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.