An unusual, and very interesting decision was just released by the Alberta Court of Appeal. In R v Canadian Broadcasting Corp., 2018 ABCA 391, the primary issue before the Court was whether or not leaving information on the internet can violate the terms of a publication ban. In deciding the case, the Court compared the publication ban provisions of the Criminal Code with those in the YCJA and noted some interesting distinctions.
On March 4, 2016, the body of a child was found in Alberta. The CBC posted articles online on March 5 and 8, 2016, including the child’s name, photograph and other identifying information.
Subsequent to these stories being published, a man was charged with killing the child. A publication ban was issued on March 16, 2016 under section 486.4(2.2)(b) of the Criminal Code, prohibiting any publication of the victim’s name. The section applies when the Crown applies for such a ban and the victim is under the age of 18.
The CBC did not post any more stories online. But, it refused to remove the existing stories. These remained publicly accessible. The Crown took the position that leaving the stories online constituted an act of “publication” in violation of the ban. The CBC disagreed.
Criminal Code Publication Ban Provisions
Sections 486.4(2.1) and (2.2) of the Criminal Code state the following:
(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 victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (emphasis added)
(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.
Curiously, it is an offence under section 486.1 of the Criminal Code to violate a publication ban made under section 486.1(1), (2), or (3), but it does not include section 486.4(2.2.) As a result, the Crown brought an originating application in the Court of Queen’s Bench requesting that the CBC be cited in criminal contempt.
The Criminal Code does not define “published”, “broadcast” or “transmitted” for the purposes of section 486.4.
YCJA Publication Ban Provisions
By contrast, section 2(1) of the YCJA defines “publication” to include making information “accessible to the general public through any means, including print, radio or television broadcast, telecommunication or electronic means”. It also defines “disclosure” to mean “the communication of information other than by way of publication”, which is also prohibited in certain circumstances.
The Alberta Court of Appeal held that these definitions do not appear in the Criminal Code, and that Parliament must have intended to create these differences for a reason.
The Crown argued that applying the definition in the YCJA of “publication” and “disclosure” would encompass the CBC’s conduct and should result in a conviction accordingly. But the Court of Appeal held that while statutes dealing with similar subjects should be presumed to be coherent, there was another interpretation capable of being applied in this case. The CBC’s refusal to remove identifying information from its website after the publication ban was imposed was not clearly contemplated by the Criminal Code publication ban provisions. It was up to Parliament to amend the Criminal Code accordingly if such conduct was meant to be criminalized.
The case is interesting from a youth justice perspective because it highlights a little known distinction between the YCJA and Criminal Code – the definition of “publication” and how a violation under one statute might not constitute one under another. On the one hand, it is not surprising Parliament might have included more robust protections for publication ban under the YCJA given that both accused persons and most victims are under the age of 18. But it does seem oddly asymmetrical child victims under the Criminal Code are not afforded the same level of protection when a publication ban is issued as they are under the YCJA.
If the case is appealed to the Supreme Court, it will be an important decision on the principles of statutory interpretation. Parliament, of course, could amend the Criminal Code at any time to ensure child victims are afforded the same level of protection regardless of the age of an accused person.