The purpose of this paper is to propose some measures which will implement the intent of the decision of the Supreme Court of Canada in Dagenais v. CBC. In Dagenais, the Court set aside a lower court order prohibiting the broadcast of a television program. In the course of its judgment, the Court discussed the need for the media to be given notice of applications for certain kinds of publication bans, but it left some of the practical issues to be worked out at the provincial level. The proposals that follow are intended to provide a basis on which these issues might, at last, be resolved.

This paper is intended to deal with court orders restricting the right of the media to report on court proceedings ("Publication Bans"). It is not intended to deal with restrictions on publication that apply without court order.

The Supreme Court of Canada has made it clear that a party seeking a publication ban must prove 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 that there is a proportionality between the salutary and deleterious effects of the ban.

The Supreme Court has held that a judge considering a publication ban must consider all other options besides the ban and must find that there is no reasonable and effective alternative available. The judge must consider all possible ways to limit the ban and must limit the ban as much as possible.

It is settled law that a judge must weigh the importance of the objectives of a proposed 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.

While the courts have recognized that the media have an interest and right to participate in proceedings where Publication Bans are considered, in many jurisdictions, courts and court administrators have yet to develop and consistently apply procedures to implement the established legal principles.

Local circumstances may require some variation in specific procedure. However, there are general procedures that ought to be uniformly applied to ensure that the legal principles governing Publication Bans are respected across the country.

Publication Bans issued pursuant to statutes that require the court to issue a Publication Ban on prescribed terms will be referred to as "Mandatory Publication Bans." (For example, section 517(1) of the Criminal Code provides for a Mandatory Publication Ban on the application of the accused. The provision specifies the material covered by the ban and the duration of the ban. Sections 486(3) and (4) provide for a Mandatory Publication Ban on the application of a complainant, the prosecutor or a witness where an accused is charged with certain sexual offenses. The provision provides for a permanent ban on identifying information.)

The common law recognizes an inherent jurisdiction of courts to grant Publication Bans in certain circumstances. In addition, statutes may provide for Publication Bans to be issued at the discretion of the judge. Such Publication Bans will be referred to as "Discretionary Publication Bans."

1. Media should receive reasonable notice of applications for Discretionary Publication Bans and be given the opportunity to make representations before they are issued.
2. Crown counsel should ensure that a court presented with an application for a Publication Ban is advised of the applicable law and procedures.
3. All Publication Bans should be recorded in writing and the record should be made accessible to the media on a timely basis.
4. The terms of Discretionary Publication Bans should be recorded and made accessible to the media on a timely basis.
5. Special notification should be posted after a Discretionary Publication Ban has been made pursuant to the court’s common law discretion.

1. Media should receive reasonable notice of applications for Discretionary Publication Bans and be given the opportunity to make representations before they are issued.

Since the decision of the Supreme Court of Canada in R. v. Dagenais courts across Canada have uniformly held that media are entitled to notice and an opportunity to address the court where a Discretionary Publication Ban is sought. There is, however, no consistent practice as to which media are to be notified and how that notification is to occur.

It is recommended that the courts establish a registry. Media wishing to receive notice of Discretionary Publication Ban applications would register.

Counsel seeking a Discretionary Publication Ban would have access to the list of media contacts and would be responsible for notifying the media.

Notification by facsimile or e-mail (if the media indicates that it has the ability to receive notice by e- mail) would be sufficient.

Notice would include details of the order sought, the time and place of hearing, the text of any interim order granted and contact information for counsel applying for the order and of responding counsel, where known.

Media counsel would be entitled to promptly obtain copies of any materials filed directly from counsel applying for the order upon request.

It is recommended that notice be given within the time frames prescribed by the rules of civil procedure for motions.

It may be necessary to make an interim Publication Ban pending notification of the media. These orders should be treated as ex parte orders.

2. Crown counsel should ensure that a court presented with an application for a Publication Ban is advised of the applicable law and procedures.

The "open court rule" protects vital public interests in the integrity of the judicial system. These interests are of fundamental importance to the maintenance of a free and democratic society.

Instances have been reported where courts have issued Publication Bans without being advised of or complying with the appropriate legal principles. These cases have typically occurred in criminal proceedings in smaller centres where an accused has applied for a Publication Ban and media has not become involved. Typically, crown counsel either consented or took no position.

While media have traditionally acted as the "respondent" in applications for Publication Bans, the public interest requires that the law governing Publication Bans be enforced even where there is no media outlet that is willing or able to devote the resources to become involved in a particular case.

In their role as public represenatives, crown attorneys should always give careful consideration to the public interest in open court proceedings, including publication, as described in Dagenais and other cases. This should be taken into account by crown attorneys when determining their position in any particular case. However, regardless of whether crown counsel supports, opposes or takes no position with respect to a Publication Ban, crown counsel has a duty to ensure that the court is aware of the applicable legal principles.

3. All Publication Bans should be recorded in writing and the record should be made accessible to the media on a timely basis.

Not infrequently, courts have pronounced Publication Bans in the course of proceedings and there is no written record of the Publication Ban, other than on any transcript that might ultimately be prepared. Media may not become aware of the Publication Ban, or there may be some doubt as to whether a Publication Ban was issued or not. Transcripts are usually not available at the time news stories are being prepared and are often expensive to obtain.

In some jurisdictions, the court file may not be promptly available to the public during the course of proceedings. In those jurisdictions, reporters are not able to check for the existence of a Publication Ban at the time they are preparing their news stories, even if the Publication Ban is recorded on the file.

It is submitted that the existence of a Publication Ban should be immediately recorded on the court file and that the file be accessible to the media on a timely basis.

4. The terms of Discretionary Publication Bans should be recorded and made accessible to the media on a timely basis.

Not infrequently, courts have pronounced Publication Bans in open court and no order is ever taken out or recorded. This has led to the difficulties such as the following:

a) It is unclear whether the court intended to make an order.

b) Media are unable to ascertain the scope of the Publication Ban when they are preparing their stories for publication.

c) There is controversy as to whether a publication violated the Publication Ban. When transcripts are obtained, it is found that the scope of the Publication Ban was not clear from the record. In some cases the Publication Ban was described by the court in different terms at different points in the proceeding.

These difficulties would be avoided if Discretionary Publication Bans were treated as any court order and drafted accordingly. In fact, since a Charter right is being directly affected by such an order, it is all the more important to have its terms spelled out in writing. Media should not be required to rely upon recollections of reporters or second hand recollections of participating counsel in making decisions about what may or may not be published. This is especially so given the potentially significant adverse consequences associated with a breach of a Publication Ban.

The law requires that Publication Bans be as narrowly circumscribed as possible. Courts must address issues such as the specific information that may not be published, the period of time during which the Publication Ban will remain in effect and the geographic scope of the Publication Ban. The process of drafting an order will have the salutary effect of encouraging the precision that the law requires.

Orders need not be drafted for Mandatory Publication Bans, since media can refer to the statute for a statement of the terms. However, the precise terms of a Discretionary Publication Ban should be reduced to writing and made available to the media on a sufficiently prompt basis to allow media to refer to the order when they are preparing their stories for publication.

5. Special notification should be posted after a Discretionary Publication Ban has been made pursuant to the court’s common law discretion.

While media may be expected to be aware of the possibility of a Publication Ban and to check the court file in cases where a statute provides for one, this is not the case where a Publication Ban is issued pursuant to the court’s common law discretion. In the latter case, a special notice should be posted to alert reporters and members of the public to the existence and terms of a Publication Ban.

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