Binding or Not? The SCC to Comment on Horizontal Stare Decisis in Appeal of R v Coban
Coban is a highly publicized case. It involves the prosecution of Aydin Coban, a man who sexually extorted and harrassed Amanda Todd, an underage girl who subsequently committed suicide. The Supreme Court of British Columbia (“BCSC”) has issued thirteen different judgements in the matter, pertaining to various issues such as jurisdiction [2022 BCSC 1441], admissibility of evidence [2021 BCSC 2297], and even the constitutionality of s 486.4(3) of the Criminal Code, RSC 1985, c C-46 [Code] [2022 BCSC 14].
However, the SCC will only be considering one of these judgments. For the purposes of the CBC’s appeal, the only issue will be the proper scope of s 648(1) of the Code, which mandates automatic publication bans after juries in criminal trials have been given permission to separate. Interestingly, much of this appeal will likely centre upon the issue of horizontal stare decisis.
The case against Mr. Coban was set to proceed to a jury trial and a publication ban was imposed on all pre-trial applications pursuant to s 648(1) of the Code (Coban, para 2). The provision reads:
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. [emphasis added]
As per s 647(1), permission to separate can be given by a judge “at any time before the jury retires to consider its verdict” (Code, s 647(1)). CBC, among other news outlets, challenged the broad scope of the ban and submitted that it should be narrowed to apply only after a jury has been empanelled (Coban, para 2).
Mr. Coban argued that irrespective of the merits of CBC’s stance, the issue had already been decided in R v Malik, 2002 BCSC 80 [Malik] (Coban, para 3). In Malik, the BCSC ruled that s 648(1) of the Code applies to proceedings that occur before a jury is sworn in or impanelled (Malik, para 34). Such proceedings are governed by s 645(5) of the Code. Mr. Coban further submitted that as per the SCC’s recent decision in R v Sullivan, 2022 SCC 19 [Sullivan], the BCSC was bound to follow Malik under the doctrine of horizontal stare decisis (Coban, para 3).
The BCSC’s Decision
The primary issue before the BCSC was whether or not it was bound to follow Malik and find that s 648(1) of the Code extends to proceedings under s 645(5) (Coban, para 6).
Malik is Binding
The court began by canvassing the jurisprudence surrounding s 648(1), noting that there was great tension province-to-province (Coban, para 6). While in Malik, the BCSC interpreted s 648(1) broadly to encompass s 645(5), a more recent decision by the Ontario Superior Court of Justice (“ONSC”) ruled otherwise (Coban, paras 7, 10-12). In R v Wright, 2020 ONSC 7049 [Wright], the ONSC emphasized the phrase “after permission to separate” in s 648(1) (Wright, paras 27, 30). The Court found that this could not reasonably be interpreted to include proceedings under s 645(5), which specifically occur before juries are even selected (Wright, paras 26-28).
Without delving into the merits of either Malik or Wright, the BCSC referred to Sullivan as the authority on horizontal stare decisis (Coban, para 9). Horizontal stare decisis, as opposed to vertical stare decisis, refers to the practice of courts adhering to their own previous decisions, as well as the decisions of courts with coordinate—or equal—jurisdiction. In Sullivan, the SCC wrote:
The principle of judicial comity—that judges treat fellow judges’ decisions with courtesy and consideration—as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. [emphasis added] (Sullivan, para 75)
The “Spruce Mills criteria” referred to in this passage were developed in Re Hansard Spruce Mills,  4 DLR 590. Decisions from courts of coordinate jurisdiction should only be departed from where:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances. [emphasis added] (Sullivan, para 75)
Such criteria are meant to balance certainty and predictability with the organic evolution of jurisprudence (Sullivan, para 75). With respect to Coban, the BCSC found that none of the Spruce Mills criteria were satisfied (Coban, para 16). No appellate decisions have subsequently undermined Malik—as a parallel trial court, the ONSC’s decision in Wright does not count (Coban, para 13). Moreover, the BCSC subsequently adhered to Malik in R v Pickton, 2005 BCSC 836 (Coban, para 12).
With respect to the second factor, the court described Malik as a “careful and comprehensive decision that considered the principles of statutory interpretation and the requirement for Charter compliance” (Coban, para 14). Similarly, with respect to the third factor, the court described Malik as a “well-reasoned and fully considered judgement” (Coban, para 15). The treatment of these last two factors is understandably similar, since both deal generally with incomplete judicial reasoning—whatever the underlying cause may be.
On this basis, the BCSC found that Malik was binding and dismissed the CBC’s application to have the publication ban altered (Coban, paras 17-18).
Judicial Comity Gone Too Far?
In Coban, the BCSC was clearly hesitant to undermine Malik. It wrote:
To depart from Malik in the absence of an appellate authority that undermines its rationale would upset the delicate balance described in Sullivan between the rule of law and judicial comity [emphasis added]. (Coban, para 13)
This faithfulness to judicial comity is laudable. However, the court focused heavily on the extensiveness of the analysis in Malik rather than its actual substance. For example, it praised the decision as “careful and comprehensive” (Coban, para 14). It also rightfully noted that the decision in Malik explicitly took a liberal, purposive approach to statutory interpretation (Coban, para 10). It was on this basis that s 648(1) was interpreted expansively to provide pre-trial publication bans for accused persons’ fair trial rights (Coban, paras 10-11).
However, this interpretation is powerfully challenged by the ONSC’s decision in Wright. In Wright, the court noted critically that while statutes are to be interpreted liberally and purposively, “the meaning adopted must still be one the words of the text can reasonably bear [emphasis added]” (Wright, paras 21, 26). In other words, ambiguous text should be interpreted as broadly as possible, but within the plausible bounds of the text itself. In Malik, the BCSC interpreted the provision in an internally contradictory manner. S 648(1) mandates publication bans after juries are permitted to separate, which as noted in Wright, simply does not occur before a jury is selected (Code, s 648(1); Wright, para 23).
It is true that the advent of s 645(5) created a legislative gap with respect to publication bans (Wright, para 30). However, the ONSC rightfully notes that there is a difference between “impermissible legislative amendment” and “permissible statutory interpretation” (Wright, para 31). Irrespective of what is beneficial to accused persons, s 648(1) simply “precludes” the meaning given to it by the BCSC in Malik (Wright, para 28). The effect of this interpretation is to ignore the explicit temporal limit in s 648(1) and give it no meaning whatsoever (Wright, para 27).
Thus, the fact that the court engaged in a thorough interpretive analysis in Malik is insufficient to escape the second Spruce Mills criterion. As noted by the SCC in Sullivan, this criterion will be met where “the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision [emphasis added]” (Sullivan, para 77). That the meaning given to a text must be one that is bearable by the text is a well-established principle of statutory interpretation (R v Z (DA),  2 SCR 1025, para 1042). Since the court’s interpretation in Malik did not comport with the legislative text—in fact, it undermined the legislative text—this was an impermissible approach to statutory interpretation. Accordingly, it may be considered careless or inadvertent such that it satisfies the second Spruce Mills criterion. While the BCSC in Coban was right to be hesitant in departing from precedent, it would have been justified in doing so in this case.
The SCC’s Task
Since Coban is rich with material for the SCC to comment on, there may be several reasons why the CBC was granted leave.
A Consolidated Approach to s 648(1)
One anticipated benefit of the SCC ruling on Coban is the amelioration of jurisdictional differences. As it stands, the courts in British Columbia and Ontario have taken vastly different approaches to the scope of s 648(1), as made evident by Wright and Coban. This is permissible because horizontal stare decisis only binds courts intra-provincially, not interprovincially. This is problematic because Canadian criminal law is federal in nature. A degree of certainty and jurisdictional consistency with respect to the interpretation of Code provisions is critical. The SCC will have the opportunity to provide a definitive answer on this issue. In doing so, the court will also inevitably comment on statutory interpretation, providing further clarity as to the permissible scope of interpretation. This will pair well with the highly anticipated appeal of R v McColman, 2021 ONCA 382 which was recently heard by the SCC .
In clarifying the scope of s 648(1), the SCC will also be adding to its portfolio of commentary on publication bans in the criminal context (see, inter alia: Canadian Newspapers Co v Canada (Attorney General),  2 SCR 122; Dagenais v Canadian Broadcasting Corp,  3 SCR 835; R v Mentuck, 2001 SCC 76). There is rich jurisprudence in this area, and it could be that the SCC would like another opportunity to touch on the competing interests underlying publication bans—namely, accused persons’ fair trial rights and freedom of expression vis-à-vis the press. It is quite possible that Charter arguments will be expressly raised by the CBC et al, wherein it will be submitted that the broad approach taken in Malik upsets the balance of interests in favour of accused persons and at the detriment of the press.
Horizontal Stare Decisis
The SCC may also wish to further flesh out the correct approach to horizontal stare decisis, given that it is highly topical and central to this appeal. However, the court was thorough in its discussion of the issue in Sullivan (see paras 73-80). Nonetheless, it is an important concept and Sullivan is rather fresh, having only been decided earlier this year. The SCC may view Coban as a useful opportunity to demonstrate the application of the Spruce Mills criteria. After all, the BCSC leaned heavily into judicial comity in its application of horizontal stare decisis. Perhaps the SCC will rule that a departure from Malik was, in fact, justified.
Although it is unclear what the SCC’s focus will be in deciding this case, it is likely to produce a rich decision. The proceedings against Mr. Coban generally are complex, giving rise to various fascinating issues. Within just this particular appeal on the publication ban, it is likely that the SCC will provide lengthy, insightful commentary on several doctrines such as horizontal stare decisis and statutory interpretation. Irrespective of the court’s findings, this will undoubtedly be a case that is heavily cited and discussed for years to come.