Toronto Star Newspapers Ltd. et al. v. Canada et al., (2010) 482 A.R. 66 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateNovember 16, 2009
JurisdictionCanada (Federal)
Citations(2010), 482 A.R. 66 (SCC);2010 SCC 21;75 CR (6th) 1;[2010] SCJ No 21 (QL);JE 2010-1061;263 OAC 4;[2010] EXP 1937;482 AR 66;212 CRR (2d) 30;[2010] 1 SCR 721;EYB 2010-175067;23 Alta LR (5th) 242;[2010] 8 WWR 193;320 DLR (4th) 64;402 NR 206

Toronto Star Newspapers Ltd. v. Can. (2010), 482 A.R. 66 (SCC);

      490 W.A.C. 66

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2010] A.R. TBEd. JN.123

Toronto Star Newspapers Ltd., Canadian Broadcasting Corporation, Associated Press and CTV Television Inc. (appellants/respondents on cross-appeal) v. Her Majesty The Queen in Right of Canada and A.A. (respondents/appellants on cross-appeal) and F.A., S.A., Qayyum Abdul Jamal, A.M.D., S.V.C. and Ahmad Mustafa Ghany (respondents) and Attorney General of Ontario, Attorney General of Alberta, N.S. (being a Young Person within the meaning of the Youth Criminal Justice Act), N.Y. (being a Young Person within the meaning of the Youth Criminal Justice Act), Canadian Civil Liberties Association, Canadian Newspaper Association, AD IDEM/Canadian Media Lawyers Association, RTNDA Canada/Association of Electronic Journalists and Canadian Association of Journalists (intervenors)

Canadian Broadcasting Corporation, Edmonton Journal, a Division of CanWest MediaWorks Publications Inc., CTV Television Inc. and Bell Globemedia Publishing Inc., carrying on business as The Globe and Mail (appellants) and Edmonton Sun, a Division of Sun Media Corporation (appellant) v. Her Majesty The Queen and Michael James White (respondents) and Director of Public Prosecutions of Canada, Attorney General of Ontario and Canadian Civil Liberties Association (intervenors)

(33085, 32865; 2010 SCC 21; 2010 CSC 21)

Indexed As: Toronto Star Newspapers Ltd. et al. v. Canada et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

June 10, 2010.

Summary:

R. v. White (M.J.) (Alberta Case)

White was charged with the second degree murder of his wife. He was granted a publication ban under s. 517 of the Criminal Code (mandatory at the accused's request) regarding his bail hearing and a temporary discretionary publication ban regarding the Crown's application for review of the bail order. White's bail was revoked and he was denied a publication ban regarding those proceedings. Asserting an infringement of freedom of speech, a number of media outlets challenged the constitutionality of s. 517. The Crown and White conceded that s. 517 infringed s. 2(b) of the Charter. At issue was whether the infringement was reasonably justified under s. 1 of the Charter (the Oakes test).

The Alberta Court of Queen's Bench, in a decision reported at (2007), 420 A.R. 1, held that s. 517 failed on all three arms of the Oakes test and was therefore not justified under s. 1. The Crown appealed.

The Alberta Court of Appeal, in a decision reported (2009), 437 A.R. 130; 433 W.A.C. 130, allowed the appeal and set aside the decision below, upholding the constitutional validity of s. 517. The court held that while the mandatory ban infringed the freedom of expression, s. 517 was justified under s. 1 of the Charter. Interested media outlets appealed.

The Supreme Court of Canada, Abella, J., dissenting, dismissed the appeals. The court concluded that s. 517 infringed the freedom of expression but that the limit could be demonstrably justified in a free and democratic society (Charter, s. 1). The constitutionality of s. 517 was therefore upheld.

Toronto Star Newspapers v. Canada (Ontario Case)

In early June 2006, the police arrested twelve adults and five young persons for terrorism-related offences. The arrests attracted world-wide media attention. Pursuant to a request by one of the accused under s. 517 of the Criminal Code, a justice of the peace imposed a publication ban respecting the bail hearings. Under s. 517, imposition of the ban was mandatory when requested by an accused. Some of the accused did not want the publication ban; however, the justice ruled that since the accused were jointly charged, the ban applied to the proceedings in relation to all of the accused. Four media organizations applied to quash the publication bans as they related to the accused who did not seek them.

The Ontario Superior Court, per Durno, J., in a decision reported [2006] O.T.C. Uned. F14, dismissed the application, holding that when one of several jointly charged accused sought the mandatory order under s. 517, it applied to the bail hearings of all accused. The media organizations then applied for a declaration that the mandatory publication ban violated s. 2(b) of the Charter (i.e., the freedom of the press) and should be declared of no force and effect.

The Ontario Superior Court, per Durno, J., in a decision reported (2007), 84 O.R.(3d) 766, dismissed the application, holding that it was bound by a 1984 Ontario Court of Appeal decision (Global Communications), which upheld the validity of s. 517. The media organizations appealed both Durno, J.'s, 2006 and 2007 decisions.

The Ontario Court of Appeal, in a decision reported (2009), 245 O.A.C. 291, overruled the Global Communications decision and allowed the appeal in part from the 2007 decision upholding the validity of s. 517. The majority, per Feldman, J.A. (Laskin and Simmons, JJ.A., concurring), held that the publication ban as currently drafted violated s. 2(b) of the Charter. The majority held that the mandatory publication ban was not saved by s. 1 of the Charter because it was overbroad in that it applied to cases where a jury was not available and there was thus no risk of jurors learning of the evidence given at the bail hearing. However, rather than strike down s. 517, the court left the mandatory ban in place, but read down the legislation to make it applicable only to show cause hearings in respect of charges that procedurally might possibly be tried by a jury. Rosenberg, J.A., dissenting (Juriansz, J.A., concurring), agreed that the mandatory publication ban in s. 517 violated s. 2(b) of the Charter and could not be saved by s. 1, but on a different basis than the majority. The dissenters opined that the words in s. 517 which created the ban should be declared of no force and effect, but would have suspended the declaration for 12 months. All five members of the panel agreed that the appeal from the 2006 decision should be dismissed, holding that s. 517 was reasonably capable of Durno, J.'s, interpretation and any other interpretation would undermine the objectives of the legislation. The media organizations appealed and the Crown cross-appealed.

The Supreme Court of Canada, Abella, J., dissenting, dismissed the media organizations' appeal and allowed the Crown's cross-appeal. The court concluded that s. 517 infringed the freedom of expression but that the limit could be demonstrably justified in a free and democratic society (Charter, s. 1). The constitutionality of s. 517 was therefore upheld. The court held also that a mandatory publication ban under s. 517 applied to all co-accused even if only one of the accused requested the ban.

Civil Rights - Topic 1859.2

Freedom of speech or expression - Limitations on - Publication bans - Several media organizations claimed that s. 517 of the Criminal Code unjustifiably violated the freedom of expression (Charter, s. 2(b)) - Section 517 provided that a justice of the peace or provincial court justice was required, if an accused applied for one, to order a publication ban that applied to the evidence and information produced, and representations made, at a bail hearing and to any reasons given for the order - There was no question that such an order limited freedom of expression - The Supreme Court of Canada upheld the constitutional validity of s. 517, holding that the infringement caused by the mandatory publication ban was justified under s. 1 of the Charter (i.e., on application of the Oakes test) - The objectives of fostering trial fairness and ensuring expeditious bail hearings were pressing and substantial - There was a rational connection between the mandatory ban provision and Parliament's objectives - The limit on the right to freedom of expression interfered as little as possible with that right - In that regard, the court noted that to hold a publication ban hearing would delay the administration of justice and that the ban was not absolute either on access to the courts or on publication - There were still matters on which the media could report - Further, the ban was temporary in nature - In the context of the bail process, the court concluded that the deleterious effects of the limits on the publication of information were outweighed by the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information (i.e., to guarantee as much as possible trial fairness and fair access to bail) - See paragraphs 19 to 60.

Civil Rights - Topic 2444

Freedom of the press - Lawful abridgement of - Trial publicity (incl. bail proceedings) - [See Civil Rights - Topic 1859.2 ].

Civil Rights - Topic 2482

Freedom of the press - Limitations - What constitutes infringement - [See Civil Rights - Topic 1859.2 ].

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings (incl. bail proceedings) - [See Civil Rights - Topic 1859.2 ].

Civil Rights - Topic 2490.1

Freedom of the press - Limitations - Criminal matters - Publication ban - [See Civil Rights - Topic 1859.2 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1859.2 ].

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban (incl. breach of) - [See Civil Rights - Topic 1859.2 ].

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban (incl. breach of) - Section 517 of the Criminal Code provided that a justice of the peace or provincial court justice was required, if an accused applied for one, to order a publication ban that applied to the evidence and information produced, and representations made, at a bail hearing and to any reasons given for the order - A question arose as to whether a mandatory publication ban under s. 517 applied to all co-accused if only one of the accused requested the ban - The Supreme Court of Canada held that this question should be answered in the affirmative - See paragraph 61.

Cases Noticed:

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 3].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 3].

Global Communications Ltd. v. California (State) and Ontario (Attorney General) (1984), 2 O.A.C. 21; 44 O.R.(2d) 609 (C.A.), refd to. [para. 7].

Global Communications Ltd. v. Canada (Attorney General) - see Global Communications Ltd. v. California (State) and Ontario (Attorney General).

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. 15, 65].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [paras. 15, 66].

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, refd to. [paras. 15, 65].

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. 18, 65].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 368 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [paras. 18, 65].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [paras. 18, 65].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 20].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 20].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 22].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 22].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 24].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 24].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 25].

Canadian Newspapers Co. v. Canada, [1988] 2 S.C.R. 122; 87 N.R. 163; 32 O.A.C. 259, refd to. [para. 43].

R. v. Hall (D.S.), [2002] 3 S.C.R. 309; 293 N.R. 239; 165 O.A.C. 319; 2002 SCC 64, refd to. [paras. 51, 69].

R. v. Jevons, 2008 ONCJ 559, refd to. [para. 55].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [paras. 58, 65].

Vickery v. Prothonotary, Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181, refd to. [para. 65].

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. 65].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 65].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 41, refd to. [para. 65].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 72].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 72].

R. v. White (M.J.) (2005), 376 A.R. 63; 360 W.A.C. 63; 56 Alta. L.R.(4th) 255; 2005 ABCA 435, refd to. [para. 72].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 3]; sect. 2(b) [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 517 [para. 2].

Authors and Works Noticed:

Barak, Aharon, Proportional Effect: The Israeli Experience (2007), 57 U.T.L.J. 369, p. 374 [para. 20].

Canada, Hansard, House of Commons Debates, vol. 3, 3rd Sess., 28th Parliament (February 5, 1971), pp. 3113, 3114 [para. 13].

Canada, Report of the Canadian Committee on Corrections Toward Unity: Criminal Justice and Corrections (Ouimet Report) (1969), generally [para. 10 et seq.]; pp. 11 [para. 11]; 101,102 [para. 36]; 110 [para. 30].

Canada, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, Issue No. 11, 1st Sess., 28th Parliament (March 18, 1969), pp. 501, 502 [para. 31].

Friedland, Martin L., Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates' Courts (1965), generally [para. 10].

Hansard - see Canada, Hansard, House of Commons Debates.

McRuer Report - see Ontario, Royal Commission Inquiry into Civil Rights, Report No. 1 (1968).

Mirfield, Peter, The Early Jurisprudence of Judicial Disrepute (1987-88), 30 Crim. L.Q. 434, pp. 444, 452 [para. 22].

Ontario, Royal Commission Inquiry into Civil Rights, Report No. 1 (McRuer Report) (1968), generally [para. 10].

Ouimet Report - see Canada, Report of the Canadian Committee on Corrections Toward Unity: Criminal Justice and Corrections.

Pink, Joel E., and Perrier, David C., From Crime to Punishment: An Introduction to the Criminal Law System (6th Ed. 2007), p. 92 [para. 52].

Trotter, Gary T., The Law of Bail in Canada (2nd Ed. 1999), pp. 3 to 9 [para. 9].

Counsel:

Paul B. Schabas and Ryder Gilliland, for the appellants/respondents on cross-appeal, Toronto Star Newspapers Ltd. et al.;

Frederick S. Kozak, Q.C., and Matthew A. Woodley, for the appellants, Canadian Broadcasting Corporation et al.;

Barry Zalmanowitz, Q.C., and Peter D. Banks, for the appellant, Edmonton Sun, a Division of Sun Media Corporation;

John North and Steve Coroza, for the respondent/appellant on cross-appeal, Her Majesty The Queen in Right of Canada and for the intervenor, the Director of Public Prosecutions of Canada;

John Norris and Breese Davies, for the respondent/appellant on cross-appeal, A.A.;

Dennis Edney and Raymond Motee, for the respondent, F.A.;

Peter G. Martin, for the respondent, S.A.;

Anser Farooq, for the respondent, Qayyum Abdul Jamal (no submissions);

Rocco Galati, for the respondents, A.M.D. and Ahmad Mustafa Ghany;

Delmar Doucette and Michael Moon, for the respondent, S.V.C.;

Jolaine Antonio, for the respondent, Her Majesty The Queen, and for the intervenor, the Attorney General of Alberta;

Lauren Garcia and Kirk Starkie, for the respondent, Michael James White;

M. David Lepofsky, Peter Scrutton and Daniel Guttman, for the intervenor, the Attorney General of Ontario;

Christopher Hicks and Catriona Verner, for the intervenors, N.S. and N.Y. (being Young Persons within the meaning of the Youth Criminal Justice Act);

Jonathan C. Lisus and Alexi N. Wood, for the intervenor, the Canadian Civil Liberties Association;

Daniel W. Burnett, for the intervenors, the Canadian Newspaper Association et al.

Solicitors of Record:

Blake, Cassels & Graydon, Toronto, Ontario, for the appellants/respondents on cross-appeal, Toronto Star Newspapers Ltd. et al.;

Reynolds, Mirth, Richards & Farmer, Edmonton, Alberta, for the appellants, Canadian Broadcasting Corporation et al.;

Fraser Milner Casgrain, Edmonton, Alberta, for the appellant, Edmonton Sun, a Division of Sun Media Corporation;

Public Prosecution Service of Canada, Brampton, Ontario, for the respondent/appellant on cross-appeal, Her Majesty The Queen in Right of Canada and for the intervenor, the Director of Public Prosecutions of Canada;

John Norris, Toronto, Ontario, for the respondent/appellant on cross-appeal, A.A.;

Dennis Edney, Edmonton, Alberta, for the respondent, F.A.;

Peter G. Martin, Eganville, Ontario, for the respondent, S.A.;

Anser Farooq, Toronto, Ontario, for the respondent, Qayyum Abdul Jamal;

Rocco Galati Law Firm Professional Corporation, Toronto, Ontario, for the respondents, A.M.D. and Ahmad Mustafa Ghany;

Marlys Edwardh Barristers Professional Corporation, Toronto, Ontario, for the respondent, S.V.C.;

Attorney General of Alberta, Calgary, Alberta, for the respondent, Her Majesty The Queen and for the intervenor, the Attorney General of Alberta;

Dawson Stevens & Shaigec, Edmonton, Alberta, for the respondent, Michael James White;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Hicks, Block, Adams, Toronto, Ontario, for the intervenors, N.S. and N.Y. (being Young Persons within the meaning of the Youth Criminal Justice Act);

McCarthy Tétrault, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Owen Bird Law Corporation, Vancouver, B.C., for the intervenors, the Canadian Newspaper Association et al.

This appeal was heard on November 16, 2009, by   McLachlin,   C.J.C.,   Binnie,   LeBel,  Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court was delivered in both official languages on June 10, 2010, and the following reasons were filed:

Deschamps, J. (McLachlin, C.J.C., Binnie, LeBel, Fish, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 64;

Abella, J., dissenting - see paragraphs 65 to 77.

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