Canadian Newspapers Co. v. Canada, (1985) 7 O.A.C. 161 (CA)

• Judge: Howland, C.J.O., Lacourcière and Goodman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 12, 1985
• Jurisdiction: Ontario
• Citations: (1985), 7 O.A.C. 161 (CA)

Cdn. Newspapers Co. v. Can. (1985), 7 O.A.C. 161 (CA)

MLB headnote and full text

Canadian Newspapers Company Limited v. Attorney General for Canada; R. v. D.D.

Indexed As: Canadian Newspapers Co. v. Canada

Ontario Court of Appeal

Howland, C.J.O., Lacourcière and Goodman, JJ.A.

February 12, 1985.

Summary:

An accused was charged with sexual assault involving his wife. The wife applied under s. 442(3) of the Criminal Code for an order that her identity not be published. A newspaper company commenced a civil proceeding to have s. 442(3) declared unconstitutional because it violated the Charter (s. 2(b) freedom of the press, and 11(d) right to public hearing). The company also applied to intervene in the criminal case against the accused to oppose the wife's application on the same grounds as in the civil case.

The Ontario High Court of Justice upheld the validity of s. 442(3) and dismissed the newspaper's civil proceeding. The court also refused to grant the newspaper leave to intervene in the criminal proceedings. The newspaper company appealed both decisions. The Attorney General for Ontario applied to quash both appeals.

The Ontario Court of Appeal granted the Attorney General's application to quash the appeal in the criminal proceeding, because the newspaper company had no right to appeal the order refusing leave to intervene in the criminal proceedings. The Court of Appeal dismissed the Attorney General's application to quash the application in the civil proceeding because the court had jurisdiction to entertain the appeal. The court allowed the newspaper's civil appeal by declaring invalid the portion of s. 442(3) which made the granting of publication bans mandatory.

Civil Rights - Topic 2444

Freedom of the press - Lawful abridgement of - Trial publicity - Criminal Code, s. 442(3) - Section 442(3) provided that in a sexual offence case the judge may, or shall on an application by the complainant or prosecution, ban publication of the complainant's identity - The Ontario Court of Appeal affirmed that s. 442 (3) infringed s. 2(b) of the Charter (freedom of the press) - The Court of Appeal held further that the mandatory portion of s. 442(3) was not reasonably justified under s. 1 of the Charter and was invalid - The court held, however, that the mandatory portion of s. 442(3) could be severed, leaving standing the discretionary portion of s. 442(3), which was reasonably justified and valid under s. 1 of the Charter - See paragraphs 35 to 63.

Civil Rights - Topic 3149

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Public hearing - Abridgement of - Charter, s. 11(d) - The Criminal Code, s. 442(3), allowed the court in certain sexual offence cases to ban publication of the victim's identity - A newspaper complained that s. 442(3) infringed the right to a public hearing as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms - The Ontario Court of Appeal affirmed that an order under s. 442(3) did not infringe s. 11(d) of the Charter - See paragraphs 64, 65.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Ban on publication of court proceedings (Criminal Code, s. 442(3)) - Section 442(3) provided that in a sexual offence case the judge may, or shall on an application by the complainant or prosecution, ban publication of the complainant's identity - The Ontario Court of Appeal affirmed that s. 442(3) infringed s. 2(b) of the Charter (freedom of the press) - The Court of Appeal held further that the mandatory portion of s. 442(3) was not reasonably justified under s. 1 of the Charter and was invalid - The court held, however, that the mandatory portion of s. 442(3) could be severed, leaving standing the discretionary portion of s. 442(3), which was reasonably justified and valid under s. 1 of the Charter - See paragraphs 35 to 63.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Constitutional matters - The Ontario Court of Appeal discussed whether any relief can be obtained pursuant to s. 24(1) of the Charter or s. 52(1) of the Constitution Act, 1982, where the constitutionality of legislation is involved - See paragraphs 20 to 23.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - Originating notice A court ordered a ban on the publication of a complainant's identity under s. 442(3) of the Criminal Code - A newspaper applied by way of originating notice to challenge the validity of s. 442(3) in light of the Charter - The Ontario High Court considered the application and declared s. 442(3) to be valid - On an appeal by the newspaper the Ontario Court of Appeal discussed the propriety of starting a civil proceeding in this manner to challenge the constitutionality of sections of the Code - See paragraphs 24 to 34.

Constitutional Law - Topic 2761

Determination of validity of statutes - Severability - General - The Ontario Court of Appeal referred to a test for severability of an unconstitutional portion of a section of a statute, leaving intact the remainder of the section - The court utilized the severability rule in declaring invalid a part of a section of the Criminal Code (s. 442(3), bans on publication), that offended the Charter of Rights and Freedoms (s. 2(b) freedom of the press) while leaving the remaining portion of the section standing - See paragraph 62.

Courts - Topic 7445

Provincial courts - Ontario Court of Appeal - Jurisdiction - Inherent jurisdiction - Criminal matters - The Ontario Court of Appeal stated that the right to appeal in a criminal proceeding respecting an indictable offence must be found in the Criminal Code or other federal legislation and that there is no inherent jurisdiction to entertain an appeal in criminal cases - See paragraph 19.

Courts - Topic 7447

Provincial courts - Ontario Court of Appeal - Jurisdiction - Constitutional issues - Criminal matters - A newspaper company applied to intervene in a sexual assault case to challenge the constitutionality of s. 442(3) of the Criminal Code, which prohibited publication of certain matters pertaining to the case - The trial judge refused to grant leave to intervene - The newspaper company appealed - The Ontario Court of Appeal, in dismissing the appeal, held that there was no right of appeal to the Court of Appeal in the criminal proceeding either under the Criminal Code, under s. 24(1) of the Charter or s. 52(1) of the Constitution Act, 1982 - See paragraphs 15 to 23.

Courts - Topic 7447

Provincial courts - Ontario Court of Appeal - Jurisdiction - Constitutional issues - Civil matters - In a sexual assault proceeding the complainant sought an order under s. 442 (3) of the Criminal Code that her identity not be published - A newspaper commenced a civil action by way of originating notice to have s. 442(3) declared unconstitutional - The Ontario High Court declared that the section was constitutional - The newspaper sought leave to appeal - The Ontario Court of Appeal held that it had jurisdiction to hear an appeal from the order of the High Court under s. 28(1)(a) of the Judicature Act - See paragraphs 24 to 34.

Criminal Law - Topic 4490

Trials - Publicity - Restrictions - Criminal Code, s. 442(3) - Section 442(3) provided that in a sexual assault case the judge may, or shall on the application of the complainant or prosecution, ban publication of the complainant's identity - The Ontario Court of Appeal declared that s. 442(3) violated the freedom of the press as guaranteed by s. 2(b) of the Charter - The court held that the mandatory portion of s. 442(3) could not be justified under s. 1 of the Charter and was therefore invalid - The court held, however, that the mandatory portion of the section could be severed, leaving standing the discretionary portion of s. 442 (3), which was reasonably justified under s. 1 - See paragraphs 35 to 63.

Cases Noticed:

Re Forget and R. (1982), 65 C.C.C.(2d) 373, refd to. [para. 19].

R. v. Morgentaler, Smoling and Scott (1985), 6 O.A.C. 53, refd to. [para. 19].

Welch v. R., [1950] S.C.R. 412, refd to. [para. 19].

R. v. Bird and Peebles (1984), 27 Man.R.(2d) 241; 12 C.C.C.(3d) 523, refd to. [para. 22].

Re Oil, Chemical & Atomic Workers International Union Local 9-14 and Polymer Corporation Ltd., [1966] 1 O.R. 774, refd to. [para. 27].

Re Toronto General Trusts Corporation and McConkey (1917), 41 O.L.R. 314, refd to. [para. 27].

R. v. Bales et al., Ex parte Meaford General Hospital, [1971] 2 O.R. 305, refd to. [para. 30].

Skapinker v. Law Society of Upper Canada (1982), 38 O.R.(2d) 116 (Ont. H.C.), revd. 40 O.R.(2d) 481 (Ont. C.A.), revd. [1984] 1 S.C.R. 357; 3 0.A.C. 321; 53 N.R. 169 (S.C.C.), refd to. [para. 31].

Federal Republic of Germany v. Rauca (1982), 38 O.R.(2d) 705 (Ont. H.C.), affd. (1983), 41 O.R.(2d) 225 (Ont. C.A.), refd to. [para. 31].

Reference re Constitutional Validity of Section 12 of the Juvenile Delinquents Act (1982), 38 O.R.(2d) 748 (H.C.), affd. sub nom. Re Southam Inc. and R. (No. 1) (1983), 41 O.R.(2d) 113 (C.A.), refd to. [para. 31].

Re Southam Inc. and R. (No. 1) (1983), 41 O.R.(2d) 113 (C.A.), affirming reference reported sub. nom. Reference re Constitutional Validity of Section 12 of the Juvenile Delinquents Act (1982), 38 O.R.(2d) 748 (H.C.) refd to. [para. 31].

F.P. Publications (Western) Limited, Re; R. v. Kerr (1979), 2 Man.R.(2d) 1; 108 D.L.R.(3d) 153, refd to. [para. 37].

MacIntyre v. Attorney-General of Nova Scotia et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 40].

Re R. and Several Unnamed Persons (1983), 44 O.R.(2d) 81, refd to. [para. 40].

Richmond Newspapers Inc. v. Virginia, 448 U.S. 554 (1980), refd to. [para. 58].

Globe Newspaper Company v. Superior Court for the County of Norfolk, 102 S.Ct. 2613 (1982), refd to. [para. 58].

Cox Broadcasting Corporation v. Cohn, 955 S.Ct. 1029 (1979), refd to. [para. 59].

State of Wisconsin v. Evjue, 13 A.L.R.(2d) 1201 (1948), refd to. [para. 59].

Smith v. Daily Mail Publishing Co., 99 S.Ct. 2667 (1979), refd to. [para. 59].

Global Communications Ltd. v. State of California and Attorney-General for Canada (1984), 2 0.A.C. 21; 44 O.R.(2d) 609, refd to. [para. 60].

Attorney General for Alberta v. Attorney General for Canada, [1947] A.C. 503, refd to. [para. 62].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 2(b) [para. 36]; sect. 11(d) [para. 64]; sect. 24(1) [para. 20].

Constitution Act, 1982, sect. 52(1) [para. 20].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 442(3) [para. 1 et seq.].

Criminal Justice Act 1954 (New Zealand), sect. 45C(1), sect. 45C(2), sect. 46 [para. 52].

Criminal Law (Sexual Offences) Act 1978 (Queensland), No. 28 of 1978 [para. 48].

Evidence Act Amendment Act 1976 (South Australia), sect. 71a(4) [para. 51].

Evidence Act 1976 (Tasmania), sect. 103AB(1) [para. 50].

Evidence Act (No. 3) 1976 (Western Australia), sect. 36C [para. 49].

Judicature Act, R.S.O. 1980, c. 223, sect. 18.2 [para. 27].

Rules of Court (Ont.), Rules of Practice, rule 11 [para. 26].

Sexual Offences (Amendment) Act (United Kingdom) 1976, c. 82, sect. 4 [para. 47].

United States Constitution, First Amendment [para. 55]; Fourteenth Amendment [para. 56].

Authors and Works Noticed:

Strayer, Barry L., The Canadian Constitution and the Courts (2nd Ed.), pp. 262 to 264 [para. 62].

Counsel:

Sheila R. Block and James C. Tory, for the appellant (Canadian Newspapers);

J.E. Thompson, for the Attorney General for Canada;

J. Polika, Q.C., for the Attorney General for Ontario.

This appeal was heard on October 16, and 17, 1984, before Howland, C.J.O., Lacourcière and Goodman, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Howland, C.J.O., and released on February 12, 1985: