Publication Bans and Juries: La Presse inc v Quebec
In La Presse inc v Quebec, 2023 SCC 22 [La Presse], the Supreme Court of Canada (“SCC”) determined that publication bans established in s 648(1) of the Criminal Code, RSC 1985 c C-46 (“Code”) apply automatically to judgements rendered prior to jury empanelment.
S 648(1) of the Code prescribes an automatic publication ban on information regarding any portion of a criminal trial at which the jury is not present. Relatedly, s 645(5) of the Code confers jurisdiction on trial judges to “deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury.” These two provisions intersect when media outlets apply to publish information on hearings taking place before jury empanelment.
To render a judgment on this issue, the SCC heard two appeals together: R v Coban, 2022 BCSC 880, and La Presse inc. c Silva, 2022 QCCS 881. In both cases, numerous matters were dealt with before the empanelment of the jury, such as a Garofoli application, an application for stay of proceedings due to abuse of process, and a constitutional challenge. Certain media outlets such as La Presse Inc. applied to publish information on these hearings, but these applications were dismissed by judges in both cases who concluded that s 648(1) applies before jury empanelment. They ruled that information from the hearings could not be published until the juries retired or were dismissed.
Both appeals are directly from judgments of a superior court. As per Dagenais v Canadian Broadcasting Corp.,  3 SCR 835, which interprets s 40 of the Supreme Court Act, the SCC may grant leave to applications dealing with publication bans since such orders can be seen as a final judgment in a provincial court (La Presse, para 16).
Notably, since orders made under s 648(1) are lifted once the jury retires for deliberations or is dismissed, both appeals are also moot. The SCC acknowledges this, but recognizes its jurisdiction to exercise discretion in hearing moot cases that provide interpretational clarity for courts across the country (La Presse, para 18).
R v Coban: Quebec Superior Court
R v Coban was first explored in an appeal watch article by my managing editor. Silva was charged with four counts of murder and one count of attempted murder. During pre-empanelment proceedings, his counsel filed for a stay of proceedings and a Garofoli application against police conduct in locating and arresting the accused. The trial judge dismissed both applications and issued an order for a ban on publication of his decision pursuant to s 648(1) (La Presse, para 10).
Appellant La Presse brought an application to lift the publication bans, arguing that the impugned section applies only after the jury is empanelled (La Presse, para 11). The trial judge dismissed these arguments, listing four reasons for his interpretation of s 648(1) as applying before jury empanelment: 1) such reading is best aligned with the interpretation of the provision as ensuring trail fairness; 2) the current practice in criminal proceedings is to deal with many applications after jury empanelment; 3) the provision must be read in harmony with other sections in the Code establishing publication bans for matters dealt with before the jury is empanelled; and 4) given that the orders made under the provision lift after the jury retires or is dismissed, its temporary nature strikes a fair balance between freedom of information and trial fairness (La Presse, para 12).
La Presse inc. c. Silva: British Columbia Superior Court
Coban was charged with several offenses relating to child pornography, extortion, child luring, and harassment which brought national and international attention. Over a 15-month period with various pre-empanelment proceedings such as a constitutional challenge, the trial judge ordered a ban on publication of his decisions as provided for by s 648(1) (La Presse, para 14).
The Canadian Broadcasting Corporation – another appellant to the SCC – similarly applied to lift the ban, arguing the provision applies only after the jury is empanelled and thus does not prohibit the publication of information on the constitutional challenge (La Presse, para 15). The trial judge dismissed these applications, finding that the impugned section extends to pre-empanelment proceedings taking place pursuant to s 645(5) (La Presse, para 15).
Issue on Appeal
Does an automatic publication ban apply before the jury is empanelled? If so, what hearings and information does it capture (La Presse, para 20)?
Writing for a unanimous court, Wagner CJ refers to the principles of statutory interpretation and the provision’s wording, context, and purpose to engage in a detained interpretive exercise.
First, he recognizes Dregier’s modern principle, which calls for the words of an act to be read in their entire context and in harmony with the scheme and objective of the act, and the intention of Parliament (La Presse, para 22). Per this principle, the plain meaning of a text is not determinative, and due consideration of its context is necessary – text is only deemed ambiguous when the words can be interpreted in more than one way after such due consideration (La Presse, para 23). It is only this real ambiguity which calls for the use of external interpretive aids such as presumption conformity with the Canadian Charter of Rights and Freedoms.
With these principles in mind, Wagner CJ refers to the text of s 648(1), namely:
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.
He notes that the opening words, “after permission to separate is given to members of a jury,” could be interpreted as a condition precedent when read in isolation, but that the rest of the provision, such as “no information regarding any portion of the trial at which the jury is not present shall be publish,” reveals the opposite intention (La Presse, para 28-29). Further, Wagner CJ notes that the opening phrase could have been time-specific: since the provision was enacted in 1972, when there were no pre-empanelment proceedings, the only time jurors would have received information about a trial from which they were absent would be when they were permitted to separate from the trial (La Presse, para 30). Under the current criminal justice system, these instances are more common, so the “condition precedent” argument is less persuasive.
Similarly, the section’s context suggests the relevant provision applies prior to jury empanelment. Wagner CJ notes that the volume and scope of pre-trial applications have expanded since the 1970s due to various criminal justice system reforms, and so s 645(5) was enacted to allow trial judges to adjudicate such applications before the jury was empanelled (La Presse, paras 33-34). Further reforms in 2011 with the enactment of the Fair and Efficient Criminal Trials Act, SC 2011, c 16, mean the majority of pre-trial applications are dealt with by the trial judge or case management judge before the jury is empanelled (La Presse, para 35). Additional context, drawn from other provisions in the Code, grants judges significant discretion to impose publication bans at different stages of the trial (La Presse, para 37).
Finally, Wagner CJ explores the purpose of s 648(1), identifying two animating objectives at the provision’s core: the right to an impartial jury and the interest in an efficient system of trial by jury. First, he summarizes that while both appellants agree the provision was designed to protect the accused’s right to an impartial jury, they disagree on whether Parliament intended s 648(1) to act as a safeguard against general jury contamination, or whether Parliament was concerned only with the empanelled jury (La Presse, para 44-45). He disagrees with the appellants’ view, finding Parliament had no reason to distinguish between pre- and post-empanelment stages. Wagner CJ writes that Parliament’s objective was to shield both existing and prospective jurors from information about portions of the trial from which they was absent, so their verdict is based only on evidence found admissible in court (La Presse, para 49-50). Second, he states that by replacing discretionary publication bans with presumptive automatic bans, Parliament sought to increase trial efficiency (La Presse, para 51).
Having established that the automatic publication ban applies before jury empanelment, Wagner CJ goes on to explore how such a ban would operate. He states the provision applies before the jury is empanelled only when a judge is exercising jurisdiction under 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 (La Presse, para 76). Specifically, he relies on the SCC’s analysis in R v Litchfield,  4 SCR 333, which explored whether a motion for division of severance of counts had to be dealt with at trial (La Presse, para 67). There, the SCC laid out a two-pronged test: 1) Does the motion concern the indictment? Must the indictment have been preferred or does it need to be the operative document? and 2) Must the person hearing the matter be the trial judge or case management judge? (La Presse, para 68) Under this framework, he notes that most kinds of pre-trial hearings will be included under s 648(1) (La Presse, para 67).
While I understand and appreciate the SCC’s concern with the right to an efficient trial by an impartial jury, it seems that such an admittedly wide automatic ban frustrates the open court principle. As stated by Wagner CJ, reforms in the criminal justice system have caused the scope and volume of pre-trial motions to increase. If there is a presumed publication ban on so much of the court’s rulings, how transparent is the court? Even though such orders are temporary and lifted once the jury retires or is dismissed, timeliness is an important aspect of court reporting. For example, if there is an Garofoli application, journalists should be able to inform the public of such alleged breaches to instill more confidence in the administration of justice. Both the SCC’s interpretation and Parliament’s drafting could benefit from better appreciating the importance of court reporting as part of the open court principle.
Moreover, I doubt allowing more court reporting would taint any prospective or existing juries. Regarding prospective jurors, given the vast amount of information the average citizen is bombarded with on a daily basis, it is highly unlikely that it would be unduly difficult to find 12 jurors with no knowledge of the defendant’s previous dealings. The SCC’s concerns are even more perplexing with regard to existing juries, since they will eventually be informed of pre-trial motions such as a Garofoli application anyway. In my view, such considerations dampen some of the concerns around the right to an impartial and efficient jury trial.
In La Presse, Wagner CJ interprets s 648(1) of the Code as applying an automatic publication ban prior to jury empanelment. In doing so, he re-affirms the test set out in Litchfield, stating the automatic ban will apply to most kinds of pre-trial hearings.
This article was edited by Meredith Wilson-Smith.