Canadian Broadcasting Corp. v. Dagenais et al., (1994) 76 O.A.C. 81 (SCC)

JudgeLamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
CourtSupreme Court of Canada
Case DateDecember 08, 1994
JurisdictionCanada (Federal)
Citations(1994), 76 O.A.C. 81 (SCC)

CBC v. Dagenais (1994), 76 O.A.C. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

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 (intervenors) and The Attorney General for the Province of Ontario (intervenor)

(23403)

Indexed As: Canadian Broadcasting Corp. v. Dagenais et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

December 8, 1994.

Summary:

Four Christian Brothers were charged with offences involving physical and sexual abuse of young boys in their care. The C.B.C. proposed to broadcast a four hour mini-series entitled "The Boys of St. Vincent", which paralleled the present incident. The mini-series disclaimed that the story was fictional.

A Motions Court judge enjoined the broadcasting of the mini-series anywhere in Canada until the trial of the four Brothers was concluded. The C.B.C. appealed.

The Ontario Court of Appeal, in a judg­ment reported 59 O.A.C. 310, allowed the appeal in part. Broadcasting the mini-series before trial would jeopardize the Brothers' right to fair trials and the judge, accordingly, did not err in enjoining broadcast in Ontario and for a Montreal station whose signal reached the area where the trials were to be held. However, the court struck that portion of the order enjoining broadcast elsewhere in Canada. The C.B.C. appealed.

The Supreme Court of Canada, La Forest, L'Heureux-Dubé and Gonthier, JJ., dissent­ing, allowed the appeal and set aside the publication ban. The court laid out general guidelines for the granting and review of publication bans, from the perspective of the accused, Crown and interested third parties (e.g., media).

Administrative Law - Topic 5007

Judicial review - Certiorari - When avail­able - Criminal matters - [See eighth Civil Rights - Topic 2486 ].

Civil Rights - Topic 2444

Freedom of the press - Lawful abridge­ment of - Trial publicity - [See first Civil Rights - Topic 3157 ].

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that the "pre-Charter common law rule gov­erning publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. ... the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that auto­matically favoured the rights protected by s. 11(d) over those protected by s. 2(b). 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 right of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights." - See paragraph 72.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that to challenge the issuance of publication bans "the extraordinary remedy of certiorari should be used for bans ordered by Provincial Court judges and s. 40 of the Supreme Court Act should be used for bans ordered by Superior Court judges." - See paragraph 17.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "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." - The court stated that one consideration in determin­ing whether the publication ban was nec­essary was whether there existed reason­able alternative measures, such as "ad­journing trials, changing venues, se­questering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury" - See paragraphs 73, 78 to 79.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that reasonable alternative measures were to be considered in determining whether a pub­lication ban was necessary to protect the constitutional right to a fair trial - The court stated that "if the actual beneficial effects of publication bans are limited, then it might well be argued in some cases that the negative impact the ban has on free­dom of expression outweighs its useful effects. The analysis that is required at this stage of the application of the common law rule is very similar to the third part of the second branch of the analysis under s. 1 of the Charter, as set out by this court in R. v. Oakes ..." - The court further stated that "I would, therefore, rephrase the third part of the Oakes test as follows: there must be proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures ." - See paragraphs 86 to 95.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "at the motion for the ban, the judge should give the media standing (if sought) according to the rules of criminal pro­cedure and the established common law principles with regard to standing. The judge should, where possible, review the publication at issue. The judge must con­sider all other options besides the ban and must find that there is no reasonable and effective alternative available. The judge must consider all possible ways to limit the ban and must limit the ban as much as possible; and 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." - See paragraph 98.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "the party seeking to justify the limitation of a right (in the case of a publication ban, the party seeking to limit freedom of ex­pression) bears the burden of justifying the limitation. 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 is seeking to use the power of the state to achieve this objective. A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society. Therefore, the party seeking the ban bears the burden of proving 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 (in scope, time, content, etc.) as possible, and there is a proportionality between the salutary and deleterious effects of the ban. At the same time, 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." - See paragraph 98.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "to get a publication ban issued under a judge's common law or legislated dis­cretionary authority, the Crown and/or the accused should make a motion ... before the trial judge (if one has been appointed) or before a judge in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provision such as ss. 468, 469, 553, 555, 798 of the Criminal Code and s. 5 of the Young Offenders Act). If the level of the court has not been established and cannot be established definitively by refer­ence to statutory provisions, then the motion should be made before a Superior Court judge (i.e, it should be made before the highest court that could hear the case, in order to avoid later having a Superior Court judge bound by an order made by a Provincial Court judge). - To seek or challenge a ban on appeal, the Crown and the accused should follow the regular avenues of appeal available to them through the Criminal Code (Parts XXI and XXVI)" - See paragraph 52.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "if a publication ban order is made by a Provincial Court judge, the media can apply to the Superior Court for certiorari and argue that the ban is not authorized by the common law rule. If this is the case, the ban will then constitute an error of law on the face of the record. ... it is open to this court to enlarge the remedial powers of certiorari and I do so now for limited circumstances . ... Therefore, the remedial powers of certiorari should be expanded to include the remedies that are available through s. 24(1) of the Charter. ... I am simply saying that when a judge exceeds his authority under the common law rule governing publication bans, then the reme­dies available through a certiorari chal­lenge to the judge's action should be the same as the remedies that would be avail­able under the Charter." - See paragraphs 38 to 42.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada discussed the procedure used when an attack was made to a publication ban ordered by a judge other than the trial judge - The court stated that "neither the accused nor the Crown could ordinarily attack the initial order, either at trial or through the regular routes of appeal, without running afoul of the 'rule against collateral attack' ... This rule states that a court order may not be attacked 'in proceedings other than those whose specific object is the reversal, variation, or nullification of that order or judgment' ... the rule against collateral attacks is 'not intended to immunize court orders from review' ... in situations where the purposes underlying the rule are not engaged, some flexibility in the rule's application should be recognized. ... it is similarly appropriate to recognize some flexibility in the rule against collateral attacks when what is at issue is a publi­cation ban." - See paragraphs 53 to 54.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "if the media wish to oppose a motion for a ban brought in Provincial Court, they should attend at the hearing on the motion, argue to be given status, and if given status, participate in the motion. To chal­lenge a ban once ordered, the media should make an application for certiorari to a Superior Court judge. To challenge a denial of certiorari, the media should appeal the Superior Court judge's decision to the Court of Appeal under s. 784(1) of the Criminal Code. To challenge a dis­missal of an appeal to the Court of Appeal, the media should make an application for leave to appeal to the Supreme Court of Canada under s. 40 of the Supreme Court Act. If the media wish to oppose a motion for a ban brought in a provincial Superior Court, then they should attend at the hear­ing on the motion, argue to be given status, and, if given status, participate in the motion - To challenge a ban once ordered, the media should make an appli­cation for leave to appeal to the Supreme Court of Canada under s. 40 of the Supreme Court Act." - See paragraphs 56 to 57.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "in a jury trial, a motion for a publication ban must be heard in the absence of the jury. ... The judge hearing the application thus has the discretion to direct that third parties (e.g., the media) be given notice. Exactly who is to be given notice and how notice is to be given should remain in the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law. ... motions for publication bans made in the context of criminal proceedings are criminal in nature, the solution to these practical problems [which members of media afforded standing] is to be found in the provincial rules of criminal procedure and the relevant case law. The judge hear­ing the application thus has the discretion to grant standing to interested third parties (e.g., the media) and this standing can include any or all of the activities listed above." - See paragraphs 48 to 50.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - The Supreme Court of Canada stated that "challenges to publication bans may be framed in several different ways, depend­ing on the nature of the objection to the ban. If legislation requires a judge to order a publication ban, then any objection to that ban should be framed as a Charter challenge to the legislation itself. Simi­larly, if a common law rule requires a judge to order a publication ban or au­thorizes a judge to order a publication ban that infringes Charter rights in a manner not reasonable and demonstrably justified in a free and democratic society, then any objection to that ban should be framed as a Charter challenge to the common law rule." - Respecting a common law rule giving judges a discretion to order publi­cation bans, the court stated that "a com­mon law rule conferring discretion cannot confer the power to infringe the Charter. Discretion must be exercised within the boundaries set by the principles of the Charter; exceeding these boundaries results in a reversible error of law." - See para­graphs 67 to 68.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Right to fair trial - Four Christian Brothers were charged with physically and sexually abusing young boys - The C.B.C. proposed to broadcast a mini-series entitled "The Boys of St. Vincent", which paralleled the present incident, but disclaimed that the story was fictional - A Motions Court judge exer­cised a discretion to enjoin broadcasting the mini-series anywhere in Canada until the trial of the four Brothers was con­cluded - The Ontario Court of Appeal limited the ban to broadcast in Ontario and for a Montreal station whose signal reached the area where the trials were to be held - The Supreme Court of Canada held that the publication ban could not be supported under the common law based on the general guidelines laid out by the court - The court stated that reasonable alterna­tive methods of ensuring a fair trial were not considered.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Right to fair trial - The Ontario Court of Appeal stated that when a person's right to freedom of ex­pression conflicted with an accused's right to a fair trial, the accused's right to a fair trial was paramount - The Supreme Court of Canada stated that the "pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. ... the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favoured the rights protected by s. 11(d) over those protected by s. 2(b). 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 right of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights." - See paragraph 72.

Civil Rights - Topic 8364

Canadian Charter of Rights and Freedoms - Denial of rights - Burden of proof - [See sixth Civil Rights - Topic 2486 ].

Civil Rights - Topic 8380.15

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Injunc­tions - [See first Civil Rights - Topic 3157 ].

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See first Civil Rights - Topic 2486 ].

Courts - Topic 3033

Supreme Court of Canada - Jurisdiction - "Final judgment ... of the highest court of final resort" - What constitutes - Section 674 of the Criminal Code provided that "no proceedings other than those au­thorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences" - There­fore, the media had no direct appeal from a publication ban - The Supreme Court of Canada refused to adopt a literal reading of s. 674 to preclude resort to s. 40 of the Supreme Court Act - Section 674 did not limit the court's jurisdiction to grant leave to appeal under s. 40(1) - The court stated that "a publication ban order can be seen as a final or other judgment of the highest court of final resort in a province or a judge thereof in which judgment can be had in the particular case. Therefore, the Supreme Court of Canada may grant leave to appeal under s. 40 of the Supreme Court Act" (i.e., direct appeal to Supreme Court of Canada, bypassing the provincial Court of Appeal) - See paragraphs 20 to 29.

Criminal Law - Topic 4492

Procedure - Trial - Restrictions on publi­cations affecting fairness of trial - [See all Civil Rights - Topic 2486 and first Civil Rights - Topic 3157 ].

Criminal Law - Topic 4825

Appeals - Indictable offences - Right of appeal - From an interlocutory decision - Collateral attack - [See ninth Civil Rights - Topic 2486 ].

Criminal Law - Topic 7124

Extraordinary remedies - Certiorari - Powers of court on certiorari application - [See eighth Civil Rights - Topic 2486 ].

Cases Noticed:

Steiner v. Toronto Star Ltd., [1956] O.R. 14 (H.C.), refd to. [para. 12].

R. v. Begley (1982), 38 O.R.(2d) 549 (H.C.), refd to. [para. 12].

Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; 63 N.R. 161; 23 D.L.R.(4th) 122, refd to. [para. 12].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161; 21 C.R.R. 76, refd to. [para. 16].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391; 49 C.C.C.(3d) 453; 70 C.R.(3d) 383, refd to. [para. 16].

R. v. Hill (No. 2), [1977] 1 S.C.R. 827; 7 N.R. 373; 62 D.L.R.(3d) 193, refd to. [para. 22].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, refd to. [para. 23].

R. v. Barnes, [1991] 1 S.C.R. 449; 121 N.R. 267, refd to. [para. 23].

R. v. Vaillancourt (1990), 76 C.C.C.(3d) 384 (S.C.C.), refd to. [para. 24].

R. v. Swietlinski, [1994] 3 S.C.R. 481; 172 N.R. 321, refd to. [para. 24].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 35].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 45].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 53].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321, refd to. [para. 54].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 68].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125; 68 C.C.C.(3d) 289, refd to. [para. 69].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 70].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 70].

Ford v. Quebec (Attorney General) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 70].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 70].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193; [1991] 2 W.W.R. 1; 61 C.C.C.(3d) 1; 3 C.R.R.(2d) 193, refd to. [para. 70].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 70].

Canadian Newspapers Co. v. Canada (At­torney General), [1988] 2 S.C.R. 122; 87 N.R. 163; 32 O.A.C. 259, refd to. [para. 71].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; [1990] 1 W.W.R. 577; 64 D.L.R.(4th) 577; 71 Alta. L.R.(2d) 273; 45 C.R.R. 1, refd to. [para. 71].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 70 C.C.C.(3d) 1; 88 D.L.R.(4th) 110, refd to. [para. 75].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 76].

Telegraph Plc. (ex parte), Re, [1993] 2 All E.R. 971 (C.A.), refd to. [para. 87].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385; 28 B.C.L.R.(2d) 145, refd to. [para. 87].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 87].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 92].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [para. 93].

R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; 119 N.R. 353; 46 O.A.C. 13; 73 Man.R.(2d) 1; 3 W.A.C. 1; [1990] 6 W.W.R. 289; 79 C.R.(3d) 332; 59 C.C.C.(3d) 161, refd to. [para. 94].

R. v. Nguyen - see R. v. Hess; R. v. Nguyen.

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481, refd to. [para. 108].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93; 31 B.C.L.R.(2d) 273, refd to. [para. 108].

R. v. T.S. (1994), 175 N.R. 135 (S.C.C.), refd to. [para. 137].

Reference Re Alberta Statutes, [1938] S.C.R. 100, refd to. [para. 147].

R. v. Boucher, [1951] S.C.R. 265, refd to. [para. 147].

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [para. 147].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 148].

R. v. T.L.C., [1994] 2 S.C.R. 1012; 175 N.R. 151, refd to. [para. 150].

R. v. T.S. (1993), 109 Sask.R. 96; 42 W.A.C. 96 (C.A.), refd to. [para. 154].

R. v. Johnson et al. (1994), 174 N.R. 321 (S.C.C.), refd to. [para. 156].

Ste-Marie v. Barreau du Quebec, [1977] 2 S.C.R. 414; 11 N.R. 59, refd to. [para. 156].

R. v. Morgentaler (1984), 6 O.A.C. 53; 41 C.R.(3d) 262, refd to. [para. 161].

R. v. Cranston (1983), 60 N.S.R.(2d) 269; 128 A.P.R. 269 (C.A.), refd to. [para. 161].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 171].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 175].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, refd to. [para. 178].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; 61 D.L.R.(4th) 577; [1989] 6 W.W.R. 481; 39 B.C.L.R.(2d) 294; 50 C.C.L.T. 101, refd to. [para. 178].

Nebraska Press Association v. Stewart (1976), 427 U.S. 539, refd to. [para. 196].

R. v. Keegstra (1992), 127 A.R. 232 (C.A.), refd to. [para. 196].

Global Communications Ltd. v. State of California and Ontario (Attorney General) (1984), 2 O.A.C. 21; 10 C.C.C.(3d) 97 (C.A.), refd to. [para. 196].

Attorney General v. Times Newspaper Ltd., [1974] A.C. 273, refd to. [para. 196].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 15 O.R.(3d) 324 (C.A.), refd to. [para. 207].

Keegstra v. Canadian Broadcasting Corp., [1987] 1 W.W.R. 719; 77 A.R. 249 (C.A.), refd to. [para. 226].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 73]; sect. 2(b) [para. 70]; sect. 7 [para. 75]; sect. 11(d) [para. 70]; sect. 24(1) [para. 44]; sect. 32 [para. 105].

Constitution Act, 1982, sect. 52(1) [para. 176].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 6 [para. 33].

Criminal Code, R.S.C. 1985, c. C-46, sect. 9, sect. 10 [para. 32]; sect. 468, sect. 469 [para. 16]; sect. 517, sect. 539 [para. 204]; sect. 553, sect. 555 [para. 16]; sect. 674 [para. 19]; sect. 784(1) [para. 39]; sect. 798 [para. 16].

Criminal Proceedings Rules (Ont.), SI/92-99, rule 6.04(1) [para. 49].

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F-31, sect. 14(1)(f) [para. 204].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 40(1) [para. 27]; sect. 40(3) [para. 26].

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 5 [para. 16].

Authors and Works Noticed:

Anisman, Philip, and Linden, Allen M., The Media, the Courts and the Charter (1986), generally [para. 80].

Bailey, S.H., The Contempt of Court Act 1981 (1982), 45 Mod. L. Rev. 301, p. 303 [para. 205].

Canada, Law Reform Commission, Work­ing Paper No. 56, Public and Media Access to the Criminal Process (1987), generally [para. 80].

Ergec, Rusesn, La liberté d'expression, l'autorité et l'impartialité du pouvoir judiciare, [1993] Rev. trim. dr. h. 171, pp. 178, 179 [para. 205].

Harris, D.J., Decisions of the European Convention on Human Rights during 1979 (1979), 50 Brit. Y.B. Int. L. 257, p. 259 [para. 205].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), vol. 2, p. 34-16 [para. 107].

Jamal, Mahmud, and Glenn, H. Patrick, Selective Legality: The Common Law Jurisdictional Appeal (1994), 73 Can. Bar Rev. 142, generally [para. 151].

Lepofsky, M. David, Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (1985), generally [para. 80].

Linden, Allen M., Limitations on Media Coverage of Legal Proceedings: A Critique and Some Proposals for Reform, in The Media, the Courts and the Charter (1986)(Philip Anisman and Allen M. Linden, eds.), generally [para. 80].

Mann, F.A., Contempt of Court in the House of Lords and the European Court of Human Rights (1979), 95 L.Q.R. 348, pp. 352, 353 [para. 205].

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (1993), p. vii [para. 150].

Counsel:

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 intervenor, the Attorney General for Ontario;

Julius H. Grey, for the intervenor, John Newton Smith;

Richard G. Dearden and Randall J. Hofley, for the intervenor, the Canadian As­sociation of Journalists.

Solicitors of Record:

McCarthy Tétrault, Toronto, Ontario, for the appellants;

Fedorsen, Shoniker, Toronto, Ontario, for the respondents;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Grey Casgrain, Montreal, Quebec, for the intervenor, John Newton Smith;

Gowling, Strathy & Henderson, Ottawa, Ontario, for the intervenor, the Canadian Association of Journalists.

This appeal was heard before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada on January 24, 1994.

The decision of the Supreme Court was delivered on December 8, 1994, when the following opinions were filed in both official languages:

Lamer, C.J.C. (Sopinka, Cory, Iacobucci, and Major, JJ., concurring) - see para­graphs 1 to 101;

McLachlin, J. - see paragraphs 102 to 129;

La Forest, J., dissenting - see paragraphs 130 to 136;

L'Heureux-Dubé, J., dissenting - see paragraphs 137 to 187;

Gonthier, J., dissenting - see paragraphs 188 to 230.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT