Content Regulation / Censorship
ABC & Others v. Telegraph Media Group Limited
Closed Mixed Outcome
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A publication ban will be upheld when it is determined, through a balancing test of society’s right to freedom of expression with an individual’s liberty interests and right to a fair trial, even if that ban is found to infringe on freedom of expression.
This case arises out of the claims of several media organizations alleging that Section 517 of the Criminal Code infringes on the right to freedom of expression. The provision, specifically provides that “a justice of the peace or provincial court judge is required[,] if an accused applies for one, to order a publication ban that applies to the evidence and information produced, and representations made, as a bail hearing and to any reasons given for the order.”  The Court recognized that this provision limits freedom of expression and was therefore left with the issue of whether this limit was permissible under the Canadian Charter of Rights and Freedoms.
The case at hand was on appeal from two sets of fact patterns. The Alberta case concerned Michael White who was charged with murdering his wife. A publication ban was ordered after bail was granted and the constitutionality of that ban was challenged. The Court of Queen’s Bench found the ban to be unconstitutional, but this decision was reversed by the Alberta Court of Appeal. The second case, in Ontario, involved several individuals charged with terrorism-related offenses, and one of the accused applied for a publication ban. The Justice ordered a ban, which was challenged. The Ontario Superior Court dismissed the action, which was appealed. The Ontario Court of Appeals ruled that the ban was unconstitutional as applied. This was appealed to the Supreme Court, while the other side cross-appealed arguing that the ban was valid.
The Supreme Court dismissed the cases but allowed the cross-appeal in the Ontario case.
 Para. 2 of the decision, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7861/index.do.
According to the majority opinion, written by Justice Deschamps, the relevant inquiry for the Court was “whether a ban on bail hearing should be mandatory in every case where it is requested by the accused, or whether it should only be imposed when the accused is able to demonstrate that his or her fair trial interests demand it.”  Publication bans always infringe upon freedom of expression and therefore the important inquiry is whether this infringement is constitutional when balancing the right to freedom of expression and the right to protect individual liberty interests. The Court specifically identified a test for determining when a publication ban is constitutional, referred to as the Oakes test, which states, “[w]hen a protected right is infringed, the government must justify its action by identifying a pressing and substantial objective, by demonstrating that there is a rational connection between the objective and the infringement, and by showing that the means chosen interferes as little as possible with the right and that the benefits of the measure taken outweigh its deleterious effects.” 
The Court first identified that the publication ban served a pressing and substantial objective by cutting down on potential prejudice towards a defendant. The Court next examined whether there was a rational connection between this objective and the means through which the ban accomplishes this objective, and found that this prong was satisfied. The Court then reviewed whether the ban had minimal impairment as it related to freedom of expression. The Court found that the ban met this standard, specifically, “[t]he ban is limited to a preliminary stage of the criminal justice process and is not absolute, and the information the media are prevented from publishing is untested, and is often one-sided and largely irrelevant to the search for truth. The ban may make journalists’ work more difficult but it does not prevent them from conveying and commenting on basic, relevant information.”  Finally, the Court examined whether the benefits of the ban outweighed its deleterious effects, and found that the effects of the ban were reasonable on balance with the rights of freedom of expression. Therefore, the Court found that the ban does infringe on freedom of expression but this infringement is justified on balance.
The Court briefly addressed additional issues in the Ontario and Alberta case and found that a publication ban applies to all the co-accused and declined to rule on the additional issues raised in the Alberta case.
The dissenting opinion, written by Justice Abella, argued that the publication ban did not meet the last prong of the Oakes test. It reasoned that the benefits of the ban did not outweigh its deleterious effects because of the great importance of the right of the public to access information in the Courts. The dissent would strike out the component of the ban making it mandatory when requested by the defendant for the ban to be considered constitutional.
 Para. 66 of the decision, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7861/index.do.
 Para. 19, id.
 Para. 40, id.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome. Although, the Court utilizes a multi-pronged test to determine if the publication bans are justified even though they infringe on freedom of expression, the Court ultimately dismisses the action because the publication bans meet all the prongs of the Oakes test according to the Court.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
” The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
“Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.”
“Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.”
Section 503(1)(a); 515; 516(1); 517; 518; 520; 539.
“‘[T]he analysis under s. 1 of the Charter must be undertaken with a close attention to context.'”
“‘[O]penness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.’ A publication ban therefore infringes freedom of expression. “
“[T]he limit on access to the content of a search warrant prior to the execution of the warrant is not discretionary.”
Case significance refers to how influential the case is and how its significance changes over time.
As a judgment of the Supreme Court, the highest Court in Canada, this decision binds all lower courts.
Let us know if you notice errors or if the case analysis needs revision.