Marc-André Nadon

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.

A newspaper publishing company applied to unseal a court record and access exhibits filed by a public institution in an action alleging misappropriation of public funds by a former manager.

Before the motion was heard, the public institution discontinued its action and retrieved its exhibits pursuant to article 108 of the Code of Civil Procedure.

The majority held that the right of access to court records under article 11 C.C.P. extends only to what is in the record at the time it is consulted, and does not give a right to access exhibits already retrieved by the parties.

The dissent held that a discontinuance cannot defeat an application for access filed prior to it, and that the court retained jurisdiction to apply the Dagenais/Mentuck framework to the appellant's motion.

The appeal was dismissed with the majority concluding that the Dagenais/Mentuck test does not apply where articles 11 and 108 C.C.P. confer no judicial discretion.