Report No. 200

Canadian Law Reform Commission: on balancing the rights:

In Canada, the Canadian Law Reforms Commission (Report No. 17 at p.9) referred to section 1 of the Canadian Charter of Rights which guarantees rights subject only to reasonable restrictions as can be demonstrably justified in a free and democratic society; to section 2 which refers to freedom of speech and expression and to section 11(a) which speaks of the presumption of innocence until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

After referring to the duty of the State to see that 'the administration of justice is impartial and fair', the Commission argued that the State could not tolerate an individual attempting to influence unduly the outcome of a trial before a jury. The purpose of the sub judice rule is to preserve the impartiality of the judicial system by protecting it from undue influence which might affect its operation, or at least might appear to do so. While there must be competition between different rights, there is need to retain the sub judice rule.