Access to Public Information, Other (see tags), Political Expression
Gomes Lund v. Brazil
Closed Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Supreme Court of Canada found that the district court judge erred in ordering exclusion of the public and media during criminal proceedings. The ruling came after the Canadian Broadcasting Corporation (“CBC”) was barred from attending a portion of a criminal proceeding and filed suit arguing that the judge violated the s. 2(b) of the Canadian Charter of Rights and Protections. However, the Court upheld the constitutionality of 486(1) of the Criminal Code which gives judges the discretion to exclude the media and public from criminal proceedings.
Amid the criminal proceedings of a man who plead guilty to sexually assaulting young women, the judge ordered the exclusion of the media and public during parts of the sentencing where the specific acts of the accused were discussed (approximately 20 minutes). Following a request from the Canadian Broadcasting Corporation (“CBC”), the judge gave the reasons for the exclusion order stating the subject matter was sensitive in nature, a proper administration of justice, and public/media access would create undue hardships on both the victims and the accused. The CBC filed suit arguing that s. 2(b) of the Canadian Charter of Rights and Protections, which protects freedom of expression, was violated when the judge exceeded the jurisdiction of the court by ordering the exclusion under the unconstitutional 486(1) of the Criminal Code. The lower courts held that the judge did not exceed the jurisdiction of the court and that while 486(1) of the Criminal Code violated s. 2(b) of the Canadian Charter of Rights and Protections, it was justified under s. 1 of the Charter. Therefore, the lower courts held 486(1) of the Criminal Code was constitutional.
The Supreme Court of Canada held that, while the openness of the court system is essential to democracy, reasonable limitations may be employed to protect victims of violent crimes. Access to the court system is protected under the s. 2(b) of the Canadian Charter of Rights and Protections and as such 486(1) of the Criminal Code violates 2(b) of the Charter. However, access to the courtroom is not absolute and does not guarantee a physical presence in the courtroom.
The Court system has a duty to safeguard victims and unlimited access may prevent individuals from reporting for fear their privacy may be violated. The openness of the courtroom can be limited if access would prevent the proper administration of justice. The Court gives three reasons. First, the district court judge has the discretion to use an order of exclusion in relation to the Charter, the judge can only exert this power when it serves to further the administration of justice. Second, the judge cannot act overly broad and the exclusion order allows for flexibility to only exclude the public only when absolutely necessary. Finally, the benefits of 486(1) of the Criminal Code outweighs the negative effects. 486(1) was created by the legislative as a balancing test of the Charter and the administration of justice. The Court stated that the Judge should also bear in mind which type of freedom of expression will be infringed upon and to what extent while making the decision to employ the order of exclusion.
In this case, the Court found that district court judge overextended the power granted in 486(1) of the Criminal Code. The Court held that the judge has a duty to consider alternative options to exclusion, exclude only what is absolutely necessary, and engage in a cost-benefit analysis with regards to freedom of expression. The Court also stated that the judge has the burden to prove that excluding the public and the media was in the proper administration of justice and that allowance would cause undue hardship. The Court held that the district court judge fell short of this burden and thus erred in issuing an order of exclusion.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of Canada upheld the constitutionality of 486(1) of the Criminal Code which allows judges to exclude the public and the media in order to ensure the proper administration of justice. The Court held that although the order is at the judge’s discretion, the judge has the burden to prove that order was necessary and does not unduly burden freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Section 486(1) of the Criminal Code was held constitutional, even though it could be argued as a violation under Section 2(b) of the Charter of Rights and Freedoms, it’s enforcement is justified by Section 1 of the Charter.
Case significance refers to how influential the case is and how its significance changes over time.
CBC v. New Brunswick creates binding precedent and outlines the duties, limitations, and burdens placed on judges who choose to issue an order of exclusion.
Let us know if you notice errors or if the case analysis needs revision.