Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 68 of the television program and the charges faced by the accused individuals. The main issue addressed was whether the infringement of the Charter right to freedom of expression was justified in order to ensure that the accused individuals received a fair and impartial adjudication as contemplated in subsection 11(d) of the Charter. Speaking for the majority, Lamer C.J.C. said: The common law rule governing publication bans has always been traditionally understood as requiring those seeking a ban to demonstrate that there is a real and substantial risk of interference with the right to a fair trial. … [P]ublication bans are not available as protections against remote and speculative dangers.254 In separate reasons, McLachlin J. said: What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered.255 Where a government institution intends to assert that a jury may be influenced by release of the record or information, it should consider R. v. Corbett, (1988), wherein Justice Dickson said: …the Court should not be heard to call into question the capacity of juries to do the job assigned to them. The ramifications of any such statement would be enormous… (i)t is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge.256 254 Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC) at pp. 875 and 880. Also cited and relied on in ON IPC Order P-948 at p. 5. It is important to note that Ontario’s FOIP Act uses “could reasonably be expected to” for its equivalent provision (subsection 14(1)(f)). That threshold is higher than Saskatchewan’s subsection 15(1)(g) of FOIP. 255 Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC) at p. 950. Also cited and relied on in ON IPC Order P-948 at p. 5. It is important to note that Ontario’s FOIP Act uses “could reasonably be expected to” for its equivalent provision (subsection 14(1)(f)). That threshold is higher than Saskatchewan’s subsection 15(1)(g) of FOIP. 256 R. v. Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC) at p. 693. Similar statements were made in Ex parte Telegraph Plc., [1993] 2 All E.R. 971 (C.A.) at p. 978 and Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, 1994 CanLII 39 (SCC) at p. 322 and R. V. MacDonnell, 1996 CanLII 5560 (NA CA) at p. 3.
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