Dagenais v Canadian Broadcasting Corp. [1994] 3 SCR 835: Challenge of a publication ban -airing of programmes. Common law rule on publication bans conflicted with charter values - the common law rule must be varied in such a manner as to enable the court to consider both the objective of a publication ban and the proportionality of the ban’s effect on protected charter rights

The respondents, former and present members of a Catholic religious order, were charged with physical and sexual abuse of young boys in their care at training schools. They applied to a superior court for an injunction restraining the CBC from broadcasting a mini series which was a fictional account of sexual abuse of children in a Catholic institution. At the time of the hearing, their trials were being heard or were scheduled to be heard. The court granted the injunction prohibiting publication of the fact of the application, or any material relating to it. Held: The appeal should be allowed and the publication set aside.

Constitutional law - Charter of Rights - Freedom of expression - Fair trial - Publication bans – Whether common law rule governing publication bans inconsistent with Charter principles - Canadian Charter of Rights and Freedoms, ss. 2(b), 11(d).

In Dagenais v Canadian Broadcasting Corp [1994] 3 SCR 835 the CBC challenged a publication ban which prevented them from airing one of their programmes. It was held that the common law rule on publication bans conflicted with charter values, the common law rule must be varied in such a manner as to enable the court to consider both the objective of a publication ban and the proportionality of the ban’s effect on protected charter rights. The respondents, former and present members of a Catholic religious order, were charged with physical and sexual abuse of young boys in their care at training schools. They applied to a superior court for an injunction restraining the CBC from broadcasting a mini series which was a fictional account of sexual abuse of children in a Catholic institution. At the time of the hearing, their trials were being heard or were scheduled to be heard. The court granted the injunction prohibiting publication of the fact of the application, or any material relating to it. Held: The appeal should be allowed and the publication set aside.

Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.:

Publication bans, however, should not always be seen as a clash between freedom of expression for the media and the right to a fair trial for the accused. The clash model is more suited to the American constitutional context and should be rejected in Canada. Other important concerns have a place at each stage of the analysis that is required when considering whether a particular publication ban can be justified under the common law (page 840) rule. The efficacy of a publication ban is also a relevant factor in this analysis.

The party claiming under the common law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial bears the burden of justifying the limitation on freedom of expression. He 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 as possible, and that there is a proportionality between the salutary and deleterious effects of the ban. 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. The judge should, where possible, review the publication ban at issue. He must consider all other options besides the ban and find that there is no reasonable and effective alternative available. He must also limit the ban as much as possible. Lastly, 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 publication ban in this case cannot be upheld. While the ban was clearly directed toward preventing a real and substantial risk to the fairness of the trial of the four respondents, the initial ban was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, reasonable alternative measures were available to achieve the objective without circumscribing the expressive rights of third parties. The publication ban therefore cannot be supported under the common law. In purporting to order the ban under her common law discretionary authority, the superior court judge thus committed an error of law.

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