Publication Contempt of Court After Dagenais
From Ad IDEM / CMLA
© Alan Shanoff 1999
The Dagenais decision was released in December 1994. One may have hoped
that by late 1999 we would have had at least one definitive superior
court decision concerning the impact of Dagenais on the sub judice
branch of contempt. One would have hoped in vain. There is no such
case. Those of you who want to read a summary of the cases that have
considered Dagenais should read Alan Parish’s article, Dagenais And The
Sub Judice Rule, published in 1998 and available on Ad Idem.
My optimistic reading of Dagenais, when coupled with the Supreme Court of Canada decision in Westray (“A definition of an impartial jury today must take into account not only all our present methods of communication and news reporting techniques, but also the heightened protection of individual rights … . It comes down to this: in order to hold a fair trial it must be possible to find jurors who, although familiar with the case, are able to discard any previously formed opinions … and a willingness to determine liability based solely on the evidence presented at trial.”) suggested to me that very little could constitute contempt.
I was wrong. Since Dagenais there have been at least six contempt convictions. In 1995 Fort McMurray Today, in Alberta, was found in contempt and fined $4,000.00. Two editors were fined $500.00 each. The article was published 14 months prior to the trial. The article headline read “Accused murderer had attacked women before: court document” and “Father says daughter was being stalked”. This was done shortly after the charge had been laid. The incident took place in Fort McMurray. The accused was arraigned in Edmonton. The trial could have easily taken place in Edmonton. The accused murderer pled guilty.
Also in 1995, The Edmonton Journal was found in contempt and fined $5,000.00 for publishing an accused’s prior criminal record. I understand that there was a plea bargain. I don’t have the background to the case, but I am told that the offending article was published shortly after the charge was laid and well prior to trial. Alan Lefever acted for the paper and perhaps he can fill in the detail.
In 1997 The Kelowna Daily Courier was found in contempt and fined $4,000.00. Again this was the result of a plea bargain. The paper published detail of a corridor discussion involving a police officer involved in a case, reported on a defence lawyer’s statement in court in the absence of the jury and reported on evidence heard during a voir dire that was ruled inadmissible. A mistrial was ordered. David Sutherland acted for the newspaper. Perhaps he can fill in the blanks.
Also in 1997, The St. Catherines Standard was found in contempt after reporting that the accused in a murder trial had been led away “in handcuffs and leg irons”. This was published during a jury trial where the judge had attempted to keep the jury from learning that the accused was in custody. The judge had ruled the jury must not see the accused in custody! (Of course jurors are under the impression that an accused just happened to be in court that day.) The newspaper was not aware of the ruling as the order was not made in open court. The paper also called the accused’s attempt to plead guilty to manslaughter a “surprise move” when it had been disclosed to the court before the jury had been selected. As it turned out the crown accepted the plea during the course of the trial before completing its case. No fine was imposed.
Also in 1997, the Vernon Morning Star was fined $5,000.00 after being found in contempt. Again this was a plea bargain situation. I understand the case involved coverage during the course of a first degree murder jury trial. The newspaper reported on submissions made during a motion for a mistrial conducted in the absence of the jury. David Sutherland acted for the newspaper. Perhaps he can fill in some of the blanks.
Also in 1997, CHBC was found guilty of contempt in connection with items broadcast during the course of the same trial referred to in the Vernon Morning Star case. The television station was successful in its appeal before the British Columbia Court of Appeal. The reasons in that case provide cold comfort to media lawyers. I will discuss the reasons below.
Another way of assessing Dagenais is to examine the number of contempt citations prior to and subsequent to the release of the decision. Using records maintained by the CNA, I assembled the following statistics:
| 1985 | 1 |
| 1986 | 1 |
| 1987 | 2 |
| 1988 | 1 |
| 1989 | 1 |
| 1990 | 1 |
| 1991 | 4 |
| 1992 | 5 |
| 1993 | 1 |
| 1994 | 1 |
| 1995 | 2 |
| 1996 | 0 |
| 1997 | 3 |
| 1998 | 1 |
| 1999 | 0 |
Unfortunately, this is not a scientific survey and the numbers could be off. The numbers, assuming them to be close, however, indicate a downward trend with only 6 contempt prosecutions in the 5 years since Dagenais. For the prior 5 years there are reports of 12 prosecutions. Interestingly, in the 5 years since Dagenais there have been 5 prosecutions in Western Canada (three in B.C. and two in Alberta) and one in Ontario. For the period of 1985 to the present I found that Alberta and British Columbia lead the standings with 5 each while Ontario is next with four prosecutions during that period. None of the Ontario prosecutions involved Toronto publications.
Please note that I have not included prosecutions relating to contempt for breach of publication bans. For those who wish to review this area in more detail I refer you to the Canadian Newspaper Association service provided by Bryan Cantley (bcantley@can-acj.ca) and his staff. He has been providing a service called The Press and The Courts for years. It is available on-line and there is a great key word index and search feature. I don’t get a commission but the annual fee is $100 for each subscriber. A law firm subscription at the same fee permits each lawyer at the firm to access the service.
Yet a third way of assessing Dagenais is to examine whether journalism has changed since release of the decision. Any reader of the Toronto dailies or national newspapers will know that reporting on trials and arrests has changed. It is not unusual to see a column discussing evidence heard by a jury. In the past, the media would report the evidence the jury heard. Now the media discuss the evidence. Of course, columnists do not cross the line of opining that the accused is guilty. They do, however, discuss evidence with a critical eye.
News reports covering arrests now commonly mention an accused’s record. It is not unusual to even discuss other crimes that an accused is suspected of having committed. A recent example in Toronto is the coverage relating to the so-called Scarborough Rapist. Toronto media reported extensively on the background of the accused. The Globe and Mail led the way! In a column published in The Globe attempting to explain the coverage of the accused’s background,, Sean Fine wrote, “Reporting a criminal record was seen as tantamount to saying the accused lacks credibility. If he did this terrible thing, he must have done the new one. The media censored themselves, knowing that judges had broad powers to keep them in line. The rules have changed.” Mr. Fine then went on to a discussion of Dagenais, pointing out how the law had changed. But has it?
The CHBC decision of the British Columbia Court of Appeal mentioned above throws cold water on the conclusions of Mr. Fine. While the Court said some very nice things (“the risk of prejudice must be more than trifling or trivial but less than a certainty” and “the risk must be a real one”), the Court also said:
It is therefore a grave contempt for anyone, particularly the members of what is now called the media, to publish, before or during a trial, any statements, comments, or information which reflect adversely upon the conduct or character of an accused person, or to suggest directly or indirectly that he has been previously convicted of an offence … The harm that may be done is incalculable because in most cases it is impossible to determine what effect, if any such statements or comments may have upon the jury. [emphasis added]
That passage is troubling because it does not take into account other factors such as the length of time prior to trial.
The Court also said:
A real risk may be created by less drastic measures. It seems not uncommon for newspapers and television programs to portray the accused, sometimes in prison garb, being hustled by a group of officers from a steel doorway to a secure vehicle or vice versa. Such scenes are capable of creating a real risk of prejudice. That may be particularly so when the pictures are shown shortly after arrest when they carry the risk of compromising identification issues and of conveying the message that ‘the police have got their man’.
All of this seems miles from Dagenais. So what did the Court have to say about Dagenais? Well, Dagenais may have an impact on section 648 of the Criminal Code in the interpretation of “any information”. That however, will have to remain to be determined in another case where the issue is squarely raised.
What do I make of all of this? Some judges are too quick in granting mistrials and then blaming the media. What flies in a big city may not fly in a small town. Coverage immediately prior to or during a jury trial must be scrutinized carefully. Publication contempt is still a roll of the dice and may depend more upon where a newspaper is published than the content of a publication. Mercifully, contempt fines are low. This seems to be inconsistent with the words used by judges in finding that a particular passage is a contempt.
