"Fat Bottomed Girls": When Free Speech and Alleged Witness 'Victimization' Collide in the BC Supreme Court
October 31st, 2012
This is a little off topic but thought this may be of interest for my readers.
Trials are a matter of public record and Canada’s open-court principle can sometimes create legitimate privacy concerns for litigants. The BC Supreme Court published reasons for judgement today addressing such a concern.
In today’s case (Mainstream Canada v. Staniford) a blog entry was posted during a trial referring to two witnesses who testified that “It is not clear if they both cycled to the courtroom – but there were echoes of Queen’s classic 1978 hit “Fat-Bottomed Girls” playing as they both took the stand.”
The Plaintiff’s lawyer brought an application for a direction that the Defendant “refrain from making postings referring to witnesses in any derogatory or disparaging fashion that may have the effect of victimizing a witness or witnesses who are testifying, or may have testified, at this trial.” Madam Justice Adair refused to make such an order but in doing so provided the following reminder to the litigants:
 I am going to quote from Lord Denning’s judgment in the case of Attorney-General v. Butterworth,  3 All E.R. 326 (C.A.). This is a decision of the English Court of Appeal. It is from 1962. But in my view it is still well worth quoting, and well worth reminding counsel, parties and those present in this courtroom, concerning issues relating to the administration of justice and the appropriate and fair treatment of witnesses who come forward, often under the compulsion of a subpoena, to give evidence and perform their civic duty in a trial.
 Lord Denning says (in the context of ruling on an application that individuals be found in contempt of court), at p. 329:
For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it. How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he had given? After he has honestly given his evidence, is he to be liable to be dismissed from his office, or to be sent to Coventry [a reference that perhaps had more resonance in 1962 than it does now, but essentially meaning banished or punished] simply because of that evidence which he has given? I decline to believe that the law of England permits him to be so treated. If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences.
 Further down at p. 329, Lord Denning says:
I have no hesitation in declaring that the victimization of a witness is a contempt of court whether it be done whilst the proceedings are still pending or after they have finished.
 In my view, it is clear from Lord Denning’s remarks that the court takes the intimidation or the victimization of a witness extremely seriously and is willing to use its contempt powers to punish that conduct.
 Having said that, in the light of the submissions made by Mr. Sutherland concerning the live issues in this case relating to the conduct of Mr. Staniford – his conduct of the case inside and outside the court – I am not going to give the direction sought by Mr. Wotherspoon. However, my expectation is that the parties and those present in this courtroom will take very seriously Lord Denning’s comments which I have read out and which I adopt.