Photo of beluga from CTV News

Last week, the Court of Appeal for British Columbia overturned an injunctive order of the Supreme Court that had required a film-maker to remove certain segments of his film because they had been filmed in the Vancouver Aquarium subject to certain restrictive conditions and then used in the film without the Aquarium’s consent. The film sought to advance the case that cetaceans ought not to be kept in captivity, a thesis that ran counter to the Aquarium’s business objectives. In reversing the Supreme Court, the appellate court called upon the Charter and its protection of freedom of expression to justify its decision. To me, what was interesting about this decision (Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395) was the fact that the Court used the Charter to limit the scope of discretionary power that the judge of first instance could exercise  in issuing such an injunction.

The Court of Appeal had two sets of reasons for judgement, one rendered by Madam Justice Bennett and the other rendered by Madam Justice Saunders. Mr. Justice Donald concurred with both sets of reasons.

Madam Justice Bennett noted that the chambers judge had identified the test for injunctive relief and held that “the two-pronged test for an interlocutory injunction from British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.), aff’d [1991] 1 S.C.R. 62: the applicant must prove there is a fair question to be tried and that the balance of convenience favours granting an injunction (with irreparable harm being “integral to [that] assessment”: Wale at para. 46)” [para. 14]. Bennett JA restated the test as follows [para. 37]:

Before issuing an interlocutory injunction, there must be a preliminary assessment of the merits of the case to ascertain that there is i) a serious question to be tried, ii) a consideration of whether the applicant will suffer irreparable harm if the application were dismissed, and finally, iii) an assessment of the “balance of convenience”, that is, which of the parties would suffer the greater harm from the granting or refusing the injunction pending a decision on the merits of the case. As noted in Google Inc. at para. 25, the fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case.

Bennett JA noted that a high degree of deference was required of an appellate court in reviewing a chamber judge’s discretionary decision in relation to injunctive relief [para.35]:

[35] The decision to grant an interlocutory injunction is discretionary, and is entitled to a high degree of deference. This Court must not intervene merely because it would have exercised that discretion in a different way: Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at pp. 155-56; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 at para. 22. However, appellate intervention is necessary if the chambers judge erred in principle, made an order not supported by the evidence, or if it appears that the decision will result in an injustice: Wale at para. 43.

When Bennett JA came to the balance of convenience analysis, she noted that the chambers judge had not sufficiently taken into consideration the protection of freedom of expression under s. 2(b) of the Charter [paras. 69-83]:

[69] The third prong of the test involves an assessment as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: RJR-MacDonald at 342.

[70] The chambers judge’s analysis of the balance of convenience is brief. At para. 31, she said:

With regard to the balance of convenience, I have considered the able submissions of both parties. I have considered the relative risks of harm to the parties from granting or withholding the interlocutory relief sought. In order to achieve the necessary balance, the order of the court is that the defendants remove the 15 contested segments from the video. Those 15 segments of the video must not be published in any manner.

[71] With respect, and again, acknowledging her efforts to issue a decision on the interlocutory injunction promptly, the chambers judge failed to conduct a sufficient analysis of the balance of convenience. Specifically, she did not consider the s. 2(b) Charter right to freedom of expression, which in my view, needed to be considered on the facts of this case.

[72] While the Copyright Act withstood a s. 2(b) constitutional challenge to its validity in Michelin v. Caw, [1997] 2 F.C.R. 306, this does not mean that freedom of expression, as a Charter value, should not be considered in an interlocutory injunction concerning copyright issues. In my opinion, it may be highly relevant, depending on the circumstances.

[73] The Supreme Court of Canada attaches great weight to freedom of expression and stresses the societal importance of this Charter right as guaranteed by s. 2(b). It has said that freedom of expression plays a critical role in the development of our society. See R. v. Guignard, 2002 SCC 14 at paras. 19-20; R. v. Sharpe, 2001 SCC 2 at paras. 21-23. In Sharpe at para. 21, McLachlin C.J.C. identified freedom of expression as “[a]mong the most fundamental rights possessed by Canadians”:

It makes possible our liberty, our creativity and our democracy. It does this by protecting not only “good” and popular expression, but also unpopular or even offensive expression. The right to freedom of expression rests on the conviction that the best route to truth, individual flourishing and peaceful coexistence in a heterogeneous society in which people hold divergent and conflicting beliefs lies in the free flow of ideas and images. If we do not like an idea or an image, we are free to argue against it or simply turn away. But, absent some constitutionally adequate justification, we cannot forbid a person from expressing it.

[74] While the Charter right to freedom of expression is not absolute, “[b]ecause of the importance of the guarantee of free expression […] any attempt to restrict the right must be subjected to the most careful scrutiny”: Sharpe at para. 22.

[75] The BCCLA submits that this Court should adopt the second part of the well-known Dagenais-Mentuck test that is applied when a court is considering imposing a publication ban. The test is derived from the decisions in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, and was summarized in Mentuck at para. 32:

b) Do the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and public, including the right to free expression and the efficacy of the administration of justice?

[76] This framework was created in the context of the “open court” principle. While it may have application to other contexts, in my view, the chambers judge erred in her application of the traditional framework for injunctive relief, so it is not necessary to reconsider the appropriate test in this case.

[77] In the particular context of interlocutory injunctions, in Provincial Rental Housing Corporation v. Hall, 2005 BCCA 36, a decision involving persons engaged in protest over the lack of social housing prior to the redevelopment of the Woodward’s Department Store in Vancouver, Rowles J.A., for the Court, set aside an ex parte injunction, and in doing so, said, at para. 58:

When injunctive relief is being sought in a case such as this, it seems to me to be essential that the potential for “harm” to our constitutionally entrenched right to freedom of expression must be taken into account as part of the familiar balance of convenience test referred to in the case authorities.

[78] This proposition in Hall is supported by RJR-MacDonald, a case that specifically engaged a constitutional challenge to legislation on the basis of freedom of expression. There, the Court held, at 344, that it was open to both parties to attempt to “tip the scales of convenience” by demonstrating to the Court a compelling public interest.

[79] The parties have clearly engaged s. 2(b) of the Charter. Evotion created the documentary to contribute to the conversation on the social and political issue of keeping cetaceans in captivity. This is an unusual copyright case in that the injunction will, in part, silence criticism of the Aquarium and potentially stifle public debate on a topic of great interest to the community. In addition, the Aquarium is not seeking to protect works that are being unfairly used to profit others, such as was alleged in SOCAM.

[80] On the other hand, it is clear that the debate regarding cetaceans in captivity continues, despite the injunction. It is a matter of public record that the Vancouver Park Board, earlier this year, voted to ban the bringing of new cetaceans to the Aquarium. More litigation may ensue from this, so no more need be said.

[81] The engagement of s. 2(b) in the analysis also responds to the concerns of Animal Justice in terms of bringing the issue of cases of animal cruelty to the public’s attention.

[82] In my opinion, the balance of convenience lies with Evotion. The film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and thus, the Charter value of freedom of expression must weigh against granting the injunctive relief. In addition, irreparable harm was not shown by the Aquarium, which in and of itself is a reason for not granting the injunction, and in this case, weighs against granting the injunction.

[83] In my view, the judge erred in granting the injunction. Given my conclusion, I need not consider the argument raised by Animal Justice concerning the issue of moral rights, nor do I need to address the admissibility of Ms. Imrie’s affidavit.

Madam Justice Saunders viewed the analysis respecting the test for injunctive relief slightly differently but agreed that the balance of convenience did not favour the Aquarium [para. 96[:

[96] In this case I consider the balance does not favour the injunction for the reasons that are discussed by my colleague under her headings of irreparable harm and balance of convenience. I agree with her that more was required to establish irreparable harm than was provided in this case, and that the value of freedom of expression should be a consideration in assessing the balance of convenience. That freedom of expression affects not just the parties to this litigation but also the larger community whose interests are engaged by the application. In my view, the balance of relevant factors does not favour the modest editing of the film in the manner ordered before trial. As my colleague describes, the thrust of the film remains in the film even after elision, reducing the efficacy of the order.

Thus, both justices applied freedom of expression analyses in arriving at their conclusion to allow the appeal and to vacate the order issued by the chambers judge to remove the offending segments of film.

As stated earlier, what I found interesting about this case was the fact that the Court used the constitutionally protected freedom of expression to limit or at least qualify the discretion of the chambers judge in determining whether or not to issue an injunctive order requiring a party to remove parts of a film. The third branch of the state, the judiciary, therefore, must control its use of its powers in a manner which complies with (at the very least) s. 2(b) of the Charter. I found this to be somewhat constitutionally heart-warming, given that the judges themselves are the ones who get to say what the Charter applies to or does not apply to.

I remain

Constitutionally yours,

Arthur Grant