Free Expression and the Courts
| Author | Robert Martin |
| Profession | Faculty of Law The University of Western Ontario |
| Pages | 77-141 |
What is the law on reporting about the legal system and about access
to the courts? Detailed rules govern what may and may not be report-
ed concerning proceedings that are pending or actually before the
courts. There are also difficulties that can arise for journalists who get
caught up with the legal system.
A. The Openness Principle
In our system the courts are public institutions. The courtroom is a
public place, and what takes place there is public business. Thus, what
happens in the courtroom should, as a matter of principle, be open to
the public and, more to the point, to reporters and to the media. This
principle of the openness and the public nature of the judicial system
had been recognized even prior to the adoption of the Charter.
It does not seem that all Canadian judges understand this principle.
In the summer of 2002 an oppresive cloak of secrecy shielded a trial
held in St. Thomas, Ontario from public view — this proceeding
involved a matter which had attracted considerable attention and been
widely reported in the local media. The trial judge, Eleanor Schnall, did
not close the court to the public or to reporters, but did impose sweep-
ing, and questionable, restrictions on what might be reported about it.
The judge claimed that these orders were intended to protect the chil-
77
Free Expression and
the Courts
chapter 3
dren whose family was at the centre of the hearing, from public scruti-
ny. The banning orders made by the judge were so broad as to effective-
ly prohibit reporting about the proceeding. One commentator suggested
that, initially, the proceeding was conducted “in virtual secrecy.”1
Another judge did lift these bans, but not before the trial judge her-
self gave an interview to a television reporter in which she gave out infor-
mation in a fashion which was probably a breach of her own orders.2
It should be emphasised that the ban imposed by Justice Schnall
went far beyond those found in section 45(8) of the Ontario Child Pro-
tection Act.3Interestingly enough, while the existing prohibitions in the
Act seek to protect the identities of the child and the parents involved
in a hearing, the parents whose conduct had precipitated the St.
Thomas hearing were opposed to the ban made by Justice Schnall.4
The clearest source for the openness principle is a 1981 decision of
the Supreme Court of Canada, Nova Scotia (A.G.) v. MacIntyre.5Linden
MacIntyre, a CBC reporter, went to a court-house in Halifax and asked
both to inspect some search warrants and to be allowed to see whatev-
er had been discovered as a result of the search. A justice of the peace
was not sympathetic to the request and told MacIntyre it was impossi-
ble. MacIntyre disagreed and litigation ensued. The litigation was ini-
tially between MacIntyre and the attorney general of Nova Scotia, but
that official was joined by the attorney general of Canada and the attor-
neys general of six other provinces, all of whom were opposed to allow-
ing MacIntyre to see this material.
In his judgment, Mr. Justice Brian Dickson [as he then was] laid
down some important principles, although perhaps it is more accurate
to say affirmed them, because it was his view that they had always been
part of the Canadian legal system. He said that the basic principle gov-
erning judicial proceedings was their openness. Openness was to be the
rule; covertness the exception. He said further that what must be sought
was maximum public accessibility: “At every stage the rule should be
one of public accessibility and concomitant judicial accountability.”
78 Media Law
1 Christie Blatchford, “A Thin Line between Abuse and Discipline,” National Post,
11 July 2002. See also, Oliver Moore, “Ontario Judge Lifts Veil on Spanking
Trial,” The Globe and Mail, 29 June 2002.
2 Christie Blatchford, “Judge Who Demands Silence Speaks Out,” National Post, 2
July 2002.
3 R.S.O. 1990, c. C.11.
4 Christie Blatchford, “Parents Urge Media Ban Be Lifted,” National Post, 12 June
2002.
In other decisions Canadian courts have emphasised the importance
of the openness principle, stating, for example, that the openness of the
courts is “… one of the hallmarks of a democratic society”6and that the
principle is “the very soul of justice”7and, to underscore the point,
“Courts are and have, since time immemorial, been public arenas.”8
In recent years, Canadian judges have not always understood the
openness principle as clearly as Justice Dickson did. Since the 1980s,
Canadian courts, led by the Supreme Court of Canada, have gradually
made sexual assault trials an exception to the openness principle. In
this respect the courts were largely following the lead of Parliament. In
1983 Parliament, ostensibly to address the “under-reporting” of sexual
offences, made substantial amendments to the Criminal Code provi-
sions dealing with sexual assault.9These legislative changes limited the
public nature of sexual assault proceedings. Section 486(3) of the
Criminal Code gave the judge presiding over a sexual assault prosecu-
tion the authority to prohibit the publication of any information that
could disclose the identity of the complainant. The constitutionality of
this provision was upheld in Canadian Newspapers Co. v. A.G. Canada.10
Section 486(1) of the Criminal Code authorizes a judge to exclude the
public from all or part of a sexual assault trial. In one instance a trial
judge excluded the public and the media from the part of a sexual
assault proceeding which involved the sentencing of an accused person
who had pleaded guilty. The Supreme Court of Canada upheld both the
judge’s order and the constitutionality of section 486(1).11 The trial
judge offered this explanation for his order:
I say some of the facts I knew beforehand or some I had some idea. I
don’t know exactly what the facts were thus the order.12
In an extreme manifestation of this tendency, a judge conducting a
sexual assault trial in Ottawa at the end of 2000 made an order pro-
Free Expression and the Courts 79
6 Re Southam Inc. and the Queen (No. 1) (1983) 41 O.R. (2d) 113 (C.A.).
7 Canadian Broadcasting Corporation v. A.G. New Brunswick, [1996] 3 S.C.R. 480 at
495.
8 Ibid. at 499.
9 See Robert Martin, “Bill C-49: A Victory for Interest Group Politics,” (1993) 42
University of New Brunswick Law Journal 357.
10 [1988] 2 S.C.R. 122. A judge may not rescind a publication ban made pursuant
to s. 486(3) without the assent of the complainant. (R. v. Adams, [1995] 4 S.C.R.
707.)
11 See above note 7.
12 Ibid. at 521.
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