Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  [1996] 3 S.C.R. 480: - Freedom of the press - Trial judge excluding public and media from courtroom during part of accused's sentencing proceedings - Whether s. 486(1) of Criminal Code infringes freedoms of expression and of the press - If so, whether s. 486(1) justifiable in a free and democratic society

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 NEW BRUNSWICK

Constitutional law - Charter of Rights - Freedom of expression - Freedom of the press - Trial judge excluding public and media from courtroom during part of accused's sentencing proceedings - Whether s. 486(1) of Criminal Code infringes freedoms of expression and of the press - If so, whether s. 486(1) justifiable in a free and democratic society - Canadian Charter of Rights and Freedoms, ss. 1, 2(b) - Criminal Code, R.S.C., 1985, c. C-46, s. 486(1).

Criminal law - Exclusion of public from court - Trial judge excluding public and media from courtroom during part of accused's sentencing proceedings - Whether trial judge exceeded his jurisdiction in making such order - Criminal Code, R.S.C., 1985, c. C-46, s. 486(1).

The accused pleaded guilty to two charges of sexual assault and two charges of sexual interference involving young female persons. On a motion by the Crown, consented to by defence counsel, the trial judge ordered the exclusion of the public and the media from those parts of the sentencing proceedings dealing with the specific acts committed by the accused, pursuant to s. 486(1) of the Criminal Code. The order was sought on the basis of the nature of the evidence, which the court had not yet heard and which purportedly established that the offence was of a "very delicate" nature. The exclusion order remained in effect for approximately 20 minutes. Afterwards, following a request by the CBC, the trial judge gave reasons for making the exclusion order, stating that it had been rendered in the interests of the "proper administration of justice"; it would avoid "undue hardship on the persons involved, both the victims and the accused". The CBC challenged the constitutionality of s. 486(1) before the Court of Queen's Bench. The court held that s. 486(1) constituted an infringement on the freedom of the press protected by s. 2(b) of the Canadian Charter of Rights and Freedoms but that the infringement was justifiable under s. 1 of the Charter. The court also held that the trial judge had not exceeded his jurisdiction in making the exclusion order. The Court of Appeal affirmed the judgment.

Held: The appeal should be allowed.

(1) Constitutional law issue

The open court principle is one of the hallmarks of a democratic society, fostering public confidence in the integrity of the court system and understanding of the administration of justice. This principle is inextricably tied to the rights guaranteed by s. 2(b) of the Charter. The freedom to express ideas and opinions about the operation of the courts and the right of members of the public to obtain information about them are clearly within the ambit of s. 2(b). As well, s. 2(b) protects the freedom of the press to gather and disseminate this information. Members of the public in general rely and depend on the media to inform them and, as a vehicle through which information pertaining to courts is transmitted, the press must be guaranteed access to the courts in order to gather information. Measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press guaranteed by s. 2(b). To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts. The recognition of the importance of public access to the courts as a fundamental aspect of our democratic society should not be understood, however, as affirming a right to be physically present in the courtroom; there may be a shortage of space. Nor should it be seen as extending public access to all venues within which the criminal law is administered. By its facial purpose, s. 486(1) of the Code restricts expressive activity, in particular the free flow of ideas and information, in providing a discretionary bar on public and media access to the courts. This is sufficient to ground a violation of s. 2(b).

The exclusion of the public under s. 486(1) of the Code is a means by which the court may control the publicity of its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the underreporting of sexual offences. This provision constitutes a reasonable limit on the freedoms guaranteed by s. 2(b) of the Charter. Section 486(1) is aimed at preserving the general principle of openness in criminal proceedings to the extent that openness is consistent with and advances the proper administration of justice. In situations where openness conflicts with the proper administration of justice, s. 486(1) purports to further the proper administration of justice by permitting covertness where necessary. This objective is of sufficient importance to warrant overriding a constitutional freedom. Section 486(1) is also proportionate to the legislative objective. First, the means adopted - a discretionary power in the trial judge to exclude the public where it is in the interests of the proper administration of justice - is rationally connected to the objective. The trial judge must exercise his discretion in conformity with the Charter and the grant of this judicial discretion necessarily ensures that any order made under s. 486(1) will serve the objective of furthering the administration of justice. If it is not rationally connected to the objective, then the order will constitute an error of law. Second, s. 486(1) impairs the rights under s. 2(b) as little as reasonably possible in order to achieve the objective. The discretion conferred on trial judges by s. 486(1) is not overbroad. Section 486(1) provides an intelligible and workable standard - the proper administration of justice - according to which the judiciary can exercise the discretion conferred. It also arms the judiciary with a useful and flexible interpretative tool to accomplish its goal of preserving the openness principle, subject to what is required by the proper administration of justice. Again, since the discretion must be exercised in a manner that conforms with the Charter, the discretionary aspect of s. 486(1) guarantees that the impairment is minimal. An order that fails to impair the rights at stake as little as possible will constitute an error. Third, the salutary effects of s. 486(1) outweigh the deleterious effects. Parliament has attempted to balance the different interests affected by s. 486(1) by ensuring a degree of flexibility in the form of judicial discretion, and by making openness the general rule and permitting exclusion of the public only when public accessibility would not serve the proper administration of justice. The discretion necessarily requires that the trial judge weigh the importance of the interests the order seeks to protect against the importance of openness and specifically the particular expression that is limited. In this way, proportionality is guaranteed by the nature of the judicial discretion. In deciding whether to order exclusion of the public pursuant to s. 486(1), a trial judge should bear in mind whether the type of expression that may be impaired by the order infringes upon the core values sought to be protected.

(2) Criminal law issue

In applying s. 486(1) to order the exclusion of the public, the trial judge must exercise his discretion in conformity with the Charter. He must (a) consider available options and whether there are any other reasonable and effective alternatives available; (b) consider whether the order is limited as much as possible; and (c) weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate. Additionally, the burden of displacing the general rule of openness lies on the party making the application. The applicant bears the burden of proving: that the particular order is necessary, in terms of relating to the proper administration of justice; that the order is as limited as possible; and that the salutary effects of the order are proportionate to its deleterious effects. In relation to the proportionality issue, if the order is sought to protect a constitutional right, this must be considered. There must also be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he may exercise his discretion judicially. In some cases in which the facts are not in dispute the statement of counsel will suffice. If there is insufficient evidence placed before the trial judge, or there is a dispute as to the relevant facts, the applicant should seek to have the evidence heard in camera.

Since the trial judge considering an application to exclude the public is usually in the best position to assess the demands in a given situation, where the record discloses facts that may support the trial judge's exercise of discretion, it should not lightly be interfered with. In this case, however, the trial judge erred in excluding the public from any part of the proceedings. There was insufficient evidence to support a concern for undue hardship to the complainants or to the accused. The order was unnecessary to further the proper administration of justice and its deleterious effects were not outweighed by its salutary effects. The mere fact that the victims are young females is not, in itself, sufficient to warrant exclusion. The victims' privacy was already protected by a publication ban and there was no evidence that their privacy interests required more protection. While the criminal justice system must be ever vigilant in protecting victims of sexual assault from further victimization, the record before the trial judge did not establish that undue hardship would befall the victims in the absence of a s. 486(1) order. Nor did the record reveal that there were any other reasons to justify an exception to the general rule of openness. Finally, barring exceptional cases, there is no issue of hardship to the accused arising from prejudicial publicity once the accused has pleaded guilty.

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