The Supreme Court has recognized that, in view of the important role played by the courts in our society, "the courts must be open to public scrutiny and to public criticism of their operation by the public . . . . The press must be free to comment upon court proceedings to ensure that courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny."81This principle led the Supreme Court to strike down legislation prohibiting publication of the details of matrimonial proceedings,82and it led the Ontario Court of Appeal to give a narrow definition to the offence of contempt of court for intemperate remarks critical of the judicial system.83Yet another area in which freedom of expression collides with other Charter rights is the "free press versus fair trial" debate. The right of everyone charged with an offence to a fair trial on the basis of the evidence produced in court is reinforced by the Charter, section 11(d). The press is plainly entitled to provide the public with information about cases pending before the courts, but in some circumstances, pre-trial publicity may be thought to affect the right to a fair trial. Before the Charter, there is little doubt but that Canadian courts accorded priority to the right to a fair trial. Where pre-trial disclosure of evidence, the identity of the accused, or details of the offence might possibly prejudice potential jurors against the accused or otherwise impair the right of the accused to a fair trial, the courts did not hesitate to impose gag orders delaying publication of such details until after the trial. Such orders plainly limited freedom of expression and freedom of the press, but since neither right was expressly guaranteed by the constitution, the courts were entitled to give priority to the statutory right to a fair trial. Some mandatory publication bans have been found to be consistent with the Charter. For example, the Court has held that a mandatory publication ban on evidence, representations, and reasons at a bail hearing whenever the accused requests such a ban is a reasonable limit on freedom of expression. The Court stressed not only the accused’s right to a fair trial, but also that hearings on whether a discretionary ban could be justified would slow down bail hearings, which were designed to focus on whether the accused could be released. The
Court noted that banned material would eventually be released after the criminal proceedings were finished.84In Dagenais v Canadian Broadcasting Corp,85the Supreme Court was asked to review gag orders in light of the Charter and the entrenchment of the rights of freedom of expression and freedom of the press. The Court found that the pre-Charter rule inappropriately emphasized the right to a fair trial at the expense of freedom of expression. Under the Charter, both freedom of expression and the right to a fair trial enjoy constitutional protection, and "Charter principles require a balance to be achieved that fully respects the importance of both sets of rights."86
This led the Court to conclude that a more stringent test should be applied to publication bans so that the balance between these conflicting rights might be achieved. A ban should be ordered only where it was shown to be necessary to prevent a real and substantial risk to fairness of the trial, and where reasonably available alternative measures, such as adjourning the trial, allowing challenges for cause during jury selection, giving strong instructions to the jury, or changing the venue, would not prevent the risk. To this, the Court added the requirement that it be shown that "the salutary effects of the publication ban outweigh the deleterious impact the ban has on free expression."87The decision represents a significant change in the law with respect to gag orders. The case also...