R. v. S. (T.) [1994] 3 S.C.R. 952: 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.

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.

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