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2009 Ottawa, ON 1996 Ottawa, ON
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1996 Ottawa, ON
This document in Word Perfect
II. PUBLICATION BANS: THE LEGAL BACKGROUND AND FRAMEWORK
III. SUBSTANTIVE AND PROCEDURAL ISSUES
IV. LIABILITY AND PENALTY SCHEMES
V. SEPARATE PART FOR PUBLICATION BAN ORDERS
At the 1994 Conference Saskatchewan presented a resolution which was passed by the Section as
follows:
"That the Criminal Law Section form a committee to study publication bans and exclusion orders and provide the 1995 meeting with recommendations on changes in the law in this area."
Saskatchewan offered to Chair the Committee which included members from British Columbia,
Alberta, Manitoba, Quebec and the federal Department of Justice.
At the 1995 Conference the Publication Bans Committee presented a paper outlining the legal
background and framework of publication bans, the constitutional issues arising in this area and a
discussion of the recent Dagenais and T.S. decisions of the Supreme Court of Canada. That paper
raised some outstanding issues in the post-Dagenais era.
In addition, the Publication Bans Committee sought the approval of the Section to continue its
efforts with some variations on the original mandate. Noting that there had been a number of
significant developments in the law in this area and that there were cases pending in the Supreme
Court of Canada, the Committee requested further time to consider the issues and to also address
third party interests.
The Committee sought approval to proceed with respect to three areas and this approval was given.
Accordingly, this paper reflects the work done in the approved areas over the last year. As there
was no funding available for this project, different parts of the Paper were prepared by individual
members. It was not possible to meet to debate each proposal and time constraints prevented even
the circulation of a final draft to all members. Accordingly, it should not be thought that each
member of the Committee endorses each proposal. The proposals are simply put forth to stimulate
discussion and any further action the Section considers appropriate.
The first section of the paper presents the legal background and framework concerning publication
bans. Following that is a presentation of the substantive and legal issues addressed by the
Committee including general proposals for the reform of some but not all of the present substantive
and procedural law. Next, the penalty provisions relating to these offences are examined. Finally,
proposals are made for reform of the substantive and procedural law in a separate Part of the
Criminal Code. A summary of the proposals is attached to this paper.
II. PUBLICATION BANS: THE LEGAL BACKGROUND AND FRAMEWORK
A judicial ban upon publication of details about a criminal proceeding engages a variety of
interests, some of which are constitutionally protected. There is the right of an accused person to
receive a fair trial. This significant interest is enshrined in the common law and enjoys protection
in the Canadian Charter of Rights and Freedoms.See footnote 1 As well, there is the interest of the state and
the public in seeing that criminality is prosecuted and, if proven, punished. This interest is also
articulated in both the common law and the Charter.See footnote 2 Finally, there are the interests of various
third parties to the prosecution. One of the more significant third party interests is that of the
media to publish and to broadcast information about criminal proceedings. This interest is
subsumed within the fundamental freedom of the press now guaranteed by section 2(b) of the
Charter. There are also the interests of other third parties such as witnesses or victims of the
crimes being prosecuted and their families. Traditionally, the interests of those individuals have
only been indirectly acknowledged in our law. Indeed, any constitutional recognition of these
interests is only inferential, most notably a privacy interest which resides, perhaps, in the penumbra
of section 7.See footnote 3
This part of the paper will address the two most significant constitutional protections engaged
The right of an accused person to a fair trial is the principal objective of the criminal justice
system. Most rules which govern the investigation and prosecution of crime are intended to serve
that end. Though many of these rules are now constitutionally enshrined, this is only the
culmination of their evolution and development at common law.See footnote 4 For example, the principle
against self-incrimination applied most recently by the Supreme Court of Canada in R. v. S. (R.J.)See footnote 5
is one example of a legal principle informed by both the common law and the constitution. Its aim,
ultimately, is to ensure a fair trial of an accused person without his or her involuntary participation.
An important attribute of a fair trial is "openness", a concept which emerged following the worst
excesses of the Court of Star Chamber. Dickson J. (as he then was) enunciated the policy rationale
underlying the concept of open justice in Attorney General of Nova Scotia v. McIntyreSee footnote 6 as follows:
The rationale [for a strong public policy in favour of "openness" in respect of judicial acts] has
been eloquently expressed by Jeremy Bentham in these terms:
'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice'. 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial'.See footnote 7
So integral is this concept to the fairness of a criminal proceeding, that fairness and openness are
enshrined conjunctively in the constitutional text. Section 11(d) guarantees to every accused person
the right "to be presumed innocent until proven guilty according to law in a fair and public hearing
by an independent and impartial tribunal". The clear inference to be drawn from this juxtaposition
is that openness is the norm. Publicity which is distinct from openness is often equated with it.
That concept will be discussed in the next section.
Like an accused's right to a fair trial, freedom of the press has long been recognized and protected
at common law. Dubin C.J.O. made this point in Dagenais when he observed that "long before
the [Charter], it was the common law courts that held freedom of expression, including freedom
of the press, to be a fundamental freedom, defended it, and gave it almost a constitutional status".See footnote 8
Freedom of the press was expressly identified in section 1(f) of the Canadian Bill of RightsSee footnote 9 as
a right that has "existed and shall continue to exist" in Canada.
This fundamental freedom was constitutionally enshrined in section 2(b) of the Charter. That
paragraph guarantees to all Canadians "freedom of thought, belief, opinion and expression,
including freedom of the press and other media of communication". The Supreme Court of Canada
has consistently given the concepts of freedom of expression and freedom of the press a most
ample reading. For example, when scrutinizing the constitutional propriety of former section 442
of the Criminal Code in Canadian Newspapers Co. v. Canada (Attorney General),See footnote 10 Lamer J. (as
he then was) stated:
Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom.See footnote 11
Amongst the current members of the Court, the most enthusiastic advocate of an unfettered press
is Cory J. His judgment for the plurality in Edmonton Journal v. Alberta (Attorney General)See footnote 12
best illustrates this. There the constitutional validity of a provision of the Judicature Act (Alta.),See footnote 13
which prohibited the publication of information respecting divorce proceedings, was impugned.
Cory J. who found this prohibition to be unconstitutional began by expressing the view that "free
and uninhibited speech permeates all truly democratic societies and institutions" and, as a
consequence, its "vital importance Referring to freedom of the press, Cory J. asserted that it was essential to the rule of law that "the press . . . 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".See footnote 15 He elaborated upon the critical
function of the media in enhancing the rule of law as follows:
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.See footnote 16
Cory J. reiterated his unabashed support for a free press most recently in Nova Scotia Broadcasting
Co. v. Nova Scotia (Speaker of the House of Assembly)See footnote 17. That case involved a challenge to a rule
of the Nova Scotia Legislative Assembly which prohibited television in the Legislative Chamber.
Although his was a dissenting view, he again advanced an absolutist interpretation of freedom of
the press. He opined that: "It is obvious that prohibition on television cameras is by definition a
restriction on freedom of the press . . . if the legislative assembly prohibits any media access to the
public debates or excludes one form of the media (television) from the public debates, there has
been an infringement of the Charter right to freedom of expression".See footnote 18
It is true the majority in Nova Scotia Broadcasting Co. found no violation of the Charter for the
simple reason that a privilege of the Nova Scotia House of Assembly was not susceptible to
constitutional review. However, these cases are not enumerated for the purpose of amassing the
win/loss record for media institutions before the Supreme Court. Rather, they demonstrate that
media claims of unconstitutionality, when unsuccessful, have been defeated on the section 1
analysis and not because the media has failed to establish a prima facie violation of section 2(b).
Although it is beyond the scope of this Part, it is useful to pause and identify certain of the
assumptions which underlie the claims advanced by media organizations under the rubric of
freedom of the press. First, those claims are strongly libertarian. It is the position of the media
that subject to justification under section 1 of the Charter, no law can purport to regulate or affect
how the media gathers news; how they decide what to report and how, whether and when it is
disseminated. For the most part, this approach has been endorsed by the Supreme Court. The only
point of disagreement between the claimants and the Courts has been the type of limitation that
satisfies the reasonableness criteria under section 1.
Second, the Supreme Court has accepted uncritically the assumption that the contemporary media
functions as the surrogate for the general public. This agency argument, articulated and applied
by Cory J. in Edmonton Journal holds that as most members of the public are unable to attend
judicial proceedings, it is essential that the press attend on our behalf and report back to us what
transpires in the court room. The questionable basis for this assumption was highlighted very
recently by Taylor J.A. in Blackman v. British Columbia Review BoardSee footnote 19 as follows:
[T]he media are not required to act responsibly, nor to serve what others may regard as the best interest either of individuals or the public . . . While the media serve an important role in informing the public, they do not "represent" the public, in the sense of having any responsibility to the public, nor have they any obligation properly to inform the public on any particular matter; such public duties or responsibilities would be quite inconsistent with the concept of a "free" press.See footnote 20
There are, of course, additional problems with this notion which to date the Supreme Court has
failed to address, not the least of which is accountability. Indeed, were any mechanism put in place
to oversee the press or to make it more accountable to the public, it would be viewed, at least by
the media, as an anathema.
The last assumption found in the jurisprudence to be highlighted here is the claim that only when
the press is permitted to report on what occurs in a courtroom, will it be possible for society to be
satisfied that justice is done. It is premised on the well-known maxim that "not only must justice
be done, it must be seen to be done". However, as a retired justice of the Supreme Court of
Ontario recently observed: "The maxim is not directly relevant. It does not deal, other than by
implication, with the concept of an open court".See footnote 21 Moreover, the logical extension of this
argument reveals its fatal flaw. Most criminal trials which take place in Canada every day are
conducted without a representative of the press in attendance. Does this mean that those accused
persons did not obtain a fair trial? The claim is an extravagant one, to be sure. Yet it flows
logically from the assertion that publication is an essential ingredient of a fair trial.
B. Dagenais and T.S. -- The Constitutionality of Publication Bans
The starting point for any discussion respecting the constitutionality of publication bans must be
Dagenais v. Canadian Broadcasting CorporationSee footnote 22 and its companion appeal, R. v. T.S.See footnote 23
Dagenais is the principal authority and came to the Supreme Court with leave from the Ontario
Court of Appeal. It concerned an injunction granted by Gotlib J. of the Ontario Court of Justice
(General Division) which enjoined C.B.C. from broadcasting the award winning docu-drama, "The
Boys of St. Vincent", anywhere in Canada pending completion of the trials for certain Christian
Brothers on charges of sexual assault. On appeal, the Ontario Court of Appeal amended Gotlib J.'s
order only in one respect. The Court narrowed its geographical ambit, confining its application to
Ontario and to a French language television station which broadcast into Ontario from Montreal.See footnote 24
On further appeal, the Supreme Court (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting)
quashed the order of Gotlib J. as amended by the Ontario Court of Appeal.
T.S. concerned a publication ban imposed by a Youth Court Judge at the outset of a trial on a
number of sexual assaults which allegedly took place in Martensville, Saskatchewan. As certain
other individuals faced similar allegations of criminality, the Youth Court Judge ordered that no
details of the young offender proceedings, except for the verdicts, be published until the related
trials were over. The Saskatchewan Court of Appeal dismissed C.B.C.'s appeal from this order for
want of jurisdiction.See footnote 25 The Supreme Court granted leave to C.B.C. to appeal.See footnote 26 Ultimately,
however, the Court dismissed this appeal for lack of jurisdiction.
Five separate opinions were rendered in Dagenais. Lamer C.J. wrote for the majority. McLachlin
J. filed a separate, concurring opinion and like the Chief Justice found the injunction at issue to
violate section 2(b) of the Charter in a way which was not reasonable for the purposes of section
1. La Forest J. dissented on jurisdictional issues. However, in obiter dicta, he expressed the view
that he was "in agreement with the Chief Justice that the common law rule did not give sufficient
protection to freedom of expression.See footnote 27 L'Heureux-Dubé J.'s dissent was confined to the lack of
jurisdiction to entertain the appeal from the Ontario Court of Appeal. On the substantive issue, she
concurred with the reasons of Gonthier J. For his part, Gonthier J. held that while the common law
rule impugned by the Appellant offended section 2(b), it was justifiable under section 1. For
purposes of this Part, however, only the analysis of Lamer C.J. will be reviewed and assessed.
On this aspect of the appeal, Lamer C.J. began by noting that since the advent of the Charter,
publication bans engaged two interests, both of which are constitutionally protected, namely the
right of an accused to a fair trial and freedom of expression, including freedom of the press. In
view of the explicit recognition of these values in the Charter, Lamer C.J. asserted that it would
be wrong to view publication bans "as a clash between two titans".See footnote 28 The approach advocated by
the Chief Justice entails a balancing of these two interests. He stipulated:
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.See footnote 29
When Lamer C.J. applied this balancing approach to the common law rule under attack in
Dagenais, he concluded it was weighted too much in favour of suppressing publication. As a
consequence, it was in need of amendment for it failed to give sufficient recognition to freedom
of expression. The new constitutional common law rules provide 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 of the free
expression of those affected by the ban.See footnote 30 As formulated by Lamer C.J. this new rule demands that all balancing be undertaken and accomplished under section 1. This is not a surprise. The Supreme Court had earlier held in Canadian Newspapers Co.See footnote 31 that any prohibition upon publication amounts to a prima facie infringement of section 2(b).See footnote 32 Therefore, since the analysis takes place within section 1, the onus to demonstrate that a proposed publication ban is warranted rests upon "the party seeking to limit freedom of expression".See footnote 33 The Chief Justice indicated further that the party must prove on a balance of probabilities that: (1) the ban "relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure"; (2) "[it] is as limited (in
scope, time, content, etc.) as possible"; and (3) "there is a proportionality between the salutary and
deleterious effects of the ban".See footnote 34
Lamer C.J. directed that before lower courts may impose a publication ban the judge must first
consider "all other options" to suppressing publication in order to satisfy himself or herself that the
ban is the most "reasonable and effective alternative available".See footnote 35 Understandably, the Chief
Justice was pragmatic about the efficacy of contemporary publication bans, particularly in light of
the breathtaking advances in contemporary computerized technology.See footnote 36 He observed that: "In this
global electronic age, meaningfully restricting the flow of information is becoming increasingly
difficult [and] the actual effect of bans on jury impartiality is substantially diminishing".See footnote 37 This
fact directly affects the important questions of whether or not a ban can ever be effective and, as
a consequence, the most reasonable alternative available. It did not figure prominently in Dagenais;
however, the Supreme Court must address this issue in the future, having avoided it in R. v.
Thomson Newspapers Ltd.See footnote 38
Unfortunately, Lamer C.J. did not engage in an extensive consideration or assessment of the kind
of alternatives to a publication ban which might be more appropriate. He did, however, offer this
brief litany of options:
Possibilities that readily come to mind . . . 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.See footnote 39
It is interesting to observe that at least one of the options identified by Lamer C.J. as a viable
alternative, namely adjourning the trial to permit publication engages yet another Charter
protection. Section 11(b) guarantees to every accused person the right to a trial within a reasonable
time. By suggesting that adjournment is possible, the Chief Justice injected a third constitutional
value to be weighed and balanced when assessing the appropriateness of a publication ban.
Once it is ascertained that a publication ban is the appropriate mechanism, the judge must then
assess the best way to limit the ban and restrict it "as much as possible".See footnote 40 Restrictions of this
kind would include time limited bans. For example, it has long been established, at common law,
that a ban, imposed by a trial court to preserve the fairness of proceedings before it, may include
the subsequent trial of a co-accused on related charges.See footnote 41 It was just such time limited publication
bans which were at issue in both T.S.See footnote 42 and Thomson Newspapers Ltd.See footnote 43 Unfortunately, in light
of the disposition of the appeal in T.S. solely on jurisdictional grounds, the constitutional propriety
of an order of this kind has yet to be determined definitively.See footnote 44 Another common restriction would be to make the ban geographically specific. Typically, such a stipulation would limit the ambit of the ban to the area surrounding where the trial is to occur and from where potential jurors are to be drawn. Dagenais concerned a restriction of this sort. Lamer C.J. ruled that the original ban imposed by Gotlib J. at first instance "was far too broad", since it
"prohibited broadcast throughout Canada and even banned reporting on the ban itself".See footnote 45 Any
court which elects to impose a publication ban must carefully craft the geographical limitation to
be imposed.
The issue of geographic limitations upon a publication highlights the circularity of the analysis and
raises serious questions as to whether an order postponing publication will ever be appropriate. On
the one hand, Lamer C.J. states that a publication ban must be resorted to only as a last resort, after
a court has reviewed and considered the other available alternatives. At the same time, the Chief
Justice has clearly directed that when ordered the ban must be drawn only to affect the area
surrounding where the trial itself is to occur. However, in this age when it is extremely difficult
to cabin the dissemination of information this way, it may be virtually impossible to ensure that a
ban will ever be effective. Simply put, limiting a publication ban geographically may defeat its
efficacy.
In Dagenais, only the common law jurisdiction of a judge to order a publication ban on a criminal
proceeding was implicated. However, the extensive analysis undertaken by the Court cannot be
confined to that context. Lamer C.J. set down the fundamental principles and values which must
be balanced whenever limitations may be placed upon the publication of information about what
occurs in a criminal courtroom or even access to that courtroom.
III. SUBSTANTIVE AND PROCEDURAL ISSUES
In this Part, certain provisions of the Criminal Code will be assessed in the wake of Dagenais. A
discussion of significant procedural issues will follow.
A. Selected Provisions
The constitutionality of a number of provisions of the Criminal Code relating to publication bans
has already been challenged under section 2(b) of the Charter. Some of these provisions have been
sustained at least in part. Others, however, have managed to escape constitutional scrutiny. The
more important of these provisions are discussed in this section.
Superior courts of criminal jurisdiction have long had the power to protect the rights of third
parties, including witnesses, in criminal proceedings. For example, protecting witnesses by the
manner in which courtrooms are configured had been within the inherent power of courts prior to
Parliament enacting provisions relating to screens and sequestration.See footnote 46 As well, the inherent power
of superior courts to preserve access to the courts themselves and the proceedings which take place
there has been acknowledged on numerous occasions.See footnote 47
The power of a superior court to impose limitations upon publication is another illustration of this
authority to protect the interests of a third party, oftentimes a complainant or victim of crime.
While it is an open question whether the discretionary power to order publication bans is
inextricably included within the fundamental powers of a superior court of criminal jurisdiction,
Parliament has enhanced the discretionary power to ban publication under sections 486(1) and (2)
of the Criminal Code, which are discussed below, by clothing all courts of criminal jurisdiction
with this power. Parliament has supplemented this authority by providing for a mandatory
publication ban pursuant to sections 486(3) and (4), which is limited only to the identity of the
complainant.See footnote 48
These latter two provisions have survived constitutional attack. For example, the precursor of the
current section 486(4) was upheld in Canadian Newspapers Co.See footnote 49 In that case, Lamer J. (as he
then was) wrote for the Court and sustained the former section 486(4) as a reasonable limitation
upon freedom of expression. He expressly left open the question of whether section 486(4)
offended the right of an accused person to a fair trial.See footnote 50 Since this pronouncement of the
Supreme Court, this particular provision has been amended to include witnesses under the age of
18 years as well as complainants in sexual matters. However, in light of the limited application of
this provision which the Court held to be necessary to ensure that the legislative objective was not
frustrated, it is difficult to perceive how trial fairness is abridged by these sections.
On balance, it is likely that the constitutional propriety of this provision will not be revisited post-Dagenais. It is true that sections 486(3) and (4) do not provide for the generous balancing
approach advocated by Lamer C.J. in Dagenais. However, the limitation placed upon freedom of
the press by this section is very narrow and it is arguable that it indirectly received the blessing of
the Supreme Court in R. v. O'Connor.See footnote 51 This provision is not in need of re-drafting.
Proposal: That sections 486(3) and 486(4) of the Criminal Code be retained in their
current form.
Currently, section 486 (1) permits a trial judge to close the court to "all members of the public"
provided he or she "is of the opinion that it is in the interest of public morals, the maintenance of
order or the proper administration of justice" to do so. Very recently, the Supreme Court of
Canada unanimously upheld the constitutionality of the "proper administration of justice" arm of
this provision in Canadian Broadcasting Corporation v. New Brunswick (Attorney General) et.
al.See footnote 52 The Court announced that it was sustaining the constitutionality of that portion of the
impugned section with "reasons to follow".See footnote 53 The New Brunswick Court of Appeal had earlier
found section 486 (1) was a reasonable limitation upon freedom of expression.See footnote 54
The other bases enumerated in section 486 (1) upon which a presiding judge may close a
courtroom, namely "in the interest of public morals [and] the maintenance of order" are not
obviously unconstitutional. The section makes it clear that any order made pursuant to it is
discretionary. However, this fact does not render it constitutionally suspect. Discretion abounds
in the criminal law. The Supreme Court has already held that discretion reposed in state agents
does not offend the Constitution.See footnote 55 Curial deference, even more so, is not invalid on this basis.
On the contrary, it is a key element of a court's ability to carry out not only the various duties
assigned to it, but to act as a guardian of the Constitution itself.See footnote 56 Indeed, as Tallis J.A., speaking
for the Saskatchewan Court of Appeal in Saskatchewan (Attorney General) v. McConachieSee footnote 57 ,
remarked this discretion is "to be exercised on a case by case basis in light of the relevant facts and
circumstances with due regard for the presumption of openness enshrined in s. 486 of the Criminal
Code and the common law."See footnote 58 To this mix must be added the balancing of constitutional values
identified by Lamer C.J. in Dagenais.
Another recent case in which the constitutionality of section 486(1) was impugned is The Estate
of Kirsten French et. al. v. Attorney General of Ontario.See footnote 59 The relief sought on that particular
application was whether explicit video-tapes which had been introduced during Paul Bernardo's
first degree murder trial should be destroyed. As well, the Applicants sought a declaration that
section 486 (1) of the Criminal Code, was unconstitutional, principally because the "public morals"
aspect of the provision was vague and did not adequately protect victims of sexually related
offenses. In the course of the hearing before Gravely J. of the Ontario Court of Justice (General
Division), counsel for the Applicants presented a proposed amendment to the current section 486(1)
as follows:
486(1): Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of the maintenance of order, the proper administration of justice or to prevent serious harm or injustice to any person shall order the exclusion of all or any members of the public from the court room, or make such other order that is less intrusive provided it achieves the same objective.See footnote 60
The proposal also provided in a separate subparagraph that "serious harm" shall include child
pornography and obscenity as defined by this Act.See footnote 61 The plain objective sought to be advanced
by this proposal is to afford protection to victims of certain sexually related crimes. Nevertheless,
that objective can already be achieved under the terms of the current section. That, at least, was
the view of Gravely J. He concluded:
While s. 486(1) does not use the word "harm", in my opinion, that is implicit in the language used, namely "public morals, the maintenance of order or the proper administration of justice." While it is easy to define harm and morality as distinctly different concepts, in practical terms it is not useful to do so. Moral imperatives do not exist in a vacuum. They must be viewed in the context of the harm they are designed to prevent.
The phrase "public morals" appears arcane to some extent but removal of the phrase may also
remove an element of "harm" which should continue to be included in the section. Accordingly,
if the section were to be amended to remove the reference to "public morals", consideration would
have to be given to adding a reference to "harm" since it may not be covered by the phrase "the
proper administration of justice".
Proposal: That section 486(1) be retained in its current form.
Section 487.2 prohibits, in the absence of a criminal charge, the publication of details surrounding
the execution of a search warrant "without the consent of every person" referred to in the warrant.
This provision has been found to contravene section 2 of the Charter by the superior courts of two
provinces.See footnote 63 The Saskatchewan Court of Appeal recently assumed this provision to be
constitutionally valid without deciding the question.See footnote 64
It is clear that section 487.2 of the Criminal Code is prima facie unconstitutional in that it violates
freedom of the press as set out in section 2(b) of the Charter. Nevertheless, in spite of the
prevailing view expressed in the current jurisprudence, there are legitimate public values which
must be taken into account in the context of a section 1 analysis. These would include privacy
concerns of individuals who, as yet, have not been charged with any criminal offence as well as
legitimate law enforcement objectives. While it cannot be denied that in its current form section
487.2 is constitutionally suspect as it imposes a mandatory and complete ban on publication, until
there is a ruling that it is unconstitutional after a s.1 analysis has occurred, there should be no
amendment of the provision.
Proposal: That section 487.2 be retained in its current form.
These two provisions authorize the imposition of publication bans in the context of certain pre-trial
proceedings. Section 517 relates to a ban upon the publication of evidence which is presented at
a bail hearing held in accordance with section 515. If such an order is requested by the Crown,
it is necessary for the prosecutor to demonstrate why a publication ban is warranted. However, if
it is the accused who asks for the order, the order is mandatory as the court is obliged to grant it.See footnote 65
Any order made pursuant to section 517 remains in effect until the accused is either discharged
following a preliminary inquiry or convicted or acquitted of the crime against him or her.See footnote 66
Section 539 which relates to evidence tendered at a preliminary inquiry is in almost identical terms
to section 517.
To date, the constitutionality of these provisions has been sustained. In Re Global Communications
Ltd. and A.G. CanSee footnote 67, the Ontario Court of Appeal upheld the constitutional propriety of section
517 on the basis that it was a reasonable limitation upon freedom of the press. The New
Brunswick Court of Queen's Bench in R. v. BanvilleSee footnote 68 measured section 539 against the
requirements of section 2(b) of the Charter and found it to be constitutionally sufficient.
The results achieved in those cases must be revisited, however, in light of Dagenais. Applying the
reasoning advanced there, it is apparent that these two provisions are seriously flawed in one
significant aspect. The court possesses no discretion when the request for a publication ban upon
the evidence is advanced by the accused. In that particular circumstance, the presiding judge must
impose a ban. As a consequence, no balancing is permitted whereby the effect a publication ban
may have upon freedom of the press may be assessed. In the post-Dagenais era, this inquiry is
essential. It would appear that both section 517 and section 539 are premised on the belief that the
right to a fair trial is exclusively the prerogative of an accused person, otherwise, the order would
not be automatic at the behest of the defence. However, it is now beyond dispute that there is also
an important societal value achieved by ensuring the fair trial of an individual charged with a
criminal offence.See footnote 69 In view of this obvious flaw, sections 517 and 539 need repair.
Proposal: That sections 517 and 539 be amended to remove the requirement of a mandatory
publication ban order at the request of the accused.
Dagenais and, to a lesser extent, T.S. also addressed certain procedural issues related to a
publication ban. Dagenais concerned an application for an order suppressing publication which was
brought in a provincial superior court before a judge other than the trial judge. T.S. involved a
similar order sought in the provincial court. Lamer C.J. chose Dagenais as the case in which to
pronounce upon the various procedural issues raised in these appeals. His discussion is logically
divided into two parts, one relating to applications brought either at the commencement of trial or
during its course and the other relating to appeals initiated following the issuance of an order
suppressing publication. The analysis and commentary which follows will also be organized in this
way.
1. Pre-trial and Trial Applications
In the course of his discussion of issues relating to applications seeking a publication ban brought
either before or at trial, Lamer C.J. touched upon three procedural issues, namely, (a) forum, (b)
notice and (c) standing of third parties. These issues will be canvassed below in turn.
(a) Forum
Lamer C.J. began by asserting that an application for a publication ban should be brought as soon
as possible in the proceedings. It "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)"See footnote 70. He stipulated further that
in the event it was not possible to ascertain the level of court which ultimately would try the
accused, "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)."See footnote 71
The approach of the Chief Justice to the question of forum is sensible. He emphasizes that the
preferred adjudicator is the trial judge. However, he also acknowledges that practicality may dictate
that an application be commenced prior to when a trial court is ascertainable or a trial judge
designated. A similar approach to the selection of the appropriate forum has been adopted by
certain provincial appellate courts in relation to applications alleging prosecutorial non-disclosure.See footnote 72 Accordingly, it is recommended it should be codified.
Proposal:
(b) Notice
Respecting the question of notice, Lamer C.J. enumerated only the most obvious issues raised by
a notice requirement, namely "[w]hich media are to be given notice, and how is such notice to be
given?"See footnote 73 Unfortunately, he did little more than identify the problems and offer the view that
perhaps these questions should best be resolved on a case by case basis relying upon "provincial
rules of criminal procedure and the relevant case law".See footnote 74
From his brief analysis of this topic, it would seem that the Chief Justice is of the opinion the onus
to alert the media of an application asking for suppression of publication rests upon the party
seeking such an order. This would only stand to reason. However, in the event questions arise
respecting "who is to be given notice and how notice is to be given", Lamer C.J. suggests that
directions may be obtained from the designated judge.See footnote 75 This is an obvious area of difficulty
especially in large metropolitan centres in this country which have a large number of media
organizations, both print and electronic. Presumably, it would be useful for applicants to have a
set procedure to obtain directions for notice included in the Criminal Code. This provision would
enable the applicant to obtain directions for notice to be given, for example, to the leading media
organizations in a particular centre. In most centres this would include the C.B.C.
(c) Standing
Lamer C.J. dealt with the serious question of standing very briefly. He observed that as in most
matters, the manner in which the hearing of an application is conducted is left to the discretion of
the presiding judge. He did elaborate by observing that the media which wish to participate in this
hearing should be given standing in accordance with "the rules of criminal procedure and the
established common law principles."See footnote 76 The only clear direction the Court gave to lower courts
was that "in a jury trial, a motion for a publication ban must be heard in the absence of the
jury."See footnote 77
The Chief Justice's discussion of standing is sensible. The rules surrounding which third party may
be granted standing are well developed and especially if a notice requirement is crafted, those rules
may be applied without being clouded by concerns about interested parties not receiving notice.
Proposal:
The procedural issue central to both Dagenais and T.S. was the appropriate mechanism for
obtaining appellate review of a publication ban. Since the rulings in those appeals, the Court has
revisited and refined the principles set out there.See footnote 78 Essentially, the nature and availability of an
appellate mechanism in respect of an order made against a third party is determined by the forum
in which the original order is made. T.S. and Primeau are examples of third party appeals from
orders made by a provincial court judge. Dagenais is an example of an appeal taken from an order
made in a provincial superior court.
In Primeau, Sopinka and Iacobucci JJ. attempted to explain the rationale for this approach as
follows:
In Dagenais, the Court traces two separate paths to follow for challenges to orders made in a criminal proceeding: one for the parties to the proceeding, another for third parties. Both the accused and the Crown must apply for relief to the trial judge, or to the level of court having jurisdiction to hear the trial, if known, or otherwise to a superior court judge. An appeal of such a decision must await the end of the trial.
(a) Orders made in Provincial Courts
Orders made by a provincial court judge in respect of constitutional issues are to be reviewed by
way of a prerogative writ in accordance with Part XXVI of the Criminal Code. Lamer C.J.
summarized the appeal route in Dagenais this way:
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 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.
Sopinka and Iacobucci JJ. endorsed this approach and observed the "advantages of this route lie
in its use of established procedures and its consistency with recent decisions of the Court."See footnote 80
When this approach was applied to C.B.C. 's appeal in T.S., it was dismissed because the appellant
had by-passed the provincial superior court and, instead, gone directly to the Court of Appeal. In
dismissing the appeal, Lamer C.J. stated that were the Supreme Court to assume jurisdiction, it
would be tantamount to endorsing a "direct appeal avenue to the Supreme Court from an order
banning publication made by a provincial court judge."See footnote 81
It is possible to appeal an order suppressing publication made by a provincial superior court judge.
However, such an appeal lies only to the Supreme Court of Canada with leave pursuant to section
40 of the Supreme Court Act. Lamer C.J. asserted that this particular avenue was available since
a "publication ban order can be seen as a final or other judgment of the highest court of final resort
in a province or a judge thereof in which judgment can be had in a particular case."See footnote 82
Lamer C.J. acknowledged there were problems associated with this rather cumbersome appellate
mechanism, most notably expense and expedition. Nevertheless, he offered the view that these
concerns may be more apparent than real. He stated:
[A] direct appeal to the Supreme Court of Canada can be faster than appeal to most courts of appeal in the country. In addition, it is less expensive to come directly to the Supreme Court of Canada than it is to go through a court of appeal before getting to the Supreme Court of Canada. Concerns about cost and delay are, therefore, misplaced.See footnote 83
In the end, he recognized that neither of these mechanisms were entirely satisfactory and that in
crafting these particular appellate routes, the Court had been "forced to choose the least
unsatisfactory of a set of unsatisfactory options."See footnote 84 He urged "Parliament to rectify this situation
by enacting legislation that provides for a right of appeal for third parties (usually the media)
seeking to challenge publication bans ordered by judges under their common law or legislated
discretionary authority."See footnote 85
(c) Commentary
The Court has expressly invited Parliament to enact legislation providing for appeals from orders
prohibiting publication and the immediate question is should this invitation now be taken up? To
answer this question it is necessary to weigh both the salutary effects of codifying a third party's
right to appeal and the deleterious effects of not doing so.
If amendments are not made to the Criminal Code then the appeal mechanisms set out by the Court
and outlined above will operate. This will disadvantage the Crown or an accused's challenge to
an interlocutory order such as a publication ban, since those parties must follow the traditional
avenues of appeal set out in the Code. While it is true that any party affected by the appeal,
including the Crown, would have standing to appear in a third party's appealSee footnote 86, generally
speaking, the Crown or the accused must await the final verdict and pursue an appeal of an
interlocutory appeal if appropriate grounds exist. To counterbalance this concern, the mechanisms
established by Dagenais do not encourage appeals as it is not user friendly.
Furthermore, maintaining the status quo will result in inconvenience and increased expense to the
parties, especially those having to appeal directly to Ottawa. An accused's right to a trial within
a reasonable time guaranteed under section 11(b) of the Charter may also be impaired in those
cases where the trial is adjourned pending the third party appeal. However, this disadvantage may
exist in any third party appeal. The Supreme Court itself may be inconvenienced with the burden
of considering leave applications in respect of a wide range of third party appeals which ordinarily
likely would never reach that Court.
On balance, however, Lamer C.J.'s challenge to Parliament should be embraced, at least with
respect to orders limiting publication. However, despite his comments respecting the efficiency
of appealing directly to the Supreme Court, it is suggested there should be an appeal to the
provincial court of appeal from orders of this kind, regardless of the forum which issues it. A
provincial court of appeal is far more likely to be aware of, and sensitive to, local concerns current
in the region, than a distant court in Ottawa. In addition, the physical proximity of the Court of
Appeal to the litigants may reduce costs.
The procedure established in Dagenais and refined in subsequent cases has already been endorsed
in respect of other appeals brought by third parties to a prosecution.See footnote 87 Therefore, any appeal
mechanism for publication bans will be an exception to this general appellate regime for third
parties. One important issue is whether the appeal structure for publication bans should parallel
the current regime for summary conviction and indictable matters. There is a certain logic to that
approach. On the other side, there may be wisdom in having all appeals from orders of this kind
heard with leave by the provincial court of appeal.See footnote 88 As there will not be many of these kinds
of appeals, having them go to the provincial court of appeal may ensure consistency.
Proposal:T
Before discussing the liability and penalty schemes that should govern non-publication orders under
the Criminal Code, the disparities in wording between the existing non-publication provisions
should be mentioned.
The non-publication orders and publication bans provided for in the Criminal Code are intended
to prevent certain information from being made public in writing or orally.
In the case of bans on passing information on in writing, subsection 486(5) of the Criminal Code
prevents every one from publishing the information in any document, while other provisions are
more limited, banning only the publication of the information in a newspaper, as defined in section
297 of the Criminal Code (ss. 276.3(1), 487.2(1), 517(1), 539(1), 542(2) and 648(1) of the Criminal
Code). Where bans on passing information on orally are concerned, subsection 486(5) of the
Criminal Code prohibits broadcasting it in any way, while other provisions prohibit broadcasting
or diffusing without further clarification (s. 487.2), although limitations are placed on the mode of
diffusion in the French versions of some of these provisions. Thus s. 276.3(1) uses the phrase "à
la radio ou à la télévision", subsections 517(1) and 542(1) use the verb "radiodiffuser", section
648(1) uses the phrase "ni révélée dans une émission radiodiffusée" and subsection 539(1) uses the
phrase "ni être révélée dans aucune émission".
Parliament's intention is to prevent certain information from being made public, and for this it is
not necessary to cover situations in which the information is passed on privately, unless a person
who does so aids, within the meaning of subsection 21(2), another person to make the information
public. However, to afford adequate protection to information covered by a non-publication order,
it is necessary to prohibit every one from making the information public by any means whatsoever.
The existing provisions do not, for example, prohibit publishing the information by putting up
posters in places accessible to the public or circulating it on the Internet. These omissions must
accordingly be rectified.
The availability of defences is another important aspect in respect of which the existing provisions
diverge. There are provisions that permit an accused to raise a lawful excuse, the proof of which
lies on the accused (ss. 517(2), 520(9) and 521(10)), and others that do not (ss. 276.3(2), 486(5),
487.2, 539, 542(2) and 648(1)).
In view of the importance of protecting information covered by a non-publication order, the fact
that the courts make such orders after weighing the interests involved and the fact that interested
parties can apply to the higher courts to review them, it should not be open to a person to rely a
posteriori on any lawful excuse whatsoever for contravening a non-publication order. Even the fact
that information has already to a certain extent entered the public domain should not serve as a
justification for spreading it further.
Proposal:
Although it is not expressly stated in the provisions authorizing non-publication orders, the penalty
for contravening such an order is based on a scheme of liability founded on knowledge and general
intent.
The person who publishes the information must know that the publication thereof is prohibited by
order and must publish it wilfully. The onus is therefore on the prosecution to prove beyond a
reasonable doubt that the person knew about the order, and the accused need only raise a bona fide
lack of knowledge to raise a reasonable doubt.
Since the person to whom non-publication orders most often apply are media companies or persons
working for such companies, and in view of the difficulty of proving beyond a reasonable doubt
that the order was brought to their attention, they should be subject to a penalty for publishing
information not only where they knew such publication to be banned, but also where they ought
to have known it to be banned. It does not seem excessive to require such companies to take any
reasonable action necessary to make sure that information related to criminal proceedings is not
subject to a ban before publishing it.
Proposal:
A person who contravenes a non-publication order made under the Criminal Code is guilty of an
offence punishable on summary conviction. Thus, under subsection 787(1) of the Criminal Code,
he or she is liable only to a fine of not more than two thousand dollars or to imprisonment for six
months or to both, and a corporation is liable to a fine not exceeding twenty-five thousand dollars
under paragraph 719(b) of the Criminal Code. Furthermore, if the person in question contravenes
a non-publication order made under the authority of the common law, such as a ban on publishing
information even after the termination of the proceedings, he or she is guilty of an indictable
offence and is subject to a penalty at the court's discretion (cf. Quebec (A.G.) v. Publications
Photo-Police Inc.See footnote 89 In addition, a person who contravenes an order authorized by any Act is
under subsection 127(1) of the Criminal Code liable to imprisonment for a term not exceeding two
years where no penalty is provided.
Thus, there is a disparity in penalties for which no justification can be found. Moreover, to punish
the contravention of a non-publication order only as a summary offence neither sufficiently reflects
the objective seriousness of the offence nor is a sufficient deterrent. However, it must be
acknowledged that the contravention of such an order is not always, in view of all the
circumstances, an indictable offence.
As a result, we consider it necessary to review the penalty scheme for non-publication orders and
make the contravention of such orders punishable by indictment or on summary conviction. In
doing so, we have two options: to make it a hybrid offence punishable by (1) imprisonment for
two years less a day in the case of an indictable offence and six months on summary conviction,
or (2) imprisonment for five years in the case of an indictable offence and eighteen months on
summary conviction. We favour the first option in view of the power to award costs against the
accused, which we will discuss in the next recommendation.
Proposal:
That the fine that can be imposed on corporations be raised.
The contravention of non-publication orders generally has serious consequences not only for the
conduct of the criminal proceedings but also for the costs the parties must incur. As a result, a
court that convicts a person who contravenes such an order should have the power, after the parties
have had the opportunity to make representations, to require him or her to reimburse their costs
related to the conduct of the criminal proceedings that were incurred due to the publication of
information covered by the order. This power is in particular necessary with regard to section 648
of the Criminal Code, since the contravention of such an order may result not only in the failure
of the proceedings and the empanelling of a new jury, but also in a change of venue, with all the
related costs.
Proposal:
V. SEPARATE PART FOR PUBLICATION BAN ORDERS
Separate Part for Publication Ban Orders
There is an advantage to having publication ban provisions located within the Sections concerning
which a publication ban may be obtained in that it draws the attention of counsel to the fact a
publication ban may be sought. However, in the event that there is a wholesale rationalization of
these orders, it would seem sensible to locate all of the Sections, (old, amended and new) in a
discreet new part of the Criminal Code.
While several organizational formats could be used in creating such a discreet part of the Criminal
Code, it would seem most appropriate to draft such a part under the following subject headings to
facilitate ease of reference, to encourage clarity and to avoid repetition. The section could contain
a definition section, distinguish mandatory from discretionary publication bans, deal with penalties
and could set out procedures with respect to such issues as notification.
This section would apply specifically to the distinct part of the Criminal Code relating to
publication bans and would thus have the benefit of not inadvertently affecting other
definitions throughout the Code. Such a section, would present an opportunity to include
modern definitions for such terms as "publication".
While repeated reference has been made by the courts to the "media", advances in electronic
communication suggest that attention might be given to other individuals or entities which
may have an interest in disseminating information and therefore might properly be subject to
a publication ban. An example of this might be an interest group or individual with a
particular interest in disseminating information via a web site. Current Criminal Code ban
provisions require close scrutiny to ensure that they respond to the realities of modern day
electronic information dissemination. It could be argued that sections such as 517 which
make specific reference to "published in any newspaper" are quickly losing relevance.
This section would enumerate all current, amended, and new sections within the Code where
there is no judicial discretion with respect to ordering a publication ban, (such as a ban of
publication of the complainant's name in a sexual assault case). These bans would be
mandatory, and, to the extent that they have already survived constitutional attack, no
additional procedures would be required in order to deal with such matters as forum or notice.
Unlike those publication bans for which a balancing of interests is required between the right
of the accused to a fair trial and freedom of the press, these sections would deal with issues
outside that paradigm.
As a practical matter, in drafting this section all mandatory publication bans throughout the
Criminal Code would be transferred to this general part, with specific section amendments
as required.
3. Discretionary Publication Bans
This section would include specific reference to each of the current sections currently
sprinkled throughout the Code dealing with discretionary bans on publication. In addition,
unique sections such as 486(1) which grant the court discretion to limit public access to
courtrooms would also be included in this section.
For clarity, it would also be preferable to add any new provisions which can be presently
identified where it would be appropriate to expand the court's exercise of discretion in
imposing bans. This would include such situations as that which might arise when the Crown
does not wish to publicize the fact that an arrest warrant has been issued thereby alerting the
accused.
It could be argued that with respect to enumerated heads of discretionary power where
Parliament decides it is appropriate for judges to exercise discretion and which concern
primarily the parties to the case, notice would not be required prior to the ban being imposed.
It would be clear that when such an order was made a simplified appeal process would be
available to any interested third party.
In addition, this section would allow for the expansion of the authority of the court to
consider applications for bans on publication where the situation is not enumerated as above
but, where, in consideration of the interests of justice, it might be appropriate for the court
to impose such a ban. In part, this would be a codification of the common law and would
set out specific requirements with respect to notification, forum and procedure for all parties.
It would provide the court with an ability to make an order in a situation that is currently
unanticipated but where the public interest would make such an order appropriate.
A codified but non-exhaustive list of factors that might be considered in making such a ban
"where is it necessary for the proper and orderly administration of justice" might include the
following:
(i) the proper maintenance of order and the administration of justice;
(ii) the protection of informants/witnesses;
(iii) ensuring the integrity of ongoing criminal investigations;
(iv) the protection of the accused's right to a fair trial;
(v) the encouragement of witnesses to come forward and testify; and
(vi) the right of the public to access material before the courts, subject to any of
the enumerated considerations.
With respect to all discretionary orders,
i) A court of competent criminal jurisdiction would be given the authority to exercise its
discretion to impose a ban on publication of any materials required for the proper
maintenance of order and the administration of justice.
In determining whether a publication ban is appropriate in given circumstances, the
court would be obliged to consider whether:
(a) such a ban is necessary in order to prevent a real and substantial risk of
fairness of the trial, because reasonably available alternative measures will
not prevent the risk; and
(b) the salutary affects of the publication ban outweigh the deleterious affects
of the free expression of those affected by the ban.
ii) The onus for establishing that such a ban is necessary would be on the party requesting
such a ban.
iii) Insofar as the applications under the suggested general publication ban authority are
concerned, prior to the imposition of such a ban, the court would be required to
consider whether notice should be given to any potential third parties and if so, to give
directions as to the form of such notice including time frames. There would be no
specific reference to standing and the current law would prevail.
iv) An application for a ban on publication would be made to the trial court, where it has
already been designated, or before the court at the level the case will be heard, if the
level of the court can be established definitively by reference to the statutory provisions;
and, where it is not possible to ascertain the level of court which ultimately would try
the accused, and the application should be made before a Superior Court judge being
the highest court that could hear the case.
Liability and Penalty
This section would deal with the liability that would be incurred for a violation of a non-publication
order. Either within this section, or by means of the definition section mentioned earlier, the
existing provisions would be amended to prohibit anyone from making information covered by a
non-publication order available to the public by any means. A person or entity found to have
published in contravention of a ban would have to demonstrate that reasonable efforts were taken
to determine whether a publication ban was in existence, bearing in mind the nature of the case,
in order to escape liability.
Currently, there is a disparity in the penalties which may be imposed for violation of non-publication orders. The creation of an offence of general application for which the Crown could
elect to proceed either indictably or summarily would appear to be justifiable. In order to ensure
that corporations would not be tempted to incur a financial penalty as a "cost of doing business",
the maximum penalty for breach of a non-publication order could be increased. Similarly, for this
reason and, in order to help defray the very considerable cost that might be incurred by the justice
system as a consequence of a breach of a non-publication order, the court could have the ability
to order costs.
Appeals
This section would apply only to discretionary publication ban orders and would provide for an
appeal from an order relating to publication bans to the Provincial Court of Appeal with leave
regardless of whether it was issued in a summary conviction or indictable matter. Proposal: The Criminal Code be amended to include a specific part relating exclusively to orders for publication bans. These provisions would be a collection of all current as well as new provisions of the Code relating to publication bans and would be in a format similar to that set out above. It would include provisions relating to mandatory bans, enumerated discretionary bans, and a general discretionary ban authority, as well as to procedures and appeals relating to publication bans.
2. That section 486(1) be retained in its current form.
3. That section 487.2 be retained in its current form.
4. That sections 517 and 539 be amended to remove the requirement of a mandatory
publication ban order at the request of the accused.
5. That the Criminal Code be amended to provide for an application to seek a publication
ban prior to trial. The section should require that the trial judge hear such an
application and only if he or she is not identified can the application be heard by a
judge of the provincial superior court.
6. That the Criminal Code be amended to include a provision enabling the party seeking
a publication ban on criminal proceedings to apply for an ex parte order for direction
as to which, if any, media organizations in the judicial centre should be given notice.
The provision could also state that if this is done, the notice requirement has been
satisfied and other media who wish to be heard ought to appear before the presiding
judge and seek leave.
7. That no special rules be crafted respecting standing to third parties in applications for
a publication ban. If a party not directly notified of such an application appears at the
hearing, its ability to participate and the extent of that participation, if any, may be
assessed in accordance with the developed law relating to third party standing.
8. That the Criminal Code be amended to provide for an appeal from an order prohibiting
publication to the provincial Court of Appeal with leave regardless of whether it was
issued in a summary conviction or indictable matter.
9. That the existing provisions be amended to prohibit every one from making information
covered by a non-publication order available to the public by any means.
10. That a person charged with contravening a non-publication order not be permitted to
raise a lawful excuse.
11. That every media or telecommunications company be prohibited from publishing
information that it knows or ought to have known to be subject to a non-publication
order.
12. That a person who contravenes a non-publication order made on the basis of a power
conferred under the Criminal Code or the common law be guilty of an offence
punishable by imprisonment for two years less a day in the case of an indictable offence
and six months on summary conviction.
That the fine that can be imposed on corporations be raised.
13. That a court that convicts a person of contravening a non-publication order have the
power to require him or her to reimburse the parties' costs related to the criminal
proceedings that were incurred due to the contravention, and that the court permit the
parties to make any necessary representations in this respect.
1. Attorney General of Nova Scotia v. McIntyre, [1982] 1 S.C.R. 175
2. B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214
3. Blackman v. British Columbia Review Board , [1995] B.C.J. No. 95 (C.A.)
4. C.B.C. v. Dagenais (1993), 12 O.R. (3d) 239 (C.A.)
5. Canadian Broadcasting Corporation v. New Brunswick (Attorney General) et. al.
6. Canadian Broadcasting Corporation v. New Brunswick (Attorney General) et. al.
7. Canadian Newspapers Co. Ltd. v. Attorney General of Canada (1986), 28 C.C.C.
8. Canadian Newspapers Co. Ltd. v. Attorney General of Canada and two other
9. Canadian Newspapers Co. Ltd. v. Canada (Attorney General), [1988], 2 S.C.R. 122
10. Dagenais v. C.B.C., [1994] 3 S.C.R. 835
11. Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326
12. L.L.A. v. A.B. (1995), 44 C.R. (4th) 91 (S.C.C.)
13. MacMillan Bloedel Ltd. v. Simpson (1995), 44 C.R. (4th) 277 (S.C.C.)
14. Nova Scotia Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),
15. Quebec (AG) v. Publication Photo Police Inc., [1990] 1 S.C.R. 851
16. Re Church of Scientology of Toronto and the Queen (No. 6) (1986), 27 C.C.C.
17. Re Global Communication Ltd. and A.G. Can. (1984), 10 C.C.C. (3d) 97 (Ont. C.A.)
19. R. v. Banville (1983), 3 C.C.C. (3d) 312 (N.B.Q.B.)
20. R. v. Beare, R. v. Higgins, [1988] 2 S.C.R. 387
21. R. v. Corbett, [1988] 1 S.C.R. 670
22. R. v. Clement (1821), 106 E.R. 918
23. R. v. Faid, [1983] 1 S.C.R. 265
24. R. v. Keegstra, [1995] 2 S.C.R. 381
25. R. v. Laba, [1994] 3 S.C.R. 965
26. R. v. Laporte (1993), 84 C.C.C. (3d) 343 (Sask.C.A.)
27. R. v. L. (D.O.), [1993] 4 S.C.R. 419
28. R. v. O'Connor (1995), 103 C.C.C. (3d), (S.C.C.)
29. R. v. Primeau, [1995] 2 S.C.R. 60
30. R. v. Rodrigue (1995), 91 C.C.C. (3d) 129 (Y.T.C.A.)
31. R. v. Ryan (1991), 69 C.C.C. (3d) 226 (N.S.C.A.)
32. R. v. Schafer, et. al., [1994] 7 W.W.R. 670 (Sask.C.A.);
33. R. v. Seaboyer, [1991] 2 S.C.R. 577
34. R. v. S.(R.J.), (1995), 36 C.R. (4th) 1 (S.C.C.)
35. R. v. Thomson Newspapers Ltd. et. al. (sub. nom. R. v. Homolka), Ont. C.A.,
36. R. v. T.S. (1993), 109 Sask. R. 96, 82 C.C.C. (3d) 352 (C.A.)
37. R. v. T.S., [1994] 3 S.C.R. 952
38. R. v. Warren, [1995] 3 W.W.R. 379 (N.W.T.S.C.)
40. Scott v. Scott, [1913] A.C. 417 (H.L.)
41. The Estate of Kirsten French et. al. v. Attorney General of Ontario, [1996] O.J. No. 1300
Footnote: 1 Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 1 1 (hereinafter the "Charter"), sections 7 and 11(d). Footnote: 2 For example, section 11(d) of the Charter provides that all accused persons must receive a "fair and public hearing by an independent and impartial tribunal". Footnote: 3 For a discussion of privacy as a right subsumed within section 7, see: R. v. Beare, R. v. Higgins, [1988] 2 S.C.R. 387, at pp. 412-413 per La Forest J. Section 486(4) of the Criminal Code of Canada expressly recognizes the interests of certain witnesses, such as complainants in sexual assault matters and witnesses under 18 years of age. Footnote: 4 In Canadian Broadcasting Corporation v. Dagenais (1993), 12 O.R. (3d) 239 (C.A.), Dubin C.J.0. observed at page 245 that "it was the common law courts that first recognized, as a fundamental legal right, the right of an accused to a fair trial ... in the absence of any legislation by Parliament or the Legislative Assemblies". Footnote: 5 (1995), 36 C.R. (4th) 1 (S.C.C.). Footnote: 6 [1982] 1 S.C.R. 175. Footnote: 7 Id. at p. 183. Footnote: 8 Supra. n. 4, at p. 244. Footnote: 9 S.C. 1960, c. 44. This statute has been characterized as a "quasi-constitutional instrument', see: Hogan v. The Queen, [1975] 2 S.C.R. 574, Laskin J. (as he then was) stated that "[t]he Canadian Bill of Rights is a half-way house between a purely common law regime and a constitutional one; it may aptly be described as a quasi-constitutional document": Hogan, supra. at p. 579. By virtue of section 5(2), the Bill of Rights applies only to federal laws and institutions: see Hogg, Constitutional Law of Canada (3rd. ed, loose-leaf), Volume II, at p. 32-3. Footnote: 10 [1988] 2 S.C.R. 122. Footnote: 11 Id. at p. 129 Footnote: 12 [1989] 2 S.C.R. 1326. Footnote: 13 R.S.A. 1980, c. J-1, s. 30. Footnote: 14 Id. at p. 1336 Footnote: 15 Id. at p. 1339 Footnote: 16 Id. at p. 1340. Footnote: 17 [1993] 1 S.C.R. 319. Footnote: 18 Id. at p. 406. Footnote: 19 [1995] B.C.J. No. 95 (C.A.), January 24, 1995, Vancouver Registry No. CA017480. Footnote: 20 Id. at paragraph 38. Footnote: 21 Anderson, "The Open Court and a Free Press: A View from the Bench" (1994), 24 L.S.U.C. Gazette 64, at p. 66. Footnote: 22 [1994] 3 S.C.R. 835. Footnote: 23 [1994] 3 S.C.R. 952 Footnote: 24 Supra. n. 4. Footnote: 25 See: R. v. T.S. (1993), 109 Sask. R. 96, 82 C.C.C. (3d) 352 (C.A.). Footnote: 26 [1993] 3 S.C.R. v. Footnote: 27 Supra. n. 22 at p. 894. Footnote: 28 Id. at p. 881. Footnote: 29 Id. at p. 877. Footnote: 30 Id. at p. 878. Footnote: 31 Supra. n. 10. Footnote: 32 Supra. n. 11. Footnote: 33 Supra. n. 22, at p. 891. Footnote: 34 Id. Footnote: 35 Id. at p. 891. Footnote: 36 Id. at pp. 884-887. Footnote: 37 Id. at p.886. Unique problems arise with trans-border publications and individual trial judges craft their own solutions. For example, it is interesting to note that LeSage A.C.J. O.C. (as he then was), the trial judge in the trial of R. v. Paul Bernardo "warned the U.S. news media that they would be barred from the courtroom for the duration of the trial" if they chose to publish details of matters dealt with in the absence of the jury: The Globe and Mail, "Phone call followed missed curfew, trial told", May 24, 1995 at p. A-3. Footnote: 38 R. v. Thomson Newspapers Ltd. et. al. (sub. nom. R. v. Homolka), Ont. C.A., December 22, 1994; leave to appeal denied, S.C.C. No. 24579. May 4, 1995: S.C.C. Bulletin at p. 773. In that ruling the Court of Appeal quashed the media's appeal from Kovac J.'s order limiting publication of the proceedings in R. v. Homolka until the murder trial of her co-accused husband, Paul Bernardo was completed. Footnote: 39 Id. at p. 881. A subsequent commentator offered yet another option, a stay of proceedings. W. Ian C. Binnie, Q.C., counsel for C.B.C. in Dagenais suggested that in certain exceptional circumstances "it may be more important to get out the news than to have a trial". He explained that "in a situation where there are widespread media reports about alleged government corruption, bribery and payoffs, the court might elect to stay the trial of a particular individual involved and give preference to having the public informed": "S.C.C. lays down law on publication bans", The Lawyers Weekly, January 6, 1995, at p. 16. Quare whether such a circumstance would advance the public interest in any meaningful way. Footnote: 40 Supra. n. 22 at p. 891. Footnote: 41 See especially: R. v. Clement (1821), 106 E.R. 918; Scott v. Scott, [1913] A.C. 417 (H.L.) and Re Church of Scientology of Toronto and the Queen (No. 6) (1986), 27 C.C.C. (3d) 193 (Ont. H.C.), at pp. 206-208. Footnote: 42 Supra. n. 23. Footnote: 43 Supra. n. 38. Footnote: 44 At least one trial court has made an order of this kind post-Dagenais. In R. v. Warren, [1995] 3 W.W.R. 379 (N.W.T.S.C.), de Weerdt C.J. imposed certain conditions on the publication of exhibits introduced at the murder trial of Roger Warren until all proceedings against the accused, and any appeal, were finally ended. Footnote: 45 Supra. n. 22 at p. 891. Footnote: 46 See for example: R. v. Faid, [1983] 1 S.C.R. 265 and R. v. L.(D.O.), [1993] 4 S.C.R. 419. Footnote: 47 See for example: B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214 and MacMillan Bloedel Ltd. v. Simpson. (1995), 44 C.R. (4th) 277 (S.C.C.) Footnote: 48 In R. v. Adams,[1995] 4 S.C.R. 707 the Court held that a ban ordered pursuant to section 486(4) could not be revoked without the consent of the Crown and the complainant: Id. at pp. 723-724. The Court opined that a revocable ban would not provide the certainty necessary to encourage victims of sexual offences to report them to the police, which was Parliament's goal in enacting the section. Footnote: 49 Supra. n. 10 Footnote: 50 Id. at p. 134 Footnote: 51 (1995), 103 C.C.C.(3d) 1 (S.C.C.) at p. 24 per Lamer C.J. and Sopinka J. referring with approval to R.v. Ryan (1991), 69 C.C.C.(3d) 226 (N.S.C.A.) at p. 230. Footnote: 52 S.C.C., March 29, 1996, No. 24305, Supreme Court of Canada, 1996 Bulletin of Proceedings at p. 583 Footnote: 53 Id. at p. 584 Footnote: 54 Canadian Broadcasting Corporation v. New Brunswick (Attorney General) et. al. (1994), 32 C.R. (4th) 334 (N.B.C.A.), at p. 338 per Hoyt C.J.N.B. (Turnbull J.A. concurring) approving (1993), 143 N.B.R. (2d) 174 (Q.B.) per Landry J. The third appellate judge, Anger J.A., also sustained the constitutionality of section 486(1) on the basis that it manifested no violation of section 2(b) whatsoever. In his view it was not necessary to embark upon an inquiry under section 1 of the Charter. Footnote: 55 Beare, supra. n. 3. Footnote: 56 See for example: Beauregard v. Canada, [1986] 2 S.C.R. 56 and P.(J.), supra. Footnote: 57 (1993), 109 Sask. R. 161 (C.A.) Footnote: 58 Id. at p. 163. Footnote: 59 [1996] O.J. No. 1300 (Gen. Div.) also referred to as R. v. Bernardo re: French Estate v. Ontario (A.G.). Footnote: 60 Id. at Appendix B, Schedule 2. Footnote: 61 Id. Footnote: 62 Id. at para. 42 and para. 46. Footnote: 63 See: Canadian Newspapers Co. Ltd. v. Attorney General of Canada (1986), 28 C.C.C.(3d) 379 (Man. Q.B.) and Canadian Newspapers Co. Ltd. v. Attorney General of Canada and two other actions (1986), 29 C.C.C.(3d) 203 (Ont. H.C.J.) Footnote: 64 R. v. Schafer, et. al., [1994] 7 W.W.R. 670 (Sask. C.A.); leave to appeal denied [1994] 3 S.C.R. xi. Footnote: 65 See: section 517(1) of the Criminal Code Footnote: 66 Section 517(1)(a) and (b). Footnote: 67 (1984), 10 C.C.C.(3d) 97 (Ont. C.A.) Footnote: 68 (1983), 3 C.C.C.(3d) 312 (N.B.Q.B.) Footnote: 69 See especially: R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603 and R. v. Corbett, [1988] 1 S.C.R. 670, at p. 745 per La Forest J. dissenting in the result. Footnote: 70 Supra. n. 22 at p. 870. Footnote: 71 Id. This was also the approach to selecting the appropriate forum advocated by the Saskatchewan Court of Appeal in McConachie, supra. n. 57 at p. 163 per Tallis J.A. Footnote: 72 See e.g.: R. v. Laporte (1993), 84 C.C.C.(3d) 343 (Sask. C.A.) and R. v. Rodrigue (1995), 91 C.C.C. (3d) 129 (Y.T.C.A.) Footnote: 73 Supra. n. 22 at p. 868. Footnote: 74 Id. at p. 869. Footnote: 75 Id. at p. 869. Footnote: 76 Id. at p. 872. Footnote: 77 Id. at p. 868. Footnote: 78 See especially: R. v. Primeau, [1995] 2 S.C.R. 60; R. v. Laba, [1994] 3 S.C.R. 965; R. v. Keegstra, [1995] 2 S.C.R. 381; Adams, supra. n. 48 and L.L.A. v. A.B. (1995), 44 C.R.(4th) 91 (S.C.C.). Footnote: 79 Primeau, id. at p. 68. Footnote: 80 Id. at p. 69. Footnote: 81 T.S., supra. n. 23 at p. 961. Footnote: 82 Supra. n. 22 at p. 861. Footnote: 83 Id. at p. 861. Footnote: 84 Id. at p. 858. Footnote: 85 Id. McLachlin J. in her separate, concurring opinion echoed the Chief Justice's call for legislative reform at pp. 947-948: I endorse his call for legislative action to provide clear and consistent Charter remedies, and strike the appropriate balance between the rights of those who allege their Charter rights are infringed, on the one hand, and the private and public interest that criminal trials proceed expeditiously and without interruption, on the other. Footnote: 86 L.L.A. v. A.B., supra. n. 78 at pp. 105-106 per L'Heureux-Dubé J. Footnote: 87 See e.g.: L.L.A, id., at p. 97 per Lamer C.J. and Sopinka J. and, at pp. 104-106 per L'Heureux-Dubé J. Footnote: 88 This is clearly the option preferred by LaForest J. in Dagenais, supra. n. 22 at p. 894. By way of comparison in England, section 4(2) of the Contempt of Court Act, 1981 (U.K.), c. 49, provides the authority for a court to issue a publication ban "where it appeals to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent..." An immediate appeal to the Court of Appeal with leave from such an order is provided for by section 159(1)(a) of the Criminal Justice Act 1988, 1988 (U.K.), c. 33. The section provides further that the decision of the Court of Appeal is final. Footnote: 89 [1990] 1 S.C.R. 851, affirming Chouinard J.A., dissenting in the Court of Appeal (1988), 42 C.C.C. (3d) 220. November 1996
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