CBC v. N.B. (1996), 182 N.B.R.(2d) 81 (SCC);
182 R.N.-B.(2e) 81; 463 A.P.R. 81
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Canadian Broadcasting Corporation (appellant) v. The Attorney General for New Brunswick, His Honour Douglas Rice and Gerald Carson (respondents) and The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Manitoba, the Attorney General of British Columbia, the Attorney General for Saskatchewan and the Attorney General for Alberta (intervenors)
(24305)
Indexed As: Canadian Broadcasting Corp. v. New Brunswick (Attorney General)
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
October 31, 1996.
Summary:
Carson pleaded guilty to two charges of sexual assault and two charges of sexual interference, involving young females. The trial judge exercised his discretion under s. 486(1) of the Criminal Code to exclude the public and media from that portion of the sentencing proceedings dealing with the specific acts of Carson. The basis of the order was to ensure the “proper administration of justice”. A publication ban was already in effect. The C.B.C. applied to quash the exclusion order, claiming that s. 486(1) violated freedom of expression under s. 2(b) of the Charter of Rights and Freedoms and was not a reasonable limit prescribed by law under s. 1. Alternatively, if s. 486(1) was constitutionally valid, the C.B.C. claimed that the trial judge improperly exercised his discretion.
The New Brunswick Court of Queen’s Bench, Trial Division, in a judgment reported 143 N.B.R.(2d) 174; 366 A.P.R. 174, dismissed the application. Section 486(1) violated s. 2(b) of the Charter, but was a reasonable limit prescribed by law under s. 1. Further, the trial judge did not improperly exercise his discretion in granting the exclusion order. The C.B.C. appealed.
The New Brunswick Court of Appeal, in a judgment reported 148 N.B.R.(2d) 161; 378 A.P.R. 161, dismissed the appeal. The court affirmed that s. 486(1) violated s. 2(b) but was a reasonable limit under s. 1 and that the trial judge properly exercised his discretion. The C.B.C. appealed.
The Supreme Court of Canada allowed the appeal, quashed the exclusion order and ordered access to the media and the public to the transcript of that part of the proceedings held in camera. The court agreed that s. 486(1) violated s. 2(b) and was a reasonable limit under s. 1. However, the trial judge improperly exercised his discretion. On the information before the trial judge, an exclusion order should not have issued. The court provided guidelines for granting an exclusion order under s. 486(1) to ensure the “proper administration of justice”.
Civil Rights – Topic 1859
Freedom of speech or expression – Limitations on – Restricted access to courts – [See first
Civil Rights – Topic 2403
].
Civil Rights – Topic 2403
Freedom of the press – Scope of – Carson pleaded guilty to sexual offences involving young females – At the sentencing hearing, the judge exercised his discretion under s. 486(1) of the Criminal Code to exclude the public and media from that portion of the proceeding that detailed Carson’s specific acts – The ground relied on was to ensure the “proper administration of justice” – The Supreme Court of Canada affirmed that s. 486(1) (limited to exclusion orders based on the proper administration of justice) violated freedom of expression under s. 2(b) of the Charter of Rights and Freedoms, but was a reasonable limit prescribed by law under s. 1 – Section 486(1) permitted a court to control the publicity of its proceedings to protect the innocent and to safeguard privacy interests, thereby remedying the under-reporting of sexual offences – See paragraphs 17 to 66.
Civil Rights – Topic 2403
Freedom of the press – Scope of – The Supreme Court of Canada stated that “essential to the freedom of the press to provide information to the public is the ability of the press to have access to this information. … s. 2(b) [Charter] protects the freedom of the press to comment on the courts as an essential aspect of our democratic society. … the press must be guaranteed access to the courts in order to gather information.” – See paragraphs 24 to 26.
Civil Rights – Topic 2486
Freedom of the press – Limitations – Court proceedings – [See first
Civil Rights – Topic 2403
].
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law – [See first
Civil Rights – Topic 2403
].
Civil Rights – Topic 8581.1
Canadian Charter of Rights and Freedoms – Practice – Charter application – Scope of review – Section 486(1) of the Criminal Code gave a judge a discretion to exclude the public from all or part of the proceedings in the interest of (1) public morals, (2) the maintenance of order, or (3) the proper administration of justice – A judge excluded the public and media from a portion of a sexual assault sentencing hearing to ensure the “proper administration of justice” – At issue was the constitutionality of s. 486(1) – The Supreme Court of Canada stated that its review of the constitutionality of s. 486(1) was limited to the ground relied on to grant the exclusion order – A constitutional review of s. 486(1) respecting the first two grounds for granting an order would have to await a future case having the proper factual foundation – See paragraphs 14 to 15.
Criminal Law – Topic 4478
Procedure – Trial – Exclusion of members of the public – Carson pleaded guilty to sexual assault and sexual interference, involving young females – The judge exercised his discretion under s. 486(1) of the Criminal Code to exclude the public and media from that portion of the sentencing proceedings detailing the specific acts of Carson – Exclusion was found necessary to ensure the “proper administration of justice” – A publication ban was already in effect – The Supreme Court of Canada held that the judge erred in granting the exclusion order – There was insufficient evidence before the judge to justify a finding of undue hardship to the complainants or the accused – The court discussed the justification of an exclusion order on the basis of undue hardship of a victim and the accused – The order was not necessary to further the proper administration of justice and the deleterious effects of the order were not outweighed by its salutary effects – See paragraphs 77 to 89.
Criminal Law – Topic 4478
Procedure – Trial – Exclusion of members of the public – Section 486(1) of the Criminal Code gave a judge a discretion to exclude the public from all or part of the proceedings in the interest of, inter alia, the proper administration of justice – The Supreme Court of Canada provided guidelines for exercising that discretion: “(a) the judge must consider the available options and consider whether there are any other reasonable and effective alternatives available; (b) the judge must consider whether the order is limited as much as possible; and (c) the judge must weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate. … The burden of displacing the general rule of openness lies on the party making the application. … the applicant bears the burden of proving: that the particular order is necessary, in terms of relating to the proper administration of justice; that the order is as limited as possible; and, that the salutary effects of the order are proportionate to its deleterious effects.” – See paragraphs 69 to 71.
Criminal Law – Topic 4478
Procedure – Trial – Exclusion of members of the public – Section 486(1) of the Criminal Code gave a judge a discretion to exclude the public from all or part of the proceedings in the interest of, inter alia, the proper administration of justice – The Supreme Court of Canada stated that “there must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially. In some cases in which the facts are not in dispute the statement of counsel will suffice. If there is insufficient evidence placed before the trial judge, or there is a dispute as to the relevant facts, the applicant should seek to have the evidence heard in camera. This may be done by way of a voir dire, from which the public is excluded. … The decision to hold a voir dire will be a function of what is necessary in a given case to ensure that the trial judge has a sufficient evidentiary basis upon which to act judicially.” – See paragraph 72.
Practice – Topic 5002
Conduct of trial – Open court – Power to hear in camera – [See all
Criminal Law – Topic 4478
].
Cases Noticed:
Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 15].
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 19].
Scott v. Scott, [1913] A.C. 417 (H.L.), refd to. [para. 21].
Ontario v. Southam Inc. (No. 1) (1983), 41 O.R.(2d) 113 (C.A.), refd to. [para. 22].
MacIntyre v. Nova Scotia (Attorney General) and Grainger 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. [para. 22].
Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres, [1991] 3 S.C.R. 421; 130 N.R. 321; 43 Q.A.C. 161, refd to. [para. 24].
Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et autres, [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271, 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. 26].
Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577, refd to. [para. 33].
R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 34].
Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 35].
R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200, refd to. [para. 36].
United Nurses of Alberta v. Alberta (Attorney General) et al., [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 37].
British Columbia Government Employees’ Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 37].
Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.), refd to. [para. 37].
Canadian Broadcasting Corp. v. Dagenais, [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289, refd to. [para. 38].
R. v. O’Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 42].
R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 42].
RJR-MacDonald Inc. et Imperial Tobacco Ltd. c. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 47].
R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 50].
R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 52].
Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 56].
R. v. Brint (1979), 14 A.R. 183; 45 C.C.C.(2d) 560 (C.A.), refd to. [para. 60].
R. v. Lefebvre, [1984] C.A. 370; 17 C.C.C.(3d) 277 (Que. C.A.), refd to. [para. 64].
R. v. McArthur (1984), 13 C.C.C.(3d) 152 (Ont. H.C.), refd to. [para. 64].
R. v. D.V. (1994), 120 Sask.R. 51; 89 C.C.C.(3d) 161 (C.A.), refd to. [para. 73].
R. v. Quesnel (1979), 51 C.C.C.(2d) 270 (Ont. C.A.), refd to. [para. 74].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2(b) [para. 1].
Criminal Code, R.S.C. 1985, c. C-46, sect. 486(1) [para. 1].
Authors and Works Noticed:
Lepofsky, M. David, Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (1985), p. 35 [para. 41].
Mill, James, Liberty of the Press, in Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations (Reprint Ed. 1967), p. 18 [para. 18].
Counsel:
André G. Richard, Marie-Claude Bélanger-Richard and Jacques McLaren, for the appellant;
Graham J. Sleeth, Q.C., for the respondents;
Graham Garton, Q.C., and Barbara Kothe, for the intervenor, Attorney General of Canada;
M. David Lepofsky and James K. Stewart, for the intervenor, Attorney General for Ontario;
Deborah Carlson, for the intervenor, Attorney General of Manitoba;
Galvin C. Deedman, for the intervenor, Attorney General of British Columbia;
Graeme G. Mitchell, for the intervenor, Attorney General for Saskatchewan;
Written submissions only by Jack Watson, Q.C., for the intervenor, Attorney General for Alberta.
Solicitors of Record:
Stewart McKelvey Stirling Scales, Moncton, New Brunswick, for the appellant;
Office of the Attorney General, Fredericton, New Brunswick, for the respondents;
George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;
Ministry of the Attorney General, Toronto, Ontario, for the intervenor, Attorney General for Ontario;
Department of Justice, Winnipeg, Manitoba, for the intervenor, Attorney General of Manitoba;
Ministry of the Attorney General, Vancouver, British Columbia, for the intervenor, Attorney General of British Columbia;
W. Brent Cotter, Regina, Saskatchewan, for the intervenor, Attorney General for Saskatchewan;
Jack Watson, Edmonton, Alberta, for the intervenor, Attorney General for Alberta.
This appeal was heard on March 29, 1996, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
The judgment of the Supreme Court of Canada was delivered in both official languages on October 31, 1996, by La Forest, J.
