Law Times

PAGE 14 CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. SUPREME COURT OF CANADA Communications Law BROADCASTING ISPs do not carry on "broadcasting undertakings" by providing access through Internet Following question referred by Canadian Radio-television and Telecommunications Commission ("CRTC") Do retail Internet ser- vice providers ("ISPs") carry on, in whole or in part, "broadcast- ing undertakings" subject to the Broadcasting Act (Can.), when, in their role as ISPs, they provide access through the Internet to "broadcasting" requested by end- users?. Question as framed based on assumption that "broadcasting" took place on Internet. Parties took view that answer turned on wheth- er ISPs, when providing access to "broadcasting", were themselves "broadcasting". Federal Court of Appeal answered question in nega- tive, finding that ISPs merely pro- vided infrastructure to enable end- user subscribers to access content, applications and services made available by others on Internet. Definition of "broadcasting" and "broadcasting undertaking", con- sidered in context, not meant to capture entities whose sole involve- ment is to provide mode of trans- mission. Appeal to Supreme Court of Canada dismissed. Definition of "broadcasting", "any transmission of programs . . . by radio waves or other means of telecommunica- tion for reception by the public", makes it clear that "broadcasting undertakings" assumed to have some measure of control over pro- gramming. Policy objectives in Act establish high standard for origi- nal programming, and ensuring that programming diverse. ISPs do not engage with policy objectives when they merely provide mode of transmission; they take no part in selection, origination, or pack- aging of content. ISPs do not carry on "broadcasting undertakings" by providing access through Internet to "broadcasting" requested by end-users. Reference (Can.) applicability re Broadcasting Act to Internet Service Providers (Feb. 9, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33884) Decision at 322 D.L.R. (4th) 337, 192 A.C.W.S. (3d) 436 was affirmed. 210 A.C.W.S. (3d) 360 (10 pp.). Constitutional Law CHARTER OF RIGHTS Exposing children to variety of religious facts does not constitute infringement of rights In 2008, Ethics and Religious Culture ("ERC") Program replaced Catholic and Protestant programs of religious and moral instruction in Quebec schools. Appellants requested that school board exempt their children from ERC course. Requests denied by director of educational resourc- es and school board's council of commissioners upheld decision. Appellants applied to Superior Court for declaration that ERC Program infringed right to free- dom of conscience and religion and seeking judicial review of decisions denying exemption requests. They claimed deci- sions made at dictate of Ministere del'Education. Superior Court Judge found that ERC Progrm did not infringe right to freedom of conscience and religion and that school board's decision to deny exemptions valid. He held that school board's decision not made under Ministere's influence and dismissed motion for judicial review. Appellants appealed dis- missal of motion for declaratory judgment as of right and applied for leave to appeal decision to dis- miss motion for judicial review. Attorney General of Quebec and school board brought successful motions to dismiss appeal as of These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. right and successfully contested application for leave to appeal. Court of Appeal found no error in analysis of Superior Court Judge and concluded appeal moot since appellants' children no longer obli- gated to take ECR course. Appeal to Supreme Court of Canada dis- missed. Question is whether reli- gious practice or belief exists that has been infringed. Subjective part of analysis limited to establishing sincere belief that has nexus with religion, including belief in obliga- tion to conform to religious prac- tice. Proving infringement requires objective analysis of rules, events or acts that interfere with exercise of freedom. Appellants had to show that, from objective standpoint, ERC Program interfered with abil- ity to pass faith on to their chil- dren; not sufficient to say they had religious reasons for objecting to children's participation. In adopt- ing Program, Ministere explained need to ensure religious diversity taken into account in schools. ERC Program includes instruction in ethics and instruction in religious culture. Program introduces range of different religions and gets chil- dren to talk about self-recognition and common good. Course does not interfere with appellants' free- dom of conscience and religion. Exposure to some cognitive dis- sonance arguably necessary for children to learn tolerance. Parents remain free to pass on personal beliefs to children; exposure to dif- ferent realities fact of life. Exposing children to variety of religious facts in itself does not consti- tute infringement of Canadian Charter of Rights and Freedoms or Charter of human rights and freedoms (Que.). Importance of question justified hearing appeal even though appellants' children no longer subject to obligation to take ERC course. L. (S.) v. Commission scolaire des Chenes (Feb. 17, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33678) Decision at 189 A.C.W.S. (3d) 474 was affirmed. 210 A.C.W.S. (3d) 363 (40 pp.). FEDERAL COURT OF APPEAL Administrative Law FREEDOM OF INFORMATION Disclosing records to commissioner does not amount to revealing them Canadian Broadcasting Corp. ("CBC") received almost 900 access to information requests pursuant to Access to Information Act (Can.). Almost 200 of those requests refused and almost 100 of refused requests subject of complaints to Information Commissioner of Canada. Proceedings related to 16 refused requests that were subject of com- plaints. Section 68.1 of Act creates exclusions for three types of infor- mation but subject to exception that Act does not apply to infor- mation under control of CBC that relates to its journalistic, creative or programming activities, other than information relating to its general administration. CBC refused majority of access requests on ground that information requested related to journalistic, creative or programming activities without explanation as to exact nature of exclusion invoked. Commissioner ordered CBC to provide records related to 16 impugned requests pursuant to s. 36 of Act. Section 36 grants commissioner power to compel persons to produce documents requisite to investiga- tion of complaint and to "exam- ine any record to which [the] Act applies that is under the control of a government institution". CBC argued records excluded from Act not records to which Act applies within meaning of s. 36. Federal Court Judge found that commis- sioner had to examine information excluded under s. 68.1 to deter- mine whether exception applied. CBC appealed, seeking declara- tion that invocation of exclusion in s. 68.1 has effect of depriving commissioner of power to exam- ine documents subject to refusal. Appeal dismissed. Documents referred to in s. 36(1)(a) must be subject to Act or, at least, capable of being viewed as such at time of examination. Otherwise, words "to which this Act applies" in s. 36(2) superfluous. Excluded record does not meet this requirement. Section 68.1 is exception to exclu- sion. Impossible for commissioner to determine whether information relates to general administration of CBC, and thus falls under s. 68.1 exception, without author- ity to review records, including those relating to journalisitc, cre- ative or programming activities. Exclusions pertain not to records but rather to information. Nature of exception such that it may over- lap with excluded information with result that review by commissioner required to give effect to exception. Parliament intended that informa- tion related to journalistic, cre- ative or programming activities be excluded from application of Act but wanted information related to CBC's general administration to not be excluded. Commissioner's role to initially determine whether exception applies and to exer- cise recommendation power. Commissioner's investigations confidential; disclosing records to commissioner does not amount to revealing them. Difficult to see prejudice if commissioner to take cognizance of records. Canadian Broadcasting Corp. v. Canada (Information Commissioner) (Nov. 23, 2011, F.C.A., Noel, Trudel and Mainville JJ.A., File No. A-391-10) Decision at 194 A.C.W.S. (3d) 346 was affirmed. 210 A.C.W.S. (3d) 384 (37 pp.). FEDERAL COURT Immigration EXCLUSION AND EXPULSION Officer failed to appreciate true April 2, 2012 • lAw Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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