Challenges of Enforcing Statutory Publication Bans Online

• Author: Omar Ha-Redeye
• Date: February 25, 2018

Earlier this month, the Supreme Court of Canada ruled in on this again in R. v. Canadian Broadcasting Corp. on an application for a mandatory injunction. Although much of the commentary on this case has focused on how the Court has modified the historic test used for injunctions, few have looked at other aspects of the ruling, including the enforceability of statutory publication bans online.

An injunction is a powerful tool wielded by the courts, but one that should be applied sparingly. A court will order or compel a party to do something, or refrain from doing something, but will typically do so on an interim basis. This means that a trial decision may reverse this decision, and the moving party would have been provided a right they would otherwise not be entitled to.

For many years now, the prevailing case on injunctions in Canada has been the Supreme Court’s decision in RJR — MacDonald Inc. v. Canada (Attorney General) in 1994. The Court formulated the 3-part test that is still used today, which was itself imported from the House of Lords,

The three‑part American Cyanamid test (adopted in Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.) should be applied to applications for interlocutory injunctions and as well for stays in both private law and Charter cases.

At the first stage, an applicant for interlocutory relief in a Charter case must demonstrate a serious question to be tried…

At the second stage the applicant is required to demonstrate that irreparable harm will result if the relief is not granted…

The third branch of the test, requiring an assessment of the balance of inconvenience to the parties, will normally determine the result in applications involving Charter rights.

Other versions of this test in Canada, for example the 2-part test found in British Columbia (Attorney General) v. Wale, still include the substantive elements of the RJR-Macdonald test.

Once a judge is satisfied that an application is neither frivolous or vexatious, it is generally not desirable for courts to conduct an extensive examination of the merits or evaluation as to whether a party is to succeed at trial.

There are also other exceptions where this general framework for injunctions is not applied, which were spelled out by the Court,

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits.

The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial…

The second exception to the American Cyanamid prohibition on an extensive review of the merits arises when the question of constitutionality presents itself as a simple question of law alone.

The circumstances for both of these exceptions are rare, but do occur from time to time.

What has been more uncertain is the threshold that should be applied at the first step of the test where an applicant seeks a mandatory injunction, which are rarely ordered and prohibit specific acts. The courts in in Alberta, Nova Scotia and Ontario have required a strong prima facie case, whereas other provinces and jurisdictions in Canada have simply required that there is a “serious issue to be tried.”

The unanimous ruling by Justice Brown in this case preferred the strong prima facie approach,

[15] In my view, on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR—MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise “put the situation back to what it should be”, which is often costly or burdensome for the defendant and which equity has long been reluctant to compel.[25] Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, “the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial”.[26] The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR—Macdonald as “extensive review of the merits” at the interlocutory stage.[27]

The modified RJR-Macdonald test provided by the Court was as follows:

[18]

…(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction.

The case dealt with a publication ban under Sections 486.4(2.1) and 486.4(2.2) of the Criminal Code, for an accused charged with first degree murder...