Supreme Court Judgments

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326

 

IN THE MATTER OF sections 2(b) and 52(1) of the

Canadian Charter of Rights and Freedoms ,

being Part 1 of the Constitution Act, 1982 ;

 

AND IN THE MATTER OF sections 25 and 30 of

the Judicature Act, being chapter J‑1 of

the Revised Statutes of Alberta, 1980;

 

between:

 

Edmonton Journal, a division of Southam Inc.                                                                Appellant

 

v.

 

The Attorney General for Alberta

and the Attorney General of Canada                                                                              Respondents

 

and

 

The Attorney General for Ontario                                                                                  Intervener

 

indexed as:  edmonton journal v. alberta (attorney general)

 

File No.:  20608.

 

1989:  March 3; 1989:  December 21.

 

Present:  Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, and Cory JJ.

 

on appeal from the court of appeal for alberta

 

    Constitutional law -- Charter of Rights  -- Freedom of expression ‑‑ Freedom of the press -- Open court process -- Reports of judicial proceedings -- Provincial legislation restricting publication of certain information obtained in matrimonial proceedings and at pre-trial stages of civil actions ‑‑ Whether legislation violates s. 2(b)  of the Canadian Charter of Rights and Freedoms  -- If so, whether legislation justifiable under s. 1  of the Charter  ‑‑ Judicature Act, R.S.A. 1980, c. J-1, s. 30.

 

    Constitutional law -- Charter of Rights  -- Equality before the law ‑‑ Reports of judicial proceedings -- Provincial legislation restricting publication of certain information obtained in matrimonial proceedings and at pre-trial stages of civil actions -- Whether legislation violates s. 15  of the Canadian Charter of Rights and Freedoms  -- If so, whether legislation justifiable under s. 1  of the Charter  -- Whether s. 15 applicable to corporations -- Judicature Act, R.S.A. 1980, c. J-1, s. 30.

 

    The appellant sought a declaration that s. 30 of the Alberta Judicature Act (the "Act") contravenes ss. 2( b )  and 15  of the Canadian Charter of Rights and Freedoms  which respectively guarantee freedom of expression and legal equality.  Section 30(1) of the Act prohibits the publication of any detail relating to matrimonial proceedings other than the names, addresses and occupations of the parties and witnesses; a concise statement of the charges, defences, counter‑charges and legal submissions; and the summing up of the judge, the finding of the jury and the judgment of the court.  Section 30(2) prohibits the publication before trial of anything contained in the pleadings of civil proceedings, except the names of the parties and the general nature of the claim and of the defence.  Section 30(3) provides for various types and forms of publication when ordered by the court, including the publication of matters otherwise prohibited.  Both the Court of Queen's Bench and the Court of Appeal dismissed the application on the ground that s. 30 constitutes a reasonable limit to s. 2(b) under s. 1  of the Charter  and that it did not violate s. 15.

 

    Held (La Forest, L'Heureux‑Dubé and Sopinka JJ. dissenting in part):  The appeal should be allowed.  Section 30(1) and (2) of the Act infringe s. 2( b )  of the Charter  and are not justifiable under s. 1  of the Charter .  In light of this conclusion, it is not necessary to deal with the argument based on s. 15  of the Charter .

 

    Per Dickson C.J. and Lamer and Cory JJ.: Freedom of expression is of fundamental importance to a democratic society and should only be restricted in the clearest of circumstances.  It is also essential to a democracy, and crucial to the rule of law, that the courts are seen to function openly.  The press must thus be free to comment and report upon court proceedings to ensure that the courts are in fact seen by all to operate openly in the penetrating light of public scrutiny.  It is only through the press that most individuals can really learn of what is occurring in the courts.  The members of the public, as "listeners" or "readers", have a right to receive information pertaining to public institutions, in particular the courts.  Here, there is no doubt that the provisions of s. 30(1) and (2) of the Act contravene s. 2( b )  of the Charter .  Section 30(1) represses the publication of important aspects of court proceedings in matrimonial causes, including information on the evidence adduced at trial and the comments of counsel or of the presiding judge.  Section 30(2) creates an almost total restriction on providing information pertaining to pleadings or documents filed in any civil proceedings, including cases involving matters of administrative or constitutional law, before they have been heard.

 

    The limits imposed by s. 30(1) and (2) on s. 2(b) are not justifiable under s. 1  of the Charter .  While the objectives of protecting the privacy of individual (s. 30(1) and (2)) and of ensuring a fair trial (s. 30(2)) constitute pressing and substantial concerns for the purpose of s. 1  of the Charter , both subsections do not interfere as little as possible with the fundamental right of freedom of expression, nor do they reflect that proportionality which is required between the effect of the impugned measure on the protected right and the attainment of the objectives.  The restrictions in s. 30(1) and (2) are too extensive and go much further than necessary to protect the objectives of the legislation.  Section 30 by its restrictive ban on publication results in a very substantial interference with freedom of expression and significantly reduces the openness of the courts.  Any need to protect the privacy of the parties, their children or of the witnesses, or to ensure a fair trial could have been accomplished by far less sweeping measures.

 

    Because s. 30(1) and (2) contravene s. 2(b), and in light of the conclusion that it cannot be justified pursuant to s. 1  of the Charter , it is not necessary to deal with the argument based on s. 15  of the Charter .

 

    Per Wilson J.:  The Charter should be applied to individual cases using a contextual rather than an abstract approach.  A contextual approach recognizes that a particular right or freedom may have a different value depending on the context and brings into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it.  This approach is more sensitive to the reality of the dilemma posed by the particular facts of a case and is more conducive to finding a fair and just compromise between two competing values under s. 1.  The importance of a Charter 's right or freedom, therefore, must be assessed in context rather than in the abstract and its purpose must also be ascertained in context.

 

    The values in conflict in the context of this particular case are the right of the public to an open court process, which includes the right of the press to publish what goes on in the courtroom, and the right of litigants to the protection of their privacy in matrimonial proceedings.  In particular, the purpose of s. 30(1) of the Act is to protect these litigants against the embarrassment, grief or humiliation that may flow from the publication of the particulars of their private life disclosed in the courtroom.  To do so, s. 30(1) has placed serious limits on the publication of what takes place in a courtroom.  These limits clearly infringe the freedom of the press guaranteed by s. 2( b )  of the Charter .  They restrict the right of the press to report the details of judicial proceedings and go against the traditional emphasis which has been placed in our justice system upon an open court process.  The importance of the open court process in our society is supported by several compelling reasons and only powerful considerations would justify inroads into such a process.

 

    Section 30(1) of the Act does not constitute a reasonable limit on the freedom of the press which can be justified by s. 1  of the Charter .  While the protection of privacy is a legitimate government objective, s. 30(1) lacks the required degree of proportionality.  There is unquestionably a small proportion of matrimonial cases in which publication of the evidence would cause severe emotional and psychological trauma and public humiliation for the parties (and their children) as to warrant a ban on publication.  Section 30(1), however, is not restricted to such cases.  It encompasses all matrimonial causes presumably on the assumption that they are all inevitably attended by such consequences.  This assumption may have been valid at one time but it is wholly unrealistic today.  Many allegations that might once have been acutely embarrassing and painful are today a routine feature of matrimonial causes to which little, if any, public stigma attaches.  Legislation seeking to place restrictions on freedom of the press in this area need to be much more carefully tailored.

 

    Section 30(2) of the Act infringes s. 2( b )  of the Charter  and is not justifiable under s. 1 .

 

    In light of the conclusion with respect to ss. 2( b )  and 1  of the Charter , it is not necessary to deal with the appellant's contention that s. 30(1) and (2) of the Act violate s. 15  of the Charter .

 

    Per La Forest, L'Heureux‑Dubé and Sopinka JJ. (dissenting in part):  The freedom of expression and the concept of open courts are essential to a free and democratic society.  However, like other rights and freedoms guaranteed by the Charter , the freedom of expression, which includes the freedom of the press and other media, is subject to such limits prescribed by law as can be demonstrably justified in a free and democratic society.  Here, s. 30(1), as modified by s. 30(3) of the Act, was justifiable under s. 1  of the Charter .  First, the protection of the privacy of the parties (including their children and the witnesses) and the protection of the access to the courts are two objectives sufficiently important to warrant a reasonable limitation on publication of the details of matrimonial disputes.  An individual involved in a matrimonial case is forced to reveal many aspects of his private life.  While the divulging of such personal information by the mass media serves little or no public interest, it can do incalculable harm to that individual and his family.  The unrestrained publicity of the details of familial activities would also discourage some people from seeking relief in matrimonial causes.  It would be a great wrong if those in need of redress shrank from seeking it because their intimate affairs would needlessly become publicly known.  Second, given the very limited character of the restriction as compared with the serious deleterious effects on the important values -- right to privacy and access to the courts -- sought to be protected by the legislation, s. 30(1) meets the test of proportionality.  Section 30(1) is rationally connected to the objectives and imposes only minimal limits on the freedom of the press.  The interference with the freedom is narrowly defined and carefully tailored to resolve a real and serious problem.  Section 30(1) is limited to the details and particularities of the case in specific proceedings that deal with personal and family matters, often of a particularly private, and sometimes, of an intimate character.  It does not prohibit reporting about the conduct of judges or counsel.  The principle of open courts is respected:  publication for those having a serious interest in court proceedings or family law is permitted under s. 30(3) of the Act, and all the general information about the nature of the case may be published by the mass media.  Finally, a provision under which a judge would retain a discretionary power to prohibit publication in an appropriate case has been tried elsewhere and proven ineffective.

 

    Section 30(2) of the Act infringes s. 2( b )  of the Charter  and is not justifiable under s. 1 .  Section 30(2) is simply too broad a restriction without adequate justification to afford a defence under s. 1 .

 

    Section 30 of the Act does not infringe s. 15  of the Charter .  Section 15 is limited to individuals and does not apply to corporations.  Moreover, appellant faces serious problems of standing.  Though it may have an interest in the matter, appellant is not directly affected.  In any event, although s. 30 imposes a prohibition not found in other jurisdictions in Canada, and discriminates against print media and between newspapers in general circulation and professional journals, these distinctions do not fall within the ambit of s. 15.

 

Cases Cited

 

By Cory J.

 

    Distinguished:  Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; referred to:  RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Gannett Co. v. DePasquale, 443 U.S. 368 (1979); Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Amway Corp., [1989] 1 S.C.R. 21; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Whyte, [1988] 2 S.C.R. 3; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Eur. Court H. R., Sunday Times case, judgment of 26 April 1979, Series A No. 30, rev'g [1974] A.C. 273 (H.L.), rev'g [1973] 1 All E.R. 815 (C.A.), rev'g [1973] Q.B. 710 (Div. Ct.)

 

By Wilson J.

 

    Referred to:  Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Gannett Co. v. DePasquale, 443 U.S. 368 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Press‑Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986); Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Morgentaler, [1988] 1 S.C.R. 30; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; McPherson v. McPherson, [1936] A.C. 177; Scott v. Scott, [1913] A.C. 417; R. v. Oakes, [1986] 1 S.C.R. 103.

 

By La Forest J. (dissenting in part)

 

    Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Reference re Alberta Statutes, [1938] S.C.R. 100; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Re Global Communications Ltd. and Attorney General of Canada (1984), 5 D.L.R. (4th) 634; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Heydon's Case (1584), 3 Co. Rep. 7a; 76 E.R. 637; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Beare, [1988] 2 S.C.R. 387; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Oakes, [1986] 1 S.C.R. 103; Re Aluminum Co. of Canada, Ltd. and The Queen in right of Ontario (1986), 55 O.R. (2d) 522 (Div. Ct.), leave to appeal to Ont. C.A. refused September 2, 1986; Parkdale Hotel Ltd. v. Canada (Attorney General), [1986] 2 F.C. 514; Milk Board v. Clearview Dairy Farm Inc., [1987] 4 W.W.R. 279 (B.C.C.A.), leave to appeal refused, [1987] 1 S.C.R. vii; Nissho Corp. v. Bank of British Columbia (1987), 39 D.L.R. (4th) 453; Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922; R. v. Turpin, [1989] 1 S.C.R. 1296.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 1 , 2( b ) , 8 , 15 .

 

Criminal Code , R.S.C., 1985, c. C‑46 , s. 166 .

 

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), Arts. 8, 10(2).

 

Family Law Act 1975, S. Aust. 1975, No. 53, s. 121(1).

 

Family Proceedings Act 1980, S.N.Z. 1980, No. 94, s. 169(1), (2).

 

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), Arts. 17, 19(3).

 

Judicature Act, R.S.A. 1980, c. J‑1, ss. 30, 31.

 

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 12.

 

Authors Cited

 

Bentham, Jeremy.  Rationale of Judicial Evidence, vol. 1.  London:  Hunt & Clarke, 1827.

 

Bentham, Jeremy.  Treatise on Judicial Evidence.  London:  J. W. Paget, 1825.

 

Blackstone, Sir William.  Commentaries on the Laws of England, vol. III.  Oxford:  Clarendon Press, 1768.

 

Bloustein, Edward J.  "Privacy as an Aspect of Human Dignity:  An Answer to Dean Prosser" (1964), 39 N.Y.U. L. Rev. 962.

 

Canada.  Statistics Canada.  Divorce:  Law and the Family in Canada.  Ottawa:  Minister of Supply and Services Canada, 1983.

 

Canada.  Statistics Canada.  Marriages and Divorces:  Vital Statistics 1985, vol. II.  Ottawa:  Minister of Supply and Services Canada, 1986.

 

Canada.  Statistics Canada.  Marrying and Divorcing:  A Status Report for Canada.  Ottawa:  Minister of Supply and Services, 1988.

 

Cohen, Anne Elizabeth.  "Access to Pretrial Documents Under the First Amendment" (1984), 84 Colum. L. Rev. 1813.

 

Fried, Charles.  "Privacy" (1968), 77 Yale L. J. 475.

 

Gross, Hyman.  "The Concept of Privacy" (1967), 42 N.Y.U. L. Rev. 34.

 

Howland, W. G. C. et al.  "Reports on the Administration of Justice in Ontario on the Opening of the Courts for 1988" (1989), 23 L. Soc. Gaz. 4.

 

Prosser, William. L.  "Privacy" (1960), 48 Calif. L. Rev. 383.

 

Schiff, Stanley.  Evidence in the Litigation Process, vol. 2, 3rd ed.  Toronto:  Carswells, 1988.

 

Stoljar, Samuel.  "A Re‑examination of Privacy" (1984), 4 Legal Studies 67.

 

United Kingdom.  Royal Commission on Divorce and Matrimonial Causes.  Report of the Royal Commission on Divorce and Matrimonial Causes.  London:  King's Printer, 1912.

 

United Kingdom.  Select Committee on the Matrimonial Causes.  Report and Special Report from the Select Committee on the Matrimonial Causes (Regulation of Reports) Bill.  London:  King's Printer, 1923.

 

Warren, Samuel D. and Louis D. Brandeis, "The Right to Privacy" (1890), 4 Harv. L. Rev. 193.

 

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 6.  Revised by James H. Chadbourn.  Boston:  Little, Brown & Co., 1976.

 

    APPEAL from a judgment of the Alberta Court of Appeal (1987), 53 Alta. L.R. (2d) 193, 78 A.R. 375, 41 D.L.R. (4th) 502, [1987] 5 W.W.R. 385, 34 C.R.R. 111, affirming a judgment of Foster J. (1985), 40 Alta. L.R. (2d) 326, 63 A.R. 114, 22 D.L.R. (4th) 446, [1986] 1 W.W.R. 453, 23 C.R.R. 356.  Appeal allowed, La Forest, L'Heureux‑Dubé and Sopinka JJ. dissenting in part.

 

    Allan Lefever and Fred Kozak, for the appellant.

 

    Nolan D. Steed, for the respondent the Attorney General for Alberta.

 

    David Lepofsky and Timothy Macklem, for the intervener.

 

    The judgment of Dickson C.J. and Lamer and Cory JJ. was delivered by

 

//Cory J.//

 

    CORY J. -- On this appeal the appellant has challenged the validity of s. 30 of the Alberta Judicature Act, R.S.A. 1980, c. J-1, on the grounds that it contravenes s. 2( b )  of the Canadian Charter of Rights and Freedoms  and that the section does not constitute a reasonable limit upon that right so as to come within s. 1  of the Charter .  The Attorney General for Alberta has conceded that the impugned section contravenes s. 2( b )  of the Charter  but contends that it constitutes a reasonable limit and thus comes within the scope of s. 1  of the Charter . 

 

    It may be convenient here to set out s. 30 and the enforcement provision of s. 31.  Those sections provide:

 

30(1)  No person shall within Alberta print or publish or cause or procure to be printed or published in relation to a judicial proceeding in a court of civil jurisdiction in Alberta for dissolution of marriage or nullity of marriage or for judicial separation or for restitution of conjugal rights or in relation to a marriage or an order, judgment or decree in respect of a marriage, any matter or detail the publication of which is prohibited by this section, or any other particulars except

 

(a) the names, addresses and occupations of the parties and witnesses,

 

(b) a concise statement of the charges, defenses and counter-charges in support of which evidence has been given,

 

(c) submissions on a point of law arising in the course of the proceedings and the decision of the court thereon, and

 

(d) the summing up of the judge and the finding of the jury, if any, and the judgment of the court and observations made by the judge in giving judgment.

 

(2)  No person shall, before the trial of any proceedings had in a court of civil jurisdiction in Alberta or, if there is no trial, before the determination of the proceedings within Alberta, print or publish or cause to be printed or published anything contained in a statement of claim, statement of defence or other pleading, examination for discovery or in an affidavit or other document other than

 

(a) the names and addresses of the parties and their solicitors, and

 

(b) a concise statement of the nature of the claim or of the defence, as the case may be, in general words such as, "the claim is for the price of goods sold and delivered", or "the claim is for damages for personal injuries caused by the negligent operation of an automobile", or as the case may be.

 

(3) Nothing in this section applies

 

(a) to the printing of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding,

 

(b) to the communication of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding to persons concerned in the proceeding,

 

(c) to the printing or publishing of a notice or report pursuant to an order or direction given by a court competent to so order or direct, or

 

(d) to the printing or publishing of a matter

 

(i)  in a separate volume or part of a bona fide series of law reports that does not form part of another publication and that consists solely of reports of proceedings in courts of law, or

 

(ii) in a publication of a technical character bona fide intended for circulation among members of the legal or medical professions.

 

31(1)  A person who contravenes section 30 is guilty of an offence and, in respect of each offence, liable

 

(a) if a natural person to a fine of not more than $1000 and in default of payment to imprisonment for a term of not more than one year, and

 

(b) if a corporation to a fine of not more than $5000.

 

(2)  When the offence consists in the printing and publication of a matter, detail or thing in a newspaper, circular or other publication printed and published in Alberta, the proprietor of the newspaper, the editor of the newspaper and the publisher are each guilty of the offence.

 

(3)  When the offence consists of the publication in Alberta of a matter or thing contained in a newspaper, circular or other publication that is printed outside Alberta and that continually or repeatedly publishes writings or articles that are obscene, immoral or otherwise injurious to public morals, every person within Alberta is guilty of an offence who

 

(a) receives that newspaper, circular or other publication, and

 

(b) is engaged in the public distribution of it or does an act or thing for the purpose of the public distribution of it.

 

(4) In a prosecution with respect to an offence under subsection  (3), the fact that the accused was in possession of more than 6 copies of a newspaper, circular or other publication referred to in subsection (3) is prima facie proof that the accused was engaged in the public distribution of it.

 

(5)  No prosecution for an offence under subsection (3) may be commenced by any person without the consent of the Attorney General.

 

The issues raised require consideration of ss. 1  and 2( b )  of the Charter .  These sections provide:

 

    1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

    2.  Everyone has the following fundamental freedoms:

 

                                                                          . . .

 

(b)  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

 

Importance of s. 2( b )  of the Charter  and the Reporting of Court Proceedings

 

    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.  No doubt that was the reason why the framers of the Charter  set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8  of the Charter  which guarantees the qualified right to be secure from unreasonable search.  It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.

 

    The vital and fundamental importance of freedom of expression has been recognized in decisions of this Court.  In RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, McIntyre J., speaking for the majority, put the position in this way at p. 583:

 

Freedom of expression is not, however, a creature of the Charter .  It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society.  Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

 

    The importance of freedom of expression has been recognized since early times:  see John Milton, Areopagitica; A Speech for the Liberty of Unlicenc'd Printing, to the Parliament of England (1644), and as well John Stuart Mill, "On Liberty" in On Liberty and Considerations on Representative Government (Oxford 1946), at p. 14:

 

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

 

And, after stating that "All silencing of discussion is an assumption of infallibility, he said, at p. 16:

 

Yet it is as evident in itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present.

 

    Nothing in the vast literature on this subject reduces the importance of Mill's words.  The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy.

 

    There can be no doubt that the courts play an important role in any democratic society.  They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations.  The more complex society becomes, the more important becomes the function of the courts.  As a result of their significance, the courts must be open to public scrutiny and to public criticism of their operation by the public.

 

    The importance of the concept that justice be done openly has been known to our law for centuries.  In Blackstone's Commentaries on the Laws of England (1768), vol. III, c. 23, at p. 373, the following observation appears:

 

    This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk . . .

 

    This principle has been recognized by the United States Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368 (1979).  Stewart J., writing for the majority, said this (at p. 386, n. 15):

 

As early as 1685, Sir John Hawles commented that open proceedings were necessary so "that truth may be discovered in civil as well as criminal matters".  [Emphasis in original.]

 

In the United States this principle is not restricted to hearings.  The principle embraces the recognition of the existence of a common law right "to inspect and copy public records and documents, including judicial records and documents".  See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), at p. 597.

 

    In Canada this Court has emphasized the importance of the public scrutiny of the courts.  It was put in this way by Dickson J., as he then was, writing for the majority in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at p. 185:

 

Many times it has been urged that the `privacy' of litigants requires that the public be excluded from court proceedings.  It is now well established, however, that covertness is the exception and openness the rule.  Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered.  As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.  The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, are apposite and were cited with approval by Duff J. in Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339 at p. 359:

 

    Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known.  The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.

 

He then went on to discuss the application of that same principle to court records.  He observed that Canadian law differs somewhat from the law of England which appears to take a more restrictive approach towards the publicity of documents.  He said this at p. 189:

 

    Undoubtedly every court has a supervisory and protecting power over its own records.  Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose.  The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.

 

    I am not unaware that the foregoing may seem a departure from English practice, as I understand it, but it is in my view more consonant with the openness of judicial proceedings which English case law would seem to espouse.

 

    It can be seen that freedom of expression is of fundamental  importance to a democratic society.  It is also essential to a democracy and crucial to the rule of law that the courts are seen to function openly.  The press must be free to comment upon court  proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny.

 

    There is another aspect to freedom of expression which was recognized by this Court in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712.  There at p. 767 it was observed that freedom of expression "protects listeners as well as speakers".  That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts.  Here the press plays a fundamentally important role.  It is exceedingly difficult for many, if not most, people to attend a court trial.  Neither working couples nor  mothers or fathers house-bound with young children, would find it possible to attend court.  Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court.  It is only through the press that most individuals can really learn of what is transpiring in the courts.  They as "listeners" or readers have a right to receive this information.  Only then can they make an assessment of the institution.  Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court.  Practically speaking, this information can only be obtained from the newspapers or other media.

 

    It is equally important for the press to be able to report upon and for the citizen to receive information pertaining to court documents.  It was put in this way by Anne Elizabeth Cohen in her article "Access to Pretrial Documents Under the First Amendment" (1984), 84 Colum. L. Rev. 1813, at p. 1827:

 

Access to pretrial documents furthers the same societal needs served by open trials and pretrial civil and criminal proceedings.  Court officials can be better evaluated when their actions are seen by informed, rather than merely curious, spectators.

 

It is against this background which recognizes the crucial importance of both the freedom of expression and the openness of courts that s. 30 of the Alberta Judicature Act must be considered.

 

The Effect of the Prohibitions Contained in s. 30 of the Alberta Legislation

 

    It will be recalled that s. 30(1) prohibits printing and publishing "in relation to a judicial proceeding in a court of civil jurisdiction in Alberta for dissolution of marriage or nullity of marriage or for judicial separation or for restitution of conjugal rights or in relation to a marriage or an order, judgment or decree in respect of a marriage, any matter or detail the publication of which is prohibited by this section".   The section then goes on to set out the exceptions: (a) the names, addresses and occupations of the parties and witnesses; (b) a concise statement of the charges, defences and counter-charges in support of which evidence has been given; (c) submissions on a point of law arising in the course of the proceedings and the decision of the court thereon, and (d) the summing up of the judge and the finding of the jury, if any, and the judgment of the court and the observations made by the judge in giving judgment.

 

    The sweeping effect of the prohibition can be readily seen.  The term "or in relation to a marriage" is a broad one.  It encompasses matters pertaining to custody of children, access to children, division of property and the payment of maintenance.  All are matters of public interest yet the evidence given on any of these issues cannot be published.  The dangers of this type of restriction are obvious.  Members of the public are prevented from learning what evidence is likely to be called in a matrimonial cause, what might be expected by way of division of property and how that evidence is to be put forward.  Neither would they be aware of what questioning might be expected.  These are matters of great importance to those concerned with the application of family law.  It is information people might wish to have before they even consider   consulting a lawyer.  The very people who would seem to have the greatest need to know of family court proceedings are prevented from obtaining important information by the provisions of s. 30. 

 

    As well, the comments of counsel and the presiding judge are excluded from publication.  How then is the community to know if judges conduct themselves properly.  How will it know whether remarks might have been made, for example, that a wife should submit to acts of violence from her husband or that a wife should endure the verbal abuse or blows of her husband.  The community has a right to know if such remarks are made yet if there is no right to publish, the judge's comments may be hidden from public view.  Thus it can be seen that the effect of s. 30(1) is to repress the publication of important aspects of court proceedings.  The prohibitions are unnecessarily extensive.

 

    With regard to s. 30(2), it creates an almost total restriction on providing information pertaining to pleadings or documents filed in any civil proceedings before they have been heard.  Thus cases involving matters of administrative law or constitutional law are affected by the prohibition.  People are prevented from learning the particular allegations made in these cases although they may have a vital impact on the lives of all the residents of the province.  The restriction set out in s. 30(2) is unique to the province of Alberta.

 

Contraventions of s. 2(b)

 

    There can be no doubt that the provisions of s. 30(1) and (2) of the Alberta Judicature Act contravene s. 2( b )  of the Charter .  This was recognized by the Alberta Court of Appeal and conceded by the Attorney General for Alberta before this Court.  The legislation then can only be saved if the province of Alberta has satisfied the onus which it must bear to show that the section constitutes a reasonable limitation that comes within the purview of s. 1  of the Charter .

 

Consideration of s. 1  of the Charter 

 

    In order to constitute a reasonable limitation contemplated by s. 1  of the Charter , the impugned section must meet the criteria set forth in R. v. Oakes, [1986] 1 S.C.R. 103.  There Dickson C.J., speaking for the majority, indicated that the legislation in question has to satisfy two sets of conditions if it is to meet the test under s. 1.  The first is that the objective of the impugned legislation which sought to impose a limit on a Charter  right must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (p. 138).  Quoting R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, he observed that the standard must be high in order to ensure that objectives of a trivial nature did not gain s. 1 protection.  The objective must be of a pressing and a substantial nature before it can be characterized as sufficiently important to override a Charter  right.  Second, "the means chosen to attain those objectives must be proportional or appropriate to the ends":  R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 768.

 

    Considering that first condition, what then are the objectives of this legislation?  There were three put forward by the Attorney General for Alberta.  First, it was said that the aim of the legislation, particularly s. 30(1), was to safeguard public morals.  Undoubtedly this was the primary basis for the enactment of the legislation in 1935.  However, it must be reviewed by current standards and it cannot be accepted that this objective remains pertinent in today's society.  Although allegations of adultery and the misconduct of the parties may have been the height of scandal at the time of the passage of the legislation they  can hardly raise an eyebrow today.  Television in day-time soap operas and prime time programmes, the movies and magazines, all deal in considerable and colourful detail with every possible permutation and combination of human relationships.  That is now the staple fare of society.  By comparison the evidence of a matrimonial case is very tame fare indeed.  The problems before the court in matrimonial causes could not conceivably be said to so affect public morals that the public should be shielded from the proceedings.

 

    The Attorney General for Alberta submitted that a second purpose of the legislation was to ensure access to the courts by people who might wish to litigate matrimonial matters.  It was said that if people had knowledge that their case would be the subject of printed reports they might not seek to achieve their rights in court.  But no evidence was introduced to support the contention that in the absence of s. 30(1), potential litigants would be dissuaded from going to court.  Indeed, what statistical evidence there is suggests the opposite.  The Statistics Canada Report, Marrying and Divorcing:  A Status Report of Canada (1988), indicates that in the period from 1984 to 1986, no less than 28 per cent of all marriages ended in divorce compared with 19 per cent in the period 1970 to 1972.  This amounts to almost one-third of marriages and the rate of divorce is far higher with younger couples.  Furthermore, the Report concludes at p. 11 that "Canadians marry, divorce and remarry at uniform rates from one end of the country to the other".  A historical comparison is enlightening.  In 1984, the divorce rate was some 20 times higher than in 1935, and some 40 times higher than in 1920:  see Statistics Canada, Divorce:  Law and the Family in Canada (1983), at p. 48, and Marriages and Divorces:  Vital Statistics 1985 (1986), vol. II, at p. 2.  The grounds alleged for these marriage breakdowns are revealing as well.  The most recent unpublished Statistics Canada figures on grounds for divorce show that for the period of December 1, 1987 to June 30, 1988, 82.8 per cent of divorces were on grounds of one year of separation, 5.4 per cent for adultery, 6.4 per cent for physical cruelty and 5.4 per cent for mixed grounds.  Indeed, in Ontario well over 90 per cent of the divorces that appeared on the trial list were undefended:  see "Reports on the Administration of Justice in Ontario on the Opening of the Courts for 1988" (1989), 23 L. Soc. Gaz. 4, at p. 24.

 

    The question of access to judicial proceedings must be judged against this background of modern family law which has developed new mechanisms for helping parties to resolve their problems.  In particular, the statistics demonstrate that departure from the fault-based model of divorce has in large measure eliminated the legal stigma attached to marriage breakdown.  In light of the statistics it is difficult to accept the submission that access to court proceedings is significantly impeded by fear of publicity in the press.  One need only observe the large number of actions for divorce and corollary relief brought in every province to recognize that litigants are coming to court in large numbers in those provinces where there is no mandatory press ban in place.  Thus there is no indication that people are not seeking to enforce their rights in matrimonial causes.  As well it is clear that adultery is not the predominant ground put forward as the basis for divorce.

 

    Thirdly, it was alleged that the legislation was aimed at protecting the privacy of individuals.  This aspect or aim of the legislation does indeed relate to a pressing and substantial concern in a free and democratic society.  Our society has cherished and given protection to privacy.  This Court has on a number of occasions underlined the importance of the privacy interest in Canadian law.  See Attorney General of Nova Scotia v. MacIntyre, supra; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60; R. v. Amway Corp., [1989] 1 S.C.R. 21, at p. 40, and R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28.  It is of such importance that on this view it can be said that s. 30(1) has met the first of the two conditions enunciated in R. v. Oakes, supra.

 

    With regard to s. 30(2), the Attorney General for Alberta submitted that its purpose was two-fold, to ensure the right to a fair trial and to protect reputation and privacy.  I will assume, for the purposes of these reasons, that s. 30(2) as well meets that first test and that both the objectives, that of securing a fair trial and that of protecting the right to privacy with regard to pre-trial documents constitute pressing and substantial objectives sufficient to permit the overriding of the right to freedom of expression.

 

    Once a sufficiently significant objective has been demonstrated then the party invoking s. 1 (here the province of Alberta) must show that the means chosen are reasonable and demonstrably justified in order to satisfy the proportionality test set forth in Oakes, supra.

 

    In R. v. Whyte, [1988] 2 S.C.R. 3, at p. 20, Dickson C.J. noted that there are three components of the proportionality test:

 

. . . the measures must be carefully designed to achieve the objective of the legislation, with a rational connection to the objective.  The second component is that the measure should impair the right or freedom as little as possible.  Finally, there must be proportionality between the effects of the impugned measures on the protected right and the attainment of the objective.

 

    Section 30 neither impairs the right of freedom of expression as little as possible nor is there the required proportionality between the effect of the impugned measure on the protected right and the attainment of the objective.  Both ss. 30(1) and 30(2) go much further than is necessary to protect the privacy of persons involved in proceedings.  Their deleterious effect has been noted.

 

    It can be seen that if, for example, a newspaper chose to publish a story which scrupulously avoided revealing the identity of parties or witnesses but discussed in general terms the kind of evidence introduced in matrimonial proceedings, the newspaper would be in contravention of s. 30(1) and subject to a fine even though no privacy interest had been affected.  Similarly, if a newspaper chose to comment on the conduct or remarks of a judge or counsel during court proceedings, then although this would not be an invasion of privacy, the newspaper would be in contravention of the section.  The exceptions provided in s. 30(1) do not permit a proper reporting of the proceedings and cannot be said to constitute a minimal interference with the right of freedom of expression.

 

    Nor can it be said that there is the requisite proportionality between the overly restrictive provisions of s. 30(1) and the important right to report freely upon trial proceedings.  In today's society it is the press reports of trials that make the courts truly open to the public.  The principle that courts must function openly is fundamental to our system of justice.  The public's need to know is undeniable.  Section 30 by its restrictive ban on publication results in a very substantial interference with freedom of expression and significantly reduces the openness of the courts.  Any need for the protection of privacy of witnesses or children could be readily accomplished by far less sweeping measures.  For example, it could be accomplished by the exercise of discretion by the trial judge to prohibit publication or to hold in-camera hearings in those few circumstances where it would be necessary to do so in order to protect the privacy interest of parties, their children or witnesses.

 

    The importance of freedom of expression and of public access to the courts through the press reports of the evidence, arguments and the conduct of judges and judicial officers is of such paramount importance that any interference with it must be of a minimal nature.

 

    It cannot be said that s. 30(1) interferes as little as possible with the fundamentally important right to freedom of expression particularly as it applies to informing the public of court proceedings.  Nor does it reflect that proportionality which is required between the effect of the measure and the attainment of the objectives.

 

    Counsel for the Attorney General for Alberta took the position that the exceptions set out in s. 30(1) permitted the publication of sufficient details so that the ban on publication was minimal.  In support of his position he placed great stress upon the decision of this Court in Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, particularly that portion of the reasons by Lamer J., speaking for the Court, as follows at p. 132:

 

Obviously, since fear of publication is one of the factors that influences the reporting of sexual assault, certainty with respect to non-publication at the time of deciding whether to report plays a vital role in that decision.  Therefore, a discretionary provision under which the judge retains the power to decide whether to grant or refuse the ban on publication would be counterproductive, since it would deprive the victim of that certainty.  Assuming that there would be a lesser impairment of freedom of the press if the impugned provision were limited to a discretionary power, it is clear, in my view, that such a measure would not, however, achieve Parliament's objective, but rather defeats it.  [Emphasis in original.]

 

However, Justice Lamer was careful to note that the ban in those circumstances was a minimal impairment of a freedom of expression.  At page 133 he stated:

 

The section applies only to sexual offence cases, it restricts publication of facts disclosing the complainant's identity and it does not provide for a general ban but is limited to instances where the complainant or prosecutor requests the order or the court considers it necessary.  Nothing prevents the media from being present at the hearing and reporting the facts of the case and the conduct of the trial.  Only information likely to reveal the complainant's identity is concealed from the public.

 

    In the case at bar the restriction is much broader.  As noted earlier, the publishing ban is wide and sweeping in its effect.  In the circumstances the Canadian Newspapers case is distinguishable and the reasoning is not applicable to s. 30 of the Judicature Act.

 

    The Attorney General for the province of Alberta also observed that s. 30(1) of the Alberta legislation was in virtually the same wording as s. 166(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 .  He sought comfort in the fact that thus the two jurisdictions of the Dominion of Canada as well as the province had passed such legislation.  However, it is interesting to note that there are no reported cases under that section of the Criminal Code .  Nor do I think this supports his position.  The lack of cases pertaining to this section of the Code may indicate that its provisions have fallen into disuse, or that it had never been necessary or appropriate to bring them into play.  It may reflect no more than a wise manifestation of the exercise of prosecutorial discretion.

 

    Counsel for the Attorney General for Alberta argued that s. 30(2) was necessary in order to ensure a fair trial of actions and to protect the privacy of individuals.  It may well be that in certain situations those considerations will require the court to take measures to ensure that some portions of the documents filed in judicial proceedings are not published.   Nevertheless, the provision is far too broad. The legislation would ban the publication of court documents that might have a wide public interest and would prevent the public from knowing about a great many issues in which discussion should be fostered.  For example, all actions involving government agencies, administrative boards and tribunals would seem to have a far greater interest for the public than most private litigation.  Even in private actions the public might have an interest in knowing the submissions put forward in claims such as those for wrongful dismissal or for personal damages.  Yet the details of those actions could not be published.  Section 30(2) is overly broad and repressive.

 

    When it considered s. 30(2) the Alberta Court of Appeal relied on the decision of the House of Lords in the Sunday Times case which had a long litigious history.  An injunction against publication had been granted by the judges of first instance, [1973] Q.B. 710 (Div. Ct.)  It was removed by the Court of Appeal for the reasons given by Lord Denning, M.R., [1973] 1 All E.R. 815 (C.A.)  The injunction was then restored by the House of Lords, [1974] A.C. 273.  The case was then taken to the European Court of Human Rights (judgment of 26 April 1979, Series A No. 30) which set aside the decision of the House of Lords.  In the course of its reasons the majority of that court had this to say at pp. 41-42:

 

    The thalidomide disaster was a matter of undisputed public concern.  It posed the question whether the powerful company which had marketed the drug bore legal or moral responsibility towards hundreds of individuals experiencing an appalling personal tragedy or whether the victims could demand or hope for indemnification only from the community as a whole; fundamental issues concerning protection against and compensation for injuries resulting from scientific developments were raised and many facets of the existing law on these subjects were called in question.

 

    As the Court has already observed, Article 10 guarantees not only the freedom of the press to inform the public but also the right of the public to be properly informed.

 

    In the present case, the families of numerous victims of the tragedy, who were unaware of the legal difficulties involved, had a vital interest in knowing all the underlying facts and the various possible solutions.  They could be deprived of this information, which was crucially important for them, only if it appeared absolutely certain that its diffusion would have presented a threat to the "authority of the judiciary".

 

These words are apposite to a consideration of s. 30(2) and should govern the decision made pertaining to that subsection.

 

    As well it is not without significance that the ban prescribed by s. 30(2) of the Alberta legislation is unique to that province.  No other jurisdiction in Canada has found it necessary to impose such a restriction.

 

    Further, there can be no doubt that in order to ensure a fair trial and to protect privacy interests, the court can always use its supervisory power over its own record to grant restraining orders in appropriate cases.

 

    For the foregoing reasons, I am led to the conclusion that s. 30(2) does not interfere as little as possible with the vitally important fundamental right of freedom of expression, particularly as it applies to informing the public as to pending court proceedings.  Nor does it reflect that proportionality which is required between the effect of the measure and the attainment of the objectives.

 

Summary

 

    I recognize that the limitation imposed by the legislation under attack need not be either the best possible limitation nor does it have to be the least intrusive legislation imaginable.  Nevertheless it must be a reasonable limit.  The proportionality test must vary depending on the circumstances of each case presented to the Court.  Here the legislation in issue is not like legislation fixing the age of children at which advertising may be directed as in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.  Nor is it like legislation fixing the maximum number of employees a firm could have to be eligible for an exemption from Sunday closing rules as in R. v. Edwards Books and Art Ltd., supra.  Rather in this case the Court must balance the interest of society as a whole in freedom of expression and the right of the public to know of court proceedings against the bans imposed on publication by s. 30(1) and (2) of the Alberta legislation.  In my view it is apparent that the impugned legislation is not carefully designed to achieve the objective of protecting privacy, nor does it affect as little as possible the vitally important rights and freedoms in question.  Neither s. 30(1) nor 30(2) can be upheld by reference to s. 1  of the Charter .

 

Re Section 15  of the Charter 

 

    The appellant argued that the legislation contravened s. 15  of the Charter  as the press was singled out from all the news media and made subject to fines for printing and for publishing.  Because, as is conceded, the legislation contravenes s. 2(b), and in light of the conclusion that it cannot be justified pursuant to s. 1  of the Charter , it is not necessary to deal with this argument.

 

Disposition

 

    I would allow the appeal with costs and answer the constitutional questions as follows:

 

1.Does s. 30 of the Judicature Act, R.S.A. 1980, c. J-1, infringe or deny the right of freedom of expression guaranteed by s. 2( b )  of the Canadian Charter of Rights and Freedoms ?

 

Answer:  Yes.

 

2.If the answer to question 1 is yes, is s. 30 of the Judicature Act justified under s. 1  of the Charter ?

 

Answer:  No.

 

3.Does s. 30 of the Judicature Act infringe or deny the right to equality guaranteed by s. 15  of the Charter ?

 

Answer:  This question need not be answered.

 

4.If the answer to question 3 is yes, is s. 30 of the Judicature Act justified under s. 1  of the Charter ?

 

Answer:  This question need not be answered.

 

    The following are the reasons delivered by

 

//Wilson J.//

 

    WILSON J. -- I have had the benefit of reading the reasons of my colleagues Justice La Forest and Justice Cory and I am in agreement with the result they reach with respect to s. 30(2) of the Alberta Judicature Act, R.S.A. 1980, c. J-1. With respect to s. 30(1) of that Act, I have reached the same conclusion as Cory J., although for somewhat different reasons.

 

1.  Methodology of Charter Application

 

    In my view, this case raises an important issue regarding the proper method of application of the Canadian Charter of Rights and Freedoms  to individual cases and, because my reasons for finding s. 30(1) of the Alberta Judicature Act unconstitutional reflect one of two possible approaches to the Charter 's application, I thought it might be appropriate at the outset to say a word or two about the different approaches.

 

    Of the two possible approaches to the Charter 's application one might be described as the abstract approach and the other the contextual approach.  While the mechanics of application, i.e. the proper analytical steps to be taken are the same under each, which one is adopted may tend to affect the result of the balancing process called for under s. 1.

 

    Under each approach it is necessary to ascertain the underlying value which the right alleged to be violated was designed to protect.  This is achieved through a purposive interpretation of Charter  rights.  It is also necessary under each approach to ascertain the legislative objective sought to be advanced by the impugned legislation.  This is done by ascertaining the intention of the legislator in enacting the particular piece of legislation.  When both the underlying value and the legislative objective have been identified, and it becomes clear that the legislative objective cannot be achieved without some infringement of the right, it must then be determined whether the impugned legislation constitutes a reasonable limit on the right which can be demonstrably justified in a free and democratic society.

 

    It seems to me that under the abstract approach the underlying value sought to be protected by s. 2( b )  of the Charter  is determined at large as my colleague Cory J. has done.  He finds freedom of expression to have been fundamental to the historical development of our political, social and educational institutions in Canada.  He emphasizes the seriousness of restricting the free exchange of ideas and opinions in a democratic form of society and concludes that it is difficult to imagine a more important right in a democracy than freedom of expression.

 

    I do not disagree with my colleague that freedom of expression plays that vital role in a political democracy.  The problem is that the values in conflict in the context of this particular case are the right of litigants to the protection of their privacy in matrimonial disputes and the right of the public to an open court process.  Both cannot be fully respected.  One must yield to the exigencies of the other.  I ask myself therefore whether a contextual approach in balancing the right to privacy against freedom of the press under s. 1 is not more appropriate than an approach which assesses the relative importance of the competing values in the abstract or at large.

 

    It is of interest to note in this connection that La Forest J. completely agrees with Cory J. about the importance of freedom of expression in the abstract.  He acknowledges that it is fundamental in a democratic society.  He sees the issue in the case, however, as being whether an open court process should prevail over the litigant's right to privacy.  In other words, while not disputing the values which are protected by s. 2(b) as identified by Cory J., he takes a contextual approach to the definition of the conflict in this particular case.  Notwithstanding the enormous importance of freedom of expression in a political context, he finds that it must yield in the context of this case to the litigant's right to privacy.  The impugned legislation is accordingly, in his view, a reasonable limit on freedom of the press.  Cory J. reaches the converse conclusion and the concern raised is whether the difference in result may be conditioned by the methodology adopted in assessing the importance of the values in conflict.

 

    One thing seems clear and that is that one should not balance one value at large and the conflicting value in its context.  To do so could well be to pre-judge the issue by placing more weight on the value developed at large than is appropriate in the context of the case.  Nor should one, it seems to me, balance a private interest, i.e. litigant x's interest in his privacy against a public one, the public's interest in an open court process.  Both interests must be seen as public interests, in this case the public interest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process.

 

    It seems to me that the majority and minority decisions in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, were largely influenced by the different approaches taken by the members of the Court to freedom of association under s. 2( d )  of the Charter .  Chief Justice Dickson in his dissent clearly applied a combined purposive and contextual approach to the issue in that case.  He asked himself what the purpose of freedom of association was in the context of labour relations.  Why did workers associate to form unions?  What was the aim and object?  He stated at pp. 365-66:

 

    Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer.  Association has always been the means through which political, cultural and racial minorities, religious groups and workers have sought to attain their purposes and fulfil their aspirations; it has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.

 

And again at p. 368:

 

    The role of association has always been vital as a means of protecting the essential needs and interests of working people.  Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers.  The capacity to bargain collectively has long been recognized as one of the integral and primary functions of associations of working people.  While trade unions also fulfil other important social, political and charitable functions, collective bargaining remains vital to the capacity of individual employees to participate in ensuring fair wages, health and safety protections, and equitable and humane working conditions.

 

The Chief Justice concluded that the collective bargaining process was within the constitutional protection of s. 2(d). 

 

    The issue for the majority, however, was whether associational activities generally were constitutionally protected by s. 2(d), not whether the special kind of associational activities forming the subject of the dispute before the Court were protected by the section.  Quoting from Le Dain J. at pp. 390-91:

 

    In considering the meaning that must be given to freedom of association in s. 2( d )  of the Charter  it is essential to keep in mind that this concept must be applied to a wide range of associations or organizations of a political, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued.  It is in this larger perspective, and not simply with regard to the perceived requirements of a trade union, however important they may be, that one must consider the implications of extending a constitutional guarantee, under the concept of freedom of association, to the right to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

 

Since the activities of a golf or curling club were clearly not deserving of constitutional protection, the answer to the question the majority posed for themselves was clearly no.  Associational activities generally were not protected.  The collective bargaining process engaged in by unions was likewise not protected.

 

    One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the context.  It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute.  The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it.  It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1.

 

    It is my view that a right or freedom may have different meanings in different contexts.  Security of the person, for example, might mean one thing when addressed to the issue of over-crowding in prisons and something quite different when addressed to the issue of noxious fumes from industrial smoke-stacks.  It seems entirely probable that the value to be attached to it in different contexts for the purpose of the balancing under s. 1 might also be different.  It is for this reason that I believe that the importance of the right or freedom must be assessed in context rather than in the abstract and that its purpose must be ascertained in context.  This having been done, the right or freedom must then, in accordance with the dictates of this Court, be given a generous interpretation aimed at fulfilling that purpose and securing for the individual the full benefit of the guarantee.

 

2.  The Legislation

 

    I turn now to the impugned legislation and reproduce it here for convenience:

 

30 (1)  No person shall within Alberta print or publish or cause or procure to be printed or published in relation to a judicial proceeding in a court of civil jurisdiction in Alberta for dissolution of marriage or nullity of marriage or for judicial separation or for restitution of conjugal rights or in relation to a marriage or an order, judgment or decree in respect of a marriage, any matter or detail the publication of which is prohibited by this section, or any other particulars except

 

(a)  the names, addresses and occupations of the parties and witnesses,

 

(b)  a concise statement of the charges, defences and counter-charges in support of which evidence has been given,

 

(c)  submissions on a point of law arising in the course of the proceedings and the decision of the court thereon, and

 

(d)  the summing up of the judge and the finding of the jury, if any, and the judgment of the court and observations made by the judge in giving judgment.

 

                                                                          . . .

 

(3)  Nothing in this section applies

 

(a)  to the printing of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding,

 

(b)  to the communication of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding to persons concerned in the proceeding,

 

(c)  to the printing or publishing of a notice or report pursuant to an order or direction given by a court competent to so order or direct, or

 

(d)  to the printing or publishing of a matter

 

(i)  in a separate volume or part of a bona fide series of law reports that does not form part of another publication and that consists solely of reports of proceedings in courts of law, or

 

(ii)  in a publication of a technical character bona fide intended for circulation among members of the legal or medical professions.  [Emphasis added.]

 

    I note at the outset that my colleagues have reached different conclusions about the effect of these provisions.  Cory J. construes them as preventing the publication of any evidence called in a matrimonial cause as well as the comments of counsel and the presiding judge.  La Forest J., on the other hand, states that "s. 30(1) extends only to the particulars of the evidence in matrimonial and similar proceedings where individuals are required to divulge some of the most private aspects of their lives" (p. 000).  I agree with Cory J.'s interpretation.  I think that the legislation has placed quite serious limits on the publication of what goes on in a courtroom.  Section 30(1)(b) and (c) prohibit the press from publishing the details of evidence adduced in the course of a trial and s. 30(1)(d) prevents the press from reporting any remarks that the presiding judge may make other than his or her "summing up".

 

3.  The Open Court Process

 

    There can be little doubt that restricting the freedom of the press to report cases before the courts goes against the traditional emphasis which has been placed in our justice system upon an open court process.  Several reasons have been advanced in support of the importance of such a process.  The one most frequently advanced, and certainly the one with the deepest roots in the history of our law, stresses the importance of an open trial for the evidentiary process.  As Cory J. notes, Blackstone stressed that the open examination of witnesses "in the presence of all mankind" was more conducive to ascertaining the truth than secret examinations: see Blackstone's Commentaries on the Laws of England (1768), vol. III, c. 23, at p. 373.  Subsequently, in his Rationale of Judicial Evidence (1827), vol. 1, Jeremy Bentham explained at p. 522 that:

 

    The advantages of publicity are neither inconsiderable nor unobvious. In the character of a security, it operates in the first place upon the deponent;  and, in a way not less important ... upon the judge.

 

Dean Wigmore wrote extensively on the requirement that judicial proceedings be open to the public (Wigmore, Evidence, vol. 6 (Chadbourn rev. 1976), {SS} 1834) and noted (at pp. 435-36) that:

 

    Its operation in tending to improve the quality of testimony is two-fold.  Subjectively, it produces in the witness' mind a disinclination to falsify; first, by stimulating the instinctive responsibility to public opinion, symbolized in the audience, and ready to scorn a demonstrated liar; and next, by inducing the fear of exposure of subsequent falsities through disclosure by informed persons who may chance to be present or to hear of the testimony from others present.  Objectively, it secures the presence of those who by possibility may be able to furnish testimony in chief or to contradict falsifiers and yet may not have been known beforehand to the parties to possess any information.

 

    The operation of this latter reason was not uncommonly exemplified in earlier days in England, when attendance at court was a common mode of passing the time for all classes of persons . . . . The same advantage is gained, and much relied on, in more modern times, when the publicity given by newspaper reports of trials is often the means of securing useful testimony.  [Emphasis in original.]

 

    More recently the Supreme Court of the United States has addressed these considerations in a series of cases dealing with criminal trials. For example, in Gannett Co. v. DePasquale, 443 U.S. 368 (1979), Blackmun J. provides an extensive review of the history underlying the requirement that trials be held in open court and observes that there is strong evidence that the public trial, which developed before other procedural rights now routinely afforded the accused, was perceived as serving important social interests relating to the integrity of the trial process that existed quite apart from the interests of the litigants.   He emphasizes at p. 427 that there is no reason to think that the requirement is not equally important to-day:

 

    The courts and the scholars of the common law perceived the public-trial tradition as one serving to protect the integrity of the trial and to guard against partiality on the part of the court.  The same concerns are generally served by the public trial today.

 

    In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court of the United States again emphasized the importance of publicity in preserving the integrity of the evidentiary process.  Holding that the press's interest in being able to report what takes place in court is constitutionally protected by the First and Fourteenth Amendments of the United States Constitution, Chief Justice Burger went on to point out at pp. 572-73 that:

 

Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard . . . .

 

This is an important point and serves to remind us that any harm that may flow from limiting the press's ability to recount what takes place in court cannot readily be rationalized or minimized by saying that, although the press is constrained, the public is still free to attend.  The media are, as Chief Justice Burger so truly observed, "surrogates for the public".

 

    Another reason for allowing the press to provide complete accounts of what goes on in the courtroom is that an open trial is more likely to ensure that the judge and jury conduct themselves properly so as to inspire confidence in the litigants that the procedures followed and the results reached are fair.  In a criminal law setting the importance of an impartial judge and jury is obvious and the role of an open trial in compelling judge and jury to act responsibly has repeatedly been noted:  see Gannett v. DePasquale, supra, at p. 380, per Stewart J.; Richmond Newspapers, supra, at p. 593, per Brennan and Marshall JJ.; and Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986), at pp. 8 to 9, per Burger C.J.  This concern is obviously not confined to criminal trials.  We are all aware that judges presiding in matrimonial causes from time to time disclose outmoded attitudes to the marriage relationship which might well affect their decisions.  It is crucial that the press be able to report any statements of this nature made by a judge in the course of the proceedings.  Only in this way can the public be assured that the judiciary is capable of overcoming its own social biases and reflecting through their office the values of the community.

 

    Thus, not only is an open trial more likely to be a fair trial but it is also seen to be a fair trial and thereby contributes in a meaningful way to public confidence in the operation of the courts.  As Bentham observed in his Treatise on Judicial Evidence (1825), at p. 69:

 

    The effects of publicity are at their maximum of importance, when considered in relation to the judges; whether as insuring their integrity, or as producing public confidence in their judgments. [Emphasis in original.]

 

    It is also worth noting that there is an important educational aspect to an open court process.  It provides an opportunity for the members of the community to acquire an understanding of how the courts work and how what goes on there affects them.  Bentham recognized the importance of publicity in fostering public discussion of judicial matters, Treatise on Judicial Evidence, op. cit., at p. 68, and Wigmore pointed out in Evidence, op. cit., {SS} 1834, at p. 438, that "[t]he educative effect of public attendance is a material advantage.  Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy".  Dickson J., as he then was, reminded us of the importance of this when, writing for the majority in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, he stated at p. 185:

 

Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.  [Emphasis added.]

 

    In summary, the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the courtroom is rooted in the need (1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them.

 

    But in addition to the interest of the public at large in an open court process there may be compelling arguments in its favour related to the interests of litigants generally.  Many may feel vindicated by the public airing of the injustices they feel they have suffered alone and without any support in the community.  Indeed, this may be the first time that a spouse is able to speak openly about events that have taken place in the privacy of the home.  They may welcome the public endorsement of the system for what they have suffered in private ignominy.  I do not mean to suggest, of course, that in every marriage that runs into difficulty there will be a party anxious to tell his or her side of the story to the public.  But we cannot ignore the fact that for every litigant concerned about the adverse impact of publicity upon his or her image in the community there may be another equally concerned about public vindication and community support.

 

    For all of these reasons it seems to me that there would have to be very powerful considerations in order to justify inroads into the open court process.  The arguments in favour of the right of the press to report the details of judicial proceedings are strong.  Restrictions on that right clearly infringe s. 2( b )  of the Charter .  It is necessary therefore to determine whether s. 30(1) can be justified as a reasonable limit under s. 1.

 

4.  The Right to Privacy

 

    I agree with La Forest J. that the purpose of the legislation is to provide some measure of protection for a litigant's privacy.  But it is, in my view, important to identify what aspect of the broad concept of privacy is actually engaged by the impugned legislation.  Again, a contextual approach would seem to be appropriate.

 

    Privacy as a value deserving of protection by the law is not, of course, new.  It has traditionally been protected by the law of torts through causes of action such as trespass, assault and defamation.  Some have suggested that underlying these seemingly distinct torts is a unified concept of a relationship between privacy and human dignity:  see  S. D. Warren and L. D. Brandeis, "The Right to Privacy" (1890), 4 Harv. L. Rev. 193; E. J. Bloustein, "Privacy as an Aspect of Human Dignity:  An Answer to Dean Prosser" (1964), 39 N.Y.U. L. Rev. 962; and S. Stoljar, "A Re-examination of Privacy" (1984), 4 Legal Studies 67.  Not everyone agrees:  see W. L. Prosser, "Privacy" (1960), 48 Calif. L. Rev. 383.  Legal and political philosophers have engaged in extensive discussions about the value of privacy.  Charles Fried, for example, thought that the ability to control the nature of information imparted to others about oneself is "related to ends and relations of the most fundamental sort: respect, love, friendship and trust":  see C. Fried, "Privacy" (1968), 77 Yale L. J. 475, at p. 477; and for a similar point of view, see H. Gross, "The Concept of Privacy" (1967), 42 N.Y.U. L. Rev. 34.  It is worth noting, however, that even the most ardent exponents of the importance of a right to privacy do not suggest that it is an unqualified right.  Indeed, Warren and Brandeis accepted that privacy might on some occasions have to yield to the demands of "the public welfare or of private justice": see Warren and Brandeis, loc. cit., at p. 214, and Fried states that "[i]n concrete situations and actual societies, control over information about oneself, like control over one's bodily security or property, can only be relative and qualified": see Fried, loc. cit., at p. 486.

 

    This Court has recently considered the right to privacy in cases involving the search of a person's property without his or her consent (see Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Genest, [1989] 1 S.C.R. 59) and the search of a person's body without his or her consent (see R. v. Beare, [1988] 2 S.C.R. 387; R. v. Dyment, [1988] 2 S.C.R. 417; and R. v. Simmons, [1988] 2 S.C.R. 495).  While the Court in these cases has recognized the need to protect privacy, it has also consistently stressed that "[c]laims to privacy must, of course, be balanced against other societal needs, and in particular law enforcement":  see R. v. Dyment, supra, at p. 428, per La Forest J.; Hunter v.  Southam Inc., supra, at p. 159; R. v. Simmons, supra, at p. 526.

 

    This case addresses a somewhat different aspect of privacy, one more closely related to the protection of one's dignity.  It seems to me that the purpose of s. 30(1) of the Alberta Judicature Act is to afford some protection against the embarrassment or grief or loss of face that may flow from the publication of the particulars of one's intimate private life disclosed in the courtroom.  This Court has already discussed in R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 57 and 60, the psychological stress or trauma that can arise from violations of a person's emotional or physical integrity and it has adverted to the fact in Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 130, that such trauma can be the result of wide-spread publication of matters that are embarrassing or humiliating. In my view, this legislation addresses a similar concern, namely the personal anguish and loss of dignity that may result from having embarrassing details of one's private life printed in the newspapers.

 

    Two points are worth noting at this stage of the analysis.  First, the interest that the press might have in publishing evidence about a person's private life and the degree of embarrassment or humiliation that that person may suffer as a consequence are likely to depend on who that person is.  Clearly, it is not everyone's matrimonial disputes that are of consuming interest to the public and therefore to the media.  Nor does everyone involved in matrimonial litigation have a public persona the preservation of which is of paramount concern to him or her.  Second, the interest that the press might have in publishing details of a person's private life will also, no doubt, depend on the nature of the allegations made about such person's conduct.  As Cory J. points out, the "run of the mill" divorce proceeding is less likely to be of public interest than one that involves allegations of particularly immoral or aberrant behaviour.  I make these points, not to suggest that matrimonial disputes are not extremely upsetting and painful for all those involved in them as well as for members of their families, but to point out that the concern addressed by the impugned legislation does not impact uniformly on all litigants in matrimonial disputes but more particularly on some.

 

    The right to privacy was asserted unsuccessfully in McPherson v. McPherson, [1936] A.C. 177 (P.C.), which concerned a petition for divorce filed by Alberta's Minister of Public Works.  The action was tried in the judge's library which had the word "Private" on the door.  It was not the intention to exclude the public from the hearing.  The Judicial Committee of the Privy Council referred to Lord Halsbury's observation in Scott v. Scott, [1913] A.C. 417, at p. 440, that "every Court of justice is open to every subject of the King".  It was held that this was not a trial in "open court".  Lord Blanesburgh discussed the importance of the open court principle at pp. 200-202:

 

    To this rule, there are, it need hardly be stated, certain strictly defined exceptions.  Applications properly made in chambers, and infant cases, may be particularized.  But publicity is the authentic hall-mark of judicial as distinct from administrative procedure, and it can be safely hazarded that the trial of a divorce suit, a suit not entertained by the old Ecclesiastical Courts at all, is not within any exception.

 

                                                                          . . .

 

    And their Lordships, in reaching the conclusion that the public must be treated as having been excluded from the library on this occasion, have not been uninfluenced by the fact that the cause then being tried was an undefended divorce case.  To no class of civil action is Lord Halsbury's statement more appropriate.  In no class of case is the privilege more likely to be denied unless every tendency in a contrary direction, whenever manifested, is definitely checked.

 

                                                                          . . .

 

    And there is perhaps no available way to correct these tendencies more effectively than to require that the trial of these cases shall always take place, and in the fullest sense, in open court.  This requirement must be insisted upon because there is no class of case in which the desire of parties to avoid publicity is more widespread.  There is no class of case in which in particular circumstances, it can be so clearly demonstrated even to a judge that privacy in that instance would be both harmless and merciful.

 

                                                                          . . .

 

    These are some of the considerations which have led their Lordships to take a more serious view of the absence of the public from the trial of this divorce action than has obtained in the Courts below.  Influenced by them, their Lordships have felt impelled to regard the inroad upon the rule of publicity made in this instance  --unconscious though it was -- as one not to be justified, and now that it has been disclosed, as one that must be condemned so that it shall not again be permitted.  [Emphasis added.]

 

Lord Blanesburgh's remarks, in my view, provide a stern reminder of the importance of not allowing one's compassion for that limited group of people who are of particular interest to the public (because of who they are or what

they are alleged to have done) to undermine a principle which is fundamentally sound in its general application.

 

     In his discussion of exceptions to the general rule in favour of publicity Wigmore was quick to warn of the dangers of legislation that makes certain exceptions compulsory rather than giving the trial judge a discretion to deal with individual cases:  see Wigmore, op. cit., {SS} 1835, at pp. 449-50.  Perhaps as a consequence, the range of circumstances in which statutory provisions have been deemed necessary to protect the welfare of parties to litigation has been closely circumscribed.  As far as the relationship of marriage is concerned, it is of some interest to note that the rules of evidence that formerly placed restrictions on the compellability of the spouse of a party to litigation and on the admissibility of the spouse's evidence have now been relaxed by legislation in most jurisdictions in Canada:  see S. Schiff, Evidence in the Litigation Process (3rd ed. 1988), vol. 2, at p. 1015.  I think this is an expression of the growing acceptance of the proposition that the evidence of every person who can contribute to the ascertainment of the facts is needed and should be exposed to public scrutiny.  It is also of interest to note that evidence adduced in criminal trials, e.g. for sexual offences, and in civil trials, e.g. for bankruptcy, which also expose to public view details of individuals' personal lives and conduct, i.e. the accused or the bankrupt which they would no doubt prefer to keep private, often gives rise to great, if not greater, potential for embarrassment, grief, humiliation and loss of public esteem as the evidence in matrimonial litigation.  While matrimonial litigation may well involve allegations of cruel, immoral and aberrant behaviour which may, as La Forest J. points out, adversely impact on the children of the marriage, I think that legislation seeking to address that concern should do so specifically or through the grant of judicial discretion and should be strictly confined to that narrow range of cases.

 

5.  Section 1  of the Charter 

 

    In this case the values in conflict are the right of the public to an open court process, which includes the right of the press to publish what goes on in the courtroom, and the right of litigants to the protection of their privacy in matrimonial disputes.  It is clear that both values cannot be fully respected given the context in which they come into conflict in this case.  The question is whether s. 30(1) of the Alberta Judicature Act constitutes a reasonable limit on the freedom of the press which can be justified under s. 1  of the Charter .  My colleague La Forest J. concludes that it is a reasonable limit and my colleague Cory J. that it is not.

 

    I would respectfully agree with Cory J. that it is not a reasonable limit.  I agree with him that the first two requirements laid down in R. v. Oakes, [1986] 1 S.C.R. 103, are met.  The protection of privacy is a legitimate government objective and the impugned legislation is rationally connected to it.  I also agree with him that it lacks the required degree of proportionality.  I believe it is important to keep in perspective the proportion of matrimonial cases in which publication of the evidence would cause such severe emotional and psychological trauma and public humiliation for the parties and/or their children as to warrant a ban on publication.  There are unquestionably some cases where this is so but s. 30(1) of Alberta's Judicature Act is not restricted to such cases.  It encompasses all matrimonial causes presumably on the assumption that they are all inevitably attended by such consequences.  While this assumption may have been valid at one time, I think it is wholly unrealistic to make this assumption today.  Many allegations that might once have been acutely embarrassing and painful are today a routine feature of matrimonial causes to which little, if any, public stigma attaches.  While some "high profile" litigants may have reputations that will be harmed by revelations about their matrimonial behaviour, I do not think this warrants legislation as all-encompassing as s. 30(1) of the Alberta's Judicature Act.  Legislation seeking to place restrictions on freedom of the press in this area would, in my view, have to be much more carefully tailored.

 

6.  Section 15  of the Charter 

 

    In light of my conclusion with respect to ss. 2( b )  and 1  of the Charter , it is not necessary to deal with the appellant's contention that the impugned legislation violates s. 15  of the Charter .

 

7.  Disposition

 

    I would allow the appeal with costs and would answer the constitutional questions raised in this appeal as follows:

 

1.Does s. 30 of the Judicature Act, R.S.A. 1980, c. J-1, infringe or deny the right of freedom of expression guaranteed by s. 2( b)  of the Canadian Charter of Rights and Freedoms ?

 

Answer:  Yes.

 

2.If the answer to question 1 is yes, is s. 30 of the Judicature Act justified under s. 1  of the Charter ?

 

Answer:  No.

 

3.Does s. 30 of the Judicature Act infringe or deny the right to equality guaranteed by s. 15  of the Charter ?

 

Answer:  This question need not be answered.

 

4.If the answer to question 3 is yes, is s. 30 of the Judicature Act justified under s. 1  of the Charter ?

 

Answer:  This question need not be answered.

 

    The reasons of La Forest, L'Heureux-Dubé and Sopinka JJ. were delivered by

 

//La Forest J.//

 

    LA FOREST J. (dissenting in part) -- The principal point in this case involves the balancing of the freedom of the press and the individual's right to privacy under the Canadian Charter of Rights and Freedoms .  It also raises the application of s. 15  of the Charter  to corporations.

 

Facts

 

    The Edmonton Journal seeks a declaration that s. 30 of the Alberta Judicature Act, R.S.A. 1980, c. J-1, is inconsistent with s. 2( b )  and s. 15  of the Charter  which respectively guarantee freedom of the press and legal equality.  Both the trial judge, Foster J. (1985), 40 Alta. L.R. (2d) 326, and the Alberta Court of Appeal (1987), 53 Alta. L.R. (2d) 193 refused to make that declaration on the ground that the provision constituted a reasonable limit to s. 2(b) under s. 1  of the Charter  and that it did not violate s. 15.  In this Court, the Attorney General for Alberta conceded that s. 30 contravened s. 2( b )  of the Charter  so that the sole question on that aspect of the case is whether s. 30 constitutes a reasonable limit to the freedom of the press.

 

Section 30(2)

 

    My colleague, Justice Cory, has concluded that s. 30 does not constitute such a reasonable limit.  I agree with him that s. 30(2) which prohibits the publication before trial of anything contained in any pleading (except the names of the parties and the general nature of the claim or defence) is simply too broad a restriction without adequate justification to afford a defence under s. 1, and I shall say no more about it.  With respect, however, I do not share his view regarding the remainder of the section.

 

Sections 30(1) and 30(3)

 

    Sections 30(1) and 30(3) of the Alberta Judicature Act read as follows:

 

30(1)  No person shall within Alberta print or publish or cause or procure to be printed or published in relation to a judicial proceeding in a court of civil jurisdiction in Alberta for dissolution of marriage or nullity of marriage or for judicial separation or for restitution of conjugal rights or in relation to a marriage or an order, judgment or decree in respect of a marriage, any matter or detail the publication of which is prohibited by this section, or any other particulars except

 

(a)  the names, addresses and occupations of the parties and witnesses,

 

(b)  a concise statement of the charges, defences and counter-charges in support of which evidence has been given,

 

(c)  submissions on a point of law arising in the course of the proceedings and the decision of the court thereon, and

 

(d)  the summing up of the judge and the finding of the jury, if any, and the judgment of the court and observations made by the judge in giving judgment.

 

                                                                          . . .

 

(3) Nothing in this section applies

 

(a) to the printing of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding,

 

(b) to the communication of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding to persons concerned in the proceeding,

 

(c) to the printing or publishing of a notice or report pursuant to an order or direction given by a court competent to so order or direct, or

 

(d) to the printing or publishing of a matter

 

(i)  in a separate volume or part of a bona fide series of law reports that does not form part of another publication and that consists solely of reports of proceedings in courts of law, or

 

(ii) in a publication of a technical character bona fide intended for circulation among members of the legal or medical professions.

 

    In essence, the interdiction in s. 30(1) extends only to the particulars of the evidence in matrimonial and similar proceedings where individuals are required to divulge some of the most private aspects of their lives (a mortification perhaps equalled only by the interest people take in the intimate secrets of others).  The provision attempts to balance the public's right to know with the right of the individual, even in the open forums of the courts, to shield certain aspects of his or her existence from public scrutiny.  It also affords a modicum of protection to those who are drawn into matrimonial proceedings by "ricochet".  As noted by Kerans J.A. in the Court of Appeal, "concern for the effect on children, witnesses and the victims of false allegations remains valid today" (p. 206).

 

    This approach to the provision is reinforced by the considerable latitude provided for the reporting of matrimonial proceedings:  the parties and witnesses may be named, charges and defences may be summarized, and legal submissions, the summing up of the judge and the decision may be published without restriction.  As well, the principle of open court (about which I share my colleague's sentiments) is maintained and nothing is wholly excluded from publication.  Section 30(3) provides for various types of publication so as to balance the various social interests sought to be accommodated and in addition to the listed forms in which publication may take place, publication of other material may be allowed pursuant to an order of the court.

 

    The reading I have given to the provision as being confined to the broad publication of details of particulars of the evidence is fortified by an examination of its purpose.  The provision was taken from a similar one in England, which was incidentally later adopted in the Criminal Code , R.S.C., 1985, c. C-46 , s. 166 , as well as in various other parts of the Commonwealth; see Family Law Act 1975, S. Aust. 1975, No. 53, s. 121(1); Family Proceedings Act 1980, S.N.Z. 1980, No. 94, s. 169(1), (2).  The English provision originated from the recommendations of a Royal Commission on Divorce and Matrimonial Causes set up to consider concerns that had arisen out of the extensive and sensational press coverage of divorce trials; see Report of the Royal Commission on Divorce and Matrimonial Causes (1912), Part XVII.  This was followed by the establishment of a select committee of the British House of Commons which examined proposed legislation; see Report and Special Report from the Select Committee on the Matrimonial Causes (Regulation of Reports) Bill (1923).  The concerns expressed in these reports may thus be summarized:

 

(1)  The privacy of the parties involved in the proceedings and innocent third parties (including the children of the parties) was being violated.

 

(2)  Citizens were being discouraged from participating as witnesses or parties in the judicial process because of the threat of publicity.

 

(3)  The morals of society and in particular the youth of society were being adversely affected.

 

    The debates in the British House of Commons are replete with statements of these concerns and were mirrored in those leading to the adoption of the provincial statute.  These concerns were those relied upon by the Attorney General for Alberta in arguing that the impugned provisions constitute a reasonable limit to the freedom of the press.  I should add that the Royal Commission was fully mindful of the delicate balance that needs to be achieved between the rights sought to be protected and the requirements of a free press in playing its part in the interchange of information and ideas in a democratic society.  At paragraph 494 of its report, for example, it stated:

 

    With the evidence before us, we take it as established that the evils of excessive publication are real and serious.  When we come, however, to consider the remedies, we are confronted with a great variety of opinions.  On the one hand, it is admitted that the liberty of the Press should be exercised for the public benefit, and is not so exercised when it is used to disseminate among the masses of the people literature of a demoralising tendency; on the other hand, there is a genuine anxiety lest, in seeking to cure this abuse, we should obstruct the free play of a healthy public opinion.

 

The Values in Conflict

 

    I am, of course, in agreement with the general sentiments of my colleague regarding the importance in a free and democratic society of freedom of expression as well as the concept of open courts.  I share with Duff C.J. the view that the "right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions"; see Reference re Alberta Statutes, [1938] S.C.R. 100, at p. 133.  Equally, public scrutiny of the judicial branch of government is essential to a free society.  In all of this, I recognize as well the critical role of the press and other media in the broad dissemination of information and ideas in a complex modern society.  The Charter indeed expressly includes "freedom of the press and other media of communication" in its guarantee of freedom of expression.

 

    The freedom of the press and media, however, is not absolute.  Like other rights and freedoms guaranteed by the Charter , it is subject under s. 1  of the Charter  to such limits prescribed by law as can be demonstrably justified in a free and democratic society.  The necessity for this balancing has always been recognized in Canada.  Thus Duff C.J., in the course of the discussion in Reference re Alberta Statutes from which I have just cited, had this to say, at p. 133:

 

    The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned.  In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth, [1936] A.C. 578, "freedom governed by law."

 

See also Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 462-63.

 

    This Court has in recent cases recognized that freedom of expression, including the freedom of the press and other media, remains subject to restrictions since the enactment of the Charter  so long as these conform to the exigencies of s. 1; see Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; see also Re Global Communications Ltd. and Attorney General of Canada (1984), 5 D.L.R. (4th) 634 (Ont. C.A.)  This is consistent with the approach of the leading international instruments for the protection of human rights.  Thus Article 19(3) of the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), recognizes that the right to freedom of expression carries with it special duties and responsibilities and may, therefore, be subjected to certain restrictions; see also European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), Article 10(2).

 

    The question, then, becomes one of balancing the values sought to be protected by the Charter  guarantee against the values of a free and democratic society sought to be fostered by the proposed law.  The criteria to be taken into account in effecting this task have been frequently stated and I do not propose to itemize them here; see R. v. Oakes, [1986] 1 S.C.R. 103.  I shall, however, refer to them as I go along.  Here I should simply mention that the onus of establishing a reasonable limit to a guaranteed right is on those supporting the law, an onus the Attorney General for Alberta sought to establish on the grounds already mentioned.

 

    An important step in this process of balancing must of course involve an examination of the extent of the interference with a guaranteed right of freedom and an appreciation of the extent to which the interference affects the underlying purpose of the right or freedom; see United States of America v. Cotroni, [1989] 1 S.C.R. 1469.  Here the interference with the freedom is narrowly defined and carefully tailored.  It is limited to the details and particularities of the case in specific proceedings that deal with personal and family matters, often of a particularly private, and sometimes of an intimate character.  I share Kerans J.A.'s skepticism of the significance of the negative impact of the legislation on the freedom of the press and media, and the public right to be informed of matters of public interest.  As earlier noted, the principle of open courts is respected, publication for those having serious interest in court proceedings or family law is permitted, and all the general information about the nature of the case may be published by the mass media.  I find it difficult to take seriously the contention that the general public would learn very much about what their rights are or how their problems might be dealt with in court by permitting the revelation by the media of specific details of particular cases dealing with marital questions.  A general discussion of the kinds of evidence would not be caught by the prohibition, and there is sufficient information in the types of publications permitted to allow newspapers and other mass media to inform the general public of the nature of such evidence.  Kerans J.A. observes that while the appellant has published a newspaper in Alberta throughout the last fifty years, no evidence was presented of a single instance where the impugned provision forbade it from reporting something of which the public should have been informed.  Kerans J.A. concluded that the interference with the public's right to know how justice is administered is more apparent than real.

 

    If the legislation prohibited reporting about the conduct of judges and counsel, I would share the concerns of my colleague about the legislation.  But I do not think the legislation is directed to these matters.  It is aimed rather at the details and particularities of the case.  As long ago as Heydon's Case (1584), 3 Co. Rep. 7a, at p. 7b; 76 E.R. 637, at p. 638, we were instructed that legislation should be read in accordance with its purpose.  And what both the terms of the legislation itself and the problems identified by preparatory documents clearly reveal is that what the statute was intended to prohibit was not discussion of how courts go about their business, but reports of the details of people's lives that are routinely divulged in the proceedings referred to in the legislation.  To read the legislation in the literal way proposed would require that the names of the judges and lawyers involved not be revealed since they are not expressly named in the exceptions to the prohibition.  Such a construction is, I suggest, obviously unreasonable.

 

    As I see it, then, the contravention objected to is of a quite limited character.  As against the value infringed by such contravention must be weighed the other values of a free and democratic society sought to be promoted by the legislature, namely personal privacy, access to the courts, and public morals.  The Attorney General for Alberta concedes that the order of importance of these values has significantly altered since the legislation was originally enacted, but suggests their continued validity, some of greater, some of lesser weight than at that time.

 

    Today there is no question that the individual's interest in personal privacy is the most pressing of the justifications advanced.  That interest has been recognized by this Court as having constitutional significance.  In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, it was held to underlie the protection against unreasonable search and seizure enshrined in s. 8  of the Charter .  Speaking on this point on behalf of the Court in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28, I had this to say of the approach adopted in Hunter v. Southam Inc., supra:

 

    The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349-50.  Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual.  For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order.  The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

 

These considerations may well indicate that, in some contexts at least, privacy interests may well be invoked as an aspect of the liberty and security of the person guaranteed by s. 7  of the Charter ; see R. v. Beares, [1988] 2 S.C.R. 387, at p. 412.  However that may be, there can be no doubt that in this modern age, it ranks high in the hierarchy of values meriting protection in a free and democratic society.

 

    The right to personal privacy, including the privacy of one's family and home, has also been recognized by leading international documents aimed at the protection of human rights.  The International Covenant on Civil and Political Rights (Article 17), the Universal Declaration of Human Rights (Article 12), G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8) all contain provisions to ensure respect for the private and family life of the individual.

 

    The right or interest in privacy extends, of course, to informational privacy.  In R. v. Dyment, supra, at pp. 429-30, I thus commented on this aspect of privacy:

 

    Finally, there is privacy in relation to information.  This too is based on the notion of the dignity and integrity of the individual.  As the Task Force [on Computers and Privacy] put it (p. 13):  "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit."  In modern society, especially, retention of information about oneself is extremely important.  We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.  Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980-81-82-83, c. 111.

 

    That case and the instances there referred to had reference to governmental interferences with privacy.  But in our society, the privacy of the individual is as often threatened by other powerful or influential entities against which the individual is powerless.  It should come as no great revelation that the divulgation of personal information about an individual by the mass media can do incalculable harm to that individual and his or her family.  Small wonder, then, that the international documents I have just cited expressly underline that freedom of expression carries with it special duties and responsibilities and recognize the need for restrictions; see International Covenant on Civil and Political Rights, Article 19(3); Universal Declaration of Human Rights, Article 12; European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10(2).  I should observe interstitially that recent cases in this Court recognize that in considering issues of this kind, the relative power of those whose activities are restricted and those for whose benefit the restriction is made is a relevant factor to weigh in the equation; see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Irwin Toy, supra.

 

    In matrimonial cases, the individual is forced to reveal many aspects of his or her private life in order to comply with the demands of the state in ordering his or her life.  This necessary intrusion on family privacy, we saw, may have a serious impact not only on the litigants themselves but on witnesses and, even more important, children.  There has, no doubt, been a change in emphasis in the nature of evidence in matrimonial causes since the enactment of the Act but it remains true that much is revealed that can, if publicized, seriously affect the autonomy and privacy of the individual and members of his or her family, general publication of which serves little or no public interest.  As Kerans J.A. put it (at p. 206):  "While one hears less today in divorce court about `what the housemaid saw', one hears much more about the financial dealings of a family and other very private matters, like psychological assessments of the parties in terms of fitness as parents."

 

    The protection from intrusion on the privacy of the individual, the family and witnesses, in my view, in itself affords a sufficiently compelling objective to warrant some curtailment of the freedom of the press in the present context.  But privacy is not the only value sought to be protected; the provision was intended to prevent obstacles to access to the courts, an interest that is also clearly of great importance in a free and democratic society; see Canadian Newspapers Co. v. Canada (Attorney General), supra, where this Court upheld the restriction imposed by s. 442(3) of the Criminal Code, R.S.C. 1970, c. C-34, which enables the victim of sexual assault to require the issuance of a court order prohibiting the media from revealing the identity of the complainant on any information that could disclose that identity.  Similarly, it was argued, unrestrained publicity of the details of familial activities would very likely discourage some people from seeking relief in matrimonial causes.  That certainly appears to have been so when the original English legislation was enacted.  The number of matrimonial causes rose dramatically immediately afterwards.  While I am prepared to concede that this inhibitory effect of publicity would not be as strong today, I am satisfied that it continues to be a relevant factor.  The prospect of divulging personal information in a court of law is one that many a litigant and witness approaches with considerable trepidation.  It must be remembered that in many cases, the parties are undergoing one of the most painful experiences of their lives.  To be told in addition that one risks broad public exposure through the media would significantly increase this feeling.  I agree with Kerans J.A. that it would be a great wrong if those in need of redress shrank from seeking it because their intimate affairs would needlessly become publicly known.

 

    The Attorney General for Alberta attached little weight to the third justification, the protection of public morals, and I agree that in this day and age this ground is only of residual interest in the existing context.  But the other two grounds constitute sufficient legislative objectives to warrant a reasonable limitation on publication of the details of matrimonial disputes.  It is significant that similar objectives have been pursued in other countries.  I have mentioned the Commonwealth countries that have a similar Act.  The Royal Commission on the matter noted that foreign observers had expressed surprise at the lack of such provisions in Great Britain before the enactment of the predecessor of the impugned provision.

 

    I thus have no doubt of the rationality of the legislative response.  Moreover, given the very limited character of the restriction as compared with the serious deleterious effects on the important values sought to be protected by the legislation, I am also of the view that it meets the test of proportionality.

 

    The question, then, is whether the restriction is excessive to achieve its purposes or, as it is ordinarily put, whether the constitutional right is limited "as little as possible".  What will be "as little as possible" will vary depending on the legislative objective, the nature of the freedom or the right infringed, the extent of the infringement and the means available to the legislature to effect its objectives.  I have already referred to the limited nature of the restriction.  Only details and particularities of the case are prohibited from publication, and the prohibition is confined to matrimonial disputes where matters of a peculiarly private and sensitive nature often arise.  The areas are sufficiently clear and rationally based.  The legislature must be afforded reasonable leeway in "line drawing"; see R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy, supra.  It must also be given adequate scope as to the choice of response to problems.  There may, as was argued, be other ways to achieve the legislative purpose, for example, the protection of anonymity.  But there are difficulties with this too.  Public knowledge of divorce is necessary and attempts at securing anonymity may easily fail or be suspect by the litigant or witnesses.  At all events, the exceptions from the prohibition are extensive.

 

    The most serious attack on the provision, however, was the automatic character of the prohibition.  It was argued that a discretionary power in the judge to prohibit publication would be enough.  The trouble with this argument, as Kerans J.A. pointed out, is that it had been tried and proved ineffective.  The Select Committee of the British House of Commons had this to say about it (at p. iv):

 

It has sometimes been suggested that a simple solution can be found by empowering Judges, at their discretion to forbid publication of any evidence or other part of the proceedings which they held to be injurious to public morals, under penalty of contempt of court; but apart from the likelihood of different judges taking different views, Your Committee are satisfied from personal knowledge that this course is not in fact practicable, and that even if the power were granted, its exercise would prove precarious and spasmodic.

 

    The validity of the rule was also questioned on the basis of its absolute character but, as the Court of Appeal observed, the experience of fifty years, to which I alluded earlier, does not support the view that the law is too restrictive.  A law must be approached at the practical, not the theoretical, level and, as I earlier noted, the restriction is minimal, more apparent than real.  On the other hand, the problems to be resolved are, in the words of the Royal Commission, "real and serious".  I am, in any event, by no means sure that the rule is as absolute as has been supposed.  Given the obvious intention of the Act, as it appears both in its terms and the preparatory documents, to sensitively balance the public's right to know with the individual's right to privacy, it is my view that a court, in its discretion, could by order under s. 30(3)(c) permit the reporting of matters otherwise prohibited in those rare cases where the interest of the public in the publication of details overrode the right to privacy.  But I do not attach too much importance to this.  All in all, I am of the view that s. 30(1), as modified by s. 30(3), constitutes a reasonable limitation to the freedom of the media in a free and democratic society.  It restricts that freedom as little as reasonably possible.  The underlying purpose of the freedom is hardly affected, if at all.

 

Section 15

 

    The appellant also submitted that the impugned legislation infringes on its s. 15  Charter  rights by imposing an interdiction not found in other jurisdictions in Canada, and by discriminating against print media and between newspapers in general circulation and professional journals.  Since s. 15 is limited to individuals, it does not apply to corporations like the appellant; see, inter alia, Re Aluminum Co. of Canada, Ltd. and The Queen in right of Ontario (1986), 55 O.R. (2d) 522 (Div. Ct.); leave to appeal to Ont. C.A. refused September 2, 1986; Parkdale Hotel Ltd. v. Canada (Attorney General), [1986] 2 F.C. 514 (T.D.); Milk Board v. Clearview Dairy Farm Inc., [1987] 4 W.W.R. 279 (B.C.C.A.), leave to appeal to this Court refused, [1987] 1 S.C.R. vii; Nissho Corp. v. Bank of British Columbia (1987), 39 D.L.R. (4th) 453 (Alta. Q.B.) Moreover, though the appellant may have an interest in the matter, it is not directly affected and the issue may come to the courts in other ways, so the appellant faces serious problems of standing.  I need not, however, dwell on these matters because the distinctions about which it complains do not fall within the ambit of s. 15 under the principles enunciated in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.  None of these distinctions are in any way analogous to the enumerated grounds in that provision; see also Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922; R. v. Turpin, [1989] 1 S.C.R. 1296.

 

Disposition

 

    I would allow the appeal as it relates to s. 30(2) of the Alberta Judicature Act and dismiss it as it relates to the rest of the section.  I would answer the constitutional questions as follows:

 

1.Does s. 30 of the Judicature Act, R.S.A. 1980, c. J-1, infringe or  deny the right of freedom of expression guaranteed by s. 2( b )  of the Canadian Charter of Rights and Freedoms ?

 

Answer:  Yes.

 

2.If the answer to question 1 is yes, is s. 30 of the Judicature Act justified under s. 1  of the Charter ?

 

Answer:  No as to s. 30(2); yes as to the rest of s. 30.

 

3.Does s. 30 of the Judicature Act infringe or deny the right to equality guaranteed by s. 15  of the Charter ?

 

Answer:  No.

 

4.If the answer to question 3 is yes, is s. 30 of the Judicature Act justified under s. 1  of the Charter ?

 

    Answer:  This question need not be answered.

 

    Appeal allowed with costs, LA FOREST, L'HEUREUX‑DUBÉ and SOPINKA JJ. dissenting in part.

 

    Solicitors for the appellant:  Reynolds, Mirth, Richards & Farmer, Edmonton.

 

    Solicitor for the respondent the Attorney General for Alberta:  The Department of the Attorney General, Edmonton.

 

    Solicitor for the intervener:  The Ministry of the Attorney General, Toronto.