Daniel J. Henry

The appeal concerned a media challenge to a publication ban obtained in criminal proceedings to stop the broadcast of a fictional television mini-series said to risk prejudicing pending jury trials involving allegations of abuse in religious institutions.

The Court held that discretionary publication bans must be assessed in accordance with Charter values and reformulated the common law test to require necessity, the absence of reasonably available alternative measures, and proportional balancing between trial fairness and freedom of expression.

The Court also addressed the proper procedural routes for third-party challenges to publication bans imposed by provincial and superior court judges.

Applying the new framework, the Court concluded the ban was overbroad and unjustified because reasonable alternatives were available.

The appeal was allowed and the publication ban order was set aside.

The appellant media organization challenged a publication ban imposed during a young offender's trial involving sexual offence allegations by two child complainants.

The Supreme Court held that there was no direct third-party right of appeal from the interlocutory criminal order to the provincial court of appeal.

The proper route was certiorari to a superior court judge because the order was made by a provincial court judge, with any further appeal proceeding under s. 784(1) of the Criminal Code.

The appeal was therefore dismissed for want of jurisdiction, and the Court declined to review the publication ban order itself.