F.P. Publications (Western) Ltd., Re; R. v. Kerr, (1979) 2 Man.R.(2d) 1 (CA)

• Judge: Freedman, C.J.M., Monnin, Hall, Matas and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 26, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 2 Man.R.(2d) 1 (CA)

FP Publications Ltd., Re (1979), 2 Man.R.(2d) 1 (CA)

MLB headnote and full text

Re F.P. Publications (Western) Limited; R. v. Kerr

Indexed As: F.P. Publications (Western) Ltd., Re; R. v. Kerr

Manitoba Court of Appeal

Freedman, C.J.M., Monnin, Hall, Matas and Huband, JJ.A.

October 26, 1979.

Summary:

This case arose out of a charge against the accused with keeping a common bawdy house. The Crown called previous customers of the accused to testify about services which they received in the accused's massage parlour. The trial was open to the public and a newspaper, which had reporters in attendance, published the names of the witnesses. As a result, additional previous customers became reluctant to testify. When the newspaper refused to stop publishing the names of the witnesses, the Crown applied for and obtained an order from the trial judge under s. 442(1) of the Criminal Code excluding the newspaper's reporters from the hearing during the testimony of the customer witnesses on the ground that publication of names would interfere with the administration of justice.

The Manitoba Court of Queen's Bench in a judgment reported 1 Man.R.(2d) 175 dismissed the newspaper's appeal and held that the trial judge had discretion to make the order and exercised his discretion properly. The newspaper appealed.

The Manitoba Court of Appeal allowed the appeal and quashed the order excluding the reporters. The Court of Appeal held that the trial judge improperly used s. 442(1) to prevent conduct that was not wrong and that the publication of the names of witnesses did not interfere with the administration of justice.

Monnin, J.A., dissenting, would have dismissed the appeal for the reasons expressed by the Court of Queen's Bench - see paragraph 11.

Criminal Law - Topic 4478

Procedure - Trial - Exclusion of members of public - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 442(1) - In a prosecution against an accused for keeping a common bawdy house the Crown called previous customers of the accused to testify about services which they received in the accused's massage parlour - The trial was open to the public and a newspaper, which had reporters in attendance, published the names of the witnesses - As a result, additional previous customers became reluctant to testify - When the newspaper refused to stop publishing the names of the witnesses, the Crown applied for and obtained an order under s. 442(1) from the trial judge excluding the newspaper's reporters from the hearing during the testimony of the customer witnesses on the ground that publication of names would interfere with the administration of justice - The Manitoba Court of Appeal allowed the newspaper's appeal and quashed the order excluding the reporters - The Court of Appeal held that the trial judge improperly used s. 442(1) to prevent conduct that was not wrong and that the publication of the names of witnesses did not interfere with the administration of justice.

Cases Noticed:

Re Liverpool Taxi Owners' Association, [1972] 2 All E.R. 589, appld. [para. 13].

Scott v. Scott, [1913] A.C. 417, appld. [paras. 14, 29].

R. v. Brown, [1970] 3 C.C.C. 30, appld. [para. 20].

Daubney v. Cooper, 10 B. & C. 237; 109 E.R. 438, refd to. [para. 21].

Baker v. Borough of Bethnal Green, [1945] 1 All E.R. 135, refd to. [para. 21].

McPherson v. McPherson, [1936] 1 W.W.R. 33, appld. [para. 38].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(f) [para. 40].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 442(1) [paras. 3, 19]; sect. 442(3), sect. 467 [para. 16].

Authors and Works Noticed:

Holmes, Expansion of the Common Law (1904), p. 32 [para. 21].

McWilliams On Evidence, p. 7 [para. 14].

Tremeear's Annotated Criminal Code (6th Ed.), p. 691 [para. 20].

Counsel:

K.B. Foster, for the applicant/appellant;

W.W. Morton, Q.C., for the respondent/respondent.

This case was heard on October 26, 1979, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MONNIN, HALL, MATAS and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On October 26, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FREEDMAN, C.J.M. - see paragraphs 1 to 10;

MONNIN, J.A., dissenting - see paragraph 11;

MATAS, J.A. - see paragraphs 12 to 25;

HUBAND, J.A. - see paragraphs 26 to 40.

HALL, J.A., concurred with FREEDMAN, C.J.M.