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Section 648(1) of the Criminal Code does not automatically ban publication of pre-trial change of venue applications.
The applicant brought a pre-trial change of venue application before the Regional Senior Judge.
A temporary publication ban was imposed, and the court invited submissions on whether section 648(1) of the Criminal Code automatically bans publication of information regarding pre-trial applications heard before a jury is chosen.
The court held that section 648(1) does not apply to applications heard before a jury is empanelled, nor to change of venue applications, nor to applications heard by a judge other than the trial judge.
Instead, publication bans for such pre-trial applications must be determined using the common law Dagenais/Mentuck test.
Change of venue application dismissed; pre-trial publicity did not displace presumption of juror impartiality.
The applicant, charged with second-degree murder in a 1998 cold case, applied to change the venue of his trial from Sudbury to Toronto, arguing that extensive pre-trial publicity and public support for the victim made it impossible to empanel an impartial jury in the Northeast Region.
The court reviewed the extent and content of the media coverage, social media commentary, and a public opinion survey.
The court found that the applicant failed to establish a fair and reasonable likelihood of widespread partiality or prejudice that could not be overcome by the safeguards of the jury system.
The application was dismissed, though the court noted the trial might still be moved within the region due to COVID-19 constraints, and imposed a publication ban on specific portions of the reasons.
