Common Law Rules Of Sub Juice example essay topic

Introduction This paper is concerned with the common law of contempt of court. More specifically, it outlines the arguments in favour of, and against, codifying this law. The purpose is to discuss problems with contempt of court, and make proposals to restructure the law. The first part of this paper will explain the openness principle, which is the balancing factor in respect of contempt of court. The second part will outline the common law offence of contempt of court and narrow the scope of this paper. The second part will set out and explain the arguments in favour of, and against, codifying the law.

Finally, the last part of the paper will set forth some proposals for reform. The Openness Principle Even before freedom of expression was enshrined in our constitution, the judiciary noted that the basic principle governing judicial proceedings in Canada was their openness. Canadian courts are public institutions and accordingly, courtroom occurrences should be public business. As one Supreme Court justice stated, "openness was to be the rule; covertness the exception". It was further noted that at every stage of the process, the rule should be one of public accessibility and judicial accountability. Now, since free expression has been espoused by Canadians and enshrined in the Canadian Charter of Rights and Freedoms, the openness principle has attained a constitutional basis.

Advancement of the principle is made possible by the media, as news reports are the primary means by which the public obtains information about the courts. Hence, courts must be open to the media in order for them to be open to the public. This concept is not novel to Canada's judicial system. In fact, in recognition of this notion, the system has allowed media exceptions to certain rules and regulations of the court. A limitation on the openness principle is found in the common law of contempt of court. The underlying foundation of this analysis is that contempt of court must be balanced with the openness principle because accurate and fair courtroom reports are an integral part of the due administration of justice.

Contempt of Court, Generally Contempt addresses behaviour, actions, and publications that interfere with, or create a real risk of interfering with, the due administration of justice. It regulates a range of human activities that pose a risk of such interference, including mis behaviour in the courtroom, disobedience of court orders, and interaction with parties and witnesses in judicial proceedings. Traditionally, the law of contempt is divided into 'civil' and 'criminal' contempt. Civil contempt addresses the enforcement of court orders and undertakings given to a court in civil proceedings. This form of contempt will not be addressed in this paper.

Criminal contempt is concerned with maintaining the authority and integrity of the court as a matter of public interest, and it covers a range of circumstances, including mis behaviour in the court, and the publication of material that tends to interfere with legal proceedings. In maintaining the focus on media law, this paper will be concerned with criminal contempt and more specifically, on one form of criminal contempt referred to as the sub juice rule. Although there are other forms of contempt that may affect the media, analysis of every form of contempt, in one paper, would not do justice to this area of the law and, it would fail to acknowledge the distinct complexity of each form of contempt". Sub juice" Contempt Some aspects of the sub juice rule have already been codified and this paper is only concerned with the common law of sub juice. The sub juice rule does not prohibit the publication of information, but delays its publication until there is no risk of prejudicing the outcome of proceedings. Of all forms of contempt, the media is likely to be the most affected by the sub juice restrictions because it affects the content they can and cannot publish.

Accordingly, any reforms proposed in this paper to this area of the law, will have a profound impact on the media and reporting practices in Canada. The Advantages of Codification The present common law rules of sub juice are inchoate, resulting in a lack of precision certainty and clarity. Justice Lockhart has noted that there are members of the 'community who think the law of contempt should be codified by statute'. This part of the paper advances the position that the sub-juice common law should be abandoned and replaced by a clear and more definite codified law. Consistency with Criminal Procedure The law of sub juice is criminal law, attracting criminal sanctions.

In fact, contempt is the only common law crime still enforced in Canada. As the law currently stands, after the event, a court can say, 'Unknown to you, and even though this has never been decided before, what you did was actually criminal all along'. Because of the potential sanctions and stigma involved with criminal law, our society accepts that this area of law should involve some degree of "fairness". To be fair, civilians should be afforded the opportunity to open a document and know what conduct is prescribed as criminal and what arguments exist in favour of criminalizing that conduct. This ensures that society's criminal law accords with its ever-changing conditions. The fact that all of Canada's crimes have been codified indicates recognition that criminal law is quite unique from other areas of law.

Cases involving criminal conduct may potentially have a severe effect on those who are involved, either by way of a penalty or mental and social anxiety. As such, it is imperative that the courts proceed to bringing the law of contempt into the framework of criminal procedure. Defined Boundaries The codification of this law will also assist journalists and judges to ascertain the parameters of sub juice law. The media is in breach of sub juice and subject to criminal penalties whenever they publish information that will prejudice the outcome of a trial or purport to resolve an issue that will be before the courts.

The law offers no guidance on what information will prejudice the outcome of a trial, the time frames that would lead to prejudicing a trial or what issues will be heard before a court. Therefore, it would seem that the onus is on the media to judge and determine what information will "prejudice the outcome of a trial" and how long the information should be withheld before the risk of prejudice disappears. This practice not only results in grave inconsistencies in the law, but it also creates an unfair system that would see the media punished for making a judgement left solely up to them. The media is continually forced to engage in self-censorship and self-regulation, which militates against full and fair dissemination of information. If there were established rules, both journalists and judges would clearly know what the parameters of sub juice are and any journalistic or judicial practice of using the uncertainty, ambiguity and fluidity of the current law to test the bounds of publication may be significantly discouraged. Codification will allow the media to move away from self-censorship, thereby facilitating full and fair dissemination of information, and also minimally impairing our right to freedom of expression.

Uniformity Codification of sub juice is also necessary to achieve uniform legislation throughout Canada. Uniformity of sub juice law is essential at a time when delivery of information knows no territorial boundaries. Given the ever-developing means of transmitting information, it is essential for the media and the general public to know what can and cannot be published throughout the country, from province to province. The importance of this idea is evidenced in the fact that currently, all Canadian criminal offences have been codified in a single uniform piece of national legislation. The argument for uniformity is not only that Canadian journalists have a common set of guidelines to work within, but also, that all members of the public have free access to the same information.

Resolution of Charter Issues Although it as been held that there are no contradictions between the Charter and the essentials of the law of contempt of court, it would seem that the common law rule of sub juice does in fact amount to a denial of our Charter rights. The reason for this discourse may lay in the fact that challenging a law on Charter grounds becomes all the more difficult when we are dealing with judge made crime, rather than a section or a provision. There is uncertainty about whether the Charter can apply to purely judicial acts, which the judge-created, non-statutory law of contempt is. The law of sub juice has been applied and described in so many different ways and it is difficult to constitutionally attack a concept that continues to remain undefined. Codification of the law will allow for a systemic challenge to the provision and depending on the court's ruling, will result in one of two possibilities.

It may pacify the critics of sub juice who continually argue the law is an infringement of our guaranteed rights and resolve the Charter issue once and for all. Alternatively, it may force the courts to apply the rule in a constitutional manner, meaning, in a manner that minimally impairs our freedoms while respecting the administration of justice. Judicial Accountability Codification of the common law sub juice is necessary to ensure minimal impairment of the openness principle, which would in turn, ensure judicial accountability. The more open the courts are to the media, the more accountable the judges are made to the public. The judicial system must give the appearance of being fair and limiting our rights as little as possible to effect the due administration of justice. The appearance of fairness and justice is achieved by consistent decisions rendered by judges and judicial accountability for inconsistencies.

Codification will give the appearance of a fair judicial system by encouraging judicial accountability and the openness principle, allowing the public to feel they are actively "watching and monitoring" the Canadian bench. Disadvantages of Codification It has been argued that codifying sub juice will do no more than give statutory effect to the common law principles. In fact, codification may result in inflexibility and rigidity. Limited Judicial Discretion Codification of the law of sub juice would immediately result in diminished discretionary powers for the judiciary. Such discretion is most often employed and useful in sub juice law as judges are in the best position to know what facts and information would prejudice the outcome of a trial. Judges must be given the ability to control their court, acting in the best interests of all parties involved, and efficiently balancing our right and freedoms with the due administration of justice.

Achieving such a balance requires flexibility in the exercise of a judge's discretionary powers because such considerations are often either fact specific, or largely dependent on the social atmosphere of the time. This means that judges should be able to consider public policy issues when making a decision about the publication of information. It would seem that a judge's ability to encourage the openness principle, and the associated notion of judicial accountability, would be hindered if they were made to follow rigid rules of publication. Inflexibility Codifying the law of sub juice could result in the law becoming static. As it currently stands, the common law grows on a case-by-case basis.

The goal is to ensure the law remains consistent with our views at the time. If the law were codified, the only means by which it could be altered would be by statutory amendment. The process of amendment to the common law is much more efficient, because laws can develop as they progress through various cases. Consequently, codification may in fact make the law of sub juice even more strict than it already is. Moreover, the law can be applied in a more flexible manner to suit the peculiar facts of each case and devise individual publication plans for each. Trials are dynamic and the law relating to their publication should also be dynamic.

The appropriate times delays can vary from trial to trial, as can the prejudicial effect of the same information. For example, publishing certain information about trial X one year before the trial may be allowed, but publishing information about trial Y may not be allowed. It is not inconceivable to see how this flexibility could often work in favour of the media. Unworkable Form Given the complexity of sub juice common law, particularly in its application, codification will be unlikely to clarify the boundaries of the law. Sub juice is, by its very nature, difficult to codify in an exhaustive fashion. What constitutes contempt can often be appreciated only in the light of the circumstances of the moment or in light of the subjective predispositions of the judges.

Any statute or provision that attempted to adequately codify sub juice would either be overly generalized or overly detailed. The inevitable result is that judges will be left to interpret the words. Practically, there is little difference between interpreting that and the way sub juice is currently applied. Proposals for Reform and Conclusion In 1982, proposals for codifying the law of contempt were formed but rejected on the basis that codification would have made an unnecessarily restrictive offence even more restrictive. Then, in 1984, a bill was introduced which would have codified much of the law of contempt. The bill was never enacted and nothing has happened since.

The time has come to reconsider these issues as the law is now in dire need of reform. To clarify, this paper is not suggesting that all contempt of court law be codified. That would be an almost impossible task for a paper of this length, given the complexity of this area of law. Instead, the focus has been on sub juice common law contempt, its effect on our rights and freedoms, and the arguments in respect of codification. Balancing the rights and freedoms of Canadians with the administration of justice, the logical step seems to be in the direction of codification. Other jurisdictions, such as the United Kingdom, have taken the positive step toward codification.

Perhaps Canada should examine the progress of these jurisdictions, and determine whether their attempts to limit the scope of media restrictions, while protecting the interests involved in trial proceedings, have been successful..