When considering all of the evidence adduced by appellant, it appears
that, of the most serious crimes, sexual assault is one of the most unreported. The
main reasons stated by those who do not report this offence are fear of treatment by
police or prosecutors, fear of trial procedures and fear of publicity or embarrassment.
Section 442(3) is one of the measures adopted by Parliament to remedy this situation,
the rationale being that a victim who fears publicity is assured, when deciding whether
to report the crime or not, that the judge must prohibit upon request the publication of
the complainant's identity or any information that could disclose it. Obviously, since
fear of publication is one one of the factors that influences the reporting of sexual
assault, certainty with respect to non-publication at the time of deciding whether to
report plays a vital role in that decision. Therefore, a discretionary provision under
which the judge retains the power to decide whether to grant or refuse the ban on
publication would be counterproductive, since it would deprive the victim of that
certainty. Assuming that there would be a lesser impairment of freedom of the press
if the impugned provision were limited to a discretionary power, it is clear, in my
view, that such a measure would not, however, achieve Parliament's objective, but
rather defeats it.
canadian newspaper co. v. canada (a. g.), [1988] 2 S.C.R. 122
CANADIAN NEWSPAPERS CO. v. CANADA (ATTORNEY GENERAL)
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Freedom of the press --
Mandatory ban on publication of identity of a complainant in sexual case when
request made by complainant -- Whether s. 442(3) of the Criminal Code violates s.
2(b) of the Canadian Charter of Rights and Freedoms -- If so, whether such violation
justifiable under s. 1 of the Charter.
Constitutional law -- Charter of Rights -- Right to a public hearing --
Mandatory ban on publication of identity of a complainant in sexual case when
request made by complainant -- Whether s. 442(3) of the Criminal Code violates s.
11(b) of the Canadian Charter of Rights and Freedoms -- If so, whether such violation
justifiable under s. 1 of the Charter.
An accused was charged with sexual assault, contrary to s. 246.2 (a) of the
Criminal Code. The complainant, the accused's wife, applied for an order under s.
442(3) of the Code directing that her identity and any information that could disclose
it should not be published in any newspaper or broadcast. Such an order is mandatory
under that section when the applicant is the complainant. Respondent, appearing at
the accused's trial, opposed the complainant's application on the basis that s. 442(3)
violated the right of freedom of the press guaranteed by s. 2(b) of the Canadian
Charter of Rights and Freedoms. The trial judge made an interim order granting the
complainant's application. The respondent then made a civil application for a
declaration that s. 442(3) is unconstitutional. The trial judge upheld the validity of s.
442(3), dismissed the application and ordered a publication ban. he also rejected the
accused's argument raised informally that s. 11(d) was violated. On appeal, the Court
of Appeal held that s. 442(3) infringed s. 2(b) of the Charter and that the government
had failed to demonstrate the need for a mandatory prohibition section, and as a result,
severed from 442(3) the words "of if application is made by the complainant or
prosecutor, shall". The Court held also that s. 442(3) did not violate the right to a fair
and public hearing contained in s. 11(d) of the Charter.
Held: The appeal should be allowed.
Section 442(3) of the Code infringes the freedom of the press guaranteed
by s. 2(b) of the Charter. Freedom of the press is an important and essential attribute
of a free and democratic society, and measures which prohibit the media from
publishing information deemed of interest obviously restrict that freedom.
The limit imposed by s. 442(3) on the freedom of the press is justifiable
under s. 1 of the Charter. Section 442(3) purports to foster complaints by victims of
sexual assault by protecting them from the trauma of wide-spread publication resulting
in embarrassment and humiliation. Encouraging victims to come forward and
complain facilitates the prosecution and conviction of those guilty of sexual offences.
The overall objective of suppression of crime and to improve the administration of
justice. This objective undoubtedly bears on a "pressing and substantial concern" and
is of sufficient importance to warrant overriding a constitutional right. The provision
has a rational connection to the objective it is designed to serve and imposes only
minimal limits on the media's rights. Section 442(3) applies only to sexual offence
cases, it restricts publication of facts disclosing the victim's identity and it does not
provide for a general ban but is limited to instances where the complainant or
prosecutor requests the order or the court considers it necessary. Nothing prevents the
media from being present at the hearing and reporting the facts of the case and the
conduct of the trial. Only information likely to reveal the complainant's identity is
concealed from the public. Therefore, it cannot be said that the effects of s. 442(3) are
such an infringement on the media's rights that the legislative objective is outweighed
by the abridgement of freedom of the press. A discretionary provision under which
a judge would retain the power to decide whether to grant or refuse the ban on
publication would not be effective in attaining Parliament's pressing goal, since it
would deprive the complainants of the assurance that, upon request, their identity
would not be disclosed, an important factor in their decision to report the crime.
Section 442(3) of the Code does not infringe the accused's right to a public
hearing guaranteed by s. 11(d) of the Charter. The mandatory ban on publication does
not prevent the public or the press from attending trial proceedings; it only restricts
publication of facts disclosing the complainant's identity.
The question as regards the accused's right to a fair hearing should not be
answered since it was not an issue properly raised before this Court.
The facts
2. A man was tried in Ontario for committing a sexual assault, contrary
to s. 246.2(a) of the Criminal Code, R.S.C. 1970, c. C-34. At the outset of the trial, the
complainant, who was the accused's wife, applied through counsel for an order under
s. 442(3) of the Code, directing that the identity of the complainant and any
information that could disclose it not be published in any newspaper or broadcast. At
the time, that is in October 1983, s. 442(3) read as follow:
442. ...
(3) Where an accused is charged with an offence mentioned in
section 246.4, the presiding judge, magistrate or justice may, or if
application is made by the complainant or prosecutor, shall, make an
order directing that the identity of the complainant and any information
that could disclose the identity of the complainant shall not be
published in any newspaper or broadcast.
3. Howland C.J.O., writing for the Court, has, in his reasons for judgment
((1985), 17 C.C.C. (3d) 385), set out with great clarity and precision the various
proceedings and phases thereof that took place below. One of these proceedings has
not been appealed to us, and some questions below have ceased to be in issue. I will
accordingly refer only to that which needs be considered in order to dispose of the
issues that are properly before us.
4. Respondent, appearing at the accused's trial, opposed the application
on the basis that s. 442(3) violated s. 2(b) of the Canadian Charter of Rights and
Freedoms. Section 2(b) read as follows:
2. Everyone has the following fundamental freedoms:
...
(b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication;
5. The trial judge adjourned the proceedings to a later date, and, for
reasons irrelevant to this appeal, eventually ordered a mistrial. At the time of the
adjournment, he granted the application under s. 442(3) on an interim basis.
6. In the meantime, respondent made a civil application for a declaration
that s. 442(3) is unconstitutional, returnable before the trial judge at the date the trial
was to resume. Respondent also asked to be granted leave to intervene in the criminal
proceedings. At trial, counsel for the accused adopted respondent's position and
expanded its argument by emphasizing the accused's right to a fair and public hearing.
The judge dismissed the civil application, refused leave to intervene in the criminal
proceeding and ordered a publication ban. - 8 -
7. I should say right now that at no time did the accused make an
application under s. 24(1) of the Charter invoking a violation of his right to a fair and
public hearing, as guaranteed by s. 11(d) of the Charter, nor did he attack the validity
of s. 442(3) claiming an unjustified restriction of his right to a fair and public trial.
The accused merely raised the matter in argument when he was called upon to make
submission. As a result, at trial level, s. 11(d) was not formally invoked to challenge
the constitutional validity of s. 442(3).
8. Respondent appealed the dismissal of the civil application and the
refusal of leave to intervene in the criminal proceeding, and both appeals were heard
together. Asked whether they wanted to be heard on the merits, counsel for the
accused and for the complainant advised the Court of Appeal that they did not wish to
make submissions in ether of the appeals. The Attorney General for Ontario moved
to have both appeals quashed. The Court quashed the appeal in the criminal
proceeding and allowed the appeal in part in the civil proceeding. The Crown now
comes to us in the civil proceeding, but not in the criminal proceeding.
The Judgments Below
9. In the Supreme Court of Ontario, Osborne J. held that s. 442(3) clearly
infringed the freedom of the press guaranteed by s. 2(b) of the Charter. The sole issue
was to determine whether s. 442(3) was a reasonable limitation justified in a free and
democratic society. The trial judge thus narrowed down his analysis to s. 1 of the
Charter
10. Osborne J. found that the objective of s. 442(3) was to facilitate
disclosure by sexual assault victims, by making it easier for the complainant to
participate in the prosecution of offenders. In his view, given the purpose of the
impugned provision, the mandatory ban on publication was more than reasonable. He
considered that a mere discretion n the rial judge would not be an effective remedy to
the problem s. 442(3) seeks to resolve, since the complainant would have no assurance
that the order sought would be issued upon request. Moreover, Osborne J. stated that
the issuance of an order under s. 442(3) did not preclude the public from being present
at trial, nor did it prevent publication of information about the hearing. The judge also
rejected the argument raised informally by the accused that s. 11(d) was violated. In
his opinion, s. 442(3) was a protection for complainants which had no adverse effects
on the fairness or public nature of the rial. Osborne J. concluded that s. 442(3) was a
reasonable limit on freedom of the press justified in a free and democratic society, and
he dismissed the application.
On appeal, Howland C.J.O. emphasized the importance of freedom of
the press with respect to the integrity of judicial proceedings. He agreed with Osborne
J. that s. 442(3) prima facie infringed the freedom of the press, under s. 2(b) of the
Charter, to report what transpired at a public trial. On the s. 1 issue, Howland C.J.O.
applied the test laid down in Attorney General of Nova Scotia v. MacIntyre, [1982] 1
S.C.R. 175, and held that the party seeking to uphold the legislation must show that
the limits imposed are not more extensive than are necessary to protect social values
of superordinate importance. In his view, s. 442(3) did protect a social value of
superordinate importance
11. Howland C.J.O. however took issue with the mandatory aspect of the
publication ban. He noted that in some instances the complainant might have made
false allegations, or might have previously accused a number of persons without
justification. In these cases, publication of the complainant's name may bring forth
other witnesses to testify on behalf of the accused. In light of this and of the fact that
in other countries similar provisions retained some discretion in the trial judge, the
government had failed to demonstrate the need for a mandatory prohibition section.
As a result, Howland C.J.O. severed from s. 442(3) the words "or if application is
made by the complainant or prosecutor, shall" and left untouched the rest of the
section.
12. Howland C.J.O. also dealt briefly with the right to a fair and public
hearing under s. 11(d) of the Charter, noting that s. 442(3) did not preclude the media
from attending the trial in open court. He concluded that there was no violation of s.
11(d) since this provision protected the right of a person charged with an offence to
a fair and public hearing and not the media's right to report proceedings.
The issues
13. Dickson C.J.C. stated the following constitutional questions:
1. Does section 442(3) of the Criminal Code, R.S.C. 1970,
infringe or deny:
(a) the freedom to the press guaranteed in s. 2(b) of the
Canadian Charter of Rights and Freedoms? or
(b) the right to be presumed innocent until proven guilty
according to law in a fair and public hearing guaranteed in s. 11(d)
of the Canadian Charter of Rights and Freedoms; and if so,
2. Is section 442(3) of the Criminal Code, R.S.C. 1970, c. C-34,
justified on the basis of s. 1 of the Canadian Charter of Rights and
Freedoms?
14. Both courts below held that s. 442(3) infringes the freedom of the
press guaranteed by s. 2(b) of the Charter. In this Court, appellant conceded that point.
Freedom of the press is indeed an important and essential attribute of a free and
democratic society, and measures which prohibit the media from publishing
information deemed of interest obviously restrict that freedom. Therefore, the main
issue before us is whether the impugned provision can be salvaged under. s. 1 of the
Charter, which states:
1. 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.
15. The test to be applied has been set out in R. v. Oakes, [1986] 1 S.C.R.
103, and restated in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. In order
to justify a limitation of a Charter right in a free and democratic society, two
requirements must be met. The first one is related to the importance of the legislative
objective which the limitation is designed to achieve. In the present case, the
impugned provision purports to foster complaints by victims of sexual assault by
protecting them from the trauma of wide-spread publication resulting in
embarrassment and humiliation. Encouraging victims to come forward and complain
facilitates the prosecution and conviction of those guilty of sexual offences.
Ultimately, the overall objective of the publication ban imposed by s. 442(3) is to
favour the suppression of crime and to improve the administration of justice. This
objective undoubtedly bears on a "pressing and substantial concern" and respondent
conceded that it is of sufficient importance to warrant overriding a constitutional right.
The first requirement under s. 1 is thus satisfied and we must now turn to the second
part of the Oakes test.
16. To determine whether the means chosen in furtherance of the
recognized objective are reasonable and demonstrably justified, a proportionality test
balancing the various interest involved must be applied. The proportionality
requirement has three aspects: the existence of a rational link between the means and
the objective, a minimal impairment on the right or freedom asserted, and a proper
balance between the effects of the limiting measures and the legislative objective. As
to the first aspect, respondent conceded that there is a rational connection between s.
442(3) and the objective it is designed to serve, and I agree.
17. Respondent contended that s. 442(3) cannot be justified because a
mandatory ban on publication is not a measure that impairs freedom to the press as
little as possible. It submitted that only a provision which gives to the trial judge a
discretion to determine if publication is appropriate in the circumstances of the case
would satisfy the second criterion of the proportionality test. Respondent also argued
that appellant had failed to adduce any evidence demonstrating that a mandatory ban
impairs the right as little as possible. The Court of Appeal agreed, but this was
predicated upon the fact that the only evidence brought forward by the Attorney
General of Canada was the testimony of Doreen Carole Boucher, co-ordinator of a
rape crisis center. The Court further held that this witness had testified that she was
aware of some instances where a rape was imagined and the alleged victim wanted to
humiliate a person. With respect, the Court of Appeal, probably as a result of an
oversight, failed to consider other material that was before the Court. Indeed, contrary
to what Howland C.J.O. wrote, Carole Boucher's testimony was not the only evidence
adduced before the trial judge, as the Attorney General also tendered in evidence
various studies and reports on sexual assaults and other criminal offences. Moreover,
with respect, the Court of Appeal misread what Carole Boucher said. While
acknowledging that there may be cases whereby the person charged with the offence
is falsely accused, the witness never stated that these false allegations were intended
to humiliate the accused. During cross-examination, Carole Boucher answered:
Q. So it is quite conceivable that there are cases whereby the real victim
is the person accused by the alleged victim.
A. Yes, I could say yes to that.
...
Q. Therefore you have been exposed to cases where an alleged victim
wanted to humiliate a person --
A. -- Well I don't know whether the intention was to humiliate the person,
but the proportion that we have had is very small in proportion to the actual rapes.
Q. Oh I agree.
A. But there has been a small percentage, not only here but in other
centres. [Emphasis Added.]
18. When considering all of the evidence adduced by appellant, it appears
that, of the most serious crimes, sexual assault is one of the most unreported. The
main reasons stated by those who do not report this offence are fear of treatment by
police or prosecutors, fear of trial procedures and fear of publicity or embarrassment.
Section 442(3) is one of the measures adopted by Parliament to remedy this situation,
the rationale being that a victim who fears publicity is assured, when deciding whether
to report the crime or not, that the judge must prohibit upon request the publication of
the complainant's identity or any information that could disclose it. Obviously, since
fear of publication is one one of the factors that influences the reporting of sexual
assault, certainty with respect to non-publication at the time of deciding whether to
report plays a vital role in that decision. Therefore, a discretionary provision under
which the judge retains the power to decide whether to grant or refuse the ban on
publication would be counterproductive, since it would deprive the victim of that
certainty. Assuming that there would be a lesser impairment of freedom of the press
if the impugned provision were limited to a discretionary power, it is clear, in my
view, that such a measure would not, however, achieve Parliament's objective, but
rather defeats it.
19. With respect, there seems to be a certain inconsistency in respondent's
position. While it concedes the importance of the objective and the existence of a
rational link between that objective and s. 442(3), respondent argues that the judge
should retain a discretion. It is difficult to reconcile these submissions, because once
these concessions are made, one is forced to admit that an absolute ban on publication
is the only means to reach the desired objective. Respondent goes even further by
contending that a case-by-case approach should be adopted to ensure that publication
will not be banned, except where the social values competing with freedom of the
press are of superordinate importance. If we were to adopt this submission, the
legislative objective embodied in s. 442(3) would never be met, because publication
would be the rule and a sexual assault victim could rarely predict whether the
circumstances of the case would be viewed as an exception warranting a nonpublication order. As a result, while it might impair less the freedom of the press, the
discretionary ban is not an option as it is not effective in attaining Parliament's
pressing goal.
20. While freedom of the press is nonetheless an important value in our
democratic society which should not be hampered lightly, it must be recognized that
the limits imposed by s. 442(3) on the media's rights are minimal. The section applies
only to sexual offence cases, it restricts publication of facts disclosing the
complainant's identity and it does not provide for a general ban but is limited to
instances where the complainant or prosecutor requests the order or the court considers
it necessary. Nothing prevents the media from being present at the hearing and
reporting the facts of the case and the conduct of the trial. Only information likely to
reveal the complainant's identity is concealed from the public. Therefore, it cannot be
said that the effects of s. 442(3) are such an infringement on the media's rights that the
legislation objective is outweighed by the abridgement of freedom of the press.
21. Respondent further argued that s. 442(3) has a potential chilling effect
on the media because in any given case it is difficult to ascertain what evidence could
disclose the identity of the complainant. There is thus a risk that the press will choose
not to publish any meaningful report on some trials. In my view, it is sufficient to say
that media people are certainly competent enough to determine which information is
subject to the ban; if not, the judge in his or her order can clarify the matters which
cannot by published.
22. To support his opinion that a judicial discretion is a lesser impairment
of freedom of the press than a mandatory ban, Howland C.J.O. stated (at p. 405):
Doreen Carole Boucher testified that she was aware of some instances
where a rape was imagined and the alleged victim wanted to humiliate
a person. There may also be instances where an alleged victim has
accused a number of persons previously of sexual offences without
justification. The publication of the name of the complainant may in
some cases bring forth other witnesses whose testimony may be
helpful.
23. With respect, this is of relevance, indeed of vital importance, when
determining the degree of impairment of an accused's right to a fair trial, or to a full
answer and defence, as guaranteed by s. 11(d) and s. 7. But I fail to see its relevance
when weighing the degree of impairment of freedom of the press against the
attainment of the objective embodied in s. 442(3).
24. The impairment, if any, by s. 442(3) of the accused's right to a fair trial
or to a full answer and defence is not properly in issue before this Court. Indeed, as
I have said at the outset, the accused has never applied to any court for a remedy under
s. 24(1) of the Charter, or for a declaration of unconstitutionality under s. 52 of the
Constitution Act, 1982. I am not prepared in this case to decide whether anyone other
than an accused has standing, under s. 52 of the Constitution Act, 1982, to challenge
the constitutionality of s. 442(3) on these grounds, the impairment of the accused's
right to a fair trial or to a full answer and defence was not formally raised below by
Canadian Newspapers. I am thus of the view that, since the impugned provision was
not formally attacked before the trial judge and on appeal on the basis that it restricted
the accused's right to a fair trial or to a full answer and defence, that issue is not
properly before us and should be left to be considered in the appropriate setting. By
that, I mean if and when the provision is challenged under s. 11(d) or s. 7 of the
Charter, the Attorney General of Canada and others will be alerted to that issue, and
have the appropriate opportunity to adduce evidence. In the case at bar, the notice of
motion served upon the Attorney General of Canada invokes only a violation of s. 2(b)
of the Charter. This is the challenge the Attorney General was called upon to meet.
It would be unfair to Parliament and unwise for the Court to consider in the abstract
the impairment of an accused's rights and to rule on the matter absent evidence
tendered by the parties addressing the issue.
25. Section 11(d) of the Charter holds that an accused has a right to a fair
and public hearing. Accordingly, the reasoning set out above also applies to the
"public hearing" issue. I propose, however, to address that point now because it was
raised below, argued by the parties and adjudicated upon by the Court of Appeal.
Indeed, as was said by Howland C.J.O., at p. 409, "a public hearing is one in open
court which the public, including the representatives of the media, are entitled to
attend". The mandatory ban on publication, provided for in s. 442(3), does not prevent
the public or the press from attending trial proceedings; it only restricts publication of
facts disclosing the complainant's identity. Therefore, s. 442(3) does not in any way
infringe the accused's right to a public hearing.
26. Before concluding I should mention that this case has been argued and
decided throughout on the assumption that what is being weighed is a restriction to the
freedom of the press in order to ensure to victims of sexual assaults that their identity
will not be disclosed through the media, if that is their wish. the section, however,
enables an application to be made by the "prosecutor" alone. Obviously, the
arguments invoked and successfully so under s. 1 in this case would not necessarily
carry the day in a situation where the prosecutor was not acting on behalf of the
complainant. As this is not our case, we need not and should not decide the matter.
However, it must be understood that the answers to the constitutional questions and
the disposition of this appeal apply only to a case where under the section, the
application has been made by or on behalf of the complainant.
27. I would thus allow the appeal and set aside the judgment of the Ontario
Court of Appeal. Addressing the constitutional questions, I would answer them in the
following way:
1. Does section 442(3) of the Criminal Code, R.S.C. 1970, c. C-34,
infringe or deny:
(a) the freedom of the press guaranteed in s. 2(b) of the
Canadian Charter of Rights and Freedoms?
Answer: Yes.
(b) the right to be presumed innocent until proven guilty
according to law in a fair and public hearing guaranteed in s. 11(d)
of the Canadian Charter of Rights and Freedoms?
Answer: Section 442(3) does not infringe or deny the accused's right to a
public hearing; as regards the accused's right to a fair hearing, I
would not answer the question, since it is not an issue properly
raised before this Court.
2. In section 442(3) of the Criminal Code, R.S.C. 1970, c. C-34,
justified on the basis of s. 1 of the Canadian Charter of Rights and
Freedoms?
Answer: Yes, if the application is made by or on behalf of the complainant,
to the extent it infringes the freedom of the press guaranteed in s.
2(b) of the Charter.
Appeal allowed.
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