Court File No. 28823 in the Supreme Court of Canada (On Appeal from the Supreme Court of British Columbia) Between: Global Bc (

COURT FILE NO. 28823

IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA)

BETWEEN:

GLOBAL BC (ALSO KNOWN AS BCTV NEWS) A DIVISION OF GLOBAL COMMUNICATIONS LIMITED; CKUV, A DIVISION OF CHUM LIMITED; CANADIAN BROADCASTING CORPORATION; CTV INC.; CTV TELEVISION INC.; CIVT, A DIVISION OF CTV TELEVISION INC. (d.b.a. BC CTV, FORMERLY VTV); THE RADIO TELEVISION NEWS DIRECTORS' ASSOCIATION OF CANADA; and AD IDEM - ADVOCATES IN DEFENCE OF EXPRESSION IN THE MEDIA

APPELLANTS

AND:

DIMITROS PILARINOS GLEN DAVID CLARK and THE ATTORNEY GENERAL OF BRITISH COLUMBIA

RESPONDENTS

AND:

THE ATTORNEY GENERAL OF CANADA THE ATTORNEY GENERAL OF QUEBEC THE ATTORNEY GENERAL OF ONTARIO THE ATTORNEY GENERAL OF MANITOBA THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION

INTERVENERS

FACTUM OF THE INTERVENER THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION

PART I

STATEMENT OF FACTS

1. By Order dated May 15, 2002, Iacobucci J. granted leave to the British Columbia Civil Liberties Association (the "BCCLA") to serve and file a factum not to exceed 20 pages in length. Iacobucci J. deferred the BCCLA's request to present oral argument to a date following receipt and consideration of written arguments.

2. The participants to the proceeding below tendered voluminous social scientific and opinion evidence. With respect to that evidence, the decision under appeal found that "in spite of cameras being in the courtroom for a number of years, the evidence is inconclusive regarding whether they have an effect on the trial process"(para.158). The decision also stated, "...the bona fide scientific evidence is inconclusive regarding the effects of Expanded Media Coverage in a courtroom..."(para.207), and referred to "agreement among the experts that there is not a great deal of scientifically validated research"(para.202). The decision concluded by stating, "we do not know the effect of Expanded Media Coverage in the courtroom"(para.228). There is no reason to disturb these findings.

R. v. Pilarinos, 2001 BCSC 1332

3. The participants to the proceedings below tendered anecdotal evidence recounting the particular impact of cameras on individual complainants, defendants, witnesses, judges, lawyers, and jurors. Bennett, J. found that "there will be bias in anecdotal reporting"(par.227). There is no reason to disturb her finding.

R. v. Pilarinos, 2001 BCSC 1332

4. There is insufficient evidence before this Court to support any empirical generalizations regarding the impact of recording and broadcast of the images and sounds of court proceedings.

PART II POINTS IN ISSUEM

5. On July 12, 2002, the Chief Justice stated the following Constitutional Questions:

(1) Is there a common law rule prohibiting the recording or transmitting of images or sound or both using any non-manual device ("recording") by media in the courtroom during trial or other proceeding ("the rule")?

(2) If question 1 is answered in the affirmative, is the rule an infringement or denial of rights guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms?

(3) If question 2 is answered in the affirmative, is the infringement or denial a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society under section 1 of the Charter?

(4) Is a modification of the rule to permit recording only where the parties to the proceeding consent an infringement or denial of rights guaranteed by section 2(b) of the Charter?

(5) If question 4 is answered in the affirmative, is the infringement or denial a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society under section 1 of the Charter?

6. The position of the BCCLA is as follows:

(1) The common law permits restrictions on recording and broadcasting of court proceedings on a case-by-case basis, upon a careful balancing of both Charter and non-Charter interests. There is no blanket common law rule restricting on recording and broadcasting of court proceedings.

(2) Recording or transmission of the sights and sounds inside courtrooms is a form of expression protected by section 2(b) of the Charter. This expressive activity may also be conducive to the proper administration of justice and may be protected by the right of the accused to a fair and public hearing.

(3) A blanket rule preventing recording and transmission of court proceedings would not be justifiable in a free and democratic society. However, some restrictions may be justifiable on a case-by-case basis.

(4) The consent of the parties to a proceeding should not be a condition precedent to constitutionally protected rights to free expression or a public trial.

(5) A free and democratic society does not make constitutional rights contingent on the consent of one's fellow citizens. A rule requiring consent would not be justifiable under section 1 of the Charter. PART III

ARGUMENT

A) INTRODUCTION

7. At the core of this appeal are the undeniable facts that television is currently the dominant medium used by practically all Canadians to inform themselves of public affairs, and that television affords a view of the public scene that could not possibly be provided by print or second-hand reports alone. No one can deny that the admission of television cameras into courtrooms would enormously increase the opportunities of the public to observe the work of the courts. In the rush to examine the range of considerations that may or may not legitimize restrictions upon the televising of court proceedings, this Court should not place too low a value on the importance of public scrutiny of the administration of justice.

8. The common law principles that apply to publication bans can, on a case-by-case basis, effectively determine the extent to which Canadians should be at liberty to record and transmit the sights and sounds of court proceedings. The prevailing case-by-case approach to publication bans is sufficiently flexible to allow for a gradual approach to television and other broadcast technology, while granting room for the evolution of a more open attitude as the common law gains familiarity and experience with recording and transmission of court proceedings.

9. The common law approach incorporates a presumption in favour of open courtrooms, which protects the flow of any information that facilitates the rightful role of citizens as observers and informed critics of the judicial system. Recording and broadcast contribute to that flow of information, and are promoted by the presumption. The proper administration of justice and the fairness of an accused person's trial may in some cases be enhanced by recording and broadcast, and may in some cases weigh in against the presumption. Privacy interests, when articulated during an individual proceeding, may be a factor which can displace the presumption. Substantial risks to protected interests may be addressed through the decisive exercise of inherent judicial powers.

B) The Applicable Common Law

10. The BCCLA submits that the common law rule governing the granting of publication bans should determine whether, and to what extent, Canadians should be free to record and broadcast court proceedings. This common law rule provides judges with an adequate framework to balance the Charter and non-Charter interests on a case-by-case basis.

11. The test for granting a publication ban, as stated in Dagenais and elaborated in Mentuck, is as follows:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

R. v. Mentuck, 2001 S.C.C. 76 (S.C.C.) at para. 32; Appellant's Brief of Authorities, Vol.I, Tab 23 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.); Appellant's Brief of Authorities, Vol.I, Tab 5

12. The Dagenais test entails a level of analytical rigour that is sufficient to ensure that judicial discretion is exercised in conformity with the Charter. In CBC v. New Brunswick, this Court adapted the principles embodied in the Dagenais test in the context of the discretionary power under the Criminal Code to exclude the public from a trial. La Forest, J. emphasized that a discretionary power cannot confer the power to infringe the Charter. The discretion must be exercised within the boundaries set by the Charter; an exercise of discretion exceeding these boundaries would result in reversible error. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at paras.50 and 51; Appellant's Brief of Authorities, Vol.I, Tab 2

13. The test in Dagenais is sufficiently flexible to apprehend and balance the interests engaged in applications for recording and broadcast of court proceedings. In Sierra Club of Canada, this Court applied the Dagenais test to the context of confidentiality orders issued under Rule 151 of the Federal Court Rules. Iacobucci, J. explained the versatility of the test as follows: Although in each case freedom of expression will be engaged in a different context, the Dagenais framework utilizes overarching Canadian Charter of Rights and Freedoms principles in order to balance freedom of expression with other rights and interests, and thus can be adapted and applied to various circumstances. Sierra Club of Canada v. Canada (Minister of Finance), [2002] S.C.J. No. 42 (S.C.C.) at para.38; Appellant's Brief of Authorities, Vol.II, Tab 33

14. The BCCLA submits that the Dagenais test is sufficiently flexible to stand the test of time. The test allows for a gradual approach to recording technology in Canada, while granting room for the evolution of a more permissive attitude as the common law gains experience and familiarity with recording and transmission of court proceedings.

C) The Interests in the Balance a. The Principle of Open Courtrooms

15. It is a firmly entrenched proposition in law that where access to courtrooms is at issue, "covertness is the exception and openness the rule". The burden of displacing the general rule of openness lies on the party seeking to exclude the public and the media from the courtroom.

Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175 (S.C.C.) at 185; Appellant's Brief of Authorities, Vol.I, Tab 1 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 890-891; Appellant's Brief of Authorities, Vol.I, Tab 5 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at para. 71; Appellant's Brief of Authorities, Vol.I, Tab 2 R. v. Mentuck (2001), 158 C.C.C. (3d) 449 (S.C.C.) at par. 26; Appellant's Brief of Authorities, Vol.II, Tab 23

16. The presumption in favour of open courtrooms is grounded in the fundamental concept of democracy that the citizens, collectively, exercise the function of sovereign by ruling themselves. This ideal requires citizens to retain the ability to observe, deliberate on, and call into account both elected and unelected representatives of the legislative, judicial, and executive branches of government. As stated in CBC v. New Brunswick, The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissenting views has long been thought to be a safeguard against state tyranny and corruption. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 494; Appellant's Brief of Authorities, Vol.I, Tab 2

17. The interest of the democratic citizenry that underlies the principle of open courtrooms is elevated to constitutional status by section 2(b) of the Charter. As noted by La Forest, J. in CBC v. New Brunswick: The principle of open courts is tied inextricably to the rights guaranteed by s.2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.... The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'etre of the s.2(b) guarantees. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at para.23; Appellant's Brief of Authorities, Vol.I, Tab 2

18. In Edmonton Journal, Cory, J. expressed the preeminent importance free expression in securing the democratic accountability of institutions: It is difficult to imagine a guaranteed right more important to a democratic society that freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be overemphasized. Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.) at 1336; Appellant's Brief of Authorities, Vol. I, Tab 6

19. Just as freedom of expression protects listeners as well as speakers, the presumption of open courtrooms protects not only those who seek to be physically present in the courtroom, but also those who, as recipients of information, wish to inform themselves about court proceedings. Cory, J. cited Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, in support of the following observation: ...as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role.... Those who cannot attend rely in large measure upon the press to inform them about court proceedings... it is only through the press that most individuals can really learn of what is transpiring in the courts. Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.) at 1339-40; Appellant's Brief of Authorities, Vol. I, Tab 6

20. It is the submission of the BCCLA that Cory, J.'s observation applies in the same way and to the same extent to information conveyed by radio, television, film, and the internet as it does to information conveyed by word-of-mouth or using the printing press. The BCCLA further submits that since recording and transmission of court proceedings are capable of contributing to the flow of information, those activities fall within the democratic rationale underlying the presumption of open courtrooms.

21. The BCCLA submits that recording and transmission of court proceedings also falls within the protection usually accorded to expression under section 2(b) of the Charter. As stated in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 2 S.C.R. 927 (S.C.C.) at 969, "if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee". Filming and distribution of videotapes were directly addressed and were accorded protection under s.2(b) in R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.) at 490.

22. In Irwin Toy, this Court stated that where the purpose of a restriction "is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression". The BCCLA submits that any ban on recording devices in the courtroom is ultimately intended to restrict the broadcast and communication of meaningful visual images and audio recordings. It is undeniable that the primary concern on this appeal is over what people will hear, and what people will see. At stake on this appeal is the transmission of content unique to video and audio recordings.

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 2 S.C.R. 927 (S.C.C.) at 974; Appellant's Brief of Authorities, Vol.I, Tab 10

23. This is not a case in which the restriction on expression is intended, as set out in Irwin Toy, to "control only the physical consequence of certain human activity". The potential mischief of recording devices results primarily from the psychological and social effects of human communication—that is, how participants in the justice system will respond to electronic communication. Recording and transmission are not analogous to littering. Recording and transmission are analogous to the use of the printing press. Any restriction on recording is intended primarily to restrict the transmission of a unique form of meaningful expression.

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 2 S.C.R. 927 (S.C.C.) at 974; Appellant's Brief of Authorities, Vol.I, Tab 10 b. The Proper Administration of Justice

24. The proper administration of justice can be viewed as a cornerstone to the rule of law and the separation of powers: "it is in [the courtroom] that the rights of the powerful state are tested against those of the individual". In this sense, all rights depend on the proper administration of justice.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 493; Appellant's Brief of Authorities, Vol. I, Tab 2

25. On one hand, the proper administration of justice is often compatible with or enhanced by open courtrooms. Wilson, J. summarized the benefits of open trials and court reporting as follows in Edmonton Journal: 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 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. Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.) at 1339-40; Appellant's Brief of Authorities, Vol. I, Tab 6

26. On the other hand, recording and broadcast of court proceedings may in individual cases threaten to subvert justice. Judges retain the inherent jurisdiction to restrain any interference with the proper administration of justice: ...the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court... the juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulful the judicial function of administering justice according to law in a regular, orderly and effective manner. I. H Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 C.L.P. 23 at p. 27-28; Respondent's Brief of Authorities, Tab 24 McMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 at para. 30; Respondent's Brief of Authorities, Tab 8

27. The Dagenais test provides that the open courtroom principle should only be displaced in the presence of a "serious risk to the administration of justice". R. v. Mentuck takes a broad, inclusive view of the administration of justice, which is capable of embracing a variety of rights and interests as they arise.

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.); Appellant's Brief of Authorities, Vol.I, Tab 5 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 499; Appellant's Brief of Authorities, Vol. I, Tab 2 R. v. Mentuck (2001), 158 C.C.C. (3d) 449 (S.C.C.) at 467; Appellant's Brief of Authorities, Vol.II, Tab 23

28. Dignity and decorum play a role in maintaining respect for the law and its administrators. "Tumult and disorder, or the just apprehension of it, would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general".

Scott v. Scott, [1911-1913] All E.R. 1 (H.L.), cited with approval in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 500; Appellant's Brief of Authorities, Vol.I, Tab 2

29. The BCCLA submits that the need for dignity and decorum are not engaged on the facts of this appeal. The Appellants, in their application below, carefully limited their request for a single unobstrusive camera and an operator. A single silent camera in a courtroom would be neither undignified nor indecorous.

30. There is no evidence on this appeal of a general tendency on the part of witnesses or counsel to detract from the dignity or decorum appropriate to a courtroom in the presence of recording devices. The exercise of judicial discretion is sufficient to address the unlikely event of misconduct.

31. Access to justice for complainants and witnesses can be understood as an aspect of the proper administration of justice. This Court has determined that, in some contexts, concerns over access to justice by complainants and witnesses will justify the displacement of the open court principle. In C.B.C. v. New Brunswick, concern over access to justice was said to warrant the exclusion of the public from the courtroom: So far as s.486(1) of the Code is concerned, then, exclusion of the public is a means by which the court may control the publicity of its own proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the underreporting of sexual offences. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 505; Appellant's Brief of Authorities, Vol.I, Tab 2

32. In Dagenais, it was recognized that ordering publication bans may maximize the chances that witnesses will testify because they will not be fearful of the consequences of publicity, and may encourage the reporting of sexual offences. The same analysis applies to the recording and broadcast of testimony.

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 883; Appellant's Brief of Authorities, Vol.I, Tab 5 c. The Accused's Right to a Fair and Public Hearing

33. Under section 11(d) of the Charter 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. The right to a fair trial also engages section 7 of the Charter. This right guarantees "not only an open courtroom, but the right to have media access that courtroom and report on the proceedings".

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 879; Appellant's Brief of Authorities, Vol.I, Tab 5 R. v. Mentuck (2001), 158 C.C.C. (3d) 449 (S.C.C.) at 474; Appellant's Brief of Authorities, Vol.II, Tab 23

34. This Court has recognized that publicity can in some cases be favourable to an accused. Significantly, Lamer, C.J. noted in Dagenais that: ...it is not the case that freedom of expression and the accused's right to a fair trial are always in conflict. Sometimes publicity serves important interests in the fair trial process. For example, in the context of publication bans connected to criminal proceedings, these interests include the accused's interest in public scrutiny of the court process, and all the participants in the court process. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 882; Appellant's Brief of Authorities, Vol.I, Tab 5

35. Accused persons are not always opposed to publicity. In R. v. O.N.E., 2001 S.C.C. 77, the accused opposed the granting of a publication ban on the basis that the proposed ban would prevent the public from appreciating the true reasons behind her acquittal. In R. v. Ertmoed, unreported, New Westminster Registry No. X059360, May 3, 2002, the accused brought an application, which was unsuccessful, for an order permitting the televising of the trial.

R. v. O.N.E., 2001 S.C.C. 77, Appellant's Brief of Authorities, Vol.II, Tab 24 R. v. Ertmoed, unreported, New Westminster Registry No. X059360, May 3, 2002; Brief of Authorities of the Attorney General of British Columbia, Vol.I, Tab 5

36. The presence of recording and broadcast of proceedings may, however, prejudice an accused's right to a fair trial. In a particular case, the BCCLA submits that courts should ensure that the accused person not be required to divulge his or her intended strategy in the conduct of his or her defence. The defence conundrum is noted in Dagenais: Consider also, a case in which the media propose to broadcast information that would undercut a particular defence strategy. The accused will have to reveal his or her defence strategy in order to demonstrate the risk to a fair trial. And yet, it would be unfair to require the defence to reveal defence strategy prior to the closing of the Crown's case—the accused must not be placed in the position of having to risk prejudice to one aspect of his or her right to a fair trial in order to protect another aspect of this right. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 868; Appellant's Brief of Authorities, Vol.I, Tab 5

37. The BCCLA submits that any issues regarding prejudicial disclosure of defence tactics can be answered by providing the accused person with the option of disclosing his or her reasons for opposing the application in confidence to the judge. When necessary, the judge should delay the release of his or her reasons for denying the application until after the conclusion of trial. d. The Protection of Privacy

38. The BCCLA submits that the protection of privacy should displace the presumption of open courtrooms only in limited circumstances.

39. The protection of privacy of individuals (including the accused, victims, and witnesses, and their families) involved in the criminal justice system has generally been recognized by this Court a valid and important policy consideration.

Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175 (S.C.C.) at 185-187; Appellant's Brief of Authorities, Vol.I, Tab 1 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 883; Appellant's Brief of Authorities, Vol.I, Tab 5

40. The level of protection to be accorded to privacy interests depends on the specific context of the case. Mere offence or embarrassment is unlikely to displace the presumption of open courtrooms. As a general rule the sensibilities of the individuals involved are no basis for the exclusion of the public from judicial proceedings.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 504; Appellant's Brief of Authorities, Vol.I, Tab 2 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.) at 1338, citing Nova Scotia v. MacIntyre, supra, with approval; Appellant's Brief of Authorities, Vol. I, Tab 6

41. The BCCLA submits that privacy interests should be carefully scrutinized to ensure that they do not summarily displace the presumption of open courtrooms. Privacy interests should only be accorded significant weight when access to justice is implicated by the denial of privacy, or in special cases that involve issues of inordinate sensitivity to non-participants.

D) The Need for Evidence

42. The BCCLA submits that recording devices should not be excluded from a courtroom in the absence of a "serious risk well grounded in the evidence". The requirement to present evidence exists "precisely because the presumption that courts should be open and reporting of their proceedings is so strong and highly valued in our society".

Sierra Club of Canada v. Canada (Minister of Finance), [2002] S.C.J. No. 42 (S.C.C.) at para.46; Appellant's Brief of Authorities, Vol.II, Tab 33 R. v. Mentuck (2001), 158 C.C.C. (3d) 449 (S.C.C.) at 469; Appellant's Brief of Authorities, Vol.II, Tab 23

43. The requirement to present evidence also serves to create a factual basis upon which a trial judge may exercise his discretion judicially, and permits a reviewing court to determine whether the evidence is capable of supporting that decision. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 883; Appellant's Brief of Authorities, Vol.I, Tab 5

E) The Need for a Timely Application

44. The BCCLA submits that the efficient and orderly administration of justice dictates that recording devices should not be introduced into a court proceeding in the absence of a timely application. Any application should be brought with sufficient notice to ensure that risks to the proper administration of justice, the fair hearing of the accused, and privacy interests are fully canvassed and controlled.

45. Such an application will usually be made by the media outlet or outlets that propose to record the proceedings. However, the BCCLA submits that the burden should not fall on the applicant to justify the presence of recording devices in the courtroom. Rather, those opposing recording devices and broadcasting of court activity must bear the onus of demonstrating, using actual evidence, that the values cherished by Canadian courts will be sufficiently undermined to warrant a prohibition against the use of recording devices in a context of that particular case.

F) Consent: A Hierarchy of Rights

46. The BCCLA submits that the refusal or absence of the consent of a party to a proceeding, without some articulation of the basis for that refusal or absence of consent, should not by itself preclude recording and broadcast of that proceeding.

47. The BCCLA submits that the goal on an application for recording and broadcast is to achieve a balance of all the competing rights in the context of the particular proceeding. In Dagenais, Lamer C.J.C. said this at para. 72: A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieve that fully respects the importance of both sets of rights.

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.) at 877; Appellant's Brief of Authorites, Vol.I, Tab 5

48. As noted above, recording and broadcast of court proceedings is variously protected under sections 2(b), 7, and 11(d) of the Charter. A rule requiring consent would give one citizen a veto over the Charter rights of his or her fellow citizens. Such a state of affairs in anathematic to the general requirement under section 1 that infringements of Charter rights are subject to justification, and the specific principles of justification under section 1 that have been propounded by this Court.

49. This Court has repeatedly stressed that any balancing of competing interest under the Charter should involve an exercise of judicial discretion in a particular evidentiary context. The BCCLA submits that a rule requiring consent would displace the discretion of the judge. To again cite La Forest, J.: The discretionary element of s.486(1) is crucial to the analysis. In this respect, the Court has held discretion to be an essential feature of the criminal justice system. As was noted in R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, a ’system that attempted to eliminate discretion would be unworkable complex and rigid’. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 507; Appellant's Brief of Authorites, Vol.I, Tab 2

PART IV

NATURE OF THE ORDER SOUGHT

50. The BCCLA seeks an Order allowing the appeal and declaring the law regarding recording and broadcast of court proceedings to be governed by the principles governing publication bans, as elaborated by this Court in Dagenais v. CBC and R. v. Mentuck.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

______Leonard T. Doust, Q.C.

______Jason B. Gratl