Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 SCC 184

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480

Canadian Broadcasting Corporation Appellant

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 Interveners

Indexed as: Canadian Broadcasting Corp. v. New Brunswick (Attorney General)

File No.: 24305.

1996: March 29; 1996: October 31.

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 new brunswick

Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Freedom of the press ‑‑ Trial judge excluding public and media from courtroom during part of accused’s sentencing proceedings ‑‑ Whether s. 486(1) of Criminal Code infringes freedoms of expression and of the press ‑‑ If so, whether s. 486(1) justifiable in a free and democratic society ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 2(b) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 486(1).

Criminal law ‑‑ Exclusion of public from court ‑‑ Trial judge excluding public and media from courtroom during part of accused’s sentencing proceedings ‑‑ Whether trial judge exceeded his jurisdiction in making such order ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 486(1).

The accused pleaded guilty to two charges of sexual assault and two charges of sexual interference involving young female persons. On a motion by the Crown, consented to by defence counsel, the trial judge ordered the exclusion of the public and the media from those parts of the sentencing proceedings dealing with the specific acts committed by the accused, pursuant to s. 486(1) of the Criminal Code. The order was sought on the basis of the nature of the evidence, which the court had not yet heard and which purportedly established that the offence was of a “very delicate” nature. The exclusion order remained in effect for approximately 20 minutes. Afterwards, following a request by the CBC, the trial judge gave reasons for making the exclusion order, stating that it had been rendered in the interests of the “proper administration of justice”; it would avoid “undue hardship on the persons involved, both the victims and the accused”. The CBC challenged the constitutionality of s. 486(1) before the Court of Queen’s Bench. The court held that s. 486(1) constituted an infringement on the freedom of the press protected by s. 2(b) of the Canadian Charter of Rights and Freedoms but that the infringement was justifiable under s. 1 of the Charter. The court also held that the trial judge had not exceeded his jurisdiction in making the exclusion order. The Court of Appeal affirmed the judgment.

Held: The appeal should be allowed.

(1) Constitutional law issue

The open court principle is one of the hallmarks of a democratic society, fostering public confidence in the integrity of the court system and understanding of the administration of justice. This principle is inextricably tied to the rights guaranteed by s. 2(b) of the Charter. The freedom to express ideas and opinions about the operation of the courts and the right of members of the public to obtain information about them are clearly within the ambit of s. 2(b). As well, s. 2(b) protects the freedom of the press to gather and disseminate this information. Members of the public in general rely and depend on the media to inform them and, as a vehicle through which information pertaining to courts is transmitted, the press must be guaranteed access to the courts in order to gather information. Measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press guaranteed by s. 2(b). To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts. The recognition of the importance of public access to the courts as a fundamental aspect of our democratic society should not be understood, however, as affirming a right to be physically present in the courtroom; there may be a shortage of space. Nor should it be seen as extending public access to all venues within which the criminal law is administered. By its facial purpose, s. 486(1) of the Code restricts expressive activity, in particular the free flow of ideas and information, in providing a discretionary bar on public and media access to the courts. This is sufficient to ground a violation of s. 2(b).

The exclusion of the public under s. 486(1) of the Code is a means by which the court may control the publicity of its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the underreporting of sexual offences. This provision constitutes a reasonable limit on the freedoms guaranteed by s. 2(b) of the Charter. Section 486(1) is aimed at preserving the general principle of openness in criminal proceedings to the extent that openness is consistent with and advances the proper administration of justice. In situations where openness conflicts with the proper administration of justice, s. 486(1) purports to further the proper administration of justice by permitting covertness where necessary. This objective is of sufficient importance to warrant overriding a constitutional freedom. Section 486(1) is also proportionate to the legislative objective. First, the means adopted ‑‑ a discretionary power in the trial judge to exclude the public where it is in the interests of the proper administration of justice ‑‑ is rationally connected to the objective. The trial judge must exercise his discretion in conformity with the Charter and the grant of this judicial discretion necessarily ensures that any order made under s. 486(1) will serve the objective of furthering the administration of justice. If it is not rationally connected to the objective, then the order will constitute an error of law. Second, s. 486(1) impairs the rights under s. 2(b) as little as reasonably possible in order to achieve the objective. The discretion conferred on trial judges by s. 486(1) is not overbroad. Section 486(1) provides an intelligible and workable standard ‑‑ the proper administration of justice ‑‑ according to which the judiciary can exercise the discretion conferred. It also arms the judiciary with a useful and flexible interpretative tool to accomplish its goal of preserving the openness principle, subject to what is required by the proper administration of justice. Again, since the discretion must be exercised in a manner that conforms with the Charter, the discretionary aspect of s. 486(1) guarantees that the impairment is minimal. An order that fails to impair the rights at stake as little as possible will constitute an error. Third, the salutary effects of s. 486(1) outweigh the deleterious effects. Parliament has attempted to balance the different interests affected by s. 486(1) by ensuring a degree of flexibility in the form of judicial discretion, and by making openness the general rule and permitting exclusion of the public only when public accessibility would not serve the proper administration of justice. The discretion necessarily requires that the trial judge weigh the importance of the interests the order seeks to protect against the importance of openness and specifically the particular expression that is limited. In this way, proportionality is guaranteed by the nature of the judicial discretion. In deciding whether to order exclusion of the public pursuant to s. 486(1), a trial judge should bear in mind whether the type of expression that may be impaired by the order infringes upon the core values sought to be protected.

(2) Criminal law issue

In applying s. 486(1) to order the exclusion of the public, the trial judge must exercise his discretion in conformity with the Charter. He must (a) consider available options and whether there are any other reasonable and effective alternatives available; (b) consider whether the order is limited as much as possible; and (c) 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. Additionally, 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. In relation to the proportionality issue, if the order is sought to protect a constitutional right, this must be considered. There must also be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he may exercise his 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.

Since the trial judge considering an application to exclude the public is usually in the best position to assess the demands in a given situation, where the record discloses facts that may support the trial judge’s exercise of discretion, it should not lightly be interfered with. In this case, however, the trial judge erred in excluding the public from any part of the proceedings. There was insufficient evidence to support a concern for undue hardship to the complainants or to the accused. The order was unnecessary to further the proper administration of justice and its deleterious effects were not outweighed by its salutary effects. The mere fact that the victims are young females is not, in itself, sufficient to warrant exclusion. The victims’ privacy was already protected by a publication ban and there was no evidence that their privacy interests required more protection. While the criminal justice system must be ever vigilant in protecting victims of sexual assault from further victimization, the record before the trial judge did not establish that undue hardship would befall the victims in the absence of a s. 486(1) order. Nor did the record reveal that there were any other reasons to justify an exception to the general rule of openness. Finally, barring exceptional cases, there is no issue of hardship to the accused arising from prejudicial publicity once the accused has pleaded guilty.

Cases Cited

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 11(d).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 151 [rep. & sub. c. 19 (3rd Supp.), s. 1], 271(1)(a), 486(1) [am. c. 27 (1st Supp.), s. 203], (3) [rep. & sub. c. 23 (4th Supp.), s. 1].

Authors Cited

Lepofsky, M. David. Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings. Toronto: Butterworths, 1985.

Mill, James. “Liberty of the Press”. In Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations. Reprints of Economic Classics. New York: Augustus M. Kelley, 1967.

APPEAL from a judgment of the New Brunswick Court of Appeal (1994), 148 N.B.R. (2d) 161, 378 A.P.R. 161, 116 D.L.R. (4th) 506, 91 C.C.C. (3d) 560, 32 C.R. (4th) 334, dismissing the appellant’s appeal from a judgment of Landry J. (1993), 143 N.B.R. (2d) 174, 366 A.P.R. 174, dismissing its application to quash an order of Rice Prov. Ct. J. excluding the public and media from part of the sentencing proceedings. Appeal allowed.

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 intervener the Attorney General of Canada.

M. David Lepofsky and James K. Stewart, for the intervener the Attorney General for Ontario.

Deborah Carlson, for the intervener the Attorney General of Manitoba.

Galvin C. Deedman, for the intervener the Attorney General of British Columbia.

Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.

Written submissions only by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.

//La Forest J.//

The judgment of the Court was delivered by

[1] La Forest J. -- This appeal is brought by the Canadian Broadcasting Corporation (“CBC”) from the judgment of the New Brunswick Court of Appeal dismissing an appeal from a decision of Landry J. who had refused to quash an order of Rice Prov. Ct. J. restricting public access to the courtroom. The order in question was made pursuant to s. 486(1) of the Criminal Code, R.S.C., 1985, c. C-46, which reads:

(1) Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room for all or part of the proceedings, he may so order.

The order mandated the exclusion of the public and the media from the courtroom during part of the sentencing proceedings of the respondent, Gerald Carson. A pre-existing non-identification order, made pursuant to s. 486(3) of the Code, was already in effect. The CBC now seeks a declaration that s. 486(1) is of no force or effect as infringing s. 2(b) of the Canadian Charter of Rights and Freedoms and cannot be justified under s. 1 of the Charter. In the alternative, if the provision is held to be constitutionally valid, the CBC seeks a declaration that Rice Prov. Ct. J. exceeded his jurisdiction in making the exclusion order. If such a declaration is made, it further seeks an order quashing the exclusion order and a mandatory order granting access to the media and the public to a transcript of the proceedings held in camera.

I. Facts

[2] The facts are straightforward. The respondent, Gerald Carson, a prominent Moncton resident, pleaded guilty to two charges of sexual assault, contrary to s. 271(1)(a) of the Code, and two charges of sexual interference, contrary to s. 151 of the Code. On motion by Crown counsel, consented to by defence counsel, Rice Prov. Ct. J. ordered the exclusion of the public and the media, with the exception of the accused, the victims, their immediate families and a victim services coordinator, from those parts of the sentencing proceedings dealing with the specific acts committed by Carson. The exclusion order remained in effect for approximately 20 minutes. The order was sought on the basis of the nature of the evidence, which the court had not yet heard, and which purportedly established that the offence was of a “very delicate” nature. Crown counsel further pointed to the fact that the case involved young, female persons.

[3] André Veniot, a CBC reporter, was excluded from the court along with the other members of the media and the public. Shortly after the public had been invited to reattend the proceedings, a lawyer retained by Veniot was granted permission to address the court. She requested that Rice Prov. Ct. J. give reasons for making the exclusion order. In maintaining his order, Rice Prov. Ct. J. stated that it had been rendered in the interests of the proper administration of justice; it would avoid undue hardship to the victims and the accused.

II. Judicial History

Court of Queen’s Bench (1993), 143 N.B.R. (2d) 174

[4] A constitutional challenge to s. 486(1) of the Code was then made before the Court of Queen’s Bench of New Brunswick on the basis of s. 2(b) of the Charter. Landry J., who heard the matter, held that since s. 486(1) limits or prohibits the right of the public and the press to gather and publish information in court proceedings in certain instances, it constitutes an infringement on the freedom of the press protected by s. 2(b).

[5] Landry J. then considered whether the infringement could be saved by s. 1 of the Charter as being reasonable and demonstrably justified in a free and democratic society. He found that s. 486(1) addressed a pressing and substantial objective since it was a mechanism to ensure the "proper administration of justice" (p. 179). He also determined that the infringement is proportionate to that objective. He stated: “There exists a rational connection between the section and the objective, the section impairs the freedom as little as possible and there is some balance between the importance of the objective and the injurious effect of the section” (p. 179). He, therefore, concluded that s. 486(1) is saved by s. 1 of the Charter.

[6] In deciding whether the trial judge had exceeded his jurisdiction in ordering the exclusion of the public, Landry J. noted that the test was not whether he would have excluded the public in the same circumstances. The proper administration of justice, which Rice Prov. Ct. J. relied on, was an appropriate reason for the exercise of his discretion in this case. Landry J. further noted that the public and the press were excluded for a short period of time only and as such he found no injustice had been done to the parties involved in the proceedings. Finally, he stated (at pp. 181-82):

It is important for the proper administration of justice to preserve the discretion provided by s. 486(1) and a Court of Appeal should not substitute its judgment for that of a judge who felt compelled to exercise a discretion as did the judge in the present case. Although this is a borderline case I find that the judge acted within his jurisdiction by excluding the public. It would, however, have been preferable if the judge had elaborated more on his reasons for excluding the public and the press.

Court of Appeal (1994), 148 N.B.R. (2d) 161

Hoyt C.J.N.B. (for the majority)

[7] In the Court of Appeal, Hoyt C.J.N.B. (speaking for himself and Turnbull J.A.) expressed the view that freedom of expression, as protected by s. 2(b) of the Charter, includes the right of the media, as well as any member of the public, to attend criminal trials. He agreed with Landry J.'s finding that s. 486(1) limits freedom of expression and is, therefore, contrary to s. 2(b), but he also agreed that the provision could be saved by s. 1 of the Charter. The case, he found, illustrates why s. 486(1) can be justified; the failure to have made the order would likely have resulted in the further victimization of the complainants, by permitting details of the offences to be published and the possible identification of the complainants. And this was so notwithstanding that a non-publication order was already in effect.

[8] As to the particular exercise of discretion by Rice Prov. Ct. J., he agreed with Landry J. that it was not for him to say whether he would have exercised the discretion in the same fashion. He found it was Rice Prov. Ct. J.’s belief that the young complainants in this case deserved protection. That being so, he concluded: “For this reason alone, I cannot say that he was wrong in making the order, even though, in my view, he may have taken an irrelevant factor into consideration, namely, the protection of the accused from undue hardship” (p. 169). He did not rule out the protection of the accused as a factor in other cases; however, he concluded that Rice Prov. Ct. J.’s other reasons were sufficient.

Angers J.A.

[9] Angers J.A. concurred, but for different reasons. He first observed that most of the issues raised by the appellant were moot since the trial was over and the sentence had been imposed. He further noted that it would be wrong for a non-party to the proceedings to succeed in having an interlocutory order quashed or altered when the parties themselves could not appeal. He next discussed the right to a public trial as a means of protecting the accused. The right was prescribed in s. 486(1) of the Code and guaranteed by s. 11(d) of the Charter. He noted, however, that there was no express right in any legislation, including the Charter, giving the public access to trials; rather, in criminal law the right of the public to be present in court is merely a corollary of the right of the accused to a public trial. As such, it is a subordinate to, and cannot prevail over the principal right. In his view, s. 486(1) provides the necessary guidelines to permit the presiding judge to exercise his or her discretion in a judicial manner. Given the respondent Carson’s consent to the order, he found that a possible infringement of the respondent’s s. 11(d) right did not arise.

[10] Angers J.A. stated that he could not accept that s. 2(b) of the Charter gives the media better access to court proceedings than members of the public. He added (at p. 174):

The principle of a public trial goes beyond a particular accused and must be approached while keeping in mind the reasons that led to the right: that no person be convicted of a criminal offence behind closed doors or on secret and unknown evidence. It is the duty of all those involved in the administration of the criminal justice system to see that the principle is upheld. While the public, through the Attorney General, is involved in the administration of criminal justice, the media per se is not. Its interests are different. Its duty is to inform, its temptation to entertain. It was given and it should have the constitutional freedom to perform its duty to inform, but the gathering of information involves different considerations such as individual privacy, defamation, due process of law, fair trial. . . .

[11] Angers J.A. concluded that s. 486(1) involves a balancing between the constitutional rights of an accused to a public trial and the protection of a certain class of witnesses or potential witnesses. It had nothing to do with, and does not infringe on any freedom of the press to publish what is legally permissible. The argument of the media that freedom to publish necessarily includes freedom to gather information was, in his view, really “misleading and fallacious” (p. 175).

III. Issues

[12] The CBC then sought and was granted leave to appeal to this Court. Two major issues arise in this appeal. The first relates to the constitutionality of s. 486(1) of the Code and is conveniently set forth in the constitutional questions stated by the Chief Justice on September 18, 1995:

Does s. 486(1) of the Criminal Code, R.S.C., 1985, c. C-46, limit the freedom of expression of the press in whole or in part as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?
If so, is the limit one that can be justified in accordance with s. 1 of the Charter?

The second issue is whether Rice Prov. Ct. J. exceeded his jurisdiction in making the order excluding members of the media and the public from a part of the sentencing proceedings, thereby committing reversible error.

[13] Before turning to these issues, I propose to address some preliminary matters raised by the interveners. The first of these matters, brought to our attention by the Attorney General for Ontario, relates to the sequence in which the Court should deal with the issues. He argued that the constitutionality of the provision should not be considered until it has been determined whether Rice Prov. Ct. J. properly exercised his discretion. If he did not, then he acted without jurisdiction, and the constitutional question need not, and should not, be considered. Such an approach may certainly be appropriate in some situations, but in the present case, I am disposed to deal with the constitutional question with a view to providing guidance to courts faced with the issue in the future.

[14] A second preliminary matter, raised by the Attorney General of Canada, concerns the appropriate scope of constitutional review to be undertaken in relation to s. 486(1). Rice Prov. Ct. J. granted the order of exclusion solely on the basis of the “proper administration of justice”. The Attorney General of Canada contends that the Court should not go beyond the circumstances of this case and review the constitutionality on each of the three grounds for exclusion set forth in s. 486(1).

[15] This Court has in the past exhibited a reluctance to consider the constitutionality of legislative provisions in the absence of a proper factual foundation; see Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086. To accede to the appellant’s contention that the other grounds be constitutionally reviewed would require us to conduct such review in the absence of a factual framework, contrary to this Court’s practice. Moreover, it would be dangerous to make a determination of the constitutionality of the other two grounds for exclusion under s. 486(1) by extrapolation from the constitutional review of the proper administration of justice ground; the values and interests invoked may differ depending upon the specific legislative context. It is best, then, to leave to another day the constitutionality of the other two statutory grounds for exclusion, and to focus solely on the ground relied upon by Rice Prov. Ct. J., i.e., the proper administration of justice.

[16] I come then to an analysis of the major issues, beginning with the constitutional issue.

IV. The Constitutional Issue

A. [Section 2(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[17] This appeal engages two essential issues in relation to s. 2(b). The first is integrally linked to the concept of representative democracy and the corresponding importance of public scrutiny of the criminal courts. It involves the scope of public entitlement to have access to these courts and to obtain information pertaining to court proceedings. Any such entitlement raises the further question: the extent to which protection is afforded to listeners in addition to speakers by freedom of expression. The second issue relates to the first, in so far as it recognizes that not all members of the public have the opportunity to attend court proceedings and will, therefore, rely on the media to inform them. Thus, the second issue is whether freedom of the press protects the gathering and dissemination of information about the courts by members of the media. In particular, it involves recognition of the integral role played by the media in the process of informing the public. Both of these issues invoke the democratic function of public criticism of the courts, which depends upon an informed public; in turn, both relate to the principle of openness of the criminal courts.

[18] The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissentient views has long been thought to be a safeguard against state tyranny and corruption. James Mill put it this way:

So true it is, however, that the discontent of the people is the only means of removing the defects of vicious governments, that the freedom of the press, the main instrument of creating discontent, is, in all civilized countries, among all but the advocates of misgovernment, regarded as an indispensable security, and the greatest safeguard of the interests of mankind.

(“Liberty of the Press”, in Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations (1825 (reprint ed. 1967)), at p. 18.)

[19] This Court has had occasion to discuss the freedom to criticize encompassed in freedom of expression and its relation to the democratic process in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, where Cory J. stated that it is difficult to think of a guaranteed right more important to a democratic society than freedom of expression. At page 1336, he declared:

Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.

[20] It cannot be disputed that the courts, and particularly the criminal courts, play a critical role in any democracy. It is in this forum that the rights of the powerful state are tested against those of the individual. As noted by Cory J. in Edmonton Journal, courts represent the forum for the resolution of disputes between the citizens and the state, and so must be open to public scrutiny and to public criticism of their operations.

[21] The concept of open courts is deeply embedded in the common law tradition. The principle was described in the early English case of Scott v. Scott, [1913] A.C. 419 (H.L.). A passage from the reasons given by Lord Shaw of Dunfermline is worthy of reproduction for its precise articulation of what underlies the principle. He stated at p. 477:

It moves Bentham over and over again. “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: “Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.”

[22] The importance of ensuring that justice be done openly has not only survived: it has now become “one of the hallmarks of a democratic society”; see Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 113 (C.A.), at p. 119. The open court principle, seen as “the very soul of justice” and the “security of securities”, acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law. In Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, openness was held to be the rule, covertness the exception, thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice.

[23] The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place. Cory J. in Edmonton Journal described the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory. At pages 1339-40, he states:

That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media. [Emphasis added.]

That the right of the public to information relating to court proceedings, and the corollary right to put forward opinions pertaining to the courts, depend on the freedom of the press to transmit this information is fundamental to an understanding of the importance of that freedom. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d’être of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public’s entitlement to be informed imposes on the media the responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered. The significance of the freedom and its attendant responsibility lead me to the second issue relating to s. 2(b).

[24] 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. In Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, I noted that freedom of the press not only encompassed the right to transmit news and other information, but also the right to gather this information. At pp. 429-30, I stated:

There can be no doubt, of course, that it comprises the right to disseminate news, information and beliefs. This was the manner in which the right was originally expressed, in the first draft of s. 2(b) of the Canadian Charter of Rights and Freedoms before its expansion to its present form. However, the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference. [Emphasis added.]

[25] It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what is transpiring in the courts. To this end, Cory J. stated in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, at p. 475:

The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.

[26] From the foregoing, it is evident that s. 2(b) protects the freedom of the press to comment on the courts as an essential aspect of our democratic society. It thereby guarantees the further freedom of members of the public to develop and to put forward informed opinions about the courts. As a vehicle through which information pertaining to these courts is transmitted, the press must be guaranteed access to the courts in order to gather information. As noted by Lamer J., as he then was, in Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 129: “Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom.” Similarly, it may be said that measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press. To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts.

[27] At this point, however, I should like to make a number of caveats to the recognition of the importance of public access to the courts as a fundamental aspect of our democratic society. First of all, this recognition is not to be confused with, nor do I wish to be understood as affirming a right to be physically present in the courtroom. Circumstances may produce a shortage of physical space, such that individual members of the media and the public may be denied physical access to the courts. In such circumstances, those excluded may have to rely on those present to relay information about the proceedings.

[28] To this I would add a further caveat. I do not accept that the necessary consequence of recognizing the importance of public access to the courts is the recognition of public access to all facets of public institutions. The intervener, Attorney General for Saskatchewan argues that if an open court system is to be protected under s. 2(b) of the Charter on the basis that the public has an entitlement to information about proceedings in the criminal courts, then all venues within which the criminal law is administered will have to be accessible to the public, including jury rooms, a trial judge’s chambers and the conference rooms of appellate courts. The fallacy with this argument is that it ignores the fundamental distinction between the criminal courts, the subject of this appeal, and the other venues mentioned by the intervener. Courts are and have, since time immemorial, been public arenas. The same cannot be said of these other venues. Thus, to argue that constitutional protection should be extended to public access to these private places, on the basis that public access to the courts is constitutionally protected, is untenable.

[29] Furthermore, this Court has noted on previous occasions that public access to certain judicial processes would render the administration of justice unworkable; see MacIntyre, supra. The importance of ensuring that the administration of justice is not rendered unworkable provides a palpable reason for prohibiting public access to many of the other types of processes of which the intervener makes mention. Indeed, as we have seen in this case, the open court principle itself must yield to circumstances that would render the proper administration of justice unworkable.

B. Does Section 486(1) of the Criminal Code Infringe Section 2(b)?

[30] At common law, the rule of public access to the courts was subject to certain exceptions, primarily where it was deemed necessary for the administration of justice. In Scott, supra, Earl Loreburn, at pp. 445-46, described the basis for exclusion of the public from the courts in these terms:

Again, the Court may be closed or cleared if such a precaution is necessary for the administration of justice. Tumult or disorder, or the just apprehension of it, would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general. Or witnesses may be ordered to withdraw, lest they trim their evidence by hearing the evidence of others.

[31] The common law is effectively reflected in the current Canadian statutory form of the rule, s. 486(1) of the Code, which begins with “[a]ny proceedings against an accused shall be held in open court”, thereby preserving and giving statutory effect to the general rule of openness. It then vests in a trial judge the discretion to make an exclusionary order for, among other reasons, the furtherance of the proper administration of justice.

[32] The appellant submits that s. 486(1) infringes s. 2(b) of the Charter. Having said that s. 2(b) protects the freedom of the press to gather and disseminate information relating to court proceedings, and protects the freedom of the public to comment upon our criminal courts as an essential attribute of our democratic society, a provision that excludes the public and the media from the courtroom must infringe s. 2(b).

[33] By its facial purpose, s. 486(1) restricts expressive activity, in particular the free flow of ideas and information, in providing a discretionary bar on public and media access to the courts. This is sufficient to ground a violation; any provision that has as its purpose the restriction of expression will necessarily violate s. 2(b); see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 974.

[34] Admittedly, s. 486(1) only permits such restriction on freedom of expression and freedom of the press where values of superordinate importance so require. To this end, the respondents argue that s. 486(1) supports, as opposed to violates, the values of the Charter, in that it permits the courts to maintain control over their own processes, as well as advancing core values including the protection of victims and witnesses, privacy interests and inherent limitations on freedom of expression such as public order and decency. In answer to the respondents’ submissions, however, it is to be noted that this Court has repeatedly favoured a balancing of competing interests at the s. 1 stage of analysis. Specifically, Dickson C.J. stated in R. v. Keegstra, [1990] 3 S.C.R. 697, that “s. 1 of the Charter is especially well suited to the task of balancing” and found that freedom of expression jurisprudence supported that view. He continued, at p. 734:

It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1. [Emphasis in original.]

[35] This approach was again adopted in the recent case of Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, where the broad, purposive interpretation to be favoured in relation to s. 2(b) is discussed. At para. 75, it is stated that “[t]he important thing is that the competing values of a free and democratic society have to be adequately weighed in the appropriate context.” Thus, I conclude that s. 486(1) of the Code infringes s. 2(b) of the Charter and leave to s. 1 an assessment of the competing interests and factors tending to justify restrictions on the guaranteed freedom.

C. Section 1 Analysis

[36] I turn now to an examination of whether s. 486(1) is reasonable and demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter following the analytical framework developed by this Court in R. v. Oakes, [1986] 1 S.C.R. 103. But in undertaking this task, it must be remembered, a formalistic approach must be avoided. Regard must be had to all circumstances. The Court thus described the proper approach to be taken in Ross, supra, at para. 78:

. . . the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. This involves a close attention to context. McLachlin J. in RJR-MacDonald, supra, reiterated her statement in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at pp. 246-47, that conflicting values must be placed in their factual and social context when undertaking a s. 1 analysis. [Emphasis added.]

Having affirmed the flexible and contextual approach to be taken, it is apposite to examine the context within which this appeal arises in light of the specific values engaged.

[37] The first such value is the power vested in courts of criminal jurisdiction to control their own process in furtherance of the rule of law. This was recognized in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, where McLachlin J. noted that “[t]he rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect” (p. 931). Similarly, in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, this Court referred to the English decision of Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.), where, at p. 1081, it was said:

The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it.

In B.C.G.E.U., supra, Dickson C.J. affirmed the power of courts to act in furtherance of the proper administration of justice. While said in the context of discussing contempt of court, the principle of permitting a court to control its own process may be said to extend to situations, such as the one at bar, where the court is granted a discretion to act in the interests of the proper administration of justice to exclude the public from criminal proceedings.

[38] Related to a court’s power to control its own process is the power to regulate the publicity associated with its proceedings. As such, it has been held that a legislative provision mandating a publication ban upon request by the complainant or prosecutor in sexual assault cases is constitutional; see Canadian Newspapers, supra. This Court has also recognized a common law discretion on the part of courts to order a publication ban; see Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.

[39] The court’s power to regulate the publicity of its proceedings serves, among other things, to protect privacy interests, especially those of witnesses and victims. In MacIntyre, supra, Dickson J., as he then was, noted that “[m]any times it has been urged that the ‘privacy’ of litigants requires that the public be excluded from court proceedings” (p. 185) and in the course of weighing this interest against the interest of public access to court proceedings held that the protection of the innocent from unnecessary harm “is a valid and important policy consideration” (p. 187). Stating that the “curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance” (pp. 186-87), he identified the protection of the innocent as among these values.

[40] While the social interest in protecting privacy is long standing, its importance has only recently been recognized by Canadian courts. Privacy does not appear to have been a significant factor in the earlier cases which established the strong presumption in favour of open courts. That approach has generally continued to this day, and this appears inherent to the nature of a criminal trial. It must be remembered that a criminal trial often involves the production of highly offensive evidence, whether salacious, violent or grotesque. Its aim is to uncover the truth, not to provide a sanitized account of facts that will be palatable to even the most sensitive of human spirits. The criminal court is an innately tough arena.

[41] Bearing this in mind, mere offence or embarrassment will not likely suffice for the exclusion of the public from the courtroom. As noted by M. D. Lepofsky in Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (1985), at p. 35: “Proceedings cannot be closed only because the subject of the charges relates to purportedly morality-tinged topics such as sex.” In the course of the balancing exercise under s. 1, the exigencies and realities of criminal proceedings must be weighed in the analysis.

[42] Nonetheless, the right to privacy is beginning to be seen as more significant. Thus Cory J. in Edmonton Journal, supra, considered that the protection accorded the privacy of individuals in a legislative enactment related to a pressing and substantial concern and underlined its importance in Canadian law. In this area of the law, however, privacy interests are more likely to be protected where it affects some other social interest or where failure to protect it will cause significant harm to the victim or to witnesses. This is particularly so of sexual assault cases. As L’Heureux-Dubé J. recently put it in R. v. O’Connor, [1995] 4 S.C.R. 411, a case involving the production of complainants’ medical records in relation to charges of sexual offences (at para. 158):

This Court has already recognized that society has a legitimate interest in encouraging the reporting of sexual assault and that this social interest is furthered by protecting the privacy of complainants: [[R. v. Seaboyer, [1991] 2 S.C.R. 577]](https://www.canlii.org/en/ca/scc/doc/1991/1991canlii76/1991canlii76.html), at pp. 605-6. Parliament, too, has recognized this important interest in s. 276(3)(b) of the Criminal Code.

Similar views had earlier been expressed by Lamer J., in Canadian Newspapers, supra; see also L’Heureux-Dubé J. in R. v. L. (D.O.), [1993] 4 S.C.R. 419, at pp. 441-42.

[43] So far as s. 486(1) of the Code is concerned, then, exclusion of the public is a means by which the court may control the publicity of its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the underreporting of sexual offences.

[44] Having set forth the relevant context, the s. 1 analysis developed in Oakes, supra, may now be undertaken. This approach requires two things to be established: the impugned state action must have an objective of pressing and substantial concern in a free and democratic society; and there must be proportionality between the objective and the impugned measure.

(1) Legislative Objective

[45] To constitute a justifiable limit on a right or freedom, Oakes tells us, the objective of the impugned legislation must advance concerns that are pressing and substantial in a free and democratic society. The appellant CBC maintains that the legislative objective of s. 486(1) is “to allow the exclusion of the public in criminal proceedings if it is in the interests of: (1) the safeguard of public morals; (2) the maintenance of order; or (3) the proper administration of justice”. I have already indicated my intention to confine this appeal to consideration of the third branch for exclusion, the “proper administration of justice”. As to this branch, the CBC concedes its pressing and substantial nature, but notes its imprecision.

[46] I would characterize the objective somewhat differently. Section 486(1) aims at preserving the general principle of openness in criminal proceedings to the extent that openness is consistent with and advances the proper administration of justice. There are situations where openness conflicts with the proper administration of justice. The provision purports to further the proper administration of justice by permitting covertness where necessary. This recharacterization of the objective leaves intact that which the appellant conceded was of a pressing and substantial nature: the exclusion of the public from criminal proceedings in three specific cases. In light of the appellant’s concession, I do not intend to say more than that this objective clearly passes the first step of the s. 1 analysis.

[47] The second step, or the proportionality inquiry, is broken down into three further requirements that must be established, namely: the legislative measure must be rationally connected to the objective; it must impair the guaranteed right or freedom as little as possible; and there must be proportionality between the deleterious effects of the measures and their salutary effects; see RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 60.

(2) Proportionality

(a) Rational Connection

[48] In an attempt to discern whether the legislative means are rationally connected to the legislative objective, McLachlin J., in RJR-MacDonald, supra, at para. 154, noted that in some cases, the relationship between the infringement of the rights and the benefit sought to be achieved may not be “scientifically measurable”. In such cases, she continued, “this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective”. It was also my view in RJR-MacDonald, supra, that a common-sense analysis was sufficient to satisfy the rational connection branch. In the present case, where the benefit sought to be realized by the operation of s. 486(1) is the furtherance of the administration of justice, the benefit is not scientifically measurable; nor is the relationship between the benefit and the infringement. As such, it is appropriate to proceed under the rational connection inquiry on the basis of logic and reason.

[49] Whether s. 486(1) is rationally connected to the legislative objective requires a determination of whether the particular legislative means adopted -- a discretionary power in the trial judge to exclude the public where it is in the interests of the proper administration of justice -- serves the legislative objective.

[50] The discretionary element of s. 486(1) is crucial to the analysis. In this respect, the Court has held discretion to be an essential feature of the criminal justice system. As was noted in R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, a “system that attempted to eliminate discretion would be unworkably complex and rigid”. In some cases, the Criminal Code provides no guidelines for the exercise of discretion, and yet, as was stated in Beare, supra, “[t]he day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion” (p. 411).

[51] In Dagenais, supra, Lamer C.J. discussed the common law discretion to order a publication ban and held that a discretionary power cannot confer the power to infringe the Charter. The discretion must be exercised within boundaries set by the Charter; an exercise of discretion exceeding these boundaries would result in reversible error. The Chief Justice further held that a publication ban should only be ordered when two things are established: (1) that the ban is necessary to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (2) that the salutary effects of the ban outweigh the deleterious effects to the free expression of those affected by it. This standard, he noted, “clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter” (p. 878). Accordingly when a judge orders a ban that contravenes this standard, the judge commits an error of law, and the order is reviewable on that basis.

[52] In applying s. 486(1), then, a court must exercise its discretion in conformity with the Charter. In this way, the judicial discretion guarantees that any order made pursuant to s. 486(1) will be rationally connected to the legislative objective of furthering the proper administration of justice. Once we accept the importance of discretion as an integral aspect of our criminal justice system, then the case for discretion in the hands of the courts is perhaps the strongest. In R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, Gonthier J. discussed the need for limitations on law enforcement discretion. This need is met where the discretion is vested in the courts, because the exercise of discretion is reviewable.

[53] Thus, the grant of judicial discretion in s. 486(1) necessarily ensures that any order made will be rationally connected to the legislative objective. If it is not, then the order will constitute an error of law; the proper course in such a case is to review the particular exercise of discretion and provide an appropriate remedy. Section 486(1) sets up a means, logically connected to the legislative objective of furthering the proper administration of justice, which permits a court to order the exclusion of the public where an open court would impede this objective.

[54] The appellant contends that vesting in inferior courts the discretion to make a s. 486(1) order on the ground of the proper administration of justice is to provide insufficient guidance to courts in the exercise of their discretion. This contention is essentially an allegation that the legislation is vague or overbroad. I find it more appropriate to deal with the vagueness argument under the minimum impairment branch of the analysis. It is to this that I now turn.

(b) Minimal Impairment

[55] In examining whether s. 486(1) impairs the rights under s. 2(b) as little as reasonably possible in order to achieve its objective, I begin by referring to McLachlin J.’s articulation of this requirement in RJR-MacDonald, supra, at para. 160: “The impairment must be ‘minimal’, that is, the law must be carefully tailored so that rights are impaired no more than necessary.” However, she qualified this somewhat by noting that the tailoring process will rarely admit of perfection and thus, if the law “falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement”.

[56] I have noted the appellant’s submission that the discretion conferred on trial judges by s. 486(1), to exclude the public from the courts in the interests of the proper administration of justice, is vague. In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, Sopinka J. discussed the concept of vagueness and the ways in which it could arise (at pp. 94-95):

Vagueness can have constitutional significance in at least two ways in a s. 1 analysis. A law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint on governmental power. The uncertainty may arise either from the generality of the discretion conferred on the donee of the power or from the use of language that is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools. In these circumstances, there is no “limit prescribed by law” and no s. 1 analysis is necessary as the threshold requirement for its application is not met. The second way in which vagueness can play a constitutional role is in the analysis of s. 1. A law which passes the threshold test may, nevertheless, by reason of its imprecision, not qualify as a reasonable limit. Generality and imprecision of language may fail to confine the invasion of a Charter right within reasonable limits. In this sense vagueness is an aspect of overbreadth. [Emphasis added.]

[57] Allegations of overbreadth, of which allegations of vagueness are said to be an aspect, are more appropriately dealt with in relation to minimal impairment; see Osborne, supra, at p. 95. In the present case, the appellant’s submission as to vagueness relates more to imprecision and generality, than to an allegation that s. 486(1) is incapable of interpretation with any degree of precision and thus not a limit prescribed by law. (I note that Gonthier J. writing in Nova Scotia Pharmaceutical Society, supra, preferred to reserve the term “vagueness” for the most serious degree of vagueness where the law could not be said to constitute a “limit prescribed by law” and to use overbreadth for the other aspect of vagueness. My use of “vagueness” in this case should be construed as meaning “overbreadth”.)

[58] In Osborne, Sopinka J. discussed vagueness in relation to the granting of wide discretionary powers and held that “[m]uch of the activity of government is carried on under the aegis of laws which of necessity leave a broad discretion to government officials” (p. 95). He then cited a passage from Irwin Toy, supra, at p. 983, in which this Court held that the law is rarely an exercise in absolute precision and that the question is whether there is an intelligible standard to guide the judiciary in doing its work.

[59] Section 486(1) provides an intelligible standard -- the proper administration of justice -- according to which the judiciary can exercise the discretion conferred. The phrase “administration of justice” appears throughout legislation in Canada, including the Charter. Thus, “proper administration of justice”, which of necessity has been the subject of judicial interpretation, provides the judiciary with a workable standard.

[60] Section 486(1) arms the judiciary with a useful and flexible interpretative tool to accomplish its goal of preserving the openness principle, subject to what is required by the proper administration of justice, and the discretionary aspect of s. 486(1) guarantees that the impairment is minimal. Again relying upon the fact that the discretion must be exercised in a manner that conforms with the Charter, the discretion bestowed upon the court by s. 486(1) ensures that a particular exclusionary order accomplishes just what is necessary to advance the interests of the proper administration of justice and no more. An order may be made to exclude certain members of the public, from part or all of the proceedings, and for specific periods of time. As such, an order that fails to impair the rights at stake as little as possible will constitute an error. This is exemplified by R. v. Brint (1979), 1979 ALTASCAD 17, 45 C.C.C. (2d) 560 (Alta. S.C., App. Div.), where a new trial was ordered when it was found that a trial judge had ordered the entire trial to be held in camera when the facts established that the proper administration of justice only required the complainant’s evidence to be taken in camera. The case illustrates that the public should only be excluded from the part of the proceedings where public access would offend against the proper administration of justice.

[61] The order should be limited as much as possible. In Dagenais, supra, Lamer C.J. stated that a publication ban should only be ordered where it is necessary, and where reasonably available alternatives would not accomplish the same result. The same is true of the discretion accorded by s. 486(1) of the Code.

(c) Proportional Effects

[62] The “proportional effects” stage of the analysis requires a consideration of whether the deleterious effects of s. 486(1) outweigh the salutary effects of excluding the public from the courts where it is required by the proper administration of justice. Parliament has attempted to balance the different interests affected by s. 486(1) by ensuring a degree of flexibility in the form of judicial discretion, and by making openness the general rule and permitting exclusion of the public only when public accessibility would not serve the proper administration of justice. The discretion necessarily requires that the trial judge weigh the importance of the interests the order seeks to protect against the importance of openness and specifically the particular expression that is limited. In this way, proportionality is guaranteed by the nature of the judicial discretion.

[63] It is important to stress that the particular expression that is limited in a given case may impact upon the s. 1 balancing. In RJR-MacDonald, supra, I noted that the evidentiary requirements of s. 1 analysis will vary substantially with the nature of the right infringed. In the case of freedom of expression, this Court has consistently held that the level of constitutional protection to which expression will be entitled varies with the nature of the expression. More specifically, the protection afforded freedom of expression is related to the relationship between the expression and the fundamental values this Court has identified as being the “core” values underlying s. 2(b). I put the matter this way in RJR-MacDonald, at para. 72:

Although freedom of expression is undoubtedly a fundamental value, there are other fundamental values that are also deserving of protection and consideration by the courts. When these values come into conflict, as they often do, it is necessary for the courts to make choices based not upon an abstract, platonic analysis, but upon a concrete weighing of the relative significance of each of the relevant values in our community in the specific context. This the Court has done by weighing freedom of expression claims in light of their relative connection to a set of even more fundamental values. In Keegstra, supra, at pp. 762-63, Dickson C.J. identified these fundamental or “core” values as including the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process. [Emphasis added.]

This Court has subjected state action that jeopardizes these “core” values to a “searching degree of scrutiny”. Where, on the other hand, the expression in question lies far from the “centre core of the spirit” of s. 2(b), state action restricting such expression is less difficult to justify.

[64] In the case of s. 486(1), the type of expression impaired will vary from case to case. This makes it difficult to consider the extent to which the expression restricted by s. 486(1) relates to the “core” values under a s. 1 analysis, in light of the fact that the expression will not always be of the same type. For example, some expression that is restricted by s. 486(1) may be connected to the “core” values. The expression may relate to the ability of the public to participate in and contribute to the democratic system. By restricting public access to the expressive content of court proceedings, s. 486(1) inhibits informed public criticism of the court system, thereby directly impeding public participation in our democratic institutions, one of the “core” values protected by s. 2(b) of the Charter. However, in other cases, s. 486(1) may be used to exclude the public from proceedings where the presence of the public would impede a witness’s ability to testify, thereby impairing the attainment of truth, another “core” value; see R. v. Lefebvre (1984), 17 C.C.C. (3d) 277, [1984] C.A. 370; R. v. McArthur (1984), 13 C.C.C. (3d) 152 (Ont. H.C.). On the other hand, exclusion may be ordered from that part of the proceedings where the most lurid or violent details of the offence are recounted, such that the restricted expression would lie far from the core of s. 2(b). In the end, the important point is that in deciding whether to order exclusion of the public pursuant to s. 486(1), a trial judge should bear in mind whether the type of expression that may be impaired by the order infringes upon the core values sought to be protected.

[65] In sum, it is my view that the means enacted pursuant to s. 486(1) are proportionate to the legislative objective. It must be recalled that the appropriate means of remedying a particular exclusionary order having deleterious effects outweighing its salutary effects is through judicial review of the given order.

[66] From the foregoing analysis, I conclude that s. 486(1) constitutes a justifiable limit on the freedom of expression guaranteed by s. 2(b) of the Charter and is thereby saved by s. 1.

V. The Discretion

A. Manner of Exercise

[67] Much of my s. 1 analysis has turned on the fact that s. 486(1) vests a discretion in the trial judge. In view of the reliance I have placed on discretion in assessing constitutional validity, I think the manner in which this discretion is to be exercised warrants some discussion beyond the simple assertion that it must comply with the Charter. In doing so, I will restrict my comments to exclusion in the interest of the “proper administration of justice”.

[68] In Dagenais, supra, this Court reviewed the constitutionality of a publication ban ordered pursuant to the common law rule. As I have already mentioned, Lamer C.J. stated that the common law rule governing the issuance of publication bans must comply with the principles of the Charter. As he put it: “Since the common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error of law on the face of the record” (p. 865). Holding that the exercise of discretion must be consistent with the Charter, Lamer C.J. set out a list of general guidelines for future cases. These guidelines essentially impose on the trial judge the requirements of a s. 1 balancing at the stage of determining whether or not to order a ban. These include three directives which echo the three steps of the proportionality analysis of the Oakes test.

[69] The same directives are equally useful in assisting the trial judge in exercising his or her discretion within the boundaries of the Charter when exercising the judicial discretion to order exclusion of the public under s. 486(1). Stated in the context of such an order, the trial judge should, therefore, be guided by the following:

(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.

[70] Additionally, I provide the following for guidance on the procedure to be undertaken upon an application for a s. 486(1) order.

[71] The burden of displacing the general rule of openness lies on the party making the application. As in Dagenais, supra, 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. In relation to the proportionality issue, if the order is sought to protect a constitutional right, this must be considered.

[72] 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. For example, in the present case, a voir dire could have been held to permit the Crown to disclose the facts not known to Rice Prov. Ct. J. in an effort to provide him with a more complete record from which to make his decision. 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.

[73] A sufficient evidentiary basis permits a reviewing court to determine whether the evidence is capable of supporting the decision. In this regard, in R. v. Vandevelde (1994), 89 C.C.C. (3d) 161 (Sask. C.A.), Vancise J.A., at p. 171, referred to the concurring reasons of Kaufman J.A. in Lefebvre, supra, at pp. 282-83 C.C.C., who stated:

. . . public trials are the order . . . and any exceptions (as provided for in s. 442) [now s. 486(1)] must be substantiated on a case by case basis. In my respectful view, it is not good enough to say “the nature of this case is sexual”, and an in camera hearing should, therefore, be imposed. Nor, with respect, is it sufficient for a judge to say that he or she would follow the “current practice”.

Discretion is an important element of our law. But, it can only be exercised judiciously when all the facts are known . . . . [Emphasis added by Kaufman J.A.]

[74] Similarly, in the Alberta Court of Appeal’s decision in Brint, supra, McGillivray C.J.A., noting that a trial in open court is “fundamental to the administration of justice in this country”, stated that exclusion could only be ordered where “there are real and weighty reasons”. A sufficient evidentiary basis allows the judge to determine whether such reasons exist; see R. v. Quesnel and Quesnel (1979), 51 C.C.C. (2d) 270 (Ont. C.A.), where the court found there was insufficient information before the trial judge to enable him to order any part of the Crown’s case held in camera; see also Vandevelde, supra, where the court held that the party seeking the order must place sufficient evidence before the trial judge to permit a judicious exercise of discretion.

[75] The information available to the trial judge must also allow a determination as to whether the order is necessary in light of reasonable and effective alternatives, whether the order has been limited as much as possible and whether the positive and negative effects of the order are proportionate.

[76] Finally, I must address the exercise of judicial discretion in this case and, specifically, the order made by Rice Prov. Ct. J. In doing this, it is only fair to say that Rice Prov. Ct. J. made his order prior to this Court’s decision in Dagenais, supra. He did not, therefore, have the benefit of the three-part inquiry that I have discussed above and adapted to the particular s. 486(1) context.

B. Review of Judicial Discretion

[77] In reviewing the trial judge’s decision to exclude the public from part of the proceedings, it must be remembered that the trial judge is usually in the best position to assess the demands of the given situation. In Lefebvre, supra, the Quebec Court of Appeal found that the trial judge had acted judicially in excluding the public where a witness might have suffered stress from the circumstances of the case rendering her incapable of testifying. It continued (at p. 280 C.C.C.):

[translation] [The trial judge] saw the witness and he could appreciate the stress which she was affected by. Sitting in appeal, and not having had the benefit of seeing and hearing the witness, I am of the opinion that it is not appropriate for this court to question the decision of the trial judge.

The court stated that where a victim of sexual assault does not want to give evidence because of the stress created by the presence of too many people, this could adversely affect the proper administration of justice. It concluded that the trial judge was in the best position to consider the victim’s nervousness and was aware of the facts that would be revealed by that witness.

[78] Where the record discloses facts that may support the trial judge’s exercise of discretion, it should not lightly be interfered with. The trial judge is in a better position to draw conclusions from the facts he or she sees and hears, and upon which he or she may exercise the judicial discretion. This, however, presupposes that the trial judge has a sufficient evidentiary or factual basis to support the exercise of discretion and that the evidence is not misconstrued or overlooked.

[79] In the present case, Rice Prov. Ct. J. had this to say in support of his decision to exclude the public from part of the sentencing proceedings:

The application made under 486(1) and the ban -- I granted the order on the third ground that is for the proper administration of justice. The reason for that is that I am privy, due to documentation which I have before me, and did have before me prior to the application being made before -- by request -- I had it delivered to me prior to today’s hearing which is normal. On the opinion that the proper administration of justice -- in order for the court to have at least on the court record the exact nature of the events including some of the details with regard to those events -- in order for justice to properly be done, it was necessary to do these, to -- sorry, to have these facts presented to me in the manner in which they subsequently were and that was the basis of the order. I quite often make orders in this regard. This is the first time that I have been challenged, but that’s alright, you are entitled to challenge it. . . . But, however, if these facts were to be presented for the exposure to the public, it would cause I think a great undue hardship on the persons involved, both the victims and the accused, although no representations were made on behalf of the accused other than Mr. Letcher’s consent to Mr. Wood’s application for the exclusion, and that is the reason. I think that the important thing is that the court know what the facts -- they were presented to me in the manner in which I think would have embarrassed unnecessarily other people but I think that it was important for me to know. Thus, I think that the ground was, for the proper administration of justice, I say some of the facts I knew beforehand or some I had some idea, I didn’t know exactly what the facts were thus the Order.

[80] The appellant focuses upon the judge’s finding that public access would have embarrassed some people, and submits that this is not a sufficient ground upon which to exclude the public, citing Quesnel, supra, in support of this submission. In Quesnel, the Ontario Court of Appeal held that the embarrassment of witnesses “alone is not reason to suppose that truth is more difficult or unlikely or that the witness will be so frightened as to be unable to testify” (p. 275). While it is true that this would not suffice if it were the only ground for exclusion, the decision to exclude was not solely based upon a finding that a public presence would embarrass the witnesses. Rice Prov. Ct. J. also mentioned “great undue hardship on the persons involved, both the victims and the accused” among his reasons for making the order.

[81] With respect to concerns relating to undue hardship, it is my view that where the circumstances and evidence support such concerns, “undue hardship on the persons involved” may, in the interests of the proper administration of justice, amount to a legitimate reason to order exclusion. The question is whether this reason is valid in the circumstances here. My conclusion with respect to this question is that the validity of these concerns is fatally impaired both in relation to the victims and to the accused.

[82] I will deal first with the concerns of undue hardship to the victims. Neither the record nor the reasons provided by the Crown support a finding that the proper administration of justice required the exclusion of the public from part of the sentencing proceedings. In making his order, Rice Prov. Ct. J. had the benefit of victim impact statements and a pre-sentence report. The latter, however, was not included in the record before this Court. The victim impact statements did not disclose evidence of undue hardship that would ensue as a result of public attendance during the sentencing proceedings, nor did they disclose the circumstances of the sexual offences that were ultimately divulged during sentencing. Indeed, Rice Prov. Ct. J. expressly stated that he did not have all the facts before him in making the order: “I say some of the facts I knew beforehand or some I had some idea, I didn’t know exactly what the facts were thus the Order.”

[83] In its submission, the Crown gave the following in support of his application for a s. 486(1) order:

The nature of the evidence, of which the court hasn’t heard, that constitutes the offence is very delicate. It involves young persons, female persons, and I would just ask maybe the court would consider invoking [s. 486(1)] for purposes of --

Most sexual assault cases involve evidence that may be characterized as “very delicate”. The evidence did not establish that this case is elevated above other sexual assaults. This point was conceded by the Crown during oral submissions.

[84] The mere fact that the victims are young females is not, in itself, sufficient to warrant exclusion. There were other effective means to protect them. Indeed, the privacy of the victims was already protected by a non-publication order by which their identities were withheld from the public. There was no evidence that their privacy interests required more protection. The victims were not witnesses in the proceedings, the evidence of particulars of the offences having been read in by the Crown. As such, no stress could be said to emanate from their having to testify, and the protection of witnesses was in no way jeopardized. While the criminal justice system must be ever vigilant in protecting victims of sexual assault from further victimization, it is my view that the record before Rice Prov. Ct. J. did not establish that undue hardship would befall the victims in the absence of a s. 486(1) order. Nor did the record reveal that there were any other reasons to justify an exception to the general rule of openness.

[85] The importance of a sufficient factual foundation upon which the discretion in s. 486(1) is exercised cannot be overstated, particularly where the reasons given by the trial judge in support of an exclusion order are scant. In this case, the record does not reveal that such a foundation existed or that the facts known to Rice Prov. Ct. J. established that the proper administration of justice required exclusion of the public in the interests of the victims.

[86] At this point, I would pause to sympathize with the position in which the trial judge found himself. His sensitivity to the complainants cannot be overlooked, nor should it be. And where the record discloses sufficient information to legitimate concerns for undue hardship to the complainants, then exclusion of the public may be necessary for the proper administration of justice. However, in this case, exclusion cannot be justified on this ground in the absence of more than is disclosed by the record.

[87] As to the concern expressed for undue hardship to the accused, barring exceptional cases, I cannot think there is any issue of hardship to the accused arising from prejudicial publicity once the accused has pleaded guilty. The publicity associated with a public trial will in almost every case cause some prejudice to the accused. The criminal justice system has addressed much of the potential for prejudice with procedural safeguards to ensure that trials do not proceed in the absence of reasonable and probable grounds, and that fairness is protected. Once an accused has pleaded guilty, however, prejudice is greatly diminished as the risk of having wrongly accused the person being tried is eliminated.

[88] The fact that closure of the court was only ordered during the sentencing proceedings bears considerably upon my determination that the accused was not likely to suffer undue hardship in this case. As alleged by the intervener Attorney General for Ontario, the deterrence and public denunciation functions of sentencing are not to be undervalued. Public scrutiny of criminal sentencing advances both these functions by subjecting the process to the public gaze and its attendant condemnation. The type of expression restricted in this case, expression relating to the sentencing process, weighs in favour of maintaining open court. In any criminal case, the sentencing process serves the critically important social function of permitting the public to determine what punishment fits a given crime, and whether sentences reflect consistency and proportionality. In sexual assault cases, the importance of subjecting sentencing to public scrutiny is especially strong. “Sexual assault” in law encompasses a wide array of different types of activities, with varying penalties. It is, therefore, essential to inform the public as to what is encompassed in the term “sexual assault” and the range of punishment it may attract.

[89] In this case, there was insufficient evidence to support a concern for undue hardship to the accused or to the complainants. 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. On the whole, and with some reluctance in light of the proper deference to be accorded the exercise of discretion in these types of cases, I conclude that Rice Prov. Ct. J. erred in excluding the public from any part of the proceedings.

VI. Disposition

[90] Following oral argument for the appellant on the constitutional issue, the Chief Justice gave judgment for the Court that s. 486(1) of the Code was constitutionally valid. On this aspect, then, all that requires to be done is to respond to the constitutional questions.

[91] On the exclusion order of Rice Prov. Ct. J., I find that he improperly exercised his discretion in the circumstances of this case.

[92] Accordingly, the appeal is allowed and the judgment of the Court of Appeal on this point is reversed. I would quash the exclusion order and order access to the media and the public to the transcript of that part of the proceedings held in camera. Both constitutional questions are answered in the affirmative.

Appeal allowed.

Solicitors for the appellant: Stewart McKelvey Stirling Scales, Moncton.

Solicitor for the respondents: The Office of the Attorney General, Fredericton.

Solicitor for the intervener the Attorney General of Canada: George Thomson, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Vancouver.

Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General for Saskatchewan: W. Brent Cotter, Regina.

Solicitor for the intervener the Attorney General for Alberta: Jack Watson, Edmonton.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 SCC 184

Case Summary

I. Facts

II. Judicial History

III. Issues

IV. The Constitutional Issue

B. Does Section 486(1) of the Criminal Code Infringe Section 2(b)?

C. Section 1 Analysis

(1) Legislative Objective

(2) Proportionality

(a) Rational Connection

(b) Minimal Impairment

(c) Proportional Effects

V. The Discretion

A. Manner of Exercise

B. Review of Judicial Discretion

VI. Disposition

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2