Regina v. Dalzell *
Indexed as: R. v. D. (G.)
2 O.R. (3d) 498
 O.J. No. 335
Action Nos. 1075/87, 1079/87, 1084/87 and 440/88
Court of Appeal for Ontario
Goodman, Finlayson and Krever JJ.A.
March 11, 1991
* Application for leave to appeal to the Supreme Court of Canada was dismissed June 13, 1991 (L'Heureux-DubÈ, Gonthier and Iacobucci JJ.). S.C.C. File No. 22386. S.C.C. Bulletin, 1991, p. 1495.
Charter of Rights -- Fundamental justice -- Trial judge not having jurisdiction under ss. 7 and 24(1) of Charter to make non-publication order to protect identity of accused -- Accused deprived of privacy by trial process but deprivation not contrary to principles of fundamental justice -- Canadian Charter of Rights and Freedoms, ss. 7, 24(1).
Charter of Rights -- Fair and public hearing -- Right to public trial not being accused's alone -- Accused may not waive right to public trial -- Canadian Charter of Rights and Freedoms, s. 11(d).
Criminal law -- Practice and procedure -- Non-publication orders -- Trial judge not having jurisdiction to make non-publication order for sole purpose of protecting identity of accused.
The respondent, a Presbyterian minister, was charged with sexually assaulting a teenaged boy. At the commencement of the accused's trial, the Provincial Court judge made an order prohibiting the publication or broadcast of the accused's identity and any information that could disclose his identity thereafter if he was acquitted. The respondent was subsequently acquitted. The applicants applied under the Rules respecting Criminal Proceedings for certiorari to quash the non-publication order and under the Rules of Civil Procedure for an order declaratory of the jurisdiction of the trial judge. Rosenberg J. heard both applications at the same time. He declared that a Provincial Court is without jurisdiction to make an order limiting or prohibiting publication with respect to the identity of the accused where the purpose of the order is to protect the accused rather than to protect the court process or the identity of the complainant. He further ruled that the absence of a statutory provision protecting accused persons against publication of their identity did not violate the equality provisions of the Canadian Charter of Rights and Freedoms. He dismissed the application to quash the non-publication order. The applicants appealed.
Held, the appeal should be allowed.
The trial judge erred in hearing the application under the Rules of Civil Procedure. Relief claimed by way of certiorari to quash a non-publication order in criminal proceedings must be sought pursuant to the provisions of Part XXVI of the Criminal Code.
The respondent argued that the trial judge had jurisdiction under ss. 7 and 24(1) of the Charter to make a non-publication order protecting the identity of an accused person since a privacy interest of the accused was at stake. However, assuming that s. 7 of the Charter protects a privacy interest, an accused does not have an absolute right to privacy, but only the right not to be deprived of privacy except in accordance with the principles of fundamental justice. The right to a public trial is not a right of the accused's alone which he can choose to waive; the public has as much interest in the conduct of the trial as has the accused.
The respondent was seeking a recognition of an enlarged jurisdiction in the criminal court. This would reverse a historical process which has resulted in a modern trial judge having very little discretion to exercise in a criminal trial. The limitations on the jurisdiction of the trial judge in the Criminal Code reflect the accumulated wisdom of judges and parliamentarians. To permit the introduction of a fresh concept of inherent jurisdiction would be contrary to our judicial history, which has consistently fettered discretion in a trial judge by the imposition of detailed rules for the conduct of criminal trials.
Whereas usually in cases involving non-publication orders there is a conflict between the right of the accused to a fair trial and the right of the media under s. 2(b) of the Charter to report the proceedings, before Rosenberg J. there were no such competing rights. The respondent's trial was over and the issue of prejudice with respect to the conduct of the trial was no longer a genuine concern. This was not a case where the court was being asked to issue an order that could not be implemented. There was an order outstanding that was a continuing infringement of the media's Charter rights. Accordingly, the non-publication order should be quashed.
Cases referred to
Andrews v. Law Society of British Columbia,  1 S.C.R. 143, 36 C.R.R. 193, 34 B.C.L.R. (2d) 273, 10 C.H.R.R. D/5719, 25 C.C.E.L. 255, 56 D.L.R. (4th) 1, 91 N.R. 255,  2 W.W.R. 289; Budge v. Calgary (City) (1987), 33 C.R.R. 45, 29 Admin. L.R. 182, 54 Alta. L.R. (2d) 97 sub nom. Budge v. W.C.B., 80 A.R. 207, 42 D.L.R. (4th) 649,  6 W.W.R. 217 (Q.B.); Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326, 45 C.R.R. 1, 71 Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 64 D.L.R. (4th) 577, 102 N.R. 321,  1 W.W.R. 577; Kodellas v. Saskatchewan Human Rights Commission (1989), 10 C.H.R.R. D/6305, 60 D.L.R. (4th) 143, 77 Sask. R. 94,  5 W.W.R. 1 (C.A.); McDonald and R. (Re) (1985), 51 O.R. (2d) 745, 16 C.R.R. 361, 21 C.C.C. (3d) 330, 47 C.R. (3d) 355 sub nom. R. v. A.M., 21 D.L.R. (4th) 397, 10 O.A.C. 321 (C.A.) [leave to appeal to S.C.C. refused  2 S.C.R. ix, 52 O.R. (2d) 688n, 16 C.R.R. 361n, 64 N.R. 400n, 12 O.A.C. 320n]; McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, 91 C.L.L.C. Paragraph17,004, 2 O.R. (3d) 319 (note) (S.C.C.); R. and Unnamed Person (Re) (1985), 20 C.R.R. 188, 22 C.C.C. (3d) 284, 10 O.A.C. 305 (C.A.); R. v. Askov,  2 S.C.R. 1199, 75 O.R. (2d) 673, 49 C.R.R. 1, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273, 74 D.L.R. (4th) 355, 113 N.R. 241, 42 O.A.C. 81; R. v. R. (1986), 22 C.R.R. 186, 28 C.C.C. (3d) 188 (Ont. H.C.J.); R. v. Rahey,  1 S.C.R. 588, 33 C.R.R. 275, 33 C.C.C. (3d) 289, 57 C.R. (3d) 289, 39 D.L.R. (4th) 481, 75 N.R. 81, 78 N.S.R. (2d) 183, 193 A.P.R. 183; R. v. Southam Inc. (1989), 44 C.R.R. 175, 47 C.C.C. (3d) 21, 69 C.R. (3d) 229, 32 O.A.C. 274 (Ont. C.A.); Reference re s. 94(2) of the Motor Vehicle Act (British Columbia),  2 S.C.R. 486, 18 C.R.R. 30, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 24 D.L.R. (4th) 536, 36 M.V.R. 240, 63 N.R. 266,  1 W.W.R. 481; Southam Inc. v. Coulter (1990), 75 O.R. (2d) 1, 60 C.C.C. (3d) 267, 40 O.A.C. 341 (C.A.)
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7, 10, 11, 11(b), (d), 15, 24(1)
Criminal Code, R.S.C. 1985, c. C-46, Part XXVI, ss. 271 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 10], 486(3) [rep. & sub. R.S.C. 1985, c. 19 (3rd Supp.), s. 14(1); rep. & sub. R.S.C. 1985, c. 23 (4th Supp.), s. 1], 507(1) [am. R.S.C. 1985, c. 27 (1st Supp.), s. 78(1), (2)], 539 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 97], 784(1)
Young Offenders Act, S.C. 1980-81-82-83, c. 110 (now R.S.C. 1985, c. Y-1], s. 38
Rules and regulations referred to
Rules of Civil Procedure, O. Reg. 560/84, Rule 38 Rules respecting Criminal Proceedings, SI/85-152, Rule 4
Authorities referred to
de Smith, S.A., de Smith's Judicial Review of Administrative Action, 4th ed. by J.M. Evans (London: Stevens & Sons, 1980), pp. 422-28
APPEAL from the judgment of the High Court of Justice (1987), 62 O.R. (2d) 567, 39 C.C.C. (3d) 369, dismissing an application to quash a non-publication order.
James C. Tory, for Thomson Newspapers Co., appellant.
Renato M. Gasparotto, for London Free Press Printing Co., appellant.
Roslyn J. Levine and Michael Hughes, for Canadian Broadcasting Corp., intervener.
M. David Lepofsky and Susan M. Chapman, for Attorney General of Ontario, respondent.
Raymond G. Colautti, for Gardiner Dalzell, respondent.
The judgment of the court was delivered by
FINLAYSON J.A.:-- The applicants Thomson Newspapers Company Limited (Thomson Newspapers) and London Free Press Printing Company Limited (London Free Press) appeal from the order of the Honourable Mr. Justice Rosenberg dated November 16, 1987 [reported at 62 O.R. (2d) 567, 39 C.C.C. (3d) 369 (H.C.J.)], disposing of concurrent and parallel applications pursuant to Rule 4 of the Rules respecting Criminal Proceedings, SI/85-152, and Rule 38 of the Rules of Civil Procedure, O. Reg. 560/84. There were two sets of applications before Rosenberg J., one set by Thomson Newspapers and the other by London Free Press. Under the criminal rules, the applicants sought an order by way of certiorari, quashing the order of His Honour Judge Payne dated August 13, 1987 banning publication of the identity of an accused, the respondent Gardiner Dalzell. Under the civil proceedings the applicants sought orders declaratory of the jurisdiction of Judge Payne. Upon a motion made on November 3, 1987 by counsel for the Canadian Broadcasting Corporation (C.B.C.) to intervene, Rosenberg J. ordered that the C.B.C. be added as an intervener in both applications. Gardiner Dalzell, a respondent in the above applications, also appeals from the said order.
With the agreement of all counsel, the two sets of applications were combined, heard together, and disposed of by Rosenberg J. in one judgment. Rosenberg J. made the following orders:
(1) declaring that a Provincial Court judge is without jurisdiction to make an order limiting or prohibiting publication with respect to the identity of an accused where the purpose of the order is to protect the accused rather than to protect the court process or the identity of the complainant;
(2) declaring that the absence of a statutory provision analogous to what is now s. 486(3) [rep. & sub. R.S.C. 1985, c. 19 (3rd Supp.), s. 14(1); rep. & sub. R.S.C. 1985, c. 23 (4th Supp.), s. 1] of the Criminal Code, R.S.C. 1985, c. C-46 protecting accused persons against publication of their identity does not infringe the equality rights of accused persons guaranteed under s. 15 of the Canadian Charter of Rights and Freedoms;
(3) dismissing the applications brought under the Rules respecting Criminal Proceedings for an order quashing the order of His Honour Judge Payne made August 13, 1987, and
(4) dismissing the applications brought under the Rules of Civil Procedure for an order quashing the order of His Honour Judge Payne made August 13, 1987.
In its intervention, the C.B.C. had asked for a declaration that the order of Judge Payne was a violation of the C.B.C.'s rights under s. 2(b) of the Charter. Rosenberg J. did not deal with this matter.
The history of these proceedings is set out in the reasons of Rosenberg J. By an information dated June 10, 1987, the respondent Dalzell was charged that he had committed a sexual assault upon a teenaged boy contrary to what is now s. 271 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 10] of the Criminal Code. The Crown elected to proceed summarily.
In June of 1987, the Chatham News, which is owned by Thomson Newspapers, carried news stories concerning this charge in which the respondent was identified by name. In addition, reports of the pending criminal charges against the respondent appeared on television, radio and in the Canadian Press wire service. In all of the reports the respondent was identified by name. The reports included the fact that the respondent was a Presbyterian minister and gave the name and address of his church in Chatham. We are told that the respondent was harassed by members of the public as a result of this media coverage and that a few days after it started he was called before a meeting of the presbytery of his church and forced to resign his ministry.
On June 21, 1987 counsel for the accused asked for an order prohibiting the publication of the accused's identity. This application was heard by His Honour Judge Perkins and a non-publication order was made.
The London Free Press moved in weekly court in Toronto for an order quashing the order of Perkins Prov. Ct. J. and Thomson Newspapers sought and received intervener status in that application. The application came on before Madam Justice Oyen on August 12, 1987 and she made an order quashing the non-publication order on the basis that Perkins Prov. Ct. J. exceeded his jurisdiction in making the order because he did not have a proper evidentiary foundation for his decision.
The respondent's trial began in Chatham on August 12, 1987 before His Honour Judge Payne and the decision of Justice Oyen was communicated to counsel on that day. On the following day, Judge Payne heard evidence and made an order prohibiting the publication or broadcast of the accused's identity and any information that could disclose his identity pending final disposition of the matter and thereafter if the accused was acquitted. The accused was subsequently acquitted and in his reasons the trial judge made it clear that he did not believe the evidence of the complainant that he was a victim of a sexual assault.
Out of an abundance of caution, the applicants before Rosenberg J. had brought concurrent and parallel applications under the Rules respecting Criminal Proceedings and the Rules of Civil Procedure. However, this court has expressly decided that relief to be claimed by way of certiorari to quash a non-publication order in criminal proceedings must be sought pursuant to the provisions of Part XXVI of the Code. The appeal is to this court under s. 784(1) of the Code: see Blair J.A. in R. v. Southam Inc. (1989), 44 C.R.R. 175, 47 C.C.C. (3d) 21, 69 C.R. (3d) 229, 32 O.A.C. 274 (Ont. C.A.), at pp. 179-80 C.R.R., pp. 25-26 C.C.C. The fact that Rosenberg J. heard both applications at the same time and made declarations in the civil proceedings as to the excess of jurisdiction while refusing to quash the order attacked in the criminal proceedings demonstrates the inherent problems of proceeding in this way. In my opinion, the only issue before Rosenberg J. was the jurisdiction of Judge Payne to make the order that he did and the only remedy available to the applicants was to have the order quashed under Part XXVI of the Code. Any declarations in the civil proceedings as to the rights of the parties could only be extraneous or, in this case, contradictory. In hearing the applications in the way that he did, it is my opinion that Rosenberg J. was led into error in the manner in which he exercised his inherent jurisdiction to grant or refuse relief by way of extraordinary remedy. I will deal with this issue later when I address the specific dispositions made by Rosenberg J. and his reasons therefor.
The basic question before us concerns the jurisdiction of Payne Prov. Ct. J. to make the non-publication order that he did. The answer to this will determine what relief is available to the parties. There are three possible bases for supporting the jurisdiction of the trial judge.
One is resort to s. 486(3) of the Code which authorizes a non-publication order for the complainant in a sexual assault case combined with the argument under s. 15 of the Charter that, anonymity being available to the complainant, it would be discriminatory if the respondent were not afforded equal protection. Payne Prov. Ct. J. gave effect to this argument relying upon the decision of Potts J. in R. v. R. (1986), 22 C.R.R. 186, 28 C.C.C. (3d) 188 (Ont. H.C.J.). Payne J.'s order was made before the judgment of the Supreme Court of Canada in Andrews v. Law Society of British Columbia,  1 S.C.R. 143, 36 C.R.R. 193, 34 B.C.L.R. (2d) 273, 10 C.H.R.R. D/5719, 25 C.C.E.L. 255, 56 D.L.R. (4th) 1, 91 N.R. 255,  2 W.W.R. 289. Andrews held that s. 15 was restricted to the enumerated heads of discrimination contained in s. 15 or those heads of discrimination analogous thereto. In light of Andrews it is clear that R. v. R. was wrongly decided. This basis of jurisdiction was not advanced in this court.
A second argument is that the court had inherent jurisdiction in the conduct of the proceedings before it. This argument was again not advanced in this court because it was conceded that the judgment of this court in Re R. and Unnamed Person (1985), 20 C.R.R. 188, 22 C.C.C. (3d) 284, 10 O.A.C. 305, was determinative of the issue. There, Zuber J.A., speaking for the court, stated at pp. 190-91 C.R.R., p. 286 C.C.C.:
There are some statutory provisions which either prohibit publication or clothe courts with jurisdiction to prohibit publication. Had this matter arisen a few months later, the unnamed person would have enjoyed the benefit of s. 38 of the Young Offenders Act, 1980-81-82-83 (Can.), c. 110 [as amended], which prohibits the publication of the name of a young person charged with an offence. The Criminal Code contains a number of sections dealing with non-publication, e.g., s. 442(3) deals with the non-publication of the identity of a complainant in certain sexual offences; s. 467 deals with the non-publication of evidence taken at a preliminary inquiry, s. 457(2) deals with the non-publication of bail proceedings. It is, however, common ground that there is no statutory basis for the order in this case. The respondent and the Attorney-General argue that the authority to make the order in this case proceeds from the inherent jurisdiction of a judge of the High Court.
The term "inherent jurisdiction" is one that is commonly and not always accurately used when arguments are made with respect to the jurisdictional basis upon which a court is asked to make a particular order. The inherent jurisdiction of a superior court is derived not from any statute or rule of law but from the very nature of the court as a superior court: (see, generally, I.H. Jacob, "The Inherent Jurisdiction of the Court", Current Legal Problems 23 (1970). Utilizing this power, superior courts, to maintain their authority and to prevent their processes from being obstructed or abused, have amongst other things punished for contempt of court, stayed matters that are frivolous and vexations [sic] and regulated their own process. The limits of this power are difficult to define with precision but cannot extend to the creation of a new rule of substantive law.
The third argument is that the court had jurisdiction under the Charter and, in particular, pursuant to s. 7 and s. 24(1). As a subheading of that argument, it was submitted that the court had jurisdiction to invoke the provisions of s. 15 of the Charter because of discrimination on the basis of age. It was argued that it was discriminatory of an adult that he should not be entitled to the anonymity available as of right to a young offender pursuant to s. 38 of the Young Offenders Act, S.C. 1980-81-82-83, c. 110 (now R.S.C. 1985, c. Y-1). I can dispose quickly of the s. 15 argument by pointing out that the fact that Parliament has made special provisions for young offenders has been held to be justified under s. 1 of the Charter: see Re McDonald and R. (1985), 51 O.R. (2d) 745, 16 C.R.R. 361, 21 C.C.C. (3d) 330, 47 C.R. (3d) 355 sub nom. R. v. A.M., 21 D.L.R. (4th) 397, 10 O.A.C. 321 (C.A.) [leave to appeal to S.C.C. refused  2 S.C.R. ix, 52 O.R. (2d) 688n, 16 C.R.R. 361n, 64 N.R. 400n, 12 O.A.C. 320n], at pp. 763-68 O.R., pp. 379-84 C.R.R., pp. 348-53 C.C.C.
However, as far as I am aware, the argument that s. 7 of the Charter clothes the court with a jurisdiction to make non-publication orders over and above those expressly authorized by the Code or other federal statutes dealing with the criminal process has not been made before. It therefore merits special attention. Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The argument of counsel for the respondent is on its face attractive. He submitted that our courts have accepted that s. 7 is broad enough to entrench the right to privacy and, in circumstances where an individual's right to privacy is infringed or in danger of being infringed, the court can entertain an application under s. 24(1) of the Charter to fashion a remedy. Section 24(1) of the Charter provides:
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The argument of counsel for the respondent proceeds as follows. Once an individual is charged with a criminal offence, a state-authorized process has been set in place which may result in the deprivation of liberty and security of the person protected by s. 7. The Supreme Court of Canada has held that an accused person pending his trial is subjected to prejudice in the form of vexations and vicissitudes during the course of the process (R. v. Rahey,  1 S.C.R. 588, 33 C.R.R. 275, 33 C.C.C. (3d) 289, 57 C.R. (3d) 289, 39 D.L.R. (4th) 481, 75 N.R. 81, 78 N.S.R. (2d) 183, 193 A.P.R. 183, at p. 605 S.C.R., p. 287 C.R.R., p. 492 D.L.R.):
These vexations and vicissitudes include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, and uncertainty as to the outcome and sanction.
The accused, the argument goes, suffers prejudice from the outset and if such prejudice continues for an extended period it can itself become a Charter violation under s. 11(b) of the Charter (i.e., the right "to be tried within a reasonable time"): see Rahey, supra, and R. v. Askov,  2 S.C.R. 1199, 75 O.R. (2d) 673, 49 C.R.R. 1, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273, 74 D.L.R. (4th) 355, 113 N.R. 241, 42 O.A.C. 81. Therefore, counsel argued that since these proceedings under s. 7 can only be conducted "in accordance with the principles of fundamental justice", the court has jurisdiction under that rubric to alleviate prejudice where it can do so without impairing the integrity of the trial process. It can, for example, release the accused on bail pending trial and it can order the trial process to be expedited. Counsel for the respondent argued that these examples are by no means exhaustive. In some cases, the court can alleviate the prejudice caused through stigmatization of the accused and infringements of the right to privacy. In the case on appeal, this was accomplished in part, at least, by the order prohibiting the continued publication of the name of the accused and any information capable of identifying him.
This argument goes only to jurisdiction. The merits of the competing constitutional claims to privacy on the part of the accused and freedom of the press on the part of the media can be addressed in the particular case. Counsel for the respondent conceded that an open trial is the rule, but that there can be exceptions, and in some cases the court has jurisdiction to give relief to the accused by resorting to s. 24(1) of the Charter and fashioning a remedy to protect the constitutional guarantee of the right to privacy.
I am prepared to accept, without deciding, that the right to privacy can be a constitutionally protected right. It has been so held in other contexts: see Budge v. Calgary (City) (1987), 33 C.R.R. 45, 29 Admin. L.R. 182, 54 Alta. L.R. (2d) 97 sub nom. Budge v. W.C.B., 80 A.R. 207, 42 D.L.R. (4th) 649,  6 W.W.R. 217 (Q.B.), at p. 59 C.R.R., p. 666 D.L.R., and Kodellas v. Saskatchewan Human Rights Commission (1989), 10 C.H.R.R. D/6305, 60 D.L.R. (4th) 143, 77 Sask. R. 94,  5 W.W.R. 1 (C.A.), at pp. 152, 178 and 183 D.L.R. My main concern lies in understanding how it can be said that there has been an infringement of the right to privacy because of the institution of criminal proceedings against the respondent Dalzell. Reading in "privacy", the constitutionally protected right becomes "Everyone has the right to life, liberty, security of the person and privacy and the right not to be deprived thereof except in accordance with the principles of fundamental justice". Criminal proceedings are the process which can result in the deprivation of a person's constitutional rights. However, it is not correct to say that any apparent infringement of those rights in the course of the criminal proceedings is unconstitutional. By the very terms of the Charter, the deprivation of rights resulting from the criminal process will only offend the Constitution when the criminal process is not conducted in accordance with the principles of fundamental justice. The criminal process is precisely what is provided for in s. 7 of the Charter.
This point was addressed in a different context by Lamer J. in Reference re s. 94(2) of the Motor Vehicle Act (British Columbia),  2 S.C.R. 486, 18 C.R.R. 30, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 24 D.L.R. (4th) 536, 36 M.V.R. 240, 63 N.R. 266,  1 W.W.R. 481, at p. 512 S.C.R., pp. 52-53 C.R.R., p. 309 C.C.C.:
The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.
Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and the rule of law.
The analogy to the right to trial within a reasonable time is not an appropriate one. Our law has never accepted that a person who has received a fair trial has suffered a deprivation of his constitutional rights by the trial process whatever the result. The Charter not only contemplates such a trial but provides for specific protections to be available to the accused under ss. 10 and 11.
In my opinion, it is a contradiction in terms to assert that a person can suffer a deprivation of his Charter rights when he is undergoing a trial which is conducted in accordance with the principles of fundamental justice. The publicity attendant upon a public trial must in almost every case cause prejudice to the accused, but the law recognizes that prejudice by providing safeguards before the institution of criminal proceedings. Such proceedings can only be commenced on a sworn information setting forth the basis for the affiant's belief that there are reasonable and probable grounds for believing that a specific criminal offence has been committed. Protection from publicity is also available at a pre-inquiry hearing by a justice of the peace under s. 507(1) [am. R.S.C. 1985, c. 27 (1st Supp.), s. 78(1), (2)] of the Code to determine if such grounds exist (Southam Inc. v. Coulter (1990), 75 O.R. (2d) 1, 60 C.C.C. (3d) 267, 40 O.A.C. 341 (C.A.)). A preliminary hearing to determine if the Crown has made out a prima facie case sufficient to place the accused on trial must, on the election of the accused, be subject to a publication ban as to the evidence heard at the preliminary hearing although not with respect to his identification (s. 539 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 97] of the Code). But once the accused "has put himself upon his country" in the traditional words of the clerk of the court in placing him in the jury's charge, the trial is to be public subject only to the order of the court as to non-publication or as otherwise provided in clearly delineated circumstances under the Code.
Even these statutory exceptions to the public nature of trials or the open justice system have themselves come under close Charter scrutiny as infringements of the public's "right to know" implicit in the media's constitutional rights under s. 2(b) to "freedom of the press" (Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326, 45 C.R.R. 1, 71 Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 64 D.L.R. (4th) 577, 102 N.R. 321,  1 W.W.R. 577).
The position of the respondent must come down to an assertion that a public trial is a right of the accused person and therefore, being for his protection, it is a right that he can waive. The right to a public trial is constitutionally enshrined in s. 11(d) of the Charter which provides that:
Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
In my opinion the assertion that such a right can be waived is untenable. The public has as much of an interest in the conduct of the trial as does the accused and the accused is no more entitled to waive a public hearing than he is a fair one. Section 7 embraces a broader protection than simply providing for the criminal trials specifically dealt with in ss. 10 and 11 of the Charter, and yet, it is s. 7 and not s. 11(d) that the respondent invokes in seeking a waiver of his s. 11(d) rights. Once he does that, he engages larger interests than those of an accused alone.
The proposition that a particular accused can waive any portion of his right to a public hearing is antithetical to the right of every person to be satisfied that no person has received special treatment, favourable or unfavourable, and that the institutions are in place to ensure the principles of fundamental justice to us all. Even in a case of citizen against citizen, the public interest remains paramount and as Wilson J. stated in Edmonton Journal, supra, at p. 1362 S.C.R., p. 32 C.R.R., "there would have to be very powerful considerations in order to justify inroads into the open court process". More particularly, she stated at p. 1361 S.C.R., p. 31 C.R.R.:
In summary, the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the courtroom is rooted in the need (1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them.
At the risk of being repetitive, I want to emphasize that constitutional rights do not exist in a vacuum. They are not simply a cocoon that protects self against others. The proposition advanced here by counsel is the apotheosis of individualism. The right to a fair and public hearing is mine, is for my protection, and is for me to assert. It follows therefore, that the right is mine to give away, that it is for me to invoke for my protection, and it is my prerogative not to assert if it is to my advantage not to do so. However, the accused person is not simply giving up something which is his when he purports to waive his right to a public hearing. To make an effective waiver, he must also assert that he has the right to a private hearing which is the antithesis of that constitutional right. Taken to its logical conclusion, counsel would have to submit that it is appropriate that a tribunal which has the responsibility for conducting itself in accordance with the principles of fundamental justice to provide a fair and public hearing can discharge that responsibility by providing the accused, for his accommodation, with a trial which is less than fair or short of being public. However, once he asks the court to exercise a jurisdiction under s. 7 and fashion a remedy under s. 24(1), he engages larger considerations that involve the public right to know.
Getting away from this somewhat philosophical dissertation and coming back to the legal issue of the authority of Payne Prov. Ct. J. to make a non-publication order, I would observe that what the respondent is seeking is a recognition of an enlarged jurisdiction in the criminal court. The Supreme Court of Canada has clearly recognized that the principles of fundamental justice underlie the structure of the criminal process and in the words of Lamer J. in Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), supra, at p. 503 S.C.R., p. 45 C.R.R., p. 302 C.C.C.: "[T]he principles of fundamental justice are to be found in the basic tenets of our legal system". The concept of a justice system which is open to the public is itself a hallmark of fundamental justice. Whenever this concept has been constricted by legislation, that legislation has been subject to careful scrutiny.
It makes little sense to me to acknowledge an unfettered discretion in a trial judge to alleviate, on an ad hoc basis, the distress to the accused which is an unavoidable consequence of our open system justice. This would reverse an historical process which has resulted in a modern trial judge having very little discretion to exercise in a criminal trial. The criminal trial process has evolved over centuries and the system we have in place today is the product of an experience that should not be lightly cast aside. The limitations on the jurisdiction of the trial judge in the Code and the manner in which he or she is permitted to exercise his or her authority reflect the accumulated wisdom of judges and parliamentarians who since feudal times have fought to protect the citizen against the tyranny of the monarch exercised through state-controlled courts. The Code itself has been the subject of judicial interpretation and our courts have built up a substantial body of judicial precedent which, in its most basic propositions, has withstood the test of time. To permit the introduction of a fresh concept of inherent jurisdiction to replace one that has been rejected by our courts (Re R. and Unnamed Person, supra) is contrary to our judicial history which has consistently fettered discretion in a trial judge by the imposition of detailed rules for the conduct of criminal trials. This is particularly true where the exercise of the trial judge's discretion is not directed towards protecting the integrity of the trial process itself, but has the collateral object of protecting the privacy of the accused.
One cannot feel anything but the deepest sympathy for the respondent who was falsely accused of an offence which attracts the revulsion of society. In this case, it cost him his ministry and it would be naive in the extreme to believe that his reputation can fully recover from this experience. This resulted despite the ban on publication of his identity during the trial. However, there is no suggestion in this case that there was not reasonable and probable cause for putting him on trial or that the trial itself was not a fair one. The damage to his reputation was collateral to the prosecution and not a direct consequence of it. A direct consequence would have been a conviction which would have destroyed his reputation.
I think there is a good deal in a submission made by counsel for Thomson Newspapers. He submitted that before s. 7 of the Charter can be engaged, there must be direct state action. He argued that the respondent cannot complain about the effect a public trial might have on his private life, much less centre his concerns on the media who simply report the trial. In support of the submission that state action is required, counsel relied upon what La Forest J. stated for the majority in McKinney v. University of Guelph, S.C.C., Dickson C.J.C., Wilson, La Forest, L'Heureux-Dube, Sopinka, Gonthier and Cory JJ., December 6, 1990 [now reported 76 D.L.R. (4th) 545, 91 C.L.L.C. Paragraph17,004, 2 O.R. (3d) 319 (note)], per La Forest J. at p. 12 [of the reasons; pp. 633-34 D.L.R.]:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
These words give a strong message that the Charter is confined to government action. This Court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual. In Hunter v. Southam Inc. (1984), 11 D.L.R. (4th) 641 at p. 650, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1,  2 S.C.R. 145, Dickson J. observed: "It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.'' In Operation Dismantle Inc. v. The Queen (1985), 18 D.L.R. (4th) 481 at p. 518,  1 S.C.R. 441, 13 C.R.R. 287, Wilson J. noted that "the central concern of [s. 7 of the Charter] is direct impingement by government upon the life, liberty and personal security of individual citizens" (emphasis added). See also R. v. Big M Drug Mart Ltd. (1985), 18 D.L.R. (4th) 321 at p. 362, 18 C.C.C. (3d) 385,  1 S.C.R. 295, per Dickson J. (as he then was); R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174, especially at pp. 191-4,  2 S.C.R. 573, 38 C.C.L.T. 184, and Tremblay v. Daigle (1989), 62 D.L.R. (4th) 634,  2 S.C.R. 530, 11 C.H.R.R. D/165.
I think there is much to be said for the proposition that the injury to reputation suffered by the respondent did not result from direct impingement by government on his life, liberty and personal security. I also find merit in the concern that counsel for Thomson raises as to how far the court should go to minimize the collateral damage occasioned by the trial itself. If the trial judge can enjoin an innocent third party, the media, from aggravating the distress of the accused by banning publication of his name, why should it not protect him against loss of employment by enjoining the presbytery from considering his possible dismissal until after his trial? The latter remedy, in fact, impresses me as being a fairer extension of the protection of the rights of the accused than the former. I think this example amply illustrates the point that the trial judge should concentrate on protecting the integrity of the trial process for the benefit of accused persons and the public alike, and not be drawn into extraneous matters no matter how sympathetic he might be to the particular accused.
Disposition of proceedings before Rosenberg J.
As I have indicated, Rosenberg J. made certain declarations but declined to quash the order of Payne Prov. Ct. J. His reasons, in part, are as follows [pp. 575-76 O.R.]:
For the reasons I have stated, it is my view that the learned Provincial Court judge did not have jurisdiction to make the order that he made. However, on the motion of the applicant, I have allowed parallel proceedings for the same remedies under the Rules of Civil Procedure and under the Rules Respecting Criminal Proceedings. The matter comes before me for judicial review. Accordingly, I exercise a discretion to determine whether or not to grant an order quashing the order of the Provincial Court judge.
. . . . .
The media wish to publish the continuation of the coverage by advising the public of the acquittal and the name of the acquitted. G.D. is in the best position to determine whether or not this is desirable from his point of view and his decision in that regard is obvious from his counsel's strenuous opposition to the application to quash. Accordingly in the exercise of my discretion, I do not feel that it would serve any useful purpose to lift the ban after his acquittal and against his wishes.
Accordingly, the application to quash is dismissed.
With great respect to the learned judge, once he had made a declaration that Judge Payne was without jurisdiction to make the order that he did, he no longer had a discretion to exercise. The order was void. There is a discretion to exercise in declining to make an order in a matter involving prerogative and equitable remedies, but the court cannot exercise it in a given way so as to make a declaration and then exercise it in another way in order to refrain from giving effect to that declaration.
However, that somewhat technical point aside, it is my view that Rosenberg J.'s exercise of discretion was an improper one in the circumstances of this case. It was agreed by all parties that there are three bases for exercising such a discretion. They are set out in S.A. de Smith, de Smith's Judicial Review of Administrative Action, 4th ed. by J.M. Evans (London: Stevens & Sons, 1980), at pp. 422-28 and consist of the following: (1) conduct of the applicant; (2) effective alternative remedies, and (3) where no useful purpose would be served.
Counsel for the respondent did attempt to rely on the conduct of the appellants, but cited as examples of unfair media coverage only certain broadcasts by the C.B.C. These, of course, could not taint the applications of Thomson Newspapers or the London Free Press. No reliance was placed on the second ground above but a serious attempt was made to justify Rosenberg J.'s order on the third ground.
While one is tempted to strive to accommodate the respondent in his wish that there be no further publicity one way or the other with respect to the matter of which he was falsely accused, that is not a reason for upholding an order made without jurisdiction when the effect of that order is an infringement of the guaranteed rights of the media under the Charter of freedom of the press. Usually in cases involving non-publication orders there is a conflict between the two Charter rights; one being the right of the accused to a fair trial under s. 11(d) of the Charter and the other being the right of the media to report the proceedings pursuant to s. 2(b) of the Charter. Where these two rights compete, there must be a weighing of them and an exercise of judgment and discretion as to which right is to prevail. Before Rosenberg J. however, there were no such competing rights. The accused's trial was over and the issue of prejudice with respect to the conduct of the trial or any appeal therefrom was no longer a genuine concern. This is not a case where the court will not issue an order that cannot be implemented. There is an order outstanding which is a continuing infringement of the media's Charter rights to fully publish an account of a trial which has been concluded.
Accordingly, I would allow the media appeals, set aside the declarations and orders of Rosenberg J. referred to in the formal judgment of November 16, 1987 and in its place issue an order quashing the order of Payne Prov. Ct. J. There is no need to deal with the declarations that are sought. The appeal of the respondent Dalzell should be dismissed.
As to costs, counsel for Thomson Newspapers stated that his instructions were not to seek them in the event that his client was successful. In my view, there should be no costs of these proceedings to any party either here or below.