R. v. Daly (J.L.) et al., (2005) 215 B.C.A.C. 107 (CA)

JudgeDonald, Mackenzie and Low, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJuly 29, 2005
JurisdictionBritish Columbia
Citations(2005), 215 B.C.A.C. 107 (CA);2005 BCCA 389

R. v. Daly (J.L.) (2005), 215 B.C.A.C. 107 (CA);

    355 W.A.C. 107

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. AU.005

Regina (respondent) v. John Laurence Daly and Global Communications Limited (appellants)

(CA031109; 2005 BCCA 389)

Indexed As: R. v. Daly (J.L.) et al.

British Columbia Court of Appeal

Donald, Mackenzie and Low, JJ.A.

July 29, 2005.

Summary:

A bail hearing was held concerning two men charged with robbery and kidnapping. At the request of the defence, the presiding judge imposed a publication ban pursuant to s. 517(1) of the Criminal Code at the beginning of the bail proceedings. Daly gave a report on a BCTV news broadcast of the bail hearing. BCTV was a Global Communications Ltd. station. Daly and Global were convicted of breaching the publication ban, contrary to s. 517(2) of the Code. Daly and Global appealed.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 1143, dismissed the appeal. Daly and Global appealed.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes a party - [See fourth Criminal Law - Topic 3314.6 ].

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban (incl. breach of) - A publication ban was imposed at a bail hearing pursuant to s. 517(1) of the Criminal Code - Daly gave a report on a BCTV news broadcast of the bail hearing - BCTV was a Global Communications Ltd. station - Daly and Global were convicted of breaching the publication ban, contrary to s. 517(2) - A summary conviction appeal judge affirmed the convictions - Daly and Global appealed - They argued that if s. 517(1) was interpreted in a manner consistent with the Charter guarantee of freedom of expression, then only publication of prejudicial information was prohibited - The British Columbia Court of Appeal dismissed the ground of appeal - The summary conviction appeal judge had held that reference to the Charter was not necessary as there was no ambiguity in s. 517 - He further held that even if the section could be read as excluding non-prejudicial information, the information in the newscast was prejudicial - That was a finding of mixed fact and law, which was not reviewable on the appeal - The finding of prejudice rendered academic whether s. 517(1) could be construed as not curtailing publication of non-prejudicial information - The appellants would be guilty even on the narrow interpretation - See paragraphs 15 to 18.

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban (incl. breach of) - A publication ban was imposed at a bail hearing pursuant to s. 517(1) of the Criminal Code - Daly gave a report on a BCTV news broadcast of the bail hearing - BCTV was a Global Communications Ltd. station - Daly and Global were convicted of breaching the publication ban, contrary to s. 517(2) - A summary conviction appeal judge affirmed the convictions - Daly and Global appealed - They argued that unless the accused was identified in the newscast there could be no prejudice - The British Columbia Court of Appeal rejected the argument where the summary conviction appeal court judge had made a finding of prejudice, which could not be challenged on the appeal - Further, while the accused were not named in the report, a viewer would have no difficulty in matching the names from other media sources with the appellants' newscast - See paragraph 19.

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban (incl. breach of) - A publication ban was imposed at a bail hearing pursuant to s. 517(1) of the Criminal Code - Daly gave a report on a BCTV news broadcast of the bail hearing - BCTV was a Global Communications Ltd. station - Daly and Global were convicted of breaching the publication ban, contrary to s. 517(2) - Daly and Global appealed, arguing that they did not have the necessary mens rea - The British Columbia Court of Appeal rejected the argument - The mental element required by s. 517(2) was an intention to do the act proscribed, i.e., publishing any of the things listed in s. 517(1) - It was not, as argued by the appellants, an intention to breach the court order creating the ban - The broadcast was a conscious, deliberate act jointly produced by the appellants and that was enough for the mental element - It did not assist the appellants to assert that they did not intend to cause the harm which s. 517 was intended to prevent - See paragraphs 20 to 21.

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban (incl. breach of) - A publication ban was imposed at a bail hearing pursuant to s. 517(1) of the Criminal Code - Daly gave a report on a BCTV news broadcast of the bail hearing - BCTV was a Global Communications Ltd. station - Daly and Global were convicted of breaching the publication ban, contrary to s. 517(2) - A summary conviction appeal judge affirmed the convictions - Daly and Global appealed - Daly argued that he could not be convicted of the offence because he did not have the power to decide whether to publish the newscast - The British Columbia Court of Appeal rejected the argument - The summary conviction appeal judge had found Daly to be an aider in the publication under s. 21(1)(b) of the Code - The court stated that while liability could rest on the aiding provision, it was more comfortable with the designation of Daly as a co-perpetrator or a co-principal under s. 21(1)(a) where he prepared the story for publication and directly and actively participated in the broadcast - See paragraphs 22 to 25.

Practice - Topic 5408.1

Judgments and orders - Collateral attack - The appellants were convicted of breaching a publication ban imposed at a bail hearing pursuant to s. 517(1) of the Criminal Code - The appellants appealed, arguing, inter alia, that s. 517(1) should be interpreted as excluding non-prejudicial information - The British Columbia Court of Appeal dismissed the appeal - While it was not necessary to do so, the court discussed the collateral attack doctrine - The court stated that "As to the contention that compliance with the collateral attack rule is impracticable given the fast-paced demands of effective television reporting, when I observe the speed and agility of counsel regularly appearing for the media in invoking review and challenge procedures, prior to publication, often with successful results, I am unable to say the rule is impracticable" - See paragraphs 26 to 31.

Cases Noticed:

R. v. M.W. (1995), 63 B.C.A.C. 236; 104 W.A.C. 236 (C.A.), refd to. [para. 17].

Lord v. British Columbia (Attorney General), [2005] B.C.A.C. Uned. 72; 2005 BCCA 165, refd to. [para. 17].

R. v. Dawson (F.) et al., [2001] B.C.T.C. 178; 2001 BCSC 178, refd to. [para. 22].

R. v. Dimmock (G.) et al. (1999), 211 N.B.R.(2d) 138; 539 A.P.R. 138 (T.D.), refd to. [para. 22].

R. v. Banville (1983), 45 N.B.R.(2d) 134; 118 A.P.R. 134; 3 C.C.C.(3d) 312 (T.D.), affing. in part (1982), 41 N.B.R.(2d) 114; 107 A.P.R. 114; 69 C.C.C.(2d) 520 (Prov. Ct.), refd to. [para. 23].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 120 D.L.R.(4th) 12, consd. [para. 26].

R. v. Canadian Broadcasting Corp., [1998] N.W.T.R. 67 (S.C.), consd. [para. 29].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 517 [para. 5].

Counsel:

D.W. Burnett, for the appellants;

G.C. Banning, for the respondent.

This appeal was heard on May 19 and 20, 2005, at Vancouver, British Columbia, before Donald, Mackenzie and Low, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Donald, J.A., on July 29, 2005.

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4 practice notes
  • Table of cases
    • Canada
    • Irwin Books Criminal Law. Eighth edition
    • September 1, 2022
    ...375 R v Daley, [2007] 3 SCR 523, 226 CCC (3d) 1, 2007 SCC 53 .....................299, 321 R v Daly, 2005 BCCA 389 ................................................................................... 113 R v Daoust, [2004] 1 SCR 217, 180 CCC (3d) 449 ...............................................
  • Toronto Star Newspapers Ltd. et al. v. Canada et al., 2009 ONCA 59
    • Canada
    • Ontario Court of Appeal (Ontario)
    • January 26, 2009
    ...Mine Tragedy) - see Phillips et al. v. Richard, J. R. v. Daly (J.L.) et al., [2003] B.C.T.C. 1143; 178 C.C.C.(3d) 31 (S.C.), affd. (2005), 215 B.C.A.C. 107; 355 W.A.C. 107; 198 C.C.C.(3d) 185 (C.A.), refd to. [para. R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to.......
  • R. v. Pickton (R.W.), (2009) 288 B.C.A.C. 246 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • June 25, 2009
    ...leave to appeal denied (2000), 261 N.R. 390; 150 B.C.A.C. 14; 245 W.A.C. 14 (S.C.C.), refd to. [para. 220]. R. v. Daly (J.L.) et al. (2005), 215 B.C.A.C. 107; 355 W.A.C. 107; 198 C.C.C.(3d) 185 (C.A.), refd to. [para. 220]. R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386; 31 C.......
  • R. v. CHBC Television, 2007 BCSC 74
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • January 12, 2007
    ...becoming aware of it, ordered the papers to continue to be delivered. The newspaper was ordered to pay a $5,000 fine. . R. v. Daly , 2005 BCCA 389: A broadcast was made of prejudicial information from a bail hearing. The court stated that regardless of intention, the broadcast was a conscio......
3 cases
  • Toronto Star Newspapers Ltd. et al. v. Canada et al., 2009 ONCA 59
    • Canada
    • Ontario Court of Appeal (Ontario)
    • January 26, 2009
    ...Mine Tragedy) - see Phillips et al. v. Richard, J. R. v. Daly (J.L.) et al., [2003] B.C.T.C. 1143; 178 C.C.C.(3d) 31 (S.C.), affd. (2005), 215 B.C.A.C. 107; 355 W.A.C. 107; 198 C.C.C.(3d) 185 (C.A.), refd to. [para. R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to.......
  • R. v. Pickton (R.W.), (2009) 288 B.C.A.C. 246 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • June 25, 2009
    ...leave to appeal denied (2000), 261 N.R. 390; 150 B.C.A.C. 14; 245 W.A.C. 14 (S.C.C.), refd to. [para. 220]. R. v. Daly (J.L.) et al. (2005), 215 B.C.A.C. 107; 355 W.A.C. 107; 198 C.C.C.(3d) 185 (C.A.), refd to. [para. 220]. R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386; 31 C.......
  • R. v. CHBC Television, 2007 BCSC 74
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • January 12, 2007
    ...becoming aware of it, ordered the papers to continue to be delivered. The newspaper was ordered to pay a $5,000 fine. . R. v. Daly , 2005 BCCA 389: A broadcast was made of prejudicial information from a bail hearing. The court stated that regardless of intention, the broadcast was a conscio......
1 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Criminal Law. Eighth edition
    • September 1, 2022
    ...375 R v Daley, [2007] 3 SCR 523, 226 CCC (3d) 1, 2007 SCC 53 .....................299, 321 R v Daly, 2005 BCCA 389 ................................................................................... 113 R v Daoust, [2004] 1 SCR 217, 180 CCC (3d) 449 ...............................................

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