From Ad IDEM / CMLA
September 14, 2001
The Supreme Court of Canada ruled unanimously that the implied undertaking rule applies to civil actions in Quebec. This is a serious impediment to full public discussion of cases that are taken to the courts, but take time to get there, or never get to court at all. According to the judgment, the media intervenors did not "challenge the statutory rules governing examinations on discovery on any constitutional grounds", and related "only to the interpretation of the enactments and the definition of the legal principles governing examinations on discovery." This may leave the door slightly open to debate the impact of this on journalism in future. The key paragraph of the decision read as follows:
72 Despite the fundamental importance of the media's right of access to information in a modern democracy, it must be consistent with the principle of respect for privacy. As we have seen, an examination on discovery is not part of either the court record or a trial. The content of the examination is therefore not accessible to the public, because it is still, as a general rule, in the private sphere. At that stage, there is no imperative of transparency in the judicial system that would justify taking that information out of the private sphere and making it accessible to the public or the media. It will also be recalled that once the trial begins, and except for the limited number of cases held in camera or subject to a publication ban, the media will have broad access to the court records, exhibits and documents filed by the parties, as well as to the court sittings. They have a firm guarantee of access, to protect the public's right to information about the civil or criminal justice systems and freedom of the press and freedom of expression.
See Lac D'Amiante.