Section 83.28 of the Criminal, (2004) 199 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court of Canada
• Case Date: December 10, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2004), 199 B.C.A.C. 1 (SCC);2004 SCC 43;322 NR 161;[2005] 2 WWR 671;199 BCAC 1;33 BCLR (4th) 261;[2004] ACS no 41;EYB 2004-66287;240 DLR (4th) 147;184 CCC (3d) 515;120 CRR (2d) 203;[2004] 2 SCR 332;21 CR (6th) 142;JE 2004-1332;[2004] SCJ No 41 (QL);61 WCB (2d) 216

Section 83.28 of the Criminal Code, Re (2004), 199 B.C.A.C. 1 (SCC);

    326 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2004] B.C.A.C. TBEd. JN.080

The Vancouver Sun (appellant) v. Attorney General of Canada, Attorney General of British Columbia, "The Named Person", Ajaib Singh Bagri and Ripudaman Singh Malik (respondents) and Attorney General of Ontario (intervener)

(29878; 2004 SCC 43; 2004 CSC 43)

Indexed As: Application Under Section 83.28 of the Criminal Code, Re

Supreme Court of Canada

McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.

June 23, 2004.

Summary:

Section 83.28 of the Criminal Code pro­vided for judicial investigative hearings in relation to terrorism offences. A "Named Person" was ordered to attend and answer questions under s. 83.28, respecting two Air India explosions, which killed over 300 people. The Vancouver Sun, a newspaper, was refused entry to the hearing, which was being held in camera. The Vancouver Sun brought a motion, asking that the hearing be held in public.

The British Columbia Supreme Court, in a decision reported at [2003] B.C.T.C. 1330, dismissed the application. The Vancouver Sun appealed.

The Supreme Court of Canada allowed the appeal in part.

Civil Rights - Topic 1857

Freedom of speech or expression - Limita­tions on - Public hearings - Right to - The Anti-Terrorism Act, S.C. 2001, created s. 83.28 of the Criminal Code, which pro­vided for judicial investigative hearings in relation to terrorism offences - A "Named Person" could be ordered to attend and be compelled to answer questions under s. 83.28 - The Supreme Court of Canada held that the open court principle was a funda­mental characteristic of judicial proceed­ings and it should not be presumptively displaced in favour of an in camera pro­cess under s. 83.28 - The need to close the courtroom doors, for the whole or parts of the judicial investigative hearing, was governed by the principles expressed by the court in Dagenais v. Canadian Broad­casting Corp. and R. v. Mentuck - The proper balance between the investigative imperatives and the judicial assumption of openness was best achieved by a proper exercise of the discretion granted to judges to impose terms and conditions on the conduct of the hearing under s. 83.28(5)(e) - The presumption of openness should only be displaced upon proper consideration of the competing interests at every stage of the process - See paragraphs 1 to 43.

Civil Rights - Topic 1857

Freedom of speech or expression - Limita­tions on - Public hearings - Right to - Section 83.28 of the Criminal Code pro­vided for judicial investigative hearings in relation to terrorism offences - A "Named Person" was ordered to attend and answer questions under s. 83.28, respecting two Air India explosions which killed over 300 people - Concurrently, the trial of two accused in relation to the explosions, nei­ther of whom was the Named Person, was proceeding - The Vancouver Sun, a news­paper, was refused entry to the s. 83.28 hearing, which was being held in camera - The Supreme Court of Canada ordered that the name of the Named Person be made public and the hearing be held in public, subject to any order of the presiding judge that the public be excluded and/or that a publication ban be put in place regarding aspects of the anticipated evidence to be given by the Named Person - The investi­gative judge was to review the continuing need for any secrecy at the end of the investigative hearing and release publicly any part of the information gathered at the hearing that could be made public without unduly jeopardizing the interests of the Named Person, third parties, or the investi­gation (s. 83.28(5)(e)) - See paragraphs 44 to 58.

Civil Rights - Topic 1857

Freedom of speech or expression - Limita­tions on - Public hearings - Right to - Section 83.28 of the Criminal Code pro­vided for judicial investigative hearings in relation to terrorism offences - A "Named Person" could be ordered to attend and be compelled to answer questions under s. 83.28 - The Supreme Court of Canada held that even in cases where the very existence of an investigative hearing would have been the subject of a sealing order, the investigative judge should put in place, at the end of the hearing, a mechanism whereby its existence, and as much as possible of its content, should be publicly released - See paragraph 58.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - [See all Civil Rights - Topic 1857 ].

Civil Rights - Topic 2490.1

Freedom of the press - Limitations - Crim­inal matters - Publication ban - [See sec­ond and third Civil Rights - Topic 1857 ].

Courts - Topic 4806

Common law - General - Hearings - Open court - [See first Civil Rights - Topic 1857 ].

Criminal Law - Topic 1185

Offences against public order - Terrorism offences - Investigative hearings - [See all Civil Rights - Topic 1857 ].

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, appld. [paras. 4, 61].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, appld. [paras. 4, 61].

R. v. Reyat, [1991] B.C.J. No. 2006 (S.C.), refd to. [para. 6].

MacIntyre v. Nova Scotia (Attorney Gen­eral), Grainger and Canada (Attorney General) 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. [paras. 23, 60].

Canadian Broadcasting Corp. v. New Bruns­wick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [paras. 23, 66].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 23].

Scott v. Scott, [1913] A.C. 417 (H.L.), refd to. [para. 24].

Ambard v. Trinidad and Tobago (Attorney General), [1936] A.C. 322 (P.C.), refd to. [para. 24].

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

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 54 D.L.R.(4th) 577; 90 N.R. 84, refd to. [para. 26].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 28].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, refd to. [para. 31].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [paras. 36, 76].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 36].

Southam Inc. et al. v. Coulter, J. et al. (1990), 40 O.A.C. 341; 60 C.C.C.(3d) 267 (C.A.), refd to. [para. 69].

R. v. A, B and C, [1990] 1 S.C.R. 992, refd to. [para. 70].

Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; 201 N.R. 241, refd to. [para. 74].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 83.28 [Appendix].

Authors and Works Noticed:

Burton, John Hill, Bethamiana: Or, Select Extracts from the Works of Jeremy Ben­tham. With an Outline of His Opinions on the Principal Subjects Discussed in His Works (1843), p. 115 [para. 24].

Counsel:

Robert S. Anderson and Ludmila B. Herbst, for the appellant;

George Dolhai and Bernard Laprade, for the respondent, the Attorney General of Canada;

Dianne Wiedemann and Mary T. Ainslie, for the respondent, the Attorney General of British Columbia;

Kenneth Westlake, Howard Rubin and Brian A. Crane, Q.C., for the respondent, the "Named Person";

William B. Smart, Q.C., and Brock Mart­land, for the respondent, Ripudaman Singh Malik;

Michael A. Code and Jonathan Dawe, for the respondent, Ajaib Singh Bagri;

Michael Bernstein and Sandy Tse, for the intervener.

Solicitors of Record:

Farris, Vaughan, Wills & Murphy, Van­couver, British Columbia, for the appel­lant;

Attorney General of Canada, Vancouver, British Columbia, for the respondent, the Attorney General of Canada;

Attorney General of British Columbia, Van­couver, British Columbia, for the re­spondent, the Attorney General of British Columbia;

Howard Rubin Law Corporation, North Vancouver, British Columbia, for the respondent, the "Named Person";

Smart & Williams, Vancouver, British Columbia, for the respondent, Ripuda­man Singh Malik;

Sack Goldblatt Mitchell, Toronto, Ontario, for the respondent, Ajaib Singh Bagri;

Attorney General of Ontario, Toronto, Ontario, for the intervener.

This appeal was heard on December 10, 2003, by McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada. On June 23, 2004, the Supreme Court delivered its decision, in both official languages, including the following opinions:

Iacobucci and Arbour, JJ.A. (McLachlin, C.J.C., Major, Binnie, and Fish, JJ., concurring) - see paragraphs 1 to 58;

Bastarache, J., dissenting in part (Des­champs, J., concurring) - see para­graphs 59 to 85;

LeBel, J. - see paragraph 86.