The Constitutionality of Publication Bans
Yesterday, the Supreme Court of Canada heard two appeals testing the constitutionality of s. 517 (the publication ban provision) of the Criminal Code, RSC, 1985, c C-46. In both cases, the court found that s. 517 infringed the guarantee of freedom of expression under the s. 2(b) of the Charter. Opinions differed, however, as to whether this infringement was demonstrably justified under the Charter‘s s. 1.
R v White
Decided late last year, R v White, 2008 ABCA 294 [White] was the first case heard. In it, the chambers judge concluded that the objective of s. 517 is to protect the accused’s right to a fair trial by an impartial jury, and that this objective was sufficiently pressing and substantial to meet the first stage of the s. 1 justification test of R v Oakes,  1 SCR 103 [Oakes]. In the remaining other stages of the Oakes test (rational connection, minimal impairment, and proportionality), however, the chambers judge held that the mandatory aspect of the provision was wholly unconstitutional, and the discretionary aspect was unjustifiable in a non-jury context. With the text of the relevant provision being:
517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. [Emphasis added]
The chambers judge ordered that the mandatory portion of “and shall on application by the accused” be declared invalid, and that “[w]here a jury trial is possible” be read in at the beginning of the section.
The focal point of the Alberta Court of Appeal’s disagreement with the chambers judge’s ruling was his view of the objective(s) of the provision. Justice Slatter, writing for the court, held that the chambers judge had taken too narrow a view by holding that the law’s objective was solely to protect the accused’s right to a fair trial by an impartial jury. The court identified at least seven additional objectives directed at preservation of fair bail hearing and a fair trial (as summarized by Justice Rosenberg in the other case under discussion today, Toronto Star Newspapers Ltd v Canada, 2009 ONCA 59 [Toronto Star]):
(a) The mandatory ban is necessary because placing any burden on the accused undermines the presumption of innocence and the right to remain silent. For example, it would be inappropriate to expect an accused to rebut evidence at the bail hearing directed at his character, lifestyle and associates prior to trial.
(b) It is unfair to expect the accused to “defend his entitlement to judicial interim release on fair terms against the interests of the media”.
(c) It is illogical to expect the accused to identify in advance the “specific evidence” that would justify a publication ban, especially since bail hearings are conducted informally without strict application of the rules of evidence and before the Crown has made full disclosure.
(d) It would be impossible for the judge to rule on the application without first hearing the evidence; while the judge could make a temporary ban, the accused would have to gamble on whether the ban would be made permanent.
(e) Requiring the accused to justify a publication ban could require preparation on the part of the accused and thus delay the bail hearing.
(f) The proceedings would be lengthened with the intervention of third parties such as the media and the need to call expert evidence.
(g) The expenditure of time and resources for the many bail hearings that are heard each day cannot be justified on a systemic basis.
Justice Slatter found that “[t]he very narrow view taken of the objectives of the section affected the application of all the subsequent stages of the Oakes test.” Thus, in light of these additional objectives, the court found that the mandatory aspect of s. 517 was rationally connected to them, that its impairment was minimal, and that its salutary effects were proportionate to its deleterious effects. s. 517 was held to be justified under s. 1 of the Charter.
Toronto Star Newspapers Ltd v Canada
Decided early this year, Toronto Star answered the constitutional question differently. Justice Rosenberg, dissenting (Justice Juriansz concurring), wrote the bulk of the judgment, writing first and dealing with the preliminary procedural issues.
Going into the Oakes analysis, Justice Rosenberg characterized the objective of the infringement, which he found to be sufficiently pressing and substantial, as follows:
Section 517 ensures that accused have a fair trial by an impartial jury, by providing the accused with an effective and expeditious means to prevent jurors from being exposed to prejudicial information that may be disclosed at the bail hearing.
Relying on the “common sense” standard of Justice McLachlin (as she then was) in RJR-MacDonald Inc v Canada (Attorney General),  3 SCR 199, and exploring the fundamental aspects of the bail hearing, which finds constitutional protection under s. 11(e) of the Charter, Justice Rosenberg found the rational connection portion of the Oakes test to be satisfied. Reviewing a number of alternatives to the current legal provision and rejecting them for not being able to adequately achieve the law’s objective, Justice Rosenberg found that the provision survived the minimal impairment stage of the Oakes test as well.
As for the final portion of the Oakes s.1 test, proportionate effect, dissenting Justice Rosenberg wrote:
Where the mandatory ban fails the s. 1 test is the requirement of proportionality between the deleterious and the salutary effects of the measure. In my view, the deleterious effects of s. 517 are substantial and the salutary effects are in many respects speculative and limited.
These salutary effects of a mandatory ban, found to be speculative and limited, were: 1) protection against juror contamination (here, Rosenberg J.A. drew on social science evidence), 2) avoidance of delay and expense for an accused who seeks the mandatory/automatic publication ban, 3) prevention of witness contamination, 4) protection of ongoing criminal investigations, 5) encouraging witnesses and sureties to come forward, and 6) protection of the privacy interests of the accused, witnesses, and victims. Justice Rosenberg accordingly found the mandatory wording “and shall on application by the accused” unjustifiably unconstitutional, and would have declared it invalid (with discretionary bans remaining justifiable under the test in Dagenais v Canadian Broadcasting Corp,  3 SCR 835).
Justice Feldman, writing for the majority (Justices Laskin and Simmons concurring), held that the mandatory aspect of s. 517 did not pass the rational connection and minimal impairment stages of an Oakes analysis if a hearing was not tried by a jury. The mandatory publication ban was, however, demonstrably justified under s.1 in the instance of a jury trial.
A publication ban is needed in jury cases to protect an accused’s right to a fair trial under s. 11(d) and s. 7 of the Charter by preventing potential jurors from learning of prejudicial information from bail hearings which may never be heard at trial. In my view, because it is also critically important that the rights of an accused under s. 11(e) and s. 7 of the Charter to reasonable bail following an expeditious bail hearing be protected in possible jury cases, the publication ban must be mandatory at the request of an accused and not merely available at the discretion of the justice following a hearing on that issue.
Contrary to Justice Rosenberg’s result, Justice Feldman found that the mandatory ban in instances of a jury trial satisfied the final, proportionate effects stage of the Oakes test. Justice Feldman took issue with Justice Rosenberg’s discussion of deleterious effects. More importantly, Justice Feldman disputed Justice Rosenberg’s conclusion (which was based, in large measure, on social science evidence) that a mandatory publication ban would not protect against jury contamination. Justice Feldman further stressed the factors of practicality and expediency in his discussion of salutary effects.
Justice Feldman ordered that the limiting words “where and for so long as the charge(s) may be tried by a jury” be read into the provision after “and shall on application by the accused.”
Thus the Supreme Court of Canada has before it three different judicial opinions on the constitutionality of s. 517 of the Criminal Code. Justice Slatter in White would allow for the mandatory publication ban. Justice Feldman for the majority in Toronto Star would allow for the mandatory publication ban only in jury trials, with the discretionary publication ban applicable otherwise. Finally, Justice Rosenberg for the dissent in Toronto Star would only allow for the discretionary ban, jury trial or not. (A fourth opinion, which most stringently upholds s. 2(b), can be found in the the overruled decision of Justice Brooker, the chambers judge in White, which would allow only for the discretionary publication ban in jury trials, with no ban allowed otherwise.)
As for my opinion, I agree with the result arrived in Toronto Star by both Justices Feldman and Rosenberg that, contrary to White, the mandatory publication ban cannot be justified in non-jury hearings. Justice Rosenberg, analyzing White, makes the crucial point:
[Slatter J.A.] seems to have concluded that a publication ban could be justified even in non-jury cases. His reasoning is reflected in para. 39, where he concluded that Brooker J. erred in holding that preservation of an untainted jury is the only objective of s. 517:[Brooker J.’s] analysis also overlooked the other important objectives of s. 517. It precludes consideration of any argument that trial judges (even though they are trained to ignore such matters) should be insulated from pre-trial publicity when possible.
I cannot agree with the Alberta Court of Appeal that an objective of the provision could be to insulate trial judges from pre-trial publicity. Trial judges are expected to ignore such matters; our entire system of non-jury trials is built on the theory that judges can ignore highly prejudicial and inadmissible evidence. Trial judges are routinely asked to rule on the admissibility of confessions, bad character evidence and constitutionally inadmissible evidence. The system depends on the ability of trial judges to ignore evidence deemed inadmissible when reaching the merits of the case. I am not aware of any case that holds that a publication ban can be justified on the basis that a trial judge should not be tainted by pre-trial publicity.
I am less certain about the s. 1 justifiability of the mandatory publication ban in jury trials and the related differing proportionate effects analyses in Toronto Star. I am personally partial to Justice Rosenberg’s dissenting judgement, which is highly comprehensive in its exploration of the deleterious and salutary effects of the provision, thoroughly relies on social science evidence, and revisits Re Global Communications Ltd and Attorney General for Canada,  44 OR (2d) 609 (ONCA). In the end, however, my preference counts for little, as it is up to the court to determine which route to take.