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Saskatchewan Judgments
Record 4 of 36
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CANADIAN BROADCASTING COPR. V. SASKATCHEWAN (ATTORNEY GENERAL)
CA93086
Date of Judgment: March 11, 1993
THE COURT OF APPEAL FOR SASKATCHEWAN
THE CANADIAN BROADCASTING CORPORATION
APPELLANT
- and -
HER MAJESTY THE QUEEN, T.S., THE ALLEGED VICTIMS, DOUG McCONACHIE, ARMADALE COMMUNICATIONS, CANADIAN PRESS, RONALD STERLING, LINDA STERLING, TRAVIS STERLING, JAMES ELSTAD, DARRYL FORD, EDWARD REVESZ, DARREN SABOURIN AND JOHN POPOWICH
RESPONDENTS
CORAM:
The Honourable Chief Justice Bayda
The Honourable Mr. Justice Tallis
The Honourable Mr. Justice Sherstobitoff
COUNSEL:
G. Mitchell and K. MacKay, Q.C. for the Crown
B. Salte for Canadian Broadcasting Corporation
A. Wallace for Armadale, McConachie and Canadian Press
G. Walen for alleged victims S.H. and C.L.
DISPOSITION:
Appeal Heard: 9 March 1993
Appeal Dismissed: 11 March 1993 with reasons to follow
Written Reasons: 25 May 1993
Appeal File: 5914
Appeal From: P.Y.C. Saskatoon (3 Mar 93)
Reasons by: The Honourable Chief Justice Bayda
In concurrence: The Honourable Justice Tallis and
The Honourable Justice Sherstobitoff
BAYDA C.J.S.:
Although this appeal is intituled "The Canadian Broadcasting Corporation, appellant, and Her Majesty the Queen, T.S., the alleged victims, Doug McConachie, Armadale Communications, Canadian Press, Ronald Sterling, Linda Sterling, Travis Sterling, James Elstad, Darryl Ford, Edward Revesz, Darren Sabourin and John Popowich, respondents," there is no original proceeding so intituled. Rather, the appeal was launched by the Canadian Broadcasting Corporation (C.B.C.) from a "preliminary ruling" made by a judge of the Youth Court of Saskatchewan, Lavoie P.C.J., in proceedings in that Court brought by the Crown against T.S., who, now 21 years of age, was at all relevant times a young person, within the meaning of the Young Offenders Act, R.S.C. 1985, c. Y-1. She, along with eight adults, has been charged with numerous sexual offences involving children, in what has become known locally, indeed nationally, as the "Martensville case". Specifically, the charges against her are as follows:
On or between the 1st day of May 1988 and the 31st day of July A.D. 1991 at Martensville in the Province of Saskatchewan being a young person within the meaning of The Young Offenders Act did
1) commit a sexual assault on C.L., contrary to Section 271 of the Criminal Code,
2) for a sexual purpose touch C.L., a person under the age of fourteen years, contrary to Section 151(b) of the Criminal Code, 3) without lawful authority confine C.L., contrary to Section 279(2) of the Criminal Code,
4) commit an assault on C.L., contrary to Section 265 of the Criminal Code,
5) commit a sexual assault on S.H., contrary to Section 271 of the Criminal Code,
6) for a sexual purpose, touch S.H., a person under the age of fourteen years, contrary to Section 151(b) of the Criminal Code,
7) in committing a sexual assault on S.H., threaten to use a weapon, to wit: a gun, contrary to Section 272 of the Criminal Code,
8) without lawful authority, confine S.H., contrary to Section 279(2) of the Criminal Code,
9) commit an assault on S.H., contrary to Section 265 of the Criminal Code,
10) utter a threat to S.H. to cause death to him, contrary to Section 264.1(1)(a) of the Criminal Code.
The complainants, C.L. and S.H., are now 9 and 11 years of age, respectively. Their testimony is essential to the Crown's case against T.S., whose trial commenced before Lavoie P.C.J. on 8 March 1993. The eight adult persons will be tried in the Court of Queen's Bench, some by a judge sitting alone and others by a judge sitting with a jury. Their trials are expected to start sometime in May 1993 and are to be heard "continuously and consecutively until sometime in 1994". The same complainants, C.L. and S.H., are scheduled to testify at all of these trials.
At the beginning of T.S.'s trial, the Youth Court judge held a voir dire to consider and determine a number of applications made by the Crown which the judge described in these terms:
1) Pursuant to section 486(2.1) and (2.2) of the Criminal Code for an order that the complainants be allowed to testify outside the courtroom by means of closed-circuit television or alternatively behind a screen or other device that would allow the complainants not to see the accused.
2) Pursuant to sec.486(1) of the Criminal Code and sec.39 of the Young Offenders Act for an order excluding all the members of the public, except a victim witness support person, from the courtroom as follows:
a) throughout the entire trial; or alternatively,
b) while any witness is testifying; or alternatively,
c) while any witness is testifying about alleged abuse to the children; or alternatively,
d) while the two children complainants are testifying.
3) Additionally, under sec. 486(1) of the Criminal Code and sec. 39 of the Young Offenders Act, and the common law for:
a) an order of non-publication of any of the evidence; or alternatively,
b) non-publication of evidence relating to the allegations of the children.
Counsel for T.S. supported the Crown's applications.
Given the nature of the orders sought the judge thought that he ought first to consider giving "status" at the voir dire to persons (other than the Crown and T.S.) who might be affected by the orders and who, in fairness, ought to be heard before any determination respecting those orders was made. Those persons fell into three general categories. The first comprised four persons in the news media, C.B.C., Doug McConachie, Armadale Communications Limited and Canadian Press. As noted, the first of these is styled the "appellant" in this Court and the other three "respondents". The second category consisted of the eight adults, who, along with T.S., have been charged with related sexual offences and who, although technically not T.S.'s co-accused (as noted by the trial judge), none the less, for all pragmatic purposes - particularly for purposes pertaining to receiving a fair trial - are T.S.'s co-accused. All of the eight adults, too, are made "respondents" to this appeal. The third and last category comprised the two child complainants, C.L. and S.H., who, as noted, are scheduled to testify at all of the nine trials. They, too, are named as "respondents" in this appeal.
Unlike the persons in the first category - the media persons - the persons in the second and third categories gave no one cause for disagreement respecting standing at the voir dire and the persons in those two categories were given standing. Respecting status for the first category persons the judge ruled, after hearing evidence and representations from all counsel, that the media persons should have limited standing at the voir dire. He said:
I will allow them to -- allow counsel to be at the bar to listen to the evidence. They will not be permitted to cross-examine the witnesses. They will be allowed to present oral and/or written argument at the end. At this stage I do not grant them leave to call viva voce evidence or file affidavit evidence, however, they can re-apply to the Court for such leave any any [sic] state of the proceedings in this voir dire. This status is in relation to an order for application for exclusion of the public from the courtroom under Section 486(1) of the Criminal Code and Section 39 of the Young Offenders Act. They do not have status in relation to the method of testimony and such application pursuant to Section 486(2.1) and (2.2) of the Criminal Code.
(Although the judge in his ruling did not specifically refer to the applications embodied in item 3 described above - he referred only to the "exclusion of the public" but not to "non-publication" of the evidence - I interpret his ruling to mean that the media persons had standing respecting the applications pertaining to the suspension of the publication, that is, the applications outlined in item 3. An examination of the representations made by counsel for the media, Mr. Gibson and Ms. Wallace, at the end of the voir dire confirms the correctness of this interpretation.)
After deciding the question of standing at the voir dire the judge heard the merits of the Crown's applications. He heard evidence from a child therapist, a psychiatrist, and a "victim witness support person" called by the Crown and then evidence from the mothers of the two complainants. All of this evidence was geared to show the effect upon the children of their having to testify repeatedly at different trials about the events upon which the charges against T.S. and the eight adults are based. Counsel for T.S. called a psychologist who has been treating her, to testify about her present therapy and her ability to cope with the trauma of a publicized trial. None of the persons in the three categories mentioned above made an application to adduce evidence.
After reserving his ruling, the judge, giving written reasons, ruled on the applications as follows:
I. The complainants will testify behind a screen or other device which will allow the complainants not to see the accused. This order is made pursuant to s. 486(2.1) of the Criminal Code.
II. When the complainants herein are testifying, business attire will be worn in place of usual court gowns.
III. An order will be made excluding all members of the public, except a victim witness support person, from the courtroom when any of the complainants herein are testifying. This order is made pursuant to s. 39(1) of the Y.O.A.
IV. During the testimony of the complainants, the courtroom proceedings shall be transmitted by closed circuit video equipment, in such a way that the complainants cannot be seen or so that their faces are obscured, to another room in the Provincial Court Building, to which room the public shall have access. The room receiving said transmission shall remain under the jurisdiction and control of this court and all the ordinary rules of courtroom decorum will apply in the strictest possible terms.
V. There will be an order of non-publication of the evidence and proceedings in this trial, except this ruling on the voire [sic] dire and the verdict herein, by any means and in any way including any document, book, newspaper or broadcast. Such order shall be in effect until a verdict is rendered in the trials of the charges, involving the same complainants, against the following adult accuseds: Ronald Stirling, Linda Stirling, Travis Stirling [sic], James Elstad, Darryl Ford, Edward Revesz, Darren Sabourin and John Popowich; or the charges having been determined according to law by stay of proceeding, withdrawal, dismissal or other lawful disposition. For further clarity such order does not extend to any appeals that may occur after verdict is rendered in the trials.
Lastly, out of abundant caution I note that s. 38(1) Y.O.A. and any orders made in this trial under s. 486(3) C.C. remain in effect throughout.
The C.B.C. has appealed only that part of the judge's ruling embodied in part V. The grounds of appeal as set out in the notice of appeal are as follows:
1. THAT the Provincial Court Judge erred in law by failing to apply the provisions of section 2(b) of The Canadian Charter of Rights and Freedoms which provision guarantees freedom of the press and other media of communication.
2. THAT the Provincial Court Judge erred in law by concluding (if he did so conclude) that the order banning publication was a justifiable limit prescribed by law that can be justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms.
3. THAT the Provincial Court Judge erred in law by failing to find any facts which would justify a ban on publication and by failing to give any reasons which would justify a ban on publication.
4. THAT the Provincial Court Judge erred in law by concluding that the evidence justified an order banning the publication of all evidence at the trial when he had made a finding of fact that the evidence before him did not establish that publication of the proceedings would destroy any further counselling, but could delay therapy or possibly make it more difficult.
5. THAT the Provincial Court Judge erred in law by failing to consider that the existing ban on the publication of the names of the victims and any information which could disclose the identity of the victims adequately protected their interests.
6. THAT the Provincial Court Judge erred in law by prohibiting the publication of all evidence which may be given at the trial when it was not necessary to ban the publication of all such evidence to protect the interests of the child victims or other accused.
Before hearing the appeal on its merits this Court chose to hear and determine the preliminary issue that was raised, namely, whether the C.B.C. had a right of appeal, and this Court the corresponding power to hear the appeal from part V of Lavoie P.C.J.'s order. At the conclusion of the hearing, the Court held that the C.B.C. had no right of appeal to this Court and that this Court had no jurisdiction to hear the appeal. We indicated that our reasons for so holding would follow. These are those reasons.
To resolve the preliminary jurisdictional issue it is helpful, if not altogether necessary, to establish the basis for the judge's ruling concerning the suspension of the publication of evidence and the grounds upon which C.B.C. attacks this ruling.
The judge made his order in the context of his exercising certain statutory powers vested in him pursuant to s. 486 of the Criminal Code and s. 39 of the Young Offenders Act (see parts I, II, III and IV of his order), but he left no doubt that he made the impugned ruling (part V of his order) pursuant to not a statutory power but a power vested in him by the common law. He said:
The evidence on this voire [sic] dire has established that an alternative set up of some kind, other than normal courtroom procedure for hearing evidence, is required in this case. A more private and friendly courtroom to give a sense of security to the child witnesses is necessary to facilitate them giving a full and candid account of the acts. Furthermore, it would be in the interest of the proper administration of justice to exclude some members of the public from the courtroom. However, I feel the evidence, in relation to the fears of the children does not establish that publication of the proceedings would destroy any further counselling. It could delay therapy or possibly make it more difficult. In that respect the court is satisfied it must clearly find a procedure which will "impair the right to a public courtroom and freedom of the press as little as possible" while still meeting a goal of superordinate importance, being protection of the children. I do not think s. 39(1) Y.O.A. can be interpreted so liberally as to allow the court to make a specific order of non-publication over and above that of excluding the public from the courtroom, though exclusion per se might have that practical effect. In addition, I am mindful of the order of Gerein J. on October 26, 1992, and the comments of the Sask. C.A. re "all proper questions including alternative access." However, based on the decision of Church of Scientology I am satisfied the court here being a court of record, hearing a trial under the Y.O.A., has the jurisdiction at common law to make some type of non-publication order. (emphasis added) Earlier he had made specific reference to the following view expressed by Watt J. in Re Church of Scientology of Toronto and The Queen (No.6) (1986), 27 C.C.C. (3d) 193 at 209:
I am none the less satisfied that at common law, at least upon the application of a co-accused, a court of record had authority to suspend publication of accounts of related proceedings where such publication may impair the actual or apparent fairness of the trials of such co- accused thereafter taking place. I am further satisfied that such authority, which does not derive directly nor by necessary implication from any statutory source, but rather is but an incident of the general authority of courts of record to do that which is necessary to regulate their proceedings and ensure justice, was part of the criminal law of England that was in force in this province immediately before April 1, 1955, and thus continues in force, in accordance with the provisions of s. 7(2) of the Criminal Code, except as altered, varied, modified or affected by the Criminal Code or other federal enactment.
At the hearing in this Court, C.B.C.'s counsel candidly allowed that C.B.C. did not attack the impugned ruling on the ground that the rule of law upon which the impugned ruling is based is not a part of the common law and that the rule as stated by Watt J. and applied by Lavoie P.C.J., is actually not the law. Nor did the C.B.C. attack the ruling on the ground that the common law rule was unconstitutional in that it violated the freedom of the press and other media of communication and should accordingly be found of no force and effect pursuant to s. 52 of the Charter of Rights and Freedoms. Rather C.B.C. attacked the impugned ruling on the ground that Lavoie P.C.J., in applying the common law rule, went too far and in so doing violated C.B.C.'s freedom of expression as embodied in s. 2(b) of the Charter. C.B.C. therefore seeks in this appeal to have the impugned ruling set aside.
If C.B.C.'s appeal is treated simply as an ordinary appeal in a criminal proceeding, then the question whether C.B.C. has a right of appeal and this Court the jurisdiction to hear it is not complicated and may be answered quickly. Section 674 of the Criminal Code provides:
674. No proceedings other than those authorized by this Part [Part XXI] and Part XXVI [extraordinary remedies] shall be taken by way of appeal in proceedings in respect of indictable offences.
No one, including the C.B.C., questioned that this appeal was "in proceedings in respect of indictable offenses" within the meaning of s. 674. C.B.C. could point to no provision in either Part XXI or XXVI or indeed any other federal statute that entitled it to take this appeal. Nor does this Court or any other appeal court have the inherent jurisdiction to hear such an appeal. As Laforest J. recently said in Kourtessis v. M.N.R. (S.C.C. unreported 22 April 1993 p.8):
Appeals are solely creatures of statute; see R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must be some way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature.
It is clear from the foregoing that if this is an ordinary appeal in a criminal proceeding, this Court has no jurisdiction to hear the appeal.
C.B.C. contended that the appeal should not be treated as an ordinary one in a criminal proceedings but as a special appeal by reason of its Charter component. That component, it was said, is sufficient to enable this Court to hear an appeal pursuant to the power vested in it by s. 6 of The Court of Appeal Act, R.S.S. 1978, c. C-42 or alternatively pursuant to the inherent power vested in it by either ss. 24(1) or 52(1) of the Charter (or a combination of both). For support C.B.C. relied upon this Court's judgment in R. v. Daniels, [1991] 5 W.W.R. 340. In my respectful view Daniels has no application to the present case for two reasons.
First, if the present appeal is properly characterized as in respect of an interlocutory ruling by a trial court judge in the course of a criminal proceeding, then the decisions by the Supreme Court of Canada in R. v. Mills, [1986] 1 S.C.R. 863, R. v. Meltzer, [1989] 1 S.C.R. 1764 and Kourtessis make it clear that the Charter component does not vest a court of appeal with any special power to hear an appeal and the right of appeal is governed by the same principles as those which apply to an appeal from any ordinary interlocutory ruling. Those same cases confirm that there is no appeal from an interlocutory ruling made in a criminal proceeding. In Mills, McIntyre J. stated at 959:
The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1) of the Charter may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code (s. 602, supra) prohibiting procedures on appeal beyond those authorized in the Code. It will be observed that interlocutory appeals are not authorized in the Code.
Laforest J. said at 978:
Since I do not think a separate non-Charter jurisdictional question is involved in this case, which might have made certiorari or prohibition an appropriate remedy, I have confined my remarks to the s. 24 remedy. From such application, neither the Charter nor the Criminal Code makes any provision for appeal and I do not think it lies within the province of the courts to create one. It may well be, however, that there is an appeal to this Court with leave from the superior court as the court of final resort.
Second, even if the present appeal should not be characterized as one from an interlocutory ruling, but - insofar as it relates to the C.B.C. - as an appeal from a ruling that is final (on the basis of the principles applied by the Supreme Court of Canada in R. v. A.B.C., [1990] 1 S.C.R. 995), Daniels does not help the C.B.C. In this respect it is important to keep in mind the nature of the Charter component upon which the C.B.C. relies as the basis for its appeal. C.B.C. has not in the present appeal, appealed a ruling by a trial judge respecting the constitutionality of a law pursuant to s. 52(1) of the Charter, as had the appellant in Daniels. C.B.C. has not appealed a ruling by a trial judge finding a violation by a governmental official of a person's Charter right and awarding to the person a remedy under s. 24(1) of the Charter, as had the appellant in Daniels. Rather, C.B.C. contends that it was the trial judge himself who was the violator of C.B.C.'s s. 2(b) Charter right, and it was his ruling that created the violation. It now seeks a remedy under s. 24(1) to redress that violation. The remedy it seeks is a setting aside of the judge's ruling. That is the nature of the Charter component and that is the context in which this appeal arises.
Given that to be the nature of the Charter component, the true essence of the proceeding before us, despite the nomenclature and the procedure adopted by C.B.C. to get before this Court, is not that of an appeal but of an application under s. 24(1) for a remedy to redress an alleged violation of its s. 2(b) Charter right. C.B.C. is not asking this Court to review a ruling made by Lavoie P.C.J. respecting an alleged violation of its Charter right by some other person (i.e. a governmental person). At this point there has been no judicial ruling (by Lavoie P.C.J. or any other judge) that C.B.C.'s right has been violated or has not been violated. C.B.C. is asking this Court to make the initial ruling respecting the alleged violation: It is asking this Court to find that Lavoie P.C.J.'s order was itself the violation and he the violator, and further is asking this Court to fashion an appropriate and just remedy under s. 24(1) to redress that violation. It is asking this Court to act as the court of first instance under s. 24(1) and is impliedly, if not expressly, asserting that this Court, although an appellate court, is, despite the circumstances, "a court of competent jurisdiction" within the meaning of that section. In other words it is attempting to engage this Court's appellate jurisdiction in an endeavour to have it act as a court of first instance so as to render it "a court of competent jurisdiction". In my respectful view this Court's jurisdiction, whatever it may be, does not extend that far. The Court by definition is not a court of first instance. Although the Court does have original jurisdiction in situations involving a review by way of prerogative writs (see Geller v. Government of Sask, [1987] 6 W.W.R. 645; 48 Sask. R. 239; Maurice v. Priel, [1988] 1 W.W.R. 491, affirmed [1989] 1 S.C.R. 1023) the jurisdiction which C.B.C. seeks to engage in the present case is not that jurisdiction.
The nature of the Charter component raises another factor that may render this and indeed every other court impotent to act in response to C.B.C.'s request. (The impotence may not stem from a lack of jurisdiction in the strict sense but the consequence is essentially the same.) As noted, C.B.C. points at Lavoie P.C.J., a member of the judicial branch of government, as the violator of its Charter right and at his order (specifically, the impugned ruling) as the instrument of violation. The Supreme Court of Canada in R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, in very similar general circumstances, held that a judge acting in his or her judicial capacity cannot be a Charter right violator and an order of a court cannot, for the purpose of a Charter application, constitute the necessary "governmental action" upon which to found a Charter violation and a consequential remedy to redress the violation. In short, although courts are bound by the Charter as they are bound by all law, the Charter does not apply to court orders.
Although the Court in Dolphin Delivery was concerned with whether the Charter applied to private litigation, the analysis which McIntyre J. conducted for the majority to resolve that issue, raised questions that are identical to those raised in the present case, a criminal proceeding. The answers he gave to those questions and the conclusions he reached in the course of that analysis, until overruled or severely limited by the Supreme Court of Canada, are binding on this Court. He held at 598:
Section 32(1) refers to the Parliament and Government of Canada and to the legislatures and governments of the Provinces in respect of all matters within their respective authorities. In this, it may be seen that Parliament and the Legislatures are treated as separate or specific branches of government, distinct from the executive branch of government, and therefore where the word `government' is used in s. 32 it refers not to government in its generic sense - meaning the whole of the governmental apparatus of the state - but to a branch of government. The word `government', following as it does the words `Parliament' and `Legislature', must then, it would seem, refer to the executive or administrative branch of government. This is the sense in which one generally speaks of the Government of Canada or of a province. I am of the opinion that the word `government' is used in s. 32 of the Charter in the sense of the executive government of Canada and the Provinces. This is the sense in which the words `Government of Canada' are ordinarily employed in other sections of the Constitution Act, 1867. Sections 12, 16, 132 all refer to the Parliament and the Government of Canada as separate entities. The words `Government of Canada', particularly where they follow a reference to the word `Parliament', almost always refer to the executive government.
And later at 600:
While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute. To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation. All cases must end, if carried to completion, with an enforcement order and if the Charter precludes the making of the order, where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter. In my view, this approach will not provide the answer to the question. A more direct and a more precisely-defined connection between the element of government action and the claim advanced must be present before the Charter applies.
In relation to Lavoie P.C.J.'s order (which is in effect an injunction restraining the C.B.C. from immediately publishing the evidence), C.B.C. is in no different a position from that in which R.W.D.S.U. found itself in relation to Sheppard L.J.S.C.'s order (an injunction restraining picketing) in Dolphin Delivery. (Parenthetically I note that the Charter violation alleged in that case was the same as in the present case, a s. 2(b) violation.)
C.B.C., as noted, also relied - albeit not too strongly - on this Court's power to hear appeals in civil matters pursuant to s. 6 of The Court of Appeal Act on the ground that the Charter component was of sufficient dominance to allow this appeal to be considered a civil matter engaging the Court's s. 6 power. In my respectful view R. v. Meltzer contains a complete answer to this argument.
In view of the foregoing the Charter component upon which the C.B.C. relies to vest this Court with jurisdiction to hear its appeal is to no avail, and this Court's decision in Daniels is of no assistance.
It was for these reasons that we found that this Court had no jurisdiction to hear this appeal.
The nature of C.B.C.'s complaint and its legal inability to have the propriety of the ruling it received respecting that complaint immediately tested on appeal, leaves one with a sense of unease. Given the structure of our appellate law, it is Parliament, and Parliament alone, that is empowered to relieve that unease by providing some form of immediate appellate review -apart from s. 40 of the Supreme Court Act. In a related situation where the same undertone of urgency and seriousness prevails as may be said to prevail in the present set of circumstances, Parliament has seen fit to promulgate s. 37 of the Canada Evidence Act, relevant portions of which are:
37(1) A Minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
(2) Subject to section 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a superior court, that court may examine or hear the information and order its disclosure, subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest. . . .
(5) An appeal lies from a determination under subsection (2) or (3):
(a) to the Federal Court of Appeal from a determination of the Federal Court Trial Division; or
(b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of a province.
(6) An appeal under subsection (5) shall be brought within ten days from the date of the determination appealed from or within such further time as the court having jurisdiction to hear the appeal considers appropriate in the circumstances.
A recent decision by the British Columbia Court of Appeal in Palmer v. Gray, (unreported 5 February 1993) serves as a good example of the efficacy of such a procedure.
England appears to have resorted to legislation to resolve certain problems endemic to a judicial banning or postponing of publication. Section 4 of the Contempt of Court Act 1981, provides:
Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. (2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose . . .
A right of appeal is given by s. 159(1)(a) of the Criminal Justice Act 1988, in these terms:
A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against - (a) an order under section 4 . . . of the Contempt of Court Act 1981 made in relation to a trial on indictment . . . and the decision of the Court of Appeal shall be final.
The quickness with which any judicial publication ban or postponement may be tested in the Court of Appeal is illustrated by the Court's decision in R. v. Beck and others, [1992] 94 Cr. App.R. 376.
If it has not already addressed and determined the matter, Parliament might do well to consider some of these provisions.
DATED at Regina, in the Province of Saskatchewan this 25th day of May, A.D. 1993.
BAYDA C.J.S.
I concur. TALLIS J.A.
I concur. SHERSTOBITOFF J.A.
Saskatchewan Judgments
Record 7 of 77
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CANADIAN BROADCASTING CORPORATION V. SASKATCHEWAN (ATTORNEY GENERAL)
CANADIAN BROADCASTING CORPORATION
CA93148
Date of Judgment: October 29, 1993
THE COURT OF APPEAL FOR SASKATCHEWAN
THE CANADIAN BROADCASTING CORPORATION (PLAINTIFF) RESPONDENT
- and -
THE ATTORNEY-GENERAL FOR SASKATCHEWAN (DEFENDANT) RESPONDENT
- and -
DOUG McCONACHIE, ARMADALE COMMUNICATIONS LIMITED AND CANADIAN PRESS (APPLICANTS) APPELLANTS
CORAM:
The Honourable Chief Justice Bayda
The Honourable Mr. Justice Vancise
The Honourable Madam Justice Jackson
COUNSEL:
Ms. Wallace for the Applicants
Mr. Salte for the Respondent
Mr. Mitchell for Saskatchewan Justice
DISPOSITION:
Appeal Heard: 12 October 1993
Appeal Dismissed: 29 October 1993
Written Reasons: 29 October 1993
Appeal File: 1523
Appeal From: Q.B. No. 1142 A.D. 1993 J.C.S.
Reasons by: The Honourable Chief Justice Bayda
In concurrence: The Honourable Mr. Justice Vancise and The Honourable Madam Justice Jackson
BAYDA C.J.S.:
This is another appeal to this Court in what is known as the "Martensville case". It is the second appeal that pertains to an order by Lavoie P.C.J. acting as a judge of the Youth Court of Saskatchewan in which he directed the suspension of the publication of evidence presented at the trial of T.S., a young person within the meaning of the Young Offenders Act, R.S.C. 1985, c. Y-1, charged with certain sexual offences involving children. The first appeal was dismissed on 11 March 1993 with reasons to follow. Those reasons were filed on 25 May 1993 and are now reported at (1993) 82 C.C.C. (3d) 352.
The first appeal was brought and heard in the context of the criminal proceedings in which the impugned order was made. The present appeal is brought in the context of a fresh proceeding, a civil proceeding, in which the Canadian Broadcasting Corporation ("CBC") is the plaintiff and the Attorney-General for Saskatchewan ("Attorney-General") is the defendant. To fully understand the reasons which follow it is essential for one to read the reasons filed in the first appeal.
The background facts in skeletal form respecting the present appeal are these. As noted, T.S., a young person, was charged with sexual offences involving children. The Youth Court judge hearing the trial, Lavoie P.C.J., made an order - a preliminary ruling - suspending the publication of the evidence until verdicts are rendered in the trials (to be held later) of eight adults who were charged with related sexual offences involving the same children. Before making the order Lavoie P.C.J. permitted certain media persons, namely, CBC, Doug McConachie ("McConachie"), Armadale Communications ("Armadale") and Canadian Press ("CP"), to make representations concerning the order that he was being asked to make. The media persons were not parties to the criminal proceedings before the judge but they could be affected by the judge's proposed order and it was for this latter reason that the judge decided to permit them to make representations.
CBC (apparently unlike the other three media persons) considered itself aggrieved by the order suspending publication and launched an appeal from it to this Court. That is the appeal that I have described as the first appeal. This Court found that it could not adjudicate upon the merits of the issues in that appeal. Instead it found that CBC had no right to appeal to this Court and the Court had no power to hear the appeal. And, as noted, the appeal was dismissed. CBC then made an application to the Supreme Court of Canada for leave to appeal to that Court. That application for leave was granted on 14 October 1993.
In the meantime, before leave to appeal to the Supreme Court was granted - specifically on 6 April 1993 - CBC launched another proceeding -in Court of Queen's Bench - to resolve some of the issues which this Court found it did not have the power to resolve on the first appeal. CBC commenced a civil action against the Attorney-General alleging that the order by Lavoie P.C.J. "has deprived the C.B.C. of the rights guaranteed to it by s. 2(b) of the Canadian Charter of Rights and Freedoms, [Part I of the Constitution Act, 1982 being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11]", and asked in its statement of claim for relief in these terms:
(a) An interim Order under the provisions of section 24 of the Canadian Charter of Rights and Freedoms setting aside the decision of Lavoie, P.C.J. in whole or in part.
(b) A permanent Order under the provisions of section 24 of the Canadian Charter of Rights and Freedoms setting aside the decision of Lavoie, P.C.J. in whole or in part.
(c) An interim and permanent declaration that the Order of Lavoie, P.C.J. infringes the rights of the Plaintiff and is therefore null and void.
(d) The costs of this action.
(e) Such further and other relief as this Honourable Court may allow.
Contemporaneously with the commencement of the action CBC launched an application by notice of motion:
for an Order pursuant to sections 24 and 2(b) of the Canadian Charter of Rights and Freedoms for an Order setting aside in whole or in part the decision of Lavoie, P.C.J. granted March 3, 1993 which prohibited publication of evidence from the trial of the young offender T.S. until the conclusion of the criminal charges against Ronald Stirling, Linda Stirling, Travis Stirling, James Elstad, Darryl Ford, Edward Resvesz, Darren Sabourin and John Popowich. In the alternative, an Order will be sought for a declaration that the Order of Lavoie, P.C.J. is null and void in whole or in part as it infringes the rights of the Applicant under section 2(b) of the Canadian Charter of Rights and Freedoms.
The material is not clear whether the relief sought in the notice of motion was for an "interim" order as outlined in items (a) and (c) of the claim for relief contained in the statement of claim (quoted above), or for a "permanent" order. The parties seemed to agree that the distinction is not important because in either case the practical result would be one of a permanent nature. (The parties apparently were unaware of or disregarded the unsettled status of the question respecting the court's power to grant an "interim declaration" or an "interim quashing" of a suspension - see: Wittal v. Saskatchewan Government Insurance (1988), 51 D.L.R. (4th) 641 (Sask. C.A.) and Attorney General of Canada v. Sask. Water Corporation, [1992] 4 W.W.R. 712 (Sask. C.A.)).
Out of courtesy, counsel for CBC notified counsel for McConachie, Armadale and CP of the civil action and the impending application. He did not notify them formally because they were not parties to the action. Counsel for McConachie, Armadale and CP appeared on the return date of the application, 27 April 1993, and asked to participate at the hearing of the application "as of right". Prior to the return date they did not apply by notice of motion or otherwise seek to become parties to the action as contemplated by the Rules of the Court of Queen's Bench which govern civil proceedings. Nor did they by formal application seek to become intervenors in the action as contemplated by the Rules. The pertinent Rules, namely, 37, 39 and 39A provide:
37. (1) Persons may be joined as plaintiffs in a proceeding where:
(a) they claim relief (whether jointly, severally or in the alternative), in respect of or arising out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding; or
(c) their presence in the proceeding may promote the convenient administration of justice.
(2) Persons may be joined as defendants where:
(a) relief is claimed against them (whether jointly, severally, or in the alternative) arising out of the same transaction, occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding;
(c) there is doubt as to the person or persons from whom the plaintiff is entitled to relief;
(d) damage or loss has been caused to the same plaintiff by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff, and there is doubt as to the respective amounts for which each may be liable; or
(e) their presence in the proceeding may promote the convenient administration of justice.
* * *
39. Where a person who is not a party claims
(a) an interest in the subject matter of the action,
(b) that he may be adversely affected by a judgment in the action, or
(c) that there exists between him and one or more of the parties a question of law or fact in common with a question in issue in the action,
he may apply to be added as a party, and the court may add the person as a party and may give such directions and impose such conditions or make such order as may seem just.
39A (1) When there is an issue before the court that any law is inconsistent with the Constitution of Canada, any person interested in that issue, who is not already a party in the proceeding may, by leave of the court, intervene in the proceeding with respect to such issue upon such terms and conditions and with such rights and privileges, as the court may direct.
(2) Unless otherwise ordered, an application to intervene shall be by motion upon notice to all parties and intervenors in the proceeding, and shall specify the nature of the interest of the proposed intervenor, the position to be adopted with respect to the constitutional issue and the relevancy of the submissions of the proposed intervenor.
On the return date McConachie, Armadale and CP simply asked, as noted, to "participate" in the hearing of the application "as of right". The "right" they asserted had its foundation in their having been given an opportunity to make representations to Lavoie P.C.J. whose order was now the subject of the civil action. One gathers that during the argument before Armstrong J., the presiding judge, counsel for CBC consented to McConachie's, Armadale's and CP's applying to the judge to be added as parties without any formal material. It is unclear whether that application was actually made and if it was, what became of it.
In examining his reasons for judgment it is evident that Armstrong J. decided to treat CBC's application for a quashing order and a declaration as one in which CBC "seeks . . . relief on an interim basis". He ruled that on the hearing of that application McConachie, Armadale and CP were not entitled to "participate as of right". He found that the proceeding before Lavoie P.C.J. at which the impugned order was made, was "independent" of the civil action commenced by CBC. He held that whatever status they had before Lavoie P.C.J. did not automatically extend to the independent civil action and did not, without some affirmative step on the part of someone entitled to take the step, make them into formal parties or formal intervenors as contemplated by the Rules of Court.
Armstrong J. then considered whether McConachie, Armadale and CP had a right to be heard on the application pursuant to rule 672 despite their not being formal parties or formal intervenors. Rule 672 provides:
672. Any person who desires to be heard in opposition to or in support of the application and who appears to have such interest as the court considers sufficient in the matter, may be heard, with leave of the court, on such conditions as the court considers appropriate, notwithstanding that he has not been served or named as a party.
In this respect he found:
Although asked a number of times, counsel for McConachie, Armadale and CP, refused to take a stand for or against the relief being sought by CBC. And the interest of these applicants in the proceedings as advanced is ill-defined and most tentative. In the written submission by counsel after the hearing, no more was said really than it was so uncertain whether something on this application might affect the rights of McConachie et al., that such " . . . clearly illustrates why it is important they remain parties to the proceedings."
And later:
There must be reasons advanced as to why the Court should allow the intervention. It is not enough to simply assert and repeat that one has an interest in a matter. The Court must be apprized of the interest in order to determine the sufficiency thereof as required by the rule. The Court wants to know if a proposed intervenor will make any contribution that would assist in the resolution of the issues. In the usual circumstances of an application to intervene, one would expect the interest of the applicant to be made fully apparent by affidavit but in the present proceeding to simply state it would have served the purpose.
Whatever the interest of McConachie et al., there was not sufficient articulation of it to meet the requirements of the rule. Such interest as was indicated falls far short of being sufficient to warrant granting intervenor status.
He refused to allow McConachie, Armadale and CP to participate in the hearing of the application and adjourned the hearing to 5 May 1993. On that date the application was heard by Matheson J. and dismissed. An application for leave to appeal from Matheson J.'s dismissal order has been made to the Supreme Court of Canada and is pending.
It is from the order by Armstrong J. made on 27 April that McConachie, Armadale and CP have appealed to this Court.
In my respectful view, Armstrong J. was right to hold that the participation of McConachie, Armadale and CP in the criminal proceedings before Lavoie P.C.J. prior to his making the impugned order did not automatically make them formal parties or formal intervenors in the independent civil action commenced by CBC. Accordingly, they could not be heard on CBC's application in either the capacities of a party or an intervenor unless they first applied and were made parties or intervenors pursuant to Rules 39 or 39A as the case may be. Not having made such an application, they are not in a position to complain that they were not given a right endemic to a party or intervenor, i.e. the right to be heard on the application.
The only other way in which they could have brought themselves within the Rules of Court so as to entitle them to participate in the hearing of CBC's application was through Rule 672. To meet the requirements of this Rule they needed to (i) establish that they "desire[d] to be heard in opposition to or in support of the application"; (ii) delineate with some precision their "interest . . . in the matter" and establish it (in other words, they needed to establish how the relief sought by the applicant, if granted, could affect them); (iii) convince the Court that their "interest . . . in the matter" was "sufficient" within the meaning of the Rule (in other words, they needed to establish that the relief sought by the applicant, if granted, would adversely affect them); and (iv) convince the court that given the presence of requirements (i), (ii) and (iii) leave should be granted to them to be heard.
It is clear from Armstrong J.'s reasons for judgment that none of these requirements was established before him. There was nothing in the material before him that enabled him to hold other than in the way he did. There was nothing in the material before this Court nor in argument before us that would entitle us to hold that requirements (i), (ii) and (iii) were established to our satisfaction.
Despite tenacious questioning from the Bench, counsel for McConachie, Armadale and CP was not readily forthcoming in whether her instructions from her clients were to support or oppose CBC's application. Her position was that McConachie, Armadale and CP simply wanted to bring another perspective to the matter of suspending the publication of trial evidence. In the end I would be inclined to infer - but with much unease - that they desired to oppose CBC's application. I draw that inference primarily from counsel's acknowledgement that, were they to be added as parties to the action, McConachie, Armadale and CP would elect to be designated as defendants.
Requirements (ii) and (iii) were simply not established before us. On its face the relief sought by CBC, if granted, would favour the interests of McConachie, Armadale and CP, not adversely affect them. (The three of them are after all media persons whose raison d'etre is publication, not non- publication.) It was not explained to us how the situation was really different from the way it appeared on its face.
Counsel for McConachie, Armadale and CP contended that CBC's civil action was not a mere "private" action, but because freedom of the press was at its centre, the action has a strong "public" component. For that reason, so the argument went, McConachie, Armadale and CP as media persons interested in the freedom of the press, upon making the request should automatically be entitled to be heard. I respectfully reject the submission. There is no need to decide whether the action is "private" or "public". The Rules of Court governing all civil actions are there for a specific purpose: to ensure the orderliness of civil proceedings. They do not put insurmountable blocks in the way of any person who has the right to interfere in a civil action. On the contrary, the Rules in most cases are flexible and easy to comply with. (In the case of what counsel described as a "public" action the Rules pertaining to intervenor status are particularly relevant.) The Rules cannot be ignored simply because the issue is an important issue that affects the public interest.
Given the failure of McConachie, Armadale and CP to comply with the Rules, we are not persuaded that Armstrong J. was wrong in his conclusion.
The issue of mootness was also argued before us. It was said that because the application was heard on 5 May 1993 the lis between McConachie, Armadale and CP on the one hand and CBC on the other, no longer exists. There is much merit in this submission. However, as previously noted, the appeal proceedings respecting Matheson J.'s judgment are still extant and the lis is not extinguished, at least not in the technical sense, until all of the relevant appellate provisions have run their course.
In conclusion I made this observation. All of these proceedings, including the first appeal to this Court, the appeal to the Supreme Court of Canada from this Court's judgment, CBC's civil action, the application for leave to the Supreme Court of Canada from Matheson J.'s judgment, the application before Armstrong J. by McConachie, Armadale and CP, and this appeal, are geared to resolving one ultimate issue: was Lavoie P.C.J. correct to impose the type of order suspending publication of evidence that he did? It was to resolve that issue that CBC took all of the proceedings that it has taken and it was to resolve that issue (ultimately) that McConachie, Armadale and CP took the steps they have taken. The matter is now in the hands of the Supreme Court of Canada and the issue is expected to be resolved there. If McConachie, Armadale and CP desire to participate in the resolution of the issue they should take whatever steps are available to them to participate in the proceedings before the Supreme Court of Canada. Even if it were in a legal position to accede to the relief sought by McConachie, Armadale and CP in this appeal, this Court should be slow, at this point, to interfere in a process that is now in the hands and the control of the Supreme Court of Canada. It is in that Court where the question - should McConachie, Armadale and CP participate in the resolution of the ultimate issue? - should now be determined.
The appeal is accordingly dismissed with costs on double Column V.
DATED at Regina, in the Province of Saskatchewan this 29th day of October, A.D. 1993. BAYDA C.J.S.
I concur. VANCISE J.A.
I concur. JACKSON J.A
R. v. S. (T.), [1994] 3 S.C.R. 952
Canadian Broadcasting Corporation Appellant
v.
Her Majesty The Queen, the Alleged
Victims, Doug McConachie, Armadale
Communications and Canadian Press Respondents
and
The Attorney General for Ontario Intervener
Indexed as: R. v. S. (T.)
File No.: 23596.
1994: January 24, 25; 1994: December 8.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for saskatchewan
Criminal law -- Publication bans -- Young offender charged with sexual offences on two children -- Youth court judge banning publication of evidence and proceedings at young offender's trial until trials of other accused involving same complainants completed -- Whether media can challenge publication ban.
Appeal -- Publication bans -- Publication ban imposed in criminal proceedings -- Ban issued under judge's common law or legislated discretionary authority -- Avenues available for third parties to challenge ban.
A young offender was charged with a number of criminal offences, including sexual assaults on two children. Her trial was the first of a series of related trials involving the same complainants. The other accused were all adults. The Crown in the youth court trial applied for a non-publication order and the CBC and other news media were granted status to make representations on the application. The youth court judge banned the publication of the evidence and proceedings at the young offender's trial until the trials of the other accused were completed. The CBC challenged the order on the ground that the youth court judge had gone too far in applying the common law rule governing publication bans, and in so doing had violated the CBC's freedom of expression. The Court of Appeal dismissed the appeal, holding that the CBC had no right of appeal to the Court of Appeal and that the court had no jurisdiction to hear the appeal.
Held: The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The general principles and practices enunciated in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, on the jurisdictional issue should be adopted. The Crown's application for a ban was correctly brought before the judge in charge of the youth court trial and the CBC should have made an application for certiorari to a superior court judge to challenge the publication ban order. The Court of Appeal did not have jurisdiction to hear the CBC's appeal. While this Court has jurisdiction to hear the appeal from the Court of Appeal's decision, it does not have jurisdiction to review the order itself. Had the CBC applied for certiorari to a superior court judge, an appeal would have been available to the Court of Appeal under s. 784(1) of the Criminal Code and then to this Court under s. 40(1) of the Supreme Court Act. It is not open to this Court to grant leave to appeal the order itself proprio motu, nunc pro tunc, ex post facto since there is no direct appeal avenue to this Court from an order banning publication made by a provincial court judge.
Per La Forest J.: Subject to the comments in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, Lamer C.J.'s reasons were agreed with.
Per L'Heureux-Dubé J.: The CBC had no right of appeal to the Saskatchewan Court of Appeal or to this Court since there is no third party right of appeal from an interlocutory criminal order. While a third party can challenge an interlocutory criminal order by way of certiorari where such an order was issued by a provincial court judge, the CBC made no such challenge.
Where the order being reviewed is the product of a provincial court judge's legally authorized discretion, a challenge by way of certiorari should only rarely succeed. This extraordinary remedy cannot be used to substitute one judge's discretion for that of another. Furthermore, a discretionary order per se cannot be challenged on Charter grounds as the Charter does not apply to court orders per se. While the Charter applies to common law rules authorizing such court orders, the common law rule governing the issuance of publication bans in criminal proceedings is consistent with the Charter and, consequently, any challenge to this aspect of the common law must fail. The question of whether the remedial powers of certiorari ought to be enlarged should be left for an appropriate case.
Per McLachlin J.: For the reasons given on the jurisdictional issue in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, Lamer C.J.'s disposition is agreed with.
Cases Cited
By Lamer C.J.
Followed: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; referred to: R. v. Meltzer, [1989] 1 S.C.R. 1764; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Re Church of Scientology of Toronto and The Queen (No. 6) (1986), 27 C.C.C. (3d) 193.
By La Forest J.
Referred to: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
By L'Heureux-Dubé J.
Referred to: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
By McLachlin J.
Referred to: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2(b), 24(1).
Constitution Act, 1982, s. 52(1).
Court of Appeal Act, R.S.S. 1978, c. C-42, s. 6.
Criminal Code, R.S.C., 1985, c. C-46, ss. 486 [am. c. 19 (3rd Supp.), s. 14; am. c. 23 (4th Supp.), s. 1], 674, 784(1).
Supreme Court Act, R.S.C., 1985, c. S-26, s. 40 [am. c. 34 (3rd Supp.), s. 3; am. 1990, c. 8, s. 37].
Young Offenders Act, R.S.C., 1985, c. Y-1, s. 39 [am. c. 24 (2nd Supp.), s. 30].
APPEAL from a judgment of the Saskatchewan Court of Appeal (1993), 109 Sask. R. 96, 42 W.A.C. 96, 82 C.C.C. (3d) 352, 15 C.R.R. (2d) 263, dismissing the appellant's appeal from a non-publication order. Appeal dismissed.
Bryan E. Salte, G. D. Dufour and Daniel J. Henry for the appellant.
Graeme G. Mitchell, for the respondent Her Majesty the Queen.
Michal Fairburn, for the intervener.
The judgment of Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
Lamer C.J. --
I. Factual and Procedural Background
I. T.S., now 22 years of age, was charged with a number of offences under the Young Offenders Act, R.S.C., 1985, c. Y-1. It was alleged that between May 1, 1988 and July 31, 1991 she had committed sexual assaults on two children, touched them for sexual purposes, confined them, threatened to use a weapon on one of them, and uttered a threat to cause death to one of them.
II. The respondent Crown made an application under s. 486 of the Criminal Code, R.S.C., 1985, c. C-46, s. 39 of the Young Offenders Act and the common law for either an order of non-publication of any of the evidence or an order of non-publication of evidence relating to the allegations of the children. The appellant, the respondent Armadale Communications and media representatives, sought leave to make representations in relation to the application. The trial of T.S. was the first of a series of related trials, involving the same complainants, but her trial was the only one where a request for a restriction on publication of evidence was made.
III. A voir dire was held and Lavoie Prov. Ct. J. of the provincial youth court ruled that media representatives could be present but could not cross-examine the witnesses. They were allowed to submit oral or written arguments but were not given leave to call viva voce evidence or to file affidavit evidence. However, they were allowed to re-apply to the court for such leave at any stage of the voir dire.
IV. On March 3, 1993, Lavoie Prov. Ct. J. granted the application and ordered the prohibition of the publication of all of the evidence and proceedings in this trial (except the ruling on the voir dire and the verdict therein) until the trials involving the same complainants were completed. The appellant appealed the decision on the voir dire to the Court of Appeal for Saskatchewan. On March 11, 1993, the Court of Appeal ruled (with reasons to follow) that it did not have jurisdiction to hear the appeal. On May 25, 1993, the Court of Appeal released its reasons: (1993), 109 Sask. R. 96, 42 W.A.C. 96, 82 C.C.C. (3d) 352, 15 C.R.R. (2d) 263. On October 14, 1993, leave to appeal the Court of Appeal decision to the Supreme Court of Canada was granted, [1993] 3 S.C.R. v.
II. Decisions Below
Provincial Youth Court
V. Lavoie Prov. Ct. J. held that he had no statutory power to ban publication in this case. However, he held that there was power at common law to make an order banning publication. He then held that:
As to publication, there are two important but competing issues. First, the ever-important and at times almost overwhelming need to protect the child victim witness during a court process and prevent that which "would be seriously injurious or seriously prejudicial" to them as contemplated by s. 39 of the Young Offenders Act. Secondly, the freedom of expression including freedom of the press under s. 2(b) and the right to a "public hearing" under s. 11(d) of the Charter. The role of the court is to find a procedure which will best balance and protect these two, in this case, opposing issues. A solution which may be perfect in relation to one interest may not be so for the other. The court must be evermindful that the procedure be a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.
He noted that the Crown was asking for non-publication not only for the protection of the child witnesses but also to protect the integrity and fairness of the trials of the adult accused which will take place in the Court of Queen's Bench.
VI. Lavoie Prov. Ct. J. found that the evidence in relation to the fears of the children did not establish that publication of the proceedings would destroy any further counselling although it could delay therapy or possibly make it more difficult. Nevertheless, he ruled that:
There will be an order of non-publication of the evidence and proceedings in this trial, except this ruling on the voir dire and the verdict herein, by any means and in any way including any document, book, newspaper or broadcast. Such order shall be in effect until a verdict is rendered in the trials of the charges, involving the same complainants, against the following adult accuseds . . .; or the charges having been determined according to law by stay of proceeding, withdrawal, dismissal or other lawful disposition. For further clarity such order does not extend to any appeals that may occur after verdict is rendered in the trials.
Court of Appeal (1993), 109 Sask. R. 96
VII. The Court of Appeal held that the Canadian Broadcasting Corporation ("CBC") had no right of appeal to the Court of Appeal and that the Court of Appeal had no jurisdiction to hear the appeal. Bayda C.J.S., writing for the court, began by noting that the trial judge had ordered the publication ban pursuant to a power vested in him by the common law. He further observed that the CBC had not claimed that the common law rule stated by Watt J. in Re Church of Scientology of Toronto and The Queen (No. 6) (1986), 27 C.C.C. (3d) 193 (Ont. H.C.), at p. 209, and applied by Lavoie Prov. Ct. J. was actually not the law. Nor had the CBC attacked the ruling on the ground that the common law rule was unconstitutional. Rather, Bayda C.J.S. noted, the CBC had attacked the order on the ground that Lavoie Prov. Ct. J., in applying the common law rule, had gone too far, and in so doing had violated the CBC's freedom of expression as embodied in s. 2(b) of the Canadian Charter of Rights and Freedoms. It was on this basis that the CBC sought to have the order set aside.
VIII. Bayda C.J.S. continued by observing that if the appeal before him were treated simply as an ordinary appeal in a criminal proceeding, then, following s. 674 of the Criminal Code, the CBC would have no right of appeal to the Saskatchewan Court of Appeal. Appeals are solely creatures of statute, Bayda C.J.S. remarked, and there is no inherent jurisdiction in any appeal court. Moreover, he declared, jurisdiction in this case could not be found in s. 6 of the Saskatchewan Court of Appeal Act, R.S.S. 1978, c. C-42: R. v. Meltzer, [1989] 1 S.C.R. 1764. Similarly, jurisdiction could not be grounded in the inherent power vested in the Court of Appeal by s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. In Bayda C.J.S.'s view, if the appeal in the case at bar were seen as an appeal from an interlocutory ruling by the trial court judge in the course of a criminal proceeding, then the fact that it involved an alleged Charter breach did not vest the Court of Appeal with any special power to hear an appeal. Rather, the right of appeal was governed by the same principles that applied to an appeal from an ordinary interlocutory ruling (and there is no appeal from an interlocutory ruling made in a criminal proceeding).
IX. Alternatively, if the appeal were characterized as an appeal from a final ruling (in so far as the CBC was concerned), Bayda C.J.S. noted that it was "important to keep in mind the nature of the Charter component upon which the C.B.C. relie[d] as the basis for its appeal" (p. 104). He remarked (at p. 104):
C.B.C. has not appealed a ruling by a trial judge finding a violation by a governmental official of a person's Charter right and awarding to the person a remedy under s. 24(1) of the Charter.... Rather, C.B.C. contends that it was the trial judge himself who was the violator of C.B.C.'s s. 2(b) Charter right, and it was his ruling that created the violation. It now seeks a remedy under s. 24(1) to redress that violation. The remedy it seeks is a setting aside of the judge's ruling.
Consequently, Bayda C.J.S. noted, the CBC was asking the Saskatchewan Court of Appeal to make an initial ruling respecting the alleged violation. This amounted to asking the Court of Appeal to act as the court of first instance under s. 24(1). Bayda C.J.S. stated (at p. 105):
In my respectful view, this court's jurisdiction, whatever it may be, does not extend that far. The court by definition is not a court of first instance. Although the court does have original jurisdiction in situations involving a review by way of prerogative writs [citations omitted], the jurisdiction which C.B.C. seeks to engage in the present case is not that jurisdiction.
Furthermore, Bayda C.J.S. observed that in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, the Supreme Court of Canada had "held that a judge acting in his or her judicial capacity cannot be a Charter right violator and an order of a court cannot, for the purpose of a Charter application, constitute the necessary "governmental action" upon which to found a Charter violation and a consequential remedy to redress the violation. In short, although courts are bound by the Charter as they are bound by all law, the Charter does not apply to court orders" (p. 105).
X. For these reasons, Bayda C.J.S. concluded that the Saskatchewan Court of Appeal had no jurisdiction to hear an appeal from Lavoie Prov. Ct. J.'s ruling. He remarked, however, at p. 107, that:
The nature of C.B.C.'s complaint and its legal inability to have the propriety of the ruling it received respecting that complaint immediately tested on appeal, leaves one with a sense of unease. Given the structure of our appellate law, it is Parliament, and Parliament alone, that is empowered to relieve that unease by providing some form of immediate appellate review -- apart from s. 40 of the Supreme Court Act. . . .
He noted that in other contexts Parliament had been able to establish efficacious appeal procedures, and observed that the English Parliament had established appeal procedures in respect of publication ban orders.
III. Analysis
XI. With respect to the general principles and practices for the jurisdictional question, I adopt my reasons in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. With respect to the application of the general principles and practices to the case at bar, I draw the following conclusions.
A. The Facts
XII. The case of T.S. was being heard in the provincial youth court of Saskatchewan. The trials of the adult accused arising out of similar circumstances (Ronald Sterling, Linda Sterling, Travis Sterling, James Elstad, Darryl Ford, Edward Revesz, Darren Sabourin, John Popowich) were scheduled to commence in the Saskatoon Queen's Bench Court (provincial superior court) in May 1993 and to be heard continuously and consecutively until sometime in 1994.
B. The Application of the Law to the Facts
XIII. The Crown brought the motion to the correct judge (the judge in charge of the trial of T.S.). The CBC tried to appeal the trial judge's decision to the Court of Appeal. The CBC should have made an application for certiorari to a superior court judge because the trial judge was a judge in the provincial youth court and that is not a provincial superior court. If the application had been denied, then the CBC could have appealed the superior court judge's decision to the Court of Appeal (under s. 784(1) of the Criminal Code).
C. The Disposition on Jurisdiction
XIV. The Court of Appeal did not have jurisdiction to hear from the CBC. While this Court had jurisdiction to hear the appeal from the Court of Appeal decision, this Court does not have jurisdiction to review the order itself. The CBC should have made an application for certiorari to the superior court. From there, an appeal was available to the Court of Appeal under s. 784(1) of the Criminal Code. From there, an appeal was available to this Court under s. 40 of the Supreme Court Act, R.S.C., 1985, c. S-26. Unlike in the companion case of Dagenais, it is not open to this Court to grant leave to appeal the order itself proprio motu, nunc pro tunc, ex post facto. There is no direct appeal avenue to the Supreme Court from an order banning publication made by a provincial court judge.
IV. Disposition
XV. I would dismiss the appeal.
The following are the reasons delivered by
La Forest J. -- Subject to my reasons in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, issued concurrently, I agree with the Chief Justice.
The following are the reasons delivered by
L'Heureux-Dubé J. -- I have read the reasons of Lamer C.J. and agree that this appeal should be dismissed. I reach this conclusion, however, for somewhat different reasons.
XVI. First, as I wrote in the companion case of Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, there is no third party right of appeal from an interlocutory criminal order. This is true whether the order is issued by a superior court judge or a provincial court judge. In this respect, I agree fully with the reasons of Bayda C.J.S. and find that the appellant had no right of appeal to the Saskatchewan Court of Appeal and no right of appeal to this Court.
XVII. Nonetheless, while a third party cannot challenge an interlocutory criminal order by way of appeal, I agree with Lamer C.J. that a third party can challenge an interlocutory criminal order by way of certiorari where the interlocutory order in question was issued by a provincial court judge. In the case at hand, however, the appellant made no such challenge. Accordingly, it is not strictly necessary to discuss the scope of review under certiorari or the remedial power available to the reviewing judge under this extraordinary remedy. Nonetheless, I wish to emphasize that where the order being reviewed is, as here, the product of a provincial court judge's legally authorized discretion, a challenge by way of certiorari should only rarely succeed. Certiorari is an extraordinary remedy and cannot be used to substitute one judge's discretion for that of another. Furthermore, a discretionary order per se cannot be challenged on Charter grounds as the Charter does not, as I noted in Dagenais, apply to court orders per se.
XVIII. While the Canadian Charter of Rights and Freedoms does not apply to court orders per se, it does apply to common law rules authorizing such court orders. However, this said, I concluded in Dagenais that the common law rule governing the issuance of publication bans in criminal proceedings is consistent with the Charter. Consequently, any challenge to this aspect of the common law must fail.
XIX. Finally, with respect to the remedial powers of certiorari, I agree with Lamer C.J. that currently they are limited to the power to quash the order or decision under review. I leave open the question of whether or not the expansion of these remedial powers proposed by Lamer C.J. in obiter comments in Dagenais is appropriate in the case of the judicial review of publication bans.
XX. For the reasons outlined above, I would dismiss the appeal.
The following are the reasons delivered by
McLachlin J. -- For the reasons given on the jurisdictional issue in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, released concurrently, I agree with the disposition of the Chief Justice.
Appeal dismissed.
Solicitors for the appellant: Robertson Stromberg, Saskatoon.
Solicitor for the respondent Her Majesty the Queen: W. Brent Cotter, Regina.
Solicitors for the intervener: S. Casey Hill and Michal Fairburn, Toronto.
Source: http://scc.lexum.umontreal.ca/en/1994/1994rcs3-952/1994rcs3-952.html
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