Law Times

Law Times • OcTOber 29, 2018 Page 7 www.lawtimesnews.com Barton is profoundly bad law BY MATTHEW GOURLAY I t's said that bad facts make bad law. But this is true, I think, only if the courts fail in their duty to apply the law fairly and impartially when bad facts tempt them to distort the law unjustifiably in one party's favour. On Oct. 12, the Supreme Court heard the case of R. v. Barton, on appeal from the Alberta Court of Appeal. The Court of Appeal's decision, which overturned a jury acquittal on a murder charge, is in my view, profoundly bad law. It distorted the rules to reach what it believed to be a desirable outcome, and it did so in the kind of case where appellate circumspec- tion should be at its most acute: a Crown appeal of an acquittal. The appeal in the Supreme Court will now provide an im- portant test of that court's ability to do its job in the face of bad facts that led to a public outcry. Let me explain why. Cindy Gladue died in a hotel room on the night of June 22, 2011. She had suf- fered a gruesome injury to her pelvic re- gion and had bled to death in a room rent- ed by Bradley Barton. Barton had paid her for sex, both on the night of her death and the previous evening. He claimed that her bleeding was the result of a consensual sex act. When he found her dead in the morn- ing, he took off. Gladue's death led to widespread, eminently justified public outrage. Her case was taken to be emblematic of the violence faced by too many Indigenous women. Gladue was a deeply sympathetic victim. Barton was the quint- essential unpopular accused. He received a trenchant de- fence, as was his right. And the jury acquitted him, hav- ing entertained at least a rea- sonable doubt as to his claim of accident. The Crown ap- pealed. The Court of Appeal evidently did not think the Crown's grounds of appeal were adequate, so it decided to make up some of its own. In a rambling decision, the court excoriated the trial judge for (among many other things) not intervening to prevent counsel from referring to Gladue as a "prostitute." In its view, this required a defence appli- cation under s. 276, the rape shield law. Never mind that it was the Crown that first made such reference, in its opening statement, and that s. 276 only purports to limit evidence led "by or on behalf of the accused." Never mind that a full nar- rative of the relationship between Barton and Gladue appeared necessary for the jury to understand how it culminated in her death. And never mind that the Crown, which was complicit in any impropri- ety, made no objection whatsoever along these lines. Presumably, the trial Crown took the view that misrepresenting Bar- ton and Gladue's relationship to the jury was not necessary to a fair trial. The Court of Appeal disagreed, allowing the Crown to reverse its position on appeal and obtain a new trial based in part on its own alleged misconduct. The Court of Appeal also found reversible error in the trial judge's failure to tell the jury that Barton's after-the- fact conduct — f leeing the scene, lying about what hap- pened — could be used to demonstrate his guilt and lack of credibility. The trial Crown, who had contributed to and approved the jury charge, obvious- ly didn't think there was anything wrong with this lack of instruction. Neither did the appeal Crown, who didn't raise it on appeal. The Court of Appeal raised this issue on its own motion. An impartial observer would, therefore, be skeptical of the Crown's submission in the Supreme Court that the error was so obvious that it justified the extraordinary step of over- turning a jury acquittal. In any event, the idea that the jury somehow failed to grasp that it could use the accused's lies and obfuscation to evaluate his credibility defies logic. When raised by the defence, these types of argu- ments are commonly dismissed by appeal courts as fanciful, in that they deny the ju- ry's ability to apply common sense. That's not the case here. Other arguments, too numerous to detail here, were also raised in opposition to the acquittal. All found favour with the Court of Appeal. The court's real griev- ance, I think, was that it disagreed with the jury verdict. But that, in Canada, is not a valid basis upon which to overturn an acquittal. If it were, why have a con- stitutional right to a jury trial in the first place? In fact, Canada is an outlier in giving the prosecution a relatively generous right of appeal from acquittals. Some people believe it goes too far. The Alberta Court of Appeal, a court notoriously hospitable to Crown appeals, appears to think it does not go far enough. And the Court of Ap- peal's decision found a receptive audience, as witnessed by the many interveners who lined up on the side of the Crown in the Supreme Court. For people of a progres- sive mindset, however, giving the Crown a broad right to an appellate "do-over" should be fundamentally anathema. For one thing, its impact would be felt most acutely by vulnerable populations that are already represented disproportion- ately among the ranks of the criminally accused. Overturning the Court of Appeal and reinstating Barton's acquittal would be politically unpopular. This will be a cru- cial test of the Supreme Court's institu- tional integrity — one that we should all hope it does not fail to meet. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. Trudeau's gift to Google BY HOWARD WINKLER W ith little fanfare or consultation, the Trudeau government with its commit- ment to the USMCA proposes to sig- nificantly alter the existing common law in Canada related to the law of defamation. The winners are Google, Facebook and other services that facilitate the communication of online information. The loser is the common law protection of reputation and victims of anonymous false and defamatory online statements, such as untraceable comments on rate-my- professional types of sites or Google business reviews. This should be of particular concern to all Ontario lawyers whose reputations are so important and so easily destroyed, as well as to their clients, whose liveli- hood often depends on their online presence. The importance of the right to protect one's reputa- tion cannot be understated. As the Supreme Court of Canada noted in Hill v. Scientology, "to most people, their good reputation is to be cherished above all. "A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attri- bute that must, just as much as freedom of expression, be protected by society's laws," said the ruling. For generations, common law countries, Canadian courts and provincial legislators have grappled with the fine balance between the competing interests of the constitutionally protected right to freedom of expres- sion and the quasi-constitutional right to the protec- tion of one's reputation. This fine balance will be fundamentally altered due to a clause in the USMCA. In plain language, this pro- vision will provide absolute immunity to content pro- viders no matter what the nature of the content is that they facilitate. "No Party shall adopt or maintain measures that treat a supplier or user of an interactive computer ser- vice as an information content provider in determining liability for harms related to information stored, pro- cessed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the informa- tion," says clause 19.17. Some say this provision is a victory for freedom of expression. I disagree. I believe that this is one more nail in the coffin of the right to protect one's reputation from the proliferation of anonymous, false and defam- atory content published on the internet and made read- ily available by search engines such as Google. One of the greatest challenges to business and indi- viduals today is dealing with the proliferation of fake, false and defamatory content on the internet. Anyone with access to a public computer terminal can, with the push of a keystroke, anonymously, immediately and permanently damage the hard-earned reputation of a business or individual. Consider this not uncommon occurrence: With the encouragement of the business review facility provided by Google, individuals with anonymity can post a fake, false and defamatory review of a business or its services. Anonymity can be achieved through the use of a fake name from a public terminal, such as at a public library or from a jurisdiction outside the reach of Canadian courts. This includes, by the way, the United States. In the U.S., under the provisions of the Communi- cations Decency Act, "no provider . . . of an interactive computer service shall be treated as the publisher . . . of any information provided by another information con- tent provider." In other words, the law in the U.S. pro- vides absolute immunity to providers such as Google, Facebook and Twitter even when they knowingly provide a vehicle for the publication of demonstrably anonymous, false and defamatory content. In contrast to the proposed USMCA provision, countries such as Australia are leading the way among common-law jurisdictions in imposing liability on ser- vice providers as secondary publishers of defamatory material once given notice of the defamatory nature of the content they are publishing. In the case of Duffy v. Google [2017] SASCFC 130, the Supreme Court of South Australia ruled that, once on notice, Google must either remove the material or face liability as a secondary publisher. In Duffy, snippets contained in search results of Dr. Janice Duffy's name suggested that she was a stalker, which the court found to be defamatory. Duffy complained to Google, but they refused to remove the material. The court awarded general damages against Google in the amount of AUD$115,000 (approximately $106,000) for loss of reputation and hurt feelings. The award was upheld on appeal. "The ignorant should not be allowed to wreck repu- tations with impunity. Once knowledge . . . of the words is proved, the secondary publisher who persists in dis- semination of the material carries the risk of the ulti- mate findings as to their meaning . . . " said the ruling. In my view, the common law approach makes per- fect sense and imposes an appropriate degree of re- sponsibility on providers such as Google, once put on notice, to exercise some control over the content they encourage and facilitate. There is no reason to believe, absent the USMCA, that Ontario courts would not follow the same com- mon law principles. Finally, the law of defamation is a provincial power. While the enactment of paragraph 2 of clause 19.17 of the USMCA may be within federal powers as it re- lates to intellectual property, it is arguable that only the provinces can enact legislation affecting the law of defamation. The provinces should take heed and not be unwill- ing participants in such an ill-conceived provision. It is ultimately up to our provincial legislators and courts to modify the fine balance between freedom of expres- sion and the protection of one's reputation. The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump. While Trudeau may have intentionally or unwit- tingly given Google an early holiday gift, one can only hope that, with the passage of time, it amounts to noth- ing more than a lump of coal. LT uHoward Winkler is a Toronto lawyer and mediator who has practised the law of defamation for more than 30 years on behalf of media, plaintiffs and defendants. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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