Should publication bans be automatic for pre-trial hearings before jury selection?

Next week, the Supreme Court of Canada will hear a pair of cases challenging publication ban orders under Section 648 of the Criminal Code. The first publication ban relates to last year's conviction of Aydin Coban, found guilty by a B.C. jury in the 2012 death of Amanda Todd, who committed suicide after posting a video that described being tormented by her online harasser. The second involves Quebec judgments on motions filed by hitman-turned-informant Frédérick Silva who later entered pleas of nolo contendere of four counts of murder and one count of attempted murder.

Daniel Burnett, who represents all the major media outlets in the Coban case, says that the classic rationale for the s. 648 ban is that jurors, when separated and permitted to go home, might be exposed to news stories they shouldn't hear. "And that's completely understandable," says Burnett of Owen Bird Law Corporation in Vancouver.

The trouble is that another provision of the Criminal Code, s. 645, allows a judge to hold pre-trial hearings in the absence of a jury before it is empaneled. 

"In some lines of authority — Alberta being the clearest one — the courts have looked at the language of the Section 648 ban and said that it doesn't arise until there's actually a time when the jury is empaneled," Burnett says. He adds that the courts should consider a discretionary ban for pre-trial hearings before a jury is sworn.

There is also conflicting precedent in British Columbia, Ontario and Québec, with some courts interpreting Section 648 as an automatic publication ban on all pre-trial hearings. That can create a long blackout period for journalists in cases where there could be a public interest. In the Coban case, the blackout period lasted 15 months, Burnett notes. "The more major and important the case is, the worse the blackout is in terms of how long it lasts and how many pre-trial hearings aren't publishable."

In the Coban case, the media consortium is also challenging a different section of the Criminal Code which would otherwise have prevented the naming of Amanda Todd, despite the case's notoriety, as there was an automatic, no-discretion ban on the victim's identity in a child pornography case. The judge struck that down, agreeing it was not constitutionally sound. But reasons for striking down that ban have not yet been released.

"It's one dramatic example of something that the blackout captures that it shouldn't," Burnett says. "The position being taken by the nine media outlets that I act for, and that is being taken in Quebec [in the Silva case] is that the ban should be read exactly the way it's worded, which is that it arises only when there is a jury, and the jury is given permission to separate."

Marc-André Nadon, a partner with Prévost Fortin D'Aoust in Boisbriand, represents Montreal daily La Presse in the Silva case. According to Nadon, it's fundamental that the Supreme Court of Canada clarifies the scope of interpreting Section 648.

Over the course of the first of two Silva trials, there were two voir dires, one of which concerned a motion for abuse of process filed by the defence, arguing that the police acted abusively in connection with investigative methods.

The journalist from La Presse was aware of the two voir dire decisions, which contained public interest information. Initially, La Presse decided not to oppose the motion. 

After Silva pleaded nolo contendere to four of the five counts before a judge in December 2021, La Presse took the position that amounted to a change in circumstance, and asked for a variation in the publication ban to reveal information in the voir dire judgments to shed light on particular methods used by police. The fifth charge, for second-degree murder, was separated from the indictment. The defendant was supposed to be tried by judge and jury on that count.

Nadon says there is precedent at the Quebec Superior Court that followed case law from out West deciding that Section 648 applies only after a jury has been empaneled. But the judge followed another line of jurisprudence and accepted that 648 applies before a jury is empaneled, meaning the ban stood.

"In this case, now that the judgment was published, the investigative technique was to obtain a false judicial authorization, where the police office entered into the justice of the peace's office while he was away and used his stamp to authorize his own warrant," Nadon says. "Having a superior court assessing whether that was abusive or not, one can argue as we did that there was a public interest in publication."

"In my view, this was a very clear and patent case of public interest," Nadon adds.

Justin Safayeni, a partner with Stockwoods LLP in Toronto, who is not involved in either of the cases, says the broad interpretation of Section 648 is problematic given the time it can take for matters of public interest to wend their way through the justice system. "On the broad interpretation of 648, there is an automatic ban in place without any kind of further analysis or discretion," he says. "That's completely at odds with the open court principle and frankly unnecessary."

It's legitimate to shield the jury from hearing anything that would be prejudicial to a fair trial, Safayeni adds. But that can be done on a case-by-case basis which already happens without engaging Section 648. "That is going to be the question for the court—do you have to uphold the broad interpretation of 648 that makes all of this automatic, in light of the fact that there is this common law discretion available to courts to make publication bans if needed in appropriate cases?"

Safayeni says the more nuanced way to approach any concerns around publication is under the existing common law power.

"For good reasons, it's a difficult test to meet to impose a common law publication ban," Safayeni says. "It's not automatic—you have to show that there is an important interest at stake, and you have to show that measures short of a publication ban won't be enough to address that risk. But that is as it should be, rather than [getting] an automatic ban without having to do any analysis or work."

Safayeni also rejects the argument that a blanket Section 648 ban is more efficient for the courts.

"That's not how we should be approaching the protection of constitutional principles like the open court principle," Safayeni says. "If we're going to take those principles seriously, that's going to take a commitment from the administration of justice to create the time and space to have those issues litigated."

All the more so in the criminal justice system, says Vibert Jack, the litigation director with the BC Civil Liberties Association, which intervened in the Coban case. "Public scrutiny of the criminal process helps to prevent state wrongdoing and promotes public trust in the system, so a mandatory publication ban just goes too far in undermining those values," he says, adding that Section 648 should be read narrowly and the open court principle should feature as part of that analysis.

"A mandatory ban can, by extension, undermine trial fairness because openness in the courts in the criminal justice system actually promotes fairness oftentimes, for example, by maximizing the chances that people will come forward with relevant information because they've heard about the case, and can reduce the risk of perjury," Jack says. "It can prevent state or court wrongdoing by placing the criminal justice process under scrutiny."

Nadon argues that in the Silva case, it's hard to view questions concerning the appropriateness of certain police techniques as negatively affecting the jury or the right to a fair trial.

"It will be remarkably positive, not only for the media but for the public and the accused and the Crown, in general, to finally have the state of the law clarified," he says.