SCC rules s. 648 Criminal Code pub bans apply to many pretrial proceedings before jury selected

By Cristin Schmitz

Last Updated: Friday, October 06, 2023 @ 4:36 PM

Law360 Canada (October 6, 2023, 10:37 AM EDT) -- The Supreme Court of Canada has ruled 7-0 that automatic publication bans under s. 648(1) of the Criminal Code apply to many criminal proceedings that take place before a jury is empanelled, and in particular only to those where a judge is exercising jurisdiction traceable to s. 645(5) of the Criminal Code, that is dealing with matters that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

In a ruling that settles conflicting case law and disapproves what had been the statutory interpretations adopted by trial courts in some provinces, Chief Justice Richard Wagner dismissed companion appeals by La Presse and a consortium of CBC and other major media companies of separate rulings below by Quebec and British Columbia first-instance judges who declined to lift mandatory automatic publication bans under s. 648(1) in various pretrial proceedings, including in a constitutional challenge to another Criminal Code publication ban provision (s. 486.4(3)): La Presse v. Silva; CBC v. Coban, 2023 SCC 22.

In the B.C. case, an automatic publication ban was imposed on some 15 months of pretrial proceedings in a high profile criminal case involving charges of luring, extortion, criminal harassment and child pornography offences — including the court’s reasoning in the successful pretrial constitutional challenge — despite the fact a jury had not yet been selected.

Chief Justice Richard Wagner

Chief Justice Richard Wagner

In the Quebec case, a publication ban was imposed in a case involving murder and attempted murder charges which featured multiple pretrial proceedings before a jury was selected, including motions for a stay of proceedings for abuse of process and a Garofoli motion to exclude evidence.

Media applied for orders or declarations that would allow the publication of information from the hearings on those pretrial matters. However, the judges in both cases dismissed the applications, concluding that s. 648(1) does apply before the empanellment of the jury and therefore information from the hearings could not be published until the juries retired to deliberate or were dismissed.

The appellant media were granted leave to appeal directly to the Supreme Court of Canada.

In both cases, the issue was whether the automatic publication ban in s. 648(1) applies both before and after the jury is selected — as a number of trial courts have ruled across the country — or does it apply only once the jury is selected, as other trial courts have ruled.

“The question before this court is whether and, if so, how this [s. 648(1)] automatic publication ban applies before the jury is empanelled, given the jurisdiction conferred by s. 645(5) of the Criminal Code upon trial judges, since 1985, to deal with certain matters before the empanellment of the jury,” explained Chief Justice Wagner.

Subsection 645(5) Criminal Code states that “in any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.”

Subsection s. 648 (1) of the Criminal Code states: “After permission to separate is given to members of a jury under s. 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.”

The appellant media urged that in the face of such “clear and unambiguous language” in s. 648(1), the automatic ban applies only after a jury has been selected and that it is wrong to interpret s. 648 as drastically impairing the ability of Canadian media to report on pretrial proceedings in criminal matters by prohibiting publication, irrespective of whether a jury has been empanelled.

Defence counsel and prosecutors argued, to the contrary, that s. 648’s “automatic statutory publication deferral” applies to pretrial proceedings that occur prior to jury empanellment, including pretrial conferences.

“Section 648(1) must be interpreted in the context of the Criminal Code as a whole, and in particular, as part of a broader scheme of publication deferrals that protect the rights to a jury trial, a fair trial, and a trial without unreasonable delay. It must also be interpreted in the context of s. 645(5) of the Code, which permits a judge to hear applications that would ordinarily occur after jury empanellment, before the jury is empanelled,” the B.C. Crown urged.

For the Supreme Court, Chief Justice Wagner held that “s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5). This conclusion follows from an understanding of the text of s. 648(1) when considered in its full context and in light of Parliament’s purpose.”

The Supreme Court stipulated that the s. 648(1) pub ban applies before the jury is empanelled only when a judge is exercising jurisdiction traceable to s. 645(5) to deal with matters that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

Hallmarks for determining which matters would be covered by the prohibition on publication in s. 648(1) include whether the matter concerns the indictment and whether, but for the jurisdiction of case management judges, the matter would have to be dealt with by the trial judge.

Counsel told Law360 Canada the top court’s decision not only clarifies that s. 648(1) automatically imposes a publication ban in many (but not all) pretrial proceedings in criminal jury cases, the judgment also provides guidance to help lawyers and judges determine when a publication ban would not be automatic but rather discretionary (e.g. for case management conferences) —thereby leaving the door open to litigation on that issue.

Notably, Chief Justice Wagner also elaborates general principles of statutory interpretation, including that the “plain meaning” of a provision’s text is not itself determinative but rather must be tested against other indicators of legislative meaning, i.e. context, purpose and relevant legal norms.

The factum of the appellant media consortium indicates that before the Supreme Court weighed in on Oct. 6 there were internally clashing lines of authority in Ontario and Quebec, while trial courts in Nova Scotia, Manitoba and Saskatchewan had agreed with their B.C. counterparts that automatic publication bans apply to pretrial proceedings before jury selection. In Alberta, trial courts interpreted s. 648(1) as not applying until a jury is empanelled.

Trevor Martin, Martland & Saulnier

Trevor Martin, Martland & Saulnier

The ruling “won’t make much of a difference in terms of how criminal cases are conducted [here] because the prevailing law in British Columbia was that this publication ban did apply before jury empanellment,” said Trevor Martin of Vancouver’s Martland & Saulnier. “Things will change in other provinces, especially Alberta, where it had been interpreted the other way,” he predicted.

Martin, who with Joe Saulnier of Martland & Saulnier represented the successful B.C. respondent Ayden Coban, highlighted Chief Justice Wagner’s comments in paras. 23 and 24 about the principles of statutory interpretation.

The chief justice wrote that the “apparent clarity” of the relevant words in the provision, taken separately, does not suffice to interpret their meaning because those words may in fact prove to be “ambiguous” once they are considered in context. A provision is only ambiguous “if its words can reasonably be interpreted in more than one way after due consideration of the context in which they appear,” he explained. “This is to say that there is a ‘real ambiguity – one that calls for the use of external interpretive aids like the principle of strict construction of penal laws or the presumption of conformity with the Canadian Charter of Rights and Freedoms – only if differing readings of the same provision cannot be decisively resolved through the contextual and purposive approach set out by” Elmer Driedger’s Construction of Statutes.

“I don’t think this is new,” Martin remarked. “But I think [the judgment] clarifies concepts that have been percolating in the law of statutory interpretation for a while, basically saying that the plain meaning of the text is not determinative, and even if there is an apparent, clear meaning just by looking at the words in the statute, you have to consider the context of the provision and its purpose before deciding what the words actually mean.”

Daniel Burnett, Owen Bird

Daniel Burnett, Owen Bird

Daniel Burnett of Vancouver’s Owen Bird, who with Daniel Coles represented the media coalition in the B.C. case, told Law360 Canada the Supreme Court has resolved “a decades-long conflict in rulings across Canada on whether the ban applies before jury selection.”

“It means an automatic ban on a great many hearings in criminal cases before the jury is selected, which is an unfortunate blow to openness,” commented Burnett. “I’ll be very interested to see how statutory interpretation scholars react, particularly to the court’s reasoning for basically overriding the opening words” in s. 648(1).

Burnett pointed out that the top court was “careful to say” that it is not in every hearing that occurs before a jury is selected that an automatic publication ban will apply.

“I think it will be a live question mark in every hearing that is not directly about the criminal charge, or the evidence in a criminal case,” he predicted, citing by way of example a pretrial hearing on a motion for public funding by the defence — a matter that might be of considerable public interest.

Even though such a proceeding “doesn't go to the evidence and does’t really go to the charge, apart from the charge being part of the context,” there could be a debate over whether an automatic ban applies, he suggested.

Marc-André Nadon of Prévost Fortin D’Aoust in Boisbriand, Que., who with Axel Fournier represented La Presse in its appeal from the Quebec court below, said, on his client’s behalf, “La Presse will continue to defend freedom of expression and of opinion, freedom of the press, as well as the public’s right to information and the open court principle.”

“We have carefully read the court’s decision,” Nadon said. “Although we are disappointed, as we feel that the modern approach to statutory interpretation combined with Hansard should have lead the court to conclude that s. 648(1) only applies after jury empanellment, La Presse accepts and respects the court’s rulings and reasons.”

Marc-André Nadon, Prévost Fortin D’Aoust

Marc-André Nadon, Prévost Fortin D’Aoust

“At least, from now on, the controversy surrounding the interpretation of this section is permanently resolved for the benefit of all Canadians and professionals involved in the judicial system,” Nadon remarked.

Counsel for the B.C. Crown were not available to comment before press time.

However, the respondent Quebec Crown said the court’s interpretation “does not have the effect of broadening the scope of this publication ban, which is limited to questions which would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.”

“The interpretation favored by the Supreme Court takes the overall context and the Parliament’s purpose into account,” says a statement from the Director of Criminal and Penal Prosecutions of Quebec. “The evolution of criminal procedure implies that several questions which would normally or necessarily be the subject of a decision in the absence of the jury can now be decided not only after, but also before the empanellment of the jury. However, the accused's right to an impartial jury would be seriously compromised if potential jurors could be exposed to information about matters dealt with in their absence. The jury’s verdict must be based exclusively on the evidence presented to it, that is, the evidence deemed admissible by the court.”

The office of the director of public criminal prosecutions said the Supreme Court’s decision also preserves the effectiveness of the jury trial system. “Judges can continue to decide certain issues prior the empanellment of the jury without fear that potential jurors may be exposed to this information. Moreover, the confidentiality of matters covered by the publication ban imposed by section 648(1) of the Criminal Code is automatically preserved, without the need to seek discretionary publication bans (as per Dagenais, Mentuck and Sherman) and thus add additional pressure on judicial resources.”

The Director of Criminal and Penal Prosecutions of Quebec said it “welcomes the initiative of the Supreme Court to propose a procedure to follow by judges holding a hearing under s. 645(5) of the Criminal Code, to avoid any uncertainty. ... This procedure is likely to clarify the scope of the publication ban and ensure compliance.”

The public prosecutor said it is satisfied with the decision. “It clarifies the state of the law and maintains a fair balance between the open court principle and the right of the accused to a fair trial. This decision is also in accordance with theJordan[undue delay] concerns, since it promotes the efficiency of jury trials and the proper expenditure of judicial resources.”

In a statement, the intervener British Columbia Civil Liberties Association said “BCCLA is pleased that the court explicitly recognized that ‘there is no irreconcilable conflict between the open court principle and trial fairness.’ As a result, the court came to a decision that allows for more openness than those of the lower courts.”

“Far from being in conflict, trial fairness and freedom of the press go hand in hand to ensure a properly functioning criminal law process,” said Vibert Jack, the BCCLA’s litigation director. “While the open court principle must yield to the right to a fair trial on occasion, interpreting s. 648(1) to apply universally can impair trial fairness in many cases. Public scrutiny of the criminal process helps prevent state wrongdoing and promotes public trust in the system. Statutory publication bans should be interpreted narrowly in order to best protect all of the interests at play.”

In a judgment that applies the principles of statutory interpretation to s. 648(1) of the Code, Chief Justice Wagner found that there was no ambiguity in the provision and that “all indicators of legislative meaning – text, context and purpose — admit of only one interpretation ... that it applies not only after the jury is empanelled but also before the jury is empanelled with respect to matters dealt with pursuant to s. 645(5).”

“Said another way,” the chief justice added, “if a judge would traditionally have had jurisdiction to hear a matter before the jury was empanelled without having to rely on s. 645(5), then that matter is not within the scope of s. 648(1).”

The chief justice acknowledged that interpreting s. 648(1) as applicable before the jury is empanelled — but only in some matters — “could give rise to uncertainty over what matters are covered by the publication ban.”

In giving “some guidance to mitigate any uncertainty” about the pre-empanellment scope of s. 648(1), the chief justice advised that for “the practical effectiveness and clarity of the publication ban itself, and to avoid potential barriers to prosecution for violating the ban, it would ... be prudent for judges holding a hearing pursuant to s.645(5) to announce that they are exercising their jurisdiction under that section and to note that s.648(1) automatically prohibits the publication of any information regarding that portion of the trial.”

While the Supreme Court did not provide a comprehensive list of matters that would be captured or excluded by s. 648(1), Chief Justice Wagner noted, “just as a descriptive observation, that most kinds of hearings taking place before a jury is empanelled will be covered by this prohibition. For example, there is no dispute that evidentiary voir dire would be covered.”

There are other kinds of hearings, however, that have never been required to take place at trial, he said. “These would not be covered by the prohibition found in s. 648(1).”

The chief justice said the analysis the Supreme Court set out in R. v. Litchfield, [1993] 4 S.C.R. 333, “provides a useful framework for assessing whether a matter is being dealt with by virtue of s. 645(5) or whether it could always have been dealt with, even in the absence of s. 645(5), before the jury was empanelled.”

Chief Justice Wagner also said that s. 648(1) would apply to information from a pretrial conference only when the pretrial conference judge exercises jurisdiction ultimately rooted in s. 645(5). “It is of course open to courts to fill any gap in relation to pretrial conferences through their rule-making authority under ss. 482 and 482.1” of the Criminal Code, he pointed out.

The Quebec Superior Court, for example, has made it a rule that prehearing conferences are subject to a publication ban. Moreover, “judges retain inherent jurisdiction to impose discretionary publication bans in accordance with the Dagenais/Mentuck/Sherman principles,” the chief justice said.

He remarked that there is no irreconcilable conflict between the open court principle and trial fairness. “They both serve to instill public confidence in the justice system. The public can understand the work of the courts, and thus come to trust the judicial process and its outcomes, only if informed of ‘what a judge decides’ and ‘why the particular decision is made,’ ” he explained. “The protection of fair trial interests, such as the right to an independent, impartial, and representative jury, is also essential to public confidence in the administration of justice,” he remarked. “Here, Parliament has chosen to impose a temporary publication ban for the purposes of shielding the jury from information it has never been permitted to consider and promoting efficient trials.”

Chief Justice Wagner reasoned that his conclusion that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5) “follows from an understanding of the text of s. 648(1) when considered in its full context and in light of Parliament’s purpose.”

He added that “this interpretation does not expand the coverage of the publication ban: only matters that were captured by the ban prior to the enactment of s. 645(5) [in 1985] continue to be captured by it today. This interpretation has not ‘evolved’ or ‘changed’ in a way that departs from any previous meaning held by s. 648(1). The context of modern trials simply reveals s. 648(1)’s full temporal scope.”

Both appeals before the Supreme Court were moot because the trials ended and s. 648(1) no longer prohibits the publication of any information from them.

Photo of Chief Justice Richard Wagner: Supreme Court of Canada Collection

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