January 28, 2011
Canadian Broadcasting Corp. v. Canada (Attorney General)
The CBC, Groupe TVA, La Presse and the Fédération professionnelle des journalistes du Québec (the “media organizations”) want to film, take photographs and conduct interviews in the public areas of courthouses, and they also want to broadcast the official audio recordings of court proceedings. There are rules that limit the places where the first of these activities may take place and that prohibit the second. The media organizations, which submit that these rules unjustifiably infringe the freedom of the press to which they are entitled, applied for a declaration that rules 38.1 and 38.2 of the Rules of practice of the Superior Court of Québec in civil matters and ss. 8.A and 8.B of the Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002 (“rules of practice”), together with Directive A‑10 of Quebec’s Ministère de la Justice entitled Le maintien de l’ordre et du décorum dans les palais de justice, are of no force or effect
Held: The appeal should be dismissed. The constitutionality of the rules of practice and of Directive A-10 is confirmed.
The good news? Media activity within the courthouse is protected by s. 2(b) of the Charter. The bad news? Justice Deschamps, on behalf of the Supreme Court of Canada, upheld the constitutional validity of a total ban on broadcast of official audio recordings of court proceedings. The rationale was that permitting broadcast of them would interfere with the purpose of making them, i.e. to preserve the record, by potentially influencing witness anxiety and behaviour, and, as a result, affecting the record itself.
The Supreme Court also upheld a restriction on the freedom of movement of media cameras within court corridors. In Quebec, cameras must stay in corridor locations designated by the court, where journalists can record comings and goings, and can invite and conduct consensual interviews with witnesses, lawyers or the public. The silver lining: Media in other provinces can now argue that they should not have to live with the existing total bans on camera and microphone access to court corridors there.
Note: The ban on media camera access to court proceedings in Quebec was not challenged by the media or addressed by the court, and remains an open question.