🚀 go-pugleaf

This contents of this article, and all others originated by me, do not
constitute legal advice. To the extent that the contents of this
article, or any other originated by me, constitutes legal information, it
is offered without responsibility.

In article <2dmsllINNclk@stephen.cs.ubc.ca>,
Donald Acton <acton@cs.ubc.ca> wrote [in reference to previous articles]:

>This posting and the one paraphrasing an editorial from the Toronto
>Star seem to think that the Ontario courts have no jurisdiction
>outside of Ontario. Now, why do people think this?

Because it's a reasonable interpretation of the law applicable. In fact,
it is very much an open question to what extent the order of Mr Justice
Kovacs is binding outside Ontario. I don't think a similar-fact situation
has arisen in a previous case.

> The trial in
>question is a criminal trial and therefore involves federal laws.

True. But the ban imposed by Kovacs J. was not authorized by any specific
provision of the Criminal Code. He relied on the "inherent jurisdiction"
of the court. In my opinion, this inherent jurisdiction must surely be
confined to the territory of Ontario. (By contrast, Kovacs J. *did* have
statutory authority for his order closing the Court to the general public:
s. 486(1) of the Criminal Code.)

>Violation of the court imposed ban could result in criminal contempt
>of court charges, again a law that is federal.

Well, sort of. See sections 9 and 127(1) of the Criminal Code.

> In Thursday's Vancouver
>Sun there is an article on this case. In the article it is stated the
>Calgary Herald, Vancouver Province, and the Winnipeg Sun had all
>separately considered violating the ban but before doing so consulted
>their lawyers. All three papers were advised by their lawyers that
>they felt the ban was enforcible and that if the stories were
>published the papers would be open to criminal contempt of court
>charges. Now certainly three separate sets of lawyers in three widely
>separate regions of the country would not have reached the same
>conclusion unless there was a really compelling reason to believe that
>the order is applicable in these regions, that the order is enforcible
>and that the court issuing the order has jurisdiction in these
>regions.

You have to understand that when lawyers give legal advice relating to an
area of law that is unsettled, they are going to recommend the most
cautious course of action: in this case, refusing to print any information
covered by Kovacs J.'s ban. However, I very much doubt any of these legal
opinions said "If you print the material, you can definitely be convicted
of contempt." They were likely phrased in terms much less absolute.

There are really three questions here. I'll deal with them in turn. For
ease of exposition I'll refer only to the legal position of the Vancouver
Province, but of course these questions are applicable to any person
outside Ontario.

1. Could the newspaper be convicted in a B.C. court of contempt against the
Ontario order?

The answer is almost certainly no. If the order were related to a
non-criminal case (a publication ban related to a divorce, for example, or
a regular lawsuit) then it would definitely not be enforced by a court outside
jurisdiction. It is very likely the same is true even though the
publication ban here relates to a criminal case. Given that there's no
part of the Criminal Code that authorizes the publication ban, the argument
is very strong that for this question, the Ontario court's order has
identical effect as one made in a civil matter.

2. Could the newspaper be tried and convicted in Ontario of contempt
against the Ontario order?

This depends on a wide array of factors. Central is whether it can be said
to have attorned (i.e., submitted) to the Ontario court's jurisdiction.
For example, if the newspaper had one of its own journalists in the
courtroom for the trial, then the newspaper has probably attorned. And if
that's the case, then the Court may be said to have personal jurisdiction
over the reporter (and by extension, the newspaper). Then it would come
down to a question of whether by the terms of the order it applied to a
publication not in or directed at Ontario. On this point there are
arguments both ways, but probably the order does so apply. 

3. If the newspaper has not attorned to the jurisdiction of the Ontario
court, could it be tried and convicted in Ontario?

This may be the most difficult question of all. The general rule is stated
in s. 478(1) of the Criminal Code: "Subject to this Act, a court in a
province shall not try an offence committed entirely in another province."
Assume that the Vancouver Province has reprinted, for example, the article
that appeared in the Washington Post this week, which was based on
information gleaned from a person or persons who were in the courtroom during
the trial. (Incidentally, the person or persons who blabbed to the
Washington Post reporter is almost certainly guilty of contempt, even if
the actual conversation took place outside Ontario.) The Vancouver
Province likely could not be tried in an Ontario court under these
circumstances.

Of note is a case cited by Kovacs J. in making his order: R. v. Banville
(1982), 69 C.C.C. (2d) 520 (N.B. Prov. Ct.). The accused was a reporter
for the Bangor Daily News, and published a story in Maine which divulged
information covered by a New Brunswick publication ban. The journalist
attorned to the jurisdiction of the New Brunswick court, and was convicted.
An appeal to the New Brunswick Court of Queen's Bench was dismissed. The
case never made it to the Court of Appeal level, and could easily have
been wrongly decided.

Also important for deciding these questions is De Savoye v. Morguard,
[1990] 3 S.C.R. 1077, which is the leading case on recognition of
judgments from another province. It of course deals only with money
judgments, so it is not directly relevant, but its principles are very
important.

Mathew Englander.