Balancing the Right to Freedom of Expression and the Right to a Fair Trial

Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (10 June 2010)

Legislation providing for mandatory publication bans on bail application hearings was upheld by the Supreme Court of Canada as a reasonable compromise between protecting the accused person’s right to a fair trial and the right to freedom of expression.


The Canadian Criminal Code provides that an accused person is entitled automatically to an order preventing publication of information produced at bail hearing, if he or she makes such a request.  Such orders may prevent publication of this information until the end of the hearing or until the prosecution is dropped.

In Canada, the evidence which can be presented at bail hearings is not tested for relevance or admissibility, and it often goes to the reputation of the accused.  It is usually different to the evidence presented at trial and often not related to the offence being tried.  Additionally, the media can publish the identity of the accused, comment on the charge and the alleged facts, and report the outcome of the bail application.

Parliament’s objective in making the relevant law was to ensure expeditious bail hearings and to protect the right to a fair trial.  Trial fairness is engaged because the accused might be prejudiced by the publication of information provided at the bail hearing which was not relevant or admissible in the main trial. The ban prevents the dissemination of evidence which, for the sake of ensuring an expeditious hearing, is untested for relevance or admissibility.

However, there is no question that the orders limit freedom of expression by preventing publication of information which may be of interest to the public and which would facilitate understanding and scrutiny of the criminal justice system.

This appeal concerned two cases: a murder prosecution from Alberta and an alleged terrorism-related offence from Ontario.  Both of these cases attracted significant media attention and a number of media outlets challenged the bans, arguing they were a violation of the right to freedom of expression in the Canadian Charter of Rights and Freedoms.


To establish the objective behind the bail system, the majority judgment of the Canadian Supreme Court engages in a discussion of the history of bail and cites studies into the relationship between pre-trial incarceration and conviction at trial.

The majority concluded that the availability of the ban ‘is integral to a series of measures designed to foster trial fairness and ensure an expeditious bail hearing’.

Proportionality test

The majority conducted an analysis based on the Oakes test (broadly equivalent to s 7 of the Victorian Charter).  For an infringement of a human right to be allowed, the test requires a pressing and substantial objective, a rational connection with the infringement, and a demonstration that the chosen means interfere as little as possible with the right infringed and that the benefits outweigh its deleterious effects.

The deleterious effects of the bans identified by the majority were that they impair the freedom of individuals to discuss information about the institutions of government, and prevent full access and scrutiny of the criminal justice process, especially when the bail hearing attracts media attention and the outcome cannot readily be understood by the public.

However, these effects were outweighed by ‘the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information’. The court also pointed out the limited value to the public of the information subject to the ban, which is untested, one-sided, stigmatising, and often irrelevant to guilt.

Proposed alternative: a hearing to decide a discretionary publication ban

Arguments were raised concerning the possibility of an alternative which would involve a lesser infringement of the right to freedom of expression, such as allowing for a separate publication ban hearing.  The court found this would be a waste of resources and a burden on the accused.  Accused persons might decide not to apply for bail because of the risk that information would not be protected, or if they did apply for bail they would be under additional pressure at the time of the bail hearing, a period in which they are vulnerable and typically have limited resources to prepare for hearings.

The majority said that accused persons should be able to ‘focus their energy and resources on their liberty interests rather than on their privacy interests’.  The automatic nature of the ban ‘ensures that they will not renounce their right to liberty in order to protect their reputations’.

The Court also identified a number of mitigating factors about the ban: namely that it does not prevent publication of the identity of the accused, the facts, the offence, the outcome of the application, or any legal conditions attached.  The ban is also temporary.  Although the information may no longer be newsworthy by the time it can be published, this cannot be said to limit freedom of expression more than is necessary.

There was also discussion of changing the scope of the ban or making it discretionary only with respect to the judge’s reasons.  The majority thought these suggestions would also fail to serve the objectives of the ban.

Therefore, there was no alternative measure available to parliament which would have achieved the objectives with a lesser effect on freedom of expression.  The majority concluded that the mandatory ban represented a reasonable compromise.

Dissent: Abella J

Abella J thought the appropriate remedy was to allow for a discretionary ban, to be decided at the bail hearing.

Her Honour’s judgment emphasised the importance of the public being able to ‘see the judicial process at work’ and found that the claimed benefits of the automatic ban do not outweigh the infringement of the ‘open court principle’.

The concerns about pre-trial publicity and delay were speculative, they were not serious infringements of the right to a fair trial, and they could be remedied in other ways.  Rather than referring to the effects of publicity generally, Abella J focussed on the argument that a properly instructed jury should be able to disregard irrelevant evidence.

Relevance to the Victorian Charter

The most significant aspect of this judgment is its broad interpretation and discussion of the right of accused persons to a fair trial, and its analysis of the way pre-trial procedures including bail applications have a significant impact on this.

The decision has parallels with several sections of the Victorian Charter of Human Rights and Responsibilities. 

In relation to the right to liberty and security of person, s 21(6) refers to the right of accused persons not to be detained automatically in custody, but does not refer to privacy or information rights.  As part of the right to a fair hearing in s 24, a court is empowered to exclude media organisations from a hearing if permitted to do so by law.  This recognises that privacy may in some circumstances be necessary to facilitate a fair trial.  However, s 24(3) of the Charter provides that all judgments or decisions must be made public unless the best interests of a child otherwise require – this would presumably be inconsistent with a measure as expansive as the Canadian publication bans.

The decision is also an example of a limitation of the right to freedom of expression (s 15 of the Charter).  It is recognised that this right sometimes needs to be limited, in particular to respect the rights and reputation of other persons (s 15(3)), and there are already various Victorian decisions upholding limitations to the right.

The decision is at

Alex Bowen, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group