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II. PUBLICATION BANS: THE LEGAL BACKGROUND AND FRAMEWORK
A judicial ban upon publication of details about a criminal proceeding engages a variety of interests, some of which are constitutionally protected. There is the right of an accused person to receive a fair trial. This significant interest is enshrined in the common law and enjoys protection in the Canadian Charter of Rights and Freedoms.1 As well, there is the interest of the state and the public in seeing that criminality is prosecuted and, if proven, punished. This interest is also articulated in both the common law and the Charter.2 Finally, there are the interests of various third parties to the prosecution. One of the more significant third party interests is that of the media to publish and to broadcast information about criminal proceedings. This interest is subsumed within the fundamental freedom of the press now guaranteed by section 2(b) of the Charter. There are also the interests of other third parties such as witnesses or victims of the crimes being prosecuted and their families. Traditionally, the interests of those individuals have only been indirectly acknowledged in our law. Indeed, any constitutional recognition of these interests is only inferential, most notably a privacy interest which resides, perhaps, in the penumbra of section 7. 3
A. The Rights Delineated
This part of the paper will address the two most significant constitutional protections engaged
by a publication ban, namely the right to a fair trial and the fundamental freedom of the press.
1. Right to a Fair Trial
The right of an accused person to a fair trial is the principal objective of the criminal justice system. Most rules which govern the investigation and prosecution of crime are intended to serve that end. Though many of these rules are now constitutionally enshrined, this is only the culmination of their evolution and development at common law. 4 For example, the principle against self-incrimination applied most recently by the Supreme Court of Canada in R. v. S. (R.J.)5 is one example of a legal principle informed by both the common law and the constitution. Its aim, ultimately, is to ensure a fair trial of an accused person without his or her involuntary participation.
An important attribute of a fair trial is "openness", a concept which emerged following the worst excesses of the Court of Star Chamber. Dickson J. (as he then was) enunciated the policy rationale underlying the concept of open justice in Attorney General of Nova Scotia v. McIntyre6 as follows:
The rationale [for a strong public policy in favour of "openness" in respect of judicial acts] has been eloquently expressed by Jeremy Bentham in these terms:
- 'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice'. 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial'. 7
2. Freedom of the Press
Like an accused's right to a fair trial, freedom of the press has long been recognized and protected at common law. Dubin C.J.O. made this point in Dagenais when he observed that "long before the [Charter], it was the common law courts that held freedom of expression, including freedom of the press, to be a fundamental freedom, defended it, and gave it almost a constitutional status".8 Freedom of the press was expressly identified in section 1(f) of the Canadian Bill of Rights9 as a right that has "existed and shall continue to exist" in Canada.
This fundamental freedom was constitutionally enshrined in section 2(b) of the Charter. That paragraph guarantees to all Canadians "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". The Supreme Court of Canada has consistently given the concepts of freedom of expression and freedom of the press a most ample reading. For example, when scrutinizing the constitutional propriety of former section 442 of the Criminal Code in Canadian Newspapers Co. v. Canada (Attorney General),10 Lamer J. (as he then was) stated:
- Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom.11
Referring to freedom of the press, Cory J. asserted that it was essential to the rule of law that "the press . . . be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny".15 He elaborated upon the critical function of the media in enhancing the rule of law as follows:
It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media. 16
Cory J. reiterated his unabashed support for a free press most recently in Nova Scotia Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)17. That case involved a challenge to a rule of the Nova Scotia Legislative Assembly which prohibited television in the Legislative Chamber. Although his was a dissenting view, he again advanced an absolutist interpretation of freedom of the press. He opined that: "It is obvious that prohibition on television cameras is by definition a restriction on freedom of the press . . . if the legislative assembly prohibits any media access to the public debates or excludes one form of the media (television) from the public debates, there has been an infringement of the Charter right to freedom of expression".18
It is true the majority in Nova Scotia Broadcasting Co. found no violation of the Charter for the simple reason that a privilege of the Nova Scotia House of Assembly was not susceptible to constitutional review. However, these cases are not enumerated for the purpose of amassing the win/loss record for media institutions before the Supreme Court. Rather, they demonstrate that media claims of unconstitutionality, when unsuccessful, have been defeated on the section 1 analysis and not because the media has failed to establish a prima facie violation of section 2(b).
Although it is beyond the scope of this Part, it is useful to pause and identify certain of the assumptions which underlie the claims advanced by media organizations under the rubric of freedom of the press. First, those claims are strongly libertarian. It is the position of the media that subject to justification under section 1 of the Charter, no law can purport to regulate or affect how the media gathers news; how they decide what to report and how, whether and when it is disseminated. For the most part, this approach has been endorsed by the Supreme Court. The only point of disagreement between the claimants and the Courts has been the type of limitation that satisfies the reasonableness criteria under section 1.
Second, the Supreme Court has accepted uncritically the assumption that the contemporary media functions as the surrogate for the general public. This agency argument, articulated and applied by Cory J. in Edmonton Journal holds that as most members of the public are unable to attend judicial proceedings, it is essential that the press attend on our behalf and report back to us what transpires in the court room. The questionable basis for this assumption was highlighted very recently by Taylor J.A. in Blackman v. British Columbia Review Board19 as follows:
[T]he media are not required to act responsibly, nor to serve what others may regard as the best interest either of individuals or the public . . . While the media serve an important role in informing the public, they do not "represent" the public, in the sense of having any responsibility to the public, nor have they any obligation properly to inform the public on any particular matter; such public duties or responsibilities would be quite inconsistent with the concept of a "free" press.20
There are, of course, additional problems with this notion which to date the Supreme Court has failed to address, not the least of which is accountability. Indeed, were any mechanism put in place to oversee the press or to make it more accountable to the public, it would be viewed, at least by the media, as an anathema.
The last assumption found in the jurisprudence to be highlighted here is the claim that only when the press is permitted to report on what occurs in a courtroom, will it be possible for society to be satisfied that justice is done. It is premised on the well-known maxim that "not only must justice be done, it must be seen to be done". However, as a retired justice of the Supreme Court of Ontario recently observed: "The maxim is not directly relevant. It does not deal, other than by implication, with the concept of an open court".21 Moreover, the logical extension of this argument reveals its fatal flaw. Most criminal trials which take place in Canada every day are conducted without a representative of the press in attendance. Does this mean that those accused persons did not obtain a fair trial? The claim is an extravagant one, to be sure. Yet it flows logically from the assertion that publication is an essential ingredient of a fair trial.
B. Dagenais and T.S. -- The Constitutionality of Publication Bans
The starting point for any discussion respecting the constitutionality of publication bans must be Dagenais v. Canadian Broadcasting Corporation 22 and its companion appeal, R. v. T.S. 23 Dagenais is the principal authority and came to the Supreme Court with leave from the Ontario Court of Appeal. It concerned an injunction granted by Gotlib J. of the Ontario Court of Justice (General Division) which enjoined C.B.C. from broadcasting the award winning docu-drama, "The Boys of St. Vincent", anywhere in Canada pending completion of the trials for certain Christian Brothers on charges of sexual assault. On appeal, the Ontario Court of Appeal amended Gotlib J.'s order only in one respect. The Court narrowed its geographical ambit, confining its application to Ontario and to a French language television station which broadcast into Ontario from Montreal.24 On further appeal, the Supreme Court (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting) quashed the order of Gotlib J. as amended by the Ontario Court of Appeal.
T.S. concerned a publication ban imposed by a Youth Court Judge at the outset of a trial on a number of sexual assaults which allegedly took place in Martensville, Saskatchewan. As certain other individuals faced similar allegations of criminality, the Youth Court Judge ordered that no details of the young offender proceedings, except for the verdicts, be published until the related trials were over. The Saskatchewan Court of Appeal dismissed C.B.C.'s appeal from this order for want of jurisdiction. 25 The Supreme Court granted leave to C.B.C. to appeal26 Ultimately, however, the Court dismissed this appeal for lack of jurisdiction.
1. The Ruling in Dagenais
Five separate opinions were rendered in Dagenais. Lamer C.J. wrote for the majority. McLachlin J. filed a separate, concurring opinion and like the Chief Justice found the injunction at issue to violate section 2(b) of the Charter in a way which was not reasonable for the purposes of section 1. La Forest J. dissented on jurisdictional issues. However, in obiter dicta, he expressed the view that he was "in agreement with the Chief Justice that the common law rule did not give sufficient protection to freedom of expression. 27 L'Heureux-Dubé J.'s dissent was confined to the lack of jurisdiction to entertain the appeal from the Ontario Court of Appeal. On the substantive issue, she concurred with the reasons of Gonthier J. For his part, Gonthier J. held that while the common law rule impugned by the Appellant offended section 2(b), it was justifiable under section 1. For purposes of this Part, however, only the analysis of Lamer C.J. will be reviewed and assessed.
On this aspect of the appeal, Lamer C.J. began by noting that since the advent of the Charter, publication bans engaged two interests, both of which are constitutionally protected, namely the right of an accused to a fair trial and freedom of expression, including freedom of the press. In view of the explicit recognition of these values in the Charter, Lamer C.J. asserted that it would be wrong to view publication bans "as a clash between two titans".28 The approach advocated by the Chief Justice entails a balancing of these two interests. He stipulated:
A hierarchical approach to rights, which places some over others, must be avoided both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights. 29
When Lamer C.J. applied this balancing approach to the common law rule under attack in Dagenais, he concluded it was weighted too much in favour of suppressing publication. As a consequence, it was in need of amendment for it failed to give sufficient recognition to freedom of expression. The new constitutional common law rules provide as follows:
A publication ban should only be ordered when:
(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweigh the deleterious effects of the free expression of those affected by the ban. 30
As formulated by Lamer C.J. this new rule demands that all balancing be undertaken and accomplished under section 1. This is not a surprise. The Supreme Court had earlier held in Canadian Newspapers Co.31 that any prohibition upon publication amounts to a prima facie infringement of section 2(b). 32 Therefore, since the analysis takes place within section 1, the onus to demonstrate that a proposed publication ban is warranted rests upon "the party seeking to limit freedom of expression".33 The Chief Justice indicated further that the party must prove on a balance of probabilities that: (1) the ban "relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure"; (2) "[it] is as limited (in scope, time, content, etc.) as possible"; and (3) "there is a proportionality between the salutary and deleterious effects of the ban". 34
Lamer C.J. directed that before lower courts may impose a publication ban the judge must first consider "all other options" to suppressing publication in order to satisfy himself or herself that the ban is the most "reasonable and effective alternative available". 35 Understandably, the Chief Justice was pragmatic about the efficacy of contemporary publication bans, particularly in light of the breathtaking advances in contemporary computerized technology. 36 He observed that: "In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult [and] the actual effect of bans on jury impartiality is substantially diminishing". 37 This fact directly affects the important questions of whether or not a ban can ever be effective and, as a consequence, the most reasonable alternative available. It did not figure prominently in Dagenais; however, the Supreme Court must address this issue in the future, having avoided it in R. v. Thomson Newspapers Ltd. 38
Unfortunately, Lamer C.J. did not engage in an extensive consideration or assessment of the kind of alternatives to a publication ban which might be more appropriate. He did, however, offer this brief litany of options:
- Possibilities that readily come to mind . . . include adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection and providing strong judicial direction to the jury.39
Once it is ascertained that a publication ban is the appropriate mechanism, the judge must then assess the best way to limit the ban and restrict it "as much as possible".40 Restrictions of this kind would include time limited bans. For example, it has long been established, at common law, that a ban, imposed by a trial court to preserve the fairness of proceedings before it, may include the subsequent trial of a co-accused on related charges. 41 It was just such time limited publication bans which were at issue in both T.S.42 and Thomson Newspapers Ltd.43 Unfortunately, in light of the disposition of the appeal in T.S. solely on jurisdictional grounds, the constitutional propriety of an order of this kind has yet to be determined definitively.S4
Another common restriction would be to make the ban geographically specific. Typically, such a stipulation would limit the ambit of the ban to the area surrounding where the trial is to occur and from where potential jurors are to be drawn. Dagenais concerned a restriction of this sort. Lamer C.J. ruled that the original ban imposed by Gotlib J. at first instance "was far too broad", since it "prohibited broadcast throughout Canada and even banned reporting on the ban itself".45 Any court which elects to impose a publication ban must carefully craft the geographical limitation to be imposed.
The issue of geographic limitations upon a publication highlights the circularity of the analysis and raises serious questions as to whether an order postponing publication will ever be appropriate. On the one hand, Lamer C.J. states that a publication ban must be resorted to only as a last resort, after a court has reviewed and considered the other available alternatives. At the same time, the Chief Justice has clearly directed that when ordered the ban must be drawn only to affect the area surrounding where the trial itself is to occur. However, in this age when it is extremely difficult to cabin the dissemination of information this way, it may be virtually impossible to ensure that a ban will ever be effective. Simply put, limiting a publication ban geographically may defeat its efficacy.
In Dagenais, only the common law jurisdiction of a judge to order a publication ban on a criminal proceeding was implicated. However, the extensive analysis undertaken by the Court cannot be confined to that context. Lamer C.J. set down the fundamental principles and values which must be balanced whenever limitations may be placed upon the publication of information about what occurs in a criminal courtroom or even access to that courtroom.