May 13 , 2016 •
THE LAWYERS WEEKLY
3
News
‘Despicable’ web campaign means blanket ban
John Schofield
In a significant decision involving
Internet libel, an Ontario Superior
Court judge has imposed a rare
permanent, blanket injunction on
a Brantford, Ont., man who waged
a bizarre, eight-year campaign of
online defamation against a
Brantford woman and her father
after her estranged husband murdered her eight-year-old son.
Justice David Broad’s written
endorsement in Craven v. Chmura
2016 ONSC 2406, was released
April 16, although it was originally
delivered orally in April 2015 after
a jury found Richard Chmura
guilty of libel and awarded Julie
Craven and her father John
$60,000 in damages.
“The statements about Julie
Craven and John Craven and the
video depictions of them posted to
Richard Chmura’s websites can
only be described as despicable,
heartless and outrageous,” wrote
Justice Broad. “The jury has
spoken. It is time for this vitriolic
campaign to end.”
The injunction requires Chmura
to remove any previous postings
and prohibits him from ever publishing anything about the plaintiffs again — whether negative or
positive.
According to the facts of the
case cited in the endorsement,
Chmura created the websites and
began posting libellous material
to them in August 2007, only 17
months after Andrew Osidacz,
Chmura’s brother-in-law and
Julie Craven’s ex-husband, killed
her son Jared, who was John Craven’s grandson. Immediately
after the murder, Osidacz went to
Julie Craven’s residence and held
her hostage with a butcher knife
for 45 minutes before he was shot
and killed by police.
The murder helped lead to the
Ontario legislature’s passage in
2008 of Kevin and Jared’s Law,
which calls for an automatic coroner’s inquest when a child dies in
the care of a parent or a family
member who has been the subject
of a supervised or unsupervised
court access order. It also gives
families automatic standing at the
inquest and provides financial
McConchie
support to cover legal costs.
Chmura’s poems, articles and
videos appeared designed to
blame Julie Craven for the deaths
of her son and Osidacz, to glorify
Osidacz, and to excuse his violent
behaviour, wrote Justice Broad.
The online tirade included allegations that Julie Craven and/or
John Craven were guilty of extortion, insurance fraud, fraudulent
fundraising and assault.
One of the most alarming allegations, he noted, was the allegation that Jared was the biological
son of John Craven as a result of
an incestuous relationship. One of
the videos juxtaposed images of
Julie Craven with a witch from a
Hollywood movie. “The websites
also sought to portray Julie Craven as an insincere and manipulative false victim,” wrote Justice
Broad. “There was no basis or
support provided for any of the
insulting, humiliating and outrageous statements made about
Julie Craven and John Craven on
the websites.”
The Cravens’ long legal effort to
end the persistent defamation
began in 2007 and continued
through two court appeals by
Chmura, who was self-represented throughout the process.
Justice Broad noted that at no
time did the defendant offer a
retraction or apology, and in his
final address to the jury during
the nine-day trial in April 2015 he
tried to justify his actions. He had
also failed to pay any previous
damage awards. “These factors, in
my view,” wrote Justice Broad,
“point to a legitimate concern that
Richard Chmura will continue his
publication of defamatory statements….”
Citing a leading, higher court
decision in 122164 Canada Limited O/A New York Fries v. C.M.
Takacs Holdings Corp. 2012 ONSC
6338, Justice Broad noted that a
permanent injunction following
findings of defamation may be
ordered where (1) there is a likelihood that the defendant will continue to publish defamatory statements, despite a finding that he is
liable to the plaintiff for defamation, or (2) there is a real possibility
that the plaintiff will not receive
any compensation, given that
enforcement against the defendant
of any damage award may not be
possible. The New York Fries decision is based on a number of precedents, including Astley v. Verdun
2011 ONSC 3651.
Because of the high value placed
on free speech in a democratic
society, lawyers are more likely to
obtain an injunction after a finding of guilt in a libel trial than
beforehand,
said
Roger
McConchie, a Vancouver defamJaeger, Page 23
May 13 , 2016 •
THE LAWYERS WEEKLY
23
News
Human rights post is diplomat’s latest challenge
Donalee Moulton
When Christine Hanson settles
behind her desk for another jampacked day, she is no longer a diplomat working a stone’s throw away
from the White House in Washington D.C. Now she is tackling a new
job, one that is within easy walking
distance of a Canadian landmark:
Citadel Hill in the heart of Halifax.
In February, Hanson assumed the
position of chief executive officer
with the Nova Scotia Human
Rights Commission and said goodbye, at least for the next three years,
to her embassy position with Global
Affairs Canada.
The prospect of working at the
helm of the province’s human
rights commission was both professionally and personally welcome
for the Nova Scotia native. Hanson
has family in Halifax and wanted to
immerse herself in human rights
issues at the ground level. “I was
looking for a challenge. I was looking for something a little different,”
she said.
Hanson completed three degrees
at Halifax’s Dalhousie University,
including a master’s in public
administration and law, en route to
an international legal career. The
seeds of that career were sparked
while living in Germany with her
Profile
“I didn’t understand at the time
that I could be both a lawyer and a
diplomat,” she noted.
That understanding came
quickly. After successfully completing the Foreign Service exam, Hanson found herself working in the
legal bureau of the Department of
Foreign Affairs and International
Trade in the nation’s capital. She
was involved in high-profile cases
including that of Andrei Knyazev, a
Russian diplomat found guilty of
involuntary manslaughter by a
Russian court after driving while
drunk and killing an Ottawa
The dispute resolution side is only one side of this
role. Education and awareness is the other. A lot
of the complaints we see could easily have been
avoided with a little education and awareness.
Christine Hanson
Nova Scotia Human Rights Commission
family when the Berlin Wall came
down and watching her father, who
worked for NATO. “I articled at a
large firm then went into the Foreign Service and ran off to see the
world,” Hanson said.
woman. Hanson subsequently
wrote the policy to address similar
legal, and political, issues.
Then, as fate would have it, Hanson was transferred to New York.
She arrived on Sept. 10, 2001. The
next day the world changed forever.
At the time, Canada was actually
chairing a United Nations committee on international terrorism.
Hanson subsequently transferred
to the Canadian Embassy in Washington, D.C. She also became
involved in establishing an international criminal court, one that
seeks to try those accused of genocide, war crimes and crimes against
humanity.
Hanson also served as Global
Affairs Canada’s deputy director of
the human rights and humanitarian law division.
Two talents are required of a diplomat, said Hanson. They must
build relationships and manage
conflict. Both are essential in her
newest role as CEO of Nova Scotia’s
human rights commission. In fact,
she noted, “I feel like I’m exercising
my diplomatic skills even more in
this role than my legal skills.”
She added: “The dispute resolution side is only one side of this role.
Education and awareness is the
other. A lot of the complaints we
see could easily have been avoided
with a little education and awareness.”
Approximately 70 per cent of
complaints arise out of the workplace and many are linked to
physical and mental disabilities.
Now in the works is a handbook for
employers to help them learn about
their obligations. Hanson is also
travelling the province to meet with
groups, including First Nations
and African Nova Scotian communities and leaders.
“It was so clear to me when I first
arrived that there had not been a
lot of outreach,” Hanson said.
“Before I set my goals, I need to
hear from stakeholders.”
She points to the introduction of
Nova Scotia’s Service Dog Act as an
example of the role the commission, which will celebrate its 50th
anniversary next year, can play in
the lives of Nova Scotians. The new
legislation is intended to protect
the rights of service dog users and
to prevent individuals and their
animals from being denied access
to public places and refused tenancy rights. “The commission was
heavily involved in the consultation
process,” noted Hanson, “and the
impetus [for the legislation] was a
complaint launched with the
Human Rights Commission.”
Hanson was one of only 35
women around the world to be
selected for the International
Women’s Fund Fellows Program,
which offers candidates an opportunity to be mentored by an established global leader.
Jaeger: Case ‘about reasonable limits on free speech’
Continued from page 3
ation lawyer with McConchie
Law Corporation. Pre-trial,
interlocutory injunctions are
only granted in exceptional circumstances, he explained.
“Once a court has ruled that
expression is defamatory, a
defendant can’t argue you have
the right to defame someone,”
McConchie told The Lawyers
Weekly. “Freedom of speech does
not include the right to libel
someone, and that’s been the
case for years and years.”
Karen Bennett-Clayton, a lawyer with Halifax-based Stewart
McKelvey Lawyers and the author
of a cyber defamation law blog
called The Reputation, said she
found the case particularly
intriguing because Chmura was
found guilty of both libel and the
relatively new privacy tort of
inclusion upon seclusion. That
finding was based on evidence
that he posted Julie Craven’s
medication history and a letter
from the Children’s Aid Society
written prior to Jared’s death
Bennett-Clayton
that mentioned her name several times.
“I think that this case expanded
intrusion upon seclusion to overlap potentially with defamation
claims,” she said. “That’s a very
interesting development in the
breach of privacy bar.”
Michael Jaeger, a lawyer with
the Brantford firm of BoddyRyerson LLP, who represented
the plaintiffs, said his effort to
obtain a pre-trial injunction was
rejected, but the decision proves
that it’s still possible to obtain a
permanent injunction after the
fact. The case is a valuable addition to the growing body of case
law concerning Internet libel, he
added. “There’s a sense that the
Internet is still the Wild West and
anybody can say anything,” he
added, “and this is a reminder
that that’s not necessarily the
case, especially when the defendant lives in Ontario.”
“It’s about reasonable limits on
free speech,” said Jaeger. “We
were concerned this would go on
forever, and thankfully it didn’t.”
Régimbald: Court relied on ‘restrictive judgments’
Continued from page 10
sideration. “This matter is crying
out to be clarified,” Jones says.
For his part, administrative
law expert Guy Régimbald of
Gowling WLG’s Ottawa office
says an appeal to the Supreme
Court could be easily based on a
request for clarification. “Just as
it was unclear how the Charter
applied to hospitals before Eldridge, it is unclear today how it
applies to universities,” he says.
“The restrictive judgments that
the B.C. court relied on are fairly
old and need to be revisited.
“The students’ aim in the B.C.
case had nothing to do with the
university’s private functions.
They wanted to exercise freedom
of expression on a public space.”
Indeed, Régimbald argues a
strong case can be made that universities fulfil a governmental
objective. “Why,” he asks, “do provinces even have post-secondary
education with such a great deal of
subsidies, both for students and
the universities, if it were not government policy to want people to
go to university and encourage
freedom of speech?”
Klinck agrees. There is a difference, she says, between a university’s human resources policies, the subject of previous
Supreme Court decisions saying
the Charter does not apply, and
“creating a dynamic intellectual
environment where students
contribute ideas.”
Meanwhile, Gerald Chan of
Stockwoods LLP in Toronto says
the B.C. judgment raises, but
does not answer another Charter
question. That is, must a university, even if it is not a government
body or carrying out governmental purposes, take Charter
values into account when making an administrative decision?
The court declined to rule on
that question, declaring the issue
moot for several reasons.
Says Chan: “This was a missed
opportunity. The law is not clear,
and you could get an anomalous
situation where the Charter does
not apply to the body, strictly
speaking, but the body must
nevertheless take Charter values
into account in its decisionmaking process.”
Counsel for the University of
Victoria declined to comment
on the judgment.
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