BILL C-79
Proposed Amendments to the Criminal
Code
in respect of Victims of Crime
SUBMISSION OF Ad IDEM
Advocates In Defence of Expression
in the Media
May 13, 1999
Presented by Brian MacLeod Rogers,
President of Ad IDEM
The concerns of Ad IDEM in respect of Bill C-79 are focused on proposed amendments to section 486 of the Criminal Code that will make available discretionary publication bans on information that could identify witnesses in criminal proceedings for any offence in the Criminal Code.
Ad IDEM supports, in general, the steps taken in Bill C-79 to ensure that victims of crime are recognized and receive the support needed to play an effective role within the criminal justice system. Our concerns arise where the principle of openness in court proceedings is compromised unnecessarily by the proposed amendments.
Unfortunately, in the short time available to respond to Bill C-79, we have not been able to canvass our membership or to prepare anything more than a brief submission. Hopefully, there will be another opportunity in the legislative process to examine the important constitutional issues raised by this proposed legislation in greater detail and with greater care.
Ad IDEM was formed in November 1998 as a national association of lawyers who practice media law, representing most of the major media organizations and their journalists across Canada. Our members have day-to-day experience in dealing with laws that impact on freedom of expression, affecting the role of journalists and the content of what the media can publish and broadcast. One of our principal goals is to enlarge and enhance the freedom of expression of all Canadians, recognizing that many in this country, as listeners and readers, rely on the media to provide them with information on court proceedings and the administration of justice. While Canadian courtrooms are open to all to observe, few have the time or ability to attend the myriad proceedings taking place each day. The media act as their presence, serving as their eyes and ears.
In addition, it has most often fallen to members of the media, and their legal representatives, to take proceedings to protect the principle of openness within our justice system. These can be time-consuming and difficult, and it is not always possible for financial and other reasons to pursue them. It is desirable to have legislation that minimizes the need for such proceedings and clearly preserves Canada's open court system.
We will not attempt a review of the extensive law, both before and since the introduction of the Canadian Charter of Rights and Freedoms, concerning the importance of an open system of justice. The greatest safeguard to the effective operation of our justice system is public scrutiny. Without it, no democracy can have a justice system that is truly integrated into, and accepted by, society.
It is only through detailed accounts of actual cases going through the court system, day after day, that members of society can appreciate and understand the justice system. This cannot be achieved through impersonal treatises on the mechanisms of justice. Following the course of proceedings from the initial crime and all its possible horror, through the investigation, to the laying of charges, to the preliminary proceedings, to the trial itself and any appeals that may follow, provides the most effective means educating and informing the public about the justice system.
Casting a cloak of anonymity over these various stages, which are already subject to extensive laws controlling what may be published, can only help render them more remote, impersonal and difficult to understand. Those attempting to follow criminal cases inevitably will lose sight of the people involved. Victims will be depersonalized, and people will better be able to forget that those affected could be their neighbours, their fellow workers or other people just like themselves.
In the compelling circumstances of any particular case, and the effects on any particular person, it is often difficult to hold true to overriding principles. They never seem quite as important as the facts that are immediately at hand crying out for something to be done. Further, the more often that such principles are encroached upon and eroded, the easier it becomes to do so again in the future. Today, the concerns are focused on victims and other witnesses to crimes, but tomorrow it may be those accused of serious crimes who may be innocent but are inevitably scarred for the rest of their lives.
This dilemma has been recognized by the courts, and the need for the particular situation of any individual to give away to the principle of openness has been accepted:
It is now well established, however, that covertness is the exception and openness the rule. Public confidence and the integrity of the Court system and understanding of the administration of justice are thereby fostered. As a general rule, the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings…
"Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of court of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings."
Per Dickson J., Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R.175, at p.185
That ruling by the Supreme Court of Canada came before the introduction of the Charter as part of Canada's Constitution. Its clear protection for "freedom of expression, including freedom of the press and other media of communication" has helped to further establish the importance of open judicial proceedings that can be fully reported by the media. The Court has recognized that the media play a critical role in informing the public of what goes on in the courts and that freedom of expression in this respect belongs to the "readers and listeners" just as much as to those who publish and broadcast. Through media reports, those "listeners and readers" inform themselves about our system of justice and are then able to scrutinize and criticize, conducting informed public discussion that is the linchpin of a democracy. (Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326, per Cory J. at pp. 1339-40)
Clearly, there may be a role in some cases for protection of victims, and no dispute is made of publication bans on the identity of victims of serious sexual crimes, where the social stigma involved is recognized by society and the victims wish such bans.
The difficulty with the proposed discretionary publication bans, which will be available not only to victims but witnesses who are involved in any of the offences under the Criminal Code, is that there is no evidence whatsoever of their need. The legislation has lost sight of the requirement to address a specific public mischief crying out for correction. In failing to take this approach, it has also failed to adequately address genuine concerns under the Charter and the effects of these new infringements of Charter rights may have.
It is also ignored the careful reasoning of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, where the Chief Justice of Canada considered the availability of publication bans in the course of criminal proceedings. He rejected the previous approach of the common law that put protection for a fair trial above concerns for freedom of expression, and he set out guidelines for consideration by courts when faced with applications for publication bans. The reasoning of this judgment deserves much more careful scrutiny when considering the particular provisions examined below in the submission.
Definition of "Victim" (Section 1, Bill C-79)
Bill C-79 would add to the definitions vision of the Criminal Code a definition for "victim" as follows:
"Victim" includes the victim of an alleged offence.
This definition casts an extremely wide net and could include not only those indirectly affected by a crime, such as family members, but also those who are no longer alive, such as murder "victims". It makes little sense to attempt to protect privacy concerns of those who are deceased, nor should anyone accept those only indirectly involved and affected by a crime be permitted to apply for a publication ban on their identity. To do otherwise would trivialize the availability of this extraordinary intrusion on the principle of openness and also lead to a potential multiplicity of proceedings, which will be time-consuming and expensive for all those involved. The added cost to the administration of justice must be clearly justifiable. The definition should be more narrowly focused on those who may really need the protection.
At present, it is accepted that a deceased "victim" is not included under the statutory publication ban imposed by section 38(1) of the Young Offenders Act, R.S.C. 1985, c. Y-1, as amended. In part, this is based on the reasoning of a Quebec Court of Appeal case that points out the potential breadth of the words "victim" and "victime" in the English and French languages (R. v. Les Publications Photo-Police Inc. (1986), 31 C.C.C. (3d) 93 (Que. C.A.)). However, that Court was satisfied that no useful purpose, under the policy approach of the young offenders legislation, would be served by applying the statutory publication ban to someone who was deceased.
Under the proposed definition, even a bank, convenience store or other business might be a victim of a crime, such as fraud or theft, and could seek a publication ban under the proposed section 486 (4.1) of the Criminal Code. Such a broad scope can lead to potential abuse and undermine the true purpose of this provision.
Accordingly, Ad IDEM suggests that this definition be amended to read:
"Victim" means a person who is alive and has been directly victimized as a result of an alleged offence."
Identifying Information(Section 2(2) Bill C-79)
Publication bans under the proposed amendment of section 486(3), as well as the new section 486(4.1), of the Criminal Code would prohibit publication of:
"any information that could disclose the identity of…" (complainant, victim or witness).
This matches language currently in section 486(3) but is different from language used in respect to other publication bans on identity. In particular, section 38(1) of the Young Offenders Act provides:
"any information serving to identify…" (young person or child)
Similarly, the amendments to the Young Offenders Act proposed in the current Bill C-68 would provide as follows:
S. 109(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(3) A young person referred to in subsection (1) may, after he or she attains the age of 18 years, publish or cause to be published information that would identify him or her as having been dealt with under this Act…
(6) The Youth Justice Court may…make an order permitting the young person to publish information that would identify him or her as having been dealt with under this Act…
The use of the word "could", instead of "would", adds to the breadth and vagueness of publication bans to be granted under the proposed sections 486(3) and (4.1) of the Criminal Code. When a publication ban on identifying information is extended beyond complainants in sexual cases, where bans are widely accepted by the public and the media, there is no justification for such inconsistent, vague and broad terminology. Those who must determine whether a publication or broadcast meets the terms of a publication ban should only have to deal with the more concrete test used in the Young Offenders Act: would the information identify the individual to the public?
Test for Granting Discretionary Ban (Section 2(3), Bill C-79)
Under the proposed section 486(4.1), the test for granting an order protecting the identity of a victim or witness is that:
the judge or justice is satisfied that the order is necessary for the proper administration of justice.
In addition, the proposed section 486(4.7) sets out certain matters that must be considered by the judge or justice in determining whether to make such an order. No particular hierarchy is proposed for these factors; in fact, rights protected by the Canadian Charters of Rights and Freedoms appear to be given no more weight than others introduced by this legislation. "The right to a fair and public hearing" (s. 486(4.7)(a)) and "freedom of expression" (s. 486(4.7)(g)) are rights guaranteed under sections 1, 2(b) and 11(d) of the Charter and clearly should be given the greatest possible weight by a judge considering whether a discretionary publication ban should be granted.
Two of the other factors, subsections 486(4.7)(e) and (f), reflect some of the guidelines established by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835. However, the most critical requirement established by that case, namely that any party seeking to justify the limitation of a right bears the burden of justifying it, is ignored. The onus should clearly be on the party seeking the proposed publication ban. That party must show "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" (per Lamer C.J.C., at p. 891). Other applicable guidelines established in Dagenais are:
· The judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available.
· A judge must consider all possible ways to limit the ban and must limit the ban as much as possible.
· 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.
The proposed provisions in Bill C-79 fail to recognize the importance of such an onus on an applicant and the strict test that must be applied by a judge considering a publication ban. For example, where a victim or witness is concerned for their security, a publication ban may make little sense since the accused and those with whom he or she can communicate will know that person's identity. In that respect, the proposed section 486(4.7)(e) might better provide as follows:
(e) whether any effective alternatives are available to protect the victim or witness, other than an order banning publication of their identity.
Since there is no hierarchy of factors that are to be followed by a judge determining whether to grant a discretionary publication ban, the introduction of the "basket clause" contained in the proposed section 486(4.7)(h) may undermine the other specifically stated factors and leaves the door open to a judge to introduce any factor considered relevant by him or her.
Accordingly, the proposed sections 486(4.1) and (4.7) would require substantial amendment in order to meet the clear requirements set out by the Supreme Court of Canada and to withstand Charter scrutiny.
Notice of Hearing (Section 2(3), Bill C-79)
The proposed section 486(4.5) provides:
The applicant shall provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
As noted in Dagenais (per Lamer C.J.C. at pp. 868-9, 890), it is important that notice be given to the media potentially affected by the order applied for. This is developing as a practice among the courts across the various jurisdictions in Canada. However, this has not been spelled out in the proposed legislation, nor have appropriate time limits been identified. Again, where Charter rights are directly involved, it is important that all possible procedural safeguards are followed. This is particularly true since no statutory avenue for appeal in respect of such interlocutory orders has been included in the legislation, as will be noted below.
Statutory Ban on Publishing About Successful Applications (Section 2(3), Bill C-79)
Under the proposed section 486(4.9), a statutory ban applies to prevent any publication concerning a successful application for a discretionary publication ban, including "any evidence taken, information given, or submissions made". This ban is permanent and not limited in time. It also includes an additional ban on:
(c) Any other information that could identify the person to whom the application relates as a victim or witness in the proceedings.
Since that person is already subject to the judge's order banning publication of "any information that could disclose their identity", it is not clear what purpose this provision is intended to serve. The fact is that this entire provision is duplicative, unnecessary and an unjustifiable interference on reporting on court proceedings.
Since an order will have been granted imposing a publication ban on identifying the person involved, it is difficult to see what harm could possibly be caused by publication of what is disclosed on the application and related hearing. Further, it will be crucial for those trying to understand why such a ban was granted in any particular case to have the benefit of the information disclosed during the application. All of the values supported by the principle of open justice come into play in such circumstances, and public understanding and confidence can only be fostered by complete disclosure of what was presented in court by the various parties involved. Then, citizens can evaluate the rightness of the court's decision. People will also be in a position to determine whether a similar application might succeed or fail on any given facts in the future. Suspicion is bound to arise in the absence of knowing the real facts involved.
The entire proposed section 486(4.9) should be deleted from Bill C-79.
As was confirmed in Dagenais, a party that seeks to appeal a decision by a superior court judge (including orders made pursuant to the proposed section 486(4.1) of the Criminal Code) is not entitled to go to the provincial or territorial court of appeal, but rather must seek leave to appeal directly to the Supreme Court of Canada. This extraordinary situation arises out of a legislative lacuna which requires that parties who are intervenants in the criminal process to take refuge in section 40 of the Supreme Court Act. This provides that the Supreme Court of Canada may grant leave to appeal in situations where there is no other appeal route provided in legislation.
In Dagenais, Chief Justice Lamer, after reviewing a number of the routes that intervenors (including both victims and the media) have attempted to use in the past, stated as follows:
"I should note at the outset that none of these avenues is absolutely satisfactory. I am forced to choose the least unsatisfactory of a set of unsatisfactory options. I offer the following overview of each of the possible avenues in an effort to convey to all the jurisdictional difficulties confronting the courts as well as the Bar and in the hope that my doing so will prompt Parliament to rectify this situation by enacting legislation that provides for a right of appeal for third parties (usually the media) seeking to challenge publication bans ordered by judges under their common law or legislative discretionary authority." (emphasis added, p. 858).
Both victims and other parties intervening in the criminal process would see their rights greatly enhanced if the Criminal Code was amended to provide an appeal as of right to the court of appeal on publication bans and similar orders. This proposed amendment would have the advantage of:
1. Providing the courts of appeal with an opportunity to directly supervise the superior court in its jurisdiction;
2. Reducing the time and cost required; and
3. Allowing for greater flexibility and
speed since a court of appeal can more readily convene an extraordinary
sitting if believed necessary to deal with an urgent matter, as was arranged
by the Ontario Court of Appeal in the Dagenais case itself.
Ad IDEM is appreciative of the opportunity to make this submission and to participate in the legislative process. As a fledgling organization, it may take us some time to find the most effective role. We look forward to answering any questions that may arise in helping to achieve legislation that recognizes the fundamental importance of an open and accountable system of justice.