Content Regulation / Censorship, Privacy, Data Protection and Retention
Gazeta do Povo v. Baptista et. al.
Closed Expands Expression
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The Supreme Court of Canada removed a ban prohibiting publication of a mini-series about the respondents (Dagenais, et al.) or reporting on the ban itself, on the grounds that the ban was too broad. The respondents were teachers at Catholic training schools who were on trial for sexually abusing students when the mini-series, a fictional account of abuse at Catholic schools, was announced by the Canadian Broadcasting Corporation; with the intent of ensuring a fair trial for the respondents, courts blocked the publication of the series. The Supreme Court overturned the initial ban on the grounds that it was too broad and its goal could have been achieved without compromising free expression.
The appellant in this case was the Canadian Broadcasting Company (“CBC”) and the respondents are Lucien Dagenais, Léopold Monette, Joseph Dugas, and Robert Radford, all of whom had been associated with the Christian Brothers, a Catholic religious order. The respondents were all charged with physical and sexual abuse. The respondents were teachers in Catholic training schools (where the abuse allegedly took place) and the victims were young boys that were in the care of the respondents.
The appellant CBC began advertising the nation-wide broadcast of a four-hour mini-series entitled “The Boys of St. Vincent” in November 1992. The mini-series was a fictional account of sexual and physical abuse of children in a Catholic institution and the broadcast was to be aired in two two-hour segments that began on December 6, 1992.
The trials of the respondents were being heard (or were scheduled to be heard) in the Ontario Court of Justice (General Division) in front of judge and jury at the time of the hearing on the publication ban. Dagenai was in his fifth week of trial before Soublière J. Monette trail was scheduled to run from February 1 to February 26, 1993 before Cusson J. Additionally, Radford’s trial was scheduled to run from April 5 to May 4, 1993, and Dugas’ trial was scheduled to commence between May 31 and July 2, 1993 (despite the fact that trial judges had not been named for Radford or Dugas). Although Soublière J. was scheduled to charge the jury in Dagenais’ trial on December 7, 1993, the defense counsel brought an application before Soublière J. on December 3, 1993 requesting that he charge the jury on December 4 instead of on December 7. The defense counsel continued to ask that Soublière J. sequester the jury on December 5 and 6 if he did not wish to honor the above request. Soublière J. directed the jury not to watch the broadcast, but he declined to charge the jury on December 4 or sequester the jury on December 5 and 6, 1993.
The respondents reached out to Madam Justice Gotlib, a colleague of Soublière J. in the Ontario Court of Justice (General Division), on December 4, 1992. The respondents applied for an interlocutory injunction under the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, which prevented the appellant from broadcasting the mini-series and from publishing any information relating to the proposed broadcast of that program in any media source. The application was amended at the beginning of the hearing to indicate that the application was for an injunction to last until the end of the four trials. Gotlib J. of the Ontario Court of Justice granted an interlocutory injunction that prohibited the broadcast of the mini-series anywhere in Canada (until the completion of the trials of the respondents).
The respondents requested (and were granted) an order that permitted the application to be heard on short notice. The respondents also requested (and were granted) an order that prohibited the publication of the fact of the application, or any material relating to it, pending completion of the four trials, this did not include any time involved in an appeal process.
On December 5, 1992, the Court of Appeal heard the appeal from Gotlib J.’s judgment and affirmed the lower court’s decision to grant the injunction against the broadcast. The Court of Appeal limited the scope of the injunction to Ontario and CBMT-TV in Montreal and reversed the order banning any publicity about the proposed broadcast and the proceedings that gave rise to the publication ban.
The injunction prohibited the broadcast of the mini-series in all of Canada until the respondents completed their trials. The superior court judge granted the injunction as well as an order that prohibited the publication of the application facts (or related material). Although the Court of Appeal affirmed the Superior Court’s decision to grant the injunction, it applied the injunction only to Ontario and CBMT TV in Montreal. The Court of Appeal did not uphold the ban on any publicity about the mini-series and the facts of the proceedings that initiated the publication ban.
The Supreme Court stated that Canada should reject viewing publication bans as a struggle between the media’s right to freedom of expression and the accused’s right to a fair trial. The Supreme Court also reasoned that the efficacy of a publication ban is an important factor in the analysis that is required when considering whether a publication ban is justifiable.
The Supreme Court stated that the party that claims that a publication ban is needed to avoid compromising the fairness of the trial must also justify the need to limit freedom of expression. The party must prove that the publication ban is necessary based on if the ban “relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited as possible, and that there is a proportionality between the salutary and deleterious effects of the ban. The fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied.”  The Supreme Court held that in order for such a ban to be appropriate, a judge must engage in the following analysis: (1) review the publication ban, (2) consider other options, (3) find that there is no alternative, (4) limit the ban whenever possible, and (5) “consider the importance of the ban and its likely effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.” 
The Supreme Court held that the publication ban will not stand because, although the ban was created to prevent a legitimate compromise of the fairness of the respondents’ trial, the initial ban was too broad since it prohibited the broadcast of the mini-series across the nation of Canada as well as reporting about the ban. Finally, the Supreme Court concluded that other sensible measures could have been utilized to achieve the goal without compromising the third party’s right to freedom of expression.
 Pg. 840 of the decision, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1204/index.do
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded expression because the Supreme Court held that the appellants did not need to adhere to the ban.
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Decisions from the Supreme Court of Canada are binding precedent on all lower courts in Canada.
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