Chapter XIII


Last updated : 22/01/01

CHAPTER XIII

PUBLICATION BANS

A. INTRODUCTION XIII-2

B. FAIR TRIAL XIII-3

Dagenais v. C.B.C. XIII-3

Re Global Communications Ltd. and Attorney-General for Canada XIII-18

Manitoba (Attorney-General) v. Groupe Quebecor Inc. XIII-20

R. v. Bernardo XIII-22

C. PRIVACY XIII-24

Edmonton Journal v. Alberta (Attorney General) XIII-24

Canadian Newspapers Co. v. A.G. Canada XIII-35

John Doe v. C.B.C. XIII-38

D. AMERICAN JURISPRUDENCE XIII-46

Nebraska Press Association v. Stuart XIII-46

Cox Broadcasting Corp. v. Cohn XIII-49

A. INTRODUCTION

Publication bans are available, both at common law and under legislation, to protect certain values, mainly fair trial and privacy, from publicity. Set out below is a list of some of the Criminal Code provisions permitting a ban. Under the Charter, the results thus far have been mixed, with bans being upheld nonetheless, in a good number of cases. Twice, the Supreme Court of Canada has addressed this issue, and twice, in Dagenais and Edmonton Journal, it has upheld s.2(b)'s values. Dagenais is particularly important for the s.1 doctrine it introduced; see also Carson, supra Chapter XII, which adapted that doctrine to the question of access.

Prior to the Charter, the Criminal Code provided for such orders in a number of circumstances:

Section 166 - Mandates restrictions on the reporting of proceedings relating to marriage nullity, and it also restricts the publication of any "indecent matter" relating to any proceeding.

Section 276.3(1) & (2) - Bans the publication of the details of a voir dire to determine if details of complainant's sexual history will be admissible in a sexual assault proceeding.

Section 486(3) & (4) - Gives the court special powers to ban the publication of the names or any information that would identify the complainants and/or the accused in sexual assault cases.

Section 487.2 - Bans the publication of details surrounding the granting of a search warrant.

Section 517 - Provides for a ban on publication of details of a bail hearing

Section 520(9) and 521(10) - similar provision for appeals from decisions of interim detention or release.

Section 539 - Allows the court to ban the publication of evidence taken at a preliminary inquiry if requested by the Crown. The court must ban the publication of such evidence if requested by the accused.

Section 542 - makes it an offence to publish a confession or an admission of an accused at a preliminary inquiry.

Section 648 - bans the reporting of proceedings that take place in a jury trial when the jury is not present in the courtroom (eg. a voir dire)

B. FAIR TRIAL

Dagenais v. Canadian Broadcasting Corporation

[1994] 3 S.C.R. 835

[The respondents, members of a Catholic religious order, were charged with physical and sexual abuse of young boys in their care at training schools. They sought an injunction restraining CBC from broadcasting The Boys of St. Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution in Newfoundland, and from publishing in any media any information relating to the proposed broadcast of the program. At the time of the hearing, the trials of the respondents were being heard, or were scheduled to be heard.

The judge granted an injunction prohibiting the broadcast of the mini-series anywhere in Canada until the end of the trials and an order banning any publicity about the application, or any material relating to it. The Ontario Court of Appeal upheld the ban on the broadcast, but limited its scope to Ontario and Montreal, and reversed the ban on publicity about the proceedings.

The Supreme Court split on the right of third parties to appeal interlocutory orders in criminal proceedings. Interlocutory appeals are not available to the Crown or the accused. In the case of third parties, the Criminal Code failed to provide a statutory framework for appeal. The Supreme Court of Canada held (La Forest and L'Heureux-Dubé JJ., dissenting) that third parties could not be denied access to an appeal, and grounded jurisdiction in s. 40 of the Supreme Court Act. The Court otherwise set up a complex procedure for third party appeals in criminal proceedings. The publication ban was invalidated (L'Heureux-Dubé and Gonthier JJ., dissenting)].

Lamer C.J.

I have three preliminary comments to make...

First, in a jury trial, a motion for a publication ban must be heard in the absence of the jury. Consider, for example, a case in which the media propose to broadcast information that would be inadmissible as evidence in the normal course of the criminal trial. The accused will have to introduce this information into evidence in order to demonstrate the risk to a fair trial. And yet, if the risk is demonstrated and substantial, the jury should not hear this evidence. The accused must not be placed in the intolerable position of having to present the inadmissible information before the jury in an attempt to secure an impartial jury. Consider also, a case in which the media propose to broadcast information that would undercut a particular defence strategy. The accused will have to reveal his or her defence strategy in order to demonstrate the risk to a fair trial. And yet, it would be unfair to require the defence to reveal defence strategy prior to the closing of the Crown's case -- the accused must not be placed in the position of having to risk prejudice to one aspect of his or her right to a fair trial in order to protect another aspect of this right.

Second, the issue of giving notice to the media of motions for publication bans may appear to raise a number of practical problems. Which media are to be given notice, and how is such notice to be given? Do the media include all newspapers, television stations, and radio stations potentially affected by the ban? How is notice to be served? Given that I have concluded that motions for publication bans made in the context of criminal proceedings are criminal in nature, the solution to these practical problems is to be found in the provincial rules of criminal procedure and the relevant case law. For example, Rule 6.04(1) of the Ontario Court of Justice Criminal Proceedings Rules, [], states that:

6.04 (1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.

The judge hearing the application thus has the discretion to direct that third parties (e.g., the media) be given notice. Exactly who is to be given notice and how notice is to be given should remain in the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law.

Third, the issue of standing may also appear to raise problems. Which members of the media are to be given standing? Does standing include standing to do any or all of the following: cross-examine witnesses, call viva voce evidence, file affidavit evidence, and present oral and/or written arguments? Again, given that I have concluded that motions for publication bans made in the context of criminal proceedings are criminal in nature, the solution to these practical problems is to be found in the provincial rules of criminal procedure and the relevant case law. The judge hearing the application thus has the discretion to grant standing to interested third parties (e.g., the media) and this standing can include any or all of the activities listed above.

I now proceed with some general guidelines for practice for the Crown, the accused, the media, and the courts in turn.

For the Crown and the Accused

To get a publication ban issued under a judge's common law or legislated discretionary authority, the Crown and/or the accused should make a motion for a ban pursuant to that authority. This motion should be made before the trial judge (if one has been appointed) or before a judge in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provisions such as ss. 468, 469, 553, 555 and 798 of the Criminal Code and s. 5 of the Young Offenders Act). If the level of court has not been established and cannot be established definitively by reference to statutory provisions, then the motion should be made before a superior court judge (i.e., it should be made before the highest court that could hear the case, in order to avoid later having a superior court judge bound by an order made by a provincial court judge). To seek or challenge a ban on appeal, the Crown and the accused should follow the regular avenues of appeal available to them through the Criminal Code (Parts XXI and XXVI).

A complication arises, however, when the initial order is made by a judge other than the trial judge (i.e., in cases where a trial judge has not yet been appointed). In this situation, neither the accused nor the Crown could ordinarily attack the initial order, either at trial or through the regular routes of appeal, without running afoul of the "rule against collateral attack": Wilson v. The Queen, [] and Meltzer []. This rule states that a court order may not be attacked "in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (Wilson , []). Since the specific object of the trial is not the reversal or variation of the initial publication ban, the rule against collateral attacks would, if strictly applied, prevent a reconsideration of the initial order by the trial judge and, by extension, a review of the order by the appellate courts under the normal routes of appeal (since the jurisdiction of the appellate courts is restricted to errors of law made at trial).

In R. v. Litchfield, [], a majority of this Court noted that the rule against collateral attacks is "not intended to immunize court orders from review," [], and held that in situations where the purposes underlying the rule are not engaged, some flexibility in the rule's application should be recognized. Iacobucci J., writing for the majority, discussed the rationale for the rule in the following terms []:

The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, "the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversed on appeal [].

He continued, however, by observing that the order in question in the case before him (a pre-trial division and severance order made by a judge other than the trial judge) would have been reviewable on appeal had it been made by the trial judge. He stated []:

To permit an order to stand which is so erroneous that it results in a trial process that is fundamentally flawed would result in procedure governing substance; a result that cannot be accepted.

Although Litchfield involved orders of a different nature than the publication bans under consideration here, I am of the view that it is similarly appropriate to recognize some flexibility in the rule against collateral attacks when what is at issue is a publication ban.

This problem does not, of course, arise in the case at bar, so it is unnecessary to consider the matter further at this time. I have mentioned it here simply to highlight the fact that none of the avenues of appeal currently available is entirely satisfactory. As I noted earlier, until Parliament acts to rectify the situation by enacting appropriate legislation I am forced to choose the least unsatisfactory of a number of unsatisfactory alternatives.

For the Media

If the media wish to oppose a motion for a ban brought in provincial court, they should attend at the hearing on the motion, argue to be given status, and if given status, participate in the motion. To challenge a ban once ordered, the media should make an application for certiorari to a superior court judge. To challenge a denial of certiorari, the media should appeal the superior court judge's decision to the Court of Appeal under s. 784(1) of the Criminal Code. To challenge a dismissal of an appeal to the Court of Appeal, the media should make an application for leave to appeal to the Supreme Court of Canada under s. 40 of the Supreme Court Act.

If the media wish to oppose a motion for a ban brought in a provincial superior court, then they should attend at the hearing on the motion, argue to be given status, and, if given status, participate in the motion. To challenge a ban once ordered, the media should make an application for leave to appeal to the Supreme Court of Canada under s. 40 of the Supreme Court Act.

For the Court

Upon a motion for a ban under the common law rule, the court should give standing to the media who seek standing (according to the rules of criminal procedure and the established common law principles) and follow the general guidelines for practice set out in Part C of these reasons.

Application of Principles and Practice to the Case at Bar

The Facts

All of the cases were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) before a judge and jury. All of the accused were pre-tried with no prospect of resolution. Dagenais was in week five of his trial. The jury was to be charged three days following the motion for the ban. Monette already had his trial judge named (Cusson J.). His trial was to run from February 1 to February 26, 1993. Radford's trial was to run from April 5 to May 4, 1993. Dugas' trial was to begin some time between May 31 and July 2, 1993.

The Application of the Law to these Facts

Dagenais should have gone to his trial judge. If the ban had been refused, he would have had no right of appeal beyond his normal right to appeal if convicted at the end of the trial.

Monette should also have gone to his trial judge. If the ban had been refused, he would have had no right of appeal beyond his normal right to appeal if convicted at the end of the trial.

Radford and Dugas, however, were correct to go to a provincial superior court judge. If the ban had been refused, they would have had no right of appeal beyond their normal right to appeal if convicted at the end of the trials.

When the publication ban order was given, the CBC should have sought leave to appeal from the Supreme Court of Canada under s. 40 of the Supreme Court Act....

Publication Bans

...In the case at bar, we are dealing with a common law rule which provides judges with the discretion to order a publication ban in certain circumstances. Discretion cannot be open-ended. It cannot be exercised arbitrarily. More to the point,...a common law rule conferring discretion cannot confer the power to infringe the Charter. Discretion must be exercised within the boundaries set by the principles of the Charter; exceeding these boundaries results in a reversible error of law. In this case, then, we are dealing with an error of law challenge to a publication ban imposed under a common law discretionary rule.

The common law rule governing publication bans has been traditionally understood as requiring those seeking a ban to demonstrate that there is a real and substantial risk of interference with the right to a fair trial. This rule accorded some protection to freedom of expression, in so far as it prevented publication bans from being imposed for no reason, or in response to merely speculative concerns. The question that must be addressed, however, is whether the rule provides sufficient protection for freedom of expression in the context of post-Charter Canadian society....

Like the right of an accused to a fair trial, a fundamental principle of our justice system which is now expressly protected by s. 11(d) of the Charter, freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society, as demonstrated by its enshrinement as a constitutionally protected right in s. 2(b) of the Charter....

The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status [of] ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favoured the rights protected by s. 11(d) over those protected by s. 2(b). A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.

It is open to this Court to "develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution" []. I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows:

A publication ban should only be ordered when:

(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and

(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban....

The objective of the ban ordered in the case at bar was the diminution of the risk that the trial of the four accused persons might be rendered unfair by adverse pre-trial publicity....

[However, while] the Charter provides safeguards both against actual instances of bias and against situations that give rise to a serious risk of a jury's impartiality being tainted, it does not require that all conceivable steps be taken to remove even the most speculative risks.... This must be borne in mind when the objective of a publication ban imposed under the common law rule is specified, since one of the primary purposes of the common law rule is the protection of the constitutional rights of the accused. As the rule itself states, the objective of a publication ban authorized under the rule is to prevent real and substantial risks of trial unfairness -- publication bans are not available as protection against remote and speculative dangers.

It is also important to note the extent to which a publication ban trenches upon the rights of individuals to freedom of expression. In the case of the publication ban at issue here, the specific freedom of expression interests engaged by the ban included: the film director's interest in expressing himself; the CBC's interest in broadcasting the film; the public's interest in viewing the film; and society's interest in having the important issue of child abuse presented to the public. All of these interests were limited by the publication ban ordered in the case at bar.

In my view, the publication ban in the case at bar was clearly directed towards preventing a real and substantial risk to the fairness of the trial of the four accused. What must next be considered [is] whether a publication ban was necessary on the facts of this case. This requires a consideration of whether reasonable alternative measures were available that would have guarded against the risk of the trial being unfair without circumscribing the expressive rights of third parties.... [T]he initial ban in the case at bar was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, there were other effective means available to achieve the objectives. The publication ban...has, in fact, expired, making it unnecessary to discuss in great detail the particular alternative measures that were available in the case at bar. Possibilities that readily come to mind, however, include adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury. Sequestration and judicial direction were available for the Dagenais jury. Apart from sequestration, all of the other effective alternatives to bans were available for the other three accused. For this reason, the publication ban imposed in the case at bar cannot be supported under the common law. As a result, in purporting to order the ban under her common law discretionary authority, Gotlib J. committed an error of law....

Before concluding, I would like to make some general comments about publication bans issued under the common law rule. First, I believe that it is important to recognize that publication bans should not always be seen as a clash between two titans -- freedom of expression for the media versus the right to a fair trial for the accused....

There are at least three reasons for rejecting the clash model. First, it is more suited to American than to Canadian jurisprudence, since the American Constitution has no equivalent of s. 1 of our Charter...

Second, it is not the case that freedom of expression and the accused's right to a fair trial are always in conflict. Sometimes publicity serves important interests in the fair trial process....

Third, the analysis of publication bans should be much richer than the clash model suggests. Rather than simply focusing on the fact that bans always limit freedom of expression and usually aim to protect the right to a fair trial of the accused, it should be recognized that ordering bans may [limit freedom of expression; prevent the jury from being influenced by information other than that presented in evidence; maximize the chances that witnesses will testify because they will not be fearful of the consequences of publicity; protect vulnerable witnesses; preserve the privacy of individuals involved in the criminal process; maximize the chances of rehabilitation for "young offenders"; encourage the reporting of sexual offences; save the financial and/or emotional costs to the state, the accused, the victims, and witnesses of the alternatives, delaying trials, changing venues, and challenging jurors for cause; and protect national security]. It should also be recognized that not ordering bans may [maximize the chances of individuals with relevant information hearing about a case and coming forward with new information; prevent perjury by placing witnesses under public scrutiny; prevent state and/or court wrongdoing by placing the criminal justice process under public scrutiny; reduce crime through the public expression of disapproval for crime; and promote the public discussion of important issues.]

...These concerns have a place in each step of the analysis required under the common law rule outlined above -- they are relevant to the initial consideration of whether a ban is necessary to safeguard the fairness of a trial, to the question of whether reasonable alternatives are available, and to the issue of the balance struck between the salutary and deleterious effects of a publication ban....

There are several reasons to be concerned about the efficacy of some publication bans....

To begin, I doubt that jurors are always adversely influenced by publications. There is no data available on this issue. However, common sense dictates that in some cases jurors may be adversely affected. Assuming this, I nevertheless believe that jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of the criminal proceedings....This Court has also made some strong statements about the reliability of juries [].... This endorsement surely applies as much to the instruction to ignore all information not presented in the course of the criminal proceedings as it applies to [Corbett's] instruction to use evidence of prior convictions for one purpose and not another....

These observations are particularly apt in a case, such as this, in which the publication ban relates to identifiable and finite sources of pre-trial publicity. More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial. In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

It should also be noted that recent technological advances have brought with them considerable difficulties for those who seek to enforce bans. The efficacy of bans has been reduced by the growth of interprovincial and international television and radio broadcasts available through cable television, satellite dishes, and shortwave radios. It has also been reduced by the advent of information exchanges available through computer networks. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing.

These concerns about the efficacy of some publication bans fit into the analytical approach under the common law rule outlined previously at several stages, since it is necessary to consider how efficacious a publication ban will be before deciding whether a ban is necessary, whether alternative measures would be equally successful at controlling the risk of trial unfairness, and whether the salutary effects of the ban are outweighed by its negative impact on freedom of expression.

If any adverse influence of a publication on jurors can be remedied by means short of banning the publication, then it might well be argued that there is no rational connection between the publication ban and the objective of preventing the jury from being adversely influenced by information other than that presented in evidence during the trial. In such a case, it could not be asserted that a ban was necessary to protect the fairness of the trial. I should note, however, that although it is possible that a publication ban will have a total absence of influence on the fairness of the trial, such cases will be rare. As a result, one will generally have to go further and consider the availability of reasonable alternative measures when assessing whether, in a given case, a publication ban was necessary.

If the actual beneficial effects of publication bans are limited, then it might well be argued in some cases that the negative impact the ban has on freedom of expression outweighs its useful effects. The analysis that is required at this stage of the application of the common law rule is very similar to the third part of the second branch of the analysis required under s. 1 of the Charter....[That] test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective....

In my view, characterizing the third part of the second branch of the Oakes test as being concerned solely with the balance between the objective and the deleterious effects of a measure rests on too narrow a conception of proportionality. I believe that even if an objective is of sufficient importance, the first two elements of the proportionality test are satisfied, and the deleterious effects are proportional to the objectives, it is still possible that, because of a lack of proportionality between the deleterious effects and the salutary effects, a measure will not be reasonable and demonstrably justified in a free and democratic society. I would, therefore, rephrase the third part of the Oakes test as follows: there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures....

[W]hen a ban has a serious deleterious effect on freedom of expression and has few salutary effects on the fairness of a trial, the ban will not be authorized at common law.

It is also important to recognize, however, that the objective usually underlying such bans -- the diminution of the risk that a trial might be tainted by unfairness -- is directly related to the accused's constitutionally protected right to a fair trial. Although...it is incorrect to oversimplify the relationship between the right to a fair trial and the right to freedom of expression by blindly applying the "clash of rights" model, there are times when the rights of the accused will be in direct conflict with the expressive rights of the media. In such cases, I believe it is necessary to apply the common law proportionality analysis in a manner that reflects the fact that two fundamental rights are in jeopardy. That is, it is essential in these circumstances to recognize that the pressing and substantial objective at issue is itself a fundamental right, and that, as such, it is a matter of exceptional importance. This will be of particular significance when considering whether there are reasonable alternative measures available, and when assessing the balance between the salutary and deleterious effects of the ban. When examining alternative measures, it will be important to carefully consider both rights at issue, so as to ensure that any alternative measures that impair free expression to a lesser degree than a publication ban also reasonably protect the right to a fair trial....

La Forest. (dissenting)

Like Justice L'Heureux-Dubé, I respectfully do not agree that there is a direct appeal to this Court under s. 40 of the Supreme Court Act []...

Given my view on jurisdiction, I would not ordinarily say anything about the merits. In light of the disposition of this case by the Court, however, I will make the following comments. I am in agreement with the Chief Justice that the common law rule did not give sufficient protection to freedom of expression. I am also in substantial agreement with the list of factors he gives that should be considered by a judge in determining whether a ban should issue. I would, however, add another factor that should be weighed in determining whether a ban should issue -- the extent to which a ban could disrupt the trial, particularly by creating the risk that the trial would not take place within a reasonable time.

L'Heureux-Dubé J. (dissenting)

...[I]t is Parliament, not the courts, which must develop appellate procedures for third parties challenging interlocutory orders such as publication bans which arise out of criminal proceedings.... However, were it to be our responsibility to develop such procedures, I would lean against providing third parties with the right to appeal interlocutory criminal orders. As I have already noted, there are strong policy reasons against permitting interlocutory criminal appeals. It is imperative that criminal trials proceed within a reasonable time and not be delayed and fragmented by numerous interlocutory appeals. If the CBC were allowed to appeal the publication ban ordered in this case, then witnesses, experts and others would also be able to appeal court orders requiring them to testify or provide documentary evidence at criminal trials. This would result in unreasonable delays and would compromise the accused's s. 11(b) rights under the Charter. On the other hand, if the trial continued while the third party appeal proceeded, as it did in this case, then the accused would be required to defend two proceedings at the same time. This may complicate the accused's criminal defense and should be avoided wherever possible.... While third parties must have access to a remedy where they allege a Charter violation, they need not have access to an appeal.

In conclusion, I would resolve the jurisdictional question by holding that this Court has no jurisdiction to hear this appeal.... In my view, the common law rule governing the issuance of publication bans in the criminal context is consistent with the Charter....

The common law rule is based on a recognition and appreciation of both the right to freedom of expression and the right to a fair trial. In balancing these two rights, the common law provides that where there is a real and substantial risk of interference with the right to a fair trial a publication ban can be ordered. Effectively, the common law provides that where freedom of expression and the right to a fair trial cannot both be simultaneously and fully respected, it is appropriate in our free and democratic society to temporarily curtail freedom of expression so as to guarantee an accused a fair trial. While this common law balancing of fundamental rights was developed in the pre-Charter era, the proclamation of the Charter does not render it invalid. After all, the pre-Charter balancing was an expression of the very rights protected by the Charter....

Gonthier J. (dissenting)

On the issue of jurisdiction, I agree [with the Chief Justice].

...I generally support many of the Chief Justice's statements of principle and general considerations [but] I do not agree with his statement as to the balance between fair trial and freedom of expression rights under the common law nor that the Charter has changed this balance. ...

At common law, the exceptional nature of publication bans has been assured by requiring that those seeking a ban demonstrate a real and substantial risk of interference with the right to a fair trial.... Some courts have formulated the test in terms of impossibility, but in my view the focus is one of risk and not certainty. There is an inevitable element of speculation in such an analysis.... The United States Supreme Court has focused on the speculative nature of prior restraints as one of the reasons for treating them with extreme caution []. I agree that a court faced with an application for a publication ban must review the factual record and not substitute imagination for careful analysis. Nevertheless, the tradition in this country and in the United Kingdom has been to accept the propriety of bans even though it cannot be said with certainty that the fairness of a trial will be denied []...

The application of the Charter to the evaluation of publication and broadcast bans, while not directly altering the common law test, will restructure the analysis to some extent....

[I]t would seem that the validity of imposing a ban will be determined almost exclusively at the second and third branches of the proportionality part of the Oakes test. The first part of the Oakes test...is easily satisfied given that the ban is aimed at protecting a Charter right. Similarly, the requirement that the impugned measure be rationally connected to the objective...is also easily satisfied. As the Chief Justice notes, though possible it will rarely be the case that the impugned material will have a total absence of influence.

...The second or minimal impairment branch is perhaps the aspect of the s. 1 analysis that is most altered when the task is to reconcile two Charter rights. The fact that the court must balance fair trial and freedom of expression rights forces a measure of flexibility into the analysis. If applied blindly or dogmatically, minimal impairment of one of the rights could theoretically mean maximal impairment of the other.

There is no question, as the Chief Justice has noted, that minimal impairment requires that bans be as narrowly circumscribed as possible in protecting the fairness of a trial.... A ban must thus be carefully limited both in terms of temporal and geographic application.

Minimal impairment also requires evaluation of alternative measures to protect the right to a fair trial....In applying his modified version of the common law rule, the Chief Justice would require trial judges to make a finding that there is no reasonably available alternative measure to a publication or broadcast ban....In my view, the mere existence of alternatives to publication bans, alternatives which are available in almost every case, does not of itself support the denial of a publication ban. Rather, what is required is the more difficult assessment of the likely effect of the proposed publication ban on freedom of expression and the effectiveness as well as the cost or burden of alternative measures....

In assessing the suitability of alternative measures, judges must keep in mind that these measures impose distinct costs and burdens. The minimal impairment arm of the proportionality analysis therefore requires the trial judge to do a comparative analysis of effectiveness, feasibility and cost of all possible measures. Adjourning trials or changing venues imposes obvious costs for all concerned and raises the possibility of a violation of the s. 11(b) Charter guarantee of a trial within a reasonable time. Sequestration of the jury is a very exceptional remedy...given that it imposes a heavy burden on those citizens who offer the greatest contribution to the right to a fair trial []. Providing strong judicial direction to the jury reflects the confidence we place in the jury system and will be a very real solution when the application is made to a trial judge who has had the opportunity to observe the conduct of the jury throughout the trial....Where the trial has yet to begin, a judge may not be satisfied that the remedy would be sufficient. Such an opinion does not undermine the trust we place in juries, rather, it would simply reflect a concern to remove undue, unnecessary and excessive temptations.

In the case of broadcast bans of docudramas related to pending trials, the most obvious alternative remedy is extensive challenges for cause and voir dires during jury selection....

At the minimal impairment stage, therefore, the trial judge must consider the alternatives to a publication ban but is not bound to find that they would be insufficient. The concern to help juries in exceptional cases by taking preventive measures requires that trial judges not feel constrained by an overly strict test which would impose costs that we have historically not been prepared to accept. The flexibility implicit in this formulation means that trial judges will have a wide discretion in evaluating the various means available to protect the right to a fair trial and that the facts of each case will be of great importance in determining what measure is appropriate.

It might be suggested that my references to the common law tradition are irrelevant in the age of the Charter. In my view, however, the Charter does not oblige departing from this tradition in any substantive respect.... I disagree with those who argue that the Charter requires that we emulate American society and discard the unique balance of fundamental values which existed in this country prior to 1982. The Charter provides a means to assure that the enumerated fundamental rights and freedoms are respected. It does not give primacy to any of those rights. The impact of the Charter will be minimal in areas where the common law is an expression of, rather than a derogation from, fundamental values. The common law pertaining to publication and broadcast bans is an example of one such area. ...

The final step in the Oakes test requires proportionality between the effects of the measures which are responsible for limiting the rights or freedoms in question and the objective. The Chief Justice would now add a further requirement of proportionality between the salutary and deleterious effects of a measure limiting rights or freedoms. ...

The general purposes of docudramas would appear to support the suggestion that a temporary ban until the end of a trial may well be a minor restriction of the right to freedom of expression. One purpose of such productions may be to examine current issues of general public importance in an effort to spark discussion and assist in the process of seeking solutions. A related and less ambitious purpose may simply be to present a thorough account of events of public interest. Delaying the presentation of a docudrama until the end of a trial would not hinder either of these purposes. Unlike news, immediacy is not the essence of docudramas.

I also note that the temporary ban of a docudrama does not in any way affect the fundamental principle of open courts. Such a ban does not restrict access to the courts nor does it prevent publication in respect of court proceedings....

On the salutary side of the equation, concerns have been expressed as to the efficacy of publication bans. It is said that the actual effect of bans on jury impartiality is increasingly negligible given technological advances which make bans difficult to enforce. With all due respect, it is wrong to simply throw up our hands in the face of such difficulties. ...

In the particular case of docudramas, the salutary effects of temporary bans derive from the potential influence of docudramas on prospective jurors. In part, the impact of docudramas derives from the power of omniscience afforded to the viewer. The viewer sees all and therefore knows all in a way that can only exist in fictional works. What the viewer actually sees, however, is the expression of the agendas of the writer, director and producer.... Furthermore, the particular agendas of those involved may mean that fiction becomes worse than reality. As will be seen below, the mini-series now before the Court is a prime example of this possibility. Finally, the fact a docudrama is being shown on television, perhaps at prime time, accentuates its overall potential influence....

The preceding discussion can be usefully summarized in the following general points. Publication and broadcast bans can be ordered to protect the fairness of a pending or current trial. These bans should be seen as possible complements to other measures available to guarantee the fairness of the trial process. The fact such bans restrict freedom of expression and freedom of the press means that they should be imposed only in exceptional cases. Trial judges should carefully consider the alternative measures available since they have the advantage of not restricting freedom of expression and freedom of the press. It is not necessary, however, for the trial judge to determine with certainty that the alternative measures would be insufficient to protect the fairness of the trial. What is required is that the trial judge be satisfied that the publication will create a real and substantial risk to the fairness of the trial, which available alternative measures will not prevent. The Anglo-Canadian tradition, as distinct from the American, allows greater scope for prophylactic measures. Consistent with this tradition and the distinct balance between the fundamental rights it implies, trial judges will possess an important discretion to issue publication and broadcast bans. In the special case of docudramas, the impairment of freedom of expression where a judge issues a temporary broadcast ban may well be minimal in comparison to the risk which such productions represent to the right to a fair trial. A judge may thus be fully justified in issuing a temporary ban where the surrounding circumstances and the nature of the publication create a real and substantial risk to the fairness of the trial. ... Finally, the decision of a trial judge, made after weighing all the factors, should not be interfered with unless it is based on an error in principle or it cannot be reasonably supported on the evidence. Mere disagreement with her/his conclusion is not enough....

The affidavit evidence reviewed above clearly supports Gotlib J.'s findings. The mini-series was a work of fiction, but it was based on a number of similar, "almost interchangeable" cases. The appellants did not directly challenge this assertion and conceded...that there were parallels between the events depicted in the film and the charges which the respondents were facing at the time. These parallels take on great significance in light of the particular way in which the events were portrayed. The two-part dramatization left no doubt as to the accused's guilt, impugned the tactics of the defence and alleged a cover-up. In my view, it was open for [the judge] to find...that even though the mini-series was not directly about any of the respondents, it would have seriously compromised the possibility of finding an impartial jury given the context of widespread prior publicity....

The mini-series was to be shown in prime time and the CBC had spent $97,000 on radio, billboard and print advertising. The direct audience was thus potentially huge. Furthermore, the risks were particularly great because of the nature of the media attention at the time. Michael Hughes, on behalf of the CBC, noted in his affidavit that "THE BOYS OF ST. VINCENT reflects a national issue currently receiving widespread media attention. . .". The physical and sexual abuse which formed the subject matter of the mini-series therefore was not simply an issue of general public interest or in respect of which there was general public consciousness. Rather, public attention was being focused directly on the specific facts before the courts and the guilt or innocence of the persons who stood accused....

With great respect for the opinion to the contrary, I cannot accept the suggestion that the consequences for producers of docudramas are immense....

McLachlin J.

...There can be no doubt that the ban limited the right of freedom of expression guaranteed by s. 2(b) of the Charter.

The more difficult question is whether the ban can be justified under s. 1...

Applying the criteria developed by this Court in R. v. Oakes [], one looks first to the objective of the ban. It is clear. It was to preserve the respondents' rights to a fair trial...

The next step is whether the infringement is proportionate to, or justified by, this goal. Proportionality in this sort of case is not a question of deciding where the balance should be struck between a fair trial and freedom of expression. The right to a fair trial is fundamental and cannot be sacrificed. I agree with the Chief Justice that in general, the conflict model is largely inappropriate. Fair trials and open discussion tend to go hand in hand. Nevertheless, in some instances, such as that in the current case, unlimited free expression may interfere with the accused's right to a fair trial....

There thus may be cases where special circumstances are presented which indicate a serious risk (as opposed to a speculative possibility) that a fair jury could not be sworn or, where jurors have already been sworn, that publicity might somehow find its way to them and prejudice them. In these cases, a ban may be justified, provided that it goes no further than required to avoid the demonstrated risk of an unfair trial.

The common law test for whether a ban should be ordered is that there is a real and substantial risk that a fair trial would be impossible if publication were not restrained. Properly applied, that test meets the requirements of justification of an infringing measure under s. 1 -- that the infringement be rationally connected to the goal, that it be minimally intrusive, and that it be proportionate to the benefit achieved. What is required is that the risk of an unfair trial be evaluated after taking full account of the general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered. The courts are the guardians not only of the right to a fair trial but of freedom of expression. Both must be given the most serious consideration.

Rational connection between a broadcast ban and the requirements of a fair and impartial trial require demonstration of the following. First, it would seem necessary to show that many people eligible to sit as jurors would see the broadcast; conversely, if a substantial number would not see it, there should be no problem selecting a jury from among them. Second, it must be shown that publication might confuse or predispose potential jurors. In the case of a fictional work, it should be shown that jurors will not be able to separate broadcast fiction from reality. Third, it must be shown that any confusion may not be dispelled by proper direction or by other measures, such as judicial directions, change of the venue of the trial, or more exacting jury selection processes. If after considering all such matters, the judge is still left with a real concern that there is a substantial risk the trial may be rendered unfair, a rational connection between the infringement of freedom of expression and the ban will have been established.

Once the rational connection has been established, the judge must go on to ensure that the ban is minimally intrusive, i.e., that it impinges on freedom of expression no further than is actually required to avoid the risk of an unfair trial. It must be confined to the minimum geographical area required. It must not extend to more forms of expression or media of dissemination than necessary. And it must cease at the earliest possible time consistent with removing the risk of an unfair trial.

In the case at bar, the judge ordering the ban failed to direct herself sufficiently to the sort of considerations which go to establishing rational connection and minimal impairment. It follows that the ban cannot be supported....

Re Global Communications Ltd. and Attorney-General for Canada

(1984), 5 D.L.R. (4th) 634 (Ont. C.A.).

[A publication ban was imposed at the bail hearing of Cathy Evelyn Smith, pending the hearing of the case for her extradition to stand trial in California on the charge of having murdered John Belushi.]

Thorson J.A.

... Some preliminary comments may be useful in defining what seems to me to be the issue lying at the centre of these two questions.

The first such comment is that the challenge made in this case to the validity of s. 457.2(1) based on its alleged infringement of the appellant's enjoyment of freedom of the press centres upon what is argued to be the "arbitrary nature" of that subsection, whereby it is made mandatory for the presiding justice to make a non-publication order if the accused applies for such an order. ... Counsel for the appellant points to the fact that under s. 457.2(1) as it was before being amended in 1976, the justice had a discretion whether or not to make such an order, but after the 1976 amendment to that subsection the granting of the order, if it was requested by the accused, became obligatory with no discretion in the justice to refuse it on the basis of the evidence actually heard by him. Mr. Nordheimer for the appellant does not contend that no limitation on the media's freedom to publish or broadcast evidence given at such a hearing can be justified; rather he submits that the limitation here goes too far. As he puts it in his statement, the procedure in such cases "should be" for the justice to review the application for such an order "in the light of the competing interests of the fugitive, the petitioning state and the public" and then determine whether the circumstances justify such an order. In this regard, presumably, the justice would review the evidence and decide whether its publication in fact posed a risk that the jurors at any later trial of the accused might be prejudiced by it. ...

One of the problems I have with regard to this submission as to what the procedure under s. 457.2(1) "should be" is that it seemingly ignores, or brushes aside as being of little relevance, the fact that in 1976 when the law was amended to read as it now reads, Parliament was faced with exactly this very issue, that is to say, the choice between the discretion which the law then allowed the justice and the mandatory order which the law now requires, and when faced with the need to choose between them decided that the right of an accused person to receive a fair trial, following his or her bail hearing and in the afterglow of the publicity that could attend that hearing, was not adequately safeguarded under the law as it then was. Implicit in this decision was Parliament's acceptance that the public interest in allowing full media publication and broadcasting of the evidence that may be given at a bail hearing must yield to the public interest in ensuring the right of the accused to a fair trial, and that the latter may be jeopardized if the accused has no assured means of preventing the dissemination of that evidence in advance of his or her trial.

In reaching this decision Parliament can be presumed to have been aware that the evidence given at a bail hearing may, and often does, include references to other outstanding charges against the accused, as well as past offences not charged, unchallenged statements as to reputation, untested allegations of fact and other hearsay evidence, much of which may prove to be inadmissible at trial but which, if published or broadcast as given at the hearing, could be grossly prejudicial to any expectation of a later fair trial. By the same token it would also have been appreciated that at the outset of such a hearing the accused cannot be expected to know what kind of evidence may be later presented, so that it would be quite impractical that he or she should then have the burden of convincing the court, by reference to that evidence, that its publication or broadcasting ought to be restricted. ...

It must of course be acknowledged that it is no answer to the appellant's challenge to this legislation on the ground of s. 2 of the Charter that Parliament has or may have weighed the competing interests involved in cases of this kind and made a choice between them which operates in a way adverse to the interests of the appellant in this particular case. The new dimension is the Charter, and there can be no doubt that it is now given to the courts to determine whether or not the choice made by Parliament stands the test of the Charter. In that process, however, it would be wholly unwarranted, and in my opinion quite wrong, to conclude that the decision which Parliament has reached in the matter should be given no weight by the courts. ...

In the end, therefore, I reject as untenable the submission of counsel for the appellant that s. 457.2(1) ought to be held to be an unreasonable and unjustifiable limitation on the appellant's rights under s. 2(b)... because it leaves in the hands of the accused the ability to require the making of a non-publication order. Notwithstanding that such an order imposes a measure of prior restraint, the restriction which s. 457.2(1) authorizes to be placed on the media's right to publish or broadcast the evidence given at an accused's bail hearing is, in my opinion, a reasonable one in the interests of ensuring that the subsequent trial of the accused will be a fair one.

The right to a fair trial is a fragile right. It is quite capable of being shattered by the kind of publicity that can attend a bail hearing and, once shattered, it may, like Humpty Dumpty, be quite impossible to put back together again. Often the proceedings at a bail hearing do not attract any particular media notice, but when they do, as they have in this case, the risk of prejudice to the accused in the matter of his or her subsequent trial can be severe in the absence of a mechanism such as that provided in s. 457.2(1) for minimizing that prejudice by means of a time-limited restraint on what can be published or broadcast about the hearing. ...

Accordingly, I would dismiss the appeal.

Manitoba (Attorney-General) v. Groupe Quebecor Inc.

(1987), 45 D.L.R. (4th) 80 (Man. C.A.).

[The appellant Groupe Quebecor Inc. is the proprietor of The Winnipeg Sun. On October 24, 1986, two persons were charged with the murder of a third and on October 26, 1986, two articles containing the information that the charges had been laid were published in The Winnipeg Sun. The articles contained information as to criminal antecedents of each accused person. The appellants were charged with contempt of court by reason of the publication of information prejudicial to the fair trial of the accused persons, and found guilty. The appellants argued that they were denied their right to a trial by jury guaranteed to them by s. 11(f); the Attorney-General did not justify demonstrably the need to limit the freedom of the press in order to ensure that the accused persons obtain a fair trial; and the Attorney-General did not prove that, in the circumstances of the particular publication, a contempt was committed.]

Twaddle J.A.

The second ground of appeal concerns the freedom of the press. The appellants argued that it was unnecessary to limit the freedom in order to ensure a fair trial for the accused. That argument assumes that the freedom of the press is absolute save for such reasonable limits as can be justified. I do not accept that assumption.

The press and other media of communication are vital to a free and democratic society. An informed public is a highly desirable element of a democracy. For the public to be informed there must be a means by which information can be communicated freely. The press and other media are the only means now available by which such communication can be made effectively.

Freedom is not, however, absolute. It is circumscribed, in its enjoyment, by the rights of others. This restriction is not a limit prescribed by law, but a limit inherent to the concept of democratic freedom. ... This concept of freedom does not originate with me. It is a concept generally understood by students of the law and recognized over many years in judgments of the courts. ...

There is nothing in the Charter or in the circumstances in which it was enacted, which, in my view, expands the freedom of speech (now called the "freedom of expression") from a freedom that is subject to the rights of others to a freedom that ignores them. Such a construction of the Charter would lead to the result that, instead of guaranteeing rights, the Charter, would abrogate them.

In the case at bar, the clash is between the freedom of the press to publish information relevant to a public issue and the right of an individual to a fair trial. The reconciliation of these competing interests does not involve a disadvantage to either. The press will be free to publish the information when the individuals have been tried. Then the information may be relevant. If they are convicted, their criminal records and the fact that one was on parole may be relevant to the policy issue of how criminals should be dealt with. Whatever the verdict, the fact that the police volunteered to the press information prejudicial to the accused persons may be relevant after the verdict has been rendered to an issue as to the conduct of the police. The right of the accused persons to a fair trial cannot be debated publicly before the verdict is rendered without prejudice to the very interest that the right is intended to protect. The freedom of the press may even be enhanced by the requirement that the press delay the publication of information as to the antecedents of an accused person until the relevance of the information to a matter of public concern is known.

To the extent that the enjoyment of the freedom of expression is hindered by the law of contempt, the hindrance is a corollary of the competing right of an accused person to a fair trial. In the circumstances of this case, the freedom of the appellants to express themselves... is not impinged upon by the requirement that they await the outcome of the trial of the accused persons before publishing information as to their antecedents.

Notes and Questions

1. These cases were decided before the Supreme Court of Canada's ruling in Dagenais. Would either be decided differently today?

2. The restrictions on media reporting in these cases were temporary i.e. until the end of the case. Does this mitigate from their impact on freedom of the press? What about the media's concern to report the news while it is still current, and hence, newsworthy?

3. In R. v. D.(G.) (1988) 39 C.C.C. (3d) 369 (Ont. H.C.J.), an Ontario court had ordered the media not to report the identity of a church minister who was charged with a sexual offence alleged to be committed against a parishioner. The Criminal Code only authorized bans on reporting the name of the sexual assault complainant, and hence, there was no statutory authority for this order. It had been purportedly issued pursuant to the court's inherent power over its procedure. When the media challenged the validity of this order the court held that the order violated s. 2(b) and was not saved under s. 1, because the public has a strong interest in knowing the identity of persons charged with crimes. However, the Supreme Court then exercised its discretion over the grant of remedies, and chose not to quash the non-publication order. It noted that the accused had been acquitted in the meantime, had lost his job, and had suffered a great deal as a result of being charged. Was the court correct in finding that this non-publication order was unconstitutional? If so, was it appropriate for the court to decline to quash the order, pursuant to its discretion regarding the issuance of remedies?

R. v. Bernardo (Teale)

[1993] O.J. No. 2047 (Gen. Div.)

[Set out below is the access and publication order of Kovacs J. in Karla Homolka's trial/hearing on the plea bargain and question of sentence. You may recall how controversial these orders were at the time, and how much more controversial they became once additional information about Ms. Homolka's complicity in three sex murders came to light. One question to consider is whether we learned anything about the value of openness from these proceedings.]

...Having heard submissions on the terms of the order, I make the following order under s. 486(1) of the Criminal Code in the interests of the proper administration of justice:

(1) The Canadian media on proof of accreditation to the Court Services Manager may be admitted to the trial.

(2) For reasons given, the public is excluded from the court room except,

(a) the families of the victims,

(b) the families of the accused,

(c) counsel for Paul Bernardo Teale who will not have standing,

(d) three police officers,

(e) the Court's law clerk, Ms. Padeanu

(3) For reasons given the foreign media is excluded from the court room.

(4) There will be no publication of the circumstances of the deaths of any persons referred to during the trial.

The following may be published,

(1) The contents of the indictment.

(2) Whether there was a joint submission as to sentence.

(3) Whether a conviction was registered but not the plea.

(4) The sentence imposed.

(5) That part of the Court's reasons under the following headings:

(a) The prosecutorial discretion (as referred to in the judge's reasons only),

(b) The principles of sentencing applied by the Court.

(c) The remarks of the Court in passing sentence on the issue of whether the accused is a danger to the public.

The order for non-publication shall apply to the transcript of the trial proceedings.

The order as to non-publication shall be temporary until the completion of the trial of Paul Bernardo Teale on the two first degree murder charges he is facing, or as further ordered by the Court. ...

I address a few points raised by counsel.

(1) Any evidence as to the psychiatric evidence on the issue of whether the accused is a danger to the public is not to be reported. I make that ruling because it is not admissible at the trial of Paul Bernardo Teale. The societal concerns of his fair trial interests were a significant part of my reasons.

(2) For the same reasons as above the evidence of a plea, which would not be admissible at the trial of Paul Bernardo Teale, save as to a limited purpose, shall not be reported. The fact of a conviction may be reported.

(3) I shall not limit the publishing to 90 or 120 days as requested by the Crown. The purpose of my order is to report proceedings not prejudicial to the societal interest for a fair trial. Therefore the reporting of those events are not prejudicial to Paul Bernardo Teale's trial.

(4) On the issue of prosecutorial discretion, only the Court's reasons for sentencing will be reported. The Crown's remarks as indicated by the Crown should not be reported. In this way if there is a common element it will not work to the prejudice of the societal interest for the fair trial of Paul Bernardo Teale.

...

C. PRIVACY

Edmonton Journal v. Alberta (Attorney General)

[1989] 2 S.C.R. 1326

Section 30 (1) of the Alberta Judicature Act prohibited the publication of any information about divorce or separation proceedings 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 ... and the decision of the court, and

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

Subsection (2) prohibited the publication of anything contained in a pleading, examination for discovery or affidavit 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 ... in general words. ...

Cory J. (Dickson C.J. and Lamer J. concurring)

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... 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. ...

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 [] 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...

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". []

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 [MacIntyre]:

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. ... As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. ...

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) []. There ... 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 housebound 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 ... 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. ...

... The sweeping effect of the prohibition [in s. 30(1)] can be readily seen. ... 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.

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. ... The restriction set out in s. 30(2) is unique to the province of Alberta.

There can be no doubt that the provisions of s. 30(1) and (2) of the Alberta Judicature Act contravene s. 2(b)....

... Considering that first condition [of the Oakes test] 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. ...

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. ...

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. ... [T]here 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. ... 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. ...

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. ...

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. ... 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. ... 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 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. ...

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.

...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]. 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. [] 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 ... 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. ...

Wilson J. (concurring)

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). ... With respect to s. 30(1) of that Act, I have reached the same conclusion as Cory J., although for somewhat different reasons. ...

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. [] Subsequently ... Jeremy Bentham explained ... 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. ...

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 []. 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 ... 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 [] 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... Chief Justice Burger went on to point out at ... 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 []. 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. .... 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. ...

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. ...

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. ...

It is worth noting ... 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" [] 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" []

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 is 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. ... 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 ... 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. ...

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. ... 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, ... 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. ... I think this is an expression of the growing acceptance ... 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 ... 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 ... 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.

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. ...

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 [Oakes] 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. ... Legislation seeking to place restrictions on freedom of the press in this area would, in my view, have to be much more carefully tailored. ...

La Forest J. (L'Heureux-Dubé and Sopinka JJ. concurring) dissenting

I agree [] 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. ... With respect, however, I do not share his view regarding the remainder of the section.

... 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. ... 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. ...

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 ... is maintained and nothing is wholly excluded from publication. ...

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. ... The freedom of the press and media, however, is not absolute. Like other rights and freedoms guaranteed by the Charter, it is subject ... 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. ...

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. ... 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 scepticism 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. ...

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. ...

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. ... 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 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 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" []. It must also be given adequate scope as to the choice of response to problems. ...

The most serious attack on the provision [] 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 validity of the rule was also questioned on the basis of its absolute character but ... the experience of fifty years ... 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 ... "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, ... 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.

Canadian Newspapers Co. v. A.G. Canada

(1985), 49 O.R. (2d) 557 (Ont. C.A.)

At the outset of a sexual assault trial, the complainant, who was the accused's wife, applied under s. 442(3) for an order banning publication of her identity and any information that could disclose it. Excerpts from the O.C.A. decision are followed by the S.C.C.'s decision.

Howland C.J.O.

The freedom of the press to report what transpires in our court-rooms is one of the fundamental safeguards of our democratic society. Justice is not a cloistered virtue and judicial proceedings must be subjected to careful scrutiny in order to ensure that every person is given a fair trial. The presence of the public, including representatives of the media, ensures the integrity of judicial proceedings. Openness of the courts is essential for the maintenance of public confidence in the administration of justice and to further a proper understanding of the judicial system. It reassures the public that all persons regardless of race, colour or creed are equal before the law and that there is no arbitrary action or abuse of power. It gives the public an opportunity to see that justice is done. There is necessarily implicit in the concept of an open court the concept of publicity; the right of the media to report what they have heard in the court-room so that the public can be informed about court proceedings, and public criticism, if necessary, engendered should any impropriety occur. ...

There are a few well-recognized exceptions where proceedings in camera are justified because the presence of the public would be impracticable as in the case of infants, mentally disordered persons or secret processes. Section 442(1) of the Code provides for proceedings against the accused being held in open court. ...

I am in agreement with Osborne J. that s. 442(3) ... prima facie infringed the freedom of the press under s. 2(b). ... It then becomes necessary to consider whether s. 442(3) [is] justified. ...

What is the social value to be protected by s. 442(3)? It is to facilitate the prosecution of persons charged with serious sexual offences within s. 246.4 of the Code, and for that purpose to encourage the victims to come forward and complain, and to be prepared to testify at the trial of the accused. ... I consider that it has been clearly established that the social value ... is of superordinate importance and can merit a [publication ban]. It is a reasonable limitation. ... The representatives of the media still have the right of access to the court-room and to publish everything that transpires, with the exception only of [information pertaining to the complainant's identity]. ...

Has the [A-G] demonstrably justified that it is a reasonable limitation for the order to be mandatory in every instance ...? Doreen Carole Boucher testified that she was aware of some instances where a rape was imagined and the alleged victim wanted to humiliate a person. There may also be instances where an alleged victim has accused a number of persons previously of sexual offences without justification. The publication of the name of the complainant may in some cases bring forth other witnesses whose testimony may be helpful.

I am not persuaded that ... the mandatory prohibition order under s. 442(3) upon the application of the complainant or the prosecutor is a reasonable limitation. It is not required ... to ensure that the accused received a fair trial. There is no evidence that the needs of Canada for such legislation are greater than the needs of other free and democratic societies. ... The administration of justice is dependent on public confidence in the judiciary. The discretion given to the trial judge under s. 442(3) to make a prohibition order is a sufficient safeguard for the protection of the identity of the complainant. In most cases it will no doubt be made as a matter of course. However, in an exceptional case where it is not merited the presiding judge should have an opportunity to refuse to make it.

Under s. 52(1) ..., s. 442(3) of the Code is, to the extent that it requires the making of a mandatory order, inconsistent with the Charter and of no force and effect. This does not result in s. 442(3) being declared invalid in its entirety. The offending portion of s. 442(3) can be severed. ...the remainder of the subsection, which simply gives the presiding judge a discretion to make the order, can stand. ...

...[Section] 442(3) is valid with the exception of the words "or if application is made by the complainant or prosecutor, shall".

[1988] 2 S.C.R. 122

Lamer J.

... [T]he main issue before us is whether the impugned provision can be salvaged under s.1. ...

The test to be applied has been set out in R. v. Oakes and restated in R. v. Edwards Books and Art Ltd.,[]. In order to justify a limitation of a Charter right in a free and democratic society, two requirements must be met. The first one is related to the importance of the legislative objective which the limitation is designed to achieve. In the present case, the impugned provision purports to foster complaints by victims of sexual assault by protecting them from the trauma of wide-spread publication resulting in embarrassment and humiliation. Encouraging victims to come forward and complain facilitates the prosecution and conviction of those guilty of sexual offences. Ultimately, the overall objective of the publication ban imposed by s. 442(3) is to favour the suppression of crime and to improve the administration of justice. This objective undoubtedly bears on a "pressing and substantial concern" and respondent conceded that it is of sufficient importance to warrant overriding a constitutional right. The first requirement under s. 1 is thus satisfied. ...

To determine whether the means chosen ... are reasonable and demonstrably justified, a proportionality test balancing the various interests involved must be applied. The proportionality requirement has three aspects: the existence of a rational link between the means and the objective, a minimal impairment on the right or freedom asserted, and a proper balance between the effects of the limiting measures and the legislative objective. As to the first aspect, respondent conceded that there is a rational connection between s. 442(3) and the objective it is designed to serve. ...

When considering all of the evidence adduced by appellant, it appears that, of the most serious crimes, sexual assault is one of the most unreported. The main reasons stated by those who do not report this offence are fear of treatment by police or prosecutors, fear of trial procedures and fear of publicity or embarrassment. Section 442(3) is one of the measures adopted by Parliament to remedy this situation, the rationale being that a victim who fears publicity is assured, when deciding whether to report the crime or not, that the judge must prohibit upon request the publication of the complainant's identity or any information that could disclose it. 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. ... While it concedes the importance of the objective and the existence of a rational link between that objective and s. 442(3), respondent argues that the judge should retain a discretion. It is difficult to reconcile these submissions, because once these concessions are made, one is forced to admit that an absolute ban on publication is the only means to reach the desired objective. Respondent goes even further by contending that a case-by-case approach should be adopted to ensure that publication will not be banned, except where the social values competing with freedom of the press are of superordinate importance. If we were to adopt this submission, the legislative objective embodied in s. 442(3) would never be met, because publication would be the rule and a sexual assault victim could rarely predict whether the circumstances of the case would be viewed as an exception warranting a non-publication order. As a result, while it might impair less the freedom of the press, the discretionary ban ... is not effective in attaining Parliament's pressing goal.

While freedom of the press is nonetheless an important value in our democratic society which should not be hampered lightly, it must be recognized that the limits imposed by s. 442(3) on the media's rights are minimal. 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. ...

John Doe v. Canadian Broadcasting Corp.

(1993), 86 B.C.L.R. (2d) 202 (B.C.S.C.)

Boyd J.

The defendants have applied to set aside an ex parte order made by one of the judges of this Court....

Background Facts

This is an action for damages for violation of the plaintiff's right to privacy and defamation. The plaintiff says that in the course of two videotaped interviews, which are characterized as "jump interviews", the C.B.C. violated his right to privacy and uttered certain defamatory words.

Prior to the jump interviews, a C.B.C. reporter with the Fifth Estate television program asked the plaintiff to participate in an on-camera interview discussing his past involvement, as a senior officer and director of Galactic Resources, Ltd., in a mining operation in Summitville, Colorado. Since the spring of 1993, the Summitville gold mine closure has been the subject of a criminal investigation in the State of Colorado. Civil proceedings for recovery of environmental clean-up costs are also being considered by the U.S. Environmental Protection Agency.

Previous requests were made by the C.B.C. for such an on-camera interview, all of which had been refused by the plaintiff. Rather, he had suggested the C.B.C. should submit a written outline of the topics and specific questions to be addressed during the course of such an interview. The C.B.C. rejected that offer, stating that such an approach was not in keeping with the journalistic policies governing the Fifth Estate programming.

The first jump interview occurred as the plaintiff emerged from a private luncheon held at a hotel in New York City in June 1993. The plaintiff says that the reporter, Mr. Malarek, harassed him by asking loud, provocative and insulting questions as he chased after him to an elevator in the hotel. He says that Mr. Malarek stated false words to the effect that he, the plaintiff, had personally been named as a target of the Governor of Colorado's or the E.P.A.'s investigation.

Following that incident, the plaintiff says he attempted to provide the C.B.C. with information concerning Summitville while continuing to refuse to participate in an on-camera interview.

The second and most critical interview occurred in Vancouver, during August 1993, when the plaintiff emerged from a parking lot in a downtown building in the company of a business associate. He says that he was confronted by a C.B.C. team, including Mr. Malarek and two individuals holding a television camera and a sound boom microphone. He says that he was pursued into the elevator of the building and when that congregation of people and equipment proved impossible, left the elevator and was followed along several downtown streets as he walked to his lawyer's offices.

Quite apart from the overall nature of the incident which the plaintiff alleges constitutes an invasion of his privacy, these proceedings have primarily focused upon the initial questions which Mr. Malarek directed to the plaintiff at the outset of the second "jump interview". Rather than dealing with the Summitville mine and the E.P.A. investigation, he says that Mr. Malarek bellowed either these words, or words to this effect:

Isn't it true that you were in a federal prison and convicted of a drug offence in the United States? How did you manage to get into Canada? Did you tell the immigration authorities about these matters?

At the conclusion of the street walk, Mr. Malarek agreed to meet privately with the plaintiff in the atrium of a downtown building. There, the plaintiff explained that the conviction which Mr. Malarek had referred to had been expunged.

At this point I hesitate a moment to address the conviction referred to. Some 24 years ago, when he was 19 years of age, the plaintiff was convicted in the United States of a drug-related offence. His conviction was later "set aside" under the provisions of the Federal Youth Corrections Act. Subsequently, the convictions were formally expunged and his court file sealed. The purpose and intent of the U.S. statutes allowing for set aside orders and expungement of convictions is to encourage the rehabilitation of young people. Thus, at least under U.S. law, there is no conviction. The plaintiff has for a number of years been entitled to treat the conviction as non-existent and has done so.

For the limited purpose of this application, the C.B.C. has admitted the plaintiff's characterization of the two "jump interviews" during which videotapes were taken....

On August 24, 1993, the Fifth Estate program producer wrote to the plaintiff requesting further information about the legal process underlying the expungement of the U.S. conviction.

On August 27, l993, the plaintiff's counsel wrote to the C.B.C. providing that information, complaining about the two interviews and demanding an unequivocal written assurance that the C.B.C. would thereafter not "refer to or publicize in any manner whatsoever the expunged U.S. conviction." In the alternative, he demanded an unequivocal written assurance that the C.B.C. would not do so, pending the C.B.C.'s completion of an internal review of the matter. In the event the C.B.C. would not provide the first assurance, he demanded 48 hours notice before the C.B.C. referred to or publicized the expunged U.S. conviction.

By way of letter dated August 30, 1993, Mr. Hughes, counsel for C.B.C., replied to plaintiff's counsel, refusing to provide the assurances sought but assuring the plaintiff that the C.B.C. was mindful of the plaintiff's concerns and that any program would be carefully reviewed prior to being aired.

On August 26, l993, even before writing to the C.B.C., the plaintiff's counsel wrote to this Court requesting the opportunity to make an application, ex parte and in camera. On receipt of the C.B.C.'s reply, plaintiff's counsel proceeded with that ex parte application, in camera, and obtained the order which is presently under review.

The ex parte order contains the following terms, which I will generally describe: (a) that the plaintiff be allowed to maintain and continue the action using the alias John Doe; (b) that the court file be sealed with no access to anyone other than counsel of record; (c) that all proceedings be held in camera; (d) that the defendants be enjoined from "referring to or publicizing in any manner" any information relating to the expunged U.S. conviction; (e) that, pending trial, the defendants preserve all records of any interviews relating to the plaintiff's private life and activities; (f) that the defendants be compelled to produce the videotapes prior to the hearing of any application to set aside the Order; (g) that, pending trial, the defendants be enjoined from publishing or broadcasting in whole or in part the videotapes; (h) that, pending trial, the defendants be enjoined from referring to the fact that this action was commenced or maintained by the plaintiff, the content of any documents in the court file, any documents produced by the plaintiff and any information revealed during examinations for discovery; and (i) that the defendants be required to allow plaintiff a private reading or audience of any transcript or videotape of any statements pertaining to the private affairs of the plaintiff (save and except for his involvement in Galactic Resources and the Summitville mine) at least four clear days prior to any publication or broadcast.

Should The Ex Parte Order be Set Aside?

...In all of the circumstances of this case, I am satisfied that the plaintiff should not have applied ex parte to obtain the original order. Communication had been underway between the plaintiff and the plaintiff's lawyers and the C.B.C. over a period of months... [T]he application ought to have been brought with full and proper notice to the C.B.C.

I find that there was either no foundation or an insufficient foundation for characterizing the application as urgent in nature at the time it was brought....

...[T]he non-urgent nature of the application was not brought to the attention of the Chambers judge. Indeed, the opposite impression was created. For these reasons the ex parte order must be set aside....

The Plaintiff's Fresh Application

As I noted earlier, the plaintiff's action is for damages for violation of his right to privacy and defamation.

(a) The Closure Orders

Since they are perhaps the most controversial of the various orders sought and were the focus of submissions, I will first address what I have referred to as the closure orders found at paras. 1, 2, 3 and 7 of the new proposed order.... These paragraphs address the use of an alias to maintain and continue this action, the sealing of the court file, the holding of the proceedings in camera and an injunction to prevent the C.B.C., inter alia, from even referring to the fact that this action has been commenced or maintained by the plaintiff.

So far as para. 7 is concerned, the C.B.C. has agreed that the evidence obtained during the course of examinations for discovery and the documents produced during the course of the action ought to remain confidential. However, the balance of the relief sought under the closure orders is vigorously opposed.

There appear to be two bases underlying the plaintiff's argument: First, he submits that in Canada, as a matter of common law and public policy, the plaintiff is entitled to treat the expunged U.S. conviction as a "private fact". Second, he submits that the plaintiff has put forward a prima facie case supporting a past violation of his privacy rights by the C.B.C., with the result that any future threatened violation of his privacy rights deserves injunctive relief in the form of the closure orders sought. While

acknowledging the longstanding tradition of open court, he submits that the closure orders ought to be granted, since to do otherwise would allow for the dissemination of the very information over which the plaintiff claims the right to privacy, thus negating the very root of the relief sought in this action.

In submitting that the plaintiff is entitled to treat the expunged U.S. conviction as a "private fact", plaintiff's counsel has relied upon a line of American case authorities in which it has been held that where a youth offender's conviction is set aside under the Federal Youth Corrections Act (the "FYCA"), the conviction is thereafter treated, both in law and in fact, as not having occurred....

While the effect of the expungement is to allow the plaintiff to properly deny any history of the conviction and to require any U.S. Federal agencies to answer in the negative to any inquiry concerning the existence of any such conviction, I very much doubt that the expungement of the plaintiff's conviction in the United States converts the fact of the conviction and the expungement into what the plaintiff has characterized as "private facts", either in the United States or in Canada.

As a result of the expungement, the meaning of the conviction has changed. The conviction is no longer a matter of public record, available for society's sanctioned use. For example, it is no longer a fact available to prospective employers or bondsmen, on making inquiry of any Federal U.S. agency. However, the fact of the conviction and expungement remains in two senses: the historical factual sense and, as I will note later in these reasons, in the public domain.

Even assuming that the conviction and expungement are "private facts" and are deserving of protection..., it does not necessarily follow that the private nature of those facts and the plaintiff's right to maintain the privacy of such facts supersedes either the freedom of the press to report such facts ... or our longstanding Canadian principle of conducting all proceedings in open court.

The plaintiff's counsel has attempted to draw an analogy between a trade secret and the facts over which the plaintiff seeks to maintain confidentiality in this action. ... [He] submits that in this case, to unseal the court file and open the court would be to allow the dissemination of the facts which are the subject matter of this action. He submits that as in a trade secrets case, the public's access to the plaintiff's private facts will render this action nugatory.

I have great difficulty with that proposition.... I am satisfied that the facts which the plaintiff attempts to characterize as private facts are indeed already known by many persons and institutions in the United States. The facts are already in the public domain by virtue of various newspaper articles, books and magazines published in the United States in the late 1980s. Indeed, a computer database service known as Nexis makes that information generally available to the public at large, even today.

As I noted earlier, while the effect of the expungement is to remove the conviction as a source of stigma of the plaintiff and to prevent the access to knowledge of the conviction through public channels, the fact of the conviction remains.

I also disagree with the proposition that by unsealing the file and holding these proceedings in open court, the court would be rendering the administration of justice impracticable - or ... would be robbing all prospective litigants of any opportunity to seek injunctive relief to protect their rights of privacy under the Privacy Act.

There is nothing in that statute nor any authority at common law which supports the broad proposition that an action for damages for violation of privacy rights, by its very nature, attracts the veil of closure in the court - as in the case of a trade secret action. This is not to say that such injunctive relief will never be available. However, as in all other cases, the burden rests upon the plaintiff to satisfy the court that such extraordinary relief is necessary.

In light of our courts' recognition of the freedom of the press and in light of our long standing open court principle, I find that in this particular case, even if the facts in issue are in some sense private, the plaintiff has not come close to discharging the burden of proving that any of the extraordinary closure orders proposed are justified.

(b) The Prohibition Against Publication/Broadcast of the Private Facts or Any Part of the Videotapes (paragraphs 4 and 6)

There are three aspects to these proposed orders for injunctive relief:

(1) an injunction to restrain the publication or broadcast of the alleged private facts;

(2) an injunction to restrain the publication or broadcast of the videotapes as a whole;

(3) an injunction to restrain the broadcast of the alleged defamatory statements.

I will deal with each in turn....

I have grave doubts that the facts in question are indeed private facts which deserve the protection of the law to maintain their confidentiality.

Even if the facts were private facts, it is unnecessary for me to even consider the injunctive relief sought, since the C.B.C., at the outset of this hearing, advised that for "journalistic reasons", a decision was made not to publicize or broadcast any portion of the videotapes in which any reference is made to the expunged U.S. conviction.

Notwithstanding the C.B.C.'s stance, the plaintiff's counsel has said that this does not end the matter. He submits that the scope of the injunctive relief sought is much broader. The plaintiff seeks to enjoin the C.B.C. from "referring to or publicizing, in any manner whatsoever, to any person the allegation that the plaintiff has been charged or convicted of a criminal offence in the United States" []. As the plaintiff's counsel frames the issue, whether the intended broadcast is as narrow as a conversation with one person or a television broadcast to the entire Canadian public is irrelevant. In either case, he submits that the court ought to protect the plaintiff against a threatened future violation of his privacy rights.

In effect, the plaintiff seeks not merely to prevent the publication or broadcast of the alleged "private facts" (which the C.B.C. has agreed not to publish or broadcast in any event), but also to prevent any reference to these facts during any dialogues between C.B.C. staff and others, in the course of researching this story and preparing for programming. I am not aware of any legal authority which would support the proposition that it is in the public interest to allow the court to control the process by which news is gathered, analyzed and edited. To the contrary, the law provides that the news-gathering process is one which deserves the court's protection [].

Thus, even applying a balance of convenience test, I find that the plaintiff's interest in suppressing the "private facts" does not outweigh the public's interest in ensuring the integrity of the news-gathering process.

Notwithstanding the C.B.C.'s agreement to excise or edit any reference to the alleged private facts from the videotapes, the plaintiff's counsel submits that no part of the videotapes can be broadcast or published. He submits that the videotapes as a whole are now "tainted" since they are the by-product of a gross invasion of privacy. There is no authority for such a submission referred to by counsel. I decline to accept such a submission and I intend to deal with it no further.

Mr. Malarek's statement concerning the U.S. conviction, while not complete since there was no mention of the expungement, is perhaps not defamatory since the truth of the conviction is admitted. Even if the statement is defamatory, the C.B.C. has agreed not to publish or broadcast the statement. The balance of Mr. Malarek's statements during the course of the second jump interview (the suggestion that the plaintiff failed to advise immigration authorities about the conviction with the innuendo that he was thereby improperly able to gain entry to Canada) may well be defamatory, but again the C.B.C. has already agreed not to publish or broadcast any of those statements.

The only other alleged defamatory statement is Mr. Malarek's accusation, during the course of the first jump interview, that the plaintiff was personally named as a target of either the Governor of Colorado's or the E.P.A.'s investigation. The C.B.C. has failed to provide an undertaking not to publish or broadcast that statement.

The law provides that where a party seeks to enjoin another's right to publish an alleged defamatory statement, a much higher threshold test is applied by the courts in determining whether injunctive relief (sometimes referred to as "prior restraint") ought to be granted. The traditional balance of convenience is no longer a factor. Prior restraint of speech will only be granted in the "rarest" and "clearest" of cases where " `the Court must be satisfied that any jury would say the matter complained of was libellous'[]

On the basis of the affidavit material before me, this is simply not one of those cases where the alleged statement can be said, at the outset, to be clearly defamatory. Accordingly, no injunctive relief is available....

(1993), 86 B.C.L.R. (2d) 216 (B.C.C.A.)

McEachern C.J.B.C.

...In this case a judge in chambers ex parte proceeded entirely in camera and ordered the widest possible ban on publication and the sealing of the court file []. Madam Justice Boyd, after a full hearing extending over several days, has now decided to set that order aside []. I am asked to continue the operation of the original order pending an application for leave to appeal and presumably, if leave is granted, the hearing of the appeal.

I do not think I should do that because the breadth of the original order has created an extraordinary amount of media and public attention which, when weighed against the circumstances disclosed in the affidavits and in the reasons of the court below, has created an imbalance which, in my view, can only be remedied by removing all restrictions on the usual healthy scrutiny which is common for proceedings in most cases in the courts. The circumstances to which I refer include the particular facts of this most unfortunate matter, the fact that this information is already available and has been published in the United States, the law relating to what is sometimes called "prior restraint", and the onus which rests upon the applicant not just to obtain a stay of proceedings following a hearing in the court below but also upon an application for leave to appeal.

I do not overlook the possible prejudice to the plaintiff. If the facts are as found by the chambers judge then it will be unfortunate, to say the least, if the media should seek to publish information about matters that happened so long ago and in the circumstances described in the material. As I have said, I wish it were possible to fashion a completely acceptable order but I do not think that is possible in these circumstances.

For these reasons ... I must dismiss the application to stay the operation of the order....

D. AMERICAN JURISPRUDENCE

Nebraska Press Association v. Stuart

96 S.Ct. 2791 (1976)

[A Nebraska state trial judge, at the start of a trial on multiple murder charges which had attracted widespread news coverage, entered an order restraining the news media from publishing or broadcasting accounts of confessions or admissions made by the defendant to law enforcement officers or third parties other than members of the press and other facts "strongly implicative" of the defendant.

Burger C.J.

... The thread running through all these [prior restraint] cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgement until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.

A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for the time.

The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events. Truthful reports of public judicial proceedings have been afforded special protection against subsequent punishment. ... For the same reasons the protection against prior restraint should have particular force as applied to reporting of criminal proceedings, whether the crime in question is a single isolated act or a pattern of criminal conduct. ...

Of course, the order at issue ... does not prohibit but only postpones publication. Some news can be delayed and most commentary can even more readily be delayed without serious injury, and there often is a self-imposed delay when responsible editors call for verification of information. But such delays are normally slight and they are self-imposed. Delays imposed by governmental authority are a different matter. ...

Our review of the pretrial record persuades us that the trial judge was justified in concluding that there would be intense and pervasive pretrial publicity concerning the case. He could also reasonably conclude, based on common human experience, that publicity might impair the defendant's right to a fair trial. He did not purport to say more, for he found only "a clear and present danger that pre-trial publicity could impinge upon the defendant's right to a fair trial." (Emphasis added.) ...

Most of the alternatives to prior restraint of publication in these circumstances were discussed with obvious approval in Sheppard v. Maxwell, 384 U.S., at 357-362: (a) change of trial venue to a place less exposed to the intense publicity...; (b) postponement of the trial to allow public attention to subside; (c) searching questioning of prospective jurors ... to screen out those with fixed opinions as to guilt or innocence; (d) the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court. Sequestration of jurors is, of course, always available. ...

We have therefore examined this record to determine the probable efficacy of the measures short of prior restraint on the press and speech. There is no finding that alternative measures would not have protected Simants' rights, and the Nebraska Supreme Court did no more than imply that such measures might not be adequate. Moreover, the record is lacking in evidence to support such a finding.

We must also assess the probable efficacy of prior restraint on publication as a workable method of protecting Simants' right to a fair trial, and we cannot ignore the reality of the problems of managing and enforcing pretrial restraining orders. ...

Finally we note that the events disclosed by the record took place in a community of 850 people. It is reasonable to assume that, without any news accounts being printed or broadcast, rumors would travel swiftly by word of mouth. One can only speculate on the accuracy of such reports, given the generative propensities or rumors; they could well be more damaging than reasonably accurate news accounts. But plainly a whole community cannot be restrained from discussing a subject intimately affecting life within it.

Given these practical problems, it is far from clear that prior restraint on publication would have protected Simants' rights. ...

The record demonstrates, as the Nebraska courts held, that there was indeed a risk that pretrial news accounts, true or false, would have some adverse impact on the attitudes of those who might be called as jurors. But on the record now before us it is not clear that further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court. We cannot say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary. Nor can we conclude that the restraining order actually entered would serve its intended purpose. Reasonable minds can have few doubts about the gravity of the evil pretrial publicity can work, but the probability that it would do so here was not demonstrated with the degree of certainty our cases on prior restraint require. ...

Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged. We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the presumption against its use continues intact. We hold that, with respect to the order entered in this case prohibiting reporting or commentary on judicial proceedings held in public, the barriers have not been overcome; to the extent that this order restrained publication of such material, it is clearly invalid.

Notes and questions

1. The U.S. Supreme Court has held that due process can be denied an accused where media conduct at a trial, and coverage of a trial, prejudices the fairness of the trial. (See e.g. Rideau v. Louisiana 373 U.S. 723 (1963); Sheppard v. Maxwell 384 U.S. 333 (1966)) A conviction can be overturned on constitutional grounds in such circumstances. Under the Nebraska Press test, what kind of evidence and facts must be adduced to justify a pre-trial ban on publication of inculpatory evidence and allegations led in a pre-trial criminal proceeding, such as a preliminary hearing? In practice, how feasible will it be for a party to meet this standard?

2. American First Amendment jurisprudence approaches prior restraints on speech (e.g. an injunction or other restraint imposed by order of a court or other public official) as harder to justify than laws imposing "subsequent punishment" on speech (e.g. a law automatically banning publication of specified information, which requires no court order to go into effect). Is this differentiation warranted? Should it be infused into Canadian law?

Cox Broadcasting Corporation v. Cohn

95 S.Ct. 1029 (1975)

[In 1971, the respondent's 17-year-old daughter was raped and killed. Six youths were indicted on charges of murder and rape. Though the identity of the victim was not disclosed at that time, a reporter learned the name of the victim by examining the indictments which were made available for his inspection in the courtroom. After the reporter broadcast the identity of the victim, the respondent brought an action, claiming that his right to privacy had been invaded.]

White J.

... It is true that in defamation actions, where the protected interest is personal reputation, the prevailing view is that truth is a defense... What is more, the defamed public official or public figure must prove not only that the publication is false but that it was knowingly so or was circulated with reckless disregard for its truth or falsity. Similarly, where the interest at issue is privacy ..., the target of the publication must prove knowing or reckless falsehood where the materials published, although assertedly private, are "matters of public interest." []

The Court has nevertheless carefully left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamation action brought by a private person as distinguished from a public official or public figure. ...

Appellee has claimed in this litigation that the efforts of the press have infringed his right to privacy by broadcasting to the world the fact that his daughter was a rape victim. The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions, however, are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government.

The special protected nature of accurate reports of judicial proceedings has repeatedly been recognized. This Court, in an opinion written by Mr. Justice Douglas, has said:

A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. ... Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. Craig v. Harney, 331 U.S. 367, 374 [] (1947) (emphasis added). ...

By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.

We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public. At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it. ...

Under these circumstances, the protection of freedom of the press provided by the First and Fourteenth Amendments bars the State of Georgia from making appellants' broadcast the basis of civil liability.

Notes and questions

1. To what extent may Parliament ban publication of the fact that a person was the target of a police search? Section 487.2 of the Criminal Code provides as follows:

487.2 (1) Where a search warrant is issued under section 487 or 487.1 or a search is made under such a warrant, every one who publishes in any newspaper or broadcasts any information with respect to

(a) the location of the place search or to be searched, or

(b) the identity of any person who is or appears to occupy or be in possession or control of that place or who is suspected of being involved in any offence in relation to which the warrant was issued,

without the consent of every person referred to in paragraph (b) is, unless a charge has been laid in respect of any offence in relation to which the warrant was issued, guilty of an offence punishable on summary conviction.