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Case Summary: Canadian Broadcasting Corp v. Canada - [2011] S.C.C. 3 - Quebec

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Facts:
The CBC and TVA had sued to get access to a video interview recorded with a man charged with helping a relative commit suicide. At trial, the Crown produced a video recording of a statement he had made to the police before being charged, as an exhibit. The Superior Court authorized journalists to view the statement in another courtroom and to film the screen on which the statement was being played back, but prohibited them from broadcasting the recording of the statement. The CBC and Groupe TVA applied to the Superior Court for permission to broadcast the video recording of the statement, but their motion was dismissed. The CBC appealed that decision.

Decision:
The Supreme Court of Canada refused the media’s application to broadcast the statement saying that taking into account that the accused was acquitted and suffered from an intellectual disability it would not allow the broadcast in order to “ensure that the serenity of the hearing, trial fairness and the fair administration of justice are preserved”.

There was argument about whether the court was bound only by previous restrictive case law, the Quebec Rules of Practice or should the decision be made in accordance with the more inclusive and constitutionally informed Dagenais/Mentuck test.

The court held i) that his type of issue did not fall under the Quebec Rules of Practice discussed in the companion case (Canadian Broadcasting Corp v. Canada - 2011 S.C.C. 2), because the exhibit was created before the hearing and the Rules of Procedure only applied to hearings themselves and ii) restricting access to exhibits is akin to a publication ban and the Dagenais/Mentuck test applies.

Thus while the factors to be considered have been previously set out by the Supreme Court in the Vickery v. Nova Scotia Supreme Court (Prothonotary) case, these factors must be considered in light of the Dagenais/Mentuck framework.

The Court said that that access to exhibits is a corollary to the open court principle and that in the absence of an applicable statutory provision, it is up to the trial judge to apply the established factors informed by Charter principles as set out in Dagenais/Mentuck to determine how exhibits can be used to ensure that the trial is orderly.

Furthermore, the Court reasoned, at the end of the trial of the person who made the statement, the trial judge may have to assess the impact that broadcasting the statement might have on the trial of a co-accused or on the accused personally.

The factors discussed include:

Privacy of the person giving the statement, proprietary interest of a person in the exhibits or vulnerability of that person – including taking into account whether they have been acquitted after the trial.
The context in which the statement was given - e.g., if a statement to the police, it might increase chances that the statement is voluntary if a person knows it may be broadcast, or conversely they may be intimidated from giving the statement in the first place.
How the trial is going, and whether a broadcast of the statement would be disruptive to the trial.
Whether broadcasting after trial would affect the rights of a co-accused.

The Application of the Factors to this Case
Here the Court noted that the proceeding was over and therefore moot, but offered guidance as to what should be considered if there was to be a further application by the media.

It continued to express its concern about protecting the person who makes the statement, speculating that if the person making the statement knows, it could end up as the lead story on the television news, this could cause him or her to “think carefully” before deciding whether to make it. Thus, the possibility that the statement will be broadcast could have a negative effect on the search for the truth.

In this case, the Court noted that the impact on the person who made the statement of broadcasting the statement would be particularly “dire” because of his intellectual disability.

The fact that the person who made the statement has been acquitted and his particular vulnerability were factors that the Court said gave full meaning to the dictum that “there are cases in which the protection of social values must prevail over openness.”

The Court found, in the unique facts of this case, that a situation requiring the protection of vulnerable individuals, especially after they have been acquitted, is one such case.

Implications:
In Quebec, the trial judge has discretion to allow the broadcasting of videotapes that are trial exhibits.

The Court may in certain cases be reluctant to allow the broadcasting of videotapes that are trial exhibits. If so, a court will only allow the broadcast of the tapes after a constitutional weighing of factors to ensure that the serenity of the hearing, trial fairness and the fair administration of justice are preserved.

Our Firm’s Comment:
This is a very odd case on its facts. Here the Supreme Court of Canada provides reasonable theoretical direction to trial courts when exercising their discretion as to whether to allow the broadcasting of videotapes that are trial exhibits. However, in applying this theoretical direction to the facts of this case, it implicitly undervalues the need to allow the public to see the evidence and evaluate it. The public requires this in order to have the information necessary to comment on the trial process and the jury’s decision. Thus, the public is effectively denied the ability to carry out its oversight function.

In cases where the prosecution involves a controversial social issue, such as assisted suicide, public oversight is a particularly pressing concern and the Court should be more inclined to allow the broadcast of evidence and be less concerned about the frailties of the witness.