Dagenais v. Canadian Broadcasting Corp.

As I have already mentioned, it is well established that a right of appeal exists only if specifically provided by statute. Given the fact that the appeal at issue arises out of criminal proceedings, the logical first place to look for a statutory right of appeal is the Criminal Code . No such right of appeal is provided therein. Furthermore, s. 674 of the Criminal Code states:

674. No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.

I agree with the Chief Justice when he says (at p. 864) that:

. . . we are dealing here with media challenges to publication bans ordered by judges under their common law or legislated discretionary authority in response to a request for a ban made by the Crown and/or by individuals charged (or at risk of being charged) with criminal offences. Such challenges are criminal matters, not civil ones. [Emphasis added.]

In my view, this appeal therefore qualifies as a proceeding in respect of an indictable offence. Similarly, I note that Bayda C.J.S., writing for the Saskatchewan Court of Appeal in the companion case of R. v. S. (T.), held that:

No one, including the C.B.C., questioned that this appeal was "in proceedings in respect of indictable offences" within the meaning of s. 674. ((1993), 109 Sask. R. 96, at p. 103.)

Accordingly, pursuant to s. 674 of the Criminal Code , the appellants are only entitled to challenge the impugned publication ban by way of appeal if such a right is established in the Criminal Code , which, as I have already noted, it is not. However, the Chief Justice argues that s. 674 of the Criminal Code does not limit the broad jurisdiction conferred upon this Court by s. 40(1) of the Supreme Court Act . Furthermore, he asserts that s. 40(1) of the Supreme Court Act provides this Court with the necessary jurisdiction to hear this appeal. I turn now to this argument.

Despite the express wording of s. 674 of the Criminal Code , the Chief Justice suggests that s. 40(1) of the Supreme Court Act provides this Court with jurisdiction to hear this appeal. As he does in

. . . s. 674 of the Criminal Code does not limit our jurisdiction to grant leave in cases such as this under s. 40(1) of the Supreme Court Act .

In support of this proposition, he relies on cases such as R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384 (S.C.C.); R. v. Gardiner, [1982] 2 S.C.R. 368; Hill v. The Queen, [1977] 1 S.C.R. 827; and R. v. Barnes, [1991] 1 S.C.R. 449. However, as I noted in Laba, supra, at p. 992:

. . . while these cases all appear to implicitly hold that s. 40(1) of the Supreme Court Act is not limited by s. 674 of the Criminal Code , none of these cases explicitly refer, in this respect, to s. 674 of the Criminal Code or to its interaction with s. 40(1) of the Supreme Court Act . [Emphasis added.]

Nonetheless, even assuming that s. 674 of the Criminal Code does not restrict the scope of s. 40(1) of the Supreme Court Act , this does not mean that s. 40(1) of the Supreme Court Act is unlimited in scope. For example, although s. 40(1) of the Supreme Court Act has been held to provide this Court with jurisdiction to entertain interlocutory appeals in civil matters (Bar of the Province of Quebec v. Ste-Marie, [1977] 2 S.C.R. 414), it has not been so interpreted with respect to interlocutory criminal appeals. In fact, Mills, supra, and Meltzer, supra, clearly establish that "there should be no interlocutory appeals in criminal matters". At page 959 of Mills, supra, McIntyre J. stated:

The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1) of the Charter may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code (s. 602 [now s. 674], supra) prohibiting procedures on appeal beyond those authorized in the Code. It will be observed that interlocutory appeals are not authorized in the Code. [Emphasis added.]

Discussing the availability of interlocutory criminal appeals, Sopinka and Gelowitz, supra, at p. 78, state that:

It would appear to be settled law that there are no appeals in interlocutory criminal proceedings, as there is no statutory basis for such appeals. . . .

This position was not altered by the proclamation of the Canadian Charter of Rights and Freedoms . The Supreme Court of Canada has held in Mills v. R., and R. v. Meltzer, that the Charter does not create new rights of appeal. Any Charter ground sought to be appealed must, accordingly, be taken pursuant to existing rights of appeal as established in the Code.

Consequently, to the extent that this appeal is from an interlocutory order, permitting it to proceed, as the Chief Justice does, by virtue of s. 40(1) of the Supreme Court Act is inconsistent with the jurisprudence of this Court.

This brings me to the issue of whether or not this appeal can be fairly characterized as interlocutory in nature. I begin by noting that the impugned publication ban is clearly an interlocutory order from the point of view of the accused. However, from the point of view of the appellants, this order is, for all intents and purposes, final. In fact, any court order made in a criminal context which affects a third party, including any order directed at witnesses, could likely be characterized as "final" from the point of view of the affected third party. Accordingly, the argument can be made that a third party appeal against such an order would not be precluded by the principle against interlocutory criminal appeals and could therefore proceed by virtue of s. 40(1) of the Supreme Court Act . This argument, in my view, cannot succeed.

The focus in criminal proceedings is on the accused and on the determination of guilt or innocence. While a publication ban or any other order affecting a third party issued during a criminal proceeding may be final with respect to that third party, it is interlocutory with respect to the accused. Since the focus in criminal proceedings

To hold otherwise would be to ignore the policy behind the principle against interlocutory criminal appeals. Specifically, as I noted in Laba, supra, such appeals are not permitted because of the likelihood that they would fragment the criminal trial process and cause potentially lengthy delays: R. v. Morgentaler, Smoling and Scott (1984), 41 C.R. (3d) 262 (Ont. C.A.), at pp. 273-74, and R. v. Cranston (1983), 60 N.S.R. (2d) 269 (C.A.). These policy reasons are applicable whether the appellant is a party to the criminal proceedings or a third party. In fact, in light of the right of the accused, guaranteed by s. 11(b) of the Charter , to be tried within a reasonable time, these policy concerns are particularly applicable where the appellant is a third party. It is of particular importance that third parties not be permitted to cause an accused's trial to be unreasonably delayed. Furthermore, even if the trial continued while the third party appeal proceeded, as it did in this case, but which will often not be the case, there remains the problem of requiring an accused to defend two cases at the same time, given that the accused will likely have a legitimate interest in both proceedings. This may unduly complicate the accused's criminal defense and should therefore be avoided wherever possible. Finally, I note that if third party interlocutory criminal appeals were permitted, this would result in a strange and unacceptable situation where third parties would benefit from greater appellate rights in criminal proceedings than would the accused whose very liberty hinges on the outcome of the proceedings.

In light of all the above, I conclude that the principle against interlocutory criminal appeals is equally applicable to the accused, the Crown and third parties. Only if a right of appeal is explicitly established by statute should an appeal against an

Turning now to s. 40(1) of the Supreme Court Act , I note that, while it was intended to confer broad appellate jurisdiction on this Court, it was not, in my opinion, intended to override the principle against interlocutory criminal appeals. For such a sweeping interpretation to be given to s. 40(1) of the Supreme Court Act requires, in my opinion, that Parliament use the clearest of language. Section 40(1) of the Supreme Court Act does not meet this test. Consequently, just as it has not been interpreted to provide parties to criminal proceedings with an interlocutory right of appeal, it should not be so interpreted with respect to third parties. Accordingly, I find that s. 40(1) of the Supreme Court Act does not provide this Court with jurisdiction to hear this appeal. I leave open, however, the question of whether it provides this Court with jurisdiction to hear a third party appeal from a court order in a criminal context where the order in question is "final" with respect to both the parties to the criminal proceeding and the affected third party.

A final possible source of jurisdiction for this appeal was raised in the companion case of R. v. S. (T.). The appellant in that case suggested that s. 24(1) of the Charter provides third parties with a right to appeal publication bans issued in the criminal context. This suggestion appears to have been accepted by McLachlin J. in her reasons in this case. Specifically, McLachlin J. implies that the Charter imposes minimal procedural requirements which include "recourse to an appellate tribunal" where a third party is challenging a publication ban on Charter grounds. I disagree.

In my view, it is well settled that the Charter does not and cannot provide the appellants with a

As has been said on many occasions, the Charter was not enacted in a vacuum. It was created to form a part -- a very important part -- of the Canadian legal system and, accordingly, must fit into that system. It will be noted at once that s. 24(1) gives no jurisdictional or procedural guide. This absence makes it clear that the procedures presently followed must be adapted and used for the accommodation of applications for relief under s. 24(1). [Emphasis added.]

Later, at p. 958, he repeated: Again, it must be observed that the Charter is silent on the question of appeals and the conclusion must therefore be that the existing appeal structure must be employed in the resolution of s. 24(1) claims. [Emphasis added.]

As I stated at the outset, appeal rights are statutory. In the absence of a statutory right of appeal, this Court has no jurisdiction to hear this appeal. The appellants cannot rely on s. 24(1) of the Charter to create appellate jurisdiction. While, as I observed earlier, it has been said on many occasions that for every right there should be a remedy (see, for example, Mills, supra, at pp. 971-72 (per La Forest J.) and at p. 958 (per McIntyre J.); and Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 196 (per Lamer J.)), this does not mean that s. 24(1) can confer appellate jurisdiction where the appellants, as here, had access to a remedy and are unsatisfied with the result. Were this a case where the appellants had no access whatsoever to an initial remedy then s. 24(1) might confer jurisdiction to provide an initial remedy, such as giving the appellants standing to raise the issue. However this is not such a case.

Finally, I find it important to emphasize, once more, that this case concerns an appeal from an interlocutory criminal order. The ability of s. 24(1) to confer appellate jurisdiction with respect to interlocutory criminal appeals was conclusively

. . . if the present appeal is properly characterized as in respect of an interlocutory ruling by a trial court judge in the course of a criminal proceeding, then the decisions by the Supreme Court of Canada in R. v. Mills, [1986] 1 S.C.R. 863, R. v. Meltzer, [1989] 1 S.C.R. 1764 and Kourtessis make it clear that the Charter component does not vest a court of appeal with any special power to hear an appeal and the right of appeal is governed by the same principles as those which apply to an appeal from any ordinary interlocutory ruling. Those same cases confirm that there is no appeal from an interlocutory ruling made in a criminal proceeding. [Emphasis added.]

Therefore, for all the reasons outlined above, I conclude that s. 24(1) does not provide this Court with jurisdiction to hear this appeal.

McLachlin J. argues in her reasons, apparently with the support of La Forest J., that the Charter applies to the impugned publication ban. In my view it does not.

The principle that court orders per se are not subject to the Charter was first established in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. Dolphin Delivery concerned an appeal against an injunction which prevented certain secondary picketing on the grounds that it abridged the Charter guarantee of freedom of expression. Factually, it was quite similar to the case at hand in that it involved a private party (a union) challenging a court order on the ground that it was inconsistent with s. 2(b) of the Charter . McIntyre J., writing for the majority, stated at pp. 600-601:

While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. . . . To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation. All cases must end, if carried to completion, with an enforcement order and if the Charter precludes the making of the order, where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter . In my view, this approach will not provide the answer to the question. A more direct and more precisely-defined connection between the element of government action and the claim advanced must be present before the Charter applies. [Emphasis added.]

I considered this Court's decision in Dolphin Delivery, supra, in Young v. Young, [1993] 4 S.C.R. 3, and noted (at pp. 90-91) that:

. . . Dolphin Delivery . . . articulated the principle which established the threshold for judicial review under the Charter : the Charter applies to the legislative, executive and administrative branches of government but does not apply to judicial orders made in the resolution of private disputes.

The rule in Dolphin Delivery, however, does not fully insulate a judge from the Charter in all circumstances and does not apply to certain adjudicators. Thus, in R. v. Rahey, [1987] 1 S.C.R. 588, this Court concluded that a trial judge's conduct in according 19 adjournments and taking 11 months to reach a decision on an application for a directed verdict contravened the Charter and specifically the accused's right to be tried within a reasonable time. Furthermore, in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, an order to prevent picketing in front of the court, issued by the court on its own motion, originating in the inherent power of the courts to control their process, and issued without notice to the affected party, was reviewed on Charter grounds and found not to violate the Charter .

Having said this, I believe it is important to review some of the policy justifications for the general principle that the Charter does not apply to court orders per se. First, as McIntyre J. notes, if court orders were subject to the Charter then all private litigation could become subject to the Charter . This is clearly inconsistent with s. 32 of the Charter which says that the Charter applies only to the "Parliament and government of Canada" and the "legislature and government of each province". Furthermore, if the Charter applied to court orders then, at least theoretically, individuals adversely affected by a court order could seek a remedy, be it damages or otherwise, pursuant to s. 24(1) of the Charter , against the judge who originally issued the impugned court order. Such a result is, in my view, unacceptable. Finally, applying the Charter to court orders could result in endless loops of litigation where even final orders of the Supreme Court of Canada, the

This does not mean, however, that the Charter does not apply to the common law, or for that matter to the Civil Code, the Criminal Code or other statutory laws, which govern the issuance of court orders. For example, as I noted at p. 92 of Young, supra:

. . . Charter values nonetheless remain an important consideration in judicial decision-making. Courts must strive to uphold Charter values, and preference should be given to such values in the interpretation of legislation over those which run contrary to them (Slaight Communications, supra; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 558; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554).

Similarly, in Dolphin Delivery, supra, McIntyre J. held that the courts were under an obligation to "apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution" (p. 603).

Furthermore, in R. v. Salituro, [1991] 3 S.C.R. 654, Iacobucci J., speaking for the Court, stated (at p. 675) that:

Where the principles underlying a common law rule are out of step with the values enshrined in the Charter , the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it

Finally, it is important to recall that s. 52(1) of the Constitution Act, 1982 provides that:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [Emphasis added.]

All laws of Canada, including the common law, are therefore subject to the Charter . This is particularly important with respect to the second issue raised in this appeal, the substantive merits of the appellants' challenge of the impugned publication ban on the ground that it contravenes the Charter . While the publication ban is not subject to the Charter , the common law governing its issuance is subject to Charter scrutiny.