Dagenais v. Canadian Broadcasting Corp.

Dagenais v. Canadian Broadcasting Corp.
Collection
Supreme Court Judgments
Date
1994-12-08
Report
[1994] 3 SCR 835
Case number
23403
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Appeal
Constitutional law
Courts
Criminal law
Notes
SCC Case Information: 23403
Decision Content
[1994] 3 S.C.R. Dagenais v. Canadian Broadcasting Corp. 835
Version with page numbers (details) Canadian Broadcasting Corporation and
National Film Board of Canada Appellants
v.
Lucien Dagenais, Léopold Monette,
Joseph Dugas and Robert Radford Respondents
and
John Newton Smith and
The Canadian Association of Journalists Interveners
and
The Attorney General for the Province
of Ontario Intervener
Indexed as: Dagenais v. Canadian Broadcasting Corp.
File No.: 23403.
1994: January 24; 1994: December 8.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Criminal law -- Publication bans -- Four members of Catholic order charged with physical and sexual abuse of young boys in Catholic training schools -- Superior court judge restraining CBC from broadcasting anywhere in Canada fictional program dealing with child sexual and physical abuse in Catholic orphanage until end of criminal trials in Ontario -- Whether CBC can appeal publication ban -- If so, whether judge erred in ordering ban -- Standard applicable.
Criminal law -- Procedure -- Publication bans -- General principles governing publication bans and their application.
Appeal -- Publication bans -- Publication ban imposed in criminal proceedings -- Ban issued under judge's common law or legislated discretionary
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authority -- Avenues available for third parties to challenge ban.
Constitutional law -- Charter of Rights -- Freedom of expression -- Fair trial -- Publication bans -- Whether common law rule governing publication bans inconsistent with Charter principles -- Canadian Charter of Rights and Freedoms, ss. 2 (b), 11 (d).
Courts -- Supreme Court of Canada -- Jurisdiction -- Publication bans -- Whether Supreme Court has jurisdiction to hear third party challenge to publication ban issued in criminal proceedings -- Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1) , (3) -- Criminal Code, R.S.C., 1985, c. C-46, s. 674 .
The respondents, former and present members of a Catholic religious order, were charged with physical and sexual abuse of young boys in their care at training schools in Ontario. They applied to a superior court judge for an injunction restraining the CBC from broadcasting the mini-series The Boys of St-Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution in Newfoundland, and from publishing in any media any information relating to the proposed broadcast of the program. At the time of the hearing, the trials of the four respondents were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) before a judge and jury. LD's trial was in its final stage and a trial judge had been appointed for LM's case. The superior court judge granted the injunction, prohibiting the broadcast of the mini-series anywhere in Canada until the end of the four trials, and granted an order prohibiting publication of the fact of the application, or any material relating to it. The Court of Appeal affirmed the decision to grant the injunction against the broadcast but limited its scope to Ontario and CBMT-TV in Montreal and reversed the order banning any publicity about the proposed broadcast and the very fact of the proceedings that gave rise to the publication ban.
Held (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be allowed and the publication ban order set aside.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: To have a publication ban issued under a judge's common law or legislated discretionary
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authority, the Crown and/or the accused's motion should be made before the trial judge, if one has been appointed, or before a judge in the court at the level where the case will be heard. If the level of court has not been established and cannot be established definitively by reference to statutory provisions, the motion should be made before a superior court judge. In a jury trial, the motion must be heard in the absence of the jury. To challenge a ban on appeal, the Crown and the accused should follow the avenues of appeal available through the Criminal Code . When the initial ban order is made by a judge other than the trial judge, some flexibility should be recognized in the application of the rule against collateral attacks.
The judge hearing a motion for a publication ban has the discretion to direct that third parties be given notice and to grant them standing in accordance with the provincial rules of criminal procedure and the common law principles. If third parties wish to oppose the motion, they should attend at the hearing, argue to be given status, and if given status, participate in the motion. When third parties, usually the media, seek to challenge publication bans ordered by judges under their common law or legislated discretionary authority, no direct appeal is available through the Criminal Code . If the publication ban was ordered by a provincial court judge, the third party should make an application for certiorari to a superior court judge. The common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, so an order implementing such a ban is an error of law on the face of the record. While certiorari has traditionally been limited remedially, when a judge exceeds his authority under the common law rule governing publication bans, the remedies available through a certiorari challenge to the judge's action should be enlarged to be the same as the remedies that would be available under the Charter . To challenge a denial of certiorari, third parties should appeal the superior court judge's decision to the Court of Appeal under s. 784(1) of the Criminal Code . To challenge a dismissal of an appeal to the Court of Appeal, they should apply for leave to appeal to the Supreme Court of Canada under s. 40(1) of the Supreme Court Act . If the publication ban was ordered by a superior court judge, third parties should challenge the ban by applying for leave to the Supreme Court under s. 40(1) . A publication ban order issued by a superior court judge 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 the particular case. Neither s. 40(3) of the Act nor s. 674 of the Criminal Code precludes an
page 838
appeal to the Supreme Court under s. 40(1) in such cases.
Section 24(1) of the Charter is unavailable to challenge a publication ban since such a challenge can be framed in terms of error of law and since certiorari and s. 40(1) are available. Furthermore, given that a motion for a publication ban in the context of criminal proceedings is criminal in nature, the civil procedures avenues to challenge a ban are not available.
Here, the superior court judge who issued the publication ban order had jurisdiction to hear only the motions for a ban made by JD and RR, since a trial judge had already been appointed for LD and LM. The Court of Appeal did not have jurisdiction to hear the CBC's appeal, and this Court had jurisdiction to grant leave to appeal the Court of Appeal's decision and to draw these conclusions on the issue of jurisdiction. This Court also had jurisdiction under s. 40(1) to grant leave to appeal the initial order of the superior court judge. The CBC, however, did not seek leave to appeal this order. Because it would be unfair to penalize the CBC for not following the correct procedure where the correct procedure was unknown, because the issue of publication bans is of national importance, and because no one is prejudiced by the granting of leave, leave to appeal from that order should be granted under s. 40(1) proprio motu, nunc pro tunc, ex post facto.
This case deals with an error of law challenge to a publication ban imposed under a common law discretionary rule. Discretion conferred by a common law rule must be exercised within the boundaries set by the Charter ; exceeding these boundaries results in a reversible error of law. The traditional common law rule governing publication bans -- that there be a real and substantial risk of interference with the right to a fair trial
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-- emphasized the right to a fair trial over the free expression interests of those affected by the ban and, in the context of post-Charter Canadian society, does not provide sufficient protection for freedom of expression. When two protected rights come into conflict, Charter principles require a balance to be achieved that fully respects the importance of both rights. A hierarchical approach to rights must be avoided, both when interpreting the Charter and when developing the common law. The common law rule governing publication bans must thus be reformulated in a manner that reflects the principles of the Charter and, in particular, the equal status given by the Charter to ss. 2 (b) and 11 (d). Given that publication bans, by their very definition, curtail the freedom of expression of third parties, the common law rule must be adapted so as to require a consideration of both the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows: a publication ban should only be ordered when (a) such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. If the ban fails to meet this standard, then the judge committed an error of law in making the order and the challenge to the order on this basis should be successful. This standard reflects the substance of the Oakes test, which itself should be rephrased to recognize in the third step of the proportionality branch that there must be a proportionality not only between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, but also between the deleterious and the salutary effects of the measures.
Publication bans, however, should not always be seen as a clash between freedom of expression for the media and the right to a fair trial for the accused. The clash model is more suited to the American constitutional context and should be rejected in Canada. Other important concerns have a place at each stage of the analysis that is required when considering whether a particular publication ban can be justified under the common law
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rule. The efficacy of a publication ban is also a relevant factor in this analysis.
The party claiming under the common law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial bears the burden of justifying the limitation on freedom of expression. He must prove that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited as possible, and that there is a proportionality between the salutary and deleterious effects of the ban. The fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied. The judge should, where possible, review the publication ban at issue. He must consider all other options besides the ban and find that there is no reasonable and effective alternative available. He must also limit the ban as much as possible. Lastly, the judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.
The publication ban in this case cannot be upheld. While the ban was clearly directed toward preventing a real and substantial risk to the fairness of the trial of the four respondents, the initial ban was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, reasonable alternative measures were available to achieve the objective without circumscribing the expressive rights of third parties. The publication ban therefore cannot be supported under the common law. In purporting to order the ban under her common law discretionary authority, the superior court judge thus committed an error of law.
Per McLachlin J.: Court orders in the criminal sphere which affect an accused's Charter rights or his ability to enforce them are themselves subject to the Charter . The ban at issue in this case falls into this category. The publication ban was related to the protection of the respondents' constitutional right to a fair trial and may be viewed as a case of the criminal law being applied to vindicate the rule of law and the fundamental freedoms protected by the Charter . The ban was not made by Parliament or a legislature but can be considered an act of
page 841
"government" in relation to a matter within the authority of Parliament or the legislatures.
Courts must be able to provide a full and effective remedy for any Charter infringement. This requires more than the opportunity to address the trial court prior to the issuance of the ban and must include recourse to an appellate tribunal. The appellate procedures proposed by Lamer C.J. for third party challenges of publication ban orders satisfy this minimal requirement. While they involve some extension of the common law remedy of certiorari, this extension is warranted in the case of appeals from publication bans and hence justified under s. 24(1) of the Charter . The extension is warranted because there is no other way that overbroad publication bans can effectively be limited on appeal. Given that the Charter applies to a court-ordered publication ban, such a ban might be challenged on the basis of error of law in that it constitutes a direct violation of the Charter . The proposed appellate procedures should not, however, be understood to derogate from the principle that criminal trials should not be interrupted and delayed for the purpose of pursuing interlocutory appeals.
The right to broadcast a fictional cinematic work falls squarely within the ambit of s. 2 (b) of the Charter and the limits on freedom of expression imposed by the ban must be justified under s. 1 . The objective of the ban was to preserve the respondents' rights to a fair trial and, in particular, to avoid the risk that an impartial jury could not be sworn, or if sworn, could not render a true verdict because of the poisonous effects of the publication. Under the proportionality branch of the Oakes test, a publication ban may be justified where there are special circumstances in a case which indicate a serious risk (as opposed to a speculative possibility) to the fairness of the trial, and provided that the ban goes no further than required to avoid the demonstrated risk of an unfair trial.
It is not a question of deciding where the balance should be struck between a fair trial and freedom of expression. The right to a fair trial is fundamental and cannot be sacrificed. In general, the clash model is also largely inappropriate. The common law test governing the issuance of publication bans, properly applied, meets the requirements of justification of an infringing measure under s. 1. What is required is that the risk of an unfair trial be evaluated after taking full account of the
page 842
general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. Here, the judge ordering the ban failed to direct herself to the considerations which go to establishing rational connection and minimal impairment. It follows that the ban cannot be supported and must be set aside.
Per Gonthier J. (dissenting): The superior court judge was a court of competent jurisdiction to issue a publication ban in the cases of JD and RR; and, in doing so, she was bound to apply the Charter and her decision constituted the implementation of a Charter remedy under s. 24(1) . She had no jurisdiction, however, to issue a ban on the applications of LD and LM who could only apply to their appointed trial judge. The question of whether there is a right of review or appeal of the ban order bearing on its correctness and conformity with the Charter rights of the persons affected thereby is a distinct issue. By referring to a "court of competent jurisdiction", s. 24(1) does not create courts of competent jurisdiction, but merely vests additional powers in courts which are already found to be competent independently of the Charter . Further, s. 24(1) does not of itself create a right of review or appeal from a decision of a court of competent jurisdiction where such a right is already provided by law. In this case, Lamer C.J.'s views as to rights of review by way of certiorari of publication ban orders by provincial court judges pursuant to the Charter and rights of appeal pursuant to s. 40 of the Supreme Court Act were agreed with.
Publication bans can be ordered to protect the fairness of a pending or current trial. The fact such bans restrict freedom of expression and freedom of the press means that they should be imposed only in exceptional cases. The exceptional nature of publication bans has been assured at common law by requiring that there be a real and substantial risk to the fairness of the trial. The application of the Charter to the evaluation of publication bans, while not directly altering the common law test, restructures the analysis to some extent. In terms of Charter review, determining the correct balance between fair trial and freedom of expression rights falls to the s. 1 analysis. Under s. 1, each party bears an initial burden of showing a Charter infringement. After that initial burden is discharged, the balancing of competing Charter rights is incompatible with a burden on
page 843
either party and the s. 1 analysis should be carried on without privileging or disadvantaging either of the rights at issue. The validity of imposing a ban under s. 1 will be determined almost exclusively at the second and third branches of the proportionality part of the Oakes test since the other elements of the test are easily satisfied. The second or minimal impairment branch requires that bans be carefully limited both in terms of temporal and geographic application, and requires evaluation of alternative measures to protect the right to a fair trial. The third branch requires proportionality between the effects of the measure limiting the freedoms in question and the objective, and also proportionality between the salutary and deleterious effects of that measure.
Thus, in analysing publication bans through s. 1, the essence of the decision to issue a ban or not is a balancing of various factors to determine whether such a preventive measure is a necessary and reasonable response to the facts of any given case. The trial judge must consider the nature of the threat to the fairness of the trial, including the susceptibility of juries to being influenced, the extent of the restriction on freedom of expression and the availability of alternative measures. It is not necessary, however, for the trial judge to determine with certainty that the alternative measures would be insufficient to protect the fairness of the trial. What is required is that the trial judge be satisfied that the publication will create a real and substantial risk to the fairness of the trial, which available alternative measures will not prevent. Where circumstances permit it is desirable for the trial judge to review the proposed publication as part of the evidence before determining whether to issue a ban. Finally, the decision of a trial judge, made after weighing all the factors, should not be interfered with unless it is based on an error in principle or it cannot be reasonably supported on the evidence.
Here, the superior court judge did not err in banning the broadcast of the mini-series until the end of the pending trials some eight months later. The mini-series was a work of fiction based on a number of similar, "almost interchangeable", cases which was to be shown in prime time to a potentially huge audience. On the basis of the evidence, it was open to the judge to find that even though the mini-series was not directly about
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any of the respondents, it would have seriously compromised the possibility of finding an impartial jury given the context of widespread prior publicity, and that the alternative measures were bound to be ineffective. Though this test differs on a formal level from the "real and substantial risk" test, they are equivalent in substance. While the ban temporarily denied the appellants their freedom of expression, this impairment was very minor. The mini-series is a work of fiction, not a news event, and could be broadcast later with minimal inconvenience. Commercial loss cannot justify risking an accused's right to a fair trial, especially when a portion of the losses can be recouped when the mini-series is eventually broadcast. Finally, the purpose of provoking public exploration of the issues of child physical and sexual abuse, as an integral part of a process of seeking solutions, was not frustrated by the temporary ban. These issues would still have been topical at the end of the pending trials. The geographic scope of the ban, however, was clearly overly broad. Since there was no legal possibility that the trials could be moved outside Ontario, the ban should have been limited to any broadcast in the province and to CBMT-TV in Montreal.
Per La Forest J. (dissenting): There is no direct appeal to this Court under s. 40 of the Supreme Court Act from the superior court judge's order. On the basis of the reasoning in support of such an appeal, applications for leave from any number of interlocutory rulings in criminal proceedings could be made to this Court. The appellants, however, are not without remedy. Apart from declaratory actions, a remedy might well be available under s. 24(1) of the Charter even against a decision of a superior court judge. Since a decision made under that provision is not otherwise open to appeal, it is a final order within the meaning of s. 40 of the Supreme Court Act , and so open to appeal with leave to this Court. No other avenue or appeal route was available to the appellants to challenge the ban.
The ban order is not immune from Charter scrutiny by reason only that it is a court order. The order is one exercised pursuant to a discretionary power directed at the governmental purpose of ensuring a fair trial. It is a by-product, in this case having effect outside the criminal process, of the institution by the Crown of criminal proceedings. The fact that the rule under which it was made was judicially created does not matter. The
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Charter applies to common law as well as to statutes. Since the effect of the order was the infringement of the appellants' Charter right to freedom of expression to serve a governmental purpose, the order may be subjected to Charter scrutiny.
If an expansion of certiorari jurisdiction is to be permitted when publication bans made by provincial court judges are being challenged, discretion to grant such a remedy should be exercised in a restrained manner to avoid undue interference with the trial process. It might, in fact, be as well simply to leave third parties the right to apply for a remedy under s. 24(1) of the Charter . That remedy is itself discretionary. It is akin to a court's discretionary power to grant a declaration and should be exercised with similar restraints.
Although it is unnecessary to consider the substantive issue, the following comments could be made in light of the disposition of the case by the Court. There is agreement with Lamer C.J. that the common law rule did not give sufficient protection to freedom of expression, and substantial agreement with his list of factors a judge should consider in determining whether a ban should issue. The extent to which a ban could disrupt the trial is another factor that should be weighed.
Per L'Heureux-Dubé J. (dissenting): Freedom of expression is a fundamental value in our free and democratic society. The jurisdictional issue raised in this case, however, concerns the right of appeal, not the right to freedom of expression. The right to freedom of expression is protected by access to an initial remedy. While the axiom "where there is a right, there is a remedy" may not be absolute, when a person alleges a wrong, that person is entitled to submit his case to a forum in order to try to obtain redress. Here, the CBC was provided with such an opportunity: the CBC had standing and was heard by a court of law prior to the issuance of the publication ban. Even though the CBC was unsuccessful in preventing the issuance of the publication ban, it still had access to an initial remedy. Consequently, the jurisdictional question raised by this appeal is not whether the CBC should have access to a remedy but whether the CBC should have a right to appeal a decision with which they are not satisfied.
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In this respect, the jurisdictional question has broad implications. If the media are permitted to appeal a publication ban issued in the criminal context then every third party will be able to appeal any interlocutory order issued in the criminal context which they believe infringes their Charter rights. Such a broad interlocutory right of appeal will result in significant delay to the trial process, will adversely impact upon the accused's Charter right to be tried within a reasonable time and will adversely affect the administration of justice.
With this broad context in mind, this Court is found to have no jurisdiction to entertain this appeal. Similarly, there was no jurisdiction in the Court of Appeal to hear this appeal. In our free and democratic society, a right of appeal is not available in every situation. With the exception of the possibility of a limited common law jurisdictional appeal, a right of appeal exists only if specifically provided by statute. Here, the Criminal Code does not provide for such a right. Furthermore, since this appeal qualifies as a proceeding in respect of an indictable offence, s. 674 of the Code does not authorize any other proceedings through which the ban can be challenged. Even assuming, however, that s. 674 does not restrict the scope of s. 40(1) of the Supreme Court Act, s. 40(1) still does not provide this Court with jurisdiction to hear an appeal such as this one from an interlocutory criminal order. To hold otherwise would be inconsistent with the jurisprudence of this Court. Section 40(1) was intended to confer broad appellate jurisdiction on this Court, but it was not intended to override the principle against interlocutory criminal appeals. This principle is equally applicable to the accused, the Crown and third parties. While an order affecting a third party issued during a criminal proceeding may be final with respect to that third party, it is interlocutory with respect to the accused. Since the focus in criminal proceedings must be on the accused and the determination of guilt and innocence, to the extent that the order is interlocutory from the accused's point of view it should not be subject to a third party appeal unless the right to such an appeal is specifically and clearly provided by statute. Section 40(1) does not meet this test. Just as it has not been interpreted to provide parties to criminal proceedings with an interlocutory right of appeal, it should not be so interpreted with respect to third parties. Finally, the Charter does not confer appellate jurisdiction. Section 24(1) cannot provide a right of appeal where none is provided by law. It is only if there were no access whatsoever to an initial remedy that s. 24(1) might confer jurisdiction to provide an initial remedy, such as
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giving a third party standing to raise the issue. However, this is not such a case. If third party interlocutory criminal appellate procedures are needed, it is Parliament, not the courts, which must develop such procedures.
With respect to the applicability of the Charter to court orders, while some judicial activity may be subject to the Charter , a court order per se is not. The Charter therefore does not apply to the impugned publication ban. The Charter does, however, apply to the common law governing the issuance of publication bans.
The initial motion for a publication ban should be made before the appointed trial judge wherever possible. Since a trial judge had already been appointed for LD and LM, the superior court judge had no jurisdiction to hear their motions for a publication ban.
On the substantive issue, had jurisdiction been found in this Court to entertain this appeal, Gonthier J.'s reasons would have been agreed with. The common law rule governing the issuance of publication bans in the criminal law context is consistent with the Charter and the superior court judge did not commit any reviewable error in exercising her discretion and applying the common law rule to the facts of this case and determining that a publication ban was necessary.
Cases Cited
By Lamer C.J.
Referred to: Steiner v. Toronto Star Ltd., [1956] O.R. 14; R. v. Begley (1982), 38 O.R. (2d) 549; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Meltzer, [1989] 1 S.C.R. 1764; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384; R. v. Swietlinski, [1994] 3 S.C.R. 481; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Nelles v. Ontario, [1989] 2 S.C.R. 170; Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Litchfield,
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[1993] 4 S.C.R. 333; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Salituro, [1991] 3 S.C.R. 654; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Zundel, [1992] 2 S.C.R. 731; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Généreux, [1992] 1 S.C.R. 259; R. v. Lippé, [1991] 2 S.C.R. 114; Ex parte Telegraph Plc., [1993] 2 All E.R. 971; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Oakes, [1986] 1 S.C.R. 103; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Hess, [1990] 2 S.C.R. 906.
By McLachlin J.
Referred to: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Rahey, [1987] 1 S.C.R. 588; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Oakes, [1986] 1 S.C.R. 103; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.
By Gonthier J. (dissenting)
Mills v. The Queen, [1986] 1 S.C.R. 863; Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); R. v. Keegstra (No. 2) (1992), 127 A.R. 232; Re Global Communications Ltd. and Attorney-General for Canada (1984), 10 C.C.C. (3d) 97; Attorney General v. Times Newspapers Ltd., [1974] A.C. 273; Eur. Court H. R., Sunday Times case, judgment of 26 April 1979, Series A No. 30; R. v. Parks (1993), 15 O.R. (3d) 324; Ex parte Telegraph Plc., [1993] 2 All E.R. 971; CBC v. Keegstra, [1987] 1 W.W.R. 719.
By La Forest J. (dissenting)
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588.
By L'Heureux-Dubé J. (dissenting)
R. v. S. (T.), [1994] 3 S.C.R. 952, aff'g (1993), 109 Sask. R. 96; Reference re Alberta Statutes, [1938] S.C.R. 100; Boucher v. The King, [1951] S.C.R. 265; Switzman v. Elbling, [1957] S.C.R. 285; Edmonton
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Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Meltzer, [1989] 1 S.C.R. 1764; R. v. C. (T.L.), [1994] 2 S.C.R. 1012; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Laba, [1994] 3 S.C.R. 965; R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384; R. v. Gardiner, [1982] 2 S.C.R. 368; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Barnes, [1991] 1 S.C.R. 449; Bar of the Province of Quebec v. Ste-Marie, [1977] 2 S.C.R. 414; R. v. Morgentaler, Smoling and Scott (1984), 41 C.R. (3d) 262; R. v. Cranston (1983), 60 N.S.R. (2d) 269; Nelles v. Ontario, [1989] 2 S.C.R. 170; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Young v. Young, [1993] 4 S.C.R. 3; R. v. Rahey, [1987] 1 S.C.R. 588; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Salituro, [1991] 3 S.C.R. 654; Schachter v. Canada, [1992] 2 S.C.R. 679; Watkins v. Olafson, [1989] 2 S.C.R. 750.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 7 , 11 (b), (d), 12 , 13 , 14 , 24(1) , 32 .
Constitution Act, 1982, s. 52 .
Contempt of Court Act 1981 (U.K.), 1981, c. 49, s. 2(2).
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6.
Criminal Code, 1892, S.C. 1892, c. 29, s. 743.
Criminal Code, R.S.C., 1985, c. C-46, ss. 9 [rep. & sub. c. 27 (1st Supp.), s. 6], 10, 468, 469 [am. c. 27 (1st Supp.), s. 62 ], 517, 539 [idem, s. 97 ], 553 [rep. & sub. idem, ss. 104; am. 1992, c. 1, s. 58(1) (Sch. 1, item 11)], 555 [am. c. 27 (1st Supp.), ss. 106 and 203], 674, 784(1), 798.
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14(1)(f).
Ontario Court of Justice Criminal Proceedings Rules, SI/92-99, r. 6.04(1).
Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1) [rep. & sub. 1990, c. 8, s. 37], (3).
Young Offenders Act, R.S.C., 1985, c. Y-1, s. 5 [am. c. 24 (2nd Supp.), s. 3 ].
Authors Cited
Bailey, S. H. "The Contempt of Court Act 1981" (1982), 45 Mod. L. Rev. 301.
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Canada. Law Reform Commission. Working Paper 56. Public and Media Access to the Criminal Process. Ottawa: The Commission, 1987.
Ergec, Rusen. "La liberté d'expression, l'autorité et l'impartialité du pouvoir judiciaire", [1993] Rev. trim. dr. h. 171.
Harris, D. J. "Decisions on the European Convention on Human Rights During 1979" (1979), 50 Brit. Y.B. Int. L. 257.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented). Scarborough, Ont.: Carswell, 1992 (loose-leaf).
Jamal, Mahmud, and H. Patrick Glenn. "Selective Legality: The Common Law Jurisdictional Appeal" (1994), 73 Can. Bar Rev. 142.
Lepofsky, M. David. Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings. Toronto: Butterworths, 1985.
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APPEAL from a judgment of the Ontario Court of Appeal (1992), 12 O.R. (3d) 239, 59 O.A.C. 310, 99 D.L.R. (4th) 326, 12 C.R.R. (2d) 229, varying a publication ban order made by Gotlib J. Appeal allowed, La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting.
W. Ian C. Binnie, Q.C., Malcolm Mercer and Daniel J. Henry, for the appellants.
Peter A. E. Shoniker and Joseph J. Markson, for the respondents.
James K. Stewart and Lori Sterling, for the intervener the Attorney General for Ontario.
Julius H. Grey, for the intervener John Newton Smith.
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Richard G. Dearden and Randall J. Hofley, for the intervener the Canadian Association of Journalists.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
LAMER C.J. --
I. Factual Background
This is an appeal from the judgment dated December 5, 1992 of the Ontario Court of Appeal restraining the Canadian Broadcasting Corporation ("CBC") from broadcasting a mini-series co-produced by the National Film Board of Canada ("NFB") anywhere in Ontario or on the English-language station CBMT-TV in Montreal until the completion of the criminal trials of the four respondents.
The respondents (Lucien Dagenais, Léopold Monette, Joseph Dugas and Robert Radford) are either former or present members of a Catholic religious order known as the Christian Brothers. They were all charged with physical and sexual abuse that allegedly took place in Catholic training schools where the respondents were teachers and the victims were young boys in their care.
At the time of the hearing on the publication ban, the trials of the four respondents were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) in front of judge and jury. All of the respondents had been pre-tried and there was no prospect of pre-trial resolution. Dagenais was in week five of his trial before Soublière J. Monette was scheduled to be tried before Cusson J. from February 1 to February 26, 1993. Trial judges had not yet been named for Radford or Dugas, but Radford's trial was scheduled to run from April 5 to May 4, 1993, and Dugas' trial was scheduled to commence some time between May 31 and July 2, 1993.
In early November, the appellant CBC began advertising the nation-wide broadcast of a
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four-hour mini-series entitled The Boys of St. Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution. The broadcast was to be in two two-hour segments, one on Sunday evening, December 6, 1992, and the other on the following evening.
Soublière J. was scheduled to charge the jury in Dagenais' trial on December 7. On December 3, defence counsel brought an application before Soublière J. requesting that he charge the jury on December 4 instead of on December 7 or that he sequester the jury over the weekend of December 5 and 6. Soublière J. declined to do either but he did direct the jury not to watch the broadcast.
On December 4, 1992, the respondents turned to Madam Justice Gotlib, a colleague of Soublière J. in the Ontario Court of Justice (General Division). They applied for an interlocutory injunction under the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, restraining the CBC from broadcasting The Boys of St. Vincent and from publishing in any media any information relating to the proposed broadcast of that program. At the beginning of the hearing the application was amended to indicate that the application was for an injunction to last until the end of the four trials. Gotlib J. of the Ontario Court of Justice granted an interlocutory injunction prohibiting the broadcast of The Boys