Toronto Star Newspapers Ltd. v. Canada

Toronto Star Newspapers Ltd. v. Canada
Collection
Supreme Court Judgments
Date
2010-06-10
Neutral citation
2010 SCC 21
Report
[2010] 1 SCR 721
Case number
32865, 33085
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 32865, 33085
Decision Content
SUPREME COURT OF CANADA
Citation: Toronto Star Newspapers Ltd. v. Canada,
2010 SCC 21, [2010] 1 S.C.R. 721
Date: 20100610
Docket: 33085, 32865
Between:
Toronto Star Newspapers Ltd., Canadian Broadcasting Corporation,
Associated Press and CTV Television Inc.
Appellants/Respondents on cross‑appeal
- and -
Her Majesty The Queen in Right of Canada and A.A.
Respondents/Appellants on cross‑appeal
and
F.A., S.A., Qayyum Abdul Jamal, A.M.D., S.V.C. and Ahmad Mustafa Ghany
Respondents
and
Attorney General of Ontario, Attorney General of Alberta,
N.S. (being a Young Person within the meaning of the Youth Criminal Justice Act ),
N.Y. (being a Young Person within the meaning of the Youth Criminal Justice Act ), Canadian Civil Liberties Association, Canadian Newspaper Association,
AD IDEM/Canadian Media Lawyers Association, RTNDA Canada/Association of Electronic Journalists and Canadian Association of Journalists
Interveners
And Between:
Canadian Broadcasting Corporation, Edmonton Journal, a Division of
CanWest MediaWorks Publications Inc., CTV Television Inc. and Bell Globemedia Publishing Inc., carrying on business as The Globe and Mail
Appellants
and
Edmonton Sun, a Division of Sun Media Corporation
Appelant
- and -
Her Majesty The Queen and Michael James White
Respondents
and
Director of Public Prosecutions of Canada, Attorney General of Ontario
and Canadian Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 64)Dissenting Reasons:
(paras. 65 to 77)
Deschamps J. (McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ. concurring)Abella J.
______________________________
Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721
Toronto Star Newspapers Ltd.,
Canadian Broadcasting Corporation,
Associated Press
and CTV Television Inc. Appellants/Respondents on cross‑appeal
v.
Her Majesty The Queen in Right of Canada
and A.A. Respondents/Appellants on cross‑appeal
and
F.A., S.A., Qayyum Abdul Jamal,
A.M.D., S.V.C. and
Ahmad Mustafa Ghany Respondents
and
Attorney General of Ontario, Attorney General of Alberta,
N.S. (being a Young Person within the meaning of the Youth
Criminal Justice Act), N.Y. (being a Young Person within
the meaning of the Youth Criminal Justice Act ),
Canadian Civil Liberties Association,
Canadian Newspaper Association, Ad IDEM/Canadian
Media Lawyers Association, RTNDA Canada/Association
of Electronic Journalists and
Canadian Association of Journalists Interveners
‑ and ‑
Canadian Broadcasting Corporation,
Edmonton Journal, a Division of CanWest MediaWorks Publications Inc.,
CTV Television Inc. and Bell Globemedia Publishing Inc.,
carrying on business as The Globe and Mail Appellants
and
Edmonton Sun, a Division of Sun Media Corporation Appellant
v.
Her Majesty The Queen and
Michael James White
Respondents
and
Director of Public Prosecutions of Canada,
Attorney General of Ontario and
Canadian Civil Liberties Association Interveners
Indexed as: Toronto Star Newspapers Ltd. v. Canada
2010 SCC 21
File Nos.: 33085, 32865.
2009: November 16; 2010: June 10.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the courts of appeal for ontario and alberta
Constitutional law — Charter of Rights — Freedom of expression — Reasonable limits — Publication ban — Media organizations challenging constitutionality of statutory mandatory publication ban on bail hearing information — Whether mandatory ban justifiable infringement of freedom of expression — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) — Criminal Code, R.S.C. 1985, c. C‑46, s. 517 .
Under s. 517 of the Criminal Code , a justice of the peace is required, if an accused applies for one, to order a publication ban that applies to the evidence and information produced, to the representations made at a bail hearing and to any reasons given for the order. In the context of two high profile cases — a murder case in Alberta and an Ontario case involving terrorism‑related offences — a number of media organizations challenged the constitutionality of the mandatory aspect of the publication bans, contending the provision is an unjustifiable violation of freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms . In the Alberta case, the media’s application was allowed, but the Court of Appeal set aside that decision and upheld the constitutional validity of s. 517 . The court concluded that the mandatory ban, while it infringes freedom of expression, merely defers publication and that the values of protecting fair access to bail and the right to a fair trial were benefits which outweighed the deleterious effects of the restrictions on freedom of expression. In the Ontario case, the media’s application was dismissed. The Court of Appeal, in a majority decision, allowed the media’s appeal in part, finding that s. 517 was overbroad and read the provision down to exclude from the ban any cases in which the charges would not be tried by a jury. The dissenting judge would have declared the part of s. 517 relating to the mandatory ban to be invalid.
Held (Abella J. dissenting): The appeals should be dismissed and the cross-appeal in the Ontario case should be allowed. The constitutionality of s. 517 of the Criminal Code should be upheld.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.: Whether a discretion exists to issue a publication ban is not determinative of the validity of a limit on freedom of expression. The Dagenais/Mentuck test was not meant to apply to all limits on freedom of expression; rather, it was designed for and applies to discretionary orders. The validity of a statutory mandatory ban, such as the one at issue, must be determined by conducting an analysis based on the Oakes test. Bans are sometimes necessary, and whether they are justified depends on the context. The s. 517 mandatory publication ban is but one of numerous interrelated measures adopted as part of a sweeping reform of the rules on bail resulting from the 1969 Report on criminal justice and corrections. This Report recommended new rules to protect accused persons from the effects of pre‑trial incarceration and unsatisfactory conditions of detention, and to ensure that they were not punished at a time when they should be presumed innocent.
While the statutory mandatory publication ban limits freedom of expression, that limit can be justified in a free and democratic society. In adopting the various components of the bail reform and, more particularly, the mandatory ban, Parliament’s objectives were to ensure expeditious bail hearings and to safeguard the right to a fair trial. These objectives, which are undeniably pressing and substantial, were to be achieved by establishing a process that facilitated early release of an accused in order to mitigate the harshness of his or her interaction with the criminal justice system, limit the stigma as far as possible, and ensure that the trier of fact remains impartial.
When asking whether the mandatory publication ban is rationally connected to the objectives, the Court must consider other measures which might be linked to or even dependent on the ban. In this case, the mechanisms in place are closely linked and a rational connection can clearly be found in the interplay between the various components of the bail reform rules. They illustrate the expeditious nature of the bail hearing and the ultimate objective of safeguarding the right to a fair trial. The ban prevents dissemination of evidence which, for the sake of ensuring an expeditious hearing, is untested for relevance or admissibility.
The mandatory publication ban also meets the requirements of the minimal impairment stage of the Oakes test. If a publication ban hearing were to be held instead, an additional burden would be placed on the accused at a time when he or she may be overwhelmed by the criminal process, and may not have been able to consult his or her counsel of choice. Accused should be devoting their resources and energy to obtaining their release, not to deciding whether to compromise liberty in order to avoid having evidence aired outside the courtroom. In light of the delay and the resources which a publication ban hearing would entail, and of the prejudice which could result if untested evidence were made public, it would be difficult to imagine a measure capable of achieving Parliament’s objectives that would involve a more limited impairment of freedom of expression. Adding issues unrelated to the release of the accused to the bail hearing would require the consideration of matters extraneous to the bail process and could have a domino effect on other bail hearings in the same forum, thereby delaying the administration of justice. Moreover, the mandatory publication ban provided for in s. 517 is not an absolute ban either on access to the courts or on publication. The provision only prohibits the publication of evidence adduced, information given, representations made, and reasons given by the justice at a bail hearing. The media can publish the identity of the accused, comment on the facts and the offence with which the accused has been charged and for which the bail application has been made, and report on the outcome of the application. Journalists are also not prevented from informing the public of the legal conditions attached to the accused’s release. The temporary nature of the ban is another important factor. The ban ends when the accused is discharged after a preliminary inquiry or at the end of the trial. In essence, it applies only with respect to the bail process, and the information it covers can eventually be made public once more complete information produced in accordance with the standards applicable to criminal trials is available. Although information revealed at the bail hearing may no longer be newsworthy by the time the media can release it, the ban cannot be said to impair freedom of expression more than is necessary. The ban may make journalists’ work more difficult, but it does not prevent them from conveying and commenting on basic, relevant information.
Finally, the mandatory ban has several salutary effects. The ban limits the deprivation of the accused’s liberty by confining the issues at the hearing to those specifically related to bail, thereby avoiding undue delay and permitting accused persons to focus their energy and resources on their liberty interests rather than on their privacy interests. The ban also ensures that the public will not be influenced by untested, one‑sided and stigmatizing information bearing on issues that are often irrelevant to guilt. The deleterious effects of the publication ban, however, should not be downplayed. The ban prevents full public access to, and full scrutiny of, the criminal justice process. Moreover, the bail hearing may attract considerable media attention and its outcome may not be fully understood by the public. In such cases, the media would be better equipped to explain the judicial process to the public if the information they could convey were not restricted. Nonetheless, on balance, the deleterious effects of the limits on the publication of information are outweighed by the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information — in other words, to guarantee as much as possible trial fairness and fair access to bail. While not a perfect situation, the mandatory ban represents a reasonable compromise.
Per Abella J. (dissenting): The mandatory ban in s. 517 of the Criminal Code is not a justified infringement of freedom of expression because it does not meet the proportionality requirement between the measure’s deleterious and salutary effects. The appropriate remedy is to sever the mandatory aspect of s. 517 and leave in place the discretion to order a publication ban.
Preventing disclosure of a judge’s reasons and of any information at a bail hearing until the trial is complete, a chronology which can take years to unfold, has the effect, for all but the handful of people who are present in the courtroom, of denying access to information surrounding a key aspect of the criminal justice system — the decision whether or not to release an accused back into the community pending his or her trial. This denial is a profound interference with the open court principle. The harm of that interference is not outweighed by the benefits of a mandatory ban — the reduction in pre‑trial publicity and delay. Each of these concerns can largely be attenuated, and neither is sufficiently significant to represent a serious infringement of fair trial rights. Remedies such as a partial ban, challenges for cause, or a change of venue if there is a sufficient risk of prejudice can address speculative concerns over pre‑trial publicity, and the ability of a properly instructed jury in a criminal trial to disregard irrelevant evidence should also be taken into account. Moreover, in the absence of automatic notice to the media, to which they are not entitled, there will be, in the overwhelming number of cases, no undue delay caused by a discretionary ban. Those few cases where the media is most likely to contest a ban are those which have a higher profile. However, the desirability of a universal mandatory ban should not be judged on its effectiveness for a small percentage of cases.
Public confidence in the justice system requires relevant information delivered in a timely way. A mandatory ban on the evidence heard and the reasons given in a bail application is a ban on the information when it is of most concern and interest to the public. Restrictions on the release of such information are only justified if their benefits outweigh their detrimental impact. Given that the salutary effects of the ban under s. 517 are not proportional to the harmful effects flowing from the infringement of the open court principle, the mandatory aspect of s. 517 should be struck out.
Cases Cited
By Deschamps J.
Referred to: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Oakes, [1986] 1 S.C.R. 103; Re Global Communications Ltd. and Attorney-General for Canada (1984), 44 O.R. (2d) 609; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Keegstra, [1990] 3 S.C.R. 697; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Jevons, 2008 ONCJ 559, [2008] O.J. No. 4397 (QL); Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.
By Abella J. (dissenting)
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. White, 2005 ABCA 435, 56 Alta. L.R. (4th) 255.
Statutes and Regulations Cited
Bail Reform Act, S.C. 1970‑71‑72, c. 37.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 11 (e).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 503(1) (a), 515 , 516(1) , 517 , 518 , 520 , 539 .
Authors Cited
Barak, Aharon. “Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J. 369.
Canada. Committee on Corrections. Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.
Canada. House of Commons. House of Commons Debates, vol. III, 3rd Sess., 28th Parl., February 5, 1971, pp. 3113‑14.
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, No. 11, 1st Sess., 28th Parl., March 18, 1969, pp. 501‑2.
Friedland, Martin L. Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts. Toronto: University of Toronto Press, 1965.
Mirfield, Peter. “The Early Jurisprudence of Judicial Disrepute” (1987‑88), 30 Crim. L.Q. 434.
Ontario. Royal Commission. Inquiry into Civil Rights. Toronto: Queen’s Printer, 1968.
Pink, Joel E., and David C. Perrier, eds. From Crime to Punishment: An Introduction to the Criminal Law System, 6th ed. Toronto: Thomson/Carswell, 2007.
Trotter, Gary T. The Law of Bail in Canada, 2nd ed. Scarborough, Ont.: Thomson/Carswell, 1999.
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Rosenberg, Feldman, Simmons and Juriansz JJ.A.), 2009 ONCA 59, 94 O.R. (3d) 82, 239 C.C.C. (3d) 437, 302 D.L.R. (4th) 385, 245 O.A.C. 291, [2009] O.J. No. 288 (QL), 2009 CarswellOnt 301, setting aside in part a decision of Durno J. (2007), 84 O.R. (3d) 766, 2007 CarswellOnt 1224, 2007 CanLII 6249, upholding the constitutionality of s. 517 of the Criminal Code . Appeal dismissed and cross-appeal allowed, Abella J. dissenting.
APPEAL from a judgment of the Alberta Court of Appeal (Conrad, Ritter and Slatter JJ.A.), 2008 ABCA 294, 93 Alta. L.R. (4th) 239, [2008] 10 W.W.R. 588, 437 A.R. 130, 433 W.A.C. 130, 236 C.C.C. (3d) 204, 298 D.L.R. (4th) 659, 179 C.R.R. (2d) 227, [2008] A.J. No. 956 (QL), 2008 CarswellAlta 1158, setting aside a decision of Brooker J., 2007 ABQB 359, 77 Alta. L.R. (4th) 98, 221 C.C.C. (3d) 393, [2007] 10 W.W.R. 250, 48 C.R. (6th) 300, 158 C.R.R. (2d) 270, 420 A.R. 1, [2007] A.J. No. 608 (QL), 2007 CarswellAlta 774, declaring s. 517 of the Criminal Code unconstitutional. Appeal dismissed, Abella J. dissenting.
Paul B. Schabas and Ryder Gilliland, for the appellants/respondents on cross‑appeal Toronto Star Newspapers Ltd. et al.
Frederick S. Kozak, Q.C., and Matthew A. Woodley, for the appellants Canadian Broadcasting Corporation et al.
Barry Zalmanowitz, Q.C., and Peter D. Banks, for the appellant Edmonton Sun, a Division of Sun Media Corporation.
John North and Steve Coroza, for the respondent/appellant on cross‑appeal Her Majesty The Queen in Right of Canada and for the intervener the Director of Public Prosecutions of Canada.
John Norris and Breese Davies, for the respondent/appellant on cross‑appeal A.A.
Dennis Edney and Raymond Motee, for the respondent F.A.
Peter G. Martin, for the respondent S.A.
Anser Farooq, for the respondent Qayyum Abdul Jamal.
Rocco Galati, for the respondents A.M.D. and Ahmad Mustafa Ghany.
Delmar Doucette and Michael Moon, for the respondent S.V.C.
Jolaine Antonio, for the respondent Her Majesty The Queen and for the intervener the Attorney General of Alberta.
Lauren Garcia and Kirk Starkie, for the respondent Michael James White.
M. David Lepofsky, Peter Scrutton and Daniel Guttman, for the intervener the Attorney General of Ontario.
Christopher Hicks and Catriona Verner, for the interveners N.S. and N.Y.
Jonathan C. Lisus and Alexi N. Wood, for the intervener the Canadian Civil Liberties Association.
Daniel W. Burnett, for the interveners the Canadian Newspaper Association et al.
The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. was delivered by
[1] Deschamps J. — Upholding the rights of Canadian citizens by fostering trial fairness and safeguarding liberty interests is central to the criminal justice process. At the same time, access to the courts is central to a democratic society; it is a means to protect against arbitrary state action. Access to the courts is grounded in freedom of expression. Trial fairness and liberty interests must not clash with freedom of expression. They can be reconciled.
[2] A number of media organizations are urging this Court to find that s. 517 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), unjustifiably violates the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms . Under this provision, a justice of the peace or provincial court judge (a “justice”) is required, if an accused applies for one, to order a publication ban that applies to the evidence and information produced, and representations made, at a bail hearing and to any reasons given for the order. There is no question that this order limits freedom of expression. Section 517 states:
517. (1) If the prosecutor or the accused intends to show cause under section 515 , he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
. . .
The issue is whether that limit can be justified in a free and democratic society. For the reasons that follow, I conclude that the statutory mandatory publication ban is justified. These reasons apply to the two cases at bar, which were heard concurrently. I would dismiss the appeal and allow the cross-appeal in the Ontario case and dismiss the appeal in the Alberta case.
[3] Context is the key to understanding the scope and impact of a limit on a Charter right. As this Court said in Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, “[t]he analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes, [1986] 1 S.C.R. 103, requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses” (para. 87). To properly assess the challenge raised by the appeals, it will be necessary to consider the historical and legislative context of the enactment of the interim release provisions found in the Criminal Code . I will then review the limits on freedom of expression in the criminal law context before discussing the issue of justification under the Oakes framework. The appellants argued these appeals on the basis of two different sets of facts that, in their view, demonstrate the need to promote openness in the context of the interim release provisions. I will thus begin by briefly setting out the facts in these two cases.
I. Facts and Judicial History
A. The Alberta Case
[4] Michael White was charged with the murder of his wife in Alberta. He was granted bail by Brooker J. of the Alberta Court of Queen’s Bench on October 7, 2005, and a publication ban was ordered pursuant to s. 517 Cr. C. According to the appellants, Mr. White’s release provoked public outrage. The constitutionality of the ban was then challenged successfully in the Court of Queen’s Bench (2007 ABQB 359, 77 Alta. L.R. (4th) 98). Brooker J. found that the legislative objective underlying the ban was to protect the right of the accused to a fair trial before an impartial jury, and that reason and logic alone were insufficient to establish a rational connection between the ban and this objective. He went on to find that the means also failed to meet the minimal impairment test.
[5] The Alberta Court of Appeal reversed Brooker J.’s decision (2008 ABCA 294, 93 Alta. L.R. (4th) 239). Slatter J.A., writing for a unanimous court, concluded that a s. 517 ban merely defers publication and that the values of protecting fair access to bail and the right to a fair trial were benefits that outweighed the deleterious effects of the restrictions.
B. The Ontario Case
[6] On June 2, 2006, twelve adults and five young persons were charged with various terrorism-related offences under the Criminal Code . The arrests attracted massive media attention between June 3 and June 12, 2006. One of the accused applied for a publication ban, while some of the others opposed it.
[7] On June 12, 2006, Justice of the Peace Currie ordered a ban. The appellants moved to quash the order. Durno J. of the Ontario Superior Court of Justice dismissed their application, holding that if one accused seeks a ban under s. 517 , the order applies to all his or her co-accused ((2006), 211 C.C.C. (3d) 234, at para. 101). Some of the accused were released pending their trial, while others remained in custody. The appellants and two of the accused challenged the constitutionality of s. 517 . Durno J., finding that he was bound by the decision in Re Global Communications Ltd. and Attorney-General for Canada (1984), 44 O.R. (2d) 609 (C.A.), held that s. 517 does not infringe the Charter ((2007) 84 O.R. (3d) 766, at para. 48).
[8] On appeal, Feldman J.A., writing for the majority of the Ontario Court of Appeal (Laskin and Simmons JJ.A. concurring), found that s. 517 was overbroad (2009 ONCA 59, 94 O.R. (3d) 82, at para. 159). She held that the objective of the provision — to safeguard the right to a fair trial by averting jury bias by means of a ban on the publication of prejudicial information — was pressing and substantial and that the ban was rationally connected to the objective. However, she concluded that, as drafted, the provision did not meet the minimal impairment test, because it applied to bail hearings in respect of all charges regardless of the mode of trial. As a remedy, Feldman J.A. read s. 517 down to exclude from the ban any cases in which the charges would not be tried by a jury. Rosenberg J.A., dissenting (Juriansz J.A. concurring), would have declared the part of s. 517 relating to the mandatory ban to be invalid on the basis that it did not meet the requirement of proportionality between the deleterious and the salutary effects of the measure. The appellants ask this Court to adopt the view of the dissent, while the respondents cross-appeal, arguing that the provision is valid.
II. Historical and Legislative Context
[9] Bail was developed in early English law not as a means to further the liberty interest of the accused but as a response to the deplorable conditions of jails: inmates in pre-trial detention died awaiting their trials. To avoid this, accused persons who were not at risk of failing to appear at trial were released on bail. Factors such as the seriousness of the offence, the likelihood that the accused was guilty and the status of the accused were seen as indicators of the likelihood that the accused would appear at trial. In Canada, too, the likelihood of attendance at trial was initially the predominant consideration. However, additional factors subsequently came to be developed, such as the need to protect the public from repeat offenders. The process for granting bail remained quite informal and discretionary until the middle of the 20th century (G. T. Trotter, The Law of Bail in Canada (2nd ed. 1999), at pp. 3-9).
[10] Disturbing data then emerged from an empirical study by Prof. Martin Friedland that was published in 1965 (Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts). Friedland observed that the existing procedures resulted in the detention of many individuals whose attendance could have been secured by less restrictive means. In addition, he noted a relationship between pre‑trial detention, conviction and custodial sentences. This study prompted a re-examination of the rules on bail by the Ontario Royal Commission (Inquiry into Civil Rights (1968)) and by the Canadian Committee on Corrections (Toward Unity: Criminal Justice and Corrections (1969) (“Ouimet Report”)).
[11] The authors of the Ouimet Report found that considerations other than ensuring the attendance of the accused at trial were relevant to the decision whether to order interim release. They stated, as a guiding proposition, that “[t]he basic purposes of the criminal law should be carried out with no more interference with the freedom of individuals than is necessary” (p. 11). The Report’s authors noted that the initial period after an arrest is determinative. Pre-trial incarceration could lead to loss of employment and make it impossible for accused persons to fulfill their family obligations, thereby weakening their family and social ties. The authors observed that the conditions of detention were unsatisfactory. In addition, although they were careful in weighing the statistical evidence, they relied on it to conclude that pre-trial custody had a negative impact on the chances of acquittal. In their opinion, it was almost obvious that how an accused was treated between arraignment and trial had an impact on the corrective measures that would be called for if the accused were convicted. They accepted that incarceration could result in a permanent stigma, even if the accused were eventually acquitted. Moreover, they were of the view that the release of accused persons until trial was intended to ensure that individuals were not being punished at a time when they should be presumed innocent. From a human rights perspective, the authors considered it clear that an accused should not be incarcerated while awaiting trial unless the protection of society made it necessary to do so.
[12] In light of their findings, the authors of the Ouimet Report made a number of recommendations, including that police officers be allowed to release accused persons pending their appearance before a justice, that the onus be placed on the prosecution to justify detention, that flexible rules be adopted to ensure early bail hearings, that provision be made for a publication ban at the request of the accused and that, in a case in which an accused was not represented by counsel, the justice be required to inform the accused of the right to a ban. Finally, one of the most important features of the proposed reform was that limited grounds for refusing interim release were identified. Under reformed rules, the authors said, release should be the rule and custody the exception.
[13] The Ouimet Report stressed the right to a fair trial and the need to implement new rules to facilitate the early release of the accused whenever that was appropriate. As can be seen from the subsequent amendments to the Criminal Code (Bail Reform Act, S.C. 1970-71-72, c. 37), which were enacted almost immediately after the release of the Ouimet Report, the government embraced most of the Report’s recommendations. In brief, the amendments required that an arrested person be brought before a justice without unreasonable delay and that the person be released unless the Crown showed cause for ongoing detention. Only limited grounds were available for denying release, and the Crown was responsible for gathering any evidence it intended to produce at the bail hearing. Also, a mandatory publication ban would have to be ordered if requested by the accused. The new legislation was promoted as protecting individual rights. John Turner, the then Minister of Justice, declared in the House of Commons:
I said that as soon as we could, I intended to turn once again along the road of law reform and continuing enhancement and protection of civil liberties. . . . This bill is directed at making that first contact between citizens and the criminal judicial process less abrasive.
(House of Commons Debates, vol. III, 3rd Sess., 28th Parl., February 5, 1971, at pp. 3113-14)
[14] The reform of the rules governing interim release was implemented long before the Charter but foreshadowed the period of consciousness of individual rights. The purpose of the new rules was to avoid alienating accused persons without exposing society to undue risks. Today, the constitutional right to bail is not just an element of the protection against arbitrary detention, but is also explicitly recognized in s. 11 (e) of the Charter . The protection is both procedural and substantive in that not only is reasonable bail guaranteed, but the cause for the denial of bail must be just. Hence, as I will discuss below, the bail process is inextricably linked to the right to bail itself.
III. Publication Bans in the Criminal Law Context
[15] As La Forest J. stated in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23, “[o]penness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.” A publication ban therefore infringes freedom of expression. However, it should not be concluded that there is a conflict between freedom of expression and the rights of the accused. The “clash model” was rejected in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at pp. 882 et seq., in which Lamer C.J. stated that, rather than giving one right priority over the other, the Court must engage in a balancing exercise that takes into account the salutary and deleterious effects of the measure and any alternatives. In Dagenais, because the objection of the accused related to trial fairness in the context of adverse pre-trial publicity (p. 879), the Court focussed on that concern. However, it soon became clear that the analytical framework could not be limited to that context. In New Brunswick (at para. 69), La Forest J., writing for a unanimous Court, recognized that the interest of the proper administration of justice could justify banning the press from the courtroom for a limited time. The Court found that the discretion conferred on the judge to assess the specific circumstances of each individual case was crucial to the analysis of the validity of the challenged provision. Then, in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, the Court applied the balancing test to another aspect of the proper administration of justice. Iacobucci J. stressed that while Dagenais was the starting point of the analysis, a publication ban could involve a broad range of objectives:
However, the common law rule under which the trial judge considered the publication ban in this case is broader than its specific application in Dagenais. The rule can accommodate orders that must occasionally be made in the interests of the administration of justice, which encompass more than fair trial rights. [para. 31]
[16] The bans in Dagenais and Mentuck were based on the courts’ common law jurisdiction to order publication bans. The authority for the exclusion order in New Brunswick was statutory. In all three cases, the orders were discretionary. In the cases at bar, the appellants argue that the order provided for in s. 517 Cr. C. fails the New Brunswick test because it is mandatory: the judge does not have a discretion to consider the justification for the ban in light of the circumstances of the case. The appellants add that there is no rational connection between the ban and the objective of the legislation and that the ban fails to meet the requirements of the minimal impairment and proportionality stages of the Oakes test. As can be seen from the above cases, bans are sometimes necessary, and whether they are justified depends on the context.
IV. Discretion as a Constitutional Threshold
[17] The appellants accept that a limited publication ban may be valid in some narrow circumstances. However, they contend that the existence of a judicial discretion amounts to a constitutional threshold. In my view, their position does not reflect this Court’s approach to limits on freedom of expression.
[18] Whether a discretion exists is not determinative of the validity of a limit on freedom of expression. For example, the limit on access to the content of a search warrant prior to the execution of the warrant is not discretionary (Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175). To consider mandatory bans unconstitutional because the circumstances in which they apply cannot be scrutinized in a Dagenais analysis would be to turn the rule on its head. In Dagenais, Lamer C.J. explicitly stated that his analysis did not concern bans required by statute (pp. 856-57). Moreover, as Bastarache J. stated in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 36, the Dagenais test was not meant to apply to all limits on freedom of expression; rather, it was designed for and applies to discretionary orders (see also Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 31). Discretionary bans are constitutional because the test developed in Dagenais/Mentuck incorporates the essence of the balancing exercise mandated by the Oakes test. Indeed, as Lamer C.J. said in Dagenais, “[i]f legislation requires a judge to order a publication ban, then any objection to that ban should be framed as a Charter challenge to the legislation itself” (p. 874 (emphasis in original)). The validity of a statutory mandatory ban, such as the one at issue and the one provided for in s. 539 Cr. C. with respect to evidence led at a preliminary inquiry, will be determined by conducting an analysis based on the Oakes test.
V. The Oakes Test
[19] The various stages of the Oakes test are well known. When a protected right is infringed, the government must justify its action by identifying a pressing and substantial objective, by demonstrating that there is a rational connection between the objective and the infringement, and by showing that the means chosen interferes as little as possible with the right and that the benefits of the measure taken outweigh its deleterious effects.
A. Pressing and Substantial Objective
[20] The identification of Parliament’s objectives in adopting the mandatory ban is of great importance, as this will have a considerable impact on the analysis of the remaining stages of the test. As McLachlin J. (as she then was) noted in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 144, “[c]are must be taken not to overstate the objective. The objective relevant to the s. 1 analysis is the objective of the infringing measure, since it is the infringing measure and nothing else which is sought to be justified. If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised”