Lesley A. Ruzicka

Media appellants challenged the application of the automatic publication ban in s. 648(1) of the Criminal Code to pre-empanelment proceedings in two unrelated criminal cases.

In the first case (Silva), the ban was imposed on a Garofoli application and a motion for a stay of proceedings for abuse of process.

In the second case (Coban), media sought a declaration that s. 648(1) applied only after the jury was empanelled.

The Supreme Court of Canada held unanimously that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5), which confers on trial judges jurisdiction to deal with matters that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

Both appeals were dismissed.

Two consolidated appeals challenging the constitutionality of ss. 278.92 to 278.94 of the Criminal Code (the 'record screening regime'), enacted by Bill C-51 in 2018.

The regime governs the admissibility of complainants' private records in the possession or control of the accused in sexual offence proceedings, and extends complainant participatory rights to admissibility hearings.

The majority held that the provisions do not infringe ss. 7, 11(c), or 11(d) of the Charter, finding that the admissibility threshold is rationally connected to Parliament's objective of protecting complainants' privacy and dignity, the Stage One application process is not overbroad, advance disclosure does not violate the right to silence or the privilege against self-incrimination, and complainant participation does not undermine trial fairness or prosecutorial independence.

Both Crown appeals were allowed, the cross-appeal by one accused was dismissed, and the complainant's appeal was allowed with costs.

Three judges dissented in part, concluding the record screening regime — though not the s. 276 regime — is unconstitutional.

The appellant was convicted of sexual assault causing bodily harm and administering a stupefying drug, and brought an application for a stay of proceedings on the basis that his s. 11(b) Charter right to be tried within a reasonable time had been infringed.

The trial judge found that the total delay exceeded the Jordan ceiling but was justified by the transitional exceptional circumstance and dismissed the application.

A majority of the Court of Appeal found that the trial judge erroneously characterized delay occasioned by the appellant's re-election of another mode of trial as a discrete exceptional circumstance, but upheld the dismissal on the basis of the transitional exceptional circumstance.

The Supreme Court dismissed the appeal, holding that the appellant's re-election was not done legitimately to respond to the charges and the resulting 13-month delay should have been characterized as defence delay.