Joseph J. Markson

The appellant appealed from a refusal to grant an order of prohibition.

The appellant argued that the presence of a trainee judge on the bench for a few hours created a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, agreeing with the lower court that the trainee judge's brief presence during lengthy proceedings did not amount to cogent evidence of an apprehension of bias.

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.