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North Vancouver filmmaker who criticized aquarium wins appeal

The B.C. Court of Appeal has ruled in favour of a North Vancouver documentary filmmaker in a court case launched against him by the Vancouver Aquarium.
Charbonneau at court

The B.C. Court of Appeal has ruled in favour of a North Vancouver documentary filmmaker in a court case launched against him by the Vancouver Aquarium.

On Wednesday, the appeal court issued a decision allowing filmmaker Gary Charbonneau and his company Evotion Films Inc. to put approximately five minutes of footage back into his documentary about whales and dolphins in captivity that a lower court judge had previously ordered taken out.

Charbonneau said he’s happy about the decision and is re-editing the film to include the 15 segments of footage, along with some new material relevant to the public debate.

“We knew we had the law on our side,” he said, describing the aquarium’s pursuit of him in the courts as a “bullying tactic.”

Charbonneau’s lawyer Arden Beddoes called the ruling this week an important decision for freedom of expression that will impact other people who want to criticize institutions.

“The court identified freedom of expression as a principle that matters in these circumstances,” he said.

Charbonneau created the low-budget documentary critical of the aquarium in 2015 and showed it publicly seven times, as well as posting it online on Vimeo and YouTube.

In 2016, the Vancouver Aquarium launched a lawsuit against Charbonneau, claiming parts of the film violated copyright law by using material from the aquarium’s website without permission, along with video footage from a visit to the facility that he was forbidden to include.

Beddoes argued the filmmaker is exempt from the copyright restriction under part of the law that permits fair use for public and educational purposes.

Last spring, B.C. Supreme Court Justice Jeanne Watchuk granted an injunction, ordering Charbonneau to remove disputed segments of the one-hour film, on the grounds that not doing so could cause “irreparable harm” to the aquarium.

This week’s ruling essentially reversed that decision.

Writing for the appeal court, Justice Elizabeth Bennett said in the ruling there was “not a shred of evidence” to conclude that irreparable harm would result. The parts of the film that are most critical of the aquarium are not covered by the injunction, Bennett noted. “It is difficult to discern where any of the disputed segments of a derogatory nature,” she wrote.

The appeal court also held that freedom of expression, granted under the Canadian Charter of Rights and Freedoms, was an important issue in the case because “the film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity.”

Bennett wrote that upholding the injunction in the case would “silence criticism of the aquarium and potentially stifle public debate on a topic of great interest to the community.”

Charbonneau said the documentary has been viewed close to 50,000 times online.

The Vancouver Aquarium issued a statement saying it was “disappointed in the outcome of this week’s decision.”