La Presse inc. v. Quebec

La Presse inc. v. Quebec
Collection
Supreme Court Judgments
Date
2023-10-06
Neutral citation
2023 SCC 22
Case number
40175, 40223
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Quebec
Subjects
Criminal law
Notes
Case in Brief SCC Case Information: 40175, 40223
Decision Content
SUPREME COURT OF CANADA
Citation: La Presse inc. v. Quebec, 2023 SCC 22
Appeals Heard: May 16 and 17, 2023 Judgment Rendered: October 6, 2023 Dockets: 40175, 40223
Between:
La Presse inc. Appellant
and
His Majesty The King and Frédérick Silva Respondents
And Between:
Canadian Broadcasting Corporation, Global News, a division of Corus Television Limited Partnership, Postmedia Network Inc., CTV News, a division of Bell Media Inc., Glacier Media Inc., CityNews, a division of Rogers Media Inc., Globe and Mail Inc. and Torstar Corporation Appellants
and
His Majesty The King and Aydin Coban Respondents
- and -
British Columbia Civil Liberties Association Intervener
Coram: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 81)
Wagner C.J. (Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
La Presse inc. Appellant
v.
His Majesty The King and
Frédérick Silva Respondents
‑ and ‑
Canadian Broadcasting Corporation,
Global News, a division of Corus Television Limited Partnership,
Postmedia Network Inc.,
CTV News, a division of Bell Media Inc.,
Glacier Media Inc.,
CityNews, a division of Rogers Media Inc.,
Globe and Mail Inc. and
Torstar Corporation Appellants
v.
His Majesty The King and
Aydin Coban Respondents
and
British Columbia Civil Liberties Association Intervener
Indexed as: La Presse inc. v. Quebec
2023 SCC 22
File Nos.: 40175, 40223.
2023: May 16, 17; 2023: October 6.
Present: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the superior court of quebec
on appeal from the supreme court of british columbia
Criminal law — Publication bans — Matters dealt with in absence of jury — Whether automatic publication ban on information regarding portion of trial at which jury not present applies prior to empanelment of jury — If so, which matters covered by ban — Criminal Code, R.S.C. 1985, c. C‑46, ss. 645(5) , 648(1) .
S and C were charged with several criminal offences in unrelated cases. In both cases, numerous matters were dealt with before the empanelment of the jury, including a Garofoli application, an application for a stay of proceedings for abuse of process, and a constitutional challenge. Several media outlets applied for orders or declarations that would allow the publication of information from the hearings on those matters. The application judges in both cases dismissed the media applications, concluding that the automatic publication ban found in s. 648(1) of the Criminal Code that prohibits the publication of information about portions of a criminal trial at which the jury is not present applies not only after but also before the empanelment of the jury.
Held: The appeals should be dismissed.
The automatic publication ban in s. 648(1) of the Criminal Code 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) of the Criminal Code , which confers upon trial judges the jurisdiction to deal with certain matters before the empanelment of the jury. In S’s case, the Garofoli application and motion for a stay of proceedings clearly concerned the indictment and had to be dealt with by the trial judge. Therefore, it is only by virtue of s. 645(5) that these matters could be dealt with prior to the empanelment of the jury, and it follows that they were covered by s. 648(1). In C’s case, the media had applied for a declaration that s. 648(1) applies only after the jury has been empanelled. The dismissal of the application by the judge is consistent with the proper interpretation of s. 648(1).
The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning — context, purpose, and relevant legal norms. 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 and of the purpose of the provision. Proposed but abandoned amendments are of no assistance in identifying the meaning of legislation.
The context and purpose of s. 648(1) reveal its correct interpretation. With respect to context, to understand the operation of s. 648(1), one must read it in light of the numerous relevant provisions that followed its enactment, and most particularly s. 645(5). In this context, trial judges now have the flexibility to hear, before the empanelment of the jury, various matters that are deemed to be part of the trial. These are clearly dealt with in the absence of the jury and, as such, are automatically covered by s. 648(1).
With respect to purpose, by enacting s. 648(1) in 1972, Parliament intended to enhance trial fairness through the protection of two interconnected interests, which are best served when the trial proceeds only on information properly available to the jury. First, Parliament’s intent to protect the fundamental interest of the accused in being tried by jurors who are not exposed to, and biased by, the content of and rulings on matters heard in their absence is immediately apparent from the wording of the provision — which bans the publication of information regarding portions of the trial at which the jury is not present — and readily inferable from Hansard. Parliament aimed to shield the jury from information about any portion of the trial from which it was absent, so that its verdict is based only on the evidence found admissible in court. This objective is relevant with respect to both the existent jury and the jury yet to be empanelled.
Second, trial fairness under s. 648(1) is also concerned with the interest of both the accused and society in the efficiency of Canada’s system of trial by jury. This is revealed by Parliament’s choice to introduce an automatic publication ban that applies simply by operation of statute and thus does not require the intervention of a court. Parliament must have had delays and judicial resources in mind when it removed judicial discretion. By shielding information from publication, s. 648(1) gives courts the confidence, flexibility, and ability to hold hearings earlier in time, which can be expected to reduce delays and may also allow the parties to gain certainty about contested matters, leading to earlier resolution.
Section 648(1) applies before the jury is empanelled only when a judge is exercising jurisdiction traceable to s. 645(5) to deal with a matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn. The Court’s analysis 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. This framework looks to the following features: 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. To avoid uncertainty over what matters are covered by a publication ban under s. 648(1), it would be prudent for judges holding a hearing pursuant to s. 645(5) to announce that they are exercising their jurisdiction under that provision and to note that s. 648(1) automatically prohibits the publication of any information regarding that portion of the trial. It is also open to courts to fill any gap in relation to pre‑trial conferences through their rule‑making authority under ss. 482 and 482.1 of the Criminal Code , and judges retain inherent jurisdiction to impose discretionary publication bans in accordance with the Dagenais/Mentuck/Sherman principles.
Cases Cited
Overruled: R. v. Bebawi, 2019 QCCS 594; applied: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Litchfield, [1993] 4 S.C.R. 333; M. v. H., [1999] 2 S.C.R. 3; considered: R. v. Garofoli, [1990] 2 S.C.R. 1421; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150; referred to: R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 616; R. v. J.J., 2022 SCC 28; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; R. v. Malik, Bagri and Reyat, 2002 BCSC 80; R. v. Stobbe, 2011 MBQB 293, 277 Man. R. (2d) 65; R. v. Twitchell, 2010 ABQB 692, 509 A.R. 131; R. v. Farhan, 2000 CanLII 18876; R. v. Bissonnette, 2021 QCCS 3856, 74 C.R. (7th) 70; R. v. Cheung, 2000 ABQB 905, [2001] 3 W.W.R. 713; Canadian Broadcasting Corp. v. Millard, 2015 ONSC 6583, 338 C.C.C. (3d) 227; R. v. Emms, 2012 SCC 74, [2012] 3 S.C.R. 810; R. v. Ouellette, [1998] R.J.Q. 2842; R. v. Talon, 2006 QCCS 3031; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Sherman Estate v. Donovan, 2021 SCC 25; Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Chouhan, 2021 SCC 26; R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v. Church of Scientology (1997), 33 O.R. (3d) 65; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Wright, 2020 ONSC 7049, 472 C.R.R. (2d) 296; R. v. Stanley, 2018 SKQB 27; R. v. Sandham (2008), 248 C.C.C. (3d) 543; R. v. Regan (1997), 159 D.L.R. (4th) 350; R. v. Pickton, 2005 BCSC 836; R. v. Valentine (2009), 251 C.C.C. (3d) 120; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Curtis (1991), 66 C.C.C. (3d) 156; Duhamel v. The Queen, [1984] 2 S.C.R. 555; Morin v. The Queen (1890), 18 S.C.R. 407; R. v. Cliche, 2010 QCCA 408; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Brown (1997), 72 C.R.R. (2d) 312; R. v. Bernardo, [1995] O.J. No. 247 (QL), 1995 CarswellOnt 7200 (WL); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Steiner v. Toronto Star Ltd., [1956] O.R. 14; R. v. Evening Standard Co. Ld., [1954] 1 Q.B. 578; St. James’s Evening Post Case (1742), 2 Atk. 469, 26 E.R. 683; R. v. Jansen, [1976] 4 W.W.R. 277; Scott v. Scott, [1913] A.C. 417; R. v. Clement (1821), 4 B. & Ald. 218, 106 E.R. 918; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Haevischer, 2023 SCC 11; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. Breault, 2023 SCC 9; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Lalo, 2002 NSSC 21, 207 N.S.R. (2d) 203; R. v. Ross, [1995] O.J. No. 3180 (QL), 1995 CarswellOnt 3173 (WL); R. v. Chabot, [1980] 2 S.C.R. 985; Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Commanda, 2007 QCCA 947, [2008] 3 C.N.L.R. 311; R. v. S. (S.S.) (1999), 136 C.C.C. (3d) 477; R. v. Deol (1979), 20 A.R. 595.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 11(f) .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 482 , 482.1 , 486.4(3) , 517 , 539 , 542(2) , Part XVIII.1, 551.1 to 551.7, 625.1, 645(5), 647, 648.
Criminal Law Amendment Act, 1972, S.C. 1972, c. 13.
Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 133.
Criminal Rules of the Alberta Court of Justice, r. 4.2(7)(a).
Criminal Rules of the Supreme Court of British Columbia, SI/97‑140, r. 5.
Fair and Efficient Criminal Trials Act, S.C. 2011, c. 16, s. 4.
Interpretation Act , R.S.C. 1985, c. I‑21, s. 45(3) .
Protection of Privacy Act, S.C. 1973‑74, c. 50.
Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002, SI/2002‑46, rr. 39 to 44.
Supreme Court Act , R.S.C. 1985, c. S‑26, s. 40 .
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. I, 1st Sess., 33rd Parl., December 20, 1984, p. 1414.
Canada. House of Commons. House of Commons Debates, vol. 133, No. 143, 1st Sess., 35th Parl., December 13, 1994, p. 9010.
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 7, 4th Sess., 28th Parl., May 11, 1972, p. 7:26.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 8, 4th Sess., 28th Parl., June 1, 1972, p. 8:18.
Côté, Pierre‑André, et Mathieu Devinat. Interprétation des lois, 5e éd. Montréal: Thémis, 2021.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Hasan, Nader R. “Three Theories of ‘Principles of Fundamental Justice’” (2013), 63 S.C.L.R. (2d) 339.
Macdougall, Don. “Continuity of Judicial Rulings After a Mistrial” (2004), 15 C.R. (6th) 273.
Mewett, Alan W. “Criminal Law Revision in Canada” (1969), 7 Alta L. Rev. 272.
Mewett, Alan W. “The Criminal Law, 1867‑1967” (1967), 45 Can. Bar Rev. 726.
Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders. Toronto: Thomson Reuters, 2006 (loose‑leaf updated May 2023, release 1).
Salhany, R. E. Canadian Criminal Procedure, 5th ed. Aurora, Ont.: Canada Law Book, 1989.
Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales 2022, 29e éd. Montréal: Yvon Blais, 2022.
APPEAL from a decision of the Quebec Superior Court (David J.), 2022 QCCS 881, [2022] AZ‑51837472, [2022] J.Q. no 1780 (QL), 2022 CarswellQue 4621 (WL), dismissing a motion by La Presse inc. to lift orders prohibiting publication, broadcasting and transmission in relation to judgments on voir dires. Appeal dismissed.
APPEAL from a decision of the British Columbia Supreme Court (Devlin J.), 2022 BCSC 880, [2022] B.C.J. No. 1957 (QL), 2022 CarswellBC 2865 (WL), dismissing an application to have a publication ban clarified or declared applicable only after the jury has been empaneled. Appeal dismissed.
Marc‑André Nadon and Axel Fournier, for the appellant La Presse inc.
Daniel W. Burnett, K.C., and Daniel H. Coles, for the appellants the Canadian Broadcasting Corporation, Global News, a division of Corus Television Limited Partnership, Postmedia Network Inc., CTV News, a division of Bell Media Inc., Glacier Media Inc., CityNews, a division of Rogers Media Inc., Globe and Mail Inc. and Torstar Corporation.
Nicolas Abran and Nathalie Kléber, for the respondent His Majesty The King (40175).
Lesley A. Ruzicka, K.C., and Louise Kenworthy, K.C., for the respondent His Majesty The King (40223).
Alex Savoie, for the respondent Frédérick Silva.
Trevor B. Martin and Joseph J. Saulnier, for the respondent Aydin Coban.
Patrick Williams and Victoria Tortora, for the intervener.
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
[1] In 1972, Parliament enacted an automatic publication ban that prohibits the publication of information about portions of a criminal trial at which the jury is not present. Today, this ban is found in s. 648(1) of the Criminal Code , R.S.C. 1985, c. C‑46 :
648 (1) After permission to separate is given to members of a jury under subsection 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.
[2] The question before this Court is whether and, if so, how this 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 empanelment of the jury:
(5) 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.
[3] In the cases under appeal, numerous matters were dealt with before the empanelment of the jury. In Mr. Silva’s case, these included a Garofoli application and an application for a stay of proceedings for abuse of process. In Mr. Coban’s case, these included a constitutional challenge to another publication ban under s. 486.4(3) of the Criminal Code . Certain media outlets (the appellants before this Court) applied for orders or declarations that would allow the publication of information from the hearings on those matters. The judges in both cases dismissed the media applications, concluding that s. 648(1) applies before the empanelment of the jury. Information from the hearings could not be published until the juries retired for deliberations or were dismissed.
[4] This Court has addressed s. 648(1) in two cases, although neither of them resolves the interpretive issue in these appeals. In R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 616, footnote 1, Justice Abella noted the diverging approaches to this issue. In R. v. J.J., 2022 SCC 28, para. 283, Justice Brown, dissenting in part, treated s. 648(1) as applying before jury selection to information that would ordinarily be dealt with in the absence of a jury, though he provided little analysis. These appeals call upon this Court to resolve this interpretive issue in light of the provision’s text, context, and purpose — the context including the open court principle and the right to a fair trial.
[5] The open court principle has been recognized by this Court as fundamental throughout the entirety of criminal proceedings, that is, both at the “pre-trial” or pre‑empanelment stage and during the trial (Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 27, citing Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at pp. 183 and 186). I pause at this point to note that the term “pre-trial” in English, and the terms “avant le procès”, “préalable au procès”, and “antérieur au procès” in French, have at times been used in the jurisprudence to refer to the period before a jury has been empanelled (see, e.g., R. v. Malik, Bagri and Reyat, 2002 BCSC 80; R. v. Stobbe, 2011 MBQB 293, 277 Man. R. (2d) 65; R. v. Twitchell, 2010 ABQB 692, 509 A.R. 131; La Presse inc. v. Silva, 2022 QCCS 881; R. v. Bebawi, 2019 QCCS 594; R. v. Farhan, 2000 CanLII 18876 (Que. Sup. Ct.); and R. v. Bissonnette, 2021 QCCS 3856, 74 C.R. (7th) 70). Other times, judges have been careful to refer to this period as “pre-jury-selection” or “before the jury is empanelled” in English, and “avant la sélection du jury”, “préalable à la sélection du jury” or “avant la constitution du jury” in French (see, e.g., R. v. Cheung, 2000 ABQB 905, [2001] 3 W.W.R. 713; Canadian Broadcasting Corp. v. Millard, 2015 ONSC 6583, 338 C.C.C. (3d) 227; R. v. Emms, 2012 SCC 74, [2012] 3 S.C.R. 810; R. v. Ouellette, [1998] R.J.Q. 2842 (Sup. Ct.); and R. v. Talon, 2006 QCCS 3031). The latter expressions are more accurate, but I will occasionally use the term “pre-trial” when I refer to others’ reasoning.
[6] Publication bans like the one imposed by s. 648(1) are limitations on court openness that can protect the right of the accused to, and society’s interest in, a fair trial (see, e.g., Dagenais v. Canadian Broadcasting Corp., [1991] 3 S.C.R. 835, p. 879). However, this Court has recognized that the absence of a publication ban can also advance trial fairness: for example, by preventing perjury, “prevent[ing] state and/or court wrongdoing by placing the criminal justice process under public scrutiny”, and encouraging individuals to come forward with relevant new information after hearing about a case (p. 883).
[7] 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” (Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 65 (emphasis in the original)). Needless to say, the media play a crucial role in making this possible (Sherman Estate v. Donovan, 2021 SCC 25, at para. 30, citing Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1339-40). 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 (R. v. Chouhan, 2021 SCC 26, at para. 12, citing R. v. Sherratt, [1991] 1 S.C.R. 509, at pp. 523-24; see also R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 55, citing Sherratt, at pp. 523-25, and R. v. Church of Scientology (1997), 33 O.R. (3d) 65 (C.A.), at pp. 118-20).
[8] 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.
[9] I conclude 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. 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) 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.
II. Judgments Below
A. La Presse inc. v. Silva, 2022 QCCS 881
[10] The accused, Mr. Silva, was charged with four counts of murder and one count of attempted murder. During pre-empanelment proceedings, an application for a stay of proceedings and a Garofoli application were brought in relation to the police techniques used to locate and arrest the accused. David J. dismissed both applications and made orders pursuant to s. 648(1) prohibiting the publication and broadcasting of his decisions. (It is anomalous that these “orders” were made given that, when s. 648(1) applies, it applies automatically, by operation of statute.)
[11] La Presse inc. (an appellant in this Court) brought an application to lift the publication bans, relying on Bebawi, for the view that s. 648(1) applies only after the jury is empanelled. David J. dismissed the application on the basis that, on his interpretation, s. 648(1) applies both before and after the jury is empanelled. In the alternative, and regardless of s. 648(1)’s temporal scope, David J. would have upheld the publication bans under the test set out in Dagenais, in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, and in Sherman.
[12] David J. listed four reasons for his interpretation of s. 648(1). First, the interpretation of s. 648(1) as applying both before and after the jury is empanelled best aligns with the purpose of this provision, namely to ensure that “the pretrial proceedings do not contaminate the fairness of the later trial” (para. 26 (CanLII), quoting Millard, at para. 25). Second, the current practice in criminal proceedings is to deal with many applications before the jury is empanelled. Third, s. 648(1) must be read together with other Criminal Code provisions establishing publication bans for matters dealt with before the jury is empanelled. Fourth, the temporary nature of s. 648(1) bans strikes a fair balance between the protection of freedom of information and the protection of trial fairness.
[13] Following a guilty verdict on the last count against the accused, the orders made under s. 648(1) were lifted.
B. R. v. Coban, 2022 BCSC 880
[14] The accused, Mr. Coban, was charged with several offences relating to child pornography, extortion, child luring, and harassment (see 2022 BCSC 1810). The underlying facts drew national and international attention (2022 BCSC 14, 420 C.C.C. (3d) 114; A.F., CBC et al., para. 8). Numerous pre-empanelment proceedings occurred over a 15-month period, including a constitutional challenge to s. 486.4(3) of the Criminal Code (see 2022 BCSC 14; A.F., CBC et al., at para. 9). The judge was of the view that the automatic publication ban found in s. 648(1) applied to the information relating to the constitutional challenge.
[15] The Canadian Broadcasting Corporation and other media outlets (appellants in this Court, to which I will refer to collectively as “CBC”) applied for a declaration that the s. 648(1) ban applies only after the jury is empanelled and therefore did not prohibit the publication of information about the constitutional challenge. In her reasons, the judge followed the Supreme Court of British Columbia’s decision in Malik, in which it had been held that s. 648(1) extends to “pre-trial proceedings that take place pursuant to s. 645(5), before a jury has been empanelled”, and she dismissed the application (2022 BCSC 880, at para. 6 (CanLII), citing Malik).
III. Jurisdiction and Mootness
[16] Both appeals reached this Court, with leave, directly from the judgment of a superior court by virtue of s. 40 of the Supreme Court Act , R.S.C. 1985, c. S-26 (see Dagenais, at pp. 861-62 and 872).
[17] Both appeals are also moot because, at this point, neither presents a live controversy. The trials have concluded and s. 648(1) no longer prohibits the publication of any information from them. This Court was aware of the possibility of mootness when it granted leave to appeal.
[18] The considerations in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, suggest that this Court should exercise its discretion to hear and decide the appeals, even though they are moot (see also Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 16-22). The parties have provided a clear adversarial context, presenting their arguments capably and with dedication. The operation of s. 648(1) results in automatic publication bans that are often of brief duration relative to the typical timeline of an appeal to this Court, and the issue of its proper interpretation is one that is “capable of repetition, yet evasive of review” (Borowski, at p. 364). Given the judicial division on this issue across the country without the possibility of appellate guidance other than from this Court, the concern for judicial economy justifies resolving the issue, especially considering the importance of the rights and interests in play. Lastly, resolution of this issue calls for straightforward statutory interpretation, a task well within the institutional competence of the Court.
IV. Issues in These Appeals
[19] Trial courts are divided on the interpretation of s. 648(1), as previously noted by this Court in Brassington, at para. 4, fn. 1. Some courts have held that s. 648(1) applies only after the jury is empanelled (Cheung; Twitchell; Bebawi; R. v. Wright, 2020 ONSC 7049, 472 C.R.R. (2d) 296). Others have held that s. 648(1) also applies before the jury is empanelled. Of those holding that s. 648(1) applies to matters dealt with before the jury is empanelled, some have found that it applies to all information about all such matters (R. v. Stanley, 2018 SKQB 27). Others have found that it applies only to certain kinds of hearings (R. v. Sandham (2008), 248 C.C.C. (3d) 543 (Ont. S.C.J.); Stobbe) or have read down the phrase “no information” such that only information that would be prejudicial to the accused is captured by s. 648(1) when it applies before the jury is empanelled (R. v. Regan (1997), 159 D.L.R. (4th) 350 (N.S.S.C.); Malik; R. v. Pickton, 2005 BCSC 836; R. v. Valentine (2009), 251 C.C.C. (3d) 120 (Ont. S.C.J.)).
[20] This judicial divide presents two issues:
(a) Does s. 648(1) apply before the jury is empanelled?
(b) If s. 648(1) applies before the jury is empanelled, what hearings and what information are captured by a publication ban under this section?
[21] Interpreting s. 648(1) under the modern approach to statutory interpretation reveals that the provision applies before the jury is empanelled to prohibit the publication of any information from hearings held pursuant to the jurisdiction provided under s. 645(5).
V. Analysis
A. Principles of Statutory Interpretation
[22] It is well established that, under the modern approach to statutory interpretation, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Confusion as to what this might entail in practice endures, despite the apparent simplicity of Driedger’s influential words. For the sake of clarity, I will restate two principles that seem to be at the heart of this confusion.
[23] First, the plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning — context, purpose, and relevant legal norms (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31). The apparent clarity of the words taken separately does not suffice because they “may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation” (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 10).
[24] Second, a provision is only “ambiguous” in the sense contemplated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, if its words can reasonably be interpreted in more than one way after due consideration of the context in which they appear and of the purpose of the provision (paras. 29-30). 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 Driedger (ibid.).
[25] With these principles in mind, I turn now to the interpretive exercise.
B. Text
[26] For ease of reference, I will reproduce the text of s. 648(1) again:
648 (1) After permission to separate is given to members of a jury under subsection 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.
[27] According to the appellants, the opening words of s. 648(1), “[a]fter permission to separate is given to members of a jury”, represent a “condition precedent” that restricts the scope of the prohibition imposed by this provision. More specifically, CBC argues that to interpret s. 648(1) as applying before the jury is empanelled would amount to “striking words of limitation from a statutory provision” (A.F., CBC et al., at para. 77 (emphasis added)). La Presse, for its part, argues that such an interpretation would require adding words (i.e. “before or”) to the provision (A.F., La Presse, para. 50).
[28] This interpretation may seem plausible when the opening words of s. 648(1) are read in isolation. But look just ahead to the words that create the prohibition: “. . . no information regarding any portion of the trial at which the jury is not present shall be published . . . .” These additional words already begin to pull one away from the interpretation urged by the appellants.
[29] In my view, the opening phrase “[a]fter permission to separate is given to members of a jury” simply describes the time at which, when it was enacted in 1972, the prohibition would have had any practical value. In 1972, because there were no pre‑empanelment proceedings, the only time when jurors could have received information about a portion of the trial from which they were absent was when they were permitted to separate.
[30] In any case, to the extent that the wording of the provision is plain, an interpretation based on plain meaning alone is not determinative and “cannot prevail if it is at odds with the purpose and context” (Alex, at para. 33). Here, the context and purpose reveal the alternative, and correct, interpretation.
C. Context
[31] Section 648 was introduced into the Criminal Code alongside s. 647 by the Criminal Law Amendment Act, 1972, S.C. 1972, c. 13. Section 647 expanded the trial judge’s ability to permit the jury to separate. Before the 1972 amendment, the judge could not permit the jury to separate where the accused was charged with an offence punishable by death; in such cases, when the jurors were excluded from the courtroom, they were sequestered under the charge of an officer of the court. After the 1972 amendments, the judge could permit the jury to separate no matter the charged offence. For the first time, jurors were able to go home during portions of capital offence trials. Given that such trials were more likely to attract heightened media scrutiny, s. 648 can be seen as enabling this expanded ability for the jury to separate.
[32] The general understanding is that in 1972, the common law precluded a trial judge from making evidentiary rulings until after a jury was empanelled (R. v. Curtis (1991), 66 C.C.C. (3d) 156 (Ont. C.J. (Gen. Div.)), at pp. 157-58; House of Commons Debates, vol. I, 1st Sess., 33rd Parl., December 20, 1984, at p. 1414 (Parliamentary Secretary to Minister of Justice, at second reading of Bill C-18); Duhamel v. The Queen, [1984] 2 S.C.R. 555, at p. 560). This appears to be a corollary flowing from three premises: (1) the common law principle that a trial did not begin, and a judge was not seized with the trial, until the accused was placed in the charge of the jury (Morin v. The Queen (1890), 18 S.C.R. 407, at p. 413); (2) the principle that “[evidentiary] rulings by one judge do not bind another judge who may later deal with the same matter” (Curtis, at p. 158 (emphasis in original), citing Duhamel; see also D. Macdougall, “Continuity of Judicial Rulings After a Mistrial” (2004), 15 C.R. (6th) 273; R. v. Cliche, 2010 QCCA 408); and (3) the fact that an evidentiary ruling made outside of trial could be shielded from review due to the rule against collateral attack (see, e.g., R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Garofoli, [1990] 2 S.C.R. 1421).
[33] Judges have traced the increasing complexity of criminal trials to the introduction, in 1974, of provisions relating to the admissibility of wiretap evidence (see Curtis, at pp. 157-58; Protection of Privacy Act, S.C. 1973-74, c. 50). The volume and scope of “pre-trial” applications grew further with the proclamation of the Charter (Malik, at para. 21 (CanLII)). Juries were sent home for days or weeks during the hearing of applications prior to the presentation of evidence at trial. Section 645(5) was enacted in response to the evolution of criminal trials and the increasing burdens on the justice system (see Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 133 (adding s. 645(5) to the Criminal Code ); Malik, at para. 21; Cliche, at paras. 36‑37 (CanLII)).
[34] Section 645(5) allowed the trial judge to hear and adjudicate such applications before the jury was empanelled. Concerns expressed in the parliamentary debates included ensuring respect for the jurors’ time and comfort as well as reducing the costs and resources needed to keep a jury sequestered (see House of Commons Debates, at pp. 1391 and 1414).
[35] Further flexibility was introduced in 2011 with the enactment of the Fair and Efficient Criminal Trials Act, S.C. 2011, c. 16. These provisions, as amended, create the role of a case management judge, who, “before the stage of the presentation of the evidence on the merits . . . exercises the powers that a trial judge has before that stage” (Criminal Code , s. 551.3(1) ). When the case management judge adjudicates in relation to matters listed in s. 551.3(1)(g) (evidence, Charter applications, expert witnesses, severance of counts, or separation of trials), the judge’s decision is normally “binding on the parties for the remainder of the trial” (s. 551.3(4)).
[36] The result is that in a modern trial, the bulk of so-called “pre-trial” applications are dealt with by the trial judge or case management judge before the jury is empanelled.
[37] Section 648(1) operates alongside numerous other provisions establishing publication bans, particularly ss. 517(1), 539(1) and 542(2), and the inherent jurisdiction of a judge to impose a discretionary ban under the Dagenais/Mentuck/Sherman framework. Section 517 allows a judge to prohibit the publication of “the evidence taken, the information given or the representations made and the reasons, if any, given or to be given” at a bail hearing. Section 539 allows a judge to prohibit the publication of “the evidence taken” at the preliminary inquiry. The bans in ss. 517 and 539 are mandatory when requested by the accused but discretionary when requested by the Crown. Section 542(2) creates an automatic publication ban with respect to “any admission or confession [that] was tendered in evidence at a preliminary inquiry”. Discretionary bans are those that may be ordered at the discretion of the court; mandatory bans are those that must be imposed at the request of a particular party, and automatic bans are bans that apply by operation of statute. See generally J. Rossiter, Law of Publication Bans, Private Hearings and Sealing Orders (loose-leaf), at §§ 1:7 and 4:48-4:58.
[38] I note that one of the decisions interpreting s. 648(1) as applying only after the jury is empanelled — Bebawi — relied on the principle set out in Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150, that “the plain meaning of a provision [cannot] be contorted to make its scheme more coherent” (para. 101). In Orphan Well, a majority of this Court was of the view that the context of a provision in federal bankruptcy legislation confirmed the interpretation flowing from the plain meaning of its text. The majority rejected an alternate interpretation which, even if it might have enhanced the coherence of the scheme, would have impermissibly been at odds with the plain meaning. Here, the context of s. 648(1) does not confirm the interpretation that might arise from an initial impression of the text.
[39] In Bebawi, the judge’s undue reliance on the statement from Orphan Well quoted above led him to give insufficient consideration to the context of s. 648(1), which is a necessary part of the analysis to determine its true meaning. That statement does not necessitate prioritizing the