Confidentiality Request (In-Camera Hearing LTB)

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Date Retrieved:	2025-02-24
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Citation:	Confidentiality Request (In-Camera Hearing LTB), CLNP 2460, <>, retrieved on 2025-02-24
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Last Updated:	2025/02/02

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Dagenais v. Canadian Broadcasting Corporation, 1994 CanLII 39 (SCC)

...

Freedom of expression is a right fundamental to democratic society. Accordingly, this Court has taken the view that the ambit of the right must be generously interpreted, going so far as to hold that even hate propaganda falls within the guarantee. Limitations on the guarantee may not be assumed; as a general rule, they must be justified, under s. 1 of the Charter.

The expression at issue on this appeal -- the right to broadcast a fictional cinematic work -- falls squarely within the ambit of s. 2(b) as defined by previous cases. The ban interfered with the right of the actors, directors and producers of the film to express themselves. There can be no doubt that the ban limited the right of freedom of expression guaranteed by s. 2(b) of the Charter.

The more difficult question is whether the ban can be justified under s. 1 of the Charter as a reasonable limit on freedom of expression, judged by the standards of a free and democratic society. Accepting the ban is a "limit" on s. 2(b) rights "prescribed by law", one must weigh the gravity of the infringement of s. 2(b) against the objective to which the ban was directed.

Applying the criteria developed by this Court in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, one looks first to the objective of the ban. It is clear. It was to preserve the respondents' rights to a fair trial -- in particular to avoid the risk that an impartial jury could not be sworn, or if sworn, could not render a true verdict because of the poisonous effects of the publication.

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The next step is whether the infringement is proportionate to, or justified by, this goal. Proportionality in this sort of case is not a question of deciding where the balance should be struck between a fair trial and freedom of expression. The right to a fair trial is fundamental and cannot be sacrificed. I agree with the Chief Justice that in general, the conflict model is largely inappropriate. Fair trials and open discussion tend to go hand in hand. Nevertheless, in some instances, such as that in the current case, unlimited free expression may interfere with the accused's right to a fair trial. As Dickson C.J. said for the Court in Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 467-68:

On the other side, however, it is equally obvious that free speech or expression is not an absolute, unqualified value. Other values must be weighed with it. Sometimes these other values supplement, and build on, the value of speech. But in other situations there is a collision. When that happens the value of speech may be cut back if the competing value is a powerful one. . . . We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.

There thus may be cases where special circumstances are presented which indicate a serious risk (as opposed to a speculative possibility) that a fair jury could not be sworn or, where jurors have already been sworn, that publicity might somehow find its way to them and prejudice them. In these cases, a ban may be justified, provided that it goes no further than required to avoid the demonstrated risk of an unfair trial.

The common law test for whether a ban should be ordered is that there is a real and substantial risk that a fair trial would be impossible if publication were not restrained. Properly applied, that test meets the requirements of justification of an infringing measure under s. 1 -- that the infringement be rationally connected to the goal, that it be minimally intrusive, and that it be proportionate to

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the benefit achieved. What is required is that the risk of an unfair trial be evaluated after taking full account of the general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered. The courts are the guardians not only of the right to a fair trial but of freedom of expression. Both must be given the most serious consideration.

Rational connection between a broadcast ban and the requirements of a fair and impartial trial require demonstration of the following. First, it would seem necessary to show that many people eligible to sit as jurors would see the broadcast; conversely, if a substantial number would not see it, there should be no problem selecting a jury from among them. Second, it must be shown that publication might confuse or predispose potential jurors. In the case of a fictional work, it should be shown that jurors will not be able to separate broadcast fiction from reality. Third, it must be shown that any confusion may not be dispelled by proper direction or by other measures, such as judicial directions, change of the venue of the trial, or more exacting jury selection processes. If after considering all such matters, the judge is still left with a real concern that there is a substantial risk the trial may be rendered unfair, a rational connection between the infringement of freedom of expression and the ban will have been established.

Once the rational connection has been established, the judge must go on to ensure that the ban is minimally intrusive, i.e., that it impinges on freedom of expression no further than is actually required to avoid the risk of an unfair trial. It must be confined to the minimum geographical area required. It must not extend to more forms of

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expression or media of dissemination than necessary. And it must cease at the earliest possible time consistent with removing the risk of an unfair trial.