Canadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011)
The Supreme Court of Canada (the Court) held that the broadcasting of a video recording of a pre-trial statement tendered in evidence at trial may be protected by the right to freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), but the protection does not apply in every circumstance. The use of an exhibit tendered in evidence at trial is, subject to any applicable statutory provision, to be determined by the trial judge in accordance with an analysis of the competing factors at stake, including trial fairness and the administration of justice.
The respondent, Stéphan Dufour, was charged with aiding suicide under section 241(b) of the Canadian Criminal Code and elected to be tried by judge and jury. The trial began before Lévesque J, on November 25, 2008 in the Quebec Superior Court. On November 27, the Crown produced a video recording of a statement made by the respondent to the police before being charged. No restrictions were placed on the openness of the hearing. During the screening of the video, the parties, jury and media were present in the courtroom, all of whom were authorised to view the statement. The media was also granted permission to record portions of the statement chosen by them and screened in another courtroom.
The appellant, the Canadian Broadcasting Corporation (CBC), along with Groupe TVA, applied to Lévesque J for permission to broadcast the recording. Lévesque J dismissed the application on the grounds that the broadcasting of the statement was prohibited under sections 8 and 8.A of the Rules of Practice of the Superior Court of the Provence of Quebec, Criminal Division (the Rules of Practice), which expressly prohibit the broadcasting of a recording of a hearing.
CBC appealed the order by Lévesque J to the Supreme Court of Canada under section 40 of the Supreme Court Act, on the basis that sections 8 and 8A of the Rules of Practice do not apply to the broadcasting of an exhibit tendered in evidence at trial.
Mr Dufour was acquitted. An appeal by the Crown against the verdict was dismissed prior to the determination of CBC's appeal.
The Court unanimously dismissed the appeal, with Deschamps J (McLachlin CJ and Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ concurring) holding that access to an exhibit is a corollary to the open court principle and that the use of exhibits in the absence of statute is to be subject to the determination of the trial judge, upon a consideration of all the competing factors.
The Court held that CBC was correct in its submission that sections 8 and 8.A of the Rules of Practice only apply to the broadcasting of a recording of proceedings and not to an exhibit. Consequently, the Court focused its attention to what rules are applicable to the broadcasting of an exhibit tendered in evidence at trial and whether such broadcasting was protected under the Charter.
The Court disagreed with the Crown, which submitted that the protection of section 2(b) of the Charter did not extend to the broadcasting of the exhibit. The Court noted at  that:
Because the CBC wishes to inform its viewers of the message contained in the video recording, broadcasting that recording is clearly an expressive activity to which the protection of s. 2(b) of the Charter might apply.
The Court then considered whether broadcasting the statement should be afforded the protection of the Charter. The Court held that the analytical approach adopted in Dagenais v Canadian Broadcasting Corporation  3 SCR 835 and R v Mentuck  3 SCR 442 (Dagenais/Mentuck) applied to all discretionary decisions that affect the openness of proceedings. That approach requires the trial judge to weigh the general rule of openness set out in the Charter against other relevant considerations, including trial fairness and the administration of justice.
The Court emphasised that in applying the analytical test in Dagenais/Mentuck, the trial judge is not required to conduct a lengthy review of the evidence, but must consider each relevant fact and the specific context of the case. The Court noted at  that, in a case such as the present, involving a statement obtained in a police investigation:
…if the person who makes the statement knows that it could end up as the lead story on the local or national television news, this could cause him or her to think carefully before deciding to make it. Thus, the possibility that the statement will be broadcast could have a negative effect on the voluntariness of the statement and, consequently, on the administration of justice.
Should the decision be made during the trial, the Court noted that the trial judge can 'weigh the factors at stake' and 'ensure that the serenity of the hearing, trial fairness and administration of justice are preserved'.
If, however, the decision is to be made at or after the end of the trial, as was the case here, the trial judge may have to assess the impact that broadcasting may have on the accused personally. Mr Dufour had submitted that the impact of broadcasting the statement would be 'particularly dire' because of his intellectual disability. The Court held that Mr Dufour's 'particular vulnerability', and the fact that he had been acquitted, were factors favouring the conclusion that Mr Dufour's protection ought to prevail over openness.
Relevance to the Victorian Charter
Section 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter) protects the right to freedom of expression, including the freedom to seek, receive and impart information. This right is subject to section 15(3), which notes that the protection may be subject to lawful restrictions reasonably necessary to, amongst other things, respect the rights and reputation of others or for the protection of public order or morality.
The application of section 15 of the Victorian Charter, in relation to a restriction on the publication of an exhibit tendered in evidence, has not yet been judicially considered in Victoria. In General Television Corporation Pty Ltd v Director of Public Prosecutions (Vic)  VSCA 49, the Victorian Court of Appeal, in obiter dicta, indicated that it would adopt the position of Richardson J of the New Zealand Court of Appeal in Gisborne Herald Co Ltd v Solicitor-General  3 NZLR 563 (Gisborne) when considering the effect of the right to freedom of expression on a fair trial. In Gisborne Richardson J held, at 574-5, that where the Court of Appeal could not give effect to both freedom of expression and a fair trial, it would 'temporarily curtail freedom of media expression so as to guarantee a fair trial'.
This does not mean the decision of the Court in Canadian Broadcasting Corporation v Canada is without relevance. Rather, the analytical approach adopted by the Court provides, in the absence of an alternative, a methodology for Victorian Courts to balance the competing factors when deciding whether it is reasonably necessary to restrict the freedom of expression in accordance with section 15(3) of the Victorian Charter.
The decision is at: http://scc.lexum.umontreal.ca/en/2011/2011scc3/2011scc3.html
William Watson is a lawyer with Allens Arthur Robinson