Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter rules for skilled immigrant applicants. The changes extended testing require- ments to native English and French speakers, who previously could submit written evidence of their proficiency in either of Canada's official languages in- stead. That's no longer an option, a move drawing sharp criticism from immigrants already fluent in English or French who now must incur delays and come up with the fee to take the test. In defending the change, Immigra- tion Minister Jason Kenney told the web site canadianimmigrant.ca that it would make the assessment process fairer, par- ticularly since some applicants used Immigration language rules a waste of time and money T he federal government courted controversy last month when it introduced new language-testing someone else's writing samples to back up their claims of proficiency as part of their submissions. Requiring the test, he noted, will also speed up application processing times since officials can rely on the results rather than going through the written materials. Kenney's arguments are fair, but the change is still an unnecessary bureaucrat- ic imposition on immigration applicants who speak English or French as a first language. It makes no sense, for exam- ple, to have someone with post-second- ary education from an English-speaking country take a language-proficiency test, particularly when they may have already been working here on a visa and are now applying for permanent residency under the Canadian experience class. It's a waste of time and resources, especially for ap- plicants who have clearly demonstrated their ability to function in Canada and now find themselves going through the same process as would-be immigrants from other countries. In tackling the issue the last time it came up in 2008, the Canadian Bar Association addressed many of Ken- ney's concerns with a series of recom- mendations for dealing with people who speak English or French as a first language or who are otherwise obviously proficient in either one. Its submission noted provisions for deal- ing with the issue in countries such as Britain, which allows for exemptions from language testing for nationals of 16 countries, including Canada. Summarized below are the CBA's sug- gestions in 2008 for alternatives to requir- ing the language test: • Have completed secondary school or resided for 10 years or more in and be a passport holder or permanent resident of any country whose national or of- ficial language is English or French. • Hold a university degree from any country whose national or official lan- guage is English or French. • Have a degree from an accredited uni- versity in Canada. Two years later, the CBA's recommen- dations seem to be a reasonable way to handle the issue while addressing Ken- ney's concerns. Let's hope the government reconsiders the latest changes. — Glenn Kauth I t may not be a tidal wave, but this year is proving to be another busy year for media law at the Supreme Court of Canada. In June, the top court issued its decision in Toronto Star Newspapers Ltd. v. Canada con- cerning the validity of manda- tory publication bans for bail hearings under s. 517 of the Criminal Code. The Ontario Court of Appeal previously ruled the provision was overly broad and said the mandatory publication ban should apply only in respect of charges a jury could hear. The top court, however, found it was just fine as drafted and upheld manda- tory publication bans. Only Justice Rosalie Abella saw the seriousness of the interference with the open court principle and would have made all such bans discretionary. Bail hearing publication bans are overly broad. A working pa- per from the Law Reform Com- mission of Canada, released in 1987, recommended that "no automatic publication bans should remain in the Criminal Code." Bail hearing bans cover Media law keeping SCC busy in 2010 Social all evidence, information, representations, and even the reasons issued for granting or denying bail. This breeds spec- ulation on and distrust for the criminal justice system. The rationale for the con- tinuation of mandatory bans centres on arguments related to an accused's rights to a fair trial. But there's no evidence that the release of information from a bail hearing taking place many months prior to trial could influ- ence a potential juror. Certainly, there's no issue of such infor- mation influencing a judge in a non-jury case. There's no ban, of course, on the publication of information obtained from sources outside of bail hearings. As Abella pointed out, strik- ing down the mandatory ban shouldn't result in undue delay or protracted bail hearings. But barring legislative change, we're stuck with mandatory bail hear- ing publication bans. The court released R. v. Na- tional Post in May. The result shouldn't have come as a sur- prise to media lawyers. I doubt anybody expected the court to recognize journalist-source Justice By Alan Shanoff protection as a class privilege. Still, the court recognized the importance of confidential sources and whistleblowers and decided that, in appropriate circumstances, "the public in- terest in protecting the secret source from disclosure out- weighs the other competing public interests — including criminal investigations." Courts are to determine the privilege on a case-by-case basis utilizing the Wigmore criteria, the fourth and most important of which requires a balancing of the public interest in disclosure with the public interest in con- fidentiality. In implementing the fourth criteria, "the court will weigh up the evidence on both sides (supplemented by judicial notice, common sense, good judgment, and appropri- ate regard for the 'special posi- tion of the media')." www.lawtimesnews.com Of perhaps more signifi- cance is the door opened up for notice to the media for search warrant applications for searches of media premis- es. In discussing the circum- stances in which these appli- cations should continue to take place ex parte, the court stated: "There will be cases of urgency or other circumstances supporting the need to proceed ex parte. In the absence of such circumstances the issuing judge may well conclude that it is de- sirable to proceed on notice to the media organization." Since most searches of me- dia outlets don't involve any element of urgency or fear that evidence may be destroyed, jus- tices of the peace should start demanding notice so they might argue whether there should be a warrant in the first place. Beyond the issue of notice, the top court confirmed that "adequate terms must be in- serted in any warrant to pro- tect the special position of the media and to permit the media ample time and opportunity to point out why, on the facts, the warrant should be set aside." July 26, 2010 • law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (HST incl., HST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jclancy@clbmedia.ca or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. In addition, there must be evi- dence that the search "was a ne- cessity of last resort." In other words, authorities must show they can't obtain the evidence through means other than a search of a media office. Media lawyers are waiting for the decision in Farès Bou Malhab v. Diffusion Métro- média CMR Inc., which deals with group defamation; and Globe and Mail, a division of CTVglobemedia Publishing Inc. v. Attorney General of Canada, which concerns the ability of a journalist to shield sources in a civil, rather than, as in Na- tional Post, a criminal litigation setting. Late this year, the top court is to hear Crookes v. Wi- kimedia Foundation Inc. on the issue of whether the publica- tion of a hyperlink to defama- tory words constitutes publish- ing them as well. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e- mail address is ashanoff@gmail. com.

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