2014 QCCA 1740, 2014 QCCA 1740

Unofficial English Translation Trudeau c. AD4 Distribution Canada inc. 2014 QCCA 1740 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-023691-132 (500-17-074811-129) MINUTES OF THE HEARING DATE: September 12, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. NICHOLAS KASIRER, J.A. GENEVIÈVE MARCOTTE, J.A. APPELLANT COUNSEL STÉFANIE TRUDEAU Me ANNIE-ELIZABETH GIRARD (Gosselin Girard avocats Inc.) RESPONDENTS COUNSEL A D 4 DISTRIBUTION CANADA INC. ANDRÉ GRENIER Me THOMAS VILLENEUVE-GAGNÉ (Pepper & Associé

s) JULIE ALIAS ALYSON QUEEN Absent and not represented MIS EN CAUSE

157989 CANADA INC. On appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Madam Justice Hélène Le Bel) rendered on June 17, 2013. DESCRIPTION: Permanent injunction and damages - Distribution of a film Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 9:30 Continuation of the September 10, 2014, hearing. Start of hearing. Delivery of unanimous judgment read by the Honorable Jacques Chamberland -- see next page. End of hearing. Clerk PER CURIAM JUDGMENT

[ 1 ] Stéfanie Trudeau appeals from a judgment rendered on June 17, 2013, by the Superior Court, District of Montreal (the Honourable Madam Justice Hélène Le Bel), dismissing her amended motion to institute proceedings for an injunction and for compensatory and punitive damages. The judge dismissed the application seeking to prevent the distribution of a film produced by the respondent A D 4 Distribution Canada Inc., concluding that the appellant had not established a violation of her right to privacy or dignity. [ 2 ] The appellant raises four grounds of appeal.

It is appropriate to analyze each of these points in turn. *** [ 3 ] First, she maintains that the judge erred at paragraph [32] of her reasons in finding that the respondents had not usurped her image or name. The appellant is of the view that the judge erroneously excluded uncontradicted evidence that the reference to her badge number “728” in the title of the film made it possible to identify her, which, in the circumstances, was sufficient to establish an infringement of her right to her image and to her name. [ 4 ] The judge did not err on this point.

With respect, the appellant’s reading of the reasons for the judgment under appeal is incomplete. [ 5 ] At paragraph [32], the judge merely noted that the respondents used neither the appellant’s physical image nor her name.

She was not mistaken. [ 6 ] The judge qualified this observation at paragraph [39], correctly noting that, even though the number “728” does not belong to the appellant exclusively, the respondents’ reference to this badge number [ translation ] “made it possible to recognize her”. [ 7 ] At trial, the respondent André Grenier admitted that the reference to Officer 728 was part of the “erotic” parody, and in their factum the respondents acknowledge that they referred to the activities of the appellant as a peace officer both in the film and the accompanying publicity. [ 8 ] The respondent’s use of the title “Agente 728 XXX” in the trailer, the setting of the film during the 2012 student demonstrations, and the allusions to sentences that the public associates with the appellant doing her job as a police officer make it possible to connect the film to the person of Ms.

Trudeau.

Although weakened by the fact that the respondents did not use the appellant’s image or name and the fact that the actress chosen for the title role in the movie does not look like her, this connection was nevertheless correctly identified by the judge. [ 9 ] Despite the existence of this connection, the judge did not commit a reviewable error in dismissing the appellant’s action. [ 10 ] It was not sufficient for the appellant to raise the existence of a connection between herself and the film; she also had to demonstrate that this connection infringed her right to her reputation, her private life, or her dignity. [1] [ 11 ] The appellant’s action was not based solely on an alleged violation of the right to her image.

Rather, her motion to institute proceedings was based on an allegation of unlawful misappropriation of her identity by the respondents at the expense of her reputation, her right to privacy, and her right to dignity.

Her testimony at trial was to the same effect: she believes that the association the public would make between her and the pornographic content of the film, notably because of the film’s title, would injure her professional reputation and violate her dignity and privacy. [ 12 ] In the context of this action, however, the respondents’ references to the appellant’s identity could not alone give rise to a remedy.

Aside from the connection between herself and the film, the appellant must establish an infringement of her rights to privacy and dignity, which she did not do to the judge’s satisfaction. [ 13 ] This first ground is therefore rejected. *** [ 14 ] As a second ground, the appellant argues that the judge erred at paragraph [38] of her reasons by refusing to grant protection of her right to privacy as a public figure. [ 15 ] Again, the appellant has misread the judgment. [ 16 ] Contrary to the appellant’s argument, the judge did not rule out all protection of a public figure’s right to privacy or dignity.

At paragraph [42] of her reasons, she clearly wrote that all persons are entitled to respect of their privacy, including [ translation ] “public figures or artists or public servants”. [ 17 ] The appellant is indeed correct to say that even though public figures expose themselves to criticism and caricature, they are entitled to respect for their privacy, as well as their dignity and honour. [ 18 ] In the circumstances of the case, however, the appellant has not established such an infringement. [ 19 ] First, in the film that the respondents produced and publicized, the judge sees a caricature or parody which concerns not the appellant’s privacy but the public aspect of her professional life, that is to say, her activities as a police officer in a position of authority (paras. [39], [44] and [45]).

As such, the judge was right to find that her behaviour could legitimately be the target of criticism or caricature. [ 20 ] Second, the judge is of the view that the parody the film “Agent 728 XXX” represents falls within the respondents’ exercise of their freedom of expression, and the connection that may be made with the appellant does not constitute an infringement of her fundamental rights.

[ 21 ] As the judge noted at paragraph [45] of the judgment under appeal, freedom of expression permits caricature or parody of a public figure. It is trite law that this freedom has limits and that the task of the court, in this case, was to determine whether the parody unduly infringed the appellant’s fundamental rights.

More precisely, the judge had to determine whether the respondents’ right to criticize and parody was exercised with due regard for the dignity and private life of the appellant. [ 22 ] Taking into account the fact that the film is a parody of a public figure, the judge found that the appellant’s rights were not infringed. The judge’s reasons make it plain that the weak connection between the appellant and the film, as well as the outlandish nature of the parody, meant that her private life and dignity were not compromised in this case.

An ordinary person would not believe that it is the appellant herself depicted in the film, but merely an intentionally comedic imitation. It is certainly not a realistic or serious portrait of the appellant.

The caricature of her life as a police officer presented in this parody is so unlikely that it cannot diminish her reputation or dignity in the eyes of the public. [2] [ 23 ] In coming to this conclusion, the judge did not, however, disregard protection of the appellant’s privacy or dignity as a public figure; she merely observed that this was not a case that called for the intervention of the courts. [ 24 ] The second ground is therefore without merit. *** [ 25 ] Third, was the judge mistaken in deciding that the pornographic nature of the film did not constitute an infringement of the appellant’s right to dignity? [ 26 ] The appellant maintains that the judge erred in treating the respondents’ film as a caricature or parody, when in fact it is pornography.

According to the appellant, caricature or parody and pornography are contradictory categories. Unlike drawings of her in newspapers, the film, because of its pornographic nature, cannot be considered a legitimate criticism or parody of her public life.

Citing what she characterizes as consistent case law, she argues that the act of associating a person with pornography without that person’s consent, is in itself an infringement of her dignity and honour. [ 27 ] The appellant is not wrong to argue that there are limits to the right to caricature, including the right to the dignity and honour of the persons it targets. [ 28 ] As the judge noted at paragraph [45] of her reasons, however, it is not up to the courts to distinguish good caricatures from those that are in bad taste. [ 29 ] The judge was not wrong to conclude that the pornographic nature of the film did not necessarily preclude it from being a caricature or parody. [ 30 ] Contrary to what is argued by the appellant, Geoffré [3] and Larente [4] do not provide relevant guidance in the case before us.

Those judgments concern consent given by models to the distribution of photos, and not caricatures which obviously do not require the consent of the person who is caricatured. Admittedly, the judge who decided those two cases was of the view that, in the context of the misuse of the plaintiffs’ consent, the pornographic nature of the magazine in which the photos were published meant that the fault committed was a violation of their dignity.

The remarks of that judge, however, cannot be transposed into a context like the one before us, where we must determine whether or not a pornographic movie in which the photograph of the appellant does not appear may constitute a legitimate caricature. [ 31 ] The appellant’s premise that any pornographic work referring to a public figure is necessarily an infringement of dignity cannot stand. [ 32 ] The third ground is therefore without merit. *** [ 33 ] Fourth, the appellant maintains that, in the face of what she characterizes as an unlawful and intentional violation, the judge should have ordered the injunction sought and awarded her damages. [ 34 ] It is clear from the appellant’s testimony that she is bothered, even hurt, by the association that the respondents have made between her and their pornographic film.

The judge was also sensitive to this association, as she wrote in paragraph [43] of her reasons. She concluded, however, that the respondents committed no fault and that the association between the appellant and the film is too tenuous to infringe upon her rights. [ 35 ] The judge’s finding of fact whereby the respondents’ behaviour is not

an act giving rise to liability – i.e., she does not find any infringement of the appellant’s rights to reputation, privacy or dignity – warrants deference on appeal. Only a demonstration by the appellant of a palpable and overriding error would permit the intervention of the Court. [5] Such a demonstration has not been made. FOR THESE REASONS , the Court: [ 36 ] DISMISSES the appeal, with costs.

JACQUES CHAMBERLAND, J.A. NICHOLAS KASIRER, J.A. GENEVIÈVE MARCOTTE, J.A.