avp@greenparish.ns.ca

1. Whether or not a publication ban should be granted.
2. Contempt citations resulting from contempt in the face of the court.
3. A Section 648 violation.

 There have, however, been some decisions which, when extrapolated, may give us some comfort that the Dagenais principles will in fact apply to allegations of contempt from pretrial publicity.

Dagenais

In Dagenais v. Canadian Broadcasting Corporation (1995), 120 D.L.R. (4^th) 12 (S.C.C.), the trial court judge had issued a publication ban preventing the CBC from airing its fictionalized "Boys of St. Vincent" mini-series in Canada while the criminal trials of four of the accused abusers were before the courts. The publication ban was challenged by various media representatives, and the case on appeal was modified to prevent airing of the show in a certain geographic area. The ban itself was still upheld as being appropriate under the circumstances.

In the Supreme Court of Canada, the majority of the court considered the factors to be reviewed when issuing a publication ban. Chief Justice Lamer stated the rule for the necessity of implementing such bans at page 38:

A publication ban should only be ordered when:

(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and

(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.

Lamer C.J.C. set forth on pages 47-48 some general guidelines to be followed by courts in determining whether common-law (as opposed to statutory) publication bans ought to be ordered:

(a) At the motion for the ban, the judge should give the media standing (if sought) according to the rules of criminal procedure and the established common-law principles with regard to standing.

(b) The judge should, where possible, review the publication at issue.

(c) The party seeking to justify the limitation of a right (in the case of a publication ban, the party seeking to limit freedom of expression) bears the burden of justifying the limitation. The party claiming under the common-law rule that a publication ban is necessary to a void a real and serious risk to the fairness of the trial is seeking to use the power of the state to achieve this objective. A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society. Therefore, the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited (in scope, time, content, etc.) as possible, and there is a proportionality between the salutary and deleterious effects of the ban. At the same time, the fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied.

(d) The judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available.

(e) The judge must consider all possible ways to limit the ban and must limit the ban as much as possible; and

(f) The judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.

In Dagenais, Lamer C.J.C. determined that the publication ban ordered was unnecessarily wide, and that there were other alternative measures that could have been taken to ensure that the accused individuals received a fair trial. At page 40, Lamer C.J.C. says:

The publication ban in the case at bar would have passed the first stage of analysis under common-law rule if: (1) the ban was as narrowly circumscribed as possible (while still serving the objectives), and (2) there were no other effective means available to achieve the objectives. However, the initial ban in the case at bar was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, there were other effective means available to achieve the objectives. The publication ban ordered by Gotlib J. has, in fact, expired, making it unnecessary to discuss in great detail the particular alternative measures that were available in the case at bar. Possibilities that readily come to mind, however, include adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury. Sequestration and judicial direction were available for the Dagenais jury. Apart from sequestration, all of the other effective alternatives to bans were available for the other three accused.

In his judgment at pages 72-73, Justice Gonthier discusses generally the alternative measures available to ensure that the fairness of a trial is not compromised:

Minimal impairment also requires evaluation of alternative measures to protect the right to a fair trial. This evaluation is clearly present, though not necessarily explicit, in the common-law requirement that a publication create a real and substantial risk to the fairness of a trial before a ban can be ordered. In applying his modified version of the common-law rule, the Chief Justice would require trial judges to make a finding that there is no reasonably available alternative measure to a publication or broadcast ban. The existence of alternative measures to protect the fairness of the trial such as sequestration, careful scrutiny of potential jurors and change of venue has been relied on in the United States as the basis for the virtual total rejection of prior restraint orders: see Nebraska Press, supra, and its aftermath. In my view, the mere existence of alternatives to publication bans, alternatives which are available in almost every case, does not of itself support the denial of a publication ban. Rather, what is required is the more difficult assessment of the likely effect of the proposed publication ban on freedom of expression and the effectiveness as well as the cost or burden of alternative measures.

The rest of this paper considers relevant cases heard since the Dagenais decision in an attempt to predict the applicability of Dagenais to media contempt proceedings. Most of the media contempt cases arise out of breaches of publication bans — whether they be statutory or common law bans. Accordingly, they are only of limited use, since violation of an existing ban does not allow for a challenge of that ban.

The following is a potpourri of cases which provide some insight on the court's application of Dagenais.

R. v. CHBC Television (1997), 121 C.C.C. (3d) 260 (B.C.S.C.):

In CHBC Television, the court made it clear that the Dagenais principles will not be allowed to override the provisions of Section 648 of the Criminal Code. Section 648(1) reads:

648. (1) Where permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published, after the permission is granted, in any newspaper or broadcast before the jury retires to consider its verdict.

CHBC Television involved a mistrial which was declared 18 days into a first degree murder trial because of contempt on the part of the defendants (CHBC Television and Cariboo Press (1969) Ltd., publisher of the Vernon "Morning Star"). The court found that the media coverage prejudiced the accused's right to a fair trial.

Early on in the trial, there was a voir dire to determine a significant evidentiary issue. At the voir dire hearing, Justice Davies made the first of five specific warnings concerning coverage of the trial by the media. This was followed by another warning following the voir dire, and by another three warnings once the jury was empanelled. However, both defendants reported on various aspects of the trial (including, among other things, the judge's warnings, a Crime Stoppers video of the crime scene, description of the security measures taken for the accused and information concerning the placement of the accused in custody in Kamloops during the trial rather than in Vernon). The judge declared a mistrial after the accused's third such application. CHBC was cited in contempt.

Counsel for CHBC relied on the guarantees of freedom of expression in the Charter and the submission, based on Dagenais, that any possible adverse impact upon the trial by the broadcast could have been cured by a specific warning to the jury. Justice Davies disagreed. He stated at para. 45 and 46:

In making its submission as to possible conflict between the rights of an accused to a fair trial and the rights of freedom of expression, CHBC relies upon Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C. (3d) 289, 120 D.L.R. (4^th) 12, a decision of the Supreme Court of Canada. In my judgment, there is no conflict of rights in this case. The public is entitled to a fair reporting of the proceedings at trial. What is not allowed is publication that will tend to interfere with the course of justice as established by the authorities. To say otherwise or to rely upon the ability of a jury to separate that which is in evidence before it and that which is unfairly published could give rise to a situation where virtually no conduct would be subject to sanction and would render s. 648 of the Criminal Code virtually meaningless. The result would either be a requirement for the sequestration of juries or the taking of a calculated risk by the courts that "trial by newspaper" or "trial by television," neither of which have any place in our system of criminal justice might not adversely affect a jury verdict.

While the ability of a trial judge to cure a media report by warnings or instructions to the jury may be a factor in determining the extent to which a particular publication may have interfered with the course of justice in a particular case and may also be an issue to be considered in the penalty phase of a proceeding if contempt is ultimately proven, it is no answer to otherwise contemptuous conduct to say that such conduct could have been cured by jury instructions.

In my judgment the words of McEachern C.J.S.C., in R. v. Froese (No. 3) concerning media responsibilities and juries and sequestration are at least as appropriate today as they were in 1979. There can be no question that as media coverage of criminal trials continues to expand as it has in today's society, that when the rights of an accused to a fair trial conflict with a desire by the media to inform the public of matters potentially prejudicial to the accused, the right to a fair trial must still be paramount.

Justice Davies found at page 77 that the corporate defendants were criminally reckless regarding the accused's rights and the jury trial process. While not guilty of "criminal contempt", the defendants were guilty of contempt.

R. v. Regan (1997), 159 D.L.R. (4^th) 250 (N.S.S.C.):

In Regan, the court acknowledged the paramountcy of Section 648 of the Criminal Code, but read down Section 648 by restricting the interpretation of the word "information" as limited to information "likely to taint a juror's impression of the accused". Justice MacDonald so ruled in order to minimize the limitation of freedom of the press.

In Regan, Justice MacDonald considered whether or not to impose a total publication ban on all pre-trial proceedings. The defence was seeking either a ban pursuant to s. 648(1) of the Criminal Code (as justified by s. 645(5) of the Code) or a common-law publication ban.

At issue was the constitutionality of s. 648(1) and whether it could be upheld in the face of the freedom of expression guarantee as provided in s. 2 of the Charter. Justice MacDonald first determined that s. 648(1) applied to all pre-trial motions (both evidentiary and procedural) arising from the trial. Justice MacDonald reconciled the objective of the s. 648(1) publication ban with the paramountcy of freedom of the press from Dagenais by restricting the interpretation of the word "information" found in s. 648(1). By determining that the "information" referred to should be limited only to information likely to taint a juror's impression of the accused, Justice MacDonald ensured that the publication ban only minimally impairs of the press. He stated at page 362:

Section 648 should be interpreted in a manner that minimally impairs freedom of the press. Therefore, the reference to "information" in that section should be narrowly interpreted. Specifically, I find that the reference to information should mean only that information which would reasonably be expected to taint a juror's impression of the accused. This would, therefore, involve a ban on details of any and all allegations of wrongdoing or impropriety on the part of the accused. Such allegations should not be limited to those set out in the indictment. By deductive reasoning, this would include details of most conventional voir dires ...

Justice MacDonald went on to say that alternatively, if s. 648(1) were found to be inapplicable, he would impose a common-law ban with the same characteristics as those ascribed to a ban under s. 648(1). In his view, the common-law ban would be consistent with the requirements set out in Dagenais, since it would only be applied where necessary.

In a follow-up motion (R. v. Regan, [1998] N.S.J. No. 367 (N.S.S.C., September 24, 1998) (QL)), the accused was making an O'Connor application for disclosure of the medical and therapy records of the complainants. The constitutionality of the applicable sections of the Criminal Code (s. 278.1 ff) was at issue. The accused sought an extension of the common law publication ban to cover the application. The accused cited several newspaper articles written about the ongoing proceeding, and specifically pointed to several where comments were allegedly made by counsel involved in the trial.

Justice MacDonald refused to extend the publication ban on the grounds that the accused was not alleging contempt on the part of the media outlets. The previous order concerning the publication ban was found not to have been breached, and there were no charges pending pursuant to s. 648 of the Criminal Code.

Calgary Sun, a Division of Toronto Sun Publishing Corp. v. Alberta, [1996] A.J. No. 536 (Alta. Q.B., May 31, 1996):

In Calgary Sun, the media brought an application to publish exhibits which had been created exclusively for evidentiary purposes as part of the court proceedings. Counsel for the Calgary Sun argued that, following the Dagenais principles, the party seeking the ban must establish a real and substantial risk to the fairness of the trial if the publication is allowed to occur. This argument was not accepted by the court.

An application was brought by the Calgary Sun to publish exhibit material present at the then-ongoing Joudrie murder trial. There was no publication ban per se on reporting on the trial proceedings, but the applicant newspaper argued that to deny the right to publish exhibit material was tantamount to a partial publication ban.

Justice Lutz determined that in the circumstances the Crown and the accused would both be prejudiced by publication of the materials (which were in the nature of photos, cards, letters, the 911 tape, x-rays, medical records, etc.). He held that delay of publication of the materials until after the trial and the lapse of the applicable appeal period would protect the interests of the parties involved, and yet would minimally impair the newspaper's right to freedom of expression.

Justice Lutz specifically distinguished the situation at the Joudrie trial from that in Dagenais. The concern in the Joudrie / Calgary Sun case was with exhibits which had been created exclusively for evidentiary purposes as part of court proceedings. Justice Lutz appeared to consider that there were no less intrusive means of protecting Ms. Joudrie's right to a fair trial while publishing the exhibit material. The court also recognized the fact that there were privacy interests at stake, and that there were third-party (non-litigant) interests at stake. As the Calgary Sun had already had ample opportunity to report on the trial, it was suggested that the newspaper could not make out an argument that their rights to report on the matter had been infringed.

Justice Lutz states the following at paragraphs 29 and 30:

The denial of access in this instance to this extent, and as outlined below, would neither affect the right of the public to know what the evidence in a criminal trial is composed of, nor the right and responsibility of the media to inform the public of the contents of the proceedings of a criminal trial, including the nature and content of the evidence presented at that trial.

[Counsel for the Calgary Sun] had argued that the new world that arose in Dagenais suggests that to decline the grant of access and publication, the Respondents must establish real and substantial risk to the fairness of the trial. This may be so in the event that an applicant's rights will be denied or effectively curtailed by a decision not to grant access. I do not consider, however, that the Court in Dagenais extended the principle of openness to the extent suggested by counsel for the Applicants. In any event, upon balancing the competing interests in this case, I am inclined to follow the approach of de Weerdt J. in Warren.

Phillips et al. v. Richard, J. (1995), 141 N.S.R. (2d) 1 (S.C.C.):

In Phillips, the issue arose as to whether or not publicity of public inquiry into the Westray mining disaster held concurrently with criminal proceedings would prejudice the accused manager's right to a fair trial. The Supreme Court applied and considered the principles in Dagenais and provided an excellent recitation of the court's view on pretrial publicity. In the facts of this case, the court felt that any assessment of whether or not the accused's fair trial rights had been impaired had to be determined at the time of the jury selection, rather than on the basis of speculation in a pretrial proceeding.

Starting at paragraph 99, Justice Cory discusses the principles espoused in Dagenais and their applicability to the publication of evidence presented at a public hearing:

Some of the ideas expressed recently in Dagenais v. Canadian Broadcasting Corp. concerning the nature of the risks posed by pretrial publicity to the fair trial rights of individual accused should be repeated. The influence which publicity will have upon jurors must be assessed in light of the circumstances presented by each case. despite the helpful studies of social scientists in this area, identifying the lasting effects of publicity on jurors remains an inexact science. Recent increases in the number of studies which have been done on juror prejudice are encouraging and promise better guidance for the future. I do not think it possible yet, however, to disregard the warning given in 1952 by Frankfurter, J., dissenting in Stroble v. California (1952), 343 U.S. 181, at p. 201:

"...Science with all its advances has not given us instruments for determining when the impact of such newspaper exploitation has spent itself or whether the powerful impression bound to be made by such inflaming articles as here preceded the trial can be dissipated in the mind of the average juror by the tame and often pedestrian proceedings in the court."

Perhaps science will one day be able to prove that in certain situations juror prejudice is inescapable. Until that time, common sense must provide guidance in these decisions.

[100] What factors should be considered in assessing the effect of publicity? The circumstances in which the impugned publicity or threatened publicity occurs must be reviewed. The form which the publicity takes (i.e., television or print), the size of the geographical area over which it is disseminated and the extent of the audience are all relevant considerations. The existence of prior unrestrained publicity or other publication sources which are not subject to restraint proceedings is pertinent. So too is the nature of the publicity sought to be restrained. For example, if a docudrama were to identify the accuseds in all but name and portray them clearly as the actual perfidious perpetrators of the crime with which they were charged then the docudrama might well have a negative impact upon the presumption of innocence with which each juror must begin a trial. Consideration must also be given to the extent to which the publicity is a complete report or at least a comprehensive summary of the proceedings rather than merely a collection of "soundbites" which do not accurately represent the proceedings as a whole. Further, the way in which the publication is presented is important particularly if the testimony is commented upon in an unfair and prejudicial manner by journalists or others.

[101] A related factor is whether or not the publication is inflammatory. For example, there may be expression by journalists or others that the accused are criminally liable. In cases such as Dagenais v. Canadian Broadcasting Corp., supra, R. v. Kenny, supra, and R. v. French (E.G.) (No. 2) (1991), 93 Nfld. & P.E.I.R. 14; 292 A.P.R. 14 (Nfld. T.D.) etc., it was easier to assess the effect upon the impartiality of jurors since the publications had already occurred. Where, as here, publication pertaining to the Inquiry testimony is anticipated, the assessment is necessarily more speculative.

[102] All these considerations form a part of the judicial task in determining an application to restrain an alleged impending breach of s. 11(d). They should not, however, overshadow the true goal of the analysis. What must be found in order for relief to be granted is that there is a high probability that the effect of publicizing inquiry hearings will be to leave potential jurors so irreparably prejudiced or to so impair the presumption of innocence that a fair trial is impossible. Such a conclusion does not necessarily follow upon proof that there has been or will be a great deal of publicity given to the hearings. Evidence establishing the probable effects of the publicity is also required.

[103] It is for this reason that I must respectfully disagree with the suggestion made by the trial judge in R. v. Kenny, supra, at p. 351, that an accused enjoys a constitutional right to "be free from excessive adverse publicity while his or her trial is pending." The right which the accused enjoys is a right to fair trial. If excessive pretrial publicity will violate this right, then s. 24(1) of the Charter requires that judicial relief be given. But relief should only follow satisfactory proof of a link between the publicity and its adverse effects. Negative publicity does not, in itself, preclude a fair trial. The nexus between publicity and its lasting effects may not be susceptible of scientific proof, but the focus must be upon that link and not upon the mere existence of publicity.

[104] Further, the examination of the effects of publicity cannot be undertaken in isolation. The alleged partiality of jurors can only be measured in the context of the highly developed system of safeguards which have evolved in order to prevent just such a problem. Only when these safeguards are inadequate to guarantee impartiality will s. 11(d) be breached. This simple determination requires the resolution of two difficult question. First, what is an impartial juror? Second, when do the safeguards of the jury system prevent juror prejudice?

* * *

[105] The objective of finding twelve jurors who know nothing of the facts of a highly-publicized case is, today, patently unrealistic. Just as clearly, impartiality cannot be equated with ignorance of all the facts of the case. A definition of an impartial juror 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 which has existed in this country since the introduction of the Charter in 1982. 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 to embark upon their duties armed with both an assumption that the accused is innocent until proven otherwise, and a willingness to determine liability based solely on the evidence presented at trial.

* * *

[108] The solemnity of the juror's oath, the existence of procedures such as change of venue and challenge for cause, and the careful attention which jurors pay to the instructions of a judge all help to ensure that jurors will carry out their duties impartially. In rare cases, sufficient proof that these safeguards are not likely to prevent juror bias may warrant some form of relief being granted under s. 24(1) of the Charter. The relief may take many forms. It may be the enjoining of hearings at a public inquiry, a publication an on some of the evidence given at the inquiry, a staying of the criminal charges, or the imposition of additional protections for the defence at the stage of jury selection: see, as an early example, R. v. Kray (1969), 53 Cr. App. R. 412, referred to with approval in R. v. Hubbert (1975), 15 N.R. 143; 29 C.C.C. (2d) 279 (Ont. C.A.), affd. [1977] 2 S.C.R. 267; 15 N.R. 139. As this court has held in the past, this type of relief will not be granted on the basis of speculation alone. Normally the time for assessing whether or not an accused's fair trial rights have been so impaired that s. 24(1) relief is required will be at the time of jury selection: R. v. Vermette, supra; R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man. R. (2d) 161; 3 W.A.C. 161.

An analysis of the above comments by Justice Cory suggests two conclusions.

First, by applying the Dagenais principles to the impact of pretrial publicity arising out of a public inquiry, there is little doubt that the Dagenais principles would apply to a citation for contempt against the media for an alleged violation of the sub judice rule.

Secondly, the test to be applied for a finding of such contempt would appear to be much more favourable to the media than was the former test for contempt for violation of the sub judice rule.

R. v. S:

Media counsel in Nova Scotia did participate in a situation in which the Dagenais principles would have been applied if possible contempt citation had gone forward.

I refer to the matter as R. v. S, since the matter remains before the courts.

A young woman storekeeper had been savagely beaten and almost killed with a baseball bat. Her attacker was unknown. A number of months later, S was found sexually assaulting a young woman in his room in a fraternity house. He was arrested. During a search in his room, evidence was found which linked him to the beating with the baseball bat. Evidence was also found which linked him to other unsolved sexual assaults.

When S was arrested, he told the police that his name was G. After being arraigned as G, the police, during routine background investigation, learned in fact that the accused was S.

It turned out that S had been found guilty in Niagara Falls, New York of murdering his mother by beating her to death with a baseball bat. He had been sentenced to 5 to 15 years in prison for manslaughter, but was released after 16 months when he was granted youthful offender status on appeal.

After being released, S was then arrested on charges of sodomy and sexual abuse of a 17 year old female. When the jury was expected to begin deliberations at this trial, S's defence attorney came to court with a suicide note indicating that S had committed suicide by jumping off Niagara Falls. S disappeared. He was found guilty in absence of the sexual assault charge and sentenced to 3½ to 7 years in prison. He remained on New York State police's most wanted list.

All of the above was published in the Halifax media, including the fact that S had beaten his mother to death with a baseball bat and had been convicted of manslaughter.

Counsel for S wrote a letter to the crown prosecutor's office asking the crown to investigate possible contempt proceedings against various media as a result of the publication and airing of S's prior criminal record and other prejudicial statements.

I believe that some media counsel wrote to the crown prosecutor's office arguing Dagenais principles.

After much consideration, all media involved were forwarded a letter from the Minister of Justice and Attorney General of Nova Scotia, informing that charges would not be laid.

The letter makes very interesting reading and is attached as an appendix to this paper.

Other Cases:

The following are cases which have involved the court considering the balancing of competing interests of fair trial and free press, although not in the sub judice scenario.

1. R. v. Kane (unreported October 27, 1998 N.S.S.C.)

An application was brought by the defence for a stay of proceedings following an alleged breach of a publication ban by publishing particulars of security measures in place for the trial. The stay was not granted. Dagenais was not explicitly considered, although Justice Cacchione did balance the competing interests.

2. R. v. Domm (1997), 31 O.R. (2d) 540 (Ont.C.A.)

The accused was a reporter charged with contempt of court after he published information concerning the Paul Bernardo trial in the face of the publication ban which then existed. Domm argued the original publication ban did not apply to him specifically and challenged the validity of the publication ban.

The court found that there was no need for the accused to breach the court order as there existed well established avenues for challenging court orders. The decision did not rest on the principles as espoused in Dagenais, but Doherty, J., in obiter, indicated that even if it had been necessary to consider the factors outlined in Dagenais, the non publication order was justified and the accused was not entitled at law to breach the court order in order to challenge the validity of the publication ban.

3. Re Daily Courier, a Division of Thompson Canada Ltd. [1997] B.C.J. No. 1840 (B.S.C.S., unreported).

The newspaper was found in contempt for reporting on matters which took place while the jury was not present in the courtroom. Dagenais was not considered.

4. R. v. Scozzafava [1997] O.J. NO. 4579 (Ont.Gen.Div., unreported).

This case involved violation of Section 648 of the Criminal Code. The issue of contempt was raised, but the presiding judge determined that the contempt had been purged by the explanations from counsel. Dagenais was not considered.

5. R. v. Bowes Publishers Ltd. [1995] A.J. No. 489 (Alta.Q.B., unreported).