| [1994] 3 S.C.R. | Dagenais v. Canadian Broadcasting Corp. | 835 |
National Film Board of Canada
v.
Joseph Dugas and Robert Radford
and
The Canadian Association of Journalists
and
of Ontario
File No.: 23403.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
authority -- Avenues available for third parties to challenge ban.
The respondents, former and present members of a Catholic religious order, were charged with physical and sexual abuse of young boys in their care at training schools in Ontario. They applied to a superior court judge for an injunction restraining the CBC from broadcasting the mini-series The Boys of St-Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution in Newfoundland, and from publishing in any media any information relating to the proposed broadcast of the program. At the time of the hearing, the trials of the four respondents were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) before a judge and jury. LD's trial was in its final stage and a trial judge had been appointed for LM's case. The superior court judge granted the injunction, prohibiting the broadcast of the mini-series anywhere in Canada until the end of the four trials, and granted an order prohibiting publication of the fact of the application, or any material relating to it. The Court of Appeal affirmed the decision to grant the injunction against the broadcast but limited its scope to Ontario and CBMT-TV in Montreal and reversed the order banning any publicity about the proposed broadcast and the very fact of the proceedings that gave rise to the publication ban.
Held (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be allowed and the publication ban order set aside.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: To have a publication ban issued under a judge's common law or legislated discretionary
authority, the Crown and/or the accused's motion should be made before the trial judge, if one has been appointed, or before a judge in the court at the level where the case will be heard. If the level of court has not been established and cannot be established definitively by reference to statutory provisions, the motion should be made before a superior court judge. In a jury trial, the motion must be heard in the absence of the jury. To challenge a ban on appeal, the Crown and the accused should follow the avenues of appeal available through the Criminal Code. When the initial ban order is made by a judge other than the trial judge, some flexibility should be recognized in the application of the rule against collateral attacks.
The judge hearing a motion for a publication ban has the discretion to direct that third parties be given notice and to grant them standing in accordance with the provincial rules of criminal procedure and the common law principles. If third parties wish to oppose the motion, they should attend at the hearing, argue to be given status, and if given status, participate in the motion. When third parties, usually the media, seek to challenge publication bans ordered by judges under their common law or legislated discretionary authority, no direct appeal is available through the Criminal Code. If the publication ban was ordered by a provincial court judge, the third party should make an application for certiorari to a superior court judge. The common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, so an order implementing such a ban is an error of law on the face of the record. While certiorari has traditionally been limited remedially, when a judge exceeds his authority under the common law rule governing publication bans, the remedies available through a certiorari challenge to the judge's action should be enlarged to be the same as the remedies that would be available under the Charter. To challenge a denial of certiorari, third parties should appeal the superior court judge's decision to the Court of Appeal under s. 784(1) of the Criminal Code. To challenge a dismissal of an appeal to the Court of Appeal, they should apply for leave to appeal to the Supreme Court of Canada under s. 40(1) of the Supreme Court Act. If the publication ban was ordered by a superior court judge, third parties should challenge the ban by applying for leave to the Supreme Court under s. 40(1). A publication ban order issued by a superior court judge can be seen as a final or other judgment of the highest court of final resort in a province or a judge thereof in which judgment can be had in the particular case. Neither s. 40(3) of the Act nor s. 674 of the Criminal Code precludes an
appeal to the Supreme Court under s. 40(1) in such cases.
Section 24(1) of the Charter is unavailable to challenge a publication ban since such a challenge can be framed in terms of error of law and since certiorari and s. 40(1) are available. Furthermore, given that a motion for a publication ban in the context of criminal proceedings is criminal in nature, the civil procedures avenues to challenge a ban are not available.
Here, the superior court judge who issued the publication ban order had jurisdiction to hear only the motions for a ban made by JD and RR, since a trial judge had already been appointed for LD and LM. The Court of Appeal did not have jurisdiction to hear the CBC's appeal, and this Court had jurisdiction to grant leave to appeal the Court of Appeal's decision and to draw these conclusions on the issue of jurisdiction. This Court also had jurisdiction under s. 40(1) to grant leave to appeal the initial order of the superior court judge. The CBC, however, did not seek leave to appeal this order. Because it would be unfair to penalize the CBC for not following the correct procedure where the correct procedure was unknown, because the issue of publication bans is of national importance, and because no one is prejudiced by the granting of leave, leave to appeal from that order should be granted under s. 40(1) proprio motu, nunc pro tunc, ex post facto.
This case deals with an error of law challenge to a publication ban imposed under a common law discretionary rule. Discretion conferred by a common law rule must be exercised within the boundaries set by the Charter; exceeding these boundaries results in a reversible error of law. The traditional common law rule governing publication bans -- that there be a real and substantial risk of interference with the right to a fair trial
-- emphasized the right to a fair trial over the free expression interests of those affected by the ban and, in the context of post- Charter Canadian society, does not provide sufficient protection for freedom of expression. When two protected rights come into conflict, Charter principles require a balance to be achieved that fully respects the importance of both rights. A hierarchical approach to rights must be avoided, both when interpreting the Charter and when developing the common law. The common law rule governing publication bans must thus be reformulated in a manner that reflects the principles of the Charter and, in particular, the equal status given by the Charter to ss. 2( b) and 11( d). Given that publication bans, by their very definition, curtail the freedom of expression of third parties, the common law rule must be adapted so as to require a consideration of both the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows: a publication ban should only be ordered when (a) such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. If the ban fails to meet this standard, then the judge committed an error of law in making the order and the challenge to the order on this basis should be successful. This standard reflects the substance of the Oakes test, which itself should be rephrased to recognize in the third step of the proportionality branch that there must be a proportionality not only between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, but also between the deleterious and the salutary effects of the measures.
Publication bans, however, should not always be seen as a clash between freedom of expression for the media and the right to a fair trial for the accused. The clash model is more suited to the American constitutional context and should be rejected in Canada. Other important concerns have a place at each stage of the analysis that is required when considering whether a particular publication ban can be justified under the common law
rule. The efficacy of a publication ban is also a relevant factor in this analysis.
The party claiming under the common law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial bears the burden of justifying the limitation on freedom of expression. He must prove that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited as possible, and that there is a proportionality between the salutary and deleterious effects of the ban. The fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied. The judge should, where possible, review the publication ban at issue. He must consider all other options besides the ban and find that there is no reasonable and effective alternative available. He must also limit the ban as much as possible. Lastly, the judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.
The publication ban in this case cannot be upheld. While the ban was clearly directed toward preventing a real and substantial risk to the fairness of the trial of the four respondents, the initial ban was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, reasonable alternative measures were available to achieve the objective without circumscribing the expressive rights of third parties. The publication ban therefore cannot be supported under the common law. In purporting to order the ban under her common law discretionary authority, the superior court judge thus committed an error of law.
Per McLachlin J.: Court orders in the criminal sphere which affect an accused's Charter rights or his ability to enforce them are themselves subject to the Charter. The ban at issue in this case falls into this category. The publication ban was related to the protection of the respondents' constitutional right to a fair trial and may be viewed as a case of the criminal law being applied to vindicate the rule of law and the fundamental freedoms protected by the Charter. The ban was not made by Parliament or a legislature but can be considered an act of
"government" in relation to a matter within the authority of Parliament or the legislatures.
Courts must be able to provide a full and effective remedy for any Charter infringement. This requires more than the opportunity to address the trial court prior to the issuance of the ban and must include recourse to an appellate tribunal. The appellate procedures proposed by Lamer C.J. for third party challenges of publication ban orders satisfy this minimal requirement. While they involve some extension of the common law remedy of certiorari, this extension is warranted in the case of appeals from publication bans and hence justified under s. 24(1) of the Charter. The extension is warranted because there is no other way that overbroad publication bans can effectively be limited on appeal. Given that the Charter applies to a court-ordered publication ban, such a ban might be challenged on the basis of error of law in that it constitutes a direct violation of the Charter. The proposed appellate procedures should not, however, be understood to derogate from the principle that criminal trials should not be interrupted and delayed for the purpose of pursuing interlocutory appeals.
The right to broadcast a fictional cinematic work falls squarely within the ambit of s. 2(b) of the Charter and the limits on freedom of expression imposed by the ban must be justified under s. 1. The objective of the ban was to preserve the respondents' rights to a fair trial and, in particular, to avoid the risk that an impartial jury could not be sworn, or if sworn, could not render a true verdict because of the poisonous effects of the publication. Under the proportionality branch of the Oakes test, a publication ban may be justified where there are special circumstances in a case which indicate a serious risk (as opposed to a speculative possibility) to the fairness of the trial, and provided that the ban goes no further than required to avoid the demonstrated risk of an unfair trial.
It is not a question of deciding where the balance should be struck between a fair trial and freedom of expression. The right to a fair trial is fundamental and cannot be sacrificed. In general, the clash model is also largely inappropriate. The common law test governing the issuance of publication bans, properly applied, meets the requirements of justification of an infringing measure under s. 1. What is required is that the risk of an unfair trial be evaluated after taking full account of the
general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. Here, the judge ordering the ban failed to direct herself to the considerations which go to establishing rational connection and minimal impairment. It follows that the ban cannot be supported and must be set aside.
Per Gonthier J. (dissenting): The superior court judge was a court of competent jurisdiction to issue a publication ban in the cases of JD and RR; and, in doing so, she was bound to apply the Charter and her decision constituted the implementation of a Charter remedy under s. 24(1). She had no jurisdiction, however, to issue a ban on the applications of LD and LM who could only apply to their appointed trial judge. The question of whether there is a right of review or appeal of the ban order bearing on its correctness and conformity with the Charter rights of the persons affected thereby is a distinct issue. By referring to a "court of competent jurisdiction", s. 24(1) does not create courts of competent jurisdiction, but merely vests additional powers in courts which are already found to be competent independently of the Charter. Further, s. 24(1) does not of itself create a right of review or appeal from a decision of a court of competent jurisdiction where such a right is already provided by law. In this case, Lamer C.J.'s views as to rights of review by way of certiorari of publication ban orders by provincial court judges pursuant to the Charter and rights of appeal pursuant to s. 40 of the Supreme Court Act were agreed with.
Publication bans can be ordered to protect the fairness of a pending or current trial. The fact such bans restrict freedom of expression and freedom of the press means that they should be imposed only in exceptional cases. The exceptional nature of publication bans has been assured at common law by requiring that there be a real and substantial risk to the fairness of the trial. The application of the Charter to the evaluation of publication bans, while not directly altering the common law test, restructures the analysis to some extent. In terms of Charter review, determining the correct balance between fair trial and freedom of expression rights falls to the s. 1 analysis. Under s. 1, each party bears an initial burden of showing a Charter infringement. After that initial burden is discharged, the balancing of competing Charter rights is incompatible with a burden on
either party and the s. 1 analysis should be carried on without privileging or disadvantaging either of the rights at issue. The validity of imposing a ban under s. 1 will be determined almost exclusively at the second and third branches of the proportionality part of the Oakes test since the other elements of the test are easily satisfied. The second or minimal impairment branch requires that bans be carefully limited both in terms of temporal and geographic application, and requires evaluation of alternative measures to protect the right to a fair trial. The third branch requires proportionality between the effects of the measure limiting the freedoms in question and the objective, and also proportionality between the salutary and deleterious effects of that measure.
Thus, in analysing publication bans through s. 1, the essence of the decision to issue a ban or not is a balancing of various factors to determine whether such a preventive measure is a necessary and reasonable response to the facts of any given case. The trial judge must consider the nature of the threat to the fairness of the trial, including the susceptibility of juries to being influenced, the extent of the restriction on freedom of expression and the availability of alternative measures. It is not necessary, however, for the trial judge to determine with certainty that the alternative measures would be insufficient to protect the fairness of the trial. What is required is that the trial judge be satisfied that the publication will create a real and substantial risk to the fairness of the trial, which available alternative measures will not prevent. Where circumstances permit it is desirable for the trial judge to review the proposed publication as part of the evidence before determining whether to issue a ban. Finally, the decision of a trial judge, made after weighing all the factors, should not be interfered with unless it is based on an error in principle or it cannot be reasonably supported on the evidence.
Here, the superior court judge did not err in banning the broadcast of the mini-series until the end of the pending trials some eight months later. The mini-series was a work of fiction based on a number of similar, "almost interchangeable", cases which was to be shown in prime time to a potentially huge audience. On the basis of the evidence, it was open to the judge to find that even though the mini-series was not directly about
any of the respondents, it would have seriously compromised the possibility of finding an impartial jury given the context of widespread prior publicity, and that the alternative measures were bound to be ineffective. Though this test differs on a formal level from the "real and substantial risk" test, they are equivalent in substance. While the ban temporarily denied the appellants their freedom of expression, this impairment was very minor. The mini-series is a work of fiction, not a news event, and could be broadcast later with minimal inconvenience. Commercial loss cannot justify risking an accused's right to a fair trial, especially when a portion of the losses can be recouped when the mini-series is eventually broadcast. Finally, the purpose of provoking public exploration of the issues of child physical and sexual abuse, as an integral part of a process of seeking solutions, was not frustrated by the temporary ban. These issues would still have been topical at the end of the pending trials. The geographic scope of the ban, however, was clearly overly broad. Since there was no legal possibility that the trials could be moved outside Ontario, the ban should have been limited to any broadcast in the province and to CBMT-TV in Montreal.
Per La Forest J. (dissenting): There is no direct appeal to this Court under s. 40 of the Supreme Court Act from the superior court judge's order. On the basis of the reasoning in support of such an appeal, applications for leave from any number of interlocutory rulings in criminal proceedings could be made to this Court. The appellants, however, are not without remedy. Apart from declaratory actions, a remedy might well be available under s. 24(1) of the Charter even against a decision of a superior court judge. Since a decision made under that provision is not otherwise open to appeal, it is a final order within the meaning of s. 40 of the Supreme Court Act, and so open to appeal with leave to this Court. No other avenue or appeal route was available to the appellants to challenge the ban.
The ban order is not immune from Charter scrutiny by reason only that it is a court order. The order is one exercised pursuant to a discretionary power directed at the governmental purpose of ensuring a fair trial. It is a by-product, in this case having effect outside the criminal process, of the institution by the Crown of criminal proceedings. The fact that the rule under which it was made was judicially created does not matter. The
Charter applies to common law as well as to statutes. Since the effect of the order was the infringement of the appellants' Charter right to freedom of expression to serve a governmental purpose, the order may be subjected to Charter scrutiny.
If an expansion of certiorari jurisdiction is to be permitted when publication bans made by provincial court judges are being challenged, discretion to grant such a remedy should be exercised in a restrained manner to avoid undue interference with the trial process. It might, in fact, be as well simply to leave third parties the right to apply for a remedy under s. 24(1) of the Charter. That remedy is itself discretionary. It is akin to a court's discretionary power to grant a declaration and should be exercised with similar restraints.
Although it is unnecessary to consider the substantive issue, the following comments could be made in light of the disposition of the case by the Court. There is agreement with Lamer C.J. that the common law rule did not give sufficient protection to freedom of expression, and substantial agreement with his list of factors a judge should consider in determining whether a ban should issue. The extent to which a ban could disrupt the trial is another factor that should be weighed.
Per L'Heureux-Dubé J. (dissenting): Freedom of expression is a fundamental value in our free and democratic society. The jurisdictional issue raised in this case, however, concerns the right of appeal, not the right to freedom of expression. The right to freedom of expression is protected by access to an initial remedy. While the axiom "where there is a right, there is a remedy" may not be absolute, when a person alleges a wrong, that person is entitled to submit his case to a forum in order to try to obtain redress. Here, the CBC was provided with such an opportunity: the CBC had standing and was heard by a court of law prior to the issuance of the publication ban. Even though the CBC was unsuccessful in preventing the issuance of the publication ban, it still had access to an initial remedy. Consequently, the jurisdictional question raised by this appeal is not whether the CBC should have access to a remedy but whether the CBC should have a right to appeal a decision with which they are not satisfied.
In this respect, the jurisdictional question has broad implications. If the media are permitted to appeal a publication ban issued in the criminal context then every third party will be able to appeal any interlocutory order issued in the criminal context which they believe infringes their Charter rights. Such a broad interlocutory right of appeal will result in significant delay to the trial process, will adversely impact upon the accused's Charter right to be tried within a reasonable time and will adversely affect the administration of justice.
With this broad context in mind, this Court is found to have no jurisdiction to entertain this appeal. Similarly, there was no jurisdiction in the Court of Appeal to hear this appeal. In our free and democratic society, a right of appeal is not available in every situation. With the exception of the possibility of a limited common law jurisdictional appeal, a right of appeal exists only if specifically provided by statute. Here, the Criminal Code does not provide for such a right. Furthermore, since this appeal qualifies as a proceeding in respect of an indictable offence, s. 674 of the Code does not authorize any other proceedings through which the ban can be challenged. Even assuming, however, that s. 674 does not restrict the scope of s. 40(1) of the Supreme Court Act, s. 40(1) still does not provide this Court with jurisdiction to hear an appeal such as this one from an interlocutory criminal order. To hold otherwise would be inconsistent with the jurisprudence of this Court. Section 40(1) was intended to confer broad appellate jurisdiction on this Court, but it was not intended to override the principle against interlocutory criminal appeals. This principle is equally applicable to the accused, the Crown and third parties. While an order affecting a third party issued during a criminal proceeding may be final with respect to that third party, it is interlocutory with respect to the accused. Since the focus in criminal proceedings must be on the accused and the determination of guilt and innocence, to the extent that the order is interlocutory from the accused's point of view it should not be subject to a third party appeal unless the right to such an appeal is specifically and clearly provided by statute. Section 40(1) does not meet this test. Just as it has not been interpreted to provide parties to criminal proceedings with an interlocutory right of appeal, it should not be so interpreted with respect to third parties. Finally, the Charter does not confer appellate jurisdiction. Section 24(1) cannot provide a right of appeal where none is provided by law. It is only if there were no access whatsoever to an initial remedy that s. 24(1) might confer jurisdiction to provide an initial remedy, such as
giving a third party standing to raise the issue. However, this is not such a case. If third party interlocutory criminal appellate procedures are needed, it is Parliament, not the courts, which must develop such procedures.
With respect to the applicability of the Charter to court orders, while some judicial activity may be subject to the Charter, a court order per se is not. The Charter therefore does not apply to the impugned publication ban. The Charter does, however, apply to the common law governing the issuance of publication bans.
The initial motion for a publication ban should be made before the appointed trial judge wherever possible. Since a trial judge had already been appointed for LD and LM, the superior court judge had no jurisdiction to hear their motions for a publication ban.
On the substantive issue, had jurisdiction been found in this Court to entertain this appeal, Gonthier J.'s reasons would have been agreed with. The common law rule governing the issuance of publication bans in the criminal law context is consistent with the Charter and the superior court judge did not commit any reviewable error in exercising her discretion and applying the common law rule to the facts of this case and determining that a publication ban was necessary.
Cases Cited
By Lamer C.J.
Referred to: Steiner v. Toronto Star Ltd., [1956] O.R. 14; R. v. Begley (1982), 38 O.R. (2d) 549; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Meltzer, [1989] 1 S.C.R. 1764; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384; R. v. Swietlinski, [1994] 3 S.C.R. 481; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Nelles v. Ontario, [1989] 2 S.C.R. 170; Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Litchfield,
[1993] 4 S.C.R. 333; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Salituro, [1991] 3 S.C.R. 654; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Zundel, [1992] 2 S.C.R. 731; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Généreux, [1992] 1 S.C.R. 259; R. v. Lippé, [1991] 2 S.C.R. 114; Ex parte Telegraph Plc., [1993] 2 All E.R. 971; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Oakes, [1986] 1 S.C.R. 103; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Hess, [1990] 2 S.C.R. 906.
By McLachlin J.
Referred to: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Rahey, [1987] 1 S.C.R. 588; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Oakes, [1986] 1 S.C.R. 103; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.
By Gonthier J. (dissenting)
Mills v. The Queen, [1986] 1 S.C.R. 863; Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); R. v. Keegstra (No. 2) (1992), 127 A.R. 232; Re Global Communications Ltd. and Attorney-General for Canada (1984), 10 C.C.C. (3d) 97; Attorney General v. Times Newspapers Ltd., [1974] A.C. 273; Eur. Court H. R., Sunday Times case, judgment of 26 April 1979, Series A No. 30; R. v. Parks (1993), 15 O.R. (3d) 324; Ex parte Telegraph Plc., [1993] 2 All E.R. 971; CBC v. Keegstra, [1987] 1 W.W.R. 719.
By La Forest J. (dissenting)
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588.
By L'Heureux-Dubé J. (dissenting)
R. v. S. (T.), [1994] 3 S.C.R. 952, aff'g (1993), 109 Sask. R. 96; Reference re Alberta Statutes, [1938] S.C.R. 100; Boucher v. The King, [1951] S.C.R. 265; Switzman v. Elbling, [1957] S.C.R. 285; Edmonton
Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Meltzer, [1989] 1 S.C.R. 1764; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Laba, [1994] 3 S.C.R. 965; R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384; R. v. Gardiner, [1982] 2 S.C.R. 368; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Barnes, [1991] 1 S.C.R. 449; Bar of the Province of Quebec v. Ste-Marie, [1977] 2 S.C.R. 414; R. v. Morgentaler, Smoling and Scott (1984), 41 C.R. (3d) 262; R. v. Cranston (1983), 60 N.S.R. (2d) 269; Nelles v. Ontario, [1989] 2 S.C.R. 170; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Young v. Young, [1993] 4 S.C.R. 3; R. v. Rahey, [1987] 1 S.C.R. 588; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Salituro, [1991] 3 S.C.R. 654; Schachter v. Canada, [1992] 2 S.C.R. 679; Watkins v. Olafson, [1989] 2 S.C.R. 750.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7, 11(b), (d), 12, 13, 14, 24(1), 32.
Constitution Act, 1982, s. 52.
Contempt of Court Act 1981 (U.K.), 1981, c. 49, s. 2(2).
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6.
Criminal Code, 1892, S.C. 1892, c. 29, s. 743.
Criminal Code, R.S.C., 1985, c. C-46, ss. 9 [rep. & sub. c. 27 (1st Supp.), s. 6], 10, 468, 469 [am. c. 27 (1st Supp.), s. 62], 517, 539 [idem, s. 97], 553 [rep. & sub. idem, ss. 104; am. 1992, c. 1, s. 58(1) (Sch. 1, item 11)], 555 [am. c. 27 (1st Supp.), ss. 106 and 203], 674, 784(1), 798.
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14(1)(f).
Ontario Court of Justice Criminal Proceedings Rules, SI/92-99, r. 6.04(1).
Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1) [rep. & sub. 1990, c. 8, s. 37], (3).
Young Offenders Act, R.S.C., 1985, c. Y-1, s. 5 [am. c. 24 (2nd Supp.), s. 3].
Authors Cited
Bailey, S. H. "The Contempt of Court Act 1981" (1982), 45 Mod. L. Rev. 301.
Canada. Law Reform Commission. Working Paper 56. Public and Media Access to the Criminal Process. Ottawa: The Commission, 1987.
Ergec, Rusen. "La liberté d'expression, l'autorité et l'impartialité du pouvoir judiciaire", [1993] Rev. trim. dr. h. 171.
Harris, D. J. "Decisions on the European Convention on Human Rights During 1979" (1979), 50 Brit. Y.B. Int. L. 257.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented). Scarborough, Ont.: Carswell, 1992 (loose-leaf).
Jamal, Mahmud, and H. Patrick Glenn. "Selective Legality: The Common Law Jurisdictional Appeal" (1994), 73 Can. Bar Rev. 142.
Lepofsky, M. David. Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings. Toronto: Butterworths, 1985.
Linden, Allen M. "Limitations on Media Coverage of Legal Proceedings: A Critique and Some Proposals for Reform". In Philip Anisman and Allen M. Linden, eds., The Media, the Courts and the Charter. Toronto: Carswell, 1986, 301.
Mann, F. A. "Contempt of Court in the House of Lords and the European Court of Human Rights" (1979), 95 L.Q.R. 348.
Sopinka, John, and Mark A. Gelowitz. The Conduct of an Appeal. Toronto: Butterworths, 1993.
Toronto Star, November 29, 1992, p. H1, "Film gives voice to abuse victims".
APPEAL from a judgment of the Ontario Court of Appeal (1992), 12 O.R. (3d) 239, 59 O.A.C. 310, 99 D.L.R. (4th) 326, 12 C.R.R. (2d) 229, varying a publication ban order made by Gotlib J. Appeal allowed, La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting.
W. Ian C. Binnie, Q.C., Malcolm Mercer and Daniel J. Henry, for the appellants.
Peter A. E. Shoniker and Joseph J. Markson, for the respondents.
James K. Stewart and Lori Sterling, for the intervener the Attorney General for Ontario.
Julius H. Grey, for the intervener John Newton Smith.
Richard G. Dearden and Randall J. Hofley, for the intervener the Canadian Association of Journalists.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
LAMER C.J. --
I. Factual Background
This is an appeal from the judgment dated December 5, 1992 of the Ontario Court of Appeal restraining the Canadian Broadcasting Corporation ("CBC") from broadcasting a mini-series co-produced by the National Film Board of Canada ("NFB") anywhere in Ontario or on the English-language station CBMT-TV in Montreal until the completion of the criminal trials of the four respondents.
The respondents (Lucien Dagenais, Léopold Monette, Joseph Dugas and Robert Radford) are either former or present members of a Catholic religious order known as the Christian Brothers. They were all charged with physical and sexual abuse that allegedly took place in Catholic training schools where the respondents were teachers and the victims were young boys in their care.
At the time of the hearing on the publication ban, the trials of the four respondents were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) in front of judge and jury. All of the respondents had been pre-tried and there was no prospect of pre-trial resolution. Dagenais was in week five of his trial before Soublière J. Monette was scheduled to be tried before Cusson J. from February 1 to February 26, 1993. Trial judges had not yet been named for Radford or Dugas, but Radford's trial was scheduled to run from April 5 to May 4, 1993, and Dugas' trial was scheduled to commence some time between May 31 and July 2, 1993.
In early November, the appellant CBC began advertising the nation-wide broadcast of a
four-hour mini-series entitled The Boys of St. Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution. The broadcast was to be in two two-hour segments, one on Sunday evening, December 6, 1992, and the other on the following evening.
Soublière J. was scheduled to charge the jury in Dagenais' trial on December 7. On December 3, defence counsel brought an application before Soublière J. requesting that he charge the jury on December 4 instead of on December 7 or that he sequester the jury over the weekend of December 5 and 6. Soublière J. declined to do either but he did direct the jury not to watch the broadcast.
On December 4, 1992, the respondents turned to Madam Justice Gotlib, a colleague of Soublière J. in the Ontario Court of Justice (General Division). They applied for an interlocutory injunction under the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, restraining the CBC from broadcasting The Boys of St. Vincent and from publishing in any media any information relating to the proposed broadcast of that program. At the beginning of the hearing the application was amended to indicate that the application was for an injunction to last until the end of the four trials. Gotlib J. of the Ontario Court of Justice granted an interlocutory injunction prohibiting the broadcast of The Boys of St. Vincent anywhere in Canada until the completion of the trials of the respondents.
The respondents also requested and were granted an order permitting the hearing of the application on short notice. In addition, they requested and were granted an order prohibiting the publication of the fact of the application, or any material relating to it, pending completion of the four trials (but not including any time involved in an appeal process).
The NFB, John Newton Smith, and Thomson Newspapers Company Limited were added as appellants on appeal. The Court of Appeal heard the appeal from Gotlib J.'s judgment on December 5, 1992, affirmed the lower court's decision to
grant the injunction against the broadcast but limited the scope of the injunction to Ontario and CBMT-TV in Montreal and reversed the order banning any publicity about the proposed broadcast and the very fact of the proceedings that gave rise to the publication ban.
II. Decisions Below
Ontario Court of Justice (General Division)
Gotlib J. made the following orders:
1.THIS COURT ORDERS that this matter be heard on short notice.
2.THIS COURT FURTHER ORDERS AND PROHIBITS any publication of the fact of this Application or any of the material relating to it, until the completion of the criminal trials of the four Applicants, but not extending to any appeals therefrom.
3.THIS COURT FURTHER ORDERS that the Respondent, Canadian Broadcasting Corporation, be and is hereby restrained from broadcasting the program "The Boys of St. Vincent" and from publishing in any media any information relating to the proposed broadcast of the program until the completion of the four criminal trials of the four applicants but not extending to any appeals therefrom.
4.THIS COURT FURTHER ORDERS that this Court file be sealed, until the completion of the four criminal trials of the four applicants but not extending to any appeals therefrom.
In deciding to restrain the broadcast of the mini-series until after the trials of the respondents, Gotlib J. stated:
I, too, have great faith in the jury system, as indicated in the cases, and by counsel before me. Juries are not stupid. They come, for the most part, from a variety of sophisticated backgrounds, and can understand and follow instructions from a judge. What we have here, however, is, in the particular charges against the four [respondents], a highly explosive and inflammatory
issue to be decided by, in effect, four separate juries in four separate courts.
There has already been wide-spread publicity, and I take judicial notice of the large amount of publicity. There has been a substantial amount of publicity involving the Mount Cashel charges, and other educational institutions operated by the Christian Brothers, both in Ontario, Newfoundland, and elsewhere. It may well be that in future trials (and I have no idea how, in the case before Justice Soublière, jury selection proceedings have been conducted) that potential jurors will have to be challenged for cause as to, first of all, their contact with publications already available, and secondly, if they have seen or read the material that pertains to other trials of a similar nature whether or not they feel that they can render an impartial verdict. I see, however, no need to add fuel to the fire, particularly in view of the imminent dates for trial of the three remaining accused persons. Those trials will be concluded, for the most part, by the fall of 1993.
She summarized her position in the following manner:
In all, I am satisfied that the harm that would be caused by the showing of this particular film before the jury trials of the three remaining accused persons would be such that the possibility of impartial jury selection virtually anywhere in Canada would be seriously compromised. For that reason, I grant an interim injunction restraining the Canadian Broadcasting Corporation from broadcasting the TV programme, "The Boys of St. Vincent", and from publishing further media information relating to the proposed broadcast until such time as the three remaining criminal trials are completed.
Court of Appeal for Ontario (1992), 12 O.R. (3d) 239
The Court of Appeal made the following orders:
1.THIS COURT ORDERS that the Judgment of Madam Justice Gotlib dated December 4, 1992 be varied and the same is varied as follows:
(a)Paragraphs 2 and 4 of the Judgment are hereby deleted and the Orders therein are set aside;
(b)Paragraph 3 of the Judgment shall read:
"THIS COURT FURTHER ORDERS that the Respondent, Canadian Broadcasting Corporation, be and hereby is restrained from broadcasting the program "The Boys of St. Vincent" to the Province of Ontario and by the television station CBMT-TV in Montreal until the completion of the four criminal trials of the four applicants but not extending to any appeals therefrom."
2.THIS COURT FURTHER ORDERS that in all other respects the appeals of the Appellants be and hereby are dismissed.
Dubin C.J.O. for the court noted that it was the common law courts that first recognized the importance of freedom of expression and the crucial role of the press in informing the public in a free and democratic society. It was also the common law courts that first recognized, as a fundamental legal right, the right of an accused to a fair trial and the right of public access to their proceedings. Dubin C.J.O. indicated, however, that where there was a conflict between the two values, the courts had persistently held that the right to a fair trial is paramount (Steiner v. Toronto Star Ltd., [1956] O.R. 14 (H.C.), and R. v. Begley (1982), 38 O.R. (2d) 549 (H.C.)). Since the two values have been given constitutional status with the enactment of the Canadian Charter of Rights and Freedoms, the courts have again struck a balance between the two values and have held that the right to a fair trial must be given priority over freedom of the press (Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455).
After referring to the unique circumstances of the case at bar, Dubin C.J.O. concluded at pp. 247-48 that:
The risk of denying the respondents a fair trial far outweighs any inconvenience which the appellant, Canadian Broadcasting Corporation, may suffer by not airing the film when it proposed to do so. No pressing need was shown why the film had to be aired before the conclusion of the four trials. The film will still be timely when it is shown at a later date and the interests of
justice dictate postponing its airing rather than running the risk attendant upon showing it at the time proposed.
In order to assure the four respondents a fair trial, the learned motions court judge had a broad discretion and I cannot say that she erred in the exercise of her discretion in directing that the airing of the film be postponed.
However, I think, with respect, that she erred in directing that the airing of the film be postponed throughout Canada and should have limited the postponement of the showing of the film to the Province of Ontario and the appellant's television station in Montreal, the signal of which reached L'Orignal.
I also think the motions court judge erred by prohibiting the publishing in any media of any information relating to the proposed broadcast of the program until the completion of the criminal trials of the four respondents, as well as banning publication of the fact of the proceedings before her.
III. Analysis
A. Introduction
This case turns in part on the issue of jurisdiction -- what court(s) have jurisdiction to hear a third party challenge to a publication ban order sought by the Crown and/or the defendant(s) in a criminal proceeding and made by a provincial or superior court judge under his or her common law or legislated discretionary authority? This case also turns in part on the issue of publication bans -- on what grounds should a publication ban be ordered by a judge under his or her discretionary authority and on what grounds should it be altered or set aside by a higher court?
I should note in passing that, for the sake of convenience, I use the expression "publication ban" throughout my reasons to denote a ban on publishing in print and/or broadcasting on television, film, or radio. I should also note that I will be discussing publication bans issued under common law or legislated discretionary authority and will
not be discussing publication bans required by common law or statute.
B. Jurisdiction
(1) General Principles
In cases involving publication bans issued in the context of criminal proceedings, the Crown and the accused have established avenues to follow when seeking or challenging a ban. These avenues are consistent with and informed by the common law principle against interlocutory appeals in criminal matters (see McIntyre J.'s reasons in Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959, and R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1774). To seek a ban under a judge's common law or legislated discretionary authority, the Crown and/or the accused should ask for a ban pursuant to that authority. This request should be made to the trial judge (if one has been appointed) or to a judge in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provisions such as ss. 468, 469, 553, 555, 798 of the Criminal Code, R.S.C., 1985, c. C-46, and s. 5 of the Young Offenders Act, R.S.C., 1985, c. Y-1). If the level of court has not been established and cannot be established definitively by reference to statutory provisions, then the request should be made to a superior court judge (i.e., it should be made to the highest court that could hear the case, in order to avoid later having a superior court judge bound by an order made by a provincial court judge). To seek or challenge a ban on appeal, the Crown and the accused should follow the regular avenues of appeal available to them through the Criminal Code (Parts XXI and XXVI).
It has been argued before this Court that third parties (specifically, the media) have a range of possible avenues open to them to appeal publication bans. These include: criminal procedures; s. 40 of the Supreme Court Act, R.S.C., 1985, c.
S-26; civil procedures; extraordinary remedies; and s. 24(1) of the Charter. I have considered each of these in turn and conclude that the extraordinary remedy of certiorari should be used for bans ordered by provincial court judges and that s. 40 of the Supreme Court Act should be used for bans ordered by superior court judges.
I should note at the outset that none of these avenues is absolutely satisfactory. I am forced to choose the least unsatisfactory of a set of unsatisfactory options. I offer the following overview of each of the possible avenues in an effort to convey to all the jurisdictional difficulties confronting the courts as well as the Bar and in the hope that my doing so will prompt Parliament to rectify this situation by enacting legislation that provides for a right of appeal for third parties (usually the media) seeking to challenge publication bans ordered by judges under their common law or legislated discretionary authority.
(i) Criminal Code
Section 674 of the Criminal Code provides that:
674. No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
Parts XXI and XXVI do not authorize any proceedings through which the media can challenge a ban. Therefore, there is no direct appeal available to the media through the Criminal Code.
(ii) Supreme Court Act
While on a literal reading, s. 674 of the Criminal Code could be taken as excluding any resort to s. 40 of the Supreme Court Act "in respect of indictable offences", such literal interpretation cannot be adopted, given the legislative history and purpose of these provisions.
What is now s. 674 was first enacted in 1892 to abolish the writ of error: Criminal Code, 1892, S.C. 1892, c. 29, s. 743. This was part of the transition from a system for review employing such procedures as the case reserved by the trial judge, the prerogative writs and the writ of error to the current approach of a statutorily mandated system of appeals. The purpose of s. 743 and its successors was to make clear that the new statutory appeals were a substitute for, not in addition to, the former procedure in error.
Section 40 of the Supreme Court Act has as its object the conferral upon the Supreme Court of Canada of comprehensive jurisdiction in federal and provincial laws. As Pigeon J. expressed it in Hill v. The Queen, [1977] 1 S.C.R. 827, at p. 850:
Section 41 [now s. 40] was enacted substantially in its present form at the time when appeals to the Privy Council were being abolished and this court was being made truly supreme. The Privy Council had enjoyed unlimited jurisdiction by special leave and it is apparent that the new provision was intended to effect the change from a limited specific jurisdiction to a broad general jurisdiction. To hold that the inconsistencies resulting from this sweeping change indicate the intention of leaving some wide gaps open is, in my view, entirely unwarranted. On the contrary, the enactment of a provision that undoubtedly confers some jurisdiction in criminal matters beyond that existing under the Criminal Code, clearly indicates Parliament's will to remedy the omission to extend the jurisdiction of this Court in criminal cases when the Privy Council's jurisdiction in such cases was effectively abolished after the Statute of Westminster.
This reasoning was cited with approval and relied upon by a majority of this Court in R. v. Gardiner, [1982] 2 S.C.R. 368. I note as well that in R. v. Barnes, [1991] 1 S.C.R. 449, in which a majority found that the Court did not have jurisdiction, such jurisdiction was excluded by s. 40(3) of the Supreme Court Act, not s. 674 of the Code.
Section 40 of the Supreme Court Act contains its own limiting provision in s. 40(3). That subsection
excludes the granting of leave under s. 40(1) from a judgment "acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence". However, s. 40(3) does not prevent this Court from granting leave under s. 40(1) to consider questions of criminal law not excluded by s. 40(3) such as those arising in the sentencing process as in Gardiner, supra, and those arising from the provisions in the Criminal Code authorizing the review of the parole eligibility date for those convicted of high treason and first or second degree murder as in R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384 (S.C.C.), and R. v. Swietlinski, [1994] 3 S.C.R. 481.
For these reasons, I find that s. 674 of the Criminal Code does not limit our jurisdiction to grant leave in cases such as this under s. 40(1) of the Supreme Court Act.
At first glance, s. 40(3) of the Supreme Court Act might also appear to preclude an appeal to this Court under s. 40 of the Supreme Court Act. Section 40(3) states that:
40. . . .
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
However, an appeal against an order issuing a publication ban is not an appeal from a judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence. Therefore, it is not precluded by s. 40(3).
Section 40(1) states that:
40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
A publication ban order can be seen as a final or other judgment of the highest court of final resort in a province or a judge thereof in which judgment can be had in the particular case. Therefore, the Supreme Court of Canada may grant leave to appeal under s. 40 of the Supreme Court Act.
The advantage of this avenue is that it uses established procedures and is not inconsistent with previous Supreme Court of Canada case law. This may be thought to be problematic on the grounds that it is expensive and time-consuming. However, a direct appeal to the Supreme Court of Canada can be faster than an appeal to most courts of appeal in the country. In addition, it is less expensive to come directly to the Supreme Court of Canada than it is to go through a court of appeal before getting to the Supreme Court of Canada. Concerns about cost and delay are, therefore, misplaced.
This avenue is problematic in so far as it provides for an appeal only by leave of the Supreme Court of Canada. It therefore does not provide optimal protection for important rights (e.g., freedom of expression). It also could result in an increased number of applications for leave coming before this Court and an increased number of cases
needing to be heard by this Court -- all cases involving individuals charged with indictable offences and publication bans made by superior court judges could potentially seek leave and, depending upon the length and breadth of the bans, a number of these applications could raise issues of national importance (significant publication bans arguably go beyond the interest of the immediate litigants to the interests of Canadians generally).
However, despite the difficulties, I find that this is the least unsatisfactory avenue and I therefore adopt it for third party challenges to publication ban orders made by superior court judges under their common law or legislated discretionary authority in the context of criminal proceedings.
Some concern was voiced that this appeal could lead to appeals brought directly to this Court by witnesses at criminal trials. There is no need for such concern. The problem for a witness most frequently arises out of a citation for contempt for refusal to testify. It is true that pursuant to s. 9 of the Criminal Code a judge may cite persons, including witnesses, for contempt of court. Yet s. 10 of the Code sets out the procedure for bringing a conviction for contempt before a court of appeal. This decision will not change or affect that statutory procedure and right of appeal.
(iii) Civil
Provincial Judicature Acts provide for appellate jurisdiction over civil matters. For example, according to s. 6 of the Ontario Courts of Justice Act:
6. -- (1) An appeal lies to the Court of Appeal from,
(a)an order of the Divisional Court, on a question that is not a question of fact alone, with leave as provided in the rules of court;
(b)a final order of a judge of the Ontario Court (General Division), except an order referred to in clause 19(1)(a) [certain claims involving not more than $25,000 exclusive of costs];
(c)a certificate of assessment of costs issued in a proceeding in the Court of Appeal, on an issue in respect of which an objection was served under the rules of court.
(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Ontario Court (General Division) if an appeal in the same proceeding lies to and is taken to the Court of Appeal.
(3) The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Ontario Court (General Division) to the Court of Appeal for the purpose of subsection (2).
If an application challenging an order banning publication is characterized as a criminal matter, then the Judicature Acts do not provide jurisdiction. If it is characterized as a civil matter, then it may be argued that these Acts do provide jurisdiction.
This avenue has the advantage that it uses established procedures. Furthermore, it has intuitive appeal to those who think that the object of an application by the media is a civil remedy which affects a civil right (the right of the media to free speech). Nevertheless, I reject this avenue.
First, it is important to keep in mind what La Forest J. said in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at p. 80:
The admixture of provincial civil procedure with criminal procedure could, I fear, result in an unpredictable mish-mash where, in applying federal procedural law, one would forever be looking over one's shoulder to see what procedure the provinces have adopted (and this may differ from province to province) to see if there was something there that one judge or another would
like to add if he or she found the federal law inadequate. And I see no reason in principle why appeals could not be read in for other interlocutory proceedings, or indeed why other provincial rules of procedure might not be adopted, as was attempted in Lafleur. That, barring federal adoption, is in my view constitutionally unacceptable. It is certainly impractical. In dealing with procedure, and particularly criminal procedure, it is important to know what one should do next. That is why, no doubt, Parliament adopted a comprehensive procedure under the Criminal Code....
Second, we are dealing here with media challenges to publication bans ordered by judges under their common law or legislated discretionary authority in response to a request for a ban made by the Crown and/or by individuals charged (or at risk of being charged) with criminal offences. Such challenges are criminal matters, not civil ones.
Third, Judicature Acts cannot be used to provide jurisdiction to review publication ban orders of provincial court judges because with limited exceptions, provincial court judges (in all provinces except Quebec) can only exercise criminal jurisdiction and so such orders made by them cannot be characterized as civil matters. Judicature Acts cannot be used to provide jurisdiction to review publication ban orders of superior court judges because it is not desirable to have a situation in which essentially the same order made for the same purposes affecting the same rights can be characterized as civil when it is made by a superior court judge but must be characterized as criminal when it is made by a provincial court judge.
(iv) Extraordinary Remedies
Provincial superior courts have jurisdiction to hear applications for the extraordinary remedy of
certiorari against provincial court judges for excesses of jurisdiction and for errors of law on the face of the record. As I will explain in Part C of these reasons, the common law rule governing the issuance of orders banning publication must be consistent with the principles of the Charter. Since the common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error of law on the face of the record. Therefore, if a publication ban order is made by a provincial court judge, the media can apply to the superior court for certiorari and argue that the ban is not authorized by the common law rule. If this is the case, the ban will then constitute an error of law on the face of the record. By virtue of s. 784(1) of the Criminal Code, an appeal lies to the Court of Appeal from a decision granting or refusing the relief sought in proceedings by way of certiorari.
This avenue uses established procedures and is not inconsistent with previous Supreme Court of Canada case law. In addition, the certiorari avenue provides for appeals (through s. 784(1) of the Criminal Code). It therefore avoids the undesirable situations of: (a) important rights being left without the protection of review and appeal; and (b) an increased number of leave applications being made to this Court and cases needing to be heard by this Court.
The most important problem with this avenue is that, at common law, certiorari does not lie against a decision of a superior court judge. In Kourtessis, supra, at p. 90, the possibility that certiorari might lie against a superior court judge was left open by some members of this Court. However, I am not willing to adopt an avenue that requires that one superior court judge review the decision of another superior court judge. Therefore, this avenue is available against a provincial court judge but not against a superior court judge. The following odd situation thus results: essentially the same order
made for the same purposes affecting the same rights (of the defendant, the Crown, and the media) will be subject to different avenues of review and appeal depending upon whether the order is made by a superior court judge or a provincial court judge.
Another problem with this avenue comes from the apparently limited remedial powers of certiorari. Traditionally, certiorari has been limited remedially. That is it could only be used to quash an order. Thus, if the media were seeking an additional or alternative remedy, the desired remedy would appear to be unavailable through certiorari.
However, it is open to this Court to enlarge the remedial powers of certiorari and I do so now for limited circumstances. Given that the common law rule authorizing publication bans must be consistent with Charter principles, I am of the view that the remedies available where a judge errs in applying this rule should be consistent with the remedial powers under the Charter. Therefore, the remedial powers of certiorari should be expanded to include the remedies that are available through s. 24(1) of the Charter. It should be emphatically noted that it is not necessary in this case for this Court to decide whether or not the Charter applies directly to court orders. I am simply saying that when a judge exceeds his authority under the common law rule governing publication bans, then the remedies available through a certiorari challenge to the judge's action should be the same as the remedies that would be available under the Charter.
Despite the difficulties with this avenue, I find that it is the least unsatisfactory avenue and I therefore adopt it for third party challenges to publication ban orders made by provincial court
judges under their discretionary authority in the context of criminal proceedings.
(v) Charter
Section 24(1) of the Charter provides that:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
I wrote about s. 24(1) in Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 196:
When a person can demonstrate that one of his Charter rights has been infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur.
However, in Mills, supra, at p. 971, La Forest J. wrote:
It should be obvious from the foregoing remarks that I am sympathetic to the view that Charter remedies should, in general, be accorded within the normal procedural context in which an issue arises. I do not believe s. 24 of the Charter requires the wholesale invention of a parallel system for the administration of Charter rights over and above the machinery already available for the administration of justice.
If a challenge to a publication ban could not be framed in terms of an error of law, then the certiorari and Supreme Court Act avenues might be unavailable and s. 24(1) might therefore be available. However, since a challenge to a publication ban ordered by a judge under his or her common law or legislated discretionary authority can be framed in terms of an error of law, the certiorari and Supreme Court Act avenues are available and therefore we need not here decide the issue of the application of the Charter, to publication bans
ordered by judges under their common law or legislated discretionary authority in particular, and to court orders in general.
(2) General Guidelines for Practice
(i) Preliminary Comments
I have three preliminary comments to make before proceeding with general guidelines for practice with regard to publication bans issued under a judge's common law or legislated discretionary authority.
First, in a jury trial, a motion for a publication ban must be heard in the absence of the jury. Consider, for example, a case in which the media propose to broadcast information that would be inadmissible as evidence in the normal course of the criminal trial. The accused will have to introduce this information into evidence in order to demonstrate the risk to a fair trial. And yet, if the risk is demonstrated and substantial, the jury should not hear this evidence. The accused must not be placed in the intolerable position of having to present the inadmissible information before the jury in an attempt to secure an impartial jury. Consider also, a case in which the media propose to broadcast information that would undercut a particular defence strategy. The accused will have to reveal his or her defence strategy in order to demonstrate the risk to a fair trial. And yet, it would be unfair to require the defence to reveal defence strategy prior to the closing of the Crown's case -- the accused must not be placed in the position of having to risk prejudice to one aspect of his or her right to a fair trial in order to protect another aspect of this right.
Second, the issue of giving notice to the media of motions for publication bans may appear to raise a number of practical problems. Which media are to be given notice, and how is such notice to be given? Do the media include all newspapers, television stations, and radio stations potentially affected by the ban? How is notice to be served?
Given that I have concluded that motions for publication bans made in the context of criminal proceedings are criminal in nature, the solution to these practical problems is to be found in the provincial rules of criminal procedure and the relevant case law. For example, Rule 6.04(1) of the Ontario Court of Justice Criminal Proceedings Rules, SI/92-99, states that:
6.04 (1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.
The judge hearing the application thus has the discretion to direct that third parties (e.g., the media) be given notice. Exactly who is to be given notice and how notice is to be given should remain in the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law.
Third, the issue of standing may also appear to raise problems. Which members of the media are to be given standing? Does standing include standing to do any or all of the following: cross-examine witnesses, call viva voce evidence, file affidavit evidence, and present oral and/or written arguments? Again, given that I have concluded that motions for publication bans made in the context of criminal proceedings are criminal in nature, the solution to these practical problems is to be found in the provincial rules of criminal procedure and the relevant case law. The judge hearing the application thus has the discretion to grant standing to interested third parties (e.g., the media) and this standing can include any or all of the activities listed above.
I now proceed with some general guidelines for practice for the Crown, the accused, the media, and the courts in turn.
(ii) For the Crown and the Accused
To get a publication ban issued under a judge's common law or legislated discretionary authority, the Crown and/or the accused should make a motion for a ban pursuant to that authority. This motion should be made before the trial judge (if one has been appointed) or before a judge in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provisions such as ss. 468, 469, 553, 555 and 798 of the Criminal Code and s. 5 of the Young Offenders Act). If the level of court has not been established and cannot be established definitively by reference to statutory provisions, then the motion should be made before a superior court judge (i.e., it should be made before the highest court that could hear the case, in order to avoid later having a superior court judge bound by an order made by a provincial court judge). To seek or challenge a ban on appeal, the Crown and the accused should follow the regular avenues of appeal available to them through the Criminal Code (Parts XXI and XXVI).
A complication arises, however, when the initial order is made by a judge other than the trial judge (i.e., in cases where a trial judge has not yet been appointed). In this situation, neither the accused nor the Crown could ordinarily attack the initial order, either at trial or through the regular routes of appeal, without running afoul of the "rule against collateral attack": Wilson v. The Queen, [1983] 2 S.C.R. 594, and Meltzer, supra. This rule states that a court order may not be attacked "in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (Wilson, supra, per McIntyre J., at p. 599). Since the specific object of the trial is not the reversal or variation of the initial publication ban, the rule against collateral attacks would, if strictly applied, prevent a reconsideration of the initial order by the trial judge and, by extension, a review of the order by the appellate courts under the normal routes of appeal (since the jurisdiction of the
appellate courts is restricted to errors of law made at trial).
In R. v. Litchfield, [1993] 4 S.C.R. 333, a majority of this Court noted that the rule against collateral attacks is "not intended to immunize court orders from review" (per Iacobucci J., at p. 349), and held that in situations where the purposes underlying the rule are not engaged, some flexibility in the rule's application should be recognized. Iacobucci J., writing for the majority, discussed the rationale for the rule in the following terms (at p. 349):
The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, "the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversed on appeal (R. v. Pastro [(1988), 42 C.C.C. (3d) 485], at p. 497).
He continued, however, by observing that the order in question in the case before him (a pre-trial division and severance order made by a judge other than the trial judge) would have been reviewable on appeal had it been made by the trial judge. He stated (at p. 350):
To permit an order to stand which is so erroneous that it results in a trial process that is fundamentally flawed would result in procedure governing substance; a result that cannot be accepted.
Although Litchfield involved orders of a different nature than the publication bans under consideration here, I am of the view that it is similarly appropriate to recognize some flexibility in the rule against collateral attacks when what is at issue is a publication ban.
This problem does not, of course, arise in the case at bar, so it is unnecessary to consider the matter further at this time. I have mentioned it here simply to highlight the fact that none of the avenues of appeal currently available is entirely satisfactory. As I noted earlier, until Parliament acts to rectify the situation by enacting appropriate legislation I am forced to choose the least unsatisfactory of a number of unsatisfactory alternatives.
(iii) For the Media
If the media wish to oppose a motion for a ban brought in provincial court, they should attend at the hearing on the motion, argue to be given status, and if given status, participate in the motion. To challenge a ban once ordered, the media should make an application for certiorari to a superior court judge. To challenge a denial of certiorari, the media should appeal the superior court judge's decision to the Court of Appeal under s. 784(1) of the Criminal Code. To challenge a dismissal of an appeal to the Court of Appeal, the media should make an application for leave to appeal to the Supreme Court of Canada under s. 40 of the Supreme Court Act.
If the media wish to oppose a motion for a ban brought in a provincial superior court, then they should attend at the hearing on the motion, argue to be given status, and, if given status, participate in the motion. To challenge a ban once ordered, the media should make an application for leave to appeal to the Supreme Court of Canada under s. 40 of the Supreme Court Act.
(iv) For the Court
Upon a motion for a ban under the common law rule, the court should give standing to the media who seek standing (according to the rules of criminal procedure and the established common law principles) and follow the general guidelines for practice set out in Part C of these reasons.
(3) Application of Principles and Practice to the Case at Bar
(i) The Facts
All of the cases were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) before a judge and jury. All of the accused were pre-tried with no prospect of resolution. Dagenais was in week five of his trial. The jury was to be charged three days following the motion for the ban. Monette already had his trial judge named (Cusson J.). His trial was to run from February 1 to February 26, 1993. Radford's trial was to run from April 5 to May 4, 1993. Dugas' trial was to begin some time between May 31 and July 2, 1993.
(ii) The Application of the Law to these Facts
Dagenais should have gone to his trial judge. If the ban had been refused, he would have had no right of appeal beyond his normal right to appeal if convicted at the end of the trial.
Monette should also have gone to his trial judge. If the ban had been refused, he would have had no right of appeal beyond his normal right to appeal if convicted at the end of the trial.
Radford and Dugas, however, were correct to go to a provincial superior court judge. If the ban had been refused, they would have had no right of appeal beyond their normal right to appeal if convicted at the end of the trials.
When the publication ban order was given, the CBC should have sought leave to appeal from the Supreme Court of Canada under s. 40 of the Supreme Court Act.
(iii) Conclusions about Jurisdiction
Gotlib J. did not have jurisdiction to hear the motions from Dagenais or Monette, but she did
have jurisdiction to hear the motions from Radford and Dugas. The Court of Appeal did not have jurisdiction to hear from the CBC This Court had jurisdiction to grant leave to appeal the Court of Appeal decision and to draw these conclusions on the issue of jurisdiction.
The Supreme Court of Canada had jurisdiction under s. 40 of the Supreme Court Act to grant leave to appeal Gotlib J.'s order. However, the CBC did not seek leave to appeal Gotlib J.'s order. It would therefore appear at first glance that the Supreme Court of Canada does not have jurisdiction to rule on the order itself. However, I have decided to grant leave to appeal Gotlib J.'s order under s. 40 proprio motu, nunc pro tunc, ex post facto (of its own motion, now as of the previous date, for something done after). I do this because I believe that it would be unfair to penalize the CBC for not following the correct procedure where the correct procedure was not known until we decided this case. I also do this because the issue of publication bans is of national importance, the case was fully argued before us, and no one is prejudiced by the granting of leave.
It is important to note once more that the current situation is deplorable. Fundamental rights are at stake, but no truly satisfactory avenue of appeal has been established by statute. I hope that Parliament will soon consider filling this jurisdictional lacuna and establishing statutory rights of appeal for third parties such as the media.
C. Publication Bans
(1) The Analytical Approach
Challenges to publication bans may be framed in several different ways, depending on the nature of the objection to the ban. If legislation requires a judge to order a publication ban, then any objection to that ban should be framed as a Charter challenge to the legislation itself. Similarly, if a common law rule requires a judge to order a publication ban or authorizes a judge to order a
publication ban that infringes Charter rights in a manner not reasonable and demonstrably justified in a free and democratic society, then any objection to that ban should be framed as a Charter challenge to the common law rule.
In the case at bar, we are dealing with a common law rule which provides judges with the discretion to order a publication ban in certain circumstances. Discretion cannot be open-ended. It cannot be exercised arbitrarily. More to the point, as I stated in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, in the context of legislative conferrals of discretion:
As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1.
I would extend this reasoning, and hold that a common law rule conferring discretion cannot confer the power to infringe the Charter. Discretion must be exercised within the boundaries set by the principles of the Charter; exceeding these boundaries results in a reversible error of law. In this case, then, we are dealing with an error of law challenge to a publication ban imposed under a common law discretionary rule.
The common law rule governing publication bans has been traditionally understood as requiring those seeking a ban to demonstrate that there is a real and substantial risk of interference with the right to a fair trial. This rule accorded some protection to freedom of expression, in so far as it prevented publication bans from being imposed for no
reason, or in response to merely speculative concerns. The question that must be addressed, however, is whether the rule provides sufficient protection for freedom of expression in the context of post- Charter Canadian society. As Iacobucci J., speaking for the Court, stated in R. v. Salituro, [1991] 3 S.C.R. 654, at p. 675:
Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values . . . then the rule ought to be changed.
Like the right of an accused to a fair trial, a fundamental principle of our justice system which is now expressly protected by s. 11(d) of the Charter, freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society, as demonstrated by its enshrinement as a constitutionally protected right in s. 2(b) of the Charter. Section 2(b) guarantees the rights of all Canadians to "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". The importance of the s. 2(b) freedoms has been recognized by this Court on numerous occasions (see, for example, RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Keegstra, [1990] 3 S.C.R. 697; and R. v. Zundel, [1992] 2 S.C.R. 731).
As I said, for the Court, in Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 129:
Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom.
Similarly, in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, Cory J. remarked (at pp. 1336-37):
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.
. . .
. . . The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy.
In Zundel, supra, at p. 752, McLachlin J. distilled the commentary and case law on the subject of freedom of expression, and declared that the interests protected by s. 2(b) are "truth, political or social participation, and self-fulfilment".
The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favoured the rights protected by s. 11(d) over those protected by s. 2(b). A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.
It is open to this Court to "develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution": Dolphin Delivery, supra, at p. 603 (per McIntyre J.). I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows:
A publication ban should only be ordered when:
(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.
If the ban fails to meet this standard (which clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter), then, in making the order, the judge committed an error of law and the challenge to the order on this basis should be successful.
(2) The Application of the Analytical Approach to the Case at Bar
To assess the validity of the order in the case at bar, it is necessary to consider the objective of the order, to examine the availability of reasonable alternative measures that could achieve this objective, and to consider whether the salutary effects of the publication ban outweigh the deleterious impact the ban has on freedom of expression. If the publication ban in question cannot be justified under the common law rule set out above, then, in
making her order, Gotlib J. committed an error of law.
The objective of the ban ordered in the case at bar was the diminution of the risk that the trial of the four accused persons might be rendered unfair by adverse pre-trial publicity. This objective reflects the interest that the accused persons shared with both the public and the courts in ensuring both that a trial be held and that it be fair. The interest that Dagenais, Monette, Radford and Dugas have in receiving a fair trial is of such importance that it has been entrenched as a constitutional right, in both ss. 7 and 11(d) of the Charter. In addition to the accused's interest in the fairness of their trial, the public had an interest in their being acquitted or convicted through trials that were fair and that had the appearance of fairness: R. v. Généreux, [1992] 1 S.C.R. 259, at p. 283. Similarly, the courts had an interest in ensuring that justice was done, and an interest in safeguarding the repute of the administration of justice by ensuring that justice was seen to be done.
In most cases where publication bans are sought, including the case at bar, attention is focused on a particular potential source of trial unfairness -- the possibility that adverse pre-trial publicity might make it difficult or impossible to find an impartial jury. In Généreux, supra, in the context of a discussion of s. 11(d), I noted (at pp. 282-83):
[One of s. 11(d)'s objectives is] to ensure that a person is tried by a tribunal that is not biased in any way and is in a position to render a decision which is based solely on the merits of the case before it, according to law. The decision-maker should not be influenced by the parties to a case or by outside forces except to the extent that he or she is persuaded by submissions and arguments pertaining to the legal issues in dispute.
It must be noted, however, that while the Charter provides safeguards both against actual instances of bias and against situations that give rise to a serious risk of a jury's impartiality being tainted, it does not require that all conceivable steps be taken to remove even the most speculative risks. As I noted in R. v. Lippé, [1991] 2 S.C.R. 114, at p.
142, "the Constitution does not always guarantee the `ideal'". This must be borne in mind when the objective of a publication ban imposed under the common law rule is specified, since one of the primary purposes of the common law rule is the protection of the constitutional rights of the accused. As the rule itself states, the objective of a publication ban authorized under the rule is to prevent real and substantial risks of trial unfairness -- publication bans are not available as protection against remote and speculative dangers.
It is also important to note the extent to which a publication ban trenches upon the rights of individuals to freedom of expression. In the case of the publication ban at issue here, the specific freedom of expression interests engaged by the ban included: the film director's interest in expressing himself; the CBC's interest in broadcasting the film; the public's interest in viewing the film; and society's interest in having the important issue of child abuse presented to the public. All of these interests were limited by the publication ban ordered in the case at bar.
In my view, the publication ban in the case at bar was clearly directed towards preventing a real and substantial risk to the fairness of the trial of the four accused. What must next be considered in order to determine whether the ban was supportable under the common law rule was whether a publication ban was necessary on the facts of this case. This requires a consideration of whether reasonable alternative measures were available that would have guarded against the risk of the trial being unfair without circumscribing the expressive rights of third parties. As I will explain, I do not consider it necessary in the case at bar to consider the question of whether the salutary effects of the publication ban outweighed the deleterious impact the ban had on freedom of expression, because I find that there were, in fact, reasonable alternative measures available.
The publication ban in the case at bar would have passed the first stage of analysis under the
common law rule if: (1) the ban was as narrowly circumscribed as possible (while still serving the objectives); and (2) there were no other effective means available to achieve the objectives. However, the initial ban in the case at bar was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, there were other effective means available to achieve the objectives. The publication ban ordered by Gotlib J. has, in fact, expired, making it unnecessary to discuss in great detail the particular alternative measures that were available in the case at bar. Possibilities that readily come to mind, however, include adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury. Sequestration and judicial direction were available for the Dagenais jury. Apart from sequestration, all of the other effective alternatives to bans were available for the other three accused. For this reason, the publication ban imposed in the case at bar cannot be supported under the common law. As a result, in purporting to order the ban under her common law discretionary authority, Gotlib J. committed an error of law.
(3) Some General Comments About Publication Bans
Before concluding, I would like to make some general comments about publication bans issued under the common law rule. First, I believe that it is important to recognize that publication bans should not always be seen as a clash between two titans -- freedom of expression for the media versus the right to a fair trial for the accused. Second, I have some concerns about the efficacy of some publication bans. Useful discussions of some of the issues that I raise in this section can be found in A. M. Linden, "Limitations on Media Coverage of Legal Proceedings: A Critique and Some Proposals for Reform", in P. Anisman and A. M. Linden, eds., The Media, the Courts and the Charter (1986), 301; M. D. Lepofsky, Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (1985); and the Law Reform
Commission of Canada, Working Paper 56, Public and Media Access to the Criminal Process (1987).
(i) Rejecting the Clash Model
There are at least three reasons for rejecting the clash model. First, it is more suited to American than to Canadian jurisprudence, since the American Constitution has no equivalent of s. 1 of our Charter, which, as I discussed earlier, is also a source of the fundamental principles informing the development of the common law in Canada.
Second, it is not the case that freedom of expression and the accused's right to a fair trial are always in conflict. Sometimes publicity serves important interests in the fair trial process. For example, in the context of publication bans connected to criminal proceedings, these interests include the accused's interest in public scrutiny of the court process, and all of the participants in the court process.
Third, the analysis of publication bans should be much richer than the clash model suggests. Rather than simply focusing on the fact that bans always limit freedom of expression and usually aim to protect the right to a fair trial of the accused, it should be recognized that ordering bans may:
- limit freedom of expression (and thus undercut the purposes of s. 2(b) discussed above);
- prevent the jury from being influenced by information other than that presented in evidence during the trial (for example, information presented in a tabloid television show and evidence discussed in the absence of the jury and held to be inadmissible);
- maximize the chances that witnesses will testify because they will not be fearful of the consequences of publicity;
- protect vulnerable witnesses (for example, child witnesses, police informants, and victims of sexual offences);
- preserve the privacy of individuals involved in the criminal process (for example, the accused and his or her family as well as the victims and the witnesses and their families);
- maximize the chances of rehabilitation for "young offenders";
- encourage the reporting of sexual offences;
- save the financial and/or emotional costs to the state, the accused, the victims, and witnesses of the alternatives to publication bans (for example, delaying trials, changing venues, and challenging jurors for cause); and
- protect national security.
It should also be recognized that not ordering bans may:
- maximize the chances of individuals with relevant information hearing about a case and coming forward with new information;
- prevent perjury by placing witnesses under public scrutiny;
- prevent state and/or court wrongdoing by placing the criminal justice process under public scrutiny;
- reduce crime through the public expression of disapproval for crime; and
- promote the public discussion of important issues.
These are intended to be illustrative rather than comprehensive lists of reasons for and against bans. They are simply intended to illustrate the breadth of issues that deserve a place but are not often found in the analysis of the justification of
particular publication bans. These concerns have a place in each step of the analysis required under the common law rule outlined above -- they are relevant to the initial consideration of whether a ban is necessary to safeguard the fairness of a trial, to the question of whether reasonable alternatives are available, and to the issue of the balance struck between the salutary and deleterious effects of a publication ban.
(ii) The Efficacy of Some Publication Bans
There are several reasons to be concerned about the efficacy of some publication bans (i.e., bans aimed at preventing the jury from being influenced by information gathered outside the criminal proceedings).
To begin, I doubt that jurors are always adversely influenced by publications. There is no data available on this issue. However, common sense dictates that in some cases jurors may be adversely affected. Assuming this, I nevertheless believe that jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of the criminal proceedings. As Lord Taylor C.J. wrote in Ex parte Telegraph Plc., [1993] 2 All E.R. 971 (C.A.), at p. 978:
In determining whether publication of matter would cause a substantial risk of prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them.
This Court has also made some strong statements about the reliability of juries. In R. v. Corbett, [1988] 1 S.C.R. 670, Dickson C.J. wrote (at pp. 692-93):
The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often
long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. . . .
It is of course, entirely possible to construct an argument disputing the theory of trial by jury. Juries are capable of egregious mistakes and they may at times seem to be ill-adapted to the exigencies of an increasingly complicated and refined criminal law. But until the paradigm is altered by Parliament, the Court should not be heard to call into question the capacity of juries to do the job assigned to them. The ramifications of any such statement could be enormous. Moreover, the fundamental right to a jury trial has recently been underscored by s. 11(f) of the Charter. If that right is so important, it is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge. [Emphasis in original.]
Corbett was about the issue of whether evidence of prior convictions could be presented to the jury given that such evidence has both proper and improper uses. The case at bar is, in part, about the issue of whether juries are irremediably adversely influenced by publications. However, the difference of issue is irrelevant here. What matters is that this Court has strongly endorsed the ability of a jury to follow the explicit instructions of a judge. This endorsement surely applies as much to the instruction to ignore all information not presented in the course of the criminal proceedings as it applies to the instruction to use evidence of prior convictions for one purpose and not another. I am comforted in my extension of Corbett to the case at bar by R. v. Vermette, [1988] 1 S.C.R. 985, at pp. 993-94, in which La Forest J. wrote in the context of the impact of publicity that "[t]his Court has recently had occasion to underline the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider; see R. v. Corbett".
These observations are particularly apt in a case, such as this, in which the publication ban relates to identifiable and finite sources of pre-trial publicity.
More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial. In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.
It should also be noted that recent technological advances have brought with them considerable difficulties for those who seek to enforce bans. The efficacy of bans has been reduced by the growth of interprovincial and international television and radio broadcasts available through cable television, satellite dishes, and shortwave radios. It has also been reduced by the advent of information exchanges available through computer networks. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing.
These concerns about the efficacy of some publication bans fit into the analytical approach under the common law rule outlined previously at several stages, since it is necessary to consider how efficacious a publication ban will be before deciding whether a ban is necessary, whether alternative measures would be equally successful at controlling the risk of trial unfairness, and whether the salutary effects of the ban are outweighed by its negative impact on freedom of expression.
If any adverse influence of a publication on jurors can be remedied by means short of banning the publication, then it might well be argued that there is no rational connection between the publication ban and the objective of preventing the jury from being adversely influenced by information other than that presented in evidence during the trial. In such a case, it could not be asserted that a
ban was necessary to protect the fairness of the trial. I should note, however, that although it is possible that a publication ban will have a total absence of influence on the fairness of the trial, such cases will be rare. As a result, one will generally have to go further and consider the availability of reasonable alternative measures when assessing whether, in a given case, a publication ban was necessary.
If the actual beneficial effects of publication bans are limited, then it might well be argued in some cases that the negative impact the ban has on freedom of expression outweighs its useful effects. The analysis that is required at this stage of the application of the common law rule is very similar to the third part of the second branch of the analysis required under s. 1 of the Charter, as set out by this Court in R. v. Oakes, [1986] 1 S.C.R. 103. As Dickson C.J. stated in Oakes (at p. 140), "[e]ven if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve". In many instances, the imposition of a measure will result in the full, or nearly full, realization of the legislative objective. In these situations, the third step of the proportionality test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective. At other times, however, the measure at issue, while rationally connected to an important objective, will result in only the partial achievement of this object. In such cases, I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms. A legislative objective may be pressing and substantial, the means chosen may be rationally connected to that objective, and less rights-impairing alternatives may not be available.
Nonetheless, even if the importance of the objective itself (when viewed in the abstract) outweighs the deleterious effects on protected rights, it is still possible that the actual salutary effects of the legislation will not be sufficient to justify these negative effects.
While the third step of the Oakes proportionality test has often been expressed in terms of the proportionality of the objective to the deleterious effects, this Court has recognized that in appropriate cases it is necessary to measure the actual salutary effects of impugned legislation against its deleterious effects, rather than merely considering the proportionality of the objective itself. For example, in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, Dickson C.J. (who characterized the objective of the impugned Criminal Code solicitation provisions as the curtailment of the social nuisance caused by the public display of the sale of sex) applied the third step of the proportionality analysis by considering (at p. 1139) whether "the obtrusiveness linked to the enforcement of the provision, when weighed against the resulting decrease in the social nuisance associated with street solicitation, can be justified in accordance with s. 1" (emphasis added). In the same case, I noted that a factor to be considered in the third part of the second branch of the Oakes analysis was the fact that Parliament had taken steps to ensure that the effectiveness of the provision in question would be reviewed three years after its enactment.
Similarly, in R. v. Hess, [1990] 2 S.C.R. 906, Wilson J. (writing for a majority of the Court) was of the view that while the imposition of absolute liability for the offence of having sexual intercourse with a female person under the age of 14 (in what was then s. 146(1) of the Criminal Code, R.S.C. 1970, c. C-34) was rationally connected to the pressing and substantial objective of protecting young girls from premature sexual intercourse, the measure nonetheless failed both the second and
third parts of the second branch of Oakes, since "[t]he potential benefits flowing from the retention of absolute liability are far too speculative to be able to justify a provision that envisages the possibility of life imprisonment for one who is mentally innocent" (p. 926).
In my view, characterizing the third part of the second branch of the Oakes test as being concerned solely with the balance between the objective and the deleterious effects of a measure rests on too narrow a conception of proportionality. I believe that even if an objective is of sufficient importance, the first two elements of the proportionality test are satisfied, and the deleterious effects are proportional to the objectives, it is still possible that, because of a lack of proportionality between the deleterious effects and the salutary effects, a measure will not be reasonable and demonstrably justified in a free and democratic society. I would, therefore, rephrase the third part of the Oakes test as follows: there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.
A similar view of proportionality must inform the common law rule governing publication bans (this is, of course, apparent from the way I have expressed the second part of the rule). This suggests that when a ban has a serious deleterious effect on freedom of expression and has few salutary effects on the fairness of a trial, the ban will not be authorized at common law.
It is also important to recognize, however, that the objective usually underlying such bans -- the diminution of the risk that a trial might be tainted by unfairness -- is directly related to the accused's constitutionally protected right to a fair trial. Although, as I noted earlier (at pp. 881-83), it is incorrect to oversimplify the relationship between the right to a fair trial and the right to freedom of
expression by blindly applying the "clash of rights" model, there are times when the rights of the accused will be in direct conflict with the expressive rights of the media. In such cases, I believe it is necessary to apply the common law proportionality analysis in a manner that reflects the fact that two fundamental rights are in jeopardy. That is, it is essential in these circumstances to recognize that the pressing and substantial objective at issue is itself a fundamental right, and that, as such, it is a matter of exceptional importance. This will be of particular significance when considering whether there are reasonable alternative measures available, and when assessing the balance between the salutary and deleterious effects of the ban. When examining alternative measures, it will be important to carefully consider both rights at issue, so as to ensure that any alternative measures that impair free expression to a lesser degree than a publication ban also reasonably protect the right to a fair trial. Similarly, when considering the proportionality of the impact of the ban on free expression to its salutary effects on the fairness of the trial it will be necessary to bear in mind the fundamental importance of trial fairness, both to the accused and to society.
(4) General Guidelines
In order to provide guidance for future cases, I suggest the following general guidelines for practice with respect to the application of the common law rule for publication bans:
(a) At the motion for the ban, the judge should give the media standing (if sought) according to the rules of criminal procedure and the established common law principles with regard to standing.
(b)The judge should, where possible, review the publication at issue.
(c) The party seeking to justify the limitation of a right (in the case of a publication ban, the party seeking to limit freedom of expression) bears the burden of justifying the limitation. The
party claiming under the common law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial is seeking to use the power of the state to achieve this objective. A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society. Therefore, the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited (in scope, time, content, etc.) as possible, and there is a proportionality between the salutary and deleterious effects of the ban. At the same time, the fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied.
(d) The judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available.
(e) The judge must consider all possible ways to limit the ban and must limit the ban as much as possible; and
(f) The judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.
IV. Disposition
On the jurisdictional issue, I find that Gotlib J. had jurisdiction to hear a motion from Radford and Dugas. The Court of Appeal did not have jurisdiction to hear an appeal from this order. The Supreme Court of Canada has jurisdiction under s. 40 of the Supreme Court Act to hear both the appeal of the Court of Appeal decision and an appeal from the order of Gotlib J.
On the publication ban issue, I find that the Court of Appeal erred in hearing the appeal. Accordingly, I set aside the order of the Court of Appeal. I also find that the terms of the ban ordered by Gotlib J. cannot be justified by the common law rule governing the issuance of publication bans. She thereby committed an error of law. Accordingly, I set aside her order.
The appeal is allowed.
The following are the reasons delivered by
LA FOREST J. (dissenting) -- Like Justice L'Heureux-Dubé, I respectfully do not agree that there is a direct appeal to this Court under s. 40 of the Supreme Court Act, R.S.C., 1985, c. S-26, from Gotlib J.'s decision. On the basis of the reasoning in support of such an appeal, I fear applications for leave from any number of interlocutory rulings in criminal proceedings could be made to this Court. This is not to say that the appellants have no remedy. Apart from declaratory actions (which may be the most appropriate remedy here), a remedy might well be available by virtue of s. 24(1) of the Canadian Charter of Rights and Freedoms even against a decision of a superior court judge; see R. v. Rahey, [1987] 1 S.C.R. 588. Since a decision made under that provision is not otherwise open to appeal, it is a final order within the meaning of s. 40 of the Supreme Court Act, and so open to appeal, with leave, to this Court (see my reasons in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53). This specific point did not arise in Mills v. The Queen, [1986] 1 S.C.R. 863; indeed I there specifically referred to the possibility that an appeal might lie to this Court (p. 978).
I should say that I do not think Gotlib J.'s decision is immune from Charter scrutiny by reason of the fact that it is a court order. This case is distinguishable from RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. The order here, unlike
Dolphin Delivery, is one exercised pursuant to a discretionary power directed at a governmental purpose, i.e., ensuring a fair trial. It is not the invocation of the law by a private individual. It is a by-product, in this case having effect outside the criminal process, of the institution by the Crown of criminal proceedings. The fact that the rule under which it was made was judicially created does not matter. The making of such laws emanates from the role historically assigned to the Queen's judges. They were exercising powers flowing from the sovereign as the fountain of justice. The Charter applies to common law as well as to statutes. The effect of the order here was the infringement of the appellants' Charter right to freedom of expression to serve a governmental purpose and is in consequence subject to Charter scrutiny. I find Justice McLachlin's comments on this issue particularly helpful.
I do not think any other appeal route is open to the appellants. In particular, the proposal advanced by McLachlin J. that s. 24(1) of the Charter can itself be used to create a right of appeal is, in my view, inconsistent with the policy thrust in Mills. As well, I agree with the Chief Justice that civil appeal procedures are unavailable and that certiorari would not lie under the circumstances of this case. The situation in Kourtessis where I contemplated the extension of certiorari to cover the situation there was entirely different from the one arising here; see my reasons in that case, at pp. 90-92.
I should say, however, that I am concerned with the Chief Justice's obiter remarks concerning certiorari. I think what is called for is a discretionary form of review, so as to avoid undue interference with the trial process. Unless the discretion to issue certiorari as the Chief Justice would expand it is exercised in a restrained manner, it, along with the appeals from it, might delay or otherwise seriously interfere with criminal proceedings. Should this
expansion of certiorari jurisdiction be permitted, discretion to exercise it should be restrained in the manner I have indicated in Kourtessis, at p. 92. It might, in fact, be as well to simply leave the appellants the right to apply to a superior court judge for a remedy under s. 24(1) of the Charter. That remedy is itself discretionary. As I see it, it is akin to a court's discretionary power to grant a declaration and should be exercised with similar restraints; see the discussion of the nature of the discretion to be exercised in relation to declaratory actions in Kourtessis, at pp. 86-87.
I reiterate the Chief Justice's hope that Parliament will provide for an appeal from publication bans to the provincial courts of appeal, though I think an appeal with leave would be better suited to the task. It will be evident from what I have earlier said that I share the concerns of L'Heureux-Dubé J. about the dangers of delay and interference with the trial process that could result from uncontrolled access to judicial review or appeal of interlocutory orders in criminal proceedings.
Given my view on jurisdiction, I would not ordinarily say anything about the merits. In light of the disposition of this case by the Court, however, I will make the following comments. I am in agreement with the Chief Justice that the common law rule did not give sufficient protection to freedom of expression. I am also in substantial agreement with the list of factors he gives that should be considered by a judge in determining whether a ban should issue. I would, however, add another factor that should be weighed in determining whether a ban should issue -- the extent to which a ban could disrupt the trial, particularly by creating the risk that the trial would not take place within a reasonable time.
I would dismiss the appeal.
The following are the reasons delivered by
L'HEUREUX-DUBÉ J. (dissenting) -- This case and the companion case of R. v. S. (T.), [1994] 3 S.C.R. 952, in which judgment is handed down contemporaneously with this one, concern third party challenges to publication bans issued during criminal proceedings. Both cases raise similar procedural and substantive issues.
In the case before us, the appellants are challenging an interlocutory publication ban issued by Gotlib J. of the Ontario Court (General Division) and upheld with several modifications by the Ontario Court of Appeal. The impugned publication ban prevented the Canadian Broadcasting Corporation ("CBC") from broadcasting a four-hour mini-series entitled The Boys of St. Vincent until after the completion of the criminal trials of the respondents, Dagenais, Monette, Dugas and Radford.
This appeal raises two principal issues, the first procedural and the second substantive. The procedural issue concerns whether or not this Court has the jurisdiction to hear this appeal. This requires a determination of whether third parties, such as the CBC, have the right to appeal interlocutory court orders, such as publication bans, arising out of criminal proceedings. The substantive issue concerns the merits of the appellants' challenge of the impugned publication ban on the grounds that it infringes s. 2(b) of the Canadian Charter of Rights and Freedoms. Furthermore, both issues require this Court to consider whether or not the Charter applies to court orders.
Before proceeding with an analysis of these issues, it is important to note that the jurisdictional question raised in this case and in the companion case of R. v. S. (T.) has broad implications. While on a narrow reading it deals only with the question of whether or not third parties can appeal publication bans issued in the criminal context, in effect it has broad implications with respect to third party appeals from all interlocutory criminal orders. If
the media can appeal a publication ban issued in the criminal context then every third party, including witnesses, experts, members of the public who are expelled from the courts, lawyers, etc., will be able to appeal any interlocutory order issued in the criminal context which they believe infringes their Charter rights. Such a broad interlocutory right of appeal will result in significant delay to the trial process, will adversely impact upon the accused's Charter right to be tried within a reasonable time and will adversely affect the administration of justice. While both the Chief Justice and McLachlin J. argue that these negative consequences may not arise, I do not find their arguments convincing.
First, McLachlin J. argues that delays in the trial process will not necessarily result from allowing third parties to appeal interlocutory court orders issued in the criminal context. However, this is inconsistent with her argument that a third party must have access to a "full and effective remedy" which includes "recourse to an appellate tribunal" where that third party alleges an infringement of its Charter rights. In many, if not most cases, a third party appeal from an interlocutory criminal order will only be "effective" if the related criminal proceedings are delayed until the resolution of the appeal. Accordingly, the negative consequences described above seem inevitable.
Similarly, I do not find convincing the Chief Justice's suggestion that there is no need to be concerned that allowing third parties to appeal publication bans issued in the criminal context will open the door to a large number of witnesses appealing interlocutory criminal orders. The Chief Justice states (at p. 862):
The problem for a witness most frequently arises out of a citation for contempt for refusal to
testify. . . . [Section] 10 of the Code sets out the procedure for bringing a conviction for contempt before a court of appeal. This decision will not change or affect that statutory procedure and right of appeal.
While it is true that witnesses currently have a statutory right of appeal where they are cited for contempt of court, I must emphasize that this right of appeal is only available to the small proportion of witnesses who are actually cited for contempt. If the appellants are permitted to appeal the impugned publication ban in the case at hand, however, a broad third party interlocutory right of appeal, available to all witnesses, will result. This will enable all witnesses, whether or not they are cited for contempt of court, to appeal interlocutory criminal orders which they believe infringe their Charter rights.
Accordingly, despite the comments of both the Chief Justice and McLachlin J. to the contrary, I believe that permitting the appellants to appeal the impugned publication ban in the case at hand will enable a large number of third parties to appeal interlocutory criminal orders they would otherwise be unable to appeal, and will therefore have a significant adverse impact on an accused's right to be tried within a reasonable time and on the proper administration of justice.
With this broader context in mind, I turn to the case currently before us. I have had the opportunity to read the reasons of my colleagues. Unlike the Chief Justice, Gonthier and McLachlin JJ., I do not believe that this Court has the necessary jurisdiction to hear this appeal. In light of this, it is not strictly necessary for me to consider the substantive issue. However, had I found that this Court had jurisdiction to hear this appeal, I would have agreed with Gonthier J., and disagreed with the Chief Justice, McLachlin and La Forest JJ., on the substantive issue. Accordingly, my reasons will focus on the jurisdictional question.
I. Jurisdiction
In concluding that the appellants have a right to appeal in the case at hand, the Chief Justice and McLachlin J. appear to rely on the axiom "where there is a right, there is a remedy". While this axiom may not be absolute, I agree that when a person alleges a wrong, be it a constitutional wrong, a civil wrong or a criminal wrong, she is entitled in our free and democratic society to submit her case to a forum in order to try to obtain redress. This is the basis upon which our judicial system is premised. The fact that a person has standing and is permitted to appear and be heard before a court of law or any other judicial forum, as was the case here, is the first step in the process of providing a remedy for an alleged wrong. The second step is the rendering of a decision by a court of law or other judicial forum. Together, these two steps constitute a remedy. Whether the decision is affirmative or negative does not alter the fact that there was access to a remedy.
In the present case, had the CBC been successful before Gotlib J. in avoiding a publication ban, the CBC would have had their remedy. The fact that they were not successful does not alter the fact that they had access to a remedy. Thus, the axiom "where there is a right, there is a remedy" is satisfied. There was a remedy available: the CBC had standing, was heard, and a decision was reached to issue a publication ban despite their arguments to the contrary. Consequently, the jurisdictional question raised by this appeal is not whether the CBC should have access to a remedy, but whether the CBC should have a right to appeal a decision with which they are not satisfied.
In approaching this question, it is important to note that it is distinct and independent from the substantive question concerning freedom of expression and publication bans. While I will find that this Court does not have jurisdiction to hear this appeal, this determination should not be
understood as calling into question the fundamental importance of freedom of expression. Freedom of expression is, in my view, a fundamental right. Recognition of this fact in Canadian law predates the Charter. In Reference re Alberta Statutes, [1938] S.C.R. 100, Duff C.J. recognized (at p. 133) that:
. . . it is axiomatic that the practice of this right of free public discussion of public affairs . . . is the breath of life for parliamentary institutions.
Furthermore, in Boucher v. The King, [1951] S.C.R. 265, Rand J. also emphasized (at p. 288) that:
Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life.
In Switzman v. Elbling, [1957] S.C.R. 285, at p. 306, Rand J. described freedom of political expression as "little less vital to man's mind and spirit than breathing is to his physical existence".
Since the proclamation of the Charter, freedom of expression has obtained explicit constitutional protection and the courts have reiterated the fundamental importance of this right. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, Cory J. stated (at p. 1336) that it would be "difficult to imagine a guaranteed right more important to a democratic society than freedom of expression". As well, in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, I wrote at p. 174:
Freedom of expression, like freedom of religion, serves to anchor the very essence of our democratic political and societal structure.
Nonetheless, these and other affirmations of the fundamental importance of freedom of expression do not change the fact that the jurisdictional issue raised by this case concerns the right of appeal, not the right to freedom of expression. The right to freedom of expression is protected by access to an initial remedy. I cannot accept McLachlin J.'s
suggestion that a "full and effective remedy" for an infringement of freedom of expression "must include recourse to an appellate tribunal". Access to a remedy and the right to appeal the refusal of a remedy are entirely different issues.
In our free and democratic society, a right of appeal is not available in every situation. (See, for example, Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Meltzer, [1989] 1 S.C.R. 1764; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; and Kourtessis v. M.N.R., [1993] 2 S.C.R. 53.) As Sopinka and Gelowitz noted in The Conduct of an Appeal (1993), at p. vii:
Counsel contemplating an appeal must first ensure that he or she has a right of appeal. This right is purely statutory and each appellate court is governed by the applicable statutes and rules with their own jurisdictional criteria, time limits and appeal routes.
Furthermore, even where a right of appeal is available, it is frequently subject to a requirement of leave to appeal. As a result, the term "right" of appeal is somewhat misleading in that it is not a "right" in the same sense as those provided in the Charter. Instead, it is a right which is created by a simple act of the legislature and which can be just as easily eliminated by such an act. La Forest J., with whom I concurred, held as follows in Kourtessis, supra, at pp. 69-70:
Appeals are solely creatures of statute; see R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must be some way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature. [Emphasis added.]
As an exception to the principle that a right of appeal must be created by statute, it was recently suggested that a limited common law jurisdictional
appeal may be available (see M. Jamal and H. P. Glenn, "Selective Legality: The Common Law Jurisdictional Appeal" (1994), 73 Can. Bar Rev. 142). However, the jurisdiction of the Ontario Court (General Division) to issue the impugned publication ban is not attacked in the present case. Thus, if there is a right of appeal in the present case, it can only be provided by statute. Neither the Criminal Code, R.S.C., 1985, c. C-46, the Supreme Court Act, R.S.C., 1985, c. S-26, nor any other applicable statute provides for such a right of appeal. Furthermore, the Charter does not confer appellate jurisdiction. Consequently, I conclude that there is no jurisdiction in our Court, nor was there in the Court of Appeal, to entertain this appeal.
Although this is the general basis for my opinion on the jurisdictional question, I will discuss the particulars in more detail in the following order:
1.The Criminal Code does not provide this Court with jurisdiction to hear this appeal;
2.The Supreme Court Act does not provide this Court with jurisdiction to hear this appeal;
3.Section 24(1) of the Charter does not confer appellate jurisdiction; and
4.The Charter does not apply to court orders.
I will not discuss certiorari, the rules of which are well known and are clearly not applicable in this case, as the Chief Justice himself has noted.
1. The Criminal Code
As I have already mentioned, it is well established that a right of appeal exists only if specifically provided by statute. Given the fact that the appeal at issue arises out of criminal proceedings, the logical first place to look for a statutory right of appeal is the Criminal Code. No such right of appeal is provided therein. Furthermore, s. 674 of the Criminal Code states:
674. No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
I agree with the Chief Justice when he says (at p. 864) that:
. . . we are dealing here with media challenges to publication bans ordered by judges under their common law or legislated discretionary authority in response to a request for a ban made by the Crown and/or by individuals charged (or at risk of being charged) with criminal offences. Such challenges are criminal matters, not civil ones. [Emphasis added.]
In my view, this appeal therefore qualifies as a proceeding in respect of an indictable offence. Similarly, I note that Bayda C.J.S., writing for the Saskatchewan Court of Appeal in the companion case of R. v. S. (T.), held that:
No one, including the C.B.C., questioned that this appeal was "in proceedings in respect of indictable offences" within the meaning of s. 674.
((1993), 109 Sask. R. 96, at p. 103.)
Accordingly, pursuant to s. 674 of the Criminal Code, the appellants are only entitled to challenge the impugned publication ban by way of appeal if such a right is established in the Criminal Code, which, as I have already noted, it is not. However, the Chief Justice argues that s. 674 of the Criminal Code does not limit the broad jurisdiction conferred upon this Court by s. 40(1) of the Supreme Court Act. Furthermore, he asserts that s. 40(1) of the Supreme Court Act provides this Court with the necessary jurisdiction to hear this appeal. I turn now to this argument.
2. Section 40(1) of the Supreme Court Act
Despite the express wording of s. 674 of the Criminal Code, the Chief Justice suggests that s. 40(1) of the Supreme Court Act provides this Court with jurisdiction to hear this appeal. As he does in
R. v. Laba, [1994] 3 S.C.R. 965, the Chief Justice argues at p. 860 that:
. . . s. 674 of the Criminal Code does not limit our jurisdiction to grant leave in cases such as this under s. 40(1) of the Supreme Court Act.
In support of this proposition, he relies on cases such as R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384 (S.C.C.); R. v. Gardiner, [1982] 2 S.C.R. 368; Hill v. The Queen, [1977] 1 S.C.R. 827; and R. v. Barnes, [1991] 1 S.C.R. 449. However, as I noted in Laba, supra, at p. 992:
. . . while these cases all appear to implicitly hold that s. 40(1) of the Supreme Court Act is not limited by s. 674 of the Criminal Code, none of these cases explicitly refer, in this respect, to s. 674 of the Criminal Code or to its interaction with s. 40(1) of the Supreme Court Act. [Emphasis added.]
Nonetheless, even assuming that s. 674 of the Criminal Code does not restrict the scope of s. 40(1) of the Supreme Court Act, this does not mean that s. 40(1) of the Supreme Court Act is unlimited in scope. For example, although s. 40(1) of the Supreme Court Act has been held to provide this Court with jurisdiction to entertain interlocutory appeals in civil matters (Bar of the Province of Quebec v. Ste-Marie, [1977] 2 S.C.R. 414), it has not been so interpreted with respect to interlocutory criminal appeals. In fact, Mills, supra, and Meltzer, supra, clearly establish that "there should be no interlocutory appeals in criminal matters". At page 959 of Mills, supra, McIntyre J. stated:
The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1) of the Charter may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code (s. 602 [now s. 674], supra) prohibiting procedures on appeal beyond those authorized in the Code. It will be observed that interlocutory appeals are not authorized in the Code. [Emphasis added.]
Discussing the availability of interlocutory criminal appeals, Sopinka and Gelowitz, supra, at p. 78, state that:
It would appear to be settled law that there are no appeals in interlocutory criminal proceedings, as there is no statutory basis for such appeals. . . .
This position was not altered by the proclamation of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has held in Mills v. R., and R. v. Meltzer, that the Charter does not create new rights of appeal. Any Charter ground sought to be appealed must, accordingly, be taken pursuant to existing rights of appeal as established in the Code.
Consequently, to the extent that this appeal is from an interlocutory order, permitting it to proceed, as the Chief Justice does, by virtue of s. 40(1) of the Supreme Court Act is inconsistent with the jurisprudence of this Court.
This brings me to the issue of whether or not this appeal can be fairly characterized as interlocutory in nature. I begin by noting that the impugned publication ban is clearly an interlocutory order from the point of view of the accused. However, from the point of view of the appellants, this order is, for all intents and purposes, final. In fact, any court order made in a criminal context which affects a third party, including any order directed at witnesses, could likely be characterized as "final" from the point of view of the affected third party. Accordingly, the argument can be made that a third party appeal against such an order would not be precluded by the principle against interlocutory criminal appeals and could therefore proceed by virtue of s. 40(1) of the Supreme Court Act. This argument, in my view, cannot succeed.
The focus in criminal proceedings is on the accused and on the determination of guilt or innocence. While a publication ban or any other order affecting a third party issued during a criminal proceeding may be final with respect to that third party, it is interlocutory with respect to the accused. Since the focus in criminal proceedings
must remain on the accused, to the extent that the order is interlocutory from the accused's point of view it should not be subject to a third party appeal unless the right to such an appeal is specifically provided by statute.
To hold otherwise would be to ignore the policy behind the principle against interlocutory criminal appeals. Specifically, as I noted in Laba, supra, such appeals are not permitted because of the likelihood that they would fragment the criminal trial process and cause potentially lengthy delays: R. v. Morgentaler, Smoling and Scott (1984), 41 C.R. (3d) 262 (Ont. C.A.), at pp. 273-74, and R. v. Cranston (1983), 60 N.S.R. (2d) 269 (C.A.). These policy reasons are applicable whether the appellant is a party to the criminal proceedings or a third party. In fact, in light of the right of the accused, guaranteed by s. 11(b) of the Charter, to be tried within a reasonable time, these policy concerns are particularly applicable where the appellant is a third party. It is of particular importance that third parties not be permitted to cause an accused's trial to be unreasonably delayed. Furthermore, even if the trial continued while the third party appeal proceeded, as it did in this case, but which will often not be the case, there remains the problem of requiring an accused to defend two cases at the same time, given that the accused will likely have a legitimate interest in both proceedings. This may unduly complicate the accused's criminal defense and should therefore be avoided wherever possible. Finally, I note that if third party interlocutory criminal appeals were permitted, this would result in a strange and unacceptable situation where third parties would benefit from greater appellate rights in criminal proceedings than would the accused whose very liberty hinges on the outcome of the proceedings.
In light of all the above, I conclude that the principle against interlocutory criminal appeals is equally applicable to the accused, the Crown and third parties. Only if a right of appeal is explicitly established by statute should an appeal against an
interlocutory court order arising out of criminal proceedings be permitted to proceed.
Turning now to s. 40(1) of the Supreme Court Act, I note that, while it was intended to confer broad appellate jurisdiction on this Court, it was not, in my opinion, intended to override the principle against interlocutory criminal appeals. For such a sweeping interpretation to be given to s. 40(1) of the Supreme Court Act requires, in my opinion, that Parliament use the clearest of language. Section 40(1) of the Supreme Court Act does not meet this test. Consequently, just as it has not been interpreted to provide parties to criminal proceedings with an interlocutory right of appeal, it should not be so interpreted with respect to third parties. Accordingly, I find that s. 40(1) of the Supreme Court Act does not provide this Court with jurisdiction to hear this appeal. I leave open, however, the question of whether it provides this Court with jurisdiction to hear a third party appeal from a court order in a criminal context where the order in question is "final" with respect to both the parties to the criminal proceeding and the affected third party.
3. Section 24(1) of the Charter
A final possible source of jurisdiction for this appeal was raised in the companion case of R. v. S. (T.). The appellant in that case suggested that s. 24(1) of the Charter provides third parties with a right to appeal publication bans issued in the criminal context. This suggestion appears to have been accepted by McLachlin J. in her reasons in this case. Specifically, McLachlin J. implies that the Charter imposes minimal procedural requirements which include "recourse to an appellate tribunal" where a third party is challenging a publication ban on Charter grounds. I disagree.
In my view, it is well settled that the Charter does not and cannot provide the appellants with a
right of appeal. In Mills, supra, McIntyre J. stated at pp. 956-57:
As has been said on many occasions, the Charter was not enacted in a vacuum. It was created to form a part -- a very important part -- of the Canadian legal system and, accordingly, must fit into that system. It will be noted at once that s. 24(1) gives no jurisdictional or procedural guide. This absence makes it clear that the procedures presently followed must be adapted and used for the accommodation of applications for relief under s. 24(1). [Emphasis added.]
Later, at p. 958, he repeated:
Again, it must be observed that the Charter is silent on the question of appeals and the conclusion must therefore be that the existing appeal structure must be employed in the resolution of s. 24(1) claims. [Emphasis added.]
As I stated at the outset, appeal rights are statutory. In the absence of a statutory right of appeal, this Court has no jurisdiction to hear this appeal. The appellants cannot rely on s. 24(1) of the Charter to create appellate jurisdiction. While, as I observed earlier, it has been said on many occasions that for every right there should be a remedy (see, for example, Mills, supra, at pp. 971-72 (per La Forest J.) and at p. 958 (per McIntyre J.); and Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 196 (per Lamer J.)), this does not mean that s. 24(1) can confer appellate jurisdiction where the appellants, as here, had access to a remedy and are unsatisfied with the result. Were this a case where the appellants had no access whatsoever to an initial remedy then s. 24(1) might confer jurisdiction to provide an initial remedy, such as giving the appellants standing to raise the issue. However this is not such a case.
Finally, I find it important to emphasize, once more, that this case concerns an appeal from an interlocutory criminal order. The ability of s. 24(1) to confer appellate jurisdiction with respect to interlocutory criminal appeals was conclusively
determined in Mills, supra, and Meltzer, supra. In this respect, I adopt the following comments of Bayda C.J.S. of the Saskatchewan Court of Appeal from his reasons (at p. 104) in the companion case of R. v. S. (T.):
. . . if the present appeal is properly characterized as in respect of an interlocutory ruling by a trial court judge in the course of a criminal proceeding, then the decisions by the Supreme Court of Canada in R. v. Mills, [1986] 1 S.C.R. 863, R. v. Meltzer, [1989] 1 S.C.R. 1764 and Kourtessis make it clear that the Charter component does not vest a court of appeal with any special power to hear an appeal and the right of appeal is governed by the same principles as those which apply to an appeal from any ordinary interlocutory ruling. Those same cases confirm that there is no appeal from an interlocutory ruling made in a criminal proceeding. [Emphasis added.]
Therefore, for all the reasons outlined above, I conclude that s. 24(1) does not provide this Court with jurisdiction to hear this appeal.
4. The Applicability of the Charter to Court Orders
McLachlin J. argues in her reasons, apparently with the support of La Forest J., that the Charter applies to the impugned publication ban. In my view it does not.
The principle that court orders per se are not subject to the Charter was first established in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. Dolphin Delivery concerned an appeal against an injunction which prevented certain secondary picketing on the grounds that it abridged the Charter guarantee of freedom of expression. Factually, it was quite similar to the case at hand in that it involved a private party (a union) challenging a court order on the ground that it was inconsistent with s. 2(b) of the Charter. McIntyre J., writing for the majority, stated at pp. 600-601:
While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. . . . To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation. All cases must end, if carried to completion, with an enforcement order and if the Charter precludes the making of the order, where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter. In my view, this approach will not provide the answer to the question. A more direct and more precisely-defined connection between the element of government action and the claim advanced must be present before the Charter applies. [Emphasis added.]
I considered this Court's decision in Dolphin Delivery, supra, in Young v. Young, [1993] 4 S.C.R. 3, and noted (at pp. 90-91) that:
. . . Dolphin Delivery . . . articulated the principle which established the threshold for judicial review under the Charter: the Charter applies to the legislative, executive and administrative branches of government but does not apply to judicial orders made in the resolution of private disputes.
The rule in Dolphin Delivery, however, does not fully insulate a judge from the Charter in all circumstances and does not apply to certain adjudicators. Thus, in R. v. Rahey, [1987] 1 S.C.R. 588, this Court concluded that a trial judge's conduct in according 19 adjournments and taking 11 months to reach a decision on an application for a directed verdict contravened the Charter and specifically the accused's right to be tried within a reasonable time. Furthermore, in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, an order to prevent picketing in front of the court, issued by the court on its own motion, originating in the inherent power of the courts to control their process, and issued without notice to the affected party, was reviewed on Charter grounds and found not to violate the Charter.
Finally, in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, this Court found that an order of an adjudicator pursuant to the Canada Labour Code was subject to Charter review, since such an adjudicator, unlike a judge, is a creature of statute who is appointed pursuant to a legislative provision and derives all of his or her powers from statute. These three cases clearly demonstrate that Dolphin Delivery does not fully insulate a judge or an adjudicator from the Charter. Specifically, these cases demonstrate that the Charter applies to certain judicial conduct, to the exercise by the courts of their inherent right to control their process, and to adjudicators under the Canada Labour Code. However, this is by no means inconsistent with the holding in Dolphin Delivery that court orders per se are not subject to the Charter. While some judicial activity may be subject to the Charter, a court order per se is not. In light of the above, I conclude that in the case at hand the impugned publication ban is not subject to the Charter.
Having said this, I believe it is important to review some of the policy justifications for the general principle that the Charter does not apply to court orders per se. First, as McIntyre J. notes, if court orders were subject to the Charter then all private litigation could become subject to the Charter. This is
clearly inconsistent with s. 32 of the Charter which says that the Charter applies only to the "Parliament and government of Canada" and the "legislature and government of each province". Furthermore, if the Charter applied to court orders then, at least theoretically, individuals adversely affected by a court order could seek a remedy, be it damages or otherwise, pursuant to s. 24(1) of the Charter, against the judge who originally issued the impugned court order. Such a result is, in my view, unacceptable. Finally, applying the Charter to court orders could result in endless loops of litigation where even final orders of the Supreme Court of Canada, the
highest court in the land and the court of final appeal, could be challenged at first instance on Charter grounds. This would be a strange and unjustifiable situation which could paralyse our judicial system by removing the certainty from supposedly final judgments. The Charter could not have been intended to produce such a result. For all of these reasons, and in light of the decision of this Court in Dolphin Delivery, supra, and my reasons in Young, supra, I conclude that the Charter does not apply to court orders per se.
This does not mean, however, that the Charter does not apply to the common law, or for that matter to the Civil Code, the Criminal Code or other statutory laws, which govern the issuance of court orders. For example, as I noted at p. 92 of Young, supra:
. . . Charter values nonetheless remain an important consideration in judicial decision-making. Courts must strive to uphold Charter values, and preference should be given to such values in the interpretation of legislation over those which run contrary to them (Slaight Communications, supra; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 558; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554).
Similarly, in Dolphin Delivery, supra, McIntyre J. held that the courts were under an obligation to "apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution" (p. 603).
Furthermore, in R. v. Salituro, [1991] 3 S.C.R. 654, Iacobucci J., speaking for the Court, stated (at p. 675) that:
Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it
consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed.
Finally, it is important to recall that s. 52(1) of the Constitution Act, 1982 provides that:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [Emphasis added.]
All laws of Canada, including the common law, are therefore subject to the Charter. This is particularly important with respect to the second issue raised in this appeal, the substantive merits of the appellants' challenge of the impugned publication ban on the ground that it contravenes the Charter. While the publication ban is not subject to the Charter, the common law governing its issuance is subject to Charter scrutiny.
5. Summary
For all of the reasons outlined above, I conclude that this Court has no jurisdiction to hear this appeal. I realize that this may leave some with a sense of unease. Bayda C.J.S. of the Saskatchewan Court of Appeal noted (at p. 107) in the companion case of R. v. S. (T.) that:
The nature of the C.B.C.'s complaint and its legal inability to have the propriety of the ruling it received respecting that complaint immediately tested on appeal, leaves one with a sense of unease. Given the structure of our appellate law, it is Parliament, and Parliament alone, that is empowered to relieve that unease by providing some form of immediate appellate review. . . .
I agree with Bayda C.J.S. that it is Parliament, not the courts, which must develop appellate procedures for third parties challenging interlocutory orders such as publication bans which arise out of criminal proceedings. In Schachter v. Canada, [1992] 2 S.C.R. 679, this Court discussed the appropriate boundary between the judiciary and the Parliament with respect to the fashioning of
remedies when legislation violates the Charter. In Watkins v. Olafson, [1989] 2 S.C.R. 750, this Court outlined when it was appropriate for the judiciary to modify common law rules. The policy considerations discussed in both these cases also apply here and clearly support the conclusion that it is Parliament, not the Court, which should develop third party interlocutory criminal appellate procedures. However, were it to be our responsibility to develop such procedures, I would lean against providing third parties with the right to appeal interlocutory criminal orders. As I have already noted, there are strong policy reasons against permitting interlocutory criminal appeals. It is imperative that criminal trials proceed within a reasonable time and not be delayed and fragmented by numerous interlocutory appeals. If the CBC were allowed to appeal the publication ban ordered in this case, then witnesses, experts and others would also be able to appeal court orders requiring them to testify or provide documentary evidence at criminal trials. This would result in unreasonable delays and would compromise the accused's s. 11( b) rights under the Charter. On the other hand, if the trial continued while the third party appeal proceeded, as it did in this case, then the accused would be required to defend two proceedings at the same time. This may complicate the accused's criminal defense and should be avoided wherever possible. Consequently, were it up to this Court to develop third party interlocutory criminal appellate procedures, which it is not, I would hold that no such procedures should be created. While third parties must have access to a remedy where they allege a Charter violation, they need not have access to an appeal.
In conclusion, I would resolve the jurisdictional question by holding that this Court has no jurisdiction to hear this appeal. For the sake of clarity, and
to prevent future litigation, I would also note, as my colleague the Chief Justice did, that the Ontario Court of Appeal did not have jurisdiction to hear this appeal.
Finally, I turn briefly to the jurisdiction of Gotlib J. to issue the publication ban in question. I agree with the Chief Justice that wherever possible a motion for a publication ban should be made before the appointed trial judge. Accordingly, since a trial judge had already been appointed for the respondents Dagenais and Monette, they should have applied to their appointed trial judge and not to Gotlib J. for a publication ban with respect to The Boys of St. Vincent. Therefore, I agree with the Chief Justice when he concludes that "Gotlib J. did not have jurisdiction to hear the motions from Dagenais or Monette" (p. 873).
II. Substantive Merits of the Challenge to the Publication Ban
In light of my conclusions on the jurisdictional issue, it is not strictly necessary for me to consider the substantive merits of the appeal. However, seeing as many of my colleagues have held that we do have jurisdiction to hear this appeal, I feel it necessary to address this issue as well. Specifically, had I found that we had jurisdiction to hear this appeal, I would have agreed fully with the reasons of my colleague Gonthier J. and would have disposed of the appeal as he does.
In my view, the substantive issue raised by this appeal requires this Court to perform two analytical steps. The first is to apply the Charter to the common law governing the issuance of publication bans in the criminal context. As I noted earlier, the common law is subject to Charter scrutiny and must be consistent with Charter values. The second step is to ensure that the judge ordering the impugned publication ban did not make a reviewable error in exercising her discretion and applying the common law of publication bans to the case at hand. While it is true that appellate courts should
not in general interfere with a trial judge's exercise of discretion, an appellate court can interfere where that discretion has not been exercised judicially and judiciously. Specifically, an appellate court can overturn a discretionary decision of a trial judge where it is made, inter alia, on wrong principles, a misapprehension of significant facts or in a non-judicial manner.
With respect to both of the two analytical steps outlined above, I agree fully with the reasons of my colleague Gonthier J. In my view, the common law rule governing the issuance of publication bans in the criminal context is consistent with the Charter and Gotlib J. did not commit any reviewable errors in exercising her discretion and applying the common law rule to the facts of this case and determining that a publication ban was necessary.
In this respect, I find it necessary to stress my disagreement with the Chief Justice when he states in his reasons that the common law rule governing publication bans, in criminal matters, does not accord sufficient protection to freedom of expression "in the context of post-Charter Canadian society" (p. 875). Specifically, the Chief Justice argues (at p. 877) that:
The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d).
I cannot agree. The common law rule is based on a recognition and appreciation of both the right to freedom of expression and the right to a fair trial. In balancing these two rights, the common law provides that where there is a real and substantial risk of interference with the right to a fair trial a publication ban can be ordered. Effectively, the common law provides that where freedom of expression and the right to a fair trial cannot both be simultaneously and fully respected, it is appropriate in our free and democratic society to temporarily curtail freedom of expression so as to guarantee an accused a fair trial. While this common law balancing of fundamental rights was developed in the pre-Charter era, the proclamation of the Charter does not render it invalid. After all, the pre-Charter balancing was an expression of the very rights protected by the Charter. In this respect, I agree fully with Gonthier J.'s statement (at pp. 928-929) that:
It might be suggested that my references to the common law tradition are irrelevant in the age of the Charter. In my view, however, the Charter does not oblige departing from this tradition in any substantive respect. . . . The impact of the Charter will be minimal in areas where the common law is an expression of, rather than a derogation from, fundamental values.
For the reasons outlined above and those canvassed by Gonthier J. in his judgment, had I found that this Court has jurisdiction to hear this appeal, which I do not, I would have disposed of this case as does my colleague Gonthier J.
III. Conclusion
Canada, as a free and democratic society, has always strived to respect the fundamental rights of its citizens including the right of freedom of expression. The Charter has constitutionalized such basic rights. As well, as part of our democratic tradition, judges have always had the discretion to order in camera hearings or issue full or partial publication bans related to judicial proceedings, be it under the criminal, civil or common law. When issued during the course of a criminal trial, such publication bans were not, even to this
day, ever subject to appeal either by the Crown, the accused or a third party. The rule against interlocutory criminal appeals insured that no such appeals were permitted. The rationale for this rule is obvious: (i) interlocutory appeals could delay trials indefinitely or, at least substantially; (ii) such delays could result in denying an accused the right to be tried within a reasonable time; and (iii) such delays could considerably impede the administration of justice and open floodgates for those intent on obstructing justice. Avoiding these negative consequences is as important today as it was hundreds of years ago. The Charter has not altered the need to avoid undue delay to the trial process just as it has not guaranteed every citizen of this country a right of appeal on any matter alleged to have infringed a Charter right. Parliament could, of course, legislate to provide for such a right of appeal. However, it has not chosen to do so. This is true even though the Charter has now been in force for some 12 years. It is not up to this Court, or any other court for that matter, to reverse a rule which has existed for hundreds of years in this free and democratic Canadian society without any disastrous effect or even complaint. Such a radical change in the way our criminal law has operated for hundreds of years must be made by Parliament. Parliament is the appropriate body to consider the implications of any changes to criminal appellate procedures and to decide on the appropriate measures to implement them. Therefore, until such time as Parliament provides for a third party right of appeal from interlocutory criminal orders, third parties, including the CBC, cannot appeal from such orders.
IV. Disposition
For the reasons expressed above, I would dismiss the appeal for lack of jurisdiction. However, had I found that we had jurisdiction to hear this
appeal, I would have disposed of it as my colleague Gonthier J. does.
The following are the reasons delivered by
GONTHIER J. (dissenting) -- I have had the benefit of the reasons of my colleagues.
On the issue of jurisdiction, I agree that the Canadian Charter of Rights and Freedoms must inform and govern the determination of the rights of the accused in criminal matters. This remains so where third parties are affected, in which case their Charter rights must be considered. I agree that Gotlib J., a superior court judge, was a court of competent jurisdiction to issue a publication ban in the cases of Radford and Dugas but not in the cases of Dagenais and Monette who could only apply to their appointed trial judge. In doing so, she was bound to apply the Charter and her decision constituted the implementation of a Charter remedy under s. 24(1). The issue of a right of review or appeal of this decision bearing on its correctness and conformity with the Charter rights of the persons affected thereby is a distinct and different one. Our Court has identified courts of competent jurisdiction within the meaning of s. 24(1) by reference to the general law governing the jurisdiction of each court as well as rights of review and appeal therefrom. As McIntyre J. stated in Mills v. The Queen, [1986] 1 S.C.R. 863, s. 24(1) by referring to a "court of competent jurisdiction" does not create courts of competent jurisdiction, but merely vests additional powers in courts which are already found to be competent independently of the Charter. Further, s. 24(1) does not of itself create a right of review or appeal from a decision of a court of competent jurisdiction where such a right is already provided by law. I find it unnecessary in this case to pronounce as to rights of appeal or review under s. 24(1) in other circumstances and I refrain from doing so. In this case, I share the views expressed by the Chief Justice as to rights of review by way of certiorari of publication ban orders by provincial court judges pursuant to the Charter and rights of appeal pursuant to s. 40 of the Supreme Court Act, R.S.C., 1985, c. S-26. As regards provincial court judges, Charter remedies
are within the superintending and reforming power of superior courts and certiorari as outlined by the Chief Justice is an appropriate instrument for the exercise of that power with reference to publication ban orders but, being discretionary, should be exercised with restraint so as to avoid undue interference with the trial process.
In the result, I am in agreement with the Chief Justice that the appeal should be allowed in respect of the publication ban that applied to the proceedings before Gotlib J. and in respect of her order to seal the record. I also agree that Gotlib J. had no jurisdiction to issue a ban on the application of the respondents Dagenais and Monette. With all due respect, however, I cannot agree that Gotlib J. erred in banning the broadcast of the mini-series until the end of the pending trials of the two respondents, Dugas and Radford. I do, however, share the opinion expressed by the Ontario Court of Appeal (1992), 12 O.R. (3d) 239 that the ban should have been limited to broadcasting in the province of Ontario and to CBMT-TV in Montreal.
The central substantive issues in this case are now moot. My concern in writing therefore is in regard to the general principles governing broadcast/publication bans and their application. I generally support many of the Chief Justice's statements of principle and general considerations. I respectfully differ, however, with some of these and with his treatment of the facts of this case as well as the application of principle thereto. I do not agree with his statement as to the balance between fair trial and freedom of expression rights under the common law nor that the Charter has changed this balance. My purpose in writing is to make clear that the discretion to order publication bans in exceptional cases such as the one now before the Court
continues to exist and deal further with the basis upon which that discretion should be exercised.
I begin by stressing a number of points pertaining to the balancing of the fundamental rights at issue in this case and to appellate review of a trial judge's discretion to order a broadcast ban with particular emphasis on the criterion of real and substantial risk to the fairness of a trial and its application to the assessment of the effectiveness of alternatives to a publication ban. After having reviewed these basic principles, I turn to the ban issued in this case.
1. The Balancing of Fundamental Rights in the Context of the Discretion
to Issue Broadcast Bans
Determining whether to issue a broadcast ban in order to protect the fairness of a trial requires the court to balance two fundamental values which have received equal protection under the Charter. Refusing to issue a ban may put at risk the fairness of the criminal trial. Acceding to such a request, on the other hand, is a clear restraint of freedom of expression. The starting point of any analysis of broadcast or publication bans must be these two values.
One of the crucial elements of a fair trial is the right to be tried solely on the evidence before the court and not on any information received outside that context. Section 11(d) of the Charter guarantees the right of any person charged with an offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The fairness of a trial, however, is also of general public interest. The fairness and integrity of the criminal process is a cornerstone of the legal system. In protecting the fairness of the trial, both under the Charter and at common law, courts have frequently recognized that the potential for prejudice relates not only to the accused, but to society in general.
Freedom of expression, as this Court has reiterated on numerous occasions, is essential to truth, democracy and personal fulfilment. Freedom of expression and freedom of the press are also crucial to the public nature of the administration of justice and the potential for scrutiny that comes with such openness. The importance of freedom of expression and freedom of the press, however, should not censure debate as to their limitation. Though I agree with the Chief Justice that any limitation on these freedoms or on the public nature of the administration of justice will be highly exceptional, restrictions will occasionally be necessary and acceptable in a free and democratic society.
At common law, the exceptional nature of publication bans has been assured by requiring that those seeking a ban demonstrate a real and substantial risk of interference with the right to a fair trial. Some courts have formulated the test in terms of impossibility, but in my view the focus is one of risk and not certainty. There is an inevitable element of speculation in such an analysis. What is not history, and often even history, is necessarily speculation. The United States Supreme Court has focused on the speculative nature of prior restraints as one of the reasons for treating them with extreme caution (see Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)). I agree that a court faced with an application for a publication ban must review the factual record and not substitute imagination for careful analysis. Nevertheless, the tradition in this country and in the United Kingdom has been to accept the propriety of bans even though it cannot be said with certainty that the fairness of a trial will be denied (see R. v. Keegstra (No. 2) (1992), 127 A.R. 232 (C.A.), and Re Global Communications Ltd. and Attorney-General for Canada (1984), 10 C.C.C. (3d) 97 (Ont. C.A.); see also the general discussion of precedent in Attorney-General v. Times Newspapers Ltd., [1974] A.C. 273 (H.L.), though the case dealt primarily with a publication ban to protect the authority of the judiciary (as I will explain later in these reasons, the decision of the European Court of Human Rights did not affect the general approach taken by British courts or the relevance of the
precedents discussed in that decision)). I will return to the differences between the American and Anglo-Canadian traditions below, but to reiterate, all that is needed in this country to justify a publication ban at common law is that there be a real and substantial risk to the fairness of the trial.
The application of the Charter to the evaluation of publication and broadcast bans, while not directly altering the common law test, will restructure the analysis to some extent. In terms of Charter review, determining the correct balance between fair trial and freedom of expression rights falls to the s. 1 analysis. The existence of two equally fundamental rights in potential conflict informs this analysis.
An initial question which arises in proceeding with any form of s. 1 balancing is who bears the burden of justifying an infringement. Each party bears an initial burden of showing a Charter infringement. After that initial burden is discharged, however, the balancing of competing Charter rights is incompatible with a burden on either party. Burdens are simply means of allocating uncertainty. It is appropriate in a normal s. 1 analysis to place the burden on the government because it is required to justify legislation or action which infringes a single Charter right. Burdens are completely inappropriate where a prima facie case has been made out that the alternative courses of action (i.e., to issue a ban or not) will infringe two different Charter rights. In this context, the balancing which is at the heart of the s. 1 analysis should be carried on without privileging or disadvantaging either of the rights at issue.
Turning to the actual s. 1 analysis, it would seem that the validity of imposing a ban will be determined almost exclusively at the second and third branches of the proportionality part of the Oakes test. The first part of the Oakes test, that there be a pressing and substantial objective, is easily satisfied given that the ban is aimed at protecting a Charter right. Similarly, the requirement that the impugned measure be rationally connected to the objective, which is the first branch of the proportionality portion of the test, is also easily satisfied. As the Chief Justice notes, though possible it will rarely be the case that the impugned material will have a total absence of influence.
As stated above, the heart of the s. 1 analysis of publication and broadcast bans is to be found in the second and third branches of the proportionality part of the Oakes test. The second or minimal impairment branch is perhaps the aspect of the s. 1 analysis that is most altered when the task is to reconcile two Charter rights. The fact that the court must balance fair trial and freedom of expression rights forces a measure of flexibility into the analysis. If applied blindly or dogmatically, minimal impairment of one of the rights could theoretically mean maximal impairment of the other.
There is no question, as the Chief Justice has noted, that minimal impairment requires that bans be as narrowly circumscribed as possible in protecting the fairness of a trial. Just as injunctions aimed at preserving the status quo must be crafted narrowly, the restraint imposed by publication bans must be limited to only that which is necessary to protect the right to a fair trial. A ban must thus be carefully limited both in terms of temporal and geographic application.
Minimal impairment also requires evaluation of alternative measures to protect the right to a fair trial. This evaluation is clearly present, though not necessarily explicit, in the common law
requirement that a publication create a real and substantial risk to the fairness of a trial before a ban can be ordered. In applying his modified version of the common law rule, the Chief Justice would require trial judges to make a finding that there is no reasonably available alternative measure to a publication or broadcast ban. The existence of alternative measures to protect the fairness of the trial such as sequestration, careful scrutiny of potential jurors and change of venue has been relied on in the United States as the basis for the virtual total rejection of prior restraint orders (see Nebraska Press, supra, and its aftermath). In my view, the mere existence of alternatives to publication bans, alternatives which are available in almost every case, does not of itself support the denial of a publication ban. Rather, what is required is the more difficult assessment of the likely effect of the proposed publication ban on freedom of expression and the effectiveness as well as the cost or burden of alternative measures. An examination of the Anglo-Canadian tradition and the potential burdens of alternative measures will put the existence of such alternatives in perspective.
Thorson J.A. usefully summarized the difference between the traditional Canadian and American approaches in Global Communications, supra, at pp. 111-12:
Generally speaking, however, the approach taken in the United States seems to be to allow for the widest possible latitude in media reporting of events transpiring prior to and during the course of the trial of an accused person. This is counterbalanced, in the interests of ensuring an impartial and unbiased jury, in a number of ways including, during the jury selection process, by an often searching examination into the attitudes, biases and even the personal and financial affairs of potential jurors and, after the jury selection process has been completed, by the sequestration of the members of the jury while the trial is in progress to reduce the risk of their exposure to the media and other publicity generated by it.
In Canada, by contrast, the process of jury selection is neither as prolonged nor as exhaustive as a general rule; indeed the kind of questioning and probing into the affairs of potential jurors that is sometimes seen in the United States would be unlikely to be permitted under our system. Moreover, in Canada the sequestration of jurors throughout a trial occurs only exceptionally. The strong bias of our system is to prevent the dissemination before the conclusion of the trial of media publicity that might be prejudicial to the accused's fair trial.
A recent illustration of this openness to preventive measures is Keegstra (No. 2), supra. In that case, the Alberta Court of Appeal upheld an order prohibiting the production of a play about the life of James Keegstra during Mr. Keegstra's second trial. In upholding the order, the Court of Appeal rejected the appellant theatre's assertion that there were less drastic remedies to protect the trial process. In coming to this conclusion, Kerans J.A. provided some insight into the view point at the foundation of a preventive approach, at p. 236:
But, while urging a juror to be faithful to his or her oath, courts traditionally also try to help the juror by removing undue, unnecessary, and excessive temptations, if possible. That is what the rule in this case is all about. Mr. Shea [for the appellant theatre], it seems to us, offers a counsel of despair: because perfect isolation of the jury is impossible, do not try any form of protection. We will not succumb to that approach. We commend the effort of the first judge. His sole interest in this matter is to help that jury.
Examples of the resort to preventive measures can be found in both the Criminal Code, R.S.C., 1985, c. C-46, and access to information legislation. Sections 517 and 539 of the Criminal Code are two such examples. Section 517 applies to the publication of evidence adduced at a bail hearing. Section 539 deals with the publication of evidence adduced during a preliminary inquiry. In the case of access to information legislation, there are usually provisions that protect government documents, such as investigative reports, which could influence the fairness of a trial (see, for example, s.
14(1)( f) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31). Clearly the alternative measures, and most notably challenge for cause, are available in these situations. Parliament and the provincial legislatures, however, have expressly opted for the preventive response.
In the United Kingdom, as in Canada, the power to order a publication ban was historically seen as part of the ability of the courts to deal with ex facie criminal contempt. Reference to the position and tradition in the United Kingdom may strike some as odd in the face of the condemnation of that country by the European Court of Human Rights in the Sunday Times case, judgment of 26 April 1979, Series A No. 30; condemnation: 11 votes to 9. The condemnation in the Sunday Times case, however, has been viewed as being based only on differing opinions as to whether an interference with freedom of expression was necessary in the circumstances of the particular case (see D. J. Harris, "Decisions on the European Convention on Human Rights During 1979" (1979), 50 Brit. Y.B. Int. L. 257, at p. 259; S. H. Bailey, "The Contempt of Court Act 1981" (1982), 45 Mod. L. Rev. 301, at p. 303; contra: F. A. Mann, "Contempt of Court in the House of Lords and the European Court of Human Rights" (1979), 95 L.Q.R. 348, at pp. 352-53). In fact, the majority of the European Court made it clear that it was not condemning the English law of contempt and that there would be cases where restraint would be necessary to avoid "trial by newspaper" (see paras. 63, 43 and 65-66; see also the comments of R. Ergec, "La liberté d'expression, l'autorité et l'impartialité du pouvoir judiciaire", [1993] Rev. trim. dr. h. 171, at pp. 178-79). Following the decision in the Sunday Times case, the law of contempt was consolidated and to some extent reformed by the Contempt of Court Act 1981 (U.K.), 1981, c. 49. The Contempt of Court Act 1981 preserves the power of the courts to deal with publications which imperil the administration of justice. The test for contempt in regard to publications commenting on legal proceedings is whether the publication "creates a substantial
risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced" (s. 2(2)). The Contempt of Court Act 1981 thus preserves the ability for courts to intervene in circumstances similar to those now before this Court and implicitly requires an assessment of the suitability of alternative measures.
In assessing the suitability of alternative measures, judges must keep in mind that these measures impose distinct costs and burdens. The minimal impairment arm of the proportionality analysis therefore requires the trial judge to do a comparative analysis of effectiveness, feasibility and cost of all possible measures. Adjourning trials or changing venues imposes obvious costs for all concerned and raises the possibility of a violation of the s. 11(b) Charter guarantee of a trial within a reasonable time. Sequestration of the jury is a very exceptional remedy which Kerans J.A. termed a "monstrous suggestion" given that it imposes a heavy burden on those citizens who offer the greatest contribution to the right to a fair trial (Keegstra (No. 2), supra, at p. 235). Providing strong judicial direction to the jury reflects the confidence we place in the jury system and will be a very real solution when the application is made to a trial judge who has had the opportunity to observe the conduct of the jury throughout the trial. This was the case for Soublière J. in the trial of the respondent Dagenais. Where the trial has yet to begin, a judge may not be satisfied that the remedy would be sufficient. Such an opinion does not undermine the trust we place in juries, rather, as Kerans J.A. suggested, it would simply reflect a concern to remove undue, unnecessary and excessive temptations.
In the case of broadcast bans of docudramas related to pending trials, the most obvious alternative remedy is extensive challenges for cause and voir dires during jury selection. As noted above, the bias against pre-trial bans in the United States
has led to a sometimes gruelling jury selection process which has occasionally lasted for up to six weeks. As Thorson J.A. noted, such a practice does not reflect the tradition in this country. The recent Ontario Court of Appeal decision in R. v. Parks (1993), 15 O.R. (3d) 324, may be seen as a departure from this tradition. While refraining from pronouncing upon its correctness, I would point out that that case reflected particular issues outside the context of publication bans. The exceptional concern to prevent racial discrimination from interfering with an accused's right to a fair trial does not justify sweeping away the Canadian tradition of minimal challenge nor does it justify the potentially huge costs associated with more extensive challenge.
At the minimal impairment stage, therefore, the trial judge must consider the alternatives to a publication ban but is not bound to find that they would be insufficient. The concern to help juries in exceptional cases by taking preventive measures requires that trial judges not feel constrained by an overly strict test which would impose costs that we have historically not been prepared to accept. The flexibility implicit in this formulation means that trial judges will have a wide discretion in evaluating the various means available to protect the right to a fair trial and that the facts of each case will be of great importance in determining what measure is appropriate.
It might be suggested that my references to the common law tradition are irrelevant in the age of the Charter. In my view, however, the Charter does not oblige departing from this tradition in any substantive respect. Clearly this was the opinion of Kerans J.A. and Thorson J.A. in Keegstra (No. 2) and Global Communications, respectively. I disagree with those who argue that the Charter requires that we emulate American society and discard the unique balance of fundamental values
which existed in this country prior to 1982. The Charter provides a means to assure that the enumerated fundamental rights and freedoms are respected. It does not give primacy to any of those rights. The impact of the Charter will be minimal in areas where the common law is an expression of, rather than a derogation from, fundamental values. The common law pertaining to publication and broadcast bans is an example of one such area. As I have noted, the requirement that there be a real and substantial risk to the fairness of the trial process is a clear expression of this balance.
The final step in the Oakes test requires proportionality between the effects of the measures which are responsible for limiting the rights or freedoms in question and the objective. The Chief Justice would now add a further requirement of proportionality between the salutary and deleterious effects of a measure limiting rights or freedoms. In order to determine whether there is the requisite proportionality, a court should begin by carefully determining the nature of the infringement. The nature of any infringement and the effects will vary with the extent of the ban imposed.
The general purposes of docudramas would appear to support the suggestion that a temporary ban until the end of a trial may well be a minor restriction of the right to freedom of expression. One purpose of such productions may be to examine current issues of general public importance in an effort to spark discussion and assist in the process of seeking solutions. A related and less ambitious purpose may simply be to present a thorough account of events of public interest. Delaying the presentation of a docudrama until the end of a trial would not hinder either of these purposes. Unlike news, immediacy is not the essence of docudramas.
I also note that the temporary ban of a docudrama does not in any way affect the fundamental principle of open courts. Such a ban does not restrict access to the courts nor does it prevent publication in respect of court proceedings. Those
situations present formidable deleterious effects and their analysis should be carefully distinguished from bans pertaining to docudramas (for a recent British examination of this question, see Ex parte Telegraph Plc., [1993] 2 All E.R. 971 (C.A.)).
On the salutary side of the equation, concerns have been expressed as to the efficacy of publication bans. It is said that the actual effect of bans on jury impartiality is increasingly negligible given technological advances which make bans difficult to enforce. With all due respect, it is wrong to simply throw up our hands in the face of such difficulties. These difficulties simply demonstrate that we live in a rapidly changing global community where regulation in the public interest has not always been able to keep pace with change. Current national and international regulation may be inadequate, but fundamental principles have not changed nor have the value and appropriateness of taking preventive measures in highly exceptional cases.
In the particular case of docudramas, the salutary effects of temporary bans derive from the potential influence of docudramas on prospective jurors. In part, the impact of docudramas derives from the power of omniscience afforded to the viewer. The viewer sees all and therefore knows all in a way that can only exist in fictional works. What the viewer actually sees, however, is the expression of the agendas of the writer, director and producer. What the viewer sees is also only partly fiction with little indication of the line between documentary and drama. Furthermore, the particular agendas of those involved may mean that fiction becomes worse than reality. As will be seen below, the mini-series now before the Court is a prime example of this possibility. Finally, the fact a docudrama is being shown on television, perhaps at prime time, accentuates its overall potential influence. Television is in many ways more powerful than print. Few would argue that vivid images are often more firmly etched in memory than even the best prose. All of these factors
serve to demonstrate that the potential of docudramas to influence prospective jurors may be significant. Much will depend, however, on the particular facts of each case.
Analysing publication and broadcast bans through the prism of s. 1 is a useful analytical exercise, but in doing so I do not wish to be taken as laying out a rigid process which lower courts must follow. The essence of the decision to issue a ban or not is a balancing of various factors to determine whether such a preventive measure is a necessary and reasonable response to the facts of any given case. Thus the trial judge must consider the nature of the threat to the fairness of the trial, including the susceptibility of juries to being influenced, the extent of the restriction on freedom of expression and the availability of alternative measures.
Though there is a tendency in post facto assessments to say trials were either fair or not, the determination of whether to take preventive measures is by its very nature neither black nor white. The balancing which underpins the decision to order or refuse a ban is necessarily an imprecise science. Judges approaching such decisions either at first instance or at a review stage should keep this reality in mind.
Appellate review of such findings must therefore respect the discretion accorded to trial judges. The findings as to whether there is a real and substantial risk to the fairness of the trial process is a question of mixed fact and law. If the trial judge uses the correct standard and applies it in a reasonable manner, then an appellate court should not overturn the decision. The crucial question is whether the finding was arbitrary or whether there is a basis for it in the evidence. If there is a basis in the evidence for the conclusion, then deference
will be in order even though the appellate court might not have arrived at the same result.
The preceding discussion can be usefully summarized in the following general points. Publication and broadcast bans can be ordered to protect the fairness of a pending or current trial. These bans should be seen as possible complements to other measures available to guarantee the fairness of the trial process. The fact such bans restrict freedom of expression and freedom of the press means that they should be imposed only in exceptional cases. Trial judges should carefully consider the alternative measures available since they have the advantage of not restricting freedom of expression and freedom of the press. It is not necessary, however, for the trial judge to determine with certainty that the alternative measures would be insufficient to protect the fairness of the trial. What is required is that the trial judge be satisfied that the publication will create a real and substantial risk to the fairness of the trial, which available alternative measures will not prevent. The Anglo-Canadian tradition, as distinct from the American, allows greater scope for prophylactic measures. Consistent with this tradition and the distinct balance between the fundamental rights it implies, trial judges will possess an important discretion to issue publication and broadcast bans. In the special case of docudramas, the impairment of freedom of expression where a judge issues a temporary broadcast ban may well be minimal in comparison to the risk which such productions represent to the right to a fair trial. A judge may thus be fully justified in issuing a temporary ban where the surrounding circumstances and the nature of the publication create a real and substantial risk to the fairness of the trial. As the Chief Justice has noted, where circumstances permit it is desirable for the trial judge to review the proposed publication as part of the evidence before determining whether to issue a ban. Finally, the decision of a trial judge, made after weighing all the factors, should not be interfered with unless it is based on an error in principle or it cannot be reasonably supported on the evidence. Mere disagreement with her/his conclusion is not enough. With these general
principles in mind, I turn to the specific facts of this case.
2. Applying the General Principles to the Facts of this Case
Perhaps the best way to understand the facts of the case on appeal is through the affidavits which were before Gotlib J. The affidavit of Ronald F. Caza in support of the application for a broadcast ban provided the judge with an overview of the two-part mini-series. Mr. Caza viewed the film at a special screening organized by the National Film Board ("NFB"). At that time and when he gave affidavit evidence, Mr. Caza was retained by the Brothers of the Christian Schools of Ottawa. The following excerpts usefully summarize the content of the mini-series:
3. The film is divided into two parts. The first part covers a certain time period during which physical and sexual abuse is inflicted upon children residing in an orphanage run by a lay religion order of brothers. The second part takes place 15 years later, when a brother and a former brother undergo criminal trials and a public inquiry looks into allegations of a cover-up at the orphanage.
. . .
10. In the film, it seems that the majority of the brothers are abusing the children. In fact, there only seems to be one brother who is not abusing the children and he is seemingly intimidated by the other brothers. . . .
. . .
12. In the second part of the film, the audience witnesses the trials of the superintendent and another brother. The lawyers representing the brother and former brother are portrayed as being cruel and insensitive. They are also portrayed as treating the victims in a seemingly heartless and unnecessary manner.
. . .
15. Because the audience has witnessed all of the actual physical and sexual assaults, the contentions of the defence lawyers seem ridiculous and misleading. The
audience is left with the feeling that the victims, no matter what problems there may be with their testimony, should be believed because all of their problems are due to the abuse inflicted upon them by the brothers.
Mr. Caza's general view of the mini-series was echoed in an article entitled "Film gives voice to abuse victims" published in the Toronto Star on 29 November 1992. A copy of this article was attached as an exhibit to the affidavit of Angelo S. Callegari in support of the application. The article demonstrates poignantly the relevance of the mini-series to the trials of the respondents (at p. H1):
Yes, it's the Mount Cashel saga, with echoes of other cases recently prosecuted in Ontario, in Canada's Western provinces, and in the United States. Direct references are thinly veiled, and Smith and his producers at the NFB and CBC are careful to include a disclaimer assuring viewers that this is not a re-enactment of any specific series of events, nor a portrayal of real people.
Each of those cases was so similar, however, even to the degree of government disinterest in legitimate complaints, that they are almost interchangeable. Given recent revelations, The Boys of St. Vincent takes on the semblance of a modern morality play; its plot points and characters are ubiquitous, almost part of contemporary folk lore.
The CBC did not seek to cross-examine in respect of these two affidavits nor did they request that Gotlib J. view the mini-series. The CBC relied on a single affidavit in opposing the application. The essence of the CBC's response to the application as reflected in the affidavit of Michael Hughes was that the mini-series was not about the respondents and that by setting the series in Newfoundland there was no risk of confusion. This assertion, however, stands in stark contrast to the disclaimer which appeared at the beginning of the film and which explained that though the series was not a reenactment of any actual event, it was "inspired by recent events in Newfoundland and elsewhere in Canada". Mr. Hughes went on to explain, referring to the briefing note from the NFB, that "THE BOYS OF ST. VINCENT reflects a national issue currently receiving widespread media attention,
and is intended to help bring the public to better understand this very serious issue of sexual abuse". Finally, Mr. Hughes pointed to the losses which CBC would suffer if the broadcast ban was granted. These damages included approximately $600,000 in lost advertising revenues and expenditures.
Gotlib J. noted that the four charges involved "a highly explosive and inflammatory issue to be decided by, in effect, four separate juries in four separate courts" and that there had "already been widespread publicity". She saw no reason "to add fuel to the fire", given the imminence of the three remaining trials and the fact that they would be finished by the fall of 1993, some eight months later. Gotlib J. rejected the alternative remedies proposed by the CBC stating that they begged the question. Finally, she concluded:
In all, I am satisfied that the harm that would be caused by the showing of this particular film before the jury trials of the three remaining accused persons would be such that the possibility of impartial jury selection virtually anywhere in Canada would be seriously compromised.
Gotlib J. thus believed she was faced with a situation in which the gathering of an impartial jury would have been seriously compromised given the substantial publicity. The "fire" was burning strong and thus the alternative measures were bound to be ineffective. She therefore believed she had little choice but to temporarily ban the mini-series in order to protect the fairness of the pending trials.
The affidavit evidence reviewed above clearly supports Gotlib J.'s findings. The mini-series was a work of fiction, but it was based on a number of similar, "almost interchangeable" cases. The appellants did not directly challenge this assertion and conceded before the Court of Appeal that there were parallels between the events depicted in the film and the charges which the respondents were facing at the time. These parallels take on great significance in light of the particular way in which
the events were portrayed. The two-part dramatization left no doubt as to the accused's guilt, impugned the tactics of the defence and alleged a cover-up. In my view, it was open for Gotlib J. to find on the basis of the evidence before her that even though the mini-series was not directly about any of the respondents, it would have seriously compromised the possibility of finding an impartial jury given the context of widespread prior publicity. Though this test differs on a formal level from the "real and substantial risk" test, I have little difficulty in concluding, as did the Court of Appeal of Ontario, that they are equivalent in substance.
On the basis of my examination of the record, I would add the following points in support of Gotlib J.'s position. The mini-series was to be shown in prime time and the CBC had spent $97,000 on radio, billboard and print advertising. The direct audience was thus potentially huge. Furthermore, the risks were particularly great because of the nature of the media attention at the time. Michael Hughes, on behalf of the CBC, noted in his affidavit that "THE BOYS OF ST. VINCENT reflects a national issue currently receiving widespread media attention. . .". The physical and sexual abuse which formed the subject matter of the mini-series therefore was not simply an issue of general public interest or in respect of which there was general public consciousness. Rather, public attention was being focused directly on the specific facts before the courts and the guilt or innocence of the persons who stood accused.
The information contained in the documents which appeared as exhibits to the affidavit of Michelle d'Auray, Director of Corporate Affairs for the NFB, and filed before the Court of Appeal buttress Gotlib J.'s concerns. In particular, the Production Notes prepared by the NFB illustrate my earlier point that in some cases docudramas will manipulate fiction so that it is worse than reality.
Being provocative and exaggerating reality is one way of making a strong impact on viewers and encouraging discussion. As noted above, the purpose of the production was stated by the NFB in the following terms:
THE BOYS OF ST. VINCENT reflects a national issue currently receiving widespread media attention, and is intended to help bring the public to better understand this very serious issue of sexual abuse. It is our conviction that the public exploration of important and sensitive issues is an integral part of a process of seeking solutions.
The Production Notes explain some of the techniques used to achieve the desired impact on the viewing public. The voice of Pierre Letarte, the Director of Photography for the mini-series, was used in the Production Notes to describe some of the subtleties of the production design:
We put a lot of thought into the visual impact of the mini-series. Paintings from these centuries [the 18th and 19th] were very useful as inspiration, because the imagery was so dark and heavy, almost `medieval'. That's a quality which you see reflected in the interior design of the orphanage, the priests' robes, even in the heavy crucifixes they carry.
All of these elements taken together leave no doubt in my mind that there was a sufficient basis upon which Gotlib J. could legitimately be concerned by the potential influence of the mini-series on the fairness of the trial process.
In issuing the ban, there is no question that Gotlib J. temporarily denied the appellants their freedom of expression. In many ways, however, this impairment was of a very minor nature. As I noted above, the mini-series is a work of fiction and not a news event. It therefore could be presented at a later date with minimal inconvenience. At the motion hearing, one of the primary inconveniences pointed to by the CBC was the potential financial loss a ban would cause. Lost advertising revenues or any other sort of commercial loss, however, cannot justify risking an accused's right to a fair trial. The opinion of Kerans J.A. in Keegstra
(No. 2), supra, at p. 236, could have been invoked to reject the damages alleged by the CBC:
We emphasize that no reason is offered why immediate production is essential to the fair exercise of the right of free speech in the circumstances of this case. We accept that a commercial loss looms. And we accept, for the purpose of argument, that deliberate exploitation was not intended. Nevertheless, it seems to us that a person who mounts a production about a case pending before the courts is playing a dangerous game. We would not decide this case on the basis of sympathy for that commercial loss.
Furthermore, one would expect that a portion of these revenues would have been recouped when the mini-series was eventually broadcast.
Anytime a ban is issued, the spectre of chilling future endeavours must be a concern. Such a threat was raised in the affidavit of Michelle d'Auray. Ms. d'Auray, as Director of Corporate Affairs for the NFB, explained the mandate of the NFB and the potential consequences of a broadcast ban in respect of the mini-series in the following terms:
The NFB produces a significant number of dramatic productions that focus on stories derived from current societal circumstances, issues and problems. It is part of the NFB mandate. The consequences for the NFB if it is unable to air such productions if there is an imminent trial on a related subject-matter anywhere in Canada are immense.
With great respect for the opinion to the contrary, I cannot accept the suggestion that the consequences for producers of docudramas are immense. The purpose of the mini-series identified by the NFB and cited above reflects the relative "timelessness" of the production. Furthermore, the ban in this case was only a temporary restriction on the appellants' freedom of expression. Citing CBC v. Keegstra, [1987] 1 W.W.R. 719, Gotlib J. correctly limited the temporal scope of the ban to the conclusion of the respondents' trials. In this case, that time frame was some eight months with the three pending
trials scheduled to start in February, April and sometime between May and July. There is little doubt that public exploration of the issues of child physical and sexual abuse through the misuse of authority would have remained topical at the end of the eight-month period. I see no basis for concluding that the NFB's stated purpose of provoking public exploration as an integral part of a process of seeking solutions was frustrated by the ban.
Though in general the ban did not represent an unreasonable restriction on freedom of expression, its geographic scope was clearly overbroad, as found by the Ontario Court of Appeal. Gotlib J.'s stated reason for extending the ban to all of Canada was her opinion that "the possibility of impartial jury selection virtually anywhere in Canada would be seriously compromised". Regardless of the soundness of this opinion, there was no legal possibility that the trials could be moved outside the province of Ontario and therefore Gotlib J. clearly went well beyond what was necessary to deal with the application of the respondents. For that reason, I would have limited the ban to any broadcast in the province of Ontario and to CBMT-TV in Montreal.
My review of the evidence, the reasons supporting the ban and the effect on the appellants' freedom of expression rights lead to the conclusion that, taken as a whole, the order of Gotlib J. reflected correct principle applied in a reasonable manner. Regardless of whether I would have issued a ban in this case, there was clearly a basis for Gotlib J.'s conclusions. Her decision to order a ban was a preventive measure which should be upheld as a legitimate exercise of the crucial discretion of the courts to protect the integrity of the trial process. In upholding Gotlib J.'s decision I think it is appropriate to repeat the words of Kerans J.A. in Keegstra (No. 2). A person who mounts a production about a case pending before the courts is playing a dangerous game. In general, it is prudent to wait until an ongoing or imminent trial is completed before broadcasting or mounting a docudrama.
For the foregoing reasons, I would allow the appeal in respect of the broadcast ban but only to the extent of limiting its scope to the province of Ontario and to CBMT-TV in Montreal. I am in agreement with the Chief Justice on the jurisdictional issue.
3. Disposition
In the exercise of this Court's jurisdiction under s. 40 of the Supreme Court Act, I would allow the appeal from the judgment of the Court of Appeal and set it aside for lack of jurisdiction. Likewise, in the cases of Dagenais and Monette, I would allow the appeal and set aside the orders of Gotlib J. for lack of jurisdiction. In the cases of Dugas and Radford, being in agreement with the conclusions of the Court of Appeal on the merits, I would dispose as it did of the appeal and uphold the order of Gotlib J. banning the broadcast of the mini-series, The Boys of St. Vincent, but limit its scope to the province of Ontario and to CBMT-TV in Montreal.
The following are the reasons delivered by
MCLACHLIN J. -- The respondents Dagenais, Monette, Dugas and Radford, members or former members of a religious order known as the Christian Brothers, were charged with physical and sexual abuse against boys in their care at training schools in Ontario. The Canadian Broadcasting Corporation ("CBC") proposed to air a four-hour fictional drama called The Boys of St. Vincent during or prior to their trial. The Boys of St. Vincent depicted physical and sexual abuse of boys in a Catholic training school in Newfoundland. The respondents, alleging that the broadcast would prejudice the jurors and deny them fair trials, obtained a publication ban on the broadcast until the completion of their trials. The order was upheld with modifications in the Court of Appeal. The CBC asks this Court to set aside the ban on the ground that it violates the guarantee of freedom
of expression under s. 2( b) of the Canadian Charter of Rights and Freedoms.
The appeal presents three issues, all of importance. The first is whether the Charter, which applies to "governmental action", applies to a court-ordered publication ban. The second concerns the procedures by which such bans may be challenged. The third issue is the substantive one of whether the publication ban violated the guarantee of free speech found in s. 2(b) of the Charter. I would answer the first and third questions affirmatively. On the second, I would endorse the procedures proposed by the Chief Justice.
The Chief Justice does not deal with the first issue directly. He concludes that it can be avoided by focusing on the Charter's application to the common law. A judge exercising judicial discretion to grant a publication ban would commit a reviewable error of law if the ban were not in accordance with the Charter. But this constitutes an implicit acceptance of the fact that judges in applying the law are bound by the Charter. While the question of whether a judicial act is government action is avoided, the practical result is the same as if one had answered that question in the affirmative; in either case, judicial acts must conform to the Charter. Indeed, the practical effect of the Chief Justice's approach may be even broader; it may mean that all court orders would be subject to Charter scrutiny. Even purely private litigation would be subject to review on Charter grounds. In RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, for example, the union would arguably have been able to raise a Charter challenge of the court's injunction, on the basis that if it infringed the Charter, it would not have been authorized by the common law rule which gave the judge the discretion to order it. The judge would have thereby committed a reviewable error of law, and the result in the case would have been different on the issue
of jurisdiction. It seems to me better in these circumstances to confront the first issue directly.
1. Does the Charter Apply to a Court-Ordered Publication Ban?
Constitutional guarantees of rights may apply in two ways. They may apply "vertically" to relations between the individual and the state. They may also apply "horizontally", governing relations between private individuals and corporations. The Canadian Charter falls into the former category. Section 32 of the Constitution Act, 1982 states that the Charter applies "to the Parliament and government of Canada in respect of all matters within the authority of Parliament" and "to the legislature and government of each province in respect of all matters within the authority of the legislature of each province". The publication ban here in issue was not made by Parliament or a legislature. So the question is whether it can be considered an act of "government" in relation to a matter within the authority of Parliament or the legislatures.
The respondents argue that the ban is not subject to the Charter because it is an order of the court and the courts are not "government" within the meaning of s. 32 of the Charter. They rely on the statement of McIntyre J., writing for the majority of this Court in Dolphin Delivery, at p. 600, that "[w]hile in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial", for the purposes of Charter application he could not equate "the order of a court with an element of governmental action".
While this statement seems broad, it must be read in the context of the case. At issue in Dolphin Delivery was a court order resolving a dispute between private parties. The argument was that because the court had made the order, the Charter
should apply. To accept this argument would have been to take the Charter into the realm of relations between individuals, which s. 32 clearly never contemplated. As Professor Hogg puts it, "the reason for the decision is that a contrary decision would have the effect of applying the Charter to the relationships of private parties that s. 32 intends to exclude from Charter coverage, and that ought in principle to be excluded": Constitutional Law of Canada (3rd ed. 1992), vol. 2, at p. 34-16. The ratio decidendi of Dolphin Delivery, as Professor Hogg asserts, must be that "a court order, when issued as a resolution of a dispute between private parties, and when based on the common law, is not governmental action to which the Charter applies" (p. 34-16).
In two subsequent cases, this Court has accepted that the Charter could apply to court orders in some circumstances. In R. v. Rahey, [1987] 1 S.C.R. 588, the Court concluded that a trial judge's conduct in ordering 19 adjournments in alleged violation of the accused's rights to a trial within a reasonable time must conform to the Charter. La Forest J. stated that it seemed obvious that "the courts, as custodians of the principles enshrined in the Charter, must themselves be subject to Charter scrutiny in the administration of their duties" (p. 633). In B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, this Court held that a court order directed to maintaining access to the courts attracted Charter scrutiny, reasoning that if Charter rights are to have practical effect, then there must be access to a fair court process which itself complies with the Charter. Dickson C.J., for the majority of the Court, distinguished Dolphin Delivery on the basis that the injunction in that case was issued to resolve "a purely private dispute" (p. 243). Observing that the motivation for the court's action was "entirely `public' in nature", Dickson C.J. continued (at p. 244):
The criminal law is being applied to vindicate the rule of law and the fundamental freedoms protected by the Charter. At the same time, however, this branch of the criminal law, like any other, must comply with the fundamental standards established by the Charter.
These cases suggest that court orders in the criminal sphere which affect the accused's Charter rights or procedures by which those rights may be vindicated must themselves conform to the Charter. This is consistent with the fact that many Charter rights clearly contemplate review of judicial acts or omissions. As Professor Hogg points out (at p. 34-15), nearly all of the rights guaranteed to criminal defendants by s. 11 of the Charter entail some sort of action on the part of courts. Many of the other legal rights included in the Charter, such as ss. 12, 13 and 14, also contemplate judicial action.
L'Heureux-Dubé J. suggests that the Charter is applicable only to certain judicial activity, rather than court orders per se. With respect, I do not see this as a tenable distinction. The judge's order is the effective distillation of judicial activity; consequently it is upon the order that one must focus.
The question of what court orders attract the Charter is a large question, the answer to which is best determined on a case-to-case basis. For present purposes, it is sufficient to observe that Rahey and B.C.G.E.U. delineate one area in which orders of a court will be subject to Charter scrutiny. Court orders in the criminal sphere which affect Charter rights or the ability to enforce them are themselves subject to the Charter. This much, at a minimum, is required if Charter rights are to be meaningful.
The case at bar falls into this category. The publication ban was related to the protection of the accused's constitutional right to a fair trial, just as in Rahey the order related to the accused's right to a timely trial. In both cases the Charter must apply. From the perspective of B.C.G.E.U., the ban may be viewed as a case of the "criminal law . . . being applied to vindicate the rule of law and the fundamental freedoms protected by the Charter" (p. 244). It follows that the Charter applies to the order under appeal.
2. Procedural Matters
If the Charter applies to publication bans, the question arises of the procedure to be followed by a person who wishes to challenge a ban on the ground that it violates the Charter. The parties to the litigation may use the existing procedures. The problem is that these procedures, premised on a simple contest between the Crown and the accused, or between litigating parties, do not contemplate motions and appeals brought by third parties, such as the media. Those parties now may assert Charter rights and guarantees. How are they to assert those rights?
The cardinal principle underlying these procedural issues is that the courts must be able to provide a full and effective remedy for any Charter infringement. I am of the view that a full and effective remedy requires more than the opportunity to address the trial court prior to the issuance of the ban. It must include recourse to an appellate tribunal. The scope of Charter rights is often unclear. A person who alleges that his or her Charter rights have been infringed must be permitted to challenge a narrow interpretation and seek resolution of their ambit on appeal. The appellate procedures which the Chief Justice has outlined satisfy this minimal requirement. While they involve some extension of the common law remedy of certiorari, I believe this extension is warranted in the case of appeals from press bans and hence justified under s. 24(1) of the Charter. The extension is warranted because there is no other way that
overbroad publication bans can effectively be limited on appeal. Appeals from verdict prescribed by the Criminal Code, R.S.C., 1985, c. C-46, do not cover orders for press bans. Absent an expanded common law appeal remedy such as that proposed by the Chief Justice, parties alleging an infringement of their freedom of expression by reason of the press ban would have no means of resolving the ambit of their rights on appeal. Given the approach to the first issue which I have proposed, a press ban might be challenged on the basis of error of law in that it constitutes a direct violation of the Charter.
Applied to press bans, the appeal routes proposed by the Chief Justice do not pose the problem of interrupting and delaying the criminal trial, a consequence against which this Court firmly set its face in Mills v. The Queen, [1986] 1 S.C.R. 863. The appeals from a press ban are collateral to the trial, and may proceed at any time without affecting the trial process. If the trial is concluded before the matter is resolved on appeal, that must be accepted as the price of protecting the accused's and the public's interest in prompt and expeditious resolution of criminal trials. The party contesting the ban may be denied an immediate right to report on the proceedings in question. But the appeal may still serve the overarching purpose required by the Charter of allowing the Charter rights at issue to be defined for a future day.
This leaves the problem of what would happen in a case of a third party appeal on an issue central to a trial. For example, a witness might decline to testify on certain matters on grounds of privilege. The trial judge might find no privilege and order the witness to testify. Could the witness then follow the same appeal procedures outlined by the
Chief Justice? If so might the trial be interrupted? Such concerns lead L'Heureux-Dubé J. to reject any appeal rights in third parties.
I agree with L'Heureux-Dubé J. that the interruption of criminal trials by interlocutory and third party appeals must be eschewed. However, I am not convinced that the procedure proposed by the Chief Justice leads to this result. First, matters integral to the trial like whether a witness must divulge material claimed to be privileged, will often fall within the class of matters which may be appealed on an appeal from the verdict under the Criminal Code, arguably undercutting the need for expansion of common law appeal remedies. But more important, even if the third party were found to enjoy an immediate right of appeal, it does not follow that the trial would stop, pending the exercise of that right. Given the primacy of the principle that criminal trials are not to be interrupted by interlocutory appeals, the reviewing judge, whether proceeding by certiorari or on appeal, might properly defer decision until the termination of the criminal trial. Having said this, I must affirm that these are issues which are better left to a case where they squarely arise. My point is the modest one that adopting the procedures proposed by the Chief Justice should not be understood to derogate from the principle that criminal trials should not be interrupted and delayed for the purpose of pursuing interlocutory appeals.
I offer a final comment on this aspect of the case. While the procedures outlined by the Chief Justice meet the minimal requirements of the Charter, they are, as he acknowledges, far from perfect. I endorse his call for legislative action to provide clear and consistent Charter remedies, and strike the appropriate balance between the rights of those who allege their Charter rights are infringed, on the one hand, and the private and public interest
that criminal trials proceed expeditiously and without interruption, on the other.
3. Did the Publication Ban Violate the Charter?
Freedom of expression is a right fundamental to democratic society. Accordingly, this Court has taken the view that the ambit of the right must be generously interpreted, going so far as to hold that even hate propaganda falls within the guarantee. Limitations on the guarantee may not be assumed; as a general rule, they must be justified, under s. 1 of the Charter.
The expression at issue on this appeal -- the right to broadcast a fictional cinematic work -- falls squarely within the ambit of s. 2(b) as defined by previous cases. The ban interfered with the right of the actors, directors and producers of the film to express themselves. There can be no doubt that the ban limited the right of freedom of expression guaranteed by s. 2(b) of the Charter.
The more difficult question is whether the ban can be justified under s. 1 of the Charter as a reasonable limit on freedom of expression, judged by the standards of a free and democratic society. Accepting the ban is a "limit" on s. 2(b) rights "prescribed by law", one must weigh the gravity of the infringement of s. 2(b) against the objective to which the ban was directed.
Applying the criteria developed by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, one looks first to the objective of the ban. It is clear. It was to preserve the respondents' rights to a fair trial -- in particular to avoid the risk that an impartial jury could not be sworn, or if sworn, could not render a true verdict because of the poisonous effects of the publication.
The next step is whether the infringement is proportionate to, or justified by, this goal. Proportionality in this sort of case is not a question of deciding where the balance should be struck between a fair trial and freedom of expression. The right to a fair trial is fundamental and cannot be sacrificed. I agree with the Chief Justice that in general, the conflict model is largely inappropriate. Fair trials and open discussion tend to go hand in hand. Nevertheless, in some instances, such as that in the current case, unlimited free expression may interfere with the accused's right to a fair trial. As Dickson C.J. said for the Court in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 467-68:
On the other side, however, it is equally obvious that free speech or expression is not an absolute, unqualified value. Other values must be weighed with it. Sometimes these other values supplement, and build on, the value of speech. But in other situations there is a collision. When that happens the value of speech may be cut back if the competing value is a powerful one. . . . We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.
There thus may be cases where special circumstances are presented which indicate a serious risk (as opposed to a speculative possibility) that a fair jury could not be sworn or, where jurors have already been sworn, that publicity might somehow find its way to them and prejudice them. In these cases, a ban may be justified, provided that it goes no further than required to avoid the demonstrated risk of an unfair trial.
The common law test for whether a ban should be ordered is that there is a real and substantial risk that a fair trial would be impossible if publication were not restrained. Properly applied, that test meets the requirements of justification of an infringing measure under s. 1 -- that the infringement be rationally connected to the goal, that it be minimally intrusive, and that it be proportionate to
the benefit achieved. What is required is that the risk of an unfair trial be evaluated after taking full account of the general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered. The courts are the guardians not only of the right to a fair trial but of freedom of expression. Both must be given the most serious consideration.
Rational connection between a broadcast ban and the requirements of a fair and impartial trial require demonstration of the following. First, it would seem necessary to show that many people eligible to sit as jurors would see the broadcast; conversely, if a substantial number would not see it, there should be no problem selecting a jury from among them. Second, it must be shown that publication might confuse or predispose potential jurors. In the case of a fictional work, it should be shown that jurors will not be able to separate broadcast fiction from reality. Third, it must be shown that any confusion may not be dispelled by proper direction or by other measures, such as judicial directions, change of the venue of the trial, or more exacting jury selection processes. If after considering all such matters, the judge is still left with a real concern that there is a substantial risk the trial may be rendered unfair, a rational connection between the infringement of freedom of expression and the ban will have been established.
Once the rational connection has been established, the judge must go on to ensure that the ban is minimally intrusive, i.e., that it impinges on freedom of expression no further than is actually required to avoid the risk of an unfair trial. It must be confined to the minimum geographical area required. It must not extend to more forms of
expression or media of dissemination than necessary. And it must cease at the earliest possible time consistent with removing the risk of an unfair trial.
In the case at bar, the judge ordering the ban failed to direct herself sufficiently to the sort of considerations which go to establishing rational connection and minimal impairment. It follows that the ban cannot be supported.
4. Disposition
I would allow the appeal and set aside the ban.
Appeal allowed, LA FOREST, L'HEUREUX-DUBÉ and GONTHIER JJ. dissenting.
Solicitors for the appellants: McCarthy Tétrault, Toronto.
Solicitors for the respondents: Fedorsen, Shoniker, Toronto.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitors for the intervener John Newton Smith: Grey Casgrain, Montreal.
Solicitors for the intervener the Canadian Association of Journalists: Gowling, Strathy & Henderson, Ottawa.
The official version of these documents appear in the Supreme Court Reports.
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