An Interview with Daniel Henry

Daniel Henry is a media and entertainment lawyer. While serving as in-house counsel for the Canadian Broadcasting Corporation (CBC), he was responsible for the supervision of litigation in civil and criminal matters, including the litigation of significant media law cases such as Dagenais v. CBC at the Supreme Court of Canada.

Early Interest in Media and Entertainment

Henry was involved with media and entertainment long before he entered the legal field. As a young professional actor, he appeared on Canadian television, radio, and commercials. "My first paycheck from CBC was when I was probably 13 years old," says Henry.

In fact, he was initially told by a vocational aptitude test that the category of worker he was least compatible with from an interest standpoint was lawyers. Nevertheless, he pursued his LLB at the University of Toronto Faculty of Law after completing his Bachelor of Commerce.

A First Experience in Communications Law

While a student, he broadcast from the on-campus student-run radio station. At that time known as Radio Varsity, the station was broadcast through existing electrical wires in the walls of student dormitories and common rooms and was only available to students on campus. As the law school’s representative to the Student Administrative Council (SAC), Henry put together and submitted a report to have the SAC apply for an FM license so that the radio could broadcast over the radio waves.

After receiving approval, he worked with a pro bono lawyer to craft an application for the license and appeared several times before the Canadian Radio-television and Telecommunications Commission (CRTC). Ironically, the CRTC was hesitant to grant a student radio license but was also concerned that the SAC’s initial application, which included local community groups, was not student enough. Ultimately, the license was granted the year after Henry left school and is now CIUT-FM and broadcasts on the 89.5 FM frequency.

As for Henry, the experience sparked an interest in communications law. Along with courses taught by Peter Grant, a pioneer in the field, he says, "it was a real education in communications law."

Audi Alteram Partem

While a Marshal in England, a student opportunity to sit on the bench beside a high court judge on circuit, Henry learned in practice a basic rule of advocacy: listen and be aware of satisfying the listener with your argument.

While sitting on the bench, he experienced what it’s like for a judge in a courtroom. “A judge basically is a hostage to the lawyers. You have no choice but to listen to whatever they want to give you.” Judges must follow the maxim audi alteram partem, the principle that every person is entitled to a fair hearing where they are able to respond to the evidence against them. In response, he says that aspiring advocates should always listen to the judge and listen to feedback to succeed. He warns that there’s a tendency among lawyers to try to get out the whole argument they’ve thought about and written out. Henry advises that “it's not just a question of satisfying yourselves.” “It's not enough that you are making an argument that your client wants to hear. You're trying to convince a human being on the bench to agree with you in some way, shape, or form.”

The Dagenais Case

As for his experience on the other side of the bench, Henry was part of the team that successfully appealed the publication ban against the CBC’s The Boys of St. Vincent broadcast at the Supreme Court of Canada. In that case, the accused were four members of a Catholic order charged with physical and sexual abuse of young boys in Catholic training schools in Ontario. Their counsel argued that the fictional CBC program dealing with child sexual and physical abuse in a Catholic orphanage and loosely based on the Mount Cashel case in Newfoundland would have an impact on the jury in their case.

A week out from the highly anticipated showing of the film, Henry received a call from the accused’s lawyer asking him to move the broadcast. “The production had been underway for a year or two and every day in broadcasting is heavily organized and planned,” he tells us. “You don't just move a major production like that to another day because the lawyer said, ‘I'd really rather have you do that.’” In response, the opposing counsel got a publication ban to stop the broadcast.

CBC appealed the ban all the way to the Supreme Court. By that time, the jury had already decided the original case, so the question became “Why should the Supreme Court of Canada bother hearing [the case]?” Henry explains that they had to argue that the same thing could happen again. “The dispute wasn’t merely academic.”

At the Supreme Court, the CBC argued together with the National Film Board (NFB). CBC's counsel at the time was Ian Binnie, later justice of the Supreme Court of Canada. Henry says they argued to resolve “a contradiction in the law between the law of contempt of court, which punished publications that might prejudice court proceedings, and the law recognizing the court system’s resilience in the face of those publications.” The team was ultimately successful. The landmark case was decided in favor of the CBC and NFB. Henry spoke to Binnie’s skill. “Ian Binnie was just one of these lawyers who was very capable, very good, who could make an argument so compelling that there was no other side that would make any sense.”

Injunctions and Publication Bans

Although Dagenais v. CBC was decided before the rise of social media and streaming, Henry thinks that publication bans are an ongoing concern for court proceedings. “There will always be and there still are court proceedings that want to stop the flow of information from affecting or being perceived to be prejudicing court proceedings.” In fact, stopping the flow of information is harder now. “When a publication ban is issued it's much more difficult to enforce when anyone is a publisher and when anybody can publish anything on social media.” Henry suggests that if publication bans can’t be enforced, courts have to reconsider whether they should be given. Otherwise, “it undermines the effectiveness of orders.”

The Karla Homolka Case

One such instance was during the Karla Homolka case, where there was a strict publication ban to prevent prejudicing the jury in the later trial of her then-husband, Paul Bernardo. Henry recalls that Canadian cable companies had to block out American news media to avoid breaking the ban. Not everyone was so diligent though; “a retired police officer was so incensed by the ban on publication of the trial that he was passing out copies of the Buffalo Evening News on the streets of St. Catharines and he was convicted of contempt of court.”

While Henry was trying to appeal the ban on behalf of the CBC, he appeared on the US program Larry King Live to give his views on the subject. Given his own commitment as a lawyer to respecting the ban, despite disagreeing with it, and the fact that the other guest was a lawyer in favor of the ban, there should have been no issues. Henry says no such luck: “[the other lawyer] goes on the air and the first thing, in answer to the first question, he says she pleaded guilty,” breaking the publication ban immediately. Luckily, the producers had the show on a 10-second delay and were able to cut the clip. Ironically, later in the program, the lights went out in the studio and among the confusion, a cameraman let out an expletive, which was broadcast. While everyone in the control room was hyper-vigilant to protect the publication ban, they were so busy talking to each other when the power went out that they didn’t manage to cut the cameraman’s clip. Henry explains the anxiety around the publication ban, “it was a very funny interview, but it was a very skittish time for the media.”

Favorite Legal Show?

While Henry is not a big fan of law shows in general, he did appear in a commercial that played in front of the American show The Defenders. “So I think I probably have to say The Defenders,” he says. However, Henry adds, “I grew up on Perry Mason, so I should say that.” While the show isn’t great for studying legal principles, “it was more focused on making sure that the defense won, and the bad guy was always found, often confessing in court.”