can apply to inventions subsequent to its enactment. Such was the situation with the bicycle, the telephone, the streetcar, the automobile, fibre optic cables and innovations in rapeseed cultivation.

In each case, the court will ask itself if the provision’s purpose will justify application to the new invention, and whether the enactment’s terms are sufficiently general to permit its application to things unknown at the time of enactment. [13] [References omitted] [ 23 ] Here, the legislature’s intent when it enacted the Press Act was to [ translation ] “protect freedom of the press without reducing the protection afforded to the reputation of the public.” [14] It is therefore questionable whether the purpose of the Act – which was to strike a balance between the freedoms of opinion and expression, and every person’s right to have their reputation protected – justifies extending its application to an

article published worldwide. Moreover, it should be noted that publication on the Web is much more permanent than publication on paper in that it continues to be more readily accessible. In any event, the wording of the Act, particularly the definition of the word “newspaper” and the reference to the formalities set out in the Newspaper Declaration Act , stands in the way of its application to a continuous information website.

[ 24 ] The respondents argue that the Press Act does not make a distinction based on the platform on which a publication is made. This is not entirely accurate. The Act targets any

article published in a “newspaper”. A continuous information website such as lapresse.ca, however, is not a “newspaper” within the meaning of the Act. It is not a “ periodical writing the publication whereof for sale or distribution free of charge is made at successive and determined periods, appearing on a fixed day or by irregular issues, but more than once a month”. [ 25 ] This definition could perhaps encompass the digital edition of a newspaper, although the reference to the formalities set out in the Newspaper Declaration Act makes this doubtful.

On this subject, Céline Gervais writes: [ translation ] The terms of this definition [the word “newspaper”] seem to refer solely to the written press. The legislature does not seem to have intended to extend the Act ’s protection to radio or television. As regards periodicals published electronically or on the Internet, it is questionable whether the Act can apply to them. Indeed, in order for a newspaper to avail itself of the short prescription period under the Act , it must have fulfilled the formalities set out in the Newspaper Declaration Act .

In that regard, the declaration provided for in sections 1 and 2 of that Act concerns any person who wishes to print or publish in Quebec “a ny newspaper, pamphlet or other paper containing public news, or serving the purpose of a newspaper, or used for posting up or general circulation in detached pieces as a newspaper”. […] We believe a legislative amendment would be required in order to make the Press Act applicable to publications on the Internet. [15] [Emphasis added] [ 26 ] Since the

article in question here was not published in the digital edition of a newspaper, there is no need to dispose of this issue or comment on it further. It is sufficient to conclude that the Press Act does not apply to an

article published on a continuous information website. [ 27 ] To find otherwise would be to allow all digital media to be likened to a newspaper. Thus, a news site belonging to a radio or television station that publishes articles could avail itself of the provisions of the Press Act , provided it had delivered to the clerk of the Court of Quebec, for the district in which it “publishes” its site, a declaration under oath made and signed as required by the Newspaper Declaration Act .

In my opinion, giving such a broad scope to the Press Act and the protection mechanisms it provides would defeat the intent of the legislature. [ 28 ] In our digital and social media age, the Press Act and the Newspaper Declaration Act should undoubtedly be revamped, but it is up to the legislature to do so. It is the legislature that must decide on the protection to be afforded to digital media and prescribe the required formalities for its implementation.

As Laskin C.J.C. wrote in a unanimous Supreme Court judgment: Courts cannot turn their role of construction into one of naked legislating, however well-disposed they may be to solutions proposed for problems which arise under deficient legislation. The proper recourse in such situations is to the legislature to repair the deficiencies in its statute. [16] [ 29 ] In light of the foregoing, I conclude that, in the case at bar, Gesca cannot avail itself of the provisions of the Press Act .

The applicable extinctive prescription period is one year [17] and, if we assume the truth of the allegation that Roch Guimont became aware of the

article on June 14, 2016, the appellants’ application is not prescribed. [ 30 ] The situation is different with respect to the respondents Ian Bussières and Le Groupe Capitales Médias inc., who are entitled to the protection afforded by the Press Act as regards the publication in Le Soleil . Indeed, they were sued solely as [ translation ] “journalist, author of the

article in dispute and employee of […] LE GROUPE CAPITALES MÉDIAS INC. (LE SOLEIL) , legal person that initially published the

article in dispute on March 14, 2012”, and not for participating in the publication of the

article on the lapresse.ca website. C. The application is unfounded in law [ 31 ] This exception to dismiss was raised at trial and was addressed by the appellants. Moreover, in their appeal brief, they argued that the

article is defamatory and violated their fundamental rights. It is therefore appropriate for this Court to consider this ground, which the respondents did not waive. [ 32 ] The legal principles applicable to an exception to dismiss an application (or a defence) under

article 168 paragraph 2 C.C.P. are well known. This Court has often reiterated them, including in Bohémier c.

Barreau du Québec : [18] [ translation ] [17] In paragraph 66 of the judgment a quo , the trial judge correctly listed the principles of law on which the dismissal of an action under article 165(4) C.C.P . is based: [66] The following are the principles of law applicable to an exception to dismiss: • The allegations in the motion to institute proceedings must be assumed to be true, which includes the exhibits filed in support thereof; • Only the alleged facts must be assumed to be true, not their characterization by the plaintiff; • The Court need not decide on the plaintiff’s likelihood of success nor whether the facts alleged are well founded.

It is up to the judge on the merits to decide whether the facts alleged have been proved, after hearing the evidence and arguments; • The Court must allow the action to proceed if the allegations in the motion to institute proceedings are liable to eventually give rise

to the relief sought ; • The purpose of a motion to dismiss is not to adjudicate the parties’ legal arguments before a trial is held. Its sole purpose is to determine whether the conditions for the proceedings are supported by the facts alleged, which requires not only an explicit, but also an implicit, examination of the law invoked; • A motion to dismiss should not be dismissed on the pretext that it raises complex issues; • When considering an exception to dismiss, caution is required. Where there is uncertainty, litigation should not be ended at an early stage; • In case of doubt, the plaintiff must be given an opportunity to be heard on the merits. [ 33 ] In the case at bar, the

article written by Ian Bussières, a journalist, reports on a judgment rendered by the Superior Court, which dismissed the $1-million action instituted by the appellant Roch Guimont against the Ville de Québec. It also mentions charges brought against the appellants under the Defence Production Act [19] in connection with the possession of night-vision goggles. [ 34 ] One of the appellants’ principal complaints against the journalist is that he did not try to obtain Roch Guimont’s version of the facts. Paragraphs 11 and 13 of the application state: [ translation ] [11] The

article is inaccurate and unbalanced. The information as presented and illustrated in the

article is incomplete and inaccurate. The

article does not describe the plaintiffs’ version of the facts, it contains defamatory statements and misinformation and, overall, it even incites hatred towards the plaintiffs . Ian Bussières does not fairly present both sides of the story, his search for the truth was limited to surgically extracting the harmful portions of an unfavourable judgment , without attempting to get the plaintiff’s version of the facts. Mr. Bussières did not discharge his duty to seek out the truth and he also violated his Code of Ethics. […] [13] Mr. Bussières’

article states: [ translation ] “ Guimont and an accomplice , 63-year-old Constance Guimont, are facing charges of unlawful possession of night-vision goggles exceeding authorized performance standards in Canada. ” On its very face, this statement by Mr. Bussières violates the right of accused persons to be presumed innocent, a right guaranteed under the Canadian Charter of Rights and Freedoms .

The journalist omitted the plaintiffs’ version of the facts and did not try to obtain it. [Emphasis and italics in the original] [ 35 ] The journalist was not required to ensure that the facts set out in the Superior Court’s judgment were true nor did he have to verify whether the charges brought against the appellants were well founded. He had an obligation to report the facts accurately and in good faith, without, however, being subject to the [ translation ] “constraints of a word by word retelling”, as Thibault J.A., writing for this Court, explained in Groupe Québécor Inc. c.

Cimon : [ translation ] The truthfulness of the reported facts: [36] The respondent is mistaken in requiring the journalist to verify the truthfulness of the facts stated in pleadings before reporting them. In my opinion, the only issue here is whether the information reported is accurate when compared to the information contained in the pleadings. [37] If this were not the case, the public’s right to be informed about court proceedings would be illusory.

For example, I have difficulty seeing how a journalist could ensure, before a trial is held, that the charges brought against an individual are well founded or that the facts stated in pleadings are true. The accuracy of the reported facts: [38]

Section 10 of the Press Act requires that pleadings or court proceedings be reported accurately and in good faith. This does not mean that journalists are under the constraints of a word by word retelling, as the trial judge rightly pointed out. [39] It is enough if an

article provides the substance of the pleading or court proceedings without an extrapolation or omission liable to distort them or create a mistaken impression regarding their content. An

article must be meticulous in presenting the essential facts. [20] [ 36 ] The origin of this principle can be traced back to the common law defence of qualified privilege, referred to as the “privilege about fair reports of judicial proceedings”, which was recognized in Quebec as far back as 1909, before the Press Act was even enacted. [21] As a contextual element for determining fault in matters of defamation, it is an integral part of Quebec civil law, [22] whether or not the Press Act applies. Moreover, the second paragraph of

section 10 of the Act states that the provision “shall not, however, affect or diminish the rights of the press under common law.” [ 37 ] In Gill c. Chélin , this Court implicitly acknowledged the following: [ translation ] [65] Although the judgments rendered by a judge are generally accessible to the public, the judge is nevertheless not a journalist or an active union member. An author, however, be he a journalist or active union member, does not commit a civil fault by reporting the content of a judgment , citing excerpts thereof or even lawfully criticizing them. [23]

[Emphasis added] [ 38 ] Moreover, in a recent judgment rendered on an appeal by the appellant Roch Guimont, this Court underscored the crucial role of the media in informing the public about court proceedings: [ translation ] [32] The respondents did not commit a fault by reporting, and limiting themselves to reporting, in good faith and without malice, information stemming from court cases in which the appellant has been involved since 2001. [33] Case law, particularly several Supreme Court of Canada judgments, acknowledges the public’s right to be informed about proceedings taking place before the courts.

Unless there is a publication ban or similar order, which is not the case here, the open court principle ensures the proper functioning of the courts. The essential role of the media in informing the public on such matters is now recognized. [34] With respect to reports based on court documents, the appellant is wrong in saying that the respondents should have obtained his version of the facts.

In any event, at the risk of being repetitive, there was nothing insulting or injurious to his reputation in the reports in question. [24] [ 39 ] In short, the reproach made against the journalist, Ian Bussières, of not having attempted to obtain Roch Guimont’s version of the facts is unfounded in law. [ 40 ] As for the rest, it is important to remember that it is the facts that must be assumed to be true, not the characterization given to them by a party in its proceedings. [25] Consequently, it is not enough for the appellants to allege that the

article is [ translation ] “inaccurate and unbalanced” or that it contains [ translation ] “defamatory statements and misinformation”; they must allege facts which, if assumed to be true, justify such a characterization. [ 41 ] I see no such facts. The appellants allege that the

article contains omissions, such as the failure to mention that Roch Guimont was acquitted on the charge of making death threats [ translation ] “without a lawyer, without witnesses for the defence and without cross- examining the prosecution’s witnesses”, but the

article clearly states that he was acquitted. [ 42 ] As regards the fact that Roch Guimont operated an online store selling security equipment and military surplus items, the journalist was not required to mention it. It is not an essential fact related to the charges brought against the appellants, and the inference drawn by the appellants from this omission, namely, that [ translation ] “the journalist, Ian Bussières, clearly wrote his

article with the deliberate intention to harm the plaintiff [Roch Guimont]”, does not hold water. [ 43 ] The appellants argue that, as a whole, the

article paints them as [ translation ] “dangerous repeat offenders”. That is not how I read the article. As in Guimont c. Lamarche , [26] cited above, the

article merely reports the content of certain court proceedings involving Roch Guimont since 2001 and concludes by mentioning the charges brought against the appellants. It contains no defamatory statements whatsoever regarding them, and the fact that it was published [ translation ] “before the plaintiffs [appellants] even stood trial” does not constitute a fault. [27] [ 44 ] Consequently, while giving consideration to the caution required when adjudicating an exception to dismiss, I conclude that the facts alleged, as well as the exhibits, particularly the

article written by the journalist, Ian Bussières, do not give rise to the relief sought by the appellants. [ 45 ] For these reasons, I would dismiss the appeal. SUZANNE GAGNÉ, J.A.