SUPREME
COURT OF CANADA
Between:
Canadian
Broadcasting Corporation
Appellant
and
Her
Majesty The Queen and Stéphan Dufour
Respondents
-
and -
Attorney
General of Canada, Attorney General of Quebec,
Attorney
General of New Brunswick, Attorney General of Alberta,
British
Columbia Civil Liberties Association and
Canadian
Civil Liberties Association
Interveners
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 20)
|
Deschamps J. (McLachlin C.J. and Binnie,
LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
|
Canadian
Broadcasting Corp. v. The Queen, 2011 SCC 3,
[2011] 1 S.C.R. 65
Canadian Broadcasting Corporation Appellant
v.
Her Majesty The Queen and
Stéphan Dufour Respondents
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of New Brunswick,
Attorney General of Alberta,
British Columbia Civil Liberties Association and
Canadian Civil Liberties Association Interveners
Indexed as: Canadian Broadcasting Corp. v. The
Queen
2011 SCC 3
File No.: 32987.
2010: March 16;
2011: January 28.
Present:
McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron,
Rothstein and Cromwell JJ.
on appeal from the superior court
of quebec
Criminal
law — Procedure — Broadcasting ban — Open court principle — Video recording of
statement made to police by accused tendered in evidence at trial — Media
organizations applying for permission to broadcast recording of statement —
Expressive activity protected by freedom of expression — Order within
discretion of trial judge — Whether motion must be decided by applying
Dagenais/Mentuck test.
Courts — Superior Court — Broadcasting ban —
Rules of practice prohibiting any broadcasting of recording of hearing —
Whether prohibition applies to broadcasting of exhibit tendered in evidence —
Rules of Practice of the Superior Court of the Province of Quebec, Criminal
Division, 2002, SI/2002‑46 (am. SI/2005‑19), ss. 8, 8.A.
At
S’s trial, the Crown produced as an exhibit a video recording of a statement he
had made to the police before being charged. The Superior Court authorized
journalists to view the statement in another courtroom and to film the screen
on which the statement was being played back, but prohibited them from
broadcasting the recording of the statement. The CBC and Groupe TVA applied to
the Superior Court for permission to broadcast the video recording of the
statement, but their motion was dismissed. The CBC appealed that decision.
Held: The appeal
should be dismissed.
The
prohibition on broadcasting provided for in ss. 8 and 8.A of the Rules
of Practice of the Superior Court of the Province of Quebec, Criminal Division,
2002 does not apply to a video recording tendered in evidence. It applies
only to recordings of proceedings. Because exhibits are created independently
of and prior to the proceedings at the hearing, they cannot be equated with
those proceedings. Access to exhibits is a corollary to the open court
principle, and in the absence of an applicable statutory provision, it is up to
the trial judge to decide, in accordance with the analytical approach developed
in Dagenais and Mentuck, how exhibits can be used. Before making
an order on an application to broadcast a statement, the trial judge must weigh
the factors at stake and ensure that the serenity of the hearing, trial
fairness and the fair administration of justice are preserved.
In this case, S’s trial is now over and he has been acquitted. The
appeal as framed has become moot. However, should a motion to broadcast the
statement be made even though the judicial proceedings are over, the judge
would have to assess the impact that broadcasting the statement might have on
the trial of a co‑accused or on the accused personally. S argues that
the impact on him of broadcasting the statement would be particularly dire
because of his intellectual disability. There are cases in which the
protection of social values must prevail over openness. A situation requiring
the protection of vulnerable individuals, especially after they have been
acquitted, is one such case.
Cases Cited
Applied:
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v.
Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; referred to: Canadian Broadcasting Corp. v. Canada (Attorney General),
2011 SCC 2, [2011] 1 S.C.R. 19; Société Radio‑Canada v. Québec
(Procureur général), 2008 QCCA 1910, [2008] R.J.Q. 2303; Irwin Toy Ltd. v.
Quebec (Attorney General), [1989] 1 S.C.R. 927; Vickery v. Nova Scotia
Supreme Court (Prothonotary), [1991] 1 S.C.R. 671; Attorney General of
Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; R. v. Canadian
Broadcasting Corporation, 2010 ONCA 726 (CanLII); Société Radio‑Canada
v. Bérubé, [2005] R.J.Q. 1183; R. v. Giroux, 2005 CanLII 12396; Vancouver
Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Toronto Star Newspapers Ltd.
v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188; Named Person v. Vancouver
Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; Toronto Star Newspapers Ltd. v.
Canada, 2010 SCC 21, [2010] 1 S.C.R. 721.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 2 (b).
Criminal Code, R.S.C. 1985, c. C‑46,
s. 241 (b).
Rules of Practice of the Superior Court of the Province of Quebec,
Criminal Division, 2002, SI/2002‑46,
ss. 8, 8.A [ad. SI/2005‑19, (2005) 139 Can. Gaz. II, 417, s. 1],
8.B [idem].
Supreme Court Act, R.S.C. 1985, c. S‑26,
s. 40 .
Authors Cited
Béliveau, Pierre, et Martin Vauclair. Traité général de preuve
et de procédure pénales, 15e éd. Montréal:
Thémis, 2008.
APPEAL
from a decision of the Quebec Superior Court, 2008 QCCS 6931, [2008] J.Q. no 24110
(QL), 2008 CarswellQue 14365, dismissing a motion for permission to broadcast a
statement of the accused. Appeal dismissed.
Sylvie Gadoury, Geneviève McSween and Anne‑Julie
Perrault,
for the appellant.
Dominique A.
Jobin and Denis Dionne, for the respondent Her Majesty
the Queen and the intervener the Attorney General of Quebec.
Pascale F.
Tremblay and Michel
Boudreault, for
the respondent Stéphan Dufour.
Pierre Salois and Claude Joyal, for the intervener the Attorney General of Canada.
Gaétan Migneault, for the intervener the
Attorney General of New Brunswick.
Donald B.
Padget, for
the intervener the Attorney General of Alberta.
Simon V.
Potter and Michael A. Feder, for the intervener the British
Columbia Civil Liberties Association.
Mahmud Jamal and Jason MacLean, for the intervener the
Canadian Civil Liberties Association.
English version of the judgment of the Court
delivered by
[1]
Deschamps J. — In this case, as in the companion appeal Canadian
Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1
S.C.R. 19, the judgment in which is being released concurrently, the Court must
consider the interrelationship of freedom of the press, the open court
principle and the fair administration of justice. The challenge in the
companion appeal concerns rules on broadcasting recordings of hearings and on
conducting interviews, filming and taking photographs. In the case at bar, the
challenge relates instead to the broadcasting of a video recording tendered in
evidence at trial.
1. Facts
[2]
The respondent Stéphan Dufour, who was charged with aiding suicide under
s. 241 (b) of the Criminal Code, R.S.C. 1985, c. C‑46
(“Cr. C.”), elected to be tried by judge and jury. The trial began on
November 25, 2008, before Lévesque J. of the Quebec Superior Court.
On November 27, 2008, the Crown produced as an exhibit a video recording
of a statement Mr. Dufour had made to the police before being charged.
The parties, the jury and members of the media were present in the courtroom.
No general or specific restrictions were placed on the openness of the hearing.
Lévesque J. authorized the journalists to view the statement. For this
purpose, portions of the recorded statement selected by the journalists were
shown on a screen in another courtroom, and the journalists were allowed to
film the screen as these portions were being played back. However, the court
clerk and Lévesque J. told the journalists that they were prohibited from
broadcasting the recording of the statement. This limit on the use of the
recording gave rise to this litigation.
2. Judicial History
[3]
On December 1, 2008, the appellant, the Canadian Broadcasting
Corporation (“CBC”), and Groupe TVA applied jointly to Lévesque J. for
permission to broadcast the video recording of the statement. The motion was
dismissed: 2008 QCCS 6931 (CanLII). The judge considered that since
ss. 8 and 8.A of the Rules of Practice of the Superior Court of the
Province of Quebec, Criminal Division, 2002, SI/2002‑46, am.
SI/2005‑19, s. 1 (“RPCr” or “Rules of Criminal Practice”), prohibit
any broadcasting of a recording of a hearing, the broadcasting of a video
recording introduced in evidence should also be prohibited (para. 21). In
his opinion, [translation] “the
effect of [concluding otherwise] would be to indirectly authorize the
applicants to do something that is directly prohibited” (para. 22).
Relying on the Quebec Court of Appeal’s judgment in Société Radio‑Canada
c. Québec (Procureur général), 2008 QCCA 1910, [2008] R.J.Q. 2303,
Lévesque J. held that ss. 8, 8.A and 8.B of the Rules of Criminal
Practice were constitutionally valid.
[4]
The CBC appealed that order to this Court under s. 40 of the Supreme
Court Act, R.S.C. 1985, c. S‑26 .
3. Issues
[5]
On June 29, 2009, the Chief Justice stated two questions
concerning the constitutionality of ss. 8 and 8.A RPCr under s. 2 (b)
of the Canadian Charter of Rights and Freedoms (“Charter ”). The
CBC, the Crown and the Attorney General of Quebec (“AGQ”), together with
Stéphan Dufour and the Attorney General of Canada (“AGC”), submit that these
questions should not be answered, because in their view ss. 8 and 8.A RPCr
are not applicable in this case. As will be shown in the reasons that follow,
this submission is well founded. I would therefore restate
the issues as follows:
1. Do
ss. 8 and 8.A RPCr prohibit the broadcasting of the statement?
2. If not, what are the rules applicable to the
broadcasting of an exhibit tendered in evidence at trial?
4. Analysis
[6]
I will begin by considering the impact of the Rules of Criminal Practice
on the broadcasting of exhibits tendered in evidence before discussing the test
for determining whether a discretionary publication ban is valid.
4.1 Scope of Sections 8 and 8.A of the
Rules of Criminal Practice
[7]
The relevant excerpts from ss. 8 and 8.A of the Rules of Criminal
Practice read as follows:
8.
. . .
. . .
The media may
nevertheless record proceedings before the court on audiotape, including
any decision rendered, unless the judge orders otherwise. The broadcasting
of any such recording is prohibited.
8.A Any
broadcasting of a recording of a hearing is prohibited.
[8]
The prohibition established in ss. 8 and 8.A RPCr applies only to
the broadcasting of recordings of proceedings, that is, of sounds (including
voices) heard during hearings. Exhibits are distinct from the hearings. From
the moment they are tendered at trial, exhibits become part of the record of
the proceedings. Because they are created independently of and prior to the
proceedings at the hearing, however, they cannot be equated with those
proceedings. Although the factors that proved to be applicable in the analysis
of the constitutional validity of the Rules of Criminal Practice in the
companion case may also be relevant to the determination of whether the
appellant is entitled to broadcast the exhibits, it does not follow that those
rules can serve as a basis for resolving the issue in the case at bar.
4.2. Rules Applicable to the Broadcasting of
an Exhibit
[9]
The Crown and the AGQ argue that Lévesque J.’s order cannot be
equated with a publication ban. They submit, as does Stéphan Dufour, that the
protection of s. 2 (b) of the Charter does not extend to the broadcasting
of an exhibit such as a statement tendered in evidence. The CBC disagrees,
contending that that constitutional guarantee does in fact apply to the broadcasting
of the statement.
[10]
Because the CBC wishes to inform its viewers of the message contained in
the video recording, broadcasting that recording is clearly an expressive
activity to which the protection of s. 2 (b) of the Charter
might apply (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927).
[11]
Stéphan Dufour, the Crown, the AGQ and the AGC also submit that the rule
applicable to the conditions for broadcasting was established in Vickery v.
Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, and not in Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck,
2001 SCC 76, [2001] 3 S.C.R. 442. I cannot agree with this position. Although
some aspects of Vickery remain relevant, that case is not determinative,
as the Court declined at that time to rule on whether access to exhibits was
protected by the Constitution — that argument had not been raised in the courts
below. In the instant case, however, the constitutional guarantee argument has
been expressly raised.
[12]
Access to exhibits is a corollary to the open court principle. In the
absence of an applicable statutory provision, it is up to the trial judge to
decide how exhibits can be used so as to ensure that the trial is orderly.
This rule has been well established in our law for a very long time. As long
ago as in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R.
175, at p. 189, Dickson J. (as he then was) wrote:
Undoubtedly
every court has a supervisory and protecting power over its own records.
Access can be denied when the ends of justice would be subverted by disclosure
or the judicial documents might be used for an improper purpose.
(See also
P. Béliveau and M. Vauclair, Traité général de preuve et de
procédure pénales (15th ed. 2008), at pp. 499‑500; R. v.
Canadian Broadcasting Corporation, 2010 ONCA 726 (CanLII); Société Radio‑Canada
v. Bérubé, [2005] R.J.Q. 1183 (Sup. Ct.); R. v. Giroux, 2005 CanLII
12396 (Sup. Ct.).)
[13]
The analytical approach developed in Dagenais and Mentuck applies
to all discretionary decisions that affect the openness of proceedings. In
Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, Iacobucci and
Arbour JJ. wrote the following:
While
the [Dagenais/Mentuck] test was developed in the context of publication
bans, it is equally applicable to all discretionary actions by a trial judge to
limit freedom of expression by the press during judicial proceedings.
Discretion must be exercised in accordance with the Charter , whether it
arises under the common law, as is the case with a publication ban (Dagenais,
supra; Mentuck, supra); is authorized by statute, for
example under s. 486(1) of the Criminal Code which allows the
exclusion of the public from judicial proceedings in certain circumstances (Canadian
Broadcasting Corp. v. New Brunswick (Attorney General), supra, at
para. 69); or under rules of court, for example, a confidentiality order (Sierra
Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002
SCC 41). The burden of displacing the general rule of openness lies on the
party making the application: Canadian Broadcasting Corp. v. New
Brunswick (Attorney General), at para. 71. [para. 31]
(See
also Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2
S.C.R. 188, at para. 7; Named Person v. Vancouver Sun, 2007 SCC 43,
[2007] 3 S.C.R. 253, at para. 35; Toronto Star Newspapers Ltd. v.
Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at paras. 15‑16; R.
v. Canadian Broadcasting Corporation, at para. 21.)
[14]
Thus, there is no need to determine whether the facts in the case at bar
are analogous to those in Dagenais or Mentuck. The findings that
the activity in issue is protected by s. 2 (b) of the Charter
and that the order was within the discretion of Lévesque J. will suffice.
The issue must accordingly be resolved by applying the test from Dagenais
and Mentuck. Requiring the judge to apply this test does not mean that
it is necessary to conduct a lengthy or elaborate review of the evidence,
although all the relevant facts must be considered. Nor is there anything new
about trial judges being responsible for establishing conditions for access to
exhibits. Judges have always been required, in exercising their discretion, to
balance factors that might seem to point in opposite directions. With this in
mind, the factors listed in Vickery remain relevant, but they must be
considered in light of the framework developed in Dagenais and Mentuck.
[15]
In the instant case, given that the trial judge interpreted the Rules of
Criminal Practice too broadly, he failed to conduct the analysis required by Dagenais
and Mentuck. If the trial were still under way, it would be appropriate
to remand the case to him to decide the issue on the basis of the relevant
facts. However, not only is the trial over — Mr. Dufour was acquitted —
but the Court of Appeal has dismissed the Crown’s appeal from that verdict
since this Court took the instant case under advisement. The circumstances
have therefore been altered fundamentally and the appeal as framed has become
moot. Nevertheless, since this is a question of interest, I should mention a
few considerations that might prove to be relevant should a motion to broadcast
the statement be made even though the judicial proceedings are over.
[16]
The weighing involved in the analysis required by Vickery, Dagenais
and Mentuck is based on considerations that include the specific context
of the case before the judge. How crucial this context is can be seen from the
facts in the case at bar.
[17]
The context of a statement made by an accused person or a suspect in the
course of a police investigation is different from that of testimony given in a
courtroom. A person who testifies at a hearing usually does so under
compulsion of law, pursuant to a subpoena. Witnesses must, to the extent
possible, be protected from any external pressure that could influence their
testimony. The controlled environment of the courtroom contributes to this
objective. The circumstances specific to compelled testimony do not exist in
the case of an out‑of‑court statement. But if the person who makes
the statement knows that it could end up as the lead story on the local or
national television news, this could cause him or her to think carefully before
deciding whether to make it. Thus, the possibility that the statement will be
broadcast could have a negative effect on the search for the truth, but it
could also have a salutary effect on the voluntariness of the statement and,
consequently, on the administration of justice.
[18]
Moreover, since an exhibit already exists when it is introduced at
trial, the judge’s decision can always be made at the appropriate time. It
will therefore be possible for the trial judge, before making an order on an
application to broadcast a statement, to weigh the factors at stake and ensure
that the serenity of the hearing, trial fairness and the fair administration of
justice are preserved.
[19]
At the end of the trial of the person who made the statement, the judge
may have to assess the impact that broadcasting the statement might have on the
trial of a co‑accused or on the accused personally. In his factum,
Mr. Dufour argues that the impact on him of broadcasting the statement
would be particularly dire because of his intellectual disability. The fact
that Mr. Dufour has been acquitted and his particular vulnerability are
factors that give full meaning to Dickson J.’s comment in MacIntyre,
at pp. 186‑87, that there are cases in which the protection of
social values must prevail over openness. In my view, a situation requiring
the protection of vulnerable individuals, especially after they have been
acquitted, is one such case.
[20]
For these reasons, I would dismiss the appeal, but without costs.
Appeal
dismissed.
Solicitor
for the appellant: Canadian Broadcasting Corporation, Montréal.
Solicitor
for the respondent Her Majesty the Queen and the intervener the Attorney
General of Quebec: Attorney General of Quebec, Ste‑Foy.
Solicitors
for the respondent Stéphan Dufour: Boudreault Tourangeau Tremblay,
Chicoutimi.
Solicitor
for the intervener the Attorney General of Canada: Attorney General
of Canada, Montréal.
Solicitor
for the intervener the Attorney General of New Brunswick: Attorney
General of New Brunswick, Fredericton.
Solicitor
for the intervener the Attorney General of Alberta: Attorney General
of Alberta, Edmonton.
Solicitors
for the intervener the British Columbia Civil Liberties Association: McCarthy
Tetrault, Montréal.
Solicitors
for the intervener the Canadian Civil Liberties Association: Osler,
Hoskin & Harcourt, Toronto.