Timothy Bottomer, “Dagenais 2.0: Technology and Its Impact on the Dagenais Test”

Working Abstract

Since 1994, the Supreme Court’s decision in Dagenais v. Canadian Broadcasting Corp. has remained the leading case on publication bans and their relation to the freedom of expression rights entrenched in section 2(b) of the Charter of Rights and Freedoms. The continued viability of the Dagenais test has been called into question, however, by the rapid development of communications technologies.

This paper explores the problems technology poses to the Dagenais test, the likely response of the judiciary to the impact of technology, and what the response of the judiciary to this impact should be. The three possible responses include: (1) doing nothing; (2) granting more and earlier publication bans; and (3) granting fewer bans and making greater use of alternative measures.

On the basis of past judicial responses in cases where publication bans have come into conflict with the changing media environment, as well as more systemic factors such as the inability of the legal system to effectively cope with rapidly changing technology and the tendency of lower courts to grant publication bans, the likeliest judicial response to the impact of technology is a combination of doing nothing and granting more and earlier bans. This is far from an ideal outcome. Publications bans continue to have deleterious effects on freedom of expression and the open court principle even as technology erodes their effectiveness. Judges should instead react to the impact of technology by granting fewer publication bans and making greater use of alternative measures.

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