In Dagenais v. Canadian Broadcasting Corp. (1994), 1994 CanLII 39 (SCC), 94 C.C.C. (3d) 289 (S.C.C.), Lamer C.J.C. set down some guidelines for dealing with the challenge of publication bans by the media. At pp. 326-327, he stated the following: In order to provide guidance for future cases, I suggest the following general guidelines for practice with respect to the application of the common law rule for publication bans: (a) At the motion for the ban, the judge should give the media standing (if sought) according to the rules of criminal procedure and the established common law principles with regard to standing. (b) The judge should, where possible, review the publication at issue. (c) The party seeking to justify the limitation of a right (in the case of a publication ban, the party seeking to limit freedom of expression) bears the burden of justifying the limitation. The party claiming under the common law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial is seeking to use the power of the state to achieve this objective. A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society. Therefore, the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited (in scope, time, content, etc.) as possible, and there is a proportionality between the salutary and deleterious effects of the ban. At the same time, the fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied. (d) The judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available. (e) The judge must consider all possible ways to limit the ban and must limit the ban as much as possible; and (f) The judge must weigh the importance of the objectives of the particular ban and its probable effects against the importance of the particular expression that will be limited to ensure that the positive and negative effects of the ban are proportionate.
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