The day the most controversial TV drama in Canadian history was banned by a judge – 48 hours before its world premiere – was the beginning of a two-year debate about whether viewers could tell the difference between fiction and fact. It would lead all the way to the Supreme Court of Canada, 25 years ago tomorrow, ultimately changing this country’s legal landscape forever.
The Boys of St. Vincent was a hard-hitting four-hour dramatic mini-series that was to air on the CBC in 1992. But two days before its programming date, in a startling ruling on Dec. 4, Justice Lorraine Gotlib of the Ontario Court of Justice banned the show from broadcast. A harrowing story of chronic sexual abuse of boys at an orphanage in Newfoundland, led by a terrifying Catholic Brother, the film bore too close a resemblance, in the judge’s view, to four actual cases of abuse then before the courts in Ontario.
The film’s director, the NFB’s John N. Smith, and its champion at CBC, Ivan Fecan, the network’s vice-president of arts and entertainment and television, sat stunned in the courtroom as the ban was then compounded. Despite her disclaimer, “interested as I am in a free press,” the judge forbade the publication of any news about her decision.
Fecan tells me that, “on that day, I learned about how easily our rights can be taken away. I clearly remember sitting there hearing ‘the ban on the ban,’ and thinking ‘I can’t believe we’re in Canada. This feels like something out of a totalitarian state.' I don’t think any of us thought this was a possibility.“
(Full disclosure: I was in the courtroom that day, as the NFB’s senior communications manager, and later was a producer at the NFB until 2014.)
The next day, the headline “BANNED” appeared on the front page of The Globe and Mail, followed by a short notice indicating that “somewhere in Canada yesterday, a group requested a court ban on the publication/broadcast of a certain work for certain reasons.” That certain film was on the cover of The Globe’s Broadcast Week magazine, so all the copies had to be pulled from papers across Canada.
After appeals at both provincial and federal supreme courts, the film would ultimately go on to air to 10 million Canadians, but as of December, 1992, The Boys of St. Vincent was both morally and aesthetically pioneering in a way that made it stand out – and seem, for some, like a threat. No drama had ever depicted the brutality of trusted authority figures in the Catholic Church (this, in the wake of 1989′s massive abuse scandal at Mount Cashel orphanage in Newfoundland) in such vivid terms, against children no less, in prime time. The film took a cinematic approach to television storytelling that predated the Netflix revolution by two decades. Twenty-three years before Hollywood’s Spotlight, it defined in dramatic fashion the deep psychological and institutional roots of abuse, and the power some have to cover up such devastating crimes.
But before the film could be seen, it faced off against some of the very kinds of men whom it depicted in its fictional story.
Four members of the Christian Brothers order in Ontario, Lucien Dagenais, Léopold Monette, Joseph Dugas and Robert Radford, faced imminent trials for “alleged physical and sexual abuse of children within their care.” Their lawyer argued that the airing of The Boys of St. Vincent would “inflame” public opinion against them in favour of their alleged “victims” (the quotation marks are the lawyer’s), impeding their right to a fair trial. Gotlib – although she opined that “juries are not stupid,” stated in her ruling that “the harm that would be caused by the showing of this particular film … would be such that the possibility of impartial jury selection virtually anywhere in Canada would be seriously compromised.”
The creative teams at the NFB and the CBC were certainly going for impact, but assumed that The Boys of St. Vincent would trigger a desperately needed and frank discussion about sexual abuse, not be locked away from sight.
The power of the film was not coincidental. It was the result of the combined efforts of two public, yet very different, cultural organizations. The NFB, at that time, was focused on low-budget improvisational dramas that drew on the organization’s documentary filmmaking prowess. The CBC, meanwhile, was embracing torn-from-the-headlines docudramas. The scale and complexity of The Boys Of St. Vincent – two two-hour episodes, spanning 15 years, with more than 40 characters – required an approach to the production process that drew from the strengths of both organizations.
The NFB partnered with an independent production company, Montreal’s Les Productions Télé-Action Inc., and approached the CBC to seek a national broadcast window. Co-written by Newfoundland writer Des Walsh, Smith, and NFB producer Sam Grana, the film would cast young boys with no acting experience alongside experienced professionals such as Henry Czerny.
Before five months of shooting commenced in November, 1991, extensive preparatory work was done to ensure that the boys and their parents fully understood the grave nature of the story. The filmmakers worked with Dereck O’Brien, a former resident of Mount Cashel; experts in child sexual abuse counselling; and a psychotherapist (who was on set) to create an environment that was accurate to the dark realities of the issue, and to create a safe and collaborative production process.
But the nuances of the production were not considered in the next courtroom debate either.
In an unusually rapid turn of events, the day after the film was banned by Gotlib, the Ontario Court of Appeal panel held a rare Saturday session in a packed courtroom at Osgoode Hall, as three justices heard arguments from lawyers for the CBC and the NFB (the latter represented by a future Supreme Court justice, Ian Binnie).
Although none of the judges actually saw The Boys of St. Vincent, the appeal succeeded in lifting the publication ban, and allowing the broadcast to go ahead everywhere in Canada except in Ontario and Montreal (to avoid reaching potential jurors in the remaining trials).
Binnie (who went on to argue on behalf of both the NFB and the CBC at the Supreme Court appeal in 1994) told me recently that “judges were too quick, in the nineties, to say, ‘well, clearly this is going to blow the mind of the jurors. So we’ll ban it.' The whole point of the appeal was to create that space for artistic freedom, and filmmaking.” Binnie had argued that judges could simply challenge prospective jurors to determine whether they had seen the film, and then exclude them from a trial if need be.
Even with a truncated reach owing to the partial broadcast ban, when first broadcast the day after the court of appeal liberated it, the mini-series attracted more than two million viewers. The CBC and the NFB, anticipating a powerful personal impact on some viewers, had partnered with Kids Help Phone, owing to the “dearth of services for adult male survivors of abuse,” so that immediately after the broadcast on both nights, their counsellors were available – they ended up speaking to more than 300 callers. The Boys of St. Vincent had prompted some viewers to disclose for the very first time that they had been abused.
But would the whole country ever have the chance to see it?
For TV executive Fecan, there was a real fear that such a ban could happen again, targeting this film (as was sought, unsuccessfully, a year later by yet another accused Christian Brother) or any other that told a story that was too “real.” With such high stakes, the CBC and the NFB applied to the Supreme Court in late December to overturn the lower courts’ decisions entirely.
Meanwhile, over the two years it made its way to the Supreme Court, the movie was gaining recognition in the film industry. Selected for the prestigious Telluride Film Festival, and awarded many Canadian and international prizes, The Boys of St. Vincent garnered a theatrical run in NYC, and praise from Pauline Kael and Steven Spielberg. But director Smith, especially recalls the grateful calls and letters he received from Spain, Italy and South America from Catholics who had seen the film and connected with its truths, despite its exotic Canadian setting.
With the trials of the four Christian brothers completed, the film was finally broadcast to the whole country by late 1993. But the hope was that the Supreme Court would establish a legal principle that restored and protected free expression so this might never happen again. And on Dec. 8, 1994, the court did so rule.
In the decision (since then referred to by lawyers simply as “Dagenais”), future Chief Justice Beverley McLachlin wrote, “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. The courts are the guardians not only of the right to a fair trial but of freedom of expression. Both must be given the most serious consideration.”
But the Supreme Court’s ruling wasn’t unanimous, and one dissenter, Justice Charles Gonthier, raised the by-now familiar spectre that films could be “undue, unnecessary, and excessive temptations” to susceptible jurors. The impact of docudramas, in particular, in his view, derived “from the power of omniscience afforded to the viewer. Television is in many ways more powerful than print." The making of a docudrama while a trial was underway was, to him, a “dangerous game.”
Daniel Henry, the CBC’s senior legal counsel at the time, says the Supreme Court decision in The Boys of St. Vincent case “changed the equation … in the years since, it has become established as the bedrock principle on which all publication restrictions are weighed. It’s a fundamental touchstone for the importance of free expression in a democratic society.”
By this point, NFB staff reductions and budget cuts meant that The Boys of St. Vincent would be the last major collaboration of its kind between the NFB and the CBC. Both Fecan and Smith had moved on within a year of the TV premiere. Facing huge legal fees, Smith left the NFB to earn more money in the private sector, and Fecan moved to what ultimately became the CTV empire.
From his perspective a quarter of a century later, Fecan considers the question of whether a TV drama like The Boys of St. Vincent would be done today. “Only by a public broadcaster, and an institution like the NFB. That’s the point of having public broadcasting, where you could do productions like this. I don’t see any reason why it couldn’t be done today, it just needs the will to do it.”
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