Source: http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html
SUPREME COURT OF CANADA
Citation: Quan v. Cusson, 2009 SCC 62
Date: 20091222
Docket: 32420
Between:
Douglas Quan, Kelly Egan, Don Campbell, Ottawa Citizen,
Ottawa Citizen Group Inc. and Southam Publications (A CanWest Company)
Appellants
and
Danno Cusson
Respondent
‑ and ‑
Globe and Mail, Toronto Star Newspapers Limited, Canadian Broadcasting
Corporation, Canadian Civil Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers’ Association, RTNDA Canada/Association of Electronic Journalists, Canadian Publishers’ Council, Magazines Canada, Canadian Association of Journalists, Canadian Journalists for Free Expression, Writers’ Union
of Canada, Professional Writers Association of Canada, Book and Periodical Council,
PEN Canada, Peter Grant and Grant Forest Products Inc.
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 51)
Concurring Reasons:
(para. 52)
McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. concurring)
Abella J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
quan v. cusson
Douglas Quan, Kelly Egan, Don Campbell,
Ottawa Citizen, Ottawa Citizen Group Inc.
and Southam Publications (A CanWest Company) Appellants
v.
Danno Cusson Respondent
and
Globe and Mail, Toronto Star Newspapers Limited,
Canadian Broadcasting Corporation, Canadian Civil
Liberties Association, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers’ Association,
RTNDA Canada/Association of Electronic Journalists,
Canadian Publishers’ Council, Magazines Canada,
Canadian Association of Journalists,
Canadian Journalists for Free Expression,
Writers’ Union of Canada, Professional Writers
Association of Canada, Book and Periodical Council,
PEN Canada, Peter Grant and Grant Forest Products Inc. Interveners
Indexed as: Quan v. Cusson
Neutral citation: 2009 SCC 62.
File No.: 32420.
2009: February 17; 2009: December 22.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Torts — Defamation — Defences — Responsible communication on matters of public interest — Police constable suing newspaper and reporters for libel after articles were published alleging that he had misrepresented himself and possibly interfered with rescue operations at Ground Zero — Court of Appeal recognizing new responsible journalism defence but denying defendants its protection because they had not advanced it at trial — Whether common law of defamation should be modified to accord stronger protection to defamatory statements of fact published responsibly — If so, whether defendants should be able to avail themselves of new defence of responsible communication on matters of public interest at a new trial.
C was an Ontario police constable who, shortly after the events of September 11, 2001 and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. A newspaper published articles alleging that C had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. C brought a libel action against the newspaper and the reporters. At trial, the defendants pleaded qualified privilege and did not rely on the defence known in England as "responsible journalism" which, at the time, had not yet been recognized as a distinct defence by any Canadian court. The trial judge rejected the defendants’ claim of qualified privilege and put the case to the jury to decide whether the defence of truth had been made out. The jury found that many but not all of the factual imputations in the articles had been proven true, and awarded C general damages. The Court of Appeal upheld that decision. The court took the opportunity to establish a responsible journalism defence in Ontario law, but held that the defendants were not entitled to a new trial and the protection of the new defence because they had not advanced the defence at trial.
Held: The appeal should be allowed and a new trial ordered.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.: The defence of responsible communication on matters of public interest recognized in Grant v. Torstar Corp. is applicable where the publication is on a matter of public interest and, having regard to the relevant factors, the publisher was diligent in trying to verify the allegations. The public interest test is clearly met here, as the Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. The defendants’ liability therefore hinges on whether they were diligent in trying to verify the allegations prior to publication, and it will be for the jury at a new trial to decide whether the articles met this standard of responsibility. [28] [31-32]
An appellate court may depart from the general rule and entertain a new issue where the interests of justice require it and where the court has a sufficient evidentiary record and findings of fact to do so. In this case, it is open to question whether the issue argued on appeal was genuinely “new” in the sense of being legally and factually distinct from the issues litigated at trial. The arguments on qualified privilege and responsible journalism were both directed toward the same fundamental question: whether the newspaper and its reporters enjoyed a privilege to publish the impugned material on grounds of public interest and due diligence. In any event, the deficiencies in the evidentiary foundation are largely immaterial in this case because the ultimate determination of responsibility is a matter for the jury, and a proper evidentiary record can be established at a new trial. [37] [39-41]
The interests of justice favour allowing the defendants the opportunity to avail themselves of the change in the law brought about by this litigation on a new trial. Under s. 134(6) of the Ontario Courts of Justice Act, a court hearing an appeal of a civil matter may only order a new trial if “some substantial wrong or miscarriage of justice has occurred”. This test is met. The plaintiff will suffer no undue prejudice from a new trial other than costs. The defendants, on the other hand, would be seriously disadvantaged by being deprived of the opportunity to avail themselves of the responsible communication defence which their appeal was responsible for developing. If it turns out that the defence is found to apply to the articles in question, such a deprivation would amount to an injustice. Furthermore, the defendants’ conduct did not exhibit the absence of due diligence that the “no new issues on appeal” rule is meant to discourage. At the time of trial, it was by no means clear that the new defence of responsible communication would emerge as a “different jurisprudential creature” in English or Canadian law. It was therefore not unreasonable for the defendants to argue qualified privilege at trial, and later, on appeal, to contend for a broader elaboration of a responsible communication defence. [42] [44] [47]
Per Abella J.: As stated in the concurring reasons in the companion case of Grant v. Torstar Corp., both steps in the responsible communication defence should be determined by the judge, with the jury determining factual disputes. Subject to those views, the Chief Justice’s reasons and her decision to order a new trial were agreed with. [52]
Cases Cited
By McLachlin C.J.
Applied: Grant v. Torstar Corp., 2009 SCC 61; referred to: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609; Jameel v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Lamb v. Kincaid (1907), 38 S.C.R. 516; R. v. Warsing, [1998] 3 S.C.R. 579; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; Wasauksing First Nation v. Wasausink Lands Inc. (2004), 184 O.A.C. 84; Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 267 D.L.R. (4th) 690; Loutchansky v. Times Newspapers Ltd., [2001] EWCA Civ 1805, [2002] 1 All E.R. 652.
Statutes and Regulations Cited
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6).
Libel and Slander Act, R.S.O. 1990, c. L.12, s. 14.
APPEAL from a judgment of the Ontario Court of Appeal (Weiler, Sharpe and Blair JJ.A.), 2007 ONCA 771, 87 O.R. (3d) 241, 231 O.A.C. 277, 286 D.L.R. (4th) 196, 53 C.C.L.T. (3d) 122, 164 C.R.R. (2d) 284, [2007] O.J. No. 4348 (QL), 2007 CarswellOnt 7310, upholding a decision of Maranger J. and the jury award, [2006] O.J. No. 3186 (QL), 2006 CarswellOnt 4838, 2006 CanLII 26586. Appeal allowed and new trial ordered.
Richard G. Dearden and Wendy J. Wagner, for the appellants.
Ronald F. Caza, Jeff G. Saikaley and Mark C. Power, for the respondent.
Peter M. Jacobsen and Adrienne Lee, for the intervener the Globe and Mail.
Paul B. Schabas, Iris Fischer and Erin Hoult, for the intervener the Toronto Star Newspapers Limited.
Daniel J. Henry, for the intervener the Canadian Broadcasting Corporation.
Patricia D. S. Jackson, Andrew E. Bernstein and Jennifer A. Conroy, for the intervener the Canadian Civil Liberties Association.
Brian MacLeod Rogers and Blair Mackenzie, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’ Association, RTNDA Canada/Association of Electronic Journalists, the Canadian Publishers’ Council, Magazines Canada, the Canadian Association of Journalists, the Canadian Journalists for Free Expression, the Writers’ Union of Canada, the Professional Writers Association of Canada, the Book and Periodical Council, and PEN Canada.
Peter A. Downard, Catherine M. Wiley and Dawn K. Robertson, for the interveners Peter Grant and Grant Forest Products Inc.
The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. was delivered by
The Chief Justice —
I. Overview
[1] This appeal, along with its companion case Grant v. Torstar Corp., 2009 SCC 61 (released concurrently), requires the Court to consider whether the common law of defamation should be modified to accord stronger protection to defamatory statements of fact published responsibly.
[2] As explained in Grant, the time has come to recognize a new defence — the defence of responsible communication on matters of public interest. The question on this appeal is whether the defendants should be able to avail themselves of it.
[3] The respondent in this Court, Danno Cusson, was a constable with the Ontario Provincial Police (“OPP”) who, shortly after the events of September 11, 2001, and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. Initially, he was portrayed in the press as a hero, while the OPP was pilloried for demanding that he return to his duties in Ottawa. The Ottawa Citizen subsequently published three articles alleging that Cst. Cusson had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. Cst. Cusson brought this libel action against the newspaper, the reporters (the “Citizen defendants”), and OPP Staff Sgt. Penny Barager, who was a quoted source of information for the articles.
[4] At trial, the defendants pleaded qualified privilege. They disclaimed any separate reliance on the defence known in England as “responsible journalism” or “Reynolds privilege” — which, at the time, had not yet been recognized as a distinct defence by any Canadian court. With respect to two of the articles, the trial judge rejected the claim of privilege and put the case to the jury to decide whether the defence of truth had been made out. Answering a long list of factual questions which parsed the allegedly defamatory statements in considerable detail, the jury found that many, but not all, of the factual imputations in the articles had been proven true. It awarded Cst. Cusson $100,000 in general damages against the Citizen defendants and $25,000 against Staff Sgt. Barager. However, the jury also found no malice on the part of any of the defendants and declined to award any special, aggravated or punitive damages.
[5] The Court of Appeal, per Sharpe J.A., took the opportunity to establish a responsible journalism defence in Ontario law. However, it denied the defendants the protection of the defence in this case because they had not advanced it at trial.
[6] For the reasons that follow, in my view, the Citizen defendants should have an opportunity to avail themselves of the new defence. I would allow the appeal and order a new trial.
II. Facts
[7] The facts of this case are unusual. In the course of two weeks in September, 2001, OPP Cst. Danno Cusson went from being lauded as a hero for his post-9/11 rescue efforts to being derided in the press as a dishonest attention-seeker. The accuracy of these competing characterizations was hotly contested at trial. In view of my disposition of this case, I will say no more than is necessary to provide context for the legal issues that arise.
[8] This much is uncontroversial. Following the attacks of September 11, the OPP had volunteered its assistance to New York authorities through official channels, but the offer had been declined. Nonetheless, Cst. Cusson made his way from Ottawa to Manhattan with his pet dog Ranger, presenting himself as a search and rescue volunteer to the police authorities at Ground Zero. When the OPP ordered him to return to his post near Ottawa, Cst. Cusson tendered his resignation to the force (he later withdrew his resignation and went on medical leave).
[9] Cst. Cusson gave a number of media interviews and was portrayed as a hero for his efforts. There were reports that he had helped find and rescue two businessmen from the rubble. However, as the Citizen would later report, at some point Cst. Cusson was barred from the World Trade Center site by the New York authorities. With this yet unknown, the OPP was widely criticized for its apparent callousness in failing to support his initiative and insisting that he return to work. Cst. Cusson received public support from a variety of media outlets and at least one provincial politician.
[10] On September 25, the Citizen published an article by Douglas Quan headlined “‘Renegade’ OPP officer under fire”. It began:
A Kanata OPP officer who has been hailed as a “hero” for his efforts to find survivors of the World Trade Centre disaster may have compromised the search and rescue mission after he is alleged to have misled New York State police into thinking he was a fully trained K‑9 handler with the RCMP, the Citizen has learned.
[11] In the article, Sgt. Tim Fischer of the New York State Police described how Cst. Cusson had identified himself as a member of the RCMP and tried to explain why his business card said OPP. Sgt. Fischer was quoted as saying, “The next time I see him, I’m going to arrest him”. Other New York officials described how they had become suspicious of Cst. Cusson’s qualifications and eventually banned him from the site. Cst. Cusson was reportedly angry at having his access revoked.
[12] The article also quoted Cst. Cusson’s supervisor, Staff Sgt. Penny Barager, confirming that Cusson had never been a member of the RCMP nor had he been trained in K-9 rescue operations. She called his actions “heroic” but cautioned that officers cannot be permitted to go on “renegade missions”. She said that Cusson had violated two OPP policies when he took his uniform and service pistol out of the country without prior authorization.
[13] Mr. Quan had contacted Cst. Cusson prior to publication to get his side of the story. In the article, Cst. Cusson was quoted as denying that he had ever worn an RCMP uniform or otherwise misrepresented himself to the New York authorities. Referring to his military background, he said “I have army blood in me. I guess it took over my police responsibility”. While admitting no wrongdoing, he expressed the hope that he had not “tarnished the image of my force”.
[14] The article concluded by referring to media reports that Cst. Cusson and his dog Ranger had discovered two men in business suits alive in the debris.
[15] The following day, September 26, the Citizen published a follow-up article by Kelly Egan headlined “OPP apologizes for Cusson ‘fiasco’”. It revealed that Staff Sgt. Barager had spoken to Sgt. Fischer and apologized to New York police for Cst. Cusson’s behaviour. The remainder of the piece covered much the same ground as the previous article — most importantly, that he had “misrepresented himself and may have hampered early rescue efforts”.
[16] Finally, on October 11, the Citizen published an article by Don Campbell entitled “OPP’s Cusson faces internal investigation”. Besides repeating the earlier allegations, it reported that Staff Sgt. Barager planned to file a complaint over Cst. Cusson’s conduct. Cusson, it said, was not available for further comment.
III. Judicial History
A. Ontario Superior Court of Justice (Maranger J. sitting with a jury) ([2006] O.J. No. 3186 (QL))
[17] After both sides had called their evidence at trial, the defendants asked the judge to rule that the three articles were protected by qualified privilege. Reviewing the Canadian and English authorities, the trial judge observed that the law in this area was in a state of flux and that the door had been opened to extending qualified privilege to media publications in limited circumstances. With respect to the Quan and Egan articles, he held that there was no “compelling, moral or social duty to publish” them. In the trial judge’s view, they were “certainly of public interest”, but not “to the extent that they needed to be heard”. He therefore held that qualified privilege did not apply.
[18] The trial judge reached a different conclusion with respect to the Don Campbell article. Drawing an analogy to the qualified privilege for reports of pending court proceedings elaborated in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, he held that the privilege must also cover the Citizen’s report of the pending disciplinary action against Cst. Cusson. The part of the action dealing with the Campbell article was therefore dismissed.
[19] The case went to the jury, primarily on the basis of fair comment and justification, with respect to the first two articles. The jury was provided with a detailed special verdict form comprising 151 questions. This questionnaire went through each impugned statement in the Quan and Egan articles, asking the jury to rule on their meaning, defamatory content, truth, and status as fact or opinion. The jury was also provided with a general verdict form, presumably in order to comply with s. 14 of the Ontario Libel and Slander Act, R.S.O. 1990, c. L.12, which provides that a jury in a defamation action “may give a general verdict upon the whole matter in issue in the action”. The jury chose to render a special verdict, ruling on each of the identified statements.
[20] The jury found that the lead paragraph of the September 25 article, quoted above, was fair comment.
[21] Asked to rule on the truth of each of the impugned factual statements and imputations, the jury found that the defendants had proven the following facts:
· the plaintiff had failed in his duties as an OPP officer and abandoned his responsibilities without justification;
· neither the plaintiff nor his dog had received formal training in search and rescue operations;
· Sgt. Fischer or someone else intended to arrest the plaintiff;
· the plaintiff misled Sgt. Fischer into thinking he was an RCMP officer;
· the plaintiff was trying to give the impression that he was an RCMP officer.
[22] However, the jury also found that the following imputations had not been proven:
· the plaintiff may have compromised the World Trade Center rescue effort;
· the plaintiff deliberately misled the New York police by representing himself as a trained RCMP K‑9 officer;
· the plaintiff had no search and rescue training;
· the plaintiff told Sgt. Fischer that he was an RCMP officer and his dog had received training;
· the plaintiff had concealed his true identity;
· the plaintiff asked to be told about the most elementary dog handling techniques and could not carry out even the simplest manoeuvres with his dog;
· the plaintiff was responsible for a supposed “fiasco”;
· the plaintiff’s actions embarrassed the OPP and may have harmed the force’s reputation.
[23] As can be seen, these findings are somewhat difficult to reconcile with one another. On the one hand, the jury found that Cst. Cusson misled Sgt. Fischer into thinking he was an RCMP officer; on the other, it declined to find that Cst. Cusson told the New York authorities that he was an RCMP officer who had received the necessary training. Overall, the jury seems to have taken the view that Cst. Cusson misled the authorities in New York, but that he did not act as deliberately or mendaciously as the articles suggested.
[24] The jury found that there was no “actual malice” on the part of any of the defendants. It awarded the plaintiff $100,000 in general damages against the Ottawa Citizen and $25,000 against Penny Barager. It declined to award any special, aggravated or punitive damages.
B. Court of Appeal for Ontario (Weiler, Sharpe and Blair JJ.A.) (2007 ONCA 771, [2007] 231 O.A.C. 277)
[25] The Court of Appeal, per Sharpe J.A., undertook an extensive review of the Canadian law of qualified privilege as well as the more recent developments in other common law jurisdictions (its reasons for judgment are discussed more fully in Grant). The court concluded that the existing law should be developed in order to give “appropriate recognition and weight to the Charter values of freedom of expression and freedom of the media without unduly minimizing the value of protecting individual reputation” (para. 140). Drawing particularly on the House of Lords’ decisions in Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609, and Jameel v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359, it determined that a new defence of responsible journalism on matters of public interest should be recognized in Ontario.
[26] However, in light of the position taken by the defendants at trial, Sharpe J.A. considered it inappropriate either to apply the defence or to order a new trial. In his view, it would be unjust to allow the defendants a second “bite at the cherry”, citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 18. The court therefore dismissed the appeal.
[27] The defendants (appellants in this Court) now appeal, asking this Court to enter judgment in their favour based on the new defence recognized below. The plaintiff Mr. Cusson, contends that the introduction of a new defence is unwarranted, but in the result asks this Court to dismiss the appeal and confirm the trial judgment in his favour.
IV. Analysis
A. The Defence of Responsible Communication on Matters of Public Importance
[28] In Grant, at para. 126, we hold that the defence of responsible communication on matters of public interest applies where:
A) The publication is on a matter of public interest, and
B) The publisher was diligent in trying to verify the allegation, having regard to:
a) the seriousness of the allegation;
b) the public importance of the matter;
c) the urgency of the matter;
d) the status and reliability of the source;
e) whether the plaintiff's side of the story was sought and accurately reported;
f) whether the inclusion of the defamatory statement was justifiable;
g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
h) any other relevant circumstances.
[29] The judge decides whether the publication was on a matter of public interest. If so, the jury then decides whether the standard of responsibility has been met.
[30] When determining responsibility, the jury must consider the broad thrust of the publication as a whole rather than minutely parsing individual statements. However, where, as here, the publication arguably includes statements of both fact and opinion, the trial judge may deem it necessary to isolate individual statements for the jury’s consideration so it can decide in turn on the applicability of fair comment and responsible communication. While the special verdict form given to the jury in this case was arguably too long and complex, some itemization of individual statements in the judge’s charge to the jury and (if there is one) the special verdict form may be the preferable course to follow in applying the different defences. That said, as was done here, an Ontario libel jury must have the option of rendering a general verdict by virtue of the Libel and Slander Act, s. 14.
[31] In this case, the public interest test is clearly met. The Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety. While the subject of the Ottawa Citizen articles was not political in the narrow sense, the articles touched on matters close to the core of the public’s legitimate concern with the integrity of its public service. When Cst. Cusson represented himself to the New York authorities and the media as an OPP or RCMP officer, he sacrificed any claim to be engaged in a purely private matter. News of his heroism was already a matter of public record; there is no reason that legitimate questions about the validity of this impression should not have been publicized too.
[32] That being the case, the defendants’ liability hinges on whether they were diligent in trying to verify the allegations prior to publication. As explained below, it will be for the jury at a new trial to decide whether the articles met the standard of responsibility articulated in Grant. Further evidence of the steps taken by Quan and Egan may have to be adduced in order to provide a satisfactory record upon which their conduct can be judged.
B. Should the Defendants Have the Opportunity to Avail Themselves of the New Defence?
[33] The Court of Appeal deemed the responsible journalism or responsible communication defence to be a “new issue” raised on appeal for the first time. Applying the jurisprudence on when such an argument should be entertained, it concluded that allowing the defendants to benefit from the new defence would be to give them an impermissible second “bite at the cherry”.
[34] I have some difficulty with how the Court of Appeal characterized the problem arising from the defendants’ new argument on appeal. First, from a procedural point of view, it seems to me that the Court of Appeal did in fact allow the “new issue” of responsible journalism to be raised on appeal. Indeed, it broke new jurisprudential ground on precisely this issue. And, as will be explained, it is open to question how “new” this issue really was, considering the defences pleaded at trial.
[35] Second, from a substantive perspective, the new defence was properly before the Court of Appeal and, in principle, available to the defendants.
[36] The general rule, applied by the Court of Appeal, is that a new issue may not be raised on appeal. However, the authorities shed light on the circumstances in which appellate courts should make an exception to the rule. In Lamb v. Kincaid (1907), 38 S.C.R. 516, at p. 539, Duff J. (as he then was) observed:
A court of appeal, I think, should not give effect to such a point taken for the first time in appeal, unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it.
See also: R. v. Warsing, [1998] 3 S.C.R. 579, at para. 16, per L’Heureux‑Dubé J. (dissenting in part); Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at paras. 32-33, per Binnie J.
[37] Further guidance as to the appropriate test is provided by Wasauksing First Nation v. Wasausink Lands Inc. (2004), 184 O.A.C. 84, relied on by Sharpe J.A. below. There, the Ontario Court of Appeal explained the circumstances in which an exception will be made to the rule:
An appellate court may depart from this ordinary rule and entertain a new issue where the interests of justice require it and where the court has a sufficient evidentiary record and findings of fact to do so. [para. 102]
[38] Applying this test, the preliminary question is whether the Citizen in fact raised a “new issue” in arguing responsible journalism on appeal. If so, then the question becomes whether the evidentiary record and the interests of justice support granting an exception to the general rule.
[39] In this case it was much less clear than in Wasauksing First Nation that the issue argued on appeal was genuinely “new” in the sense of being legally and factually distinct from the issues litigated at trial. Though Sharpe J.A. is right that the focus of the inquiry under the new defence is different from the focus under qualified privilege, there is considerable overlap. Much of the evidence adduced to demonstrate qualified privilege and malice would also be relevant to responsible communication. For example, in attempting to refute any suggestion of malice, the defendants led evidence from Douglas Quan which showed some of the steps he took to verify the allegations. Importantly, he talked to Cst. Cusson and gave him the opportunity to tell his side of the story. Cusson’s denials were included in the article.
[40] All this is to say that the issue on appeal — responsible journalism — did not raise entirely new factual matters without any basis in the evidence. The arguments on qualified privilege and responsible journalism were both directed toward the same fundamental question: whether the Citizen enjoyed a privilege to publish the impugned material on grounds of public interest and due diligence.
[41] In any event, the deficiencies in the evidentiary foundation are largely immaterial because, as held in Grant, the ultimate determination of responsibility is a matter for the jury. Since Sharpe J.A. took the view (following Reynolds and Jameel) that the new defence would be a matter for the judge, he did not consider ordering a new trial so that a jury could entertain the new defence. However, the gaps in the evidentiary record with respect to responsible communication are of less concern if the relevant option is a new trial rather than appellate application of the defence. A proper evidentiary record can be established at a new trial.
[42] The remaining question is whether the interests of justice favour allowing the defendants the opportunity to avail themselves of the change of the law brought about by this litigation on a new trial.
[43] In my opinion, they do. In Ontario, a court hearing an appeal of a civil matter may only order a new trial if “some substantial wrong or miscarriage of justice has occurred”: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). This is arguably a higher standard than that for raising a new issue on appeal, but similar considerations apply. The appellant must demonstrate that “the case was not fairly put to the jury, as, for example, where the charge leaves the jury with a misapprehension as to the applicable legal principles”, that the jury charge was “materially deficient”, or that “the law was not clearly stated on a critical issue”: Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 267 D.L.R. (4th) 690 (C.A.), at paras. 75-76, per Borins J.A.
[44] In this case, this test is met. The plaintiff will suffer no undue prejudice from a new trial other than costs, addressed below. The defendants, on the other hand, would be seriously disadvantaged by being deprived of the opportunity to avail themselves of the responsible communication defence which their appeal was responsible for developing. If it turns out that the defence is found to apply to the articles in question, such a deprivation would amount to an injustice.
[45] As background, it is necessary to recap the approach of the courts below. Applying earlier cases that were loathe to extend qualified privilege to the media, the trial judge applied a stringent duty/interest test that required the publisher to show a “compelling” public interest in publication amounting to a “moral or social duty” (C.A. reasons, at para. 5). Not surprisingly, he found that the Quan and Egan articles fell short of this standard. The jury returned its verdict in favour of the plaintiff on the basis that the defence of qualified privilege was not available. The defendants appealed, arguing that the trial judge’s formulation of qualified privilege was too narrow and, in the alternative, arguing for a broad responsible journalism defence. The Court of Appeal affirmed the existence of a separate responsible journalism defence, but held that the defendants were not entitled to a new trial, given that they had not pleaded this defence initially.
[46] The plaintiff supports the Court of Appeal’s conclusion, arguing that the defendants are not entitled to a new trial on the basis of the new defence of responsible communication on matters of public interest, because they did not raise that defence at the first trial. He argues that the defendants made a strategic decision to rely on traditional qualified privilege, declining to stake their case on the riskier prospect that the trial judge might extend the law to provide a distinct responsible communication defence. Instead, they chose to remain on the more familiar terrain of qualified privilege. On appeal, the plaintiff contends, they should have to lie in the bed they made.
[47] While this argument is not without force, it does not, in my view, carry the day. First, at the time of trial, it was by no means clear that the new defence of responsible communication would emerge as a “different jurisprudential creature” (Loutchansky v. Times Newspapaers Ltd., [2001] EWCA Civ. 1805, [2002] 1 All E.R. 652, at para. 35), in English or Canadian law, since Jameel had not yet been decided. It was therefore not unreasonable for the defendants to argue qualified privilege at trial, and later, on appeal, to contend for a broader elaboration of a responsible communication defence. A panel of the Court of Appeal was much more likely to undertake a thoroughgoing re‑evaluation of the governing jurisprudence than was a single trial judge. It cannot therefore be said that the conduct of the defendants exhibited the absence of due diligence that the “no new issues on appeal” rule is meant to discourage.
[48] Second, had the Court of Appeal and this Court endorsed a broadened defence of qualified privilege as pleaded by the defendants, a new trial would have been required in any event, because the trial judge applied an extremely narrow conception of public interest. The defendants had argued for a broader privilege. That was the bed they sought to make; the trial judge, however, required them to lie in a narrower one. The problem was compounded when the Court of Appeal opted for a new and different defence than the broadened qualified privilege defence pleaded. The trial judge cannot be faulted for failing to undertake a development of the law that the defendants did not ask for — i.e. the establishment of a new responsible communication defence. However, in my view, his restrictive approach to the pleaded defence of qualified privilege occasioned an injustice by effectively removing any realistic prospect that statements on matters of public interest to the world at large could be protected. The defendants deserve an opportunity to make their case to a jury properly instructed on the law as it now stands. A new trial is therefore warranted.
[49] Because the ultimate determination of responsibility is a matter for the jury, I make no comment on whether or not the defence should apply on the new trial.
V. Conclusion
[50] I would allow the appeal and order a new trial.
[51] Success on this appeal has been divided. In the circumstances, each side should bear its own costs in this Court. While the respondents deserve the opportunity to avail themselves of the new defence, they must also live with the consequences of their own strategic decisions at trial. I would therefore not disturb the costs orders made in the courts below.
The following are the reasons delivered by
Abella J. —
[52] As in the companion case of Grant v. Torstar Corp., in my view both steps in the responsible communication defence should be determined by the judge, with the jury determining factual disputes. Subject to those views I agree with the Chief Justice’s reasons and with her decision to order a new trial.
Appeal allowed and new trial ordered.
Solicitors for the appellants: Gowling Lafleur Henderson, Ottawa.
Solicitors for the respondent: Heenan Blaikie, Ottawa.
Solicitors for the intervener the Globe and Mail: Bersenas Jacobsen Chouest Thomson Blackburn, Toronto.
Solicitors for the intervener the Toronto Star Newspapers Limited: Blake, Cassels & Graydon, Toronto.
Solicitor for the intervener the Canadian Broadcasting Corporation: Canadian Broadcasting Corporation, Toronto.
Solicitors for the intervener the Canadian Civil Liberties Association: Torys, Toronto.
Solicitors for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’ Association, RTNDA Canada/Association of Electronic Journalists, the Canadian Publishers’ Council, Magazines Canada, the Canadian Association of Journalists, the Canadian Journalists for Free Expression, the Writers’ Union of Canada, the Professional Writers Association of Canada, the Book and Periodical Council, and PEN Canada: Brian MacLeod Rogers, Toronto.
Solicitors for the interveners Peter Grant and Grant Forest Products Inc.: Fasken Martineau DuMoulin, Toronto.
Tuesday, December 22, 2009
“VANOC V ski jumpers is dismissed :(
Source: http://scc.lexum.umontreal.ca/en/news_release/2009/09-12-21.2a/09-12-21.2a.html
SUPREME COURT OF CANADA ‑‑ JUDGMENTS TO BE RENDERED IN LEAVE APPLICATION AND MOTION FOR RE-HEARING
OTTAWA, 2009-12-21. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT JUDGMENT IN THE FOLLOWING APPLICATION FOR LEAVE TO APPEAL WILL BE DELIVERED AT 9:45 A.M. EST ON TUESDAY, DECEMBER 22, 2009. THIS LIST IS SUBJECT TO CHANGE.
FROM: SUPREME COURT OF CANADA (613) 995‑4330
COUR SUPRÊME DU CANADA ‑‑ PROCHAINS JUGEMENTS SUR DEMANDE D’AUTORISATION ET DEMANDE DE NOUVELLE AUDITION
OTTAWA, 2009-12-21. LA COUR SUPRÊME DU CANADA ANNONCE QUE JUGEMENT SERA RENDU DANS LA DEMANDE D’AUTORISATION D’APPEL SUIVANTE LE MARDI 22 DÉCEMBRE 2009, À 9 H 45 HNE. CETTE LISTE EST SUJETTE À MODIFICATIONS.
SOURCE: COUR SUPRÊME DU CANADA (613) 995‑4330
COMMENTS/COMMENTAIRES: comments@scc-csc.gc.ca
Note for subscribers:
The summaries of the cases are available at http://www.scc-csc.gc.ca:
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Anette Sagen et al. v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (B.C.) (Civil) (By Leave) (33439)
OTTAWA, 2009-12-21. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT JUDGMENT IN THE FOLLOWING MOTION FOR A RE-HEARING WILL BE DELIVERED AT 9:45 A.M. EST ON TUESDAY, DECEMBER 22, 2009. THIS LIST IS SUBJECT TO CHANGE.
FROM: SUPREME COURT OF CANADA (613) 995‑4330
OTTAWA, 2009-12-21. LA COUR SUPRÊME DU CANADA ANNONCE QUE JUGEMENT SERA RENDU DANS LA DEMANDE DE NOUVELLE AUDITION SUIVANTE LE MARDI 22 DÉCEMBRE 2009, À 9 H 45 HNE. CETTE LISTE EST SUJETTE À MODIFICATIONS.
SOURCE: COUR SUPRÊME DU CANADA (613) 995‑4330
Nancy Rick also known as Nanc Rick v. Berend Brandsema also known as Ben Brandsema et al. (B.C.) (Civil) (By Leave) (32098)
33439 Anette Sagen, Jenna Mohr, Lindsey Van, Jessica Jerome, Ulrike Grassler, Monika Planinc, Karla Keck, Nathalie De Leeuw, Katherine Willis by her Litigation Guardian Jan Willis, Jade Edwards, Zoya Lynch by her Litigation Guardian Sarah Lynch, Charlotte Mitchell by her Litigation Guardian Miriam Mitchell and Meaghan Reid by her Litigation Guardian Nina Hooper‑Reid v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games
(B.C.) (Civil) (By Leave)
Charter of Rights - Application -Right to equality - Discrimination based on sex - Olympic Games - 2010 Winter Games will include men’s ski jumping events but not women’s ski jumping events - Whether Canada should be hosting discriminatory Olympic Games - Whether an activity, undertaken pursuant to a government contract, that implements the discriminatory decision of a third party meets the “ascribed activity” test under s. 32 of the Charter - Whether, for the purpose of the equality guarantee under s. 15(1) of the Charter, is a benefit provided by an entity carrying out a government activity a “benefit of the law” only if the benefit is directly derived from the statutory authority and only if government controls its distribution?
The Applicants, women ski jumpers of various nationalities and at various stages of their careers, seek a declaration that the failure of the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Games (“VANOC”) to include women’s ski jumping in the 2010 Winter Games violates their equality rights under s. 15(1) of the Charter. The Applicants are clearly being treated differently than their male counterparts.
In 2003, based on a bid submitted by three levels of government and some private bodies, Vancouver was selected to host the 2010 Winter Games. Shortly thereafter, VANOC was federally incorporated as a non‑profit corporation. VANOC and the City of Vancouver were signatories to the “Host City Contract” with the International Olympic Committee (“IOC”), a non‑governmental, not‑for‑profit corporation headquartered in Switzerland. It charged VANOC with staging the Games, but gives the IOC full discretion to set the Olympic Programme, selecting the sports, disciplines and events to be staged. For the 2010 Winter Games, the IOC heard requests to add women’s ski jumping and six other events to the Programme. The Olympic Programme Commission recommended that women’s ski jumping not be included in the Games because it lacked the universality and technical standard required of Olympic events. In late 2006, the IOC Executive Board accepted that recommendation. Women’s ski jumping is not on the Olympic Programme for the Games.
The trial judge found that VANOC was subject to the Charter in its planning, organizing, financing and staging of the 2010 Winter Games, but that the Charter did not apply to the IOC, which had implemented the decision to exclude women’s ski jumping from the Games. The Court of Appeal dismissed an appeal, finding that the Charter did not apply to the selection of events.
July 10, 2009
Supreme Court of British Columbia
(Fenlon J.)
Neutral citation: 2009 BCSC 942
Application dismissed
November 13, 2009
Court of Appeal for British Columbia (Vancouver)
(Rowles, Frankel and Groberman JJ.A.)
Neutral citation: 2009 BCCA 522
Appeal dismissed December 1, 2009
Supreme Court of Canada
Application for leave to appeal, motion to expedite leave application and appeal filed
December 4, 2009
Supreme Court of Canada
(Cromwell J.)
Motion to expedite application for leave granted; motion for leave to expedite appeal deferred to leave panel
33439 Anette Sagen, Jenna Mohr, Lindsey Van, Jessica Jerome, Ulrike Grassler, Monika Planinc, Karla Keck, Nathalie De Leeuw, Katherine Willis par sa tutrice à l’instance Jan Willis, Jade Edwards, Zoya Lynch par sa tutrice à l’instance Sarah Lynch, Charlotte Mitchell par sa tutrice à l’instance Miriam Mitchell et Meaghan Reid par sa tutrice à l’instance Nina Hooper‑Reid c. Comité d’organisation des Jeux olympiques et paralympiques d’hiver de 2010 à Vancouver
(C.-B.) (Civile) (Sur autorisation)
Charte des droits - Demande - Droit à l’égalité - Discrimination fondée sur le sexe - Jeux olympiques - Les Jeux olympiques d’hiver de 2010 comprendront des épreuves de saut à ski masculin, mais non des épreuves de saut à ski féminin - Le Canada devrait-il être l’hôte de Jeux olympiques discriminatoires? - Une activité, entreprise en vertu d’un contrat gouvernemental, qui met en œuvre la décision discriminatoire d’un tiers répond-elle au critère de « l’activité attribuée » visée à l’art. 32 de la Charte? - Pour l’application de la garantie à l’égalité prévue au par. 15(1) de la Charte, le bénéfice fourni par une entité qui exerce une activité gouvernementale est-elle un « bénéfice de la loi » seulement dans les cas où le bénéfice découle directement du pouvoir conféré par la loi et où le gouvernement en contrôle la distribution?
Les demanderesses, des sauteuses à ski de diverses nationalités et rendues à diverses étapes de leurs carrières, sollicitent un jugement déclarant que la décision du Comité d’organisation des Jeux olympiques et paralympiques d’hiver de 2010 à Vancouver (« COVAN ») de ne pas inclure le saut à ski féminin dans le programme des Jeux d’hiver de 2010 viole les droits à l’égalité que leur garantit le par. 15(1) de la Charte. Les demanderesses sont calirement traitées de manière différente de leurs homologues masculins.
En 2003, sur la base de la candidature soumise par trois paliers de gouvernement et certains organismes privés, Vancouver a été choisie comme hôte des Jeux d’hiver de 2010. Peu de temps après, le COVAN a été constitué, sous le régime des lois fédérales, en personne morale sans but lucratif. Le COVAN et la Ville de Vancouver ont signé le « contrat ville hôte » avec le Comité international olympique (« CIO »), organisme non gouvernemental sans but lucratif ayant son siège social en Suisse. Aux termes du contrat, le COVAN est chargé de présenter les Jeux, mais le CIO a l’entière discrétion quant à l’établissement du Programme olympique, c’est-à-dire le choix des sports, des disciplines et des épreuves devant être présentés. Pour les Jeux d’hiver de 2010, le CIO a entendu des demandes sollicitant l’ajout du saut à ski féminin et de six autres épreuves au Programme. La Commission du programme olympique a recommandé que le saut à ski féminin ne soit pas inclus dans le programme des Jeux, parce qu’il ne possédait pas l’universalité et la norme technique requises à l’égard des épreuves olympiques. À la fin de 2006, la Commission exécutive du CIO a accepté cette recommandation. Le saut à ski féminin ne fait pas partie du Programme olympique pour les Jeux.
La juge de première instance a conclu que le COVAN était assujetti à la Charte pour ce qui est de la planification, de l’organisation, du financement et de la présentation des Jeux d’hiver de 2010, mais que la Charte ne s’appliquait pas au CIO, qui avait mis en œuvre la décision d’exclure le saut à ski féminin des Jeux. La Cour d’appel a rejeté l’appel, concluant que la Charte ne s’appliquait pas au choix des épreuves.
10 juillet 2009
Cour suprême de la Colombie-Britannique
(juge Fenlon)
Référence neutre : 2009 BCSC 942
Demande rejetée
13 novembre 2009
Cour d’appel de la Colombie-Britannique (Vancouver)
(juges Rowles, Frankel et Groberman)
Référence neutre : 2009 BCCA 522
Appel rejeté1er décembre 2009
Cour suprême du Canada
Demande d’autorisation d’appel, requête pour accélérer la demande d’autorisation d’appel déposées
4 décembre 2009
Cour suprême du Canada
(juge Cromwell)
Requête pour accélérer la demande d’autorisation d’appel accueillie; demande d’accélération de la procédure d’appel renvoyée à la formation qui se prononcera sur la demande d’autorisation
77
SUPREME COURT OF CANADA ‑‑ JUDGMENTS TO BE RENDERED IN LEAVE APPLICATION AND MOTION FOR RE-HEARING
OTTAWA, 2009-12-21. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT JUDGMENT IN THE FOLLOWING APPLICATION FOR LEAVE TO APPEAL WILL BE DELIVERED AT 9:45 A.M. EST ON TUESDAY, DECEMBER 22, 2009. THIS LIST IS SUBJECT TO CHANGE.
FROM: SUPREME COURT OF CANADA (613) 995‑4330
COUR SUPRÊME DU CANADA ‑‑ PROCHAINS JUGEMENTS SUR DEMANDE D’AUTORISATION ET DEMANDE DE NOUVELLE AUDITION
OTTAWA, 2009-12-21. LA COUR SUPRÊME DU CANADA ANNONCE QUE JUGEMENT SERA RENDU DANS LA DEMANDE D’AUTORISATION D’APPEL SUIVANTE LE MARDI 22 DÉCEMBRE 2009, À 9 H 45 HNE. CETTE LISTE EST SUJETTE À MODIFICATIONS.
SOURCE: COUR SUPRÊME DU CANADA (613) 995‑4330
COMMENTS/COMMENTAIRES: comments@scc-csc.gc.ca
Note for subscribers:
The summaries of the cases are available at http://www.scc-csc.gc.ca:
Click on Cases and on SCC Case Information, type in the Case Number and press Search. Click on the Case Number on the Search Results screen, and when the docket screen appears, click on “Summary” which will appear in the left column.
Alternatively, click on
http://scc.lexum.umontreal.ca/en/news_release/2009/09-12-21.2a/09-12-21.2a.html
Note pour les abonnés :
Les sommaires des causes sont affichés à l’adresse http://www.scc-csc.gc.ca :
Cliquez sur « Dossiers », puis sur « Renseignements sur les dossiers ». Tapez le no de dossier et appuyez sur « Recherche ». Cliquez sur le no du dossier dans les Résultats de la recherche pour accéder au Registre. Cliquez enfin sur le lien menant au « Sommaire » qui figure dans la colonne de gauche.
Autre façon de procéder : Cliquer sur
http://scc.lexum.umontreal.ca/fr/news_release/2009/09-12-21.2a/09-12-21.2a.html
Anette Sagen et al. v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (B.C.) (Civil) (By Leave) (33439)
OTTAWA, 2009-12-21. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT JUDGMENT IN THE FOLLOWING MOTION FOR A RE-HEARING WILL BE DELIVERED AT 9:45 A.M. EST ON TUESDAY, DECEMBER 22, 2009. THIS LIST IS SUBJECT TO CHANGE.
FROM: SUPREME COURT OF CANADA (613) 995‑4330
OTTAWA, 2009-12-21. LA COUR SUPRÊME DU CANADA ANNONCE QUE JUGEMENT SERA RENDU DANS LA DEMANDE DE NOUVELLE AUDITION SUIVANTE LE MARDI 22 DÉCEMBRE 2009, À 9 H 45 HNE. CETTE LISTE EST SUJETTE À MODIFICATIONS.
SOURCE: COUR SUPRÊME DU CANADA (613) 995‑4330
Nancy Rick also known as Nanc Rick v. Berend Brandsema also known as Ben Brandsema et al. (B.C.) (Civil) (By Leave) (32098)
33439 Anette Sagen, Jenna Mohr, Lindsey Van, Jessica Jerome, Ulrike Grassler, Monika Planinc, Karla Keck, Nathalie De Leeuw, Katherine Willis by her Litigation Guardian Jan Willis, Jade Edwards, Zoya Lynch by her Litigation Guardian Sarah Lynch, Charlotte Mitchell by her Litigation Guardian Miriam Mitchell and Meaghan Reid by her Litigation Guardian Nina Hooper‑Reid v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games
(B.C.) (Civil) (By Leave)
Charter of Rights - Application -Right to equality - Discrimination based on sex - Olympic Games - 2010 Winter Games will include men’s ski jumping events but not women’s ski jumping events - Whether Canada should be hosting discriminatory Olympic Games - Whether an activity, undertaken pursuant to a government contract, that implements the discriminatory decision of a third party meets the “ascribed activity” test under s. 32 of the Charter - Whether, for the purpose of the equality guarantee under s. 15(1) of the Charter, is a benefit provided by an entity carrying out a government activity a “benefit of the law” only if the benefit is directly derived from the statutory authority and only if government controls its distribution?
The Applicants, women ski jumpers of various nationalities and at various stages of their careers, seek a declaration that the failure of the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Games (“VANOC”) to include women’s ski jumping in the 2010 Winter Games violates their equality rights under s. 15(1) of the Charter. The Applicants are clearly being treated differently than their male counterparts.
In 2003, based on a bid submitted by three levels of government and some private bodies, Vancouver was selected to host the 2010 Winter Games. Shortly thereafter, VANOC was federally incorporated as a non‑profit corporation. VANOC and the City of Vancouver were signatories to the “Host City Contract” with the International Olympic Committee (“IOC”), a non‑governmental, not‑for‑profit corporation headquartered in Switzerland. It charged VANOC with staging the Games, but gives the IOC full discretion to set the Olympic Programme, selecting the sports, disciplines and events to be staged. For the 2010 Winter Games, the IOC heard requests to add women’s ski jumping and six other events to the Programme. The Olympic Programme Commission recommended that women’s ski jumping not be included in the Games because it lacked the universality and technical standard required of Olympic events. In late 2006, the IOC Executive Board accepted that recommendation. Women’s ski jumping is not on the Olympic Programme for the Games.
The trial judge found that VANOC was subject to the Charter in its planning, organizing, financing and staging of the 2010 Winter Games, but that the Charter did not apply to the IOC, which had implemented the decision to exclude women’s ski jumping from the Games. The Court of Appeal dismissed an appeal, finding that the Charter did not apply to the selection of events.
July 10, 2009
Supreme Court of British Columbia
(Fenlon J.)
Neutral citation: 2009 BCSC 942
Application dismissed
November 13, 2009
Court of Appeal for British Columbia (Vancouver)
(Rowles, Frankel and Groberman JJ.A.)
Neutral citation: 2009 BCCA 522
Appeal dismissed December 1, 2009
Supreme Court of Canada
Application for leave to appeal, motion to expedite leave application and appeal filed
December 4, 2009
Supreme Court of Canada
(Cromwell J.)
Motion to expedite application for leave granted; motion for leave to expedite appeal deferred to leave panel
33439 Anette Sagen, Jenna Mohr, Lindsey Van, Jessica Jerome, Ulrike Grassler, Monika Planinc, Karla Keck, Nathalie De Leeuw, Katherine Willis par sa tutrice à l’instance Jan Willis, Jade Edwards, Zoya Lynch par sa tutrice à l’instance Sarah Lynch, Charlotte Mitchell par sa tutrice à l’instance Miriam Mitchell et Meaghan Reid par sa tutrice à l’instance Nina Hooper‑Reid c. Comité d’organisation des Jeux olympiques et paralympiques d’hiver de 2010 à Vancouver
(C.-B.) (Civile) (Sur autorisation)
Charte des droits - Demande - Droit à l’égalité - Discrimination fondée sur le sexe - Jeux olympiques - Les Jeux olympiques d’hiver de 2010 comprendront des épreuves de saut à ski masculin, mais non des épreuves de saut à ski féminin - Le Canada devrait-il être l’hôte de Jeux olympiques discriminatoires? - Une activité, entreprise en vertu d’un contrat gouvernemental, qui met en œuvre la décision discriminatoire d’un tiers répond-elle au critère de « l’activité attribuée » visée à l’art. 32 de la Charte? - Pour l’application de la garantie à l’égalité prévue au par. 15(1) de la Charte, le bénéfice fourni par une entité qui exerce une activité gouvernementale est-elle un « bénéfice de la loi » seulement dans les cas où le bénéfice découle directement du pouvoir conféré par la loi et où le gouvernement en contrôle la distribution?
Les demanderesses, des sauteuses à ski de diverses nationalités et rendues à diverses étapes de leurs carrières, sollicitent un jugement déclarant que la décision du Comité d’organisation des Jeux olympiques et paralympiques d’hiver de 2010 à Vancouver (« COVAN ») de ne pas inclure le saut à ski féminin dans le programme des Jeux d’hiver de 2010 viole les droits à l’égalité que leur garantit le par. 15(1) de la Charte. Les demanderesses sont calirement traitées de manière différente de leurs homologues masculins.
En 2003, sur la base de la candidature soumise par trois paliers de gouvernement et certains organismes privés, Vancouver a été choisie comme hôte des Jeux d’hiver de 2010. Peu de temps après, le COVAN a été constitué, sous le régime des lois fédérales, en personne morale sans but lucratif. Le COVAN et la Ville de Vancouver ont signé le « contrat ville hôte » avec le Comité international olympique (« CIO »), organisme non gouvernemental sans but lucratif ayant son siège social en Suisse. Aux termes du contrat, le COVAN est chargé de présenter les Jeux, mais le CIO a l’entière discrétion quant à l’établissement du Programme olympique, c’est-à-dire le choix des sports, des disciplines et des épreuves devant être présentés. Pour les Jeux d’hiver de 2010, le CIO a entendu des demandes sollicitant l’ajout du saut à ski féminin et de six autres épreuves au Programme. La Commission du programme olympique a recommandé que le saut à ski féminin ne soit pas inclus dans le programme des Jeux, parce qu’il ne possédait pas l’universalité et la norme technique requises à l’égard des épreuves olympiques. À la fin de 2006, la Commission exécutive du CIO a accepté cette recommandation. Le saut à ski féminin ne fait pas partie du Programme olympique pour les Jeux.
La juge de première instance a conclu que le COVAN était assujetti à la Charte pour ce qui est de la planification, de l’organisation, du financement et de la présentation des Jeux d’hiver de 2010, mais que la Charte ne s’appliquait pas au CIO, qui avait mis en œuvre la décision d’exclure le saut à ski féminin des Jeux. La Cour d’appel a rejeté l’appel, concluant que la Charte ne s’appliquait pas au choix des épreuves.
10 juillet 2009
Cour suprême de la Colombie-Britannique
(juge Fenlon)
Référence neutre : 2009 BCSC 942
Demande rejetée
13 novembre 2009
Cour d’appel de la Colombie-Britannique (Vancouver)
(juges Rowles, Frankel et Groberman)
Référence neutre : 2009 BCCA 522
Appel rejeté1er décembre 2009
Cour suprême du Canada
Demande d’autorisation d’appel, requête pour accélérer la demande d’autorisation d’appel déposées
4 décembre 2009
Cour suprême du Canada
(juge Cromwell)
Requête pour accélérer la demande d’autorisation d’appel accueillie; demande d’accélération de la procédure d’appel renvoyée à la formation qui se prononcera sur la demande d’autorisation
77
Monday, December 21, 2009
Canadian Afghan detainee abuse scandal 2009.
Canadian Afghan detainee abuse scandal
In November-December 2009, as Minister of Defence, MacKay had to deal with the Canadian Afghan detainee abuse scandal, around allegations of torture of Afghan prisoners handed over to Afghan officials after being arrested by Canadian soldiers. Richard Colvin, a senior diplomat testified in November 2009 before the Special Committee on the Canadian Mission in Afghanistan that he began warning the government about torture in Afghanistan in May, 2006. MacKay admitted that "there were deficiencies in the arrangement of how we transfer detainees". After almost a year, on May 3, 2007 a new transfer agreement between Canada and Afghanistan was signed, that allowed Canadian forces to monitor the treatment of detainees.
On December 5, 2009, MacKay said Canada was "trying to change the culture" in Afghanistan. When asked why it took more than a year to act on allegations of torture, MacKay said to the press that the government moved as fast as they could. "We acted almost immediately. In fact, upon taking government it became quite clear there were deficiencies in the arrangement of how we transfer detainees".[6]
On December 9, 2009, after the release of a letter signed by 23 ex-ambassadors that condemned Conservative attempts to discredit Colvin, the NDP demanded MacKay's resignation as Defence Minister, accusing him of misleading the House of Commons over what the government knew about the possible torture and what it did about the allegations [7]. Further online petitions have circulated demanding that MacKay resign as Minster of Defence. [8]
In November-December 2009, as Minister of Defence, MacKay had to deal with the Canadian Afghan detainee abuse scandal, around allegations of torture of Afghan prisoners handed over to Afghan officials after being arrested by Canadian soldiers. Richard Colvin, a senior diplomat testified in November 2009 before the Special Committee on the Canadian Mission in Afghanistan that he began warning the government about torture in Afghanistan in May, 2006. MacKay admitted that "there were deficiencies in the arrangement of how we transfer detainees". After almost a year, on May 3, 2007 a new transfer agreement between Canada and Afghanistan was signed, that allowed Canadian forces to monitor the treatment of detainees.
On December 5, 2009, MacKay said Canada was "trying to change the culture" in Afghanistan. When asked why it took more than a year to act on allegations of torture, MacKay said to the press that the government moved as fast as they could. "We acted almost immediately. In fact, upon taking government it became quite clear there were deficiencies in the arrangement of how we transfer detainees".[6]
On December 9, 2009, after the release of a letter signed by 23 ex-ambassadors that condemned Conservative attempts to discredit Colvin, the NDP demanded MacKay's resignation as Defence Minister, accusing him of misleading the House of Commons over what the government knew about the possible torture and what it did about the allegations [7]. Further online petitions have circulated demanding that MacKay resign as Minster of Defence. [8]
Saturday, December 19, 2009
Now the other shoe drops Defence Minister Peter MacKay Canada has violated Convention (III) relative to the Treatment of Prisoners of War. Geneva,
Canada has violated
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Part II : General protection of prisoners of war
ARTICLE 13. -- HUMANE TREATMENT OF PRISONERS
[p.140] PARAGRAPH 1. -- PROHIBITION OF PHYSICAL MALTREATMENT1. ' First sentence. -- Humane treatment ' (1)The requirement that protected persons must at all times be humanely treated is the basic theme of the Geneva Conventions (2). The expression "humanely treated" is taken from the Hague Regulations and the two 1929 Geneva Conventions.The word "treated" must be understood here in its most general sense as applying to all aspects of life. With regard to the concept of humanity, the purpose of the Convention is none other than to define the correct way to behave towards a human being; each individual is desirous of the treatment corresponding to his status and can therefore judge how he should, in turn, treat his fellow human beings. The principal elements of humane treatment are subsequently listed in the Article.The requirement of humane treatment and the prohibition of certain acts inconsistent with it are general and absolute in character. They are valid at all times, and apply, for example, to cases where repressive measures are legitimately imposed on a protected person, since the dictates of humanity must be respected even if measures of security or repression are being applied. The obligation remains fully valid in relation to persons in prison or interned, whether in the territory of a Party to the conflict or in occupied territory. It is in such situations, when human values appear to be in greatest peril, that the provision assumes its full importance.2. ' Second sentence. -- Threats to the life or health of prisoners 'The first obligation is to protect the life and health of prisoners; this is a fundamental obligation which stems from the right of prisoners to be treated humanely. This is already included in the general concept of humane treatment which is stated at the beginning of the Article, but the authors of the Convention decided to denounce it specifically as a serious breach; the other "grave breaches" are listed in Article 130 .3. ' Third sentence. -- Mutilation and medical experiments 'The authors of the Convention wished expressly to prohibit mutilation and medical experiments which are a particularly reprehensible [p.141] form of attack on the human person. This prohibition is also included in Article 130 . The intention was to abolish for ever the criminal practices inflicted on thousands of persons during the Second World War.The Convention, of course, refers only to experiments not justified by the medical treatment of the prisoner concerned. It does not prevent doctors from using treatment for medical reasons with the sole object of improving the patient's condition. It must be permissible to use new medicaments and methods invented by science, provided that they are used only for therapeutic purposes. The prisoners must not in any circumstances be used as "guinea-pigs" for medical or scientific experiments.PARAGRAPH 2. -- OTHER PROHIBITIONSThe concept of humane treatment implies in the first place the absence of any kind of corporal punishment. But it does not only have this negative aspect. The present provision adds the notion of protection. To protect someone means to stand up for him, to give him assistance and support and also to defend or guard him from injury or danger. It is therefore a positive obligation for the Detaining Power at all times which follows from the obligation to treat prisoners humanely. The protection extends to moral values, such as the moral independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity).PARAGRAPH 3. -- PROHIBITION OF REPRISALSArticle 2, paragraph 3 , of the Geneva Convention of 1929 already forbade measures of reprisal against prisoners of war; after the First World War, the International Committee of the Red Cross had considerable difficulty in obtaining sufficient support for the idea that reprisals on the person of prisoners of war should be prohibited. Many people considered that in the event of one of the Parties committing illicit acts in regard to prisoners in its hands, reprisals or the threat of reprisals on prisoners in the hands of the other Party constituted the most effective, if not the only means of ensuring a return [p.142] to normal conditions (3). But this argument did not prevail over the view that it was inhuman that a defenceless man should be held responsible for acts which he had not himself committed. It must, moreover, be pointed out that quite apart from the fact that the safeguards afforded to prisoners would be endangered by the launching of systematic reprisals, the feelings which lie behind such practices are absolutely contrary tothe spirit of the Geneva Conventions. It was not always easy to obtain respect for the corresponding provision of the 1929 Convention, and the efforts made by the International Committee of the Red Cross in this field during the Second World War demonstrate the great importance of this rule (4). It forms part of the general obligation to treat prisoners humanely both by virtue of its practical importance and because of its very great moral significance.Moreover, it need hardly be pointed out that reprisals rarely solve the initial problem. They do not lead to a re-establishment of lawful practices but involve those who apply them in a vicious circle of reprisals and counter-reprisals which brings a gradual deterioration of the law and standard of values which one wishes to protect. And even if they bring a solution for a short time, the danger is that they may engender fresh hatred which would be a factor conducive to fresh conflicts.* (1) [(1) p.140] See Jean S. PICTET, ' Red Cross Principles, 'pp. 14-31;(2) [(2) p.140] See First and Second Conventions, Article 12;Fourth Convention, Article 27;(3) [(1) p.142] The Hague Agreement concluded between theBritish and German Governments on July 2, 1917, containeda provision in Chapter IX stating that measures ofreprisal should be taken only after at least four weeks'notice of this intention had been given. The Agreementalso provided for an endeavour to remove the motives forreprisals by means of direct discussion (See ' Bulletininternational des Sociétés de la Croix-Rouge, ' 1917, p.445);(4) [(2) p.142] See ' Report of the International Committee ofthe Red Cross on its activities during the Second WorldWar, ' Vol. I, pp. 365-372;
Canada's troops investigated for Afghan abuse
Last Updated: Friday, December 18, 2009 9:09 PM ET Comments234Recommend70
CBC News
Richard Colvin, a former senior diplomat with Canada's mission in Afghanistan, testifying before a parliamentary committee on Nov. 18. (Sean Kilpatrick/Canadian Press)
Canada's military police have been quietly investigating allegations for more than a year that the country's troops abused Afghan detainees, CBC News has learned.
Canadian soldiers captured the detainees sometime in 2008 and the investigation into their conduct has been ongoing for at least a year.
It was uncovered in documents obtained by CBC News. The documents were written for Defence Minister Peter MacKay in March to prepare him for question period.
The documents reveal that in 2008, military police launched six separate investigations into allegations of abuse involving Canadian troops.
"The military police determined that the allegations were unfounded in five of the six cases, and the remaining investigation is ongoing," said Major Paule Poulin, a spokesperson for the Canadian Forces Provost Marshall.
For more than a month Parliament has been seized with questions about the treatment of detainees in Afghan hands.
It started when Richard Colvin, a former senior diplomat with Canada's mission in Afghanistan, claimed that all detainees transferred by Canadians to Afghan prisons were likely tortured by Afghan officials.
"According to our information, the likelihood is that all the Afghans we handed over were tortured," Colvin told a parliamentary committee on Nov. 18.
The government's response to opposition questions about Colvin's testimony was to accuse opponents of smearing the good name of Canadian troops.
"The member is suggesting by implication that the military did something wrong, that somehow they did not do the right thing. That is what is so despicable," MacKay said on Dec. 10.
However, MacKay apparently never told the House there were allegations against Canadian troops, at least one of which is still being investigated.
That is in addition to the ongoing court martial of a Canadian captain charged earlier this year with murdering a wounded Afghan fighter in his custody.
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Part II : General protection of prisoners of war
ARTICLE 13. -- HUMANE TREATMENT OF PRISONERS
[p.140] PARAGRAPH 1. -- PROHIBITION OF PHYSICAL MALTREATMENT1. ' First sentence. -- Humane treatment ' (1)The requirement that protected persons must at all times be humanely treated is the basic theme of the Geneva Conventions (2). The expression "humanely treated" is taken from the Hague Regulations and the two 1929 Geneva Conventions.The word "treated" must be understood here in its most general sense as applying to all aspects of life. With regard to the concept of humanity, the purpose of the Convention is none other than to define the correct way to behave towards a human being; each individual is desirous of the treatment corresponding to his status and can therefore judge how he should, in turn, treat his fellow human beings. The principal elements of humane treatment are subsequently listed in the Article.The requirement of humane treatment and the prohibition of certain acts inconsistent with it are general and absolute in character. They are valid at all times, and apply, for example, to cases where repressive measures are legitimately imposed on a protected person, since the dictates of humanity must be respected even if measures of security or repression are being applied. The obligation remains fully valid in relation to persons in prison or interned, whether in the territory of a Party to the conflict or in occupied territory. It is in such situations, when human values appear to be in greatest peril, that the provision assumes its full importance.2. ' Second sentence. -- Threats to the life or health of prisoners 'The first obligation is to protect the life and health of prisoners; this is a fundamental obligation which stems from the right of prisoners to be treated humanely. This is already included in the general concept of humane treatment which is stated at the beginning of the Article, but the authors of the Convention decided to denounce it specifically as a serious breach; the other "grave breaches" are listed in Article 130 .3. ' Third sentence. -- Mutilation and medical experiments 'The authors of the Convention wished expressly to prohibit mutilation and medical experiments which are a particularly reprehensible [p.141] form of attack on the human person. This prohibition is also included in Article 130 . The intention was to abolish for ever the criminal practices inflicted on thousands of persons during the Second World War.The Convention, of course, refers only to experiments not justified by the medical treatment of the prisoner concerned. It does not prevent doctors from using treatment for medical reasons with the sole object of improving the patient's condition. It must be permissible to use new medicaments and methods invented by science, provided that they are used only for therapeutic purposes. The prisoners must not in any circumstances be used as "guinea-pigs" for medical or scientific experiments.PARAGRAPH 2. -- OTHER PROHIBITIONSThe concept of humane treatment implies in the first place the absence of any kind of corporal punishment. But it does not only have this negative aspect. The present provision adds the notion of protection. To protect someone means to stand up for him, to give him assistance and support and also to defend or guard him from injury or danger. It is therefore a positive obligation for the Detaining Power at all times which follows from the obligation to treat prisoners humanely. The protection extends to moral values, such as the moral independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity).PARAGRAPH 3. -- PROHIBITION OF REPRISALSArticle 2, paragraph 3 , of the Geneva Convention of 1929 already forbade measures of reprisal against prisoners of war; after the First World War, the International Committee of the Red Cross had considerable difficulty in obtaining sufficient support for the idea that reprisals on the person of prisoners of war should be prohibited. Many people considered that in the event of one of the Parties committing illicit acts in regard to prisoners in its hands, reprisals or the threat of reprisals on prisoners in the hands of the other Party constituted the most effective, if not the only means of ensuring a return [p.142] to normal conditions (3). But this argument did not prevail over the view that it was inhuman that a defenceless man should be held responsible for acts which he had not himself committed. It must, moreover, be pointed out that quite apart from the fact that the safeguards afforded to prisoners would be endangered by the launching of systematic reprisals, the feelings which lie behind such practices are absolutely contrary tothe spirit of the Geneva Conventions. It was not always easy to obtain respect for the corresponding provision of the 1929 Convention, and the efforts made by the International Committee of the Red Cross in this field during the Second World War demonstrate the great importance of this rule (4). It forms part of the general obligation to treat prisoners humanely both by virtue of its practical importance and because of its very great moral significance.Moreover, it need hardly be pointed out that reprisals rarely solve the initial problem. They do not lead to a re-establishment of lawful practices but involve those who apply them in a vicious circle of reprisals and counter-reprisals which brings a gradual deterioration of the law and standard of values which one wishes to protect. And even if they bring a solution for a short time, the danger is that they may engender fresh hatred which would be a factor conducive to fresh conflicts.* (1) [(1) p.140] See Jean S. PICTET, ' Red Cross Principles, 'pp. 14-31;(2) [(2) p.140] See First and Second Conventions, Article 12;Fourth Convention, Article 27;(3) [(1) p.142] The Hague Agreement concluded between theBritish and German Governments on July 2, 1917, containeda provision in Chapter IX stating that measures ofreprisal should be taken only after at least four weeks'notice of this intention had been given. The Agreementalso provided for an endeavour to remove the motives forreprisals by means of direct discussion (See ' Bulletininternational des Sociétés de la Croix-Rouge, ' 1917, p.445);(4) [(2) p.142] See ' Report of the International Committee ofthe Red Cross on its activities during the Second WorldWar, ' Vol. I, pp. 365-372;
Canada's troops investigated for Afghan abuse
Last Updated: Friday, December 18, 2009 9:09 PM ET Comments234Recommend70
CBC News
Richard Colvin, a former senior diplomat with Canada's mission in Afghanistan, testifying before a parliamentary committee on Nov. 18. (Sean Kilpatrick/Canadian Press)
Canada's military police have been quietly investigating allegations for more than a year that the country's troops abused Afghan detainees, CBC News has learned.
Canadian soldiers captured the detainees sometime in 2008 and the investigation into their conduct has been ongoing for at least a year.
It was uncovered in documents obtained by CBC News. The documents were written for Defence Minister Peter MacKay in March to prepare him for question period.
The documents reveal that in 2008, military police launched six separate investigations into allegations of abuse involving Canadian troops.
"The military police determined that the allegations were unfounded in five of the six cases, and the remaining investigation is ongoing," said Major Paule Poulin, a spokesperson for the Canadian Forces Provost Marshall.
For more than a month Parliament has been seized with questions about the treatment of detainees in Afghan hands.
It started when Richard Colvin, a former senior diplomat with Canada's mission in Afghanistan, claimed that all detainees transferred by Canadians to Afghan prisons were likely tortured by Afghan officials.
"According to our information, the likelihood is that all the Afghans we handed over were tortured," Colvin told a parliamentary committee on Nov. 18.
The government's response to opposition questions about Colvin's testimony was to accuse opponents of smearing the good name of Canadian troops.
"The member is suggesting by implication that the military did something wrong, that somehow they did not do the right thing. That is what is so despicable," MacKay said on Dec. 10.
However, MacKay apparently never told the House there were allegations against Canadian troops, at least one of which is still being investigated.
That is in addition to the ongoing court martial of a Canadian captain charged earlier this year with murdering a wounded Afghan fighter in his custody.
Thursday, December 17, 2009
787 Technical concerns.
Composite fuselage
Disassembled fuselage section of the Boeing 787 Dreamliner
The 787's all-composite fuselage makes it the first composite airliner in production. While the Boeing 777 contains 50% aluminum and 12% composites, the new airplane uses 50% composite (mostly carbon fiber reinforced plastic), 15% aluminum, and other materials. The 787 fuselage is made up of composite barrel sections joined end to end. Each fuselage barrel will be manufactured in one piece. This will eliminate the need for some 50,000 fasteners used in conventional airplane assembly.[103] It was suggested by many, such as former Boeing senior engineer Vince Weldon, that the risks of having a composite fuselage have not been fully assessed and should not be attempted.[109][110] It was also added that carbon fiber, unlike metal, does not visibly show cracks and fatigue.[111] Boeing has dismissed such notions, insisting that composites have been used on wings and other passenger aircraft parts for many years and they have not been an issue. They have also stated that special defect detection procedures will be put in place to detect any potential hidden damage.[112]
Concerns have been raised about the porous properties of composite materials, allowing them to absorb unwanted moisture. As the aircraft reaches altitude, the moisture expands, and may cause delamination of the composite materials, and structural weakness over time.[113]
Another concern arises from the risk of lightning strikes.[114] The 787 fuselage's composite could have as much as 1,000 times the electrical resistance of aluminum, increasing the risk of damage during a lightning strike.[115] Boeing has stated that the 787's lightning protection will meet FAA requirements.[109] FAA management is planning to relax some lightning strike requirements, which will help the 787.[116]
In 2006, Boeing launched the 787 GoldCare program.[117] This is an optional, comprehensive life-cycle management service whereby aircraft in the program are routinely monitored and repaired as needed. This is the first program of its kind from Boeing: Post-sale protection programs are not new, but have usually been offered by third party service centers. Boeing is also designing and testing composite hardware so inspections are mainly visual. This will reduce the need for ultrasonic and other non-visual inspection methods, saving time and money.[118]
According to Boeing Vice President Jeff Hawk, who heads the effort to certify the 787 for airline service, a crash test involving a vertical drop of a partial fuselage section from about 15 feet onto a one inch-thick steel plate occurred on August 23, 2007, in Mesa, Arizona.[119][120] Boeing spokesperson Lori Gunter stated on September 6, 2007, that results matched what Boeing's engineers had predicted. As a result the company can model various crash scenarios using computational analysis rather than performing more tests on actual pieces of the plane.[121][122] However, it has also been suggested by a fired Boeing engineer that in the event of a crash landing, survivable in a metal plane, the composite fuselage could shatter and burn with toxic fumes.[109]
Weight issues
Boeing had been working to trim excess weight since assembly of the first airframe began in 2006. This is typical for new aircraft during their development phase. The first six 787s, which are to be used as part of the flight test program, will be overweight according to Boeing Commercial Airplanes CEO Scott Carson.[123] The first 787 is expected to be 5,000 lb (2,270 kg) overweight. The seventh and subsequent aircraft will be the first optimized 787s and are expected to meet all goals.[124] Boeing has redesigned some parts and made more use of titanium.[36] According to ILFC's Steven Udvar-Hazy, the 787-9's operating empty weight is around 14,000 lb (6,350 kg) overweight, which also could be a problem for the proposed 787-10.[125]
In early 2009 a number of 787 customers started to publicly mention their dissatisfaction with the reduced specifications on the 787, specifically weight and range issues. Industry insiders have stated Boeing has reduced its range estimates for the 787-8 from 14,800–15,700 km to 14,150–15,170 km, a reduction of over 500 km. There have also been reports that this led Delta to delay deliveries of 787s it inherited from Northwest in order to take later planes which may be closer to the original estimates. Other airlines are suspected to have been given discounts to take the earlier models.[126] Shanghai Airlines stated in March 2009 it wished to either delay or cancel its first order. Boeing expects to have the weight issues addressed by the 21st production model.[127]
In May 2009, a press report indicated that a 10–15% range reduction for early 787-8 aircraft is anticipated due to these planes being about 8% overweight. This means a range of about 6,900 nmi (12,800 km) instead the originally promised 7,700 to 8,200 nmi (14,800–15,700 km). Substantial redesign work is expected to correct this, which will complicate increases in production rates.[128] Boeing confirmed on May 7 that early 787s would be heavy and is working on weight reductions. The company stated the early 787-8s will have a range of almost 8,000 nmi (14,800 km).[129]
Computer network vulnerability
787 flight deck
In January 2008, previous Federal Aviation Administration concerns came to light regarding protection of the 787's networks from possible intentional or unintentional passenger access.[130][131] The computer network in the passenger compartment, designed to give passengers in-flight internet access, is connected to the airplane's control, navigation and communication systems.[130]
Boeing called the report "misleading", saying that various hardware and software solutions are employed to protect the airplane systems including air gaps for the physical separation of the networks, and firewalls for their software separation. Measures are provided so data cannot be transferred from the passenger internet system to the maintenance or navigation systems. As part of certification Boeing plans to demonstrate to the FAA that these provisions are acceptable.[130]
Engine interchangeability
The two different engine models compatible with the 787 will use a standard electrical interface to allow an aircraft to be fitted with either Rolls-Royce or General Electric engines. This will save time and cost when changing engine types.[132] However, ILFC's Vice President of Marketing, Marty Olson, stated that swapping different engines could take up to 15 days, and therefore would cost too much. "You'd have to take all the pylon, everything from the wing down, off," Olson said. Other aircraft can have engines changed to those of a different manufacturer, but the high cost makes it rare. Boeing said that the design is unfinished, and 24 hours is still the goal.[133]
Disassembled fuselage section of the Boeing 787 Dreamliner
The 787's all-composite fuselage makes it the first composite airliner in production. While the Boeing 777 contains 50% aluminum and 12% composites, the new airplane uses 50% composite (mostly carbon fiber reinforced plastic), 15% aluminum, and other materials. The 787 fuselage is made up of composite barrel sections joined end to end. Each fuselage barrel will be manufactured in one piece. This will eliminate the need for some 50,000 fasteners used in conventional airplane assembly.[103] It was suggested by many, such as former Boeing senior engineer Vince Weldon, that the risks of having a composite fuselage have not been fully assessed and should not be attempted.[109][110] It was also added that carbon fiber, unlike metal, does not visibly show cracks and fatigue.[111] Boeing has dismissed such notions, insisting that composites have been used on wings and other passenger aircraft parts for many years and they have not been an issue. They have also stated that special defect detection procedures will be put in place to detect any potential hidden damage.[112]
Concerns have been raised about the porous properties of composite materials, allowing them to absorb unwanted moisture. As the aircraft reaches altitude, the moisture expands, and may cause delamination of the composite materials, and structural weakness over time.[113]
Another concern arises from the risk of lightning strikes.[114] The 787 fuselage's composite could have as much as 1,000 times the electrical resistance of aluminum, increasing the risk of damage during a lightning strike.[115] Boeing has stated that the 787's lightning protection will meet FAA requirements.[109] FAA management is planning to relax some lightning strike requirements, which will help the 787.[116]
In 2006, Boeing launched the 787 GoldCare program.[117] This is an optional, comprehensive life-cycle management service whereby aircraft in the program are routinely monitored and repaired as needed. This is the first program of its kind from Boeing: Post-sale protection programs are not new, but have usually been offered by third party service centers. Boeing is also designing and testing composite hardware so inspections are mainly visual. This will reduce the need for ultrasonic and other non-visual inspection methods, saving time and money.[118]
According to Boeing Vice President Jeff Hawk, who heads the effort to certify the 787 for airline service, a crash test involving a vertical drop of a partial fuselage section from about 15 feet onto a one inch-thick steel plate occurred on August 23, 2007, in Mesa, Arizona.[119][120] Boeing spokesperson Lori Gunter stated on September 6, 2007, that results matched what Boeing's engineers had predicted. As a result the company can model various crash scenarios using computational analysis rather than performing more tests on actual pieces of the plane.[121][122] However, it has also been suggested by a fired Boeing engineer that in the event of a crash landing, survivable in a metal plane, the composite fuselage could shatter and burn with toxic fumes.[109]
Weight issues
Boeing had been working to trim excess weight since assembly of the first airframe began in 2006. This is typical for new aircraft during their development phase. The first six 787s, which are to be used as part of the flight test program, will be overweight according to Boeing Commercial Airplanes CEO Scott Carson.[123] The first 787 is expected to be 5,000 lb (2,270 kg) overweight. The seventh and subsequent aircraft will be the first optimized 787s and are expected to meet all goals.[124] Boeing has redesigned some parts and made more use of titanium.[36] According to ILFC's Steven Udvar-Hazy, the 787-9's operating empty weight is around 14,000 lb (6,350 kg) overweight, which also could be a problem for the proposed 787-10.[125]
In early 2009 a number of 787 customers started to publicly mention their dissatisfaction with the reduced specifications on the 787, specifically weight and range issues. Industry insiders have stated Boeing has reduced its range estimates for the 787-8 from 14,800–15,700 km to 14,150–15,170 km, a reduction of over 500 km. There have also been reports that this led Delta to delay deliveries of 787s it inherited from Northwest in order to take later planes which may be closer to the original estimates. Other airlines are suspected to have been given discounts to take the earlier models.[126] Shanghai Airlines stated in March 2009 it wished to either delay or cancel its first order. Boeing expects to have the weight issues addressed by the 21st production model.[127]
In May 2009, a press report indicated that a 10–15% range reduction for early 787-8 aircraft is anticipated due to these planes being about 8% overweight. This means a range of about 6,900 nmi (12,800 km) instead the originally promised 7,700 to 8,200 nmi (14,800–15,700 km). Substantial redesign work is expected to correct this, which will complicate increases in production rates.[128] Boeing confirmed on May 7 that early 787s would be heavy and is working on weight reductions. The company stated the early 787-8s will have a range of almost 8,000 nmi (14,800 km).[129]
Computer network vulnerability
787 flight deck
In January 2008, previous Federal Aviation Administration concerns came to light regarding protection of the 787's networks from possible intentional or unintentional passenger access.[130][131] The computer network in the passenger compartment, designed to give passengers in-flight internet access, is connected to the airplane's control, navigation and communication systems.[130]
Boeing called the report "misleading", saying that various hardware and software solutions are employed to protect the airplane systems including air gaps for the physical separation of the networks, and firewalls for their software separation. Measures are provided so data cannot be transferred from the passenger internet system to the maintenance or navigation systems. As part of certification Boeing plans to demonstrate to the FAA that these provisions are acceptable.[130]
Engine interchangeability
The two different engine models compatible with the 787 will use a standard electrical interface to allow an aircraft to be fitted with either Rolls-Royce or General Electric engines. This will save time and cost when changing engine types.[132] However, ILFC's Vice President of Marketing, Marty Olson, stated that swapping different engines could take up to 15 days, and therefore would cost too much. "You'd have to take all the pylon, everything from the wing down, off," Olson said. Other aircraft can have engines changed to those of a different manufacturer, but the high cost makes it rare. Boeing said that the design is unfinished, and 24 hours is still the goal.[133]
Tuesday, December 15, 2009
Opposition poll oroande "borgerliga koalitionsregering i Sverige.
oroande": Reinfeldt Publicerad: 14 December 09 14:39 CETOnline: http://www.thelocal.se/23838/20091214/ Ordbok verktyg Dubbelklicka på ett ord för att få en översättning Svenska statsminister Fredrik Reinfeldt har erkänt att han är oroad av enkät resultat som visar att oppositionen i ett försprång över de borgerliga koalitionsregering. (27 november 09) "Det är mycket oroande. Mona Sahlin blir statsminister hur det ser ut nu, utan att hon låter någon vet var hon vill ta Sverige och utan [oppositionspartierna] har utarbetat någon gemensam politik sade Reinfeldt, talar vid sidan av en talande engagemang på måndagen vid Stockholms universitet. "Jag ska göra allt jag kan för att undvika att kasta Sverige in i kallt vatten, tillade han, innan förutspår att nästa års val kan kristallisera till en folkomröstning om den motsatta blocken respektive sysselsättningspolitik. En Sifo-undersökning som presenterades på söndagen lade trepartssamtal röd-gröna oppositionen i en elva punkt leda över regeringen. Enligt undersökningen, socialdemokraterna, miljöpartiet och vänsterpartiet få ett samlat stöd på 52,2 procent av väljarna, jämfört med bara 40,8 procent för den borgerliga alliansen. En SCB undersökning som publicerades förra veckan visade också på att Mona Sahlin och hennes allierade skulle få tillräckligt stöd för att bilda en regering var ett val som skall hållas i dag. Socialdemokratiska ledare Mona Sahlin sade att hon inte ville ställa alltför mycket aktier i opinionsundersökningar släppt nio månader före valet, men hon uttryckte glädje att den rödgröna alliansen började ta fart. "Jag tycker det är delvis ned till särskiljningsförmåga för den röd-gröna. Det var mycket främmande i början, föregås av en ganska svår start. Nu har vi presenterade oss själva, etablerat oss och har levererat en hel del av den gemensamma politiken. Det är något väljarna alltmer ser, och tillitsfull, och uppskattar, säger Sahlin. "Men det finns också diskussioner om arbetslöshetsförsäkringen, skatt på pensionärer och socialförsäkring som slår regeringen hårt. Deras politik har alltid såg ut så här men man vet nu att de blir avslöjade, tillade hon. Reinfeldt sade att han trodde att hans egen långvariga frånvaro samtidigt om EU-ordförandeskapet tull kan ha haft viss betydelse för de fattiga enkät resultat. Statsministern trodde också kritik kring omfattande förändringar för Sveriges sjukförmåner systemet kan ha haft en negativ inverkan på regeringens rating. Men Reinfeldt tillade att socialdemokraternas egen politik inte skiljer sig avsevärt från regeringen. "I grund och botten inte har några andra förslag. De använder information från media och gör en massa oväsen, eftersom de tror att det kommer att öka sitt stöd." Reinfeldt konstaterade att ledande socialdemokrater som hade tittat in i socialförsäkringssystemet hade uppnått samma slutsats som den moderatledda regeringen: att det inte var hållbart att Sverige har den högsta sjukfrånvaron i Europa. "[Fd socialdemokraten statsminister] Göran Persson brukade resa runt i Europa skryter om att vi inte hade någon arbetslöshet, sade Reinfeldt, som anklagade sin företrädares politik som leder till en situation där det sociala försäkringssystemet användes som buffert bakom sig för att dölja arbetslöshetssiffror. "Folk fick en stämpel i pannan som innebär att deras arbetsdagar var över, sade Reinfeldt och tillade att moderaterna inte tror på att driva människor i förtidspension program bara för att de hade en existentiell kris vid 32 års ålder. Hans parti hade tro på kraften hos den enskilde att studsa tillbaka, sade Reinfeldt
Monday, December 14, 2009
Opposition poll worrying' centre-right coalition government in Sweden.
Opposition poll lead 'very worrying': Reinfeldt
Published: 14 Dec 09 14:39 CETOnline: http://www.thelocal.se/23838/20091214/
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Swedish prime minister Fredrik Reinfeldt has admitted he is concerned by poll results showing the opposition in a commanding lead over the centre-right coalition government.
(27 Nov 09)"It's very worrying. Mona Sahlin will become prime minister the way things are looking now, without her letting anybody know where she wants to take Sweden and without [the opposition parties] having prepared any common policies" said Reinfeldt, speaking on the sidelines of a speaking engagement on Monday at Stockholm University. "I'm going to do all I can to avoid throwing Sweden into cold water," he added, before predicting that next year's election is likely to crystallize into a referendum on the opposing blocs' respective employment policies. A Sifo survey presented on Sunday put the three-party red-green opposition in an eleven point lead over the government. According to the poll, the Social Democrats, Green Party and Left Party enjoy the combined support of 52.2 percent of the electorate, compared to just 40.8 percent for the centre-right Alliance. A Statistics Sweden poll published last week also indicated that Mona Sahlin and her allies would enjoy enough support to form a government were an election to be held today. Social Democrat leader Mona Sahlin said she did not wish to set too much stock in opinion polls released nine months before the election, but she expressed pleasure that the red-green alliance was beginning to gain momentum. "I think it's partly down to the distinctiveness of the red-greens. It was all very unfamiliar at the beginning, prefaced by quite a difficult start. Now we have presented ourselves, established ourselves and have delivered quite a lot of common policies. That's something voters are increasingly seeing, and trusting, and appreciating," said Sahlin. "But then there's also the debates about unemployment insurance, tax on pensioners and social insurance that are hitting the government hard. Their politics have always looked like this but it's now that they're being revealed," she added. Reinfeldt said he believed his own protracted absences while on EU presidency duty may have had some bearing on the poor poll results. The Prime Minister also believed criticism surrounding widespread changes to Sweden's sickness benefits system may have impacted negatively on the government's rating. But Reinfeldt added that the Social Democrats' own policies didn't differ substantially from those of the government. "Basically they don't have any other proposals. They use information from the media and make a lot of noise because they think it will boost their support."Reinfeldt noted that top Social Democrats who had looked into the social insurance system had reached the same conclusion as the Moderate-led government: that it was not sustainable for Sweden to have the highest rate of sick leave in Europe. "[Former Social Democrat prime minister] Göran Persson used to travel around in Europe boasting that we didn't have any unemployment," said Reinfeldt, who accused his predecessor's policies of leading to a situation in which the social insurance system was used as a buffer behind which to hide jobless figures. "People received a stamp on their forehead to the effect that their working days were over," said Reinfeldt, adding that the Moderate Party did not believe in pushing people into early retirement programmes simply because they had an existential crisis at the age of 32. His party had faith in the power of the individual to bounce back, said Reinfeldt
Published: 14 Dec 09 14:39 CETOnline: http://www.thelocal.se/23838/20091214/
Dictionary tool Double click on a word to get a translation
Swedish prime minister Fredrik Reinfeldt has admitted he is concerned by poll results showing the opposition in a commanding lead over the centre-right coalition government.
(27 Nov 09)"It's very worrying. Mona Sahlin will become prime minister the way things are looking now, without her letting anybody know where she wants to take Sweden and without [the opposition parties] having prepared any common policies" said Reinfeldt, speaking on the sidelines of a speaking engagement on Monday at Stockholm University. "I'm going to do all I can to avoid throwing Sweden into cold water," he added, before predicting that next year's election is likely to crystallize into a referendum on the opposing blocs' respective employment policies. A Sifo survey presented on Sunday put the three-party red-green opposition in an eleven point lead over the government. According to the poll, the Social Democrats, Green Party and Left Party enjoy the combined support of 52.2 percent of the electorate, compared to just 40.8 percent for the centre-right Alliance. A Statistics Sweden poll published last week also indicated that Mona Sahlin and her allies would enjoy enough support to form a government were an election to be held today. Social Democrat leader Mona Sahlin said she did not wish to set too much stock in opinion polls released nine months before the election, but she expressed pleasure that the red-green alliance was beginning to gain momentum. "I think it's partly down to the distinctiveness of the red-greens. It was all very unfamiliar at the beginning, prefaced by quite a difficult start. Now we have presented ourselves, established ourselves and have delivered quite a lot of common policies. That's something voters are increasingly seeing, and trusting, and appreciating," said Sahlin. "But then there's also the debates about unemployment insurance, tax on pensioners and social insurance that are hitting the government hard. Their politics have always looked like this but it's now that they're being revealed," she added. Reinfeldt said he believed his own protracted absences while on EU presidency duty may have had some bearing on the poor poll results. The Prime Minister also believed criticism surrounding widespread changes to Sweden's sickness benefits system may have impacted negatively on the government's rating. But Reinfeldt added that the Social Democrats' own policies didn't differ substantially from those of the government. "Basically they don't have any other proposals. They use information from the media and make a lot of noise because they think it will boost their support."Reinfeldt noted that top Social Democrats who had looked into the social insurance system had reached the same conclusion as the Moderate-led government: that it was not sustainable for Sweden to have the highest rate of sick leave in Europe. "[Former Social Democrat prime minister] Göran Persson used to travel around in Europe boasting that we didn't have any unemployment," said Reinfeldt, who accused his predecessor's policies of leading to a situation in which the social insurance system was used as a buffer behind which to hide jobless figures. "People received a stamp on their forehead to the effect that their working days were over," said Reinfeldt, adding that the Moderate Party did not believe in pushing people into early retirement programmes simply because they had an existential crisis at the age of 32. His party had faith in the power of the individual to bounce back, said Reinfeldt
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