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= Canadian Broadcasting Corporation v. Canada (Attorney General)=

Intro
The Canadian Broadcasting Corporation v. Canada was a Canadian Supreme Court Case decided in 2011. The Canadian Broadcasting Corporation (CBC) led a coalition of media groups in a lawsuit against the Province of Quebec over courtroom recording restrictions known as Directive A-10. The media groups believed A-10 unjustly violated freedom of the press, guaranteed in section 2(b) of the Charter of Rights and Freedoms. The CBC lost in Quebec Court and appealed; the case eventually reached the Supreme Court of Canada. The Supreme Court found Directive A-10 passed the Oakes test and therefore was constitutional.

Directive A-10
Directive A-10 is a statute implemented in 2005 by the Direction generale des services de justice, the governing body of Quebec courts. The directive was in response to “excesses” in media coverage that had occurred over the preceding years. Between 1993 and 1995 the SCC allowed for several high-profile cases to be televised, raising concerns over proper decorum in courtrooms. A 2004 report by the Quebec court system found scrums outside courtrooms and the harassment of litigants by reporters were common incidents. However, CBC lawyer Francois Demers disagreed, stating “problems in courthouse corridors are limited to 13 cases over the past 10 years". The Directive was designed to protect the rights of witnesses and other parties in court proceedings as well as ensuring composure from crowds and the press in courthouses. A-10 includes restrictions on where audio and visual recordings and interviews can take place in a courthouse. These areas are to be denoted by pictograms in each courthouse. Any media activity must not prevent the free movement of people within or around the courthouse. Violation of the Directive could result in expulsion from the courthouse.

Oakes Test
The Oakes Test refers to R. v Oakes, a landmark Canadian Supreme Court decision in 1986. The case surrounded the arrest of David E. Oakes under the Narcotic Control Act. The Court found Oakes’ rights were violated by requiring him to prove his own innocence.

The Court identified a multi step process to determine whether a law which limits rights in the Charter is justified. Laws which restrict Charter provisions must meet several criteria. They must address a “pressing and substantial” issue, the infringed Charter right be “rationally connected” to the law in question, minimally impair the Charter, and have reasonably proportionate effects.

Irwin Toy Test
          In the 1989 case Irwin Toy Ltd. V. Quebec the Supreme Court of Canada set the standard to determine if section 2(b) of the Charter is violated. First, the activity must be protected expression, which the Court defined as any non-violent activity which “attempts to convey meaning”. Second, the law must not be intentionally written to restrict freedom of expression.

History of the Case
In 2008, the Canadian Broadcasting Corporation (CBC) filed suit against the Province of Quebec challenging Directive A-10 on freedom of expression grounds. The CBC was joined by several other media companies including Groupe TVA inc, La Presse Ltee, and the Federation of Professional Journalists of Quebec in the lawsuit. The Superior Court found courtroom recordings were protected under freedom of expression, but the limits in A-10 were reasonable as prescribed by section 1 of the Charter. The Court of Appeals found the right of expression does not apply to interviews or recordings in courtrooms. The CBC appealed the case to the Supreme Court of Canada.

Intervenors
The Canadian Justice system allows for 3rd parties which have a relevant interest to be heard in a case, known as intervenors. There were 9 intervenors in CBC v. Canada including the Attorney General of Alberta, the Canadian Civil Liberties Association, and Canadian Association of Journalists.

Decision of the Court
The Supreme Court of Canada dismissed the CBC’s appeal with costs. The decision was unanimous. The judgement was formally decided on January 28th, 2011. Justice Marie Deschamps wrote the opinion of the Court. The SCC found the Directive minimally impacted the media’s ability to report on court proceedings while promoting order and judicial integrity.

The SCC agreed with the lower courts that Directive A-10 did infringe on Section 2 of the Charter. The Court recognized journalistic coverage of courtroom proceedings and related matters is protected under freedom of the press, therefore failing the Irwin Toy test.

The Court reviewed the context in which Directive A-10 was enacted. Under the Oakes test, the SCC found Directive A-10 to be a reasonable restriction of Charter rights. The Court found Directive A-10 addressed legitimate concerns regarding the privacy of litigants and orderly administration of justice. It argued the presence of cameras and recording devices in the courtroom can increase the anxiety of witnesses and reduces the overall decorum of proceedings. By limiting where interviews can be conducted, witnesses and lawyers can move without being hounded by the media. The Court stated “There is no question that this objective contributes to maintaining public confidence in the judicial system”.

The SCC found the Quebec Ministry of Justice was considerate in the crafting of Directive A-10. The Court believed the restrictions the Directive placed fell “within a range of reasonable alternatives”. Rather than a total ban on recordings, audio is allowed to preserve evidence and ensure accurate reporting of court proceedings. The Court admitted the broadcasting of recordings would be beneficial for the public, however this is outweighed by maintaining the integrity of the courtroom. Furthermore the SCC pointed out journalists are still permitted to move about the courthouse and report on their observations.

Reaction
In a press release, the Quebec Federation of Professional Journalists stated is was “disappointed” by SCC’s ruling in CBC v. Canada. Francois Demers, a lawyer for the CBC, described the Court’s decision as “unfortunate and excessive”.

Case Law
In City of Montreal v. Quebec Inc. the SCC set standards for restriction free speech based on location. The Court examined the function of the place and considered if expression at the location would “undermine the values underlying free expression”. In CBC v. Canada the Court found unregulated expression in a courtroom did undermine the judicial institution’s underlying values. The SCC also decided in City of Montreal that expression can be limited even on public property.

The Supreme Court of Canada considered if the Charter protects specific means of expression in Haig v. Canada. The Court found freedom of expression does not require the government to provide particular means of expression. Therefore the Quebec courts could limit the use of cameras while still protecting written communication.

Subsequent Jurisprudence
The Supreme Court of Canada decided a similar case, CBC v. The Queen, regarding the public broadcasting of video evidence presented in court. This suit was also filed by the Canadian Broadcast Corporation. In CBC v. The Queen, the Court again prioritized courtroom integrity and ruled against the broadcasting of video evidence. The court discussed the impacts broadcasting evidence may have on related cases and on the defendants themselves.

Courtroom Media Access in Other Countries
The United States allows for regulation of media in courtrooms at the state level. In Chandler v. Florida (1981), the Supreme Court found that televising criminal trial proceedings did not deny defendants the right to a fair trial. All 50 states have different statutes regulating media in courtrooms and judges’ authority over them. Recording of court proceedings is very rare at the federal level.

The judicial system of Brazil allows for widespread media access. Proceedings of Brazilian Supreme Court are broadcast live on television and radio channels run by the Court itself. The deliberations of justices in their chambers are also shown on live TV.