Edmonton Journal v. Alberta (Attorney General)

Edmonton Journal v. Alberta (Attorney General)
Collection
Supreme Court Judgments
Date
1989-12-21
Report
[1989] 2 SCR 1326
Case number
20608
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 20608
Decision Content
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326
IN THE MATTER OF sections 2(b) and 52(1) of the
Canadian Charter of Rights and Freedoms ,
being Part 1 of the Constitution Act, 1982 ;
AND IN THE MATTER OF sections 25 and 30 of
the Judicature Act, being chapter J‑1 of
the Revised Statutes of Alberta, 1980;
between:
Edmonton Journal, a division of Southam Inc. Appellant
v.
The Attorney General for Alberta
and the Attorney General of Canada Respondents
and
The Attorney General for Ontario Intervener
indexed as: edmonton journal v. alberta (attorney general)
File No.: 20608.
1989: March 3; 1989: December 21.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, and Cory JJ.
on appeal from the court of appeal for alberta
Constitutional law -- Charter of Rights -- Freedom of expression ‑‑ Freedom of the press -- Open court process -- Reports of judicial proceedings -- Provincial legislation restricting publication of certain information obtained in matrimonial proceedings and at pre-trial stages of civil actions ‑‑ Whether legislation violates s. 2 (b) of the Canadian Charter of Rights and Freedoms -- If so, whether legislation justifiable under s. 1 of the Charter ‑‑ Judicature Act, R.S.A. 1980, c. J-1, s. 30.
Constitutional law -- Charter of Rights -- Equality before the law ‑‑ Reports of judicial proceedings -- Provincial legislation restricting publication of certain information obtained in matrimonial proceedings and at pre-trial stages of civil actions -- Whether legislation violates s. 15 of the Canadian Charter of Rights and Freedoms -- If so, whether legislation justifiable under s. 1 of the Charter -- Whether s. 15 applicable to corporations -- Judicature Act, R.S.A. 1980, c. J-1, s. 30.
The appellant sought a declaration that s. 30 of the Alberta Judicature Act (the "Act") contravenes ss. 2 (b) and 15 of the Canadian Charter of Rights and Freedoms which respectively guarantee freedom of expression and legal equality. Section 30(1) of the Act prohibits the publication of any detail relating to matrimonial proceedings other than the names, addresses and occupations of the parties and witnesses; a concise statement of the charges, defences, counter‑charges and legal submissions; and the summing up of the judge, the finding of the jury and the judgment of the court. Section 30(2) prohibits the publication before trial of anything contained in the pleadings of civil proceedings, except the names of the parties and the general nature of the claim and of the defence. Section 30(3) provides for various types and forms of publication when ordered by the court, including the publication of matters otherwise prohibited. Both the Court of Queen's Bench and the Court of Appeal dismissed the application on the ground that s. 30 constitutes a reasonable limit to s. 2 (b) under s. 1 of the Charter and that it did not violate s. 15 .
Held (La Forest, L'Heureux‑Dubé and Sopinka JJ. dissenting in part): The appeal should be allowed. Section 30(1) and (2) of the Act infringe s. 2 (b) of the Charter and are not justifiable under s. 1 of the Charter . In light of this conclusion, it is not necessary to deal with the argument based on s. 15 of the Charter .
Per Dickson C.J. and Lamer and Cory JJ.: Freedom of expression is of fundamental importance to a democratic society and should only be restricted in the clearest of circumstances. It is also essential to a democracy, and crucial to the rule of law, that the courts are seen to function openly. The press must thus be free to comment and report upon court proceedings to ensure that the courts are in fact seen by all to operate openly in the penetrating light of public scrutiny. It is only through the press that most individuals can really learn of what is occurring in the courts. The members of the public, as "listeners" or "readers", have a right to receive information pertaining to public institutions, in particular the courts. Here, there is no doubt that the provisions of s. 30(1) and (2) of the Act contravene s. 2 (b) of the Charter . Section 30(1) represses the publication of important aspects of court proceedings in matrimonial causes, including information on the evidence adduced at trial and the comments of counsel or of the presiding judge. Section 30(2) creates an almost total restriction on providing information pertaining to pleadings or documents filed in any civil proceedings, including cases involving matters of administrative or constitutional law, before they have been heard.
The limits imposed by s. 30(1) and (2) on s. 2 (b) are not justifiable under s. 1 of the Charter . While the objectives of protecting the privacy of individual (s. 30(1) and (2) ) and of ensuring a fair trial (s. 30(2) ) constitute pressing and substantial concerns for the purpose of s. 1 of the Charter , both subsections do not interfere as little as possible with the fundamental right of freedom of expression, nor do they reflect that proportionality which is required between the effect of the impugned measure on the protected right and the attainment of the objectives. The restrictions in s. 30(1) and (2) are too extensive and go much further than necessary to protect the objectives of the legislation. Section 30 by its restrictive ban on publication results in a very substantial interference with freedom of expression and significantly reduces the openness of the courts. Any need to protect the privacy of the parties, their children or of the witnesses, or to ensure a fair trial could have been accomplished by far less sweeping measures.
Because s. 30(1) and (2) contravene s. 2 (b), and in light of the conclusion that it cannot be justified pursuant to s. 1 of the Charter , it is not necessary to deal with the argument based on s. 15 of the Charter .
Per Wilson J.: The Charter should be applied to individual cases using a contextual rather than an abstract approach. A contextual approach recognizes that a particular right or freedom may have a different value depending on the context and brings into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. This approach is more sensitive to the reality of the dilemma posed by the particular facts of a case and is more conducive to finding a fair and just compromise between two competing values under s. 1 . The importance of a Charter 's right or freedom, therefore, must be assessed in context rather than in the abstract and its purpose must also be ascertained in context.
The values in conflict in the context of this particular case are the right of the public to an open court process, which includes the right of the press to publish what goes on in the courtroom, and the right of litigants to the protection of their privacy in matrimonial proceedings. In particular, the purpose of s. 30(1) of the Act is to protect these litigants against the embarrassment, grief or humiliation that may flow from the publication of the particulars of their private life disclosed in the courtroom. To do so, s. 30(1) has placed serious limits on the publication of what takes place in a courtroom. These limits clearly infringe the freedom of the press guaranteed by s. 2 (b) of the Charter . They restrict the right of the press to report the details of judicial proceedings and go against the traditional emphasis which has been placed in our justice system upon an open court process. The importance of the open court process in our society is supported by several compelling reasons and only powerful considerations would justify inroads into such a process.
Section 30(1) of the Act does not constitute a reasonable limit on the freedom of the press which can be justified by s. 1 of the Charter . While the protection of privacy is a legitimate government objective, s. 30(1) lacks the required degree of proportionality. There is unquestionably a small proportion of matrimonial cases in which publication of the evidence would cause severe emotional and psychological trauma and public humiliation for the parties (and their children) as to warrant a ban on publication. Section 30(1) , however, is not restricted to such cases. It encompasses all matrimonial causes presumably on the assumption that they are all inevitably attended by such consequences. This assumption may have been valid at one time but it is wholly unrealistic today. Many allegations that might once have been acutely embarrassing and painful are today a routine feature of matrimonial causes to which little, if any, public stigma attaches. Legislation seeking to place restrictions on freedom of the press in this area need to be much more carefully tailored.
Section 30(2) of the Act infringes s. 2 (b) of the Charter and is not justifiable under s. 1 .
In light of the conclusion with respect to ss. 2 (b) and 1 of the Charter , it is not necessary to deal with the appellant's contention that s. 30(1) and (2) of the Act violate s. 15 of the Charter .
Per La Forest, L'Heureux‑Dubé and Sopinka JJ. (dissenting in part): The freedom of expression and the concept of open courts are essential to a free and democratic society. However, like other rights and freedoms guaranteed by the Charter , the freedom of expression, which includes the freedom of the press and other media, is subject to such limits prescribed by law as can be demonstrably justified in a free and democratic society. Here, s. 30(1), as modified by s. 30(3) of the Act, was justifiable under s. 1 of the Charter . First, the protection of the privacy of the parties (including their children and the witnesses) and the protection of the access to the courts are two objectives sufficiently important to warrant a reasonable limitation on publication of the details of matrimonial disputes. An individual involved in a matrimonial case is forced to reveal many aspects of his private life. While the divulging of such personal information by the mass media serves little or no public interest, it can do incalculable harm to that individual and his family. The unrestrained publicity of the details of familial activities would also discourage some people from seeking relief in matrimonial causes. It would be a great wrong if those in need of redress shrank from seeking it because their intimate affairs would needlessly become publicly known. Second, given the very limited character of the restriction as compared with the serious deleterious effects on the important values -- right to privacy and access to the courts -- sought to be protected by the legislation, s. 30(1) meets the test of proportionality. Section 30(1) is rationally connected to the objectives and imposes only minimal limits on the freedom of the press. The interference with the freedom is narrowly defined and carefully tailored to resolve a real and serious problem. Section 30(1) is limited to the details and particularities of the case in specific proceedings that deal with personal and family matters, often of a particularly private, and sometimes, of an intimate character. It does not prohibit reporting about the conduct of judges or counsel. The principle of open courts is respected: publication for those having a serious interest in court proceedings or family law is permitted under s. 30(3) of the Act, and all the general information about the nature of the case may be published by the mass media. Finally, a provision under which a judge would retain a discretionary power to prohibit publication in an appropriate case has been tried elsewhere and proven ineffective.
Section 30(2) of the Act infringes s. 2 (b) of the Charter and is not justifiable under s. 1 . Section 30(2) is simply too broad a restriction without adequate justification to afford a defence under s. 1 .
Section 30 of the Act does not infringe s. 15 of the Charter . Section 15 is limited to individuals and does not apply to corporations. Moreover, appellant faces serious problems of standing. Though it may have an interest in the matter, appellant is not directly affected. In any event, although s. 30 imposes a prohibition not found in other jurisdictions in Canada, and discriminates against print media and between newspapers in general circulation and professional journals, these distinctions do not fall within the ambit of s. 15 .
Cases Cited
By Cory J.
Distinguished: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; referred to: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Gannett Co. v. DePasquale, 443 U.S. 368 (1979); Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Amway Corp., [1989] 1 S.C.R. 21; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Whyte, [1988] 2 S.C.R. 3; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Eur. Court H. R., Sunday Times case, judgment of 26 April 1979, Series A No. 30, rev'g [1974] A.C. 273 (H.L.), rev'g [1973] 1 All E.R. 815 (C.A.), rev'g [1973] Q.B. 710 (Div. Ct.)
By Wilson J.
Referred to: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Gannett Co. v. DePasquale, 443 U.S. 368 (1979); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Press‑Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986); Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Morgentaler, [1988] 1 S.C.R. 30; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; McPherson v. McPherson, [1936] A.C. 177; Scott v. Scott, [1913] A.C. 417; R. v. Oakes, [1986] 1 S.C.R. 103.
By La Forest J. (dissenting in part)
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Reference re Alberta Statutes, [1938] S.C.R. 100; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Re Global Communications Ltd. and Attorney General of Canada (1984), 5 D.L.R. (4th) 634; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Heydon's Case (1584), 3 Co. Rep. 7a; 76 E.R. 637; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Beare, [1988] 2 S.C.R. 387; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Oakes, [1986] 1 S.C.R. 103; Re Aluminum Co. of Canada, Ltd. and The Queen in right of Ontario (1986), 55 O.R. (2d) 522 (Div. Ct.), leave to appeal to Ont. C.A. refused September 2, 1986; Parkdale Hotel Ltd. v. Canada (Attorney General), [1986] 2 F.C. 514; Milk Board v. Clearview Dairy Farm Inc., [1987] 4 W.W.R. 279 (B.C.C.A.), leave to appeal refused, [1987] 1 S.C.R. vii; Nissho Corp. v. Bank of British Columbia (1987), 39 D.L.R. (4th) 453; Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922; R. v. Turpin, [1989] 1 S.C.R. 1296.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 8 , 15 .
Criminal Code, R.S.C., 1985, c. C‑46, s. 166 .
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), Arts. 8, 10(2).
Family Law Act 1975, S. Aust. 1975, No. 53, s. 121(1).
Family Proceedings Act 1980, S.N.Z. 1980, No. 94, s. 169(1), (2).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), Arts. 17, 19(3).
Judicature Act, R.S.A. 1980, c. J‑1, ss. 30, 31.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 12.
Authors Cited
Bentham, Jeremy. Rationale of Judicial Evidence, vol. 1. London: Hunt & Clarke, 1827.
Bentham, Jeremy. Treatise on Judicial Evidence. London: J. W. Paget, 1825.
Blackstone, Sir William. Commentaries on the Laws of England, vol. III. Oxford: Clarendon Press, 1768.
Bloustein, Edward J. "Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser" (1964), 39 N.Y.U. L. Rev. 962.
Canada. Statistics Canada. Divorce: Law and the Family in Canada. Ottawa: Minister of Supply and Services Canada, 1983.
Canada. Statistics Canada. Marriages and Divorces: Vital Statistics 1985, vol. II. Ottawa: Minister of Supply and Services Canada, 1986.
Canada. Statistics Canada. Marrying and Divorcing: A Status Report for Canada. Ottawa: Minister of Supply and Services, 1988.
Cohen, Anne Elizabeth. "Access to Pretrial Documents Under the First Amendment" (1984), 84 Colum. L. Rev. 1813.
Fried, Charles. "Privacy" (1968), 77 Yale L. J. 475.
Gross, Hyman. "The Concept of Privacy" (1967), 42 N.Y.U. L. Rev. 34.
Howland, W. G. C. et al. "Reports on the Administration of Justice in Ontario on the Opening of the Courts for 1988" (1989), 23 L. Soc. Gaz. 4.
Prosser, William. L. "Privacy" (1960), 48 Calif. L. Rev. 383.
Schiff, Stanley. Evidence in the Litigation Process, vol. 2, 3rd ed. Toronto: Carswells, 1988.
Stoljar, Samuel. "A Re‑examination of Privacy" (1984), 4 Legal Studies 67.
United Kingdom. Royal Commission on Divorce and Matrimonial Causes. Report of the Royal Commission on Divorce and Matrimonial Causes. London: King's Printer, 1912.
United Kingdom. Select Committee on the Matrimonial Causes. Report and Special Report from the Select Committee on the Matrimonial Causes (Regulation of Reports) Bill. London: King's Printer, 1923.
Warren, Samuel D. and Louis D. Brandeis, "The Right to Privacy" (1890), 4 Harv. L. Rev. 193.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 6. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1976.
APPEAL from a judgment of the Alberta Court of Appeal (1987), 53 Alta. L.R. (2d) 193, 78 A.R. 375, 41 D.L.R. (4th) 502, [1987] 5 W.W.R. 385, 34 C.R.R. 111, affirming a judgment of Foster J. (1985), 40 Alta. L.R. (2d) 326, 63 A.R. 114, 22 D.L.R. (4th) 446, [1986] 1 W.W.R. 453, 23 C.R.R. 356. Appeal allowed, La Forest, L'Heureux‑Dubé and Sopinka JJ. dissenting in part.
Allan Lefever and Fred Kozak, for the appellant.
Nolan D. Steed, for the respondent the Attorney General for Alberta.
David Lepofsky and Timothy Macklem, for the intervener.
The judgment of Dickson C.J. and Lamer and Cory JJ. was delivered by
//Cory J.//
CORY J. -- On this appeal the appellant has challenged the validity of s. 30 of the Alberta Judicature Act, R.S.A. 1980, c. J-1, on the grounds that it contravenes s. 2 (b) of the Canadian Charter of Rights and Freedoms and that the section does not constitute a reasonable limit upon that right so as to come within s. 1 of the Charter . The Attorney General for Alberta has conceded that the impugned section contravenes s. 2 (b) of the Charter but contends that it constitutes a reasonable limit and thus comes within the scope of s. 1 of the Charter .
It may be convenient here to set out s. 30 and the enforcement provision of s. 31. Those sections provide:
30(1) No person shall within Alberta print or publish or cause or procure to be printed or published in relation to a judicial proceeding in a court of civil jurisdiction in Alberta for dissolution of marriage or nullity of marriage or for judicial separation or for restitution of conjugal rights or in relation to a marriage or an order, judgment or decree in respect of a marriage, any matter or detail the publication of which is prohibited by this section, or any other particulars except
(a) the names, addresses and occupations of the parties and witnesses,
(b) a concise statement of the charges, defenses and counter-charges in support of which evidence has been given,
(c) submissions on a point of law arising in the course of the proceedings and the decision of the court thereon, and
(d) the summing up of the judge and the finding of the jury, if any, and the judgment of the court and observations made by the judge in giving judgment.
(2) No person shall, before the trial of any proceedings had in a court of civil jurisdiction in Alberta or, if there is no trial, before the determination of the proceedings within Alberta, print or publish or cause to be printed or published anything contained in a statement of claim, statement of defence or other pleading, examination for discovery or in an affidavit or other document other than
(a) the names and addresses of the parties and their solicitors, and
(b) a concise statement of the nature of the claim or of the defence, as the case may be, in general words such as, "the claim is for the price of goods sold and delivered", or "the claim is for damages for personal injuries caused by the negligent operation of an automobile", or as the case may be.
(3) Nothing in this section applies
(a) to the printing of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding,
(b) to the communication of a pleading, transcript of evidence or other document for use in connection with a judicial proceeding to persons concerned in the proceeding,
(c) to the printing or publishing of a notice or report pursuant to an order or direction given by a court competent to so order or direct, or
(d) to the printing or publishing of a matter
(i) in a separate volume or part of a bona fide series of law reports that does not form part of another publication and that consists solely of reports of proceedings in courts of law, or
(ii) in a publication of a technical character bona fide intended for circulation among members of the legal or medical professions.
31(1) A person who contravenes section 30 is guilty of an offence and, in respect of each offence, liable
(a) if a natural person to a fine of not more than $1000 and in default of payment to imprisonment for a term of not more than one year, and
(b) if a corporation to a fine of not more than $5000.
(2) When the offence consists in the printing and publication of a matter, detail or thing in a newspaper, circular or other publication printed and published in Alberta, the proprietor of the newspaper, the editor of the newspaper and the publisher are each guilty of the offence.
(3) When the offence consists of the publication in Alberta of a matter or thing contained in a newspaper, circular or other publication that is printed outside Alberta and that continually or repeatedly publishes writings or articles that are obscene, immoral or otherwise injurious to public morals, every person within Alberta is guilty of an offence who
(a) receives that newspaper, circular or other publication, and
(b) is engaged in the public distribution of it or does an act or thing for the purpose of the public distribution of it.
(4) In a prosecution with respect to an offence under subsection (3), the fact that the accused was in possession of more than 6 copies of a newspaper, circular or other publication referred to in subsection (3) is prima facie proof that the accused was engaged in the public distribution of it.
(5) No prosecution for an offence under subsection (3) may be commenced by any person without the consent of the Attorney General.
The issues raised require consideration of ss. 1 and 2 (b) of the Charter . These sections provide:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Importance of s. 2 (b) of the Charter and the Reporting of Court Proceedings
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2 (b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2 (b) should therefore only be restricted in the clearest of circumstances.
The vital and fundamental importance of freedom of expression has been recognized in decisions of this Court. In RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, McIntyre J., speaking for the majority, put the position in this way at p. 583:
Freedom of expression is not, however, a creature of the Charter . It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.
The importance of freedom of expression has been recognized since early times: see John Milton, Areopagitica; A Speech for the Liberty of Unlicenc'd Printing, to the Parliament of England (1644), and as well John Stuart Mill, "On Liberty" in On Liberty and Considerations on Representative Government (Oxford 1946), at p. 14:
If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.
And, after stating that "All silencing of discussion is an assumption of infallibility, he said, at p. 16:
Yet it is as evident in itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present.
Nothing in the vast literature on this subject reduces the importance of Mill's words. The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy.
There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations. The more complex society becomes, the more important becomes the function of the courts. As a result of their significance, the courts must be open to public scrutiny and to public criticism of their operation by the public.
The importance of the concept that justice be done openly has been known to our law for centuries. In Blackstone's Commentaries on the Laws of England (1768), vol. III, c. 23, at p. 373, the following observation appears:
This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk . . .
This principle has been recognized by the United States Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368 (1979). Stewart J., writing for the majority, said this (at p. 386, n. 15):
As early as 1685, Sir John Hawles commented that open proceedings were necessary so "that truth may be discovered in civil as well as criminal matters". [Emphasis in original.]
In the United States this principle is not restricted to hearings. The principle embraces the recognition of the existence of a common law right "to inspect and copy public records and documents, including judicial records and documents". See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), at p. 597.
In Canada this Court has emphasized the importance of the public scrutiny of the courts. It was put in this way by Dickson J., as he then was, writing for the majority in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at p. 185:
Many times it has been urged that the `privacy' of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, are apposite and were cited with approval by Duff J. in Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339 at p. 359:
Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.
He then went on to discuss the application of that same principle to court records. He observed that Canadian law differs somewhat from the law of England which appears to take a more restrictive approach towards the publicity of documents. He said this at p. 189:
Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.
I am not unaware that the foregoing may seem a departure from English practice, as I understand it, but it is in my view more consonant with the openness of judicial proceedings which English case law would seem to espouse.
It can be seen that freedom of expression is of fundamental importance to a democratic society. It is also essential to a democracy and crucial to the rule of law that the courts are seen to function openly. The press must be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny.
There is another aspect to freedom of expression which was recognized by this Court in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712. There at p. 767 it was observed that freedom of expression "protects listeners as well as speakers". That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.
It is equally important for the press to be able to report upon and for the citizen to receive information pertaining to court documents. It was put in this way by Anne Elizabeth Cohen in her article "Access to Pretrial Documents Under the First Amendment" (1984), 84 Colum. L. Rev. 1813, at p. 1827:
Access to pretrial documents furthers the same societal needs served by open trials and pretrial civil and criminal proceedings. Court officials can be better evaluated when their actions are seen by informed, rather than merely curious, spectators.
It is against this background which recognizes the crucial importance of both the freedom of expression and the openness of courts that s. 30 of the Alberta Judicature Act must be considered.
The Effect of the Prohibitions Contained in s. 30 of the Alberta Legislation
It will be recalled that s. 30(1) prohibits printing and publishing "in relation to a judicial proceeding in a court of civil jurisdiction in Alberta for dissolution of marriage or nullity of marriage or for judicial separation or for restitution of conjugal rights or in relation to a marriage or an order, judgment or decree in respect of a marriage, any matter or detail the publication of which is prohibited by this section". The section then goes on to set out the exceptions: (a) the names, addresses and occupations of the parties and witnesses; (b) a concise statement of the charges, defences and counter-charges in support of which evidence has been given; (c) submissions on a point of law arising in the course of the proceedings and the decision of the court thereon, and (d) the summing up of the judge and the finding of the jury, if any, and the judgment of the court and the observations made by the judge in giving judgment.
The sweeping effect of the prohibition can be readily seen. The term "or in relation to a marriage" is a broad one. It encompasses matters pertaining to custody of children, access to children, division of property and the payment of maintenance. All are matters of public interest yet the evidence given on any of these issues cannot be published. The dangers of this type of restriction are obvious. Members of the public are prevented from learning what evidence is likely to be called in a matrimonial cause, what might be expected by way of division of property and how that evidence is to be put forward. Neither would they be aware of what questioning might be expected. These are matters of great importance to those concerned with the application of family law. It is information people might wish to have before they even consider consulting a lawyer. The very people who would seem to have the greatest need to know of family court proceedings are prevented from obtaining important information by the provisions of s. 30.
As well, the comments of counsel and the presiding judge are excluded from publication. How then is the community to know if judges conduct themselves properly. How will it know whether remarks might have been made, for example, that a wife should submit to acts of violence from her husband or that a wife should endure the verbal abuse or blows of her husband. The community has a right to know if such remarks are made yet if there is no right to publish, the judge's comments may be hidden from public view. Thus it can be seen that the effect of s. 30(1) is to repress the publication of important aspects of court proceedings. The prohibitions are unnecessarily extensive.
With regard to s. 30(2), it creates an almost total restriction on providing information pertaining to pleadings or documents filed in any civil proceedings before they have been heard. Thus cases involving matters of administrative law or constitutional law are affected by the prohibition. People are prevented from learning the particular allegations made in these cases although they may have a vital impact on the lives of all the residents of the province. The restriction set out in s. 30(2) is unique to the province of Alberta.
Contraventions of s. 2 (b)
There can be no doubt that the provisions of s. 30(1) and (2) of the Alberta Judicature Act contravene s. 2 (b) of the Charter . This was recognized by the Alberta Court of Appeal and conceded by the Attorney General for Alberta before this Court. The legislation then can only be saved if the province of Alberta has satisfied the onus which it must bear to show that the section constitutes a reasonable limitation that comes within the purview of s. 1 of the Charter .
Consideration of s. 1 of the Charter
In order to constitute a reasonable limitation contemplated by s. 1 of the Charter , the impugned section must meet the criteria set forth in R. v. Oakes, [1986] 1 S.C.R. 103. There Dickson C.J., speaking for the majority, indicated that the legislation in question has to satisfy two sets of conditions if it is to meet the test under s. 1 . The first is that the objective of the impugned legislation which sought to impose a limit on a Charter right must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (p. 138). Quoting R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, he observed that the standard must be high in order to ensure that objectives of a trivial nature did not gain s. 1 protection. The objective must be of a pressing and a substantial nature before it can be characterized as sufficiently important to override a Charter right. Second, "the means chosen to attain those objectives must be proportional or appropriate to the ends": R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 768.
Considering that first condition, what then are the objectives of this legislation? There were three put forward by the Attorney General for Alberta. First, it was said that the aim of the legislation, particularly s. 30(1), was to safeguard public morals. Undoubtedly this was the primary basis for the enactment of the legislation in 1935. However, it must be reviewed by current standards and it cannot be accepted that this objective remains pertinent in today's society. Although allegations of adultery and the misconduct of the parties may have been the height of scandal at the time of the passage of the legislation they can hardly raise an eyebrow today. Television in day-time soap operas and prime time programmes, the movies and magazines, all deal in considerable and colourful detail with every possible permutation and combination of human relationships. That is now the staple fare of society. By comparison the evidence of a matrimonial case is very tame fare indeed. The problems before the court in matrimonial causes could not conceivably be said to so affect public morals that the public should be shielded from the proceedings.
The Attorney General for Alberta submitted that a second purpose of the legislation was to ensure access to the courts by people who might wish to litigate matrimonial matters. It was said that if people had knowledge that their case would be the subject of printed reports they might not seek to achieve their rights in court. But no evidence was introduced to support the conten