Publication ban issued as rare private prosecution over CBC Nygard documentary inches forward

A long-running legal action against CBC News over a 2010 documentary on clothing manufacturer Peter Nygard inched forward this week, when a preliminary inquiry scheduled to run for five days was adjourned early due to delays.

The hearing began Monday and was supposed to conclude Friday, but proceedings ground to a halt Thursday after a series of delays around evidence and a debate about how much material could be reported.

CBC has been charged with publishing defamatory libel in the rare private criminal prosecution, which allows private individuals — without the help of police or Crown attorneys — to bring criminal charges under a seldom-used portion of Canada's Criminal Code.

Provincial court Judge Larry Allen initially refused prosecution lawyer Jay Prober's multiple requests for a publication ban, but changed his mind Thursday after seeing some of the evidence brought forward by Prober.

Prober argued revealing the evidence could create a "media circus."

"I think that the information that's been provided this morning is so salacious and so prejudicial that it could influence any potential jurors," Judge Allen told court Thursday.

"I think this is the kind of information that could, potentially, be so concerning to the public that the chances of a fair trial in the future might be affected."

A civil lawyer representing CBC spoke against the ban Thursday.

"[Nygard] understood, when he got into this process, that he was walking into an open arena," Bill Haight told court.

Disclosure had significant gaps: judge

The charges were originally brought forward in 2011 by Alick Morrison, a former Scotland Yard detective who has worked on Nygard's behalf as a private investigator.

In 2011 and 2012, the investigator swore before a Manitoba justice of the peace that he believed CBC and journalists Timothy Sawa, Morris Karp and Bob McKeown were guilty of publishing defamatory libel about Nygard in a documentary for CBC TV's The Fifth Estate called Larger than Life.

The prosecution argues the documentary alleges Nygard engaged in sexually inappropriate behaviour.

The case is still in its preliminary inquiry, which will allow the judge to determine if there is enough evidence to bring the prosecution to trial.

The hearing stopped Thursday, after the delays meant an out-of-town witness couldn't finish his testimony before his flight home.

In addition to debate about a publication ban, some of the delays centred on what evidence should be admitted, and on omissions or inaccuracies in evidence provided by Prober to CBC's defence team.

Judge Allen commented on the problems with disclosure, which he said had significant gaps.

A pre-trial meeting is set for Oct. 21 to make plans to resume the case.

Potential for chilling effect on media: expert

The case is a rare example of criminal defamation charges, said journalism professor and former lawyer Lisa Taylor. Legal concerns of libel are more commonly pursued through lawsuits in civil courts, she said, and Canada is one of the few Western nations that has an option to pursue it at the criminal level.

"Criminal libel is exceedingly rare and it seemed, maybe 15 years ago, pretty much dead," Taylor said in an interview Friday.

"Clearly, there's the potential for a chilling effect on media."

Taylor said criminal defamation charges have seen a "resurgence" in recent years, largely driven by cyber-smearing cases and cases brought by the state to limit speech. This case, she added, fits neither category.

"It doesn't make sense," she said. "This case is really confounding, in that the mechanisms that are there for the state are being used by an individual."

She said she'd like to see criminal libel law rescinded, to protect Canadian principles of free speech and free press.

"Responsible journalists have to understand that if their words cause harm to someone, there may be a monetary penalty," she said.

"But the idea that by working on a story and publishing something that the target of the story takes issue with … I could potentially be facing jail time, as a journalist, is a deeply uncomfortable thought," she said.

"It's one that's antithetical to our constitutional guarantees of a free press."

Prosecution lawyer Jay Prober declined a Tuesday request from CBC for an interview.