## Facts

- Four members of the Christian Brothers faced multiple jury trials in Ontario on charges of physical and sexual abuse of boys at Catholic training schools.
- During the pending trials, the Canadian Broadcasting Corporation planned to air *The Boys of St. Vincent*, a four-hour fictional miniseries portraying child abuse in a Catholic institution, scheduled in two installments.
- Defence counsel asked the trial judge to take measures to protect trial fairness (including pre-broadcast jury management), but the judge declined and instead instructed jurors not to watch the program.
- Defence sought an interlocutory injunction from another judge, who prohibited the CBC from broadcasting the program anywhere in Canada until the conclusion of the four trials.
- The Ontario Court of Appeal largely upheld the injunction but narrowed its geographic scope and lifted a separate restraint on publicity about the existence of the program and the ban.
- CBC and the National Film Board appealed, challenging the authority for and scope of the ban and asserting the media’s ability to appeal orders restricting expression.

## Issues

1. Whether a third-party media organization may appeal a publication ban issued in the context of criminal proceedings, and whether the Supreme Court had jurisdiction to hear that appeal.
2. Whether courts have common-law authority to impose publication bans in criminal proceedings, and what legal test governs that discretion.
3. How to reconcile freedom of expression with the accused’s right to a fair trial when deciding whether to grant a publication ban.
4. Whether the ban on broadcasting the miniseries was justified under the proper standard.

## Decision

- The Court held that media organizations affected by publication bans have standing and may appeal such orders; the Supreme Court had jurisdiction to hear the appeal.
- The Court confirmed that judges possess common-law discretion to order publication bans, but that discretion must be exercised consistently with constitutional values.
- The Court reformulated the governing standard to require a structured balancing of fair-trial interests and expressive freedom.
- Applying the reformulated standard, the Court set aside the broadcast ban as overly broad and not justified by the evidence of risk to trial fairness.

## Legal Principles

- Common law affecting expressive freedom must be developed and applied in a manner consistent with constitutional values, including freedom of expression and open courts.
- A discretionary publication ban may be ordered only if:
  - it is necessary to prevent a real and substantial risk to trial fairness because reasonably available alternative measures will not prevent the risk; and
  - the ban’s beneficial effects outweigh its harmful effects on the rights and interests of the parties and the public, including freedom of expression and the open-court principle.
- Fair-trial rights and expressive rights are not subject to a categorical hierarchy; courts must assess both in context.
- The availability and adequacy of less restrictive measures (e.g., jury instructions, sequestration, adjournment, change of venue) must be considered before restricting publication or broadcast.
- Overbroad geographic or temporal restraints on expression are disfavored where the trial-fairness objective can be achieved by narrower means.

## Conclusion

The Court recognized media appeal rights and replaced a fair-trial-dominant approach to publication bans with a necessity-and-proportionality test that gives meaningful weight to freedom of expression and open courts, leading it to set aside the challenged broadcast injunction as unjustifiably broad.


Dagenais v. Canadian Broad. Corp., [1994] 3 S.C.R. 835 (Can. 1994)