Supreme Court of Canada

SUPREME COURT OF CANADA

Appeals Heard: May 16 and 17, 2023 Judgment Rendered: October 6, 2023 Dockets: 40175, 40223

Parties

La Presse inc. Appellant

v.

His Majesty The King and Frédérick Silva Respondents

— and —

Canadian Broadcasting Corporation, Global News, a division of Corus Television Limited Partnership, Postmedia Network Inc., CTV News, a division of Bell Media Inc., Glacier Media Inc., CityNews, a division of Rogers Media Inc., Globe and Mail Inc. and Torstar Corporation Appellants

v.

His Majesty The King and Aydin Coban Respondents

— and —

British Columbia Civil Liberties Association Intervener

Indexed as: La Presse inc. v. Quebec

2023 SCC 22

File Nos.: 40175, 40223.

2023: May 16, 17; 2023: October 6.

Present: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O'Bonsawin JJ.

ON APPEAL FROM THE SUPERIOR COURT OF QUEBEC

ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA

Criminal law — Publication bans — Matters dealt with in absence of jury — Whether automatic publication ban on information regarding portion of trial at which jury not present applies prior to empanelment of jury — If so, which matters covered by ban — Criminal Code, R.S.C. 1985, c. C‑46, ss. 645(5), 648(1).

S and C were charged with several criminal offences in unrelated cases. In both cases, numerous matters were dealt with before the empanelment of the jury, including a Garofoli application, an application for a stay of proceedings for abuse of process, and a constitutional challenge. Several media outlets applied for orders or declarations that would allow the publication of information from the hearings on those matters. The application judges in both cases dismissed the media applications, concluding that the automatic publication ban found in s. 648(1) of the Criminal Code that prohibits the publication of information about portions of a criminal trial at which the jury is not present applies not only after but also before the empanelment of the jury.

Held: The appeals should be dismissed.

The automatic publication ban in s. 648(1) of the Criminal Code applies not only after the jury is empanelled but also before the jury is empanelled with respect to matters dealt with pursuant to s. 645(5) of the Criminal Code, which confers upon trial judges the jurisdiction to deal with certain matters before the empanelment of the jury. In S's case, the Garofoli application and motion for a stay of proceedings clearly concerned the indictment and had to be dealt with by the trial judge. Therefore, it is only by virtue of s. 645(5) that these matters could be dealt with prior to the empanelment of the jury, and it follows that they were covered by s. 648(1). In C's case, the media had applied for a declaration that s. 648(1) applies only after the jury has been empanelled. The dismissal of the application by the judge is consistent with the proper interpretation of s. 648(1).

The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning — context, purpose, and relevant legal norms. A provision is only ambiguous if its words can reasonably be interpreted in more than one way after due consideration of the context in which they appear and of the purpose of the provision. Proposed but abandoned amendments are of no assistance in identifying the meaning of legislation.

The context and purpose of s. 648(1) reveal its correct interpretation. With respect to context, to understand the operation of s. 648(1), one must read it in light of the numerous relevant provisions that followed its enactment, and most particularly s. 645(5). In this context, trial judges now have the flexibility to hear, before the empanelment of the jury, various matters that are deemed to be part of the trial. These are clearly dealt with in the absence of the jury and, as such, are automatically covered by s. 648(1).

With respect to purpose, by enacting s. 648(1) in 1972, Parliament intended to enhance trial fairness through the protection of two interconnected interests, which are best served when the trial proceeds only on information properly available to the jury. First, Parliament's intent to protect the fundamental interest of the accused in being tried by jurors who are not exposed to, and biased by, the content of and rulings on matters heard in their absence is immediately apparent from the wording of the provision — which bans the publication of information regarding portions of the trial at which the jury is not present — and readily inferable from Hansard. Parliament aimed to shield the jury from information about any portion of the trial from which it was absent, so that its verdict is based only on the evidence found admissible in court. This objective is relevant with respect to both the existent jury and the jury yet to be empanelled.

Second, trial fairness under s. 648(1) is also concerned with the interest of both the accused and society in the efficiency of Canada's system of trial by jury. This is revealed by Parliament's choice to introduce an automatic publication ban that applies simply by operation of statute and thus does not require the intervention of a court. Parliament must have had delays and judicial resources in mind when it removed judicial discretion. By shielding information from publication, s. 648(1) gives courts the confidence, flexibility, and ability to hold hearings earlier in time, which can be expected to reduce delays and may also allow the parties to gain certainty about contested matters, leading to earlier resolution.

Section 648(1) applies before the jury is empanelled only when a judge is exercising jurisdiction traceable to 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. The Court's analysis in R. v. Litchfield, [1993] 4 S.C.R. 333, provides a useful framework for assessing whether a matter is being dealt with by virtue of s. 645(5) or whether it could always have been dealt with, even in the absence of s. 645(5), before the jury was empanelled. This framework looks to the following features: whether the matter concerns the indictment, and whether, but for the jurisdiction of case management judges, the matter would have to be dealt with by the trial judge. To avoid uncertainty over what matters are covered by a publication ban under s. 648(1), it would be prudent for judges holding a hearing pursuant to s. 645(5) to announce that they are exercising their jurisdiction under that provision and to note that s. 648(1) automatically prohibits the publication of any information regarding that portion of the trial. It is also open to courts to fill any gap in relation to pre‑trial conferences through their rule‑making authority under ss. 482 and 482.1 of the Criminal Code, and judges retain inherent jurisdiction to impose discretionary publication bans in accordance with the Dagenais/Mentuck/Sherman principles.

Cases Cited

Overruled: R. v. Bebawi, 2019 QCCS 594;

Applied: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v. Litchfield, [1993] 4 S.C.R. 333; M. v. H., [1999] 2 S.C.R. 3;

Considered: R. v. Garofoli, [1990] 2 S.C.R. 1421; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150;

Referred to: R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 616; R. v. J.J., 2022 SCC 28; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; R. v. Malik, Bagri and Reyat, 2002 BCSC 80; R. v. Stobbe, 2011 MBQB 293, 277 Man. R. (2d) 65; R. v. Twitchell, 2010 ABQB 692, 509 A.R. 131; [R. v. Farhan, 2000); R. v. Bissonnette, 2021 QCCS 3856, 74 C.R. (7th) 70; R. v. Cheung, 2000 ABQB 905, [2001] 3 W.W.R. 713; Canadian Broadcasting Corp. v. Millard, 2015 ONSC 6583, 338 C.C.C. (3d) 227; R. v. Emms, 2012 SCC 74, [2012] 3 S.C.R. 810; R. v. Ouellette, [1998] R.J.Q. 2842; R. v. Talon, 2006 QCCS 3031; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Sherman Estate v. Donovan, 2021 SCC 25; Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Chouhan, 2021 SCC 26; R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v. Church of Scientology (1997), 33 O.R. (3d) 65; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Wright, 2020 ONSC 7049, 472 C.R.R. (2d) 296; R. v. Stanley, 2018 SKQB 27; R. v. Sandham (2008), 248 C.C.C. (3d) 543; R. v. Regan (1997), 159 D.L.R. (4th) 350; R. v. Pickton, 2005 BCSC 836; R. v. Valentine (2009), 251 C.C.C. (3d) 120; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Curtis (1991), 66 C.C.C. (3d) 156; Duhamel v. The Queen, [1984] 2 S.C.R. 555; Morin v. The Queen (1890), 18 S.C.R. 407; R. v. Cliche, 2010 QCCA 408; R. v. Hibbert, [1995] 2 S.C.R. 973; R. v. Brown (1997), 72 C.R.R. (2d) 312; R. v. Bernardo, [1995] O.J. No. 247 (QL), 1995 CarswellOnt 7200 (WL); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Steiner v. Toronto Star Ltd., [1956] O.R. 14; R. v. Evening Standard Co. Ld., [1954] 1 Q.B. 578; St. James's Evening Post Case (1742), 2 Atk. 469, 26 E.R. 683; R. v. Jansen, [1976] 4 W.W.R. 277; Scott v. Scott, [1913] A.C. 417; R. v. Clement (1821), 4 B. & Ald. 218, 106 E.R. 918; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Haevischer, 2023 SCC 11; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. Breault, 2023 SCC 9; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Lalo, 2002 NSSC 21, 207 N.S.R. (2d) 203; R. v. Ross, [1995] O.J. No. 3180 (QL), 1995 CarswellOnt 3173 (WL); R. v. Chabot, [1980] 2 S.C.R. 985; Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Commanda, 2007 QCCA 947, [2008] 3 C.N.L.R. 311; R. v. S. (S.S.) (1999), 136 C.C.C. (3d) 477; R. v. Deol (1979), 20 A.R. 595.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(f).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 482, 482.1, 486.4(3), 517, 539, 542(2), Part XVIII.1, 551.1 to 551.7, 625.1, 645(5), 647, 648.

Criminal Law Amendment Act, 1972, S.C. 1972, c. 13.

Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 133.

Criminal Rules of the Alberta Court of Justice, r. 4.2(7)(a).

Criminal Rules of the Supreme Court of British Columbia, SI/97‑140, r. 5.

Fair and Efficient Criminal Trials Act, S.C. 2011, c. 16, s. 4.

Interpretation Act, R.S.C. 1985, c. I‑21, s. 45(3).

Protection of Privacy Act, S.C. 1973‑74, c. 50.

Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002, SI/2002‑46, rr. 39 to 44.

Supreme Court Act, R.S.C. 1985, c. S‑26, s. 40.

Authors Cited

Canada. House of Commons. House of Commons Debates, vol. I, 1st Sess., 33rd Parl., December 20, 1984, p. 1414.

Canada. House of Commons. House of Commons Debates, vol. 133, No. 143, 1st Sess., 35th Parl., December 13, 1994, p. 9010.

Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 7, 4th Sess., 28th Parl., May 11, 1972, p. 7:26.

Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 8, 4th Sess., 28th Parl., June 1, 1972, p. 8:18.

Côté, Pierre‑André, et Mathieu Devinat. Interprétation des lois, 5e éd. Montréal: Thémis, 2021.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Hasan, Nader R. "Three Theories of 'Principles of Fundamental Justice'" (2013), 63 S.C.L.R. (2d) 339.

Macdougall, Don. "Continuity of Judicial Rulings After a Mistrial" (2004), 15 C.R. (6th) 273.

Mewett, Alan W. "Criminal Law Revision in Canada" (1969), 7 Alta L. Rev. 272.

Mewett, Alan W. "The Criminal Law, 1867‑1967" (1967), 45 Can. Bar Rev. 726.

Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders. Toronto: Thomson Reuters, 2006 (loose‑leaf updated May 2023, release 1).

Salhany, R. E. Canadian Criminal Procedure, 5th ed. Aurora, Ont.: Canada Law Book, 1989.

Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales 2022, 29e éd. Montréal: Yvon Blais, 2022.

APPEAL from a decision of the Quebec Superior Court (David J.), 2022 QCCS 881, [2022] AZ‑51837472, [2022] J.Q. no 1780 (QL), 2022 CarswellQue 4621 (WL), dismissing a motion by La Presse inc. to lift orders prohibiting publication, broadcasting and transmission in relation to judgments on voir dires. Appeal dismissed.

APPEAL from a decision of the British Columbia Supreme Court (Devlin J.), 2022 BCSC 880, [2022] B.C.J. No. 1957 (QL), 2022 CarswellBC 2865 (WL), dismissing an application to have a publication ban clarified or declared applicable only after the jury has been empaneled. Appeal dismissed.

Counsel

Marc‑André Nadon and Axel Fournier, for the appellant La Presse inc.

Daniel W. Burnett, K.C., and Daniel H. Coles, for the appellants the Canadian Broadcasting Corporation, Global News, a division of Corus Television Limited Partnership, Postmedia Network Inc., CTV News, a division of Bell Media Inc., Glacier Media Inc., CityNews, a division of Rogers Media Inc., Globe and Mail Inc. and Torstar Corporation.

Nicolas Abran and Nathalie Kléber, for the respondent His Majesty The King (40175).

Lesley A. Ruzicka, K.C., and Louise Kenworthy, K.C., for the respondent His Majesty The King (40223).

Alex Savoie, for the respondent Frédérick Silva.

Trevor B. Martin and Joseph J. Saulnier, for the respondent Aydin Coban.

Patrick Williams and Victoria Tortora, for the intervener.

Reasons for Judgment

The judgment of the Court was delivered by

The Chief Justice —

I. Introduction

[ 1 ] In 1972, Parliament enacted an automatic publication ban that prohibits the publication of information about portions of a criminal trial at which the jury is not present. Today, this ban is found in s. 648(1) of the Criminal Code, R.S.C. 1985, c. C‑46:

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.

[ 2 ] The question before this Court is whether and, if so, how this automatic publication ban applies before the jury is empanelled, given the jurisdiction conferred by s. 645(5) of the Criminal Code upon trial judges, since 1985, to deal with certain matters before the empanelment of the jury:

(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

[ 3 ] In the cases under appeal, numerous matters were dealt with before the empanelment of the jury. In Mr. Silva's case, these included a Garofoli application and an application for a stay of proceedings for abuse of process. In Mr. Coban's case, these included a constitutional challenge to another publication ban under s. 486.4(3) of the Criminal Code. Certain media outlets (the appellants before this Court) applied for orders or declarations that would allow the publication of information from the hearings on those matters. The judges in both cases dismissed the media applications, concluding that s. 648(1) applies before the empanelment of the jury. Information from the hearings could not be published until the juries retired for deliberations or were dismissed.

[ 4 ] This Court has addressed s. 648(1) in two cases, although neither of them resolves the interpretive issue in these appeals. In R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 616, footnote 1, Justice Abella noted the diverging approaches to this issue. In R. v. J.J., 2022 SCC 28, para. 283, Justice Brown, dissenting in part, treated s. 648(1) as applying before jury selection to information that would ordinarily be dealt with in the absence of a jury, though he provided little analysis. These appeals call upon this Court to resolve this interpretive issue in light of the provision's text, context, and purpose — the context including the open court principle and the right to a fair trial.

[ 5 ] The open court principle has been recognized by this Court as fundamental throughout the entirety of criminal proceedings, that is, both at the "pre-trial" or pre‑empanelment stage and during the trial (Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 27, citing Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at pp. 183 and 186). I pause at this point to note that the term "pre-trial" in English, and the terms "avant le procès""préalable au procès", and "antérieur au procès" in French, have at times been used in the jurisprudence to refer to the period before a jury has been empanelled (see, e.g., R. v. Malik, Bagri and Reyat, 2002 BCSC 80; R. v. Stobbe, 2011 MBQB 293, 277 Man. R. (2d) 65; R. v. Twitchell, 2010 ABQB 692, 509 A.R. 131; La Presse inc. v. Silva, 2022 QCCS 881; R. v. Bebawi, 2019 QCCS 594; [R. v. Farhan, 2000) (Que. Sup. Ct.); and R. v. Bissonnette, 2021 QCCS 3856, 74 C.R. (7th) 70). Other times, judges have been careful to refer to this period as "pre-jury-selection" or "before the jury is empanelled" in English, and "avant la sélection du jury""préalable à la sélection du jury" or "avant la constitution du jury" in French (see, e.g., R. v. Cheung, 2000 ABQB 905, [2001] 3 W.W.R. 713; Canadian Broadcasting Corp. v. Millard, 2015 ONSC 6583, 338 C.C.C. (3d) 227; R. v. Emms, 2012 SCC 74, [2012] 3 S.C.R. 810; R. v. Ouellette, [1998] R.J.Q. 2842 (Sup. Ct.); and R. v. Talon, 2006 QCCS 3031). The latter expressions are more accurate, but I will occasionally use the term "pre-trial" when I refer to others' reasoning.

[ 6 ] Publication bans like the one imposed by s. 648(1) are limitations on court openness that can protect the right of the accused to, and society's interest in, a fair trial (see, e.g., Dagenais v. Canadian Broadcasting Corp., [1991] 3 S.C.R. 835, p. 879). However, this Court has recognized that the absence of a publication ban can also advance trial fairness: for example, by preventing perjury"prevent[ing] state and/or court wrongdoing by placing the criminal justice process under public scrutiny", and encouraging individuals to come forward with relevant new information after hearing about a case (p. 883).

[ 7 ] There is no irreconcilable conflict between the open court principle and trial fairness. They both serve to instill public confidence in the justice system. The public can understand the work of the courts, and thus come to trust the judicial process and its outcomes, only if informed of "what a judge decides" and "why the particular decision is made" (Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 65 (emphasis in the original)). Needless to say, the media play a crucial role in making this possible (Sherman Estate v. Donovan, 2021 SCC 25, at para. 30, citing Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1339-40). The protection of fair trial interests, such as the right to an independent, impartial, and representative jury, is also essential to public confidence in the administration of justice (R. v. Chouhan, 2021 SCC 26, at para. 12, citing R. v. Sherratt, [1991] 1 S.C.R. 509, at pp. 523-24; see also R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 55, citing Sherratt, at pp. 523-25, and R. v. Church of Scientology (1997), 33 O.R. (3d) 65 (C.A.), at pp. 118-20).

[ 8 ] Here, Parliament has chosen to impose a temporary publication ban for the purposes of shielding the jury from information it has never been permitted to consider and promoting efficient trials.

[ 9 ] I conclude that s. 648(1) applies before the jury is empanelled to matters dealt with pursuant to s. 645(5). This conclusion follows from an understanding of the text of s. 648(1) when considered in its full context and in light of Parliament's purpose. This interpretation does not expand the coverage of the publication ban: only matters that were captured by the ban prior to the enactment of s. 645(5) continue to be captured by it today. This interpretation has not "evolved" or "changed" in a way that departs from any previous meaning held by s. 648(1). The context of modern trials simply reveals s. 648(1)'s full temporal scope.

II. Judgments Below

A. La Presse inc. v. Silva, 2022 QCCS 881

[ 10 ] The accused, Mr. Silva, was charged with four counts of murder and one count of attempted murder. During pre-empanelment proceedings, an application for a stay of proceedings and a Garofoli application were brought in relation to the police techniques used to locate and arrest the accused. David J. dismissed both applications and made orders pursuant to s. 648(1) prohibiting the publication and broadcasting of his decisions. (It is anomalous that these "orders" were made given that, when s. 648(1) applies, it applies automatically, by operation of statute.)

[ 11 ] La Presse inc. (an appellant in this Court) brought an application to lift the publication bans, relying on Bebawi, for the view that s. 648(1) applies only after the jury is empanelled. David J. dismissed the application on the basis that, on his interpretation, s. 648(1) applies both before and after the jury is empanelled. In the alternative, and regardless of s. 648(1)'s temporal scope, David J. would have upheld the publication bans under the test set out in Dagenais, in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, and in Sherman.

[ 12 ] David J. listed four reasons for his interpretation of s. 648(1). First, the interpretation of s. 648(1) as applying both before and after the jury is empanelled best aligns with the purpose of this provision, namely to ensure that "the pretrial proceedings do not contaminate the fairness of the later trial" (para. 26 , quoting Millard, at para. 25). Second, the current practice in criminal proceedings is to deal with many applications before the jury is empanelled. Third, s. 648(1) must be read together with other Criminal Code provisions establishing publication bans for matters dealt with before the jury is empanelled. Fourth, the temporary nature of s. 648(1) bans strikes a fair balance between the protection of freedom of information and the protection of trial fairness.

[ 13 ] Following a guilty verdict on the last count against the accused, the orders made under s. 648(1) were lifted.

B. R. v. Coban, 2022 BCSC 880

[ 14 ] The accused, Mr. Coban, was charged with several offences including extortion and criminal harassment, and faced charges related to child pornography and child luring. Before the empanelment of the jury, a challenge was mounted against another publication ban under s. 486.4(3) of the Criminal Code. Several media outlets (also appellants in this Court) applied for a declaration that s. 648(1) is limited in its application to proceedings after the jury is empanelled.

[ 15 ] The Canadian Broadcasting Corporation and other media (appellants here) applied to clarify or declare that the publication ban under s. 648 applied only to proceedings after the jury is empanelled. Devlin J. dismissed that application. He found that s. 648(1) "applies to all pre‑trial applications".

III. Jurisdiction and Mootness

[ 16 ] Both appeals were argued before us on the merits. Both raise a question of law of national importance — the interpretation of a fundamental provision of the Criminal Code — in cases where there are conflicting lower court decisions. This Court therefore has jurisdiction to hear the appeals under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S‑26.

[ 17 ] Both appeals are also moot because, at this point, neither presents a live controversy. The trials have concluded and s. 648(1) no longer prohibits the publication of any information from them. This Court was aware of the possibility of mootness when it granted leave to appeal.

[ 18 ] The considerations in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, suggest that this Court should exercise its discretion to hear and decide the appeals, even though they are moot (see also Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 16-22). The parties have provided a clear adversarial context, presenting their arguments capably and with dedication. The operation of s. 648(1) results in automatic publication bans that are often of brief duration relative to the typical timeline of an appeal, making this a class of cases that are "inherently evanescent" and are "by [their] nature repetitive" (Borowski, at p. 360). Finally, the resolution of the interpretive dispute here has public importance that transcends these particular cases. The publication ban in s. 648(1) is among the most commonly applied bans in our criminal justice system. It is important that the legal community have clear and definitive guidance on its scope.

IV. Issues in These Appeals

[ 19 ] Trial courts are divided on the interpretation of s. 648(1), as previously noted by this Court in Brassington, at para. 4, fn. 1. Some courts have held that s. 648(1) applies only after the jury is empanelled (Cheung; Twitchell; Bebawi; R. v. Wright, 2020 ONSC 7049, 472 C.R.R. (2d) 296). Others have held that s. 648(1) also applies before the jury is empanelled. Of those holding that s. 648(1) applies to matters dealt with before the jury is empanelled, some have found that it applies to all information about all such matters (R. v. Stanley, 2018 SKQB 27). Others have found that it only applies to information about certain matters, such as pre-empanelment voir dires (R. v. Sandham (2008), 248 C.C.C. (3d) 543; R. v. Regan (1997), 159 D.L.R. (4th) 350; R. v. Pickton, 2005 BCSC 836; R. v. Valentine (2009), 251 C.C.C. (3d) 120).

[ 20 ] This judicial divide presents two issues:

(a) Does s. 648(1) apply before the jury is empanelled?

(b) If s. 648(1) applies before the jury is empanelled, what hearings and what information are captured by a publication ban under this section?

[ 21 ] Interpreting s. 648(1) requires balancing the open court principle, and by extension freedom of expression (see Vancouver Sun, at para. 27), with the accused's right to a fair trial — rights that are fundamental to our criminal justice system.

V. Analysis

A. Principles of Statutory Interpretation

[ 22 ] It is well established that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). The plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning — context, purpose, and relevant legal norms (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31).

[ 23 ] First, the plain meaning of the text does not resolve this case. The text supports a possible interpretation under which s. 648(1) applies both before and after the jury is empanelled. It also supports, though arguably somewhat less naturally, an interpretation under which it applies only after the jury is empanelled.

[ 24 ] Second, a provision is only ambiguous "if its words can reasonably be interpreted in more than one way after due consideration of the context in which they appear and of the purpose of the provision" (Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150, at para. 52). As I will explain below, after considering the context and purpose of s. 648(1), only one interpretation is reasonable. Section 648(1) is therefore not ambiguous.

[ 25 ] With these principles of statutory interpretation in mind, I turn to the text, context, and purpose of s. 648(1).

B. Text

[ 26 ] For ease of reference, I reproduce s. 648(1) here:

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.

[ 27 ] According to the appellants, this text clearly supports the view that s. 648(1) applies only after the jury is empanelled, because the provision is triggered "after permission to separate is given" and applies until "the jury retires to consider its verdict". They argue that both events can only take place after the jury has been empanelled and sworn.

[ 28 ] This interpretation is plausible. It relies on the events of permission to separate and of retirement to deliberate as signifying the temporal boundaries of the ban's application — and both events can only happen after the jury has been empanelled and sworn.

[ 29 ] In my view, however, the phrase "after permission to separate is given" does not define a temporal boundary for the application of s. 648(1): it sets a condition precedent for the ban to operate. The phrase "before the jury retires to consider its verdict" describes when the ban ends. (In other words, upon permission to separate being granted, and until the jury retires, the ban applies to all portions of the trial at which the jury is not present, whether those portions occurred before or after the jury's empanelment.)

[ 30 ] In any case, whether or not the text of s. 648(1) is ambiguous, the context and purpose of the provision reveal its correct interpretation.

C. Context

[ 31 ] Section 648 was first enacted in 1972 as part of Bill C-71, the Criminal Law Amendment Act, 1972. As discussed further in the section on purpose, the provision was originally enacted with s. 576.1 of the Criminal Code, which prevented jurors from separating while the trial was ongoing. However, since 1985, s. 645(5) has conferred jurisdiction on trial judges to deal with matters that "would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn" and to do so before the empanelment of the jury. This contextual change is at the heart of these appeals.

[ 32 ] The general principle of statutory interpretation is that the meaning of a statute does not change unless Parliament amends it (R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21). Section 648(1) has not been amended since 1985 to address the interaction between s. 648(1) and s. 645(5). This context, however, does not tell us whether or not s. 648(1) was intended to apply to matters dealt with pursuant to s. 645(5): the mere absence of an amendment to s. 648(1) in 1985 neither signifies an intent to broaden nor an intent to limit its scope.

[ 33 ] Judges have offered two competing views on this contextual issue. In Bebawi, the Quebec Superior Court held that s. 648(1) cannot apply before a jury has been empanelled because no permission to separate could have been given to jurors who do not yet exist. In other words, the triggering condition — "after permission to separate is given" — could not be met before there is a jury. Bebawi was broadly followed in other cases (Cheung; Twitchell; Wright).

[ 34 ] Section 645(5) fundamentally expanded the temporal scope of criminal trials. As a result, matters that were always dealt with in the absence of the jury could now be dealt with at an earlier stage in the proceedings. To understand the operation of s. 648(1), one must read it in light of the numerous relevant provisions that followed its enactment, and most particularly s. 645(5).

[ 35 ] Further flexibility was introduced when Parliament enacted ss. 551.1 to 551.7, creating the jurisdiction of case management judges to deal with many of the same matters that a trial judge could hear pursuant to s. 645(5), before the jury is empanelled. The result is a shifting of judicial business, not a wholesale change to the substance of the matters being dealt with in the absence of the jury.

[ 36 ] The result is that if s. 648(1) applied to a voir dire heard in the absence of the jury in 1971 (before the enactment of s. 645(5)), it should continue to apply when the same voir dire is now heard pursuant to s. 645(5) before the jury is empanelled.

[ 37 ] Section 648(1) is not unique in operating both before and after the jury is empanelled. Other provisions of the Criminal Code, such as ss. 517 and 539, impose automatic publication bans on proceedings that take place before a jury is empanelled. Section 542(2) imposes an automatic publication ban on confessions admitted at preliminary inquiries.

[ 38 ] I note that s. 486.4(3) — which is at issue in Mr. Coban's case — creates another automatic publication ban that has been applied to pre-empanelment proceedings. Section 486.4(3) requires judges to make an order directing that any information "that could identify" a witness or "justice system participant" shall not be published. The provision says nothing about when it operates, but courts have interpreted it as applying at any stage of the proceedings (see Haevischer, at para. 79; see also R. v. Haevischer, 2023 SCC 11).

[ 39 ] In Bebawi, the court also relied on the view that s. 648(1), as enacted in 1972, was "intimately linked" to ss. 576(1) and 576.1, which then governed jury separation. In the court's view, permission to separate was given following the empanelment of the jury, as that was the first moment a jury could separate. Thus, the court concluded that s. 648(1) was triggered only once the jury is empanelled.

[ 40 ] Here, to understand the function of "after permission to separate is given", it is important to consider the history of ss. 647 and 648 together with the history of the prohibition on jury separation and the subsequent enactment of s. 645(5). Parliament enacted ss. 648 and 576.1 together. Section 576.1 allowed courts to give permission to members of a jury to separate but only "during the taking of evidence". At first, under s. 576.1, permission to separate was given to the jury once the jury had been sworn. Then, in 1985, s. 576.1 was amended to allow permission to separate to be given "before as well as during the taking of evidence". This means that permission to separate can now be given before the taking of evidence, that is, prior to the jury being sworn. With the enactment of s. 645(5), it became possible to give permission to separate before the jury was even empanelled.

[ 41 ] In situating s. 648 in its full context, and in light of the subsequent enactment of s. 645(5), I am of the view that the phrase "after permission to separate is given" was and remains a condition precedent designed to ensure that the publication ban does not take effect until the jury's composition is certain (until there are jurors who could be influenced by what might be published). This phrase does not define a temporal limitation on the scope of the publication ban.

D. Purpose

[ 42 ] By enacting s. 648(1) in 1972, Parliament intended to enhance trial fairness through the protection of two interconnected interests, which are best served when the trial proceeds only on information properly available to the jury.

[ 43 ] These two interests, addressed below, are best understood together as being fundamentally concerned with the protection of the accused's right to be tried by an impartial jury — a constitutional right guaranteed by s. 11(f) of the Canadian Charter of Rights and Freedoms — as well as the accused's and society's interest in an efficient system of trial by jury.

(1) Right to an Impartial Jury

[ 44 ] All parties before this Court agree that a dominant purpose of s. 648(1) was to protect the accused's right to be tried by an impartial jury by preventing the bias of members of the jury.

[ 45 ] The parties disagree, however, on the implications of this right when it comes to pre-empanelment matters. The appellants submit that the protection of jury impartiality is relevant only to the existing jury — not to the jury yet to be empanelled — and therefore argue that the section cannot apply before the jury is empanelled. In the appellants' submission, if Parliament intended to protect prospective jurors from prejudicial pre-empanelment information, the wording of s. 648(1) would reflect this, and Parliament could have used the phrasing "prospective and empanelled" jurors. This also reflects the text: the provision refers to "the jury", suggesting that a jury already exists.

[ 46 ] The appellants further argue that s. 648(1) should not be read as protecting prospective jurors because, in their submission, the voir dire process for selecting jurors could minimize any prejudice arising from publication prior to the empanelment of the jury.

[ 47 ] I disagree with the appellants. Parliament's intent to protect the fundamental interest of the accused in being tried by jurors who are not exposed to, and biased by, the content of and rulings on matters heard in their absence is immediately apparent from the wording of the provision — which bans the publication of information regarding portions of the trial at which the jury is not present — and readily inferable from Hansard.

[ 48 ] I note that at the time of s. 648(1)'s enactment in 1972, the publication ban for bail hearings under s. 457.7 (now s. 517) was also before Parliament. The Standing Senate Committee on Legal and Constitutional Affairs commented that bills C-71 and C-73, which enacted the bail publication ban, shared the objective of preventing jury bias (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 8, 4th Sess., 28th Parl., June 1, 1972, at p. 8:18).

[ 49 ] On careful consideration, Parliament aimed to shield the jury from information about any portion of the trial from which it was absent, so that its verdict is based only on the evidence found admissible in court. This objective is relevant with respect to both the existent jury and the jury yet to be empanelled.

[ 50 ] This objective makes sense. Prospective jurors who have knowledge of what is being heard before the jury is selected — but who will not themselves hear it as part of the formal jury — carry the same potential for bias as members of the empanelled jury who become aware of what was said in their absence.

(2) Interest in an Efficient System of Trial by Jury

[ 51 ] Parliament intended to introduce an automatic publication ban that would, by its nature, require no judicial intervention. Parliament must have had delays and judicial resources in mind when it removed judicial discretion and put in place an automatic mechanism instead.

[ 52 ] Historically, courts had to weigh the interests of the accused in having a fair trial against the open court principle whenever a publication ban was requested in a criminal trial, in the absence of a statutory provision. This was an expensive, time-consuming process. It would also be costly in terms of judicial resources if a separate discretionary ban had to be applied for every pre-empanelment hearing covered by s. 645(5), which is typically more than one in a complex case.

[ 53 ] Under s. 648(1), courts do not need to spend time on applications for publication bans because the ban applies automatically, without any intervention. Thus, automatic publication bans under s. 648(1) allow for the earlier hearing of matters in relation to criminal trials, with the assurance that the empanelment of jurors will not be compromised.

[ 54 ] An absurd interpretation should be avoided (R. v. Alex, 2017 SCC 37, at para. 31). If s. 648(1) applied only after the jury is empanelled, counsel would have to seek a discretionary publication ban at every pre-empanelment hearing covered by s. 645(5). This result would be contrary to Parliament's intent to introduce an automatic mechanism that would reduce delays and promote the efficient hearing of matters.

[ 55 ] While no evidence in these appeals establishes that publication prior to the empanelment of a jury has caused harm to the administration of justice, such harm is reasonably foreseeable. The harm of publishing information from voir dires, stays of proceedings, and constitutional challenges in criminal cases — that is, sensitive litigation information — seems obvious.

[ 56 ] Conversely, the temporary nature of the ban under s. 648(1) means that the public will ultimately be informed of what took place at these proceedings. The ban is therefore a limited and temporary exception to the open court principle.

(3) Conclusion

[ 57 ] All of the above leads me to conclude that s. 648(1) was designed to safeguard the right to a fair trial by averting jury bias and by ensuring the efficiency of our system of trial by jury. This is consistent with this Court's existing conception of trial fairness as being concerned not only with averting jury bias by banning "pre-trial" publicity but also with protecting the accused's other fundamental interests. In Toronto Star, at para. 23, Justice Deschamps characterized Parliament's primary objectives in enacting the publication ban in s. 517 of the Criminal Code as being "(1) to safeguard the right to a fair trial; and (2) to ensure expeditious bail hearings". The former, she wrote, embraces the latter (para. 24). A similar view was adopted in Jordan, where fair trial interests encompassed the interest in an efficient criminal justice system (R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 26-27).

E. Meaning of Section 648(1)

[ 58 ] All indicators of legislative meaning — text, context, and purpose — admit of only one interpretation of s. 648(1): that it applies not only after the jury is empanelled but also before the jury is empanelled with respect to matters dealt with pursuant to s. 645(5). Said another way, if a judge would traditionally have had jurisdiction to hear a matter before the jury was empanelled without having to rely on s. 645(5), then that matter is not within the scope of s. 648(1). As I have found no ambiguity after conducting the full interpretive exercise, there is no need, contrary to what some of the parties argued, to resort to external aids such as the principle of strict construction of penal laws or the presumption of conformity with the Charter (Bell ExpressVu, at para. 55).

[ 59 ] In 1972, information heard at trials in the absence of the jury was prohibited from publication. The law prohibiting the publication of such information has not changed now that those hearings also happen before the jury is empanelled. Without clear language"a statute should not be interpreted as substantially changing the law" (R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21). Section 648 has not been substantially amended, and s. 645(5) does not contain any language signifying an intent to remove hearings held pursuant to s. 645(5) from the scope of the publication ban.

[ 60 ] In closing, I will say a word on the use of subsequent legislative history, that is, the record of the process, materials, and debate that followed s. 648(1)'s enactment, in the interpretation of this provision.

[ 61 ] The appellants in both appeals make much of the withdrawal of a clause that would have amended s. 648(1) to make it expressly applicable "in respect of any matter dealt with by a judge before any juror is sworn". In 1994, the Minister of Justice explained to the House of Commons that the government's initial intention was to "fill a gap" with respect to evidence-related pre-empanelment motions whose publication "might contaminate members of a prospective jury" (House of Commons Debates, vol. 133, No. 143, 1st Sess., 35th Parl., December 13, 1994, at p. 9010 (emphasis added)). He added that the language of clause 62 "might be overbroad" and that it was accordingly to be removed from Bill C-42 (ibid.).

[ 62 ] In the submission of La Presse and CBC, the fact that Parliament considered but ultimately refrained from expressly broadening s. 648(1)'s scope indicates that this provision has always — from 1972 until today — been meant to apply only after the jury is empanelled. Put differently, they ask this Court to infer that because Parliament in 1994 might have found it necessary to amend s. 648(1), this tells us something about what Parliaments in 1972 or 1985 intended with respect to this provision and its interaction with s. 645(5).

[ 63 ] I would decline to place any weight on the 1994 amending clause and its withdrawal. My view is that proposed but abandoned amendments are of no assistance in identifying the meaning of the legislation that would otherwise have been amended. In this regard, I adopt the reasoning of Justices Cory and Iacobucci in M. v. H., [1999] 2 S.C.R. 3, at para. 105:

With respect, I cannot agree that a failed amendment can provide evidence as to the objective of the legislation that was to have been amended. Section 17 of the Interpretation Act, R.S.O. 1990, c. I.11, provides: "The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law." If the amendment of an Act may not be used to interpret the meaning of the Act prior to the amendment, then I do not see how a failed amendment may be used in this manner. [Emphasis in original.]

This reasoning applies equally to federal legislation given s. 45(3) of the Interpretation Act, R.S.C. 1985, c. I-21 (stating that the "repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law") and in light of logical limits of relevance.

VI. Determining Whether s. 645(5) Captures a Pre-Empanelment Proceeding

[ 64 ] Section 648(2) makes it a summary conviction offence to violate the s. 648(1) publication ban — a ban that applies automatically, by operation of statute, with no need for a court order.

[ 65 ] I recognize that interpreting s. 648(1) as applying before the jury is empanelled, but only to some matters, could give rise to uncertainty over what matters are covered by the publication ban (see Millard, at para. 65; I.F., British Columbia Civil Liberties Association, at para. 37). And I am mindful that courts should avoid creating uncertainty, especially in criminal law, because "[i]t is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act" (R. v. Breault, 2023 SCC 9, at para. 27, quoting R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 14). While these concerns did not drive the above interpretive exercise, I wish to provide some guidance to mitigate any uncertainty.

[ 66 ] Section 648(2) creates a "true crime" and thus is subject to the presumption that a person should not be held liable unless the person acted intentionally or recklessly, with knowledge of the facts constituting the offence (R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 23; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1303 and 1309-10). For the practical effectiveness and clarity of the publication ban itself, and to avoid potential barriers to prosecution for violating the ban, it would therefore be prudent for judges holding a hearing pursuant to s. 645(5) to announce that they are exercising their jurisdiction under that section and to note that s. 648(1) automatically prohibits the publication of any information regarding that portion of the trial.

[ 67 ] I anticipate that the above approach will provide sufficient certainty. It would not be a worthwhile effort to attempt to provide a comprehensive list of matters that would be captured or excluded by s. 648(1). I note, just as a descriptive observation, that most kinds of hearings taking place before a jury is empanelled will be covered by this prohibition. For example, there is no dispute that evidentiary voir dires would be covered (Duhamel, at p. 560; R. v. Lalo, 2002 NSSC 21, 207 N.S.R. (2d) 203, at para. 19; R. v. Ross, [1995] O.J. No. 3180 (QL), 1995 CarswellOnt 3173 (WL) (C.J. (Gen. Div)), at para. 3, per Salhany J.; R. E. Salhany, Canadian Criminal Procedure (5th ed. 1989), at pp. 189-90): these are matters for which a judge clearly relies on s. 645(5) jurisdiction in holding the voir dire before the jury is empanelled.

[ 68 ] This Court's analysis in Litchfield provides a useful framework for assessing whether a matter is being dealt with by virtue of s. 645(5) or whether it could always have been dealt with, even in the absence of s. 645(5), before the jury was empanelled. In Litchfield, the question was whether a motion for division or severance of counts had to be made "at trial" or if it could be dealt with before the trial by a judge other than the trial judge. This Court looked to the following features in holding that division and severance motions must be dealt with "at trial" and can therefore be dealt with only by virtue of s. 645(5) if the jury has not yet been empanelled:

(a) Does the motion "concer[n] the indictment"? Must the indictment have been "preferred" or, in the language of R. v. Chabot, [1980] 2 S.C.R. 985, does the indictment need to be the "operative document"? See Litchfield, at pp. 350-52.

(b) Must the person hearing the matter be the trial judge seized with the trial? This includes a consideration of practical or policy reasons to have the matter dealt with by the trial judge (see Litchfield, at pp. 352-53). Today, this question would be asked in the context of the new jurisdiction of case management judges under s. 551.3: But for the jurisdiction of case management judges, would the matter have to be dealt with by the trial judge?

[ 69 ] In Litchfield, these features together led to the conclusion that a motion for division or severance of counts had to be dealt with by the trial judge. For one thing, the majority concluded that "no one except the trial judge ever has jurisdiction to divide or sever counts since an indictment is only preferred at the opening of an accused's trial" (p. 352). Further, the practical or policy rationale was that if it were open to a judge other than the trial judge to rule on these motions, the resulting order would be immunized from review due to the rule against collateral attack: ". . . 'a court order, made by a court having jurisdiction to make it,' may not be attacked 'in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment'" (Wilson v. The Queen, [1983] 2 S.C.R. 594, at pp. 599-600, quoted in Litchfield, at p. 352).

[ 70 ] Justice Iacobucci, writing for the majority, continued:

. . . it makes sense that the trial judge consider applications to divide and sever counts since an order for division or severance of counts will dictate the course of the trial itself . . . . Not only are trial judges better situated to assess the impact of the requested severance on the conduct of the trial, but limiting severance orders to trial judges avoids the duplication of efforts to become familiar enough with the case to determine whether or not a severance order is in the interests of justice. It seems desirable, therefore, that in the future only trial judges can make orders for division or severance of counts in order to avoid injustices such as occurred in this case. [Emphasis added; p. 353.]

[ 71 ] Concerns about appealability also played a role in Garofoli. There, the majority held that it is the trial judge, rather than the issuing court, that must review a wiretap authorization when the accused asserts an infringement of s. 8 of the Charter and asks that the resulting evidence be suppressed under s. 24 (pp. 1448-49). The majority first noted that "[a]n objection to the reception of evidence is very much a necessary incident of the trial process" (p. 1449), and also found that placing this review in the hands of the trial judge "would remove any doubts as to the right to appeal a decision rejecting or admitting the evidence" (p. 1450). Sopinka J. was skeptical that such a decision would be reviewable on appeal under the former approach, where evidence would be admitted or rejected during the voir dire on the basis of a review of whether it was "reliable and not unduly prejudicial" (p. 1450).

[ 72 ] This reasoning from Litchfield and Garofoli highlights the sorts of considerations that have drawn courts to conclude that certain matters must be dealt with by the trial judge (again, but for the new jurisdiction of case management judges).

[ 73 ] To address submissions from the Crown respondents on the pre‑empanelment scope of s. 648(1), I wish to make two further observations in relation to case management judges and pre-trial conferences.

[ 74 ] The Quebec Crown submitted that the list of matters in s. 551.3(1)(g) could help clarify the pre‑empanelment scope of s. 648(1). Sections 551.1 to 551.7 were introduced as Part XVIII.1 of the Criminal Code by the Fair and Efficient Criminal Trials Act, s. 4. These provisions, as amended, allow a case management judge to "exercis[e] the powers that a trial judge has before" "the stage of the presentation of the evidence on the merits" (s. 551.3(1)). Section 551.3(1)(g) does not expand the powers of a case management judge beyond those of a trial judge. Section 551.3(1)(g) allows the case management judge to "adjudicat[e] any issues that can be decided before that stage". Thus, even under s. 551.3(1)(g), some of what a case management judge does is traceable to the jurisdiction that only a trial judge would have had in the absence of ss. 551.1 to 551.7, and therefore falls within the scope of s. 648(1).

[ 75 ] The B.C. Crown submitted that s. 648(1) covers even the pre-trial conference required for jury trials by s. 625.1(2). Section 625.1 was introduced alongside s. 645(5) in 1985 and came into force in 1988. Section 625.1(2) mandates a conference, not a hearing of matters. These conferences are held under rules enacted by courts of criminal jurisdiction and provincial and territorial courts under ss. 482 and 482.1 of the Criminal Code. They are generally for considering matters that would promote a fair and expeditious trial, including the scheduling of hearings, and that can be resolved before the jury is empanelled (see, e.g., Criminal Rules of the Supreme Court of British Columbia, SI/97-140, r. 5; Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002, SI/2002-46, rr. 39 to 44; see also Criminal Rules of the Alberta Court of Justice, r. 4.2(7)(a)).

[ 76 ] I reiterate that s. 648(1) applies before the jury is empanelled only when a judge is exercising jurisdiction traceable to 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. Generally, a pre-trial conference is not that. The Alberta Court of Justice, however, has enacted a rule allowing the pre-trial conference judge to "make any ruling a case management judge acting under section 551.3 of the Code may make, except a ruling under sections 551.3(1)(e) or 551.3(1)(g) of the Code" (Criminal Rules of the Alberta Court of Justice, r. 4.2(7)(a)). Without deciding whether rules enacted under ss. 482 and 482.1 can expand the jurisdiction of a pre-trial conference judge,[^1] I emphasize that s. 648(1) would apply to any ruling that a pre-trial conference judge makes pursuant to a power that is traceable to trial judges' jurisdiction under s. 645(5).

[ 77 ] Publication of information that comes out at pre-trial conferences may very well be prejudicial to the fair trial interests of the accused. The fact that there will be potentially prejudicial proceedings not covered by the automatic publication ban found in s. 648(1) was recognized as far back as 1979. In R. v. Deol (1979), 20 A.R. 595 (Q.B.), at para. 31, the judge noted that s. 648(1) (then s. 576.1) left a "lamentable gap" in relation to "possibly prejudicial proceedings between the end of the preliminary hearing and the moment when the jury is first permitted to separate". But s. 648(1), as interpreted above, does not reach so far as to apply automatically to all aspects of a pre‑trial conference. This would be an interpretation that the text cannot reasonably support. It is open to courts to fill any gap in relation to pre‑trial conferences through their rule‑making authority under ss. 482 and 482.1 of the Criminal Code, and judges retain inherent jurisdiction to impose discretionary publication bans in accordance with the Dagenais/Mentuck/Sherman principles.

VII. Dispositions

[ 78 ] Since I have interpreted s. 648(1) as applying before the jury is empanelled to matters dealt with pursuant to s. 645(5), I would dismiss both appeals.

[ 79 ] In Mr. Silva's case, David J. understood s. 648(1) as applying to matters dealt with before the jury is empanelled. He did not specify, however, whether it would cover information about all matters or only those dealt with pursuant to s. 645(5). Regardless, the order dismissing the application to lift the publication bans should be upheld. One of the matters dealt with by David J. concerned the admissibility of evidence (a Garofoli application). The other was a motion for a stay of proceedings for abuse of process. This clearly concerned the indictment and had to be dealt with by the trial judge (or case management judge exercising the powers of a trial judge) so that it would be reviewable on appeal from the conviction. Therefore, it is only by virtue of s. 645(5) that these matters could be dealt with prior to the empanelment of the jury, and it follows that they are covered by s. 648(1).

[ 80 ] The reasoning in Mr. Coban's case was that s. 648(1) applies to "all pre‑trial applications" (para. 2). This is not consistent with the proper interpretation of s. 648(1). However, the order was simply as follows: ". . . the Application to clarify or declare that the publication ban herein pursuant to section 648 of the Criminal Code of Canada applies only to proceedings after the jury is empanelled, is dismissed" (A.R., CBC et al., at pp. 7-8). The media had applied for a declaration that s. 648(1) applies only after the jury has been empanelled. The judge dismissed that application. That was the extent of the order. While the judge did not adopt the interpretation I have presented, the dismissal is consistent with the proper interpretation of s. 648(1). I would therefore dismiss the appeal.

[ 81 ] I would award no costs as none were sought.

Appeals dismissed.

Solicitors

Solicitors for the appellant La Presse inc.: Prévost Fortin D'Aoust, Boisbriand, Que.

Solicitors for the appellants the Canadian Broadcasting Corporation, Global News, a division of Corus Television Limited Partnership, Postmedia Network Inc., CTV News, a division of Bell Media Inc., Glacier Media Inc., CityNews, a division of Rogers Media Inc., Globe and Mail Inc. and Torstar Corporation: Owen Bird Law Corporation, Vancouver.

Solicitor for the respondent His Majesty The King (40175): Director of Criminal and Penal Prosecutions, Québec.

Solicitor for the respondent His Majesty The King (40223): B.C. Prosecution Service — Criminal Appeals and Special Prosecutions, Victoria.

Solicitor for the respondent Frédérick Silva: Centre communautaire juridique de Québec — section criminelle, Québec.

Solicitors for the respondent Aydin Coban: Martland & Saulnier, Vancouver.

Solicitors for the intervener: McCarthy Tétrault, Vancouver.

[^1]: This issue was considered in R. v. Commanda, 2007 QCCA 947, [2008] 3 C.N.L.R. 311, at para. 47, and R. v. S. (S.S.) (1999), 136 C.C.C. (3d) 477 (Ont. S.C.J.), at para. 47, per Watt J. Both rejected the possibility that rules enacted under s. 482 can confer jurisdiction on a judge when this jurisdiction has not been given by statute.