R. v. S. (T.), [1994] 3 S.C.R. 952

Canadian Broadcasting Corporation Appellant

v.

Her Majesty The Queen, the Alleged

Victims, Doug McConachie, Armadale

Communications and Canadian Press Respondents

and

The Attorney General for Ontario Intervener

Indexed as: R. v. S. (T.)

File No.: 23596.

1994: January 24, 25; 1994: December 8.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for saskatchewan

Criminal law ‑‑ Publication bans ‑‑ Young offender charged with sexual offences on two children ‑‑ Youth court judge banning publication of evidence and proceedings at young offender's trial until trials of other accused involving same complainants completed ‑‑ Whether media can challenge publication ban.

Appeal ‑‑ Publication bans ‑‑ Publication ban imposed in criminal proceedings ‑‑ Ban issued under judge's common law or legislated discretionary authority ‑‑ Avenues available for third parties to challenge ban.

A young offender was charged with a number of criminal offences, including sexual assaults on two children. Her trial was the first of a series of related trials involving the same complainants. The other accused were all adults. The Crown in the youth court trial applied for a non‑publication order and the CBC and other news media were granted status to make representations on the application. The youth court judge banned the publication of the evidence and proceedings at the young offender's trial until the trials of the other accused were completed. The CBC challenged the order on the ground that the youth court judge had gone too far in applying the common law rule governing publication bans, and in so doing had violated the CBC's freedom of expression. The Court of Appeal dismissed the appeal, holding that the CBC had no right of appeal to the Court of Appeal and that the court had no jurisdiction to hear the appeal.

Held: The appeal should be dismissed.

Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The general principles and practices enunciated in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, on the jurisdictional issue should be adopted. The Crown's application for a ban was correctly brought before the judge in charge of the youth court trial and the CBC should have made an application for certiorari to a superior court judge to challenge the publication ban order. The Court of Appeal did not have jurisdiction to hear the CBC's appeal. While this Court has jurisdiction to hear the appeal from the Court of Appeal's decision, it does not have jurisdiction to review the order itself. Had the CBC applied for certiorari to a superior court judge, an appeal would have been available to the Court of Appeal under s. 784(1) of the Criminal Code and then to this Court under s. 40(1) of the Supreme Court Act. It is not open to this Court to grant leave to appeal the order itself proprio motu, nunc pro tunc, ex post facto since there is no direct appeal avenue to this Court from an order banning publication made by a provincial court judge.

Per La Forest J.: Subject to the comments in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, Lamer C.J.'s reasons were agreed with.

Per L'Heureux‑Dubé J.: The CBC had no right of appeal to the Saskatchewan Court of Appeal or to this Court since there is no third party right of appeal from an interlocutory criminal order. While a third party can challenge an interlocutory criminal order by way of certiorari where such an order was issued by a provincial court judge, the CBC made no such challenge.

Where the order being reviewed is the product of a provincial court judge's legally authorized discretion, a challenge by way of certiorari should only rarely succeed. This extraordinary remedy cannot be used to substitute one judge's discretion for that of another. Furthermore, a discretionary order per se cannot be challenged on Charter grounds as the Charter does not apply to court orders per se. While the Charter applies to common law rules authorizing such court orders, the common law rule governing the issuance of publication bans in criminal proceedings is consistent with the Charter and, consequently, any challenge to this aspect of the common law must fail. The question of whether the remedial powers of certiorari ought to be enlarged should be left for an appropriate case.

Per McLachlin J.: For the reasons given on the jurisdictional issue in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, Lamer C.J.'s disposition is agreed with.

Cases Cited

By Lamer C.J.

Followed: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835; referred to: R. v. Meltzer, 1989 68 (SCC), [1989] 1 S.C.R. 1764; RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; Re Church of Scientology of Toronto and The Queen (No. 6) (1986), 1986 4649 (ON SC), 27 C.C.C. (3d) 193.

By La Forest J.

Referred to: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835.

By L'Heureux‑Dubé J.

Referred to: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835.

By McLachlin J.

Referred to: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 2(b), 24(1).

Constitution Act, 1982, s. 52(1).

Court of Appeal Act, R.S.S. 1978, c. C‑42, s. 6.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 486 [am. c. 19 (3rd Supp.), s. 14; am. c. 23 (4th Supp.), s. 1], 674, 784(1).

Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40 [am. c. 34 (3rd Supp.), s. 3; am. 1990, c. 8, s. 37].

Young Offenders Act, R.S.C., 1985, c. Y‑1, s. 39 [am. c. 24 (2nd Supp.), s. 30].

APPEAL from a judgment of the Saskatchewan Court of Appeal (1993), 1993 9134 (SK CA), 109 Sask. R. 96, 42 W.A.C. 96, 82 C.C.C. (3d) 352, 15 C.R.R. (2d) 263, dismissing the appellant's appeal from a non‑publication order. Appeal dismissed.

Bryan E. Salte, G. D. Dufour and Daniel J. Henry for the appellant.

Graeme G. Mitchell, for the respondent Her Majesty the Queen.

Michal Fairburn, for the intervener.

The judgment of Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by

Lamer C.J. --

I. Factual and Procedural Background

I. T.S., now 22 years of age, was charged with a number of offences under the Young Offenders Act, R.S.C., 1985, c. Y-1. It was alleged that between May 1, 1988 and July 31, 1991 she had committed sexual assaults on two children, touched them for sexual purposes, confined them, threatened to use a weapon on one of them, and uttered a threat to cause death to one of them.

II. The respondent Crown made an application under s. 486 of the Criminal Code, R.S.C., 1985, c. C-46, s. 39 of the Young Offenders Act and the common law for either an order of non-publication of any of the evidence or an order of non-publication of evidence relating to the allegations of the children. The appellant, the respondent Armadale Communications and media representatives, sought leave to make representations in relation to the application. The trial of T.S. was the first of a series of related trials, involving the same complainants, but her trial was the only one where a request for a restriction on publication of evidence was made.

III. A voir dire was held and Lavoie Prov. Ct. J. of the provincial youth court ruled that media representatives could be present but could not cross-examine the witnesses. They were allowed to submit oral or written arguments but were not given leave to call viva voce evidence or to file affidavit evidence. However, they were allowed to re-apply to the court for such leave at any stage of the voir dire.

IV. On March 3, 1993, Lavoie Prov. Ct. J. granted the application and ordered the prohibition of the publication of all of the evidence and proceedings in this trial (except the ruling on the voir dire and the verdict therein) until the trials involving the same complainants were completed. The appellant appealed the decision on the voir dire to the Court of Appeal for Saskatchewan. On March 11, 1993, the Court of Appeal ruled (with reasons to follow) that it did not have jurisdiction to hear the appeal. On May 25, 1993, the Court of Appeal released its reasons: (1993), 1993 9134 (SK CA), 109 Sask. R. 96, 42 W.A.C. 96, 82 C.C.C. (3d) 352, 15 C.R.R. (2d) 263. On October 14, 1993, leave to appeal the Court of Appeal decision to the Supreme Court of Canada was granted, [1993] 3 S.C.R. v.

II. Decisions Below

Provincial Youth Court

V. Lavoie Prov. Ct. J. held that he had no statutory power to ban publication in this case. However, he held that there was power at common law to make an order banning publication. He then held that:

As to publication, there are two important but competing issues. First, the ever-important and at times almost overwhelming need to protect the child victim witness during a court process and prevent that which "would be seriously injurious or seriously prejudicial" to them as contemplated by s. 39 of the Young Offenders Act. Secondly, the freedom of expression including freedom of the press under s. 2(b) and the right to a "public hearing" under s. 11(d) of the Charter. The role of the court is to find a procedure which will best balance and protect these two, in this case, opposing issues. A solution which may be perfect in relation to one interest may not be so for the other. The court must be evermindful that the procedure be a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

He noted that the Crown was asking for non-publication not only for the protection of the child witnesses but also to protect the integrity and fairness of the trials of the adult accused which will take place in the Court of Queen's Bench.

VI. Lavoie Prov. Ct. J. found that the evidence in relation to the fears of the children did not establish that publication of the proceedings would destroy any further counselling although it could delay therapy or possibly make it more difficult. Nevertheless, he ruled that:

There will be an order of non-publication of the evidence and proceedings in this trial, except this ruling on the voir dire and the verdict herein, by any means and in any way including any document, book, newspaper or broadcast. Such order shall be in effect until a verdict is rendered in the trials of the charges, involving the same complainants, against the following adult accuseds . . .; or the charges having been determined according to law by stay of proceeding, withdrawal, dismissal or other lawful disposition. For further clarity such order does not extend to any appeals that may occur after verdict is rendered in the trials.

Court of Appeal (1993), [1993 9134 (SK CA)](https://www.canlii.org/en/sk/skca/doc/1993/1993canlii9134/1993canlii9134.html), 109 Sask. R. 96

VII. The Court of Appeal held that the Canadian Broadcasting Corporation ("CBC") had no right of appeal to the Court of Appeal and that the Court of Appeal had no jurisdiction to hear the appeal. Bayda C.J.S., writing for the court, began by noting that the trial judge had ordered the publication ban pursuant to a power vested in him by the common law. He further observed that the CBC had not claimed that the common law rule stated by Watt J. in Re Church of Scientology of Toronto and The Queen (No. 6) (1986), 1986 4649 (ON SC), 27 C.C.C. (3d) 193 (Ont. H.C.), at p. 209, and applied by Lavoie Prov. Ct. J. was actually not the law. Nor had the CBC attacked the ruling on the ground that the common law rule was unconstitutional. Rather, Bayda C.J.S. noted, the CBC had attacked the order on the ground that Lavoie Prov. Ct. J., in applying the common law rule, had gone too far, and in so doing had violated the CBC's freedom of expression as embodied in s. 2(b) of the Canadian Charter of Rights and Freedoms. It was on this basis that the CBC sought to have the order set aside.

VIII. Bayda C.J.S. continued by observing that if the appeal before him were treated simply as an ordinary appeal in a criminal proceeding, then, following s. 674 of the Criminal Code, the CBC would have no right of appeal to the Saskatchewan Court of Appeal. Appeals are solely creatures of statute, Bayda C.J.S. remarked, and there is no inherent jurisdiction in any appeal court. Moreover, he declared, jurisdiction in this case could not be found in s. 6 of the Saskatchewan Court of Appeal Act, R.S.S. 1978, c. C-42: R. v. Meltzer, 1989 68 (SCC), [1989] 1 S.C.R. 1764. Similarly, jurisdiction could not be grounded in the inherent power vested in the Court of Appeal by s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. In Bayda C.J.S.'s view, if the appeal in the case at bar were seen as an appeal from an interlocutory ruling by the trial court judge in the course of a criminal proceeding, then the fact that it involved an alleged Charter breach did not vest the Court of Appeal with any special power to hear an appeal. Rather, the right of appeal was governed by the same principles that applied to an appeal from an ordinary interlocutory ruling (and there is no appeal from an interlocutory ruling made in a criminal proceeding).

IX. Alternatively, if the appeal were characterized as an appeal from a final ruling (in so far as the CBC was concerned), Bayda C.J.S. noted that it was "important to keep in mind the nature of the Charter component upon which the C.B.C. relie[d] as the basis for its appeal" (p. 104). He remarked (at p. 104):

C.B.C. has not appealed a ruling by a trial judge finding a violation by a governmental official of a person's Charter right and awarding to the person a remedy under s. 24(1) of the Charter.... Rather, C.B.C. contends that it was the trial judge himself who was the violator of C.B.C.'s s. 2(b) Charter right, and it was his ruling that created the violation. It now seeks a remedy under s. 24(1) to redress that violation. The remedy it seeks is a setting aside of the judge's ruling.

Consequently, Bayda C.J.S. noted, the CBC was asking the Saskatchewan Court of Appeal to make an initial ruling respecting the alleged violation. This amounted to asking the Court of Appeal to act as the court of first instance under s. 24(1). Bayda C.J.S. stated (at p. 105):

In my respectful view, this court's jurisdiction, whatever it may be, does not extend that far. The court by definition is not a court of first instance. Although the court does have original jurisdiction in situations involving a review by way of prerogative writs [citations omitted], the jurisdiction which C.B.C. seeks to engage in the present case is not that jurisdiction.

Furthermore, Bayda C.J.S. observed that in RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, the Supreme Court of Canada had "held that a judge acting in his or her judicial capacity cannot be a Charter right violator and an order of a court cannot, for the purpose of a Charter application, constitute the necessary "governmental action" upon which to found a Charter violation and a consequential remedy to redress the violation. In short, although courts are bound by the Charter as they are bound by all law, the Charter does not apply to court orders" (p. 105).

X. For these reasons, Bayda C.J.S. concluded that the Saskatchewan Court of Appeal had no jurisdiction to hear an appeal from Lavoie Prov. Ct. J.'s ruling. He remarked, however, at p. 107, that:

The nature of C.B.C.'s complaint and its legal inability to have the propriety of the ruling it received respecting that complaint immediately tested on appeal, leaves one with a sense of unease. Given the structure of our appellate law, it is Parliament, and Parliament alone, that is empowered to relieve that unease by providing some form of immediate appellate review -- apart from s. 40 of the Supreme Court Act. . . .

He noted that in other contexts Parliament had been able to establish efficacious appeal procedures, and observed that the English Parliament had established appeal procedures in respect of publication ban orders.

III. Analysis

XI. With respect to the general principles and practices for the jurisdictional question, I adopt my reasons in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835. With respect to the application of the general principles and practices to the case at bar, I draw the following conclusions.

A. The Facts

XII. The case of T.S. was being heard in the provincial youth court of Saskatchewan. The trials of the adult accused arising out of similar circumstances (Ronald Sterling, Linda Sterling, Travis Sterling, James Elstad, Darryl Ford, Edward Revesz, Darren Sabourin, John Popowich) were scheduled to commence in the Saskatoon Queen's Bench Court (provincial superior court) in May 1993 and to be heard continuously and consecutively until sometime in 1994.

B. The Application of the Law to the Facts

XIII. The Crown brought the motion to the correct judge (the judge in charge of the trial of T.S.). The CBC tried to appeal the trial judge's decision to the Court of Appeal. The CBC should have made an application for certiorari to a superior court judge because the trial judge was a judge in the provincial youth court and that is not a provincial superior court. If the application had been denied, then the CBC could have appealed the superior court judge's decision to the Court of Appeal (under s. 784(1) of the Criminal Code).

C. The Disposition on Jurisdiction

XIV. The Court of Appeal did not have jurisdiction to hear from the CBC. While this Court had jurisdiction to hear the appeal from the Court of Appeal decision, this Court does not have jurisdiction to review the order itself. The CBC should have made an application for certiorari to the superior court. From there, an appeal was available to the Court of Appeal under s. 784(1) of the Criminal Code. From there, an appeal was available to this Court under s. 40 of the Supreme Court Act, R.S.C., 1985, c. S-26. Unlike in the companion case of Dagenais, it is not open to this Court to grant leave to appeal the order itself proprio motu, nunc pro tunc, ex post facto. There is no direct appeal avenue to the Supreme Court from an order banning publication made by a provincial court judge.

IV. Disposition

XV. I would dismiss the appeal.

The following are the reasons delivered by

La Forest J. -- Subject to my reasons in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, issued concurrently, I agree with the Chief Justice.

The following are the reasons delivered by

L'Heureux-Dubé J. -- I have read the reasons of Lamer C.J. and agree that this appeal should be dismissed. I reach this conclusion, however, for somewhat different reasons.

XVI. First, as I wrote in the companion case of Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, there is no third party right of appeal from an interlocutory criminal order. This is true whether the order is issued by a superior court judge or a provincial court judge. In this respect, I agree fully with the reasons of Bayda C.J.S. and find that the appellant had no right of appeal to the Saskatchewan Court of Appeal and no right of appeal to this Court.

XVII. Nonetheless, while a third party cannot challenge an interlocutory criminal order by way of appeal, I agree with Lamer C.J. that a third party can challenge an interlocutory criminal order by way of certiorari where the interlocutory order in question was issued by a provincial court judge. In the case at hand, however, the appellant made no such challenge. Accordingly, it is not strictly necessary to discuss the scope of review under certiorari or the remedial power available to the reviewing judge under this extraordinary remedy. Nonetheless, I wish to emphasize that where the order being reviewed is, as here, the product of a provincial court judge's legally authorized discretion, a challenge by way of certiorari should only rarely succeed. Certiorari is an extraordinary remedy and cannot be used to substitute one judge's discretion for that of another. Furthermore, a discretionary order per se cannot be challenged on Charter grounds as the Charter does not, as I noted in Dagenais, apply to court orders per se.

XVIII. While the Canadian Charter of Rights and Freedoms does not apply to court orders per se, it does apply to common law rules authorizing such court orders. However, this said, I concluded in Dagenais that the common law rule governing the issuance of publication bans in criminal proceedings is consistent with the Charter. Consequently, any challenge to this aspect of the common law must fail.

XIX. Finally, with respect to the remedial powers of certiorari, I agree with Lamer C.J. that currently they are limited to the power to quash the order or decision under review. I leave open the question of whether or not the expansion of these remedial powers proposed by Lamer C.J. in obiter comments in Dagenais is appropriate in the case of the judicial review of publication bans.

XX. For the reasons outlined above, I would dismiss the appeal.

The following are the reasons delivered by

McLachlin J. -- For the reasons given on the jurisdictional issue in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, released concurrently, I agree with the disposition of the Chief Justice.

Appeal dismissed.

Solicitors for the appellant: Robertson Stromberg, Saskatoon.

Solicitor for the respondent Her Majesty the Queen: W. Brent Cotter, Regina.

Solicitors for the intervener: S. Casey Hill and Michal Fairburn, Toronto.