CBC v. Millard and Smich, 2015 ONSC 6583
CITATION: CBC v. Millard and Smich, 2015 ONSC 6583
COURT FILE NO.: 14-4348
DATE: 2015/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC., SUN MEDIA CORPORATION, CTV, A DIVISION OF BELL MEDIA INC., and THE GLOBE AND MAIL INC.
Applicants
– and –
DELLEN MILLARD
MARK SMICH
And HER MAJESTY THE QUEEN
Respondents
– and –
HAMILTON SPECTATOR,
CHCH-TV and TORONTO STAR
Respondents/Interveners
I. MacKinnon on behalf of the Applicants
R. Pillay on behalf of the Respondent, Millard
T. Dungey and J. Trehearne, on behalf of the Respondent, Smich
A. Leitch, C. Fraser & B. Moodie, on behalf of the Respondent, Crown
B. MacLeod Rogers, on behalf of the Respondents/Interveners
HEARD: October 16, 2015
A. J. Goodman J.:
THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS
RULING ON MEDIA applicatION TO PUBLISH CERTAIN PRETRIAL MOTIONS
Background
[1] This is an application on behalf of the media coalition for directions with respect to the application of ss. 645(5) and 648(1) of the Criminal Code, R.S.C. 1985, c. C-46, over pretrial motions being heard in this case. There is no constitutional challenge raised in this application.
[2] The accused are jointly charged with first degree murder arising from the death of Tim Bosma, who disappeared in May 2013.
[3] Pretrial motions have commenced on a variety of issues with the jury selection slated to commence on January 18, 2016.
[4] Several media outlets, after expressing an interest in making submissions or participating in this application, were granted intervener status in this application.
Position of the Parties
[5] Understandably, Mr. Bosma’s disappearance and murder have given rise to considerable concern and public interest. Various media outlets have provided ongoing coverage of the case prior to the pretrial motions. In addition to significant public and media interest in the case in Canada, the proceedings have also attracted media attention in the United States and England.
[6] The applicant and respondent intervener (“media coalition”) join in their argument in support of the application. The media coalition seeks to continue reporting on this case during the course of the pretrial motions and trial proceedings. The media coalition submits that a proper interpretation of the relevant sections found in the Code recognizes that not all pre-trial proceedings are subject to the automatic publication ban under s. 648(1). Rather, some motions ought to fall under the presiding judge’s common law discretion in accordance with the oft quoted “Dagenais/Mentuck” test.
[7] In particular, the media coalition seeks an Order that certain pre-trial motions are not subject to a statutory publication ban and that information regarding these motions may be published, subject to the Crown or defence meeting the “Dagenais/Mentuck” test. These particular pre-trial motions include:
a) Application for change of venue;
b) Application to allow the accused to sit at counsel table;
c) Motion to have lunch brought in by defence counsel for both accused.
d) Motion to unshackle the accused;
e) Motion for a shower and shave for Millard before court each day;
f) Motion to allow the accused to read case-related and spiritual material in their cells at the courthouse;
g) Motion to use pencil and paper during pre-trial motions in court.
[8] The media coalition submits that this Court ought to follow the approach of Heeney J. in R. v. Rafferty 2010 ONSC 6980, 2010 CarswellOnt 18591, and in R. v. Sandham, [2010] O.J. No 5637 (S.C.), in interpreting and applying ss. 645(5) and 648(1) with respect to publication bans over certain pre-trial motions. Justice Heeney’s approach on this issue better reflects the actual language and underlying purpose of ss. 645(5) and 648.
[9] There is clear direction from the Supreme Court of Canada to restrict the openness of judicial proceedings as minimally as possible to meet the specific concerns at issue. The media coalition adds that any such publication ban must be tailored to meet the test: the ban “is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk.” There are appropriate tools available to the judge to control the proceedings and ensure that the fair trial rights of the accused are protected without sacrificing the principle of openness to an automatic, complete ban on all pre-trial proceedings if they are presided over by a judge appointed pursuant to s. 645(5).
[10] The media collation argues that, in effect, the respondents are seeking an extraordinary prohibition on any publication of all proceedings that take place before the designated trial judge prior to trial.
[11] The Crown and defence assert that s. 648 provides a blanket statutory ban on all reporting of any information whatsoever concerning pre-trial applications, whatever their nature, provided they are brought before the designated trial judge, rather than some other Superior Court judge. In short, following the logic of the Crown’s and defence’s arguments, absolutely nothing about any of these pre-trial proceedings can be published because they are subject to an automatic statutory prohibition, rather than judicial discretion, at least until the jury retires to consider its verdict.
[12] The media submits that justice must not only be done, but be seen to be done, including pre-trial motions that do not fall under ss. 645(5) and 648(1). Postponing that right and opportunity to a future date, after the accused’s trial is completed, is an unjustified breach of freedom of expression rights. In a free and democratic society, the public needs to be informed of information concerning criminal proceedings and have an opportunity to understand the reasons for pre-trial motions and the basis for a court’s decision on such motions, at the time they occur. Thus, this Court ought to grant the application to publish certain pretrial motions.
[13] The Crown, Mr. Millard and Mr. Smich (“the respondents”) join in their opposition to the applicant media’s application and intervener’s submissions. The respondents submit that s. 648(1) of the Criminal Code is a statutory safeguard that delays publication of all matters addressed in a jury’s absence until they retire to consider their verdict. The section ensures that jurors, prospective or current, do not indirectly know about the content of discussions they ought not to hear. This publication delay (often referred to erroneously as a “ban”) strikes a balance between two important rights, namely the public’s right to know what is going on in our courts (openness) and the public’s concurrent right to have criminal matters decided by a jury that is as untainted as reasonably possible.
[14] The respondents submit that s. 648(1) is clear and unambiguous. Openness is an extremely important component of our justice system, but it is a red herring in this discussion. Courts should not be using openness principles to re-write perfectly clear legislation in a manner the media would prefer. The defence submits that the broad language of s. 648(1) identifies that no information regarding any portion of the trial, evidentiary or otherwise, at which the jury is not present is subject to the ban. In order to avoid inconsistency in the legislative regime, the scope of ss. 645 and 648(1) apply at all stages of the trial proceedings. The Crown’s position can be distilled to specific propositions including timing, nature of motions, and the reference to “all information” in s. 648.
Legal Principles
[15] Section 648(1) of the Criminal Code provides the following:
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.
[16] The importance of court proceedings being open and reportable to the public was well established at common law prior to the Charter. The open court principle, permitting public access to court proceedings, is deeply rooted in the Canadian justice system. The strong public policy in favour of openness and of “maximum accountability and accessibility” in respect of judicial or quasi-judicial acts pre-dates the Charter: A.G. (Nova Scotia) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, at p. 184. As Dickson J. stated at pp. 186-187: “At every stage the rule should be one of public accessibility and concomitant judicial accountability” and “curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance.”
[17] Now recognized as a fundamental aspect of the rights guaranteed by s. 2(b) of the Charter, the open court principle has taken on added force as “one of the hallmarks of a democratic society” that deserves constitutional protection: Canadian Broadcasting Corp. v. New Brunswick (A.G.), 1996 184 (SCC), [1996] 3 S.C.R. 480 at para. 22. The open court principle and the rights conferred by s. 2(b) of the Charter embrace not only the media’s right to publish or broadcast information about court proceedings, but also the media’s right to gather that information, and the rights of listeners to receive the information. “[T]he press must be guaranteed access to the courts in order to gather information” and “measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press”: CBC v. New Brunswick, at para. 26.
[18] In R. v. Canadian Broadcasting Corp., 2010 ONCA 726, the Court of Appeal, at paras. 22-24, summarized the importance of the open court principle in the following way:
The Supreme Court of Canada described the openness of the courts and judicial processes as being “necessary to maintain the independence and impartiality of courts”, “integral to public confidence in the justice system” and “a principal component of the legitimacy of the judicial process.”
[19] The Supreme Court of Canada has also recognized the importance of freedom of expression to a free and democratic society and has held that it should only be limited in the clearest of cases. As Cory J. stated in Edmonton Journal v. Alberta (Attorney general), 1989 20 (SCC), [1989] 2 S.C.R. 1326, at p. 1336:
Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.
[20] In CBC v. New Brunswick, the openness principle was recognized by the Supreme Court of Canada as an important aspect of s. 2(b) of the Charter. The Court also relied on Edmonton Journal v. Alberta to reiterate that the principle is equally important to listeners as speakers/publishers. At para. 23, LaForest J. stated the following:
The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place. Cory J. in Edmonton Journal described the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory. At pages 1339-40, he states:
That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings – the nature of the evidence that was called, the arguments presented, the comments made by the trial judge – in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media. [Emphasis added by LaForest J.]
[21] In the leading cases of Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, the Supreme Court developed what has been referred to as the “Dagenais/Mentuck test”. This standard of analysis or “test” has been consistently and applied to all discretionary judicial orders limiting the openness of judicial proceedings. In circumstances where the test is applicable, the Supreme Court of Canada directs that when considering a publication ban, a court ought to determine that:
a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
[22] In Dagenais, the Supreme Court held that the pre-Charter common law rule regarding publication bans gave inadequate recognition to the importance of s. 2(b) of the Charter and the public's right to know about court proceedings. In discussing the import of the open court principles in the post-Charter era, Lamer C.J. stated at p. 915, that “the pre-Charter common law rule governing publication bans [which] emphasizes the right to a fair trial over the free expression interests of those affected by the ban” was “inconsistent with the principles of the Charter”, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d): Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332 at paras. 24-26, Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. at para. 1; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, (upholding the ban under s. 517 of the Code as constitutional).
Analysis
[23] Numerous cases of the Supreme Court of Canada and the Ontario Court of Appeal have established that the principle of openness lies at the very foundation of the judicial system. It is not contested that there is an essential right of the public to learn about judicial proceedings, on a timely basis, so that they can be informed, and the proceedings can be subject to public scrutiny and discussion in a free and democratic society. It is also important for the public to maintain confidence in the operations of the justice system.
[24] This is a most challenging issue because there is a divergence of approaches and opinion to this question from the Superior Courts of Ontario, with no appellate direction.
[25] I agree with the respondent’s collective submission that the purpose of s. 648 is designed to protect an accused's right to a fair trial based only on evidence heard at the trial proper before a jury. It protects the right of the public to a fair trial without any publicity which could prejudice the jury against the Crown or the accused. Section 648 promotes the important goal that justice be seen to be done, and hence public confidence in the judicial system, by enabling the public to be confident that the pretrial proceedings do not contaminate the fairness of the later trial, through prejudicial publicity. It promotes the proper administration of justice by ensuring that the events occurring in open court at the pretrial stage do not come to the attention of and contaminate potential witnesses and it prevents an accused person from facilitating the creation of prejudicial pretrial publicity which could then make it more difficult for the state to meet its obligation to ensure a fair trial. Finally, when juxtaposed with s. 645(5), it ensures the smooth operation of the jury trial itself, with a minimum of disruptions, by fully enabling the parties to a prosecution to fully litigate all matters that should occur outside the jury's presence, before the jury is empanelled. The applicant does not take any real exception to these broad principles.
[26] Section 648 of the Criminal Code may provide similar protections from publication as s. 539 (non-publication orders at preliminary hearings) and s. 517 (non-publication orders regarding bail hearings), but s. 648 differs from those sections because it does not require “an application by a litigant” before the ability to publish is restricted. Accordingly, the section does not require a court order to operate. And, the strict language found in s. 648 does not provide for any exceptions.
[27] In R. v. Ahmad, [2009] O.J. No. 6150 (S.C.), Dawson J. had the opportunity to consider this issue at para. 13:
As there is no ambiguity in the legislation itself which would allow me to cast an interpretation upon s. 648 that would minimize its potential impairment of the interests protected by s. 2(b) of the Charter, this court has no role altering the breadth of the section as enacted by Parliament in the absence of a constitutional challenge to the section.
[28] On this point, in Rafferty, at para. 16, Heeney J. unequivocally agreed:
Since there was no Charter challenge before him, Dawson J. declined to determine whether s. 648(1) should be "read down" to permit the publication of some information relating to pre-trial motions, as had been done in Regan, Brown, and Malik. I agree. There is no Charter challenge before me either, and in my view the plain words of s. 648(1) prohibiting the publication of "any information" must be given their ordinary meaning. In stating that he was not inclined to take the approach I took in C.B.C., Dawson J. may have interpreted my decision to have opened the door to publishing information about a motion to which s. 648(1) applied. That is not my view. If s. 648(1) applies, that is the end of it, subject only to a Charter challenge.
[29] Principles of statutory interpretation may be central to this analysis because s. 648 is not a penal provision. At its core, this is a criminal procedure provision and as such, ought not to be construed strictly. Thus, s. 648(1) should be given its full effect to ensure that its important objectives are not compromised. This approach corresponds with the federal Interpretation Act, R.S.C. 1985, c. I-21, s. 12:
Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
[30] That being said, I am persuaded that there is no legitimate need for any Court to interpret the language of the section in any other way than plainly. Conversely, there is no basis to suggest that some other interpretation is required to attain these purposes. “No information” is a phrase so clear it affords no range of meanings. A lengthy exercise of statutory interpretation principles really have no application because the provision, as written, is not vague and, in my view, reflects Parliament’s clear intention.
[31] While addressing a violation of s. 517 of the Code, Sigurdson J. in R. v. Daly (2003), 2003 BCSC 1143, 178 C.C.C. (3d) 31 (B.C. S.C.), was not alone in recognizing the difficulties that would be posed by reading in a “prejudicial” precondition to this kind of section. He held that introducing a “prejudicial” precondition would create, not eliminate ambiguity, in that section. I note that the B.C. Court of Appeal, while upholding the decision, did not necessarily decide whether s. 517 involved a “prejudicial precondition”: R. v. Daly (2005), 198 C.C.C. (3d) (B.C. C.A.).
[32] Distinguishing between prejudicial information and non-prejudicial information is not always an easy task. In R. v. Valentine, 2009 46172 (ON SC), [2009] O.J. No. 5954 (S.C.), Pardu J. addressed a media challenge to the constitutionality of s. 648. The media asked the court to read the section down to only bar publication of “prejudicial aspects of pre-trial motions” thereby allowing the media to determine what is or is not prejudicial to the trial. At para. 8 of her decision, Pardu J. held that distinguishing between prejudicial and non-prejudicial information is not a feasible approach:
The difficulty with this approach is that it may be difficult to identify the “prejudicial aspects” of pre-trial motions which are governed by a mandatory ban. Some motions for example for a stay or Charter relief other than exclusion of evidence may contain material which would never be heard at trial, and which might be seriously prejudicial to the fair trial interests of an accused. A jury trial is almost always imminent when these pre-trial motions are heard. Breach of a mandatory statutory ban is a serious matter; publishers may be unaware of all the issues associated with a criminal proceeding, and it may be difficult for them to make judgment calls as to what will or will not violate the ban.
[33] It is true that some types of pre-trial motions can be decided by any judge of this court including, but not limited to, the trial judge (for example, an application to change venue, an application for particulars, an application to stay for unreasonable delay or a Rowbotham application). However, others require adjudication by the trial judge only (chiefly Charter or evidentiary rulings). For those motions which required the trial judge, the pre-trial motion process was once more cumbersome than it is now. At one time, juries were picked then sent away for long periods of time while these motions were decided. As mentioned, Parliament addressed the cumbersome process and the inconvenience to jurors by enacting s. 645(5). The section permits trial judges to adjudicate some pre-trial motions before selecting a jury:
In any case to be tried with a jury, a 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.
[34] Section 648 was enacted in its current form in 2006. Its predecessor was first enacted in 1972, then re-enacted as s. 648 in 2005, and then amended and enacted in its current version. Thus, we see that, as currently worded, s. 648 was passed by Parliament at a time when Dagenais (S.C.C. in 1994), Mentuck (S.C.C. in 2001), and Toronto Star (S.C.C. in 2005) were all decided. From my review of the jurisprudence it appeared to have been enacted as presently constructed after numerous lower Courts were split on its interpretation. After all these cases, Parliament did not change the word “information” to “prejudicial information”.
[35] Three recent cases have all addressed this issue directly in exactly the same way. Specifically, in all three, courts have held that the reference to s. 648 to “all information” should not be interpreted to mean “all prejudicial information”: Rafferty, per Heeney J. at para. 16, Ahmad, at paras. 12-13, and R. v. Badhwar, 2009 Carswell Ont 9958 (S.C.).
[36] The respondents argue that various courts have rejected media requests to restrict the operation of section 648 to only those applications adjudicated after jury selection. Timing is really not the issue. While several trial courts in Alberta and elsewhere have held otherwise, I am persuaded that the majority of jurists are agreed on at least this issue: s. 648 at least applies to those pre-trial motions decided before jury selection pursuant to s. 645(5): R. v. Bernardo, [1995] O.J. No. 247 (Gen. Div.) per LeSage A.C.J.; R. v. Ross, [1995] O.J. No. 3180 (Gen. Div.) per Salhany J.; R. v. Brown, 1998 14946 (ON SC), [1998] O.J. No. 482 (Gen. Div.) per Trafford J.; Ahmad, per Dawson J.; Valentine, per Pardu J.; R. v. Canadian Broadcasting Corp., 2008 83941 (ON SC), [2008] O.J. No 5637 per Heeney J.; Rafferty, per Heeney J.; R. v. Malik, [2002] B.C.J. No. 3223 (S.C.) per Josephson J.; R. v. Regan, 1997 11496 (NS SC), [1997] N.S.J. No. 427 (S.C.) per MacDonald J.; R. v. Pickton, [2005] B.C.J. No. 3243 (S.C.) per Williams J.
[37] As I understand the media’s argument, this position flies in the face of clear Supreme Court of Canada precedent that establishes that free expression, openness and reporting on judicial proceedings are rights of equal consideration with that of “a fair and public hearing by an independent and impartial tribunal”. In fact, the position taken by the Crown and defence harkens back to the days prior to Dagenais when fair trial rights “trumped” those of free expression and openness of court proceedings at common law.
[38] The media coalition submits that in light of substantial judicial authority on the open court principle, only the clearest statutory language could abridge so completely the principle of openness for pretrial heard before the jury is empanelled and the broad ban in the judicial proceedings as proposed by the Crown and defence.
[39] The respondents argue that this Court need not issue any order under s. 648 because its operation is statutory. Still, there is a problem. Courts have interpreted the scope of the section in divergent ways, and some uncertainty remains, as there is no clear appellate court direction on point.
[40] When we distill this application to its core, the issue is what, if any motions or information does the section embrace? Clearly, media outlets also need to know where the limits are so they do not transgress s. 648. A misstep by the media is a serious matter that can have significant consequences to the trial process. Transgressing s. 648 not only exposes the media to potential criminal sanction but, depending on what they publish, can raise the spectre of witness tainting, juror sequestration, juror removal, mistrial or change of venue.
[41] According to the media coalition, the Crown and defence have avoided any consideration or discussion of how the following words in s. 648(1) should be interpreted: “After permission to separate is given to members of a jury under s. 647(1)”. By its very wording, the statutory publication ban under s. 648 can only be in place “after permission to separate is given.” The media coalition argues that the respondents’ arguments ignore those words and suggest that an automatic publication ban is imposed over all pre-trial motions, regardless of whether they are before or after permission to separate is given to jury members.
[42] Prior to their selection, the actual members of a jury cannot be known; they have yet to be chosen from the jury panel assembled from the community. As a result, no individual has the focus that a juror would bring to the proceedings involved. Some may be potential jurors, but information about pending proceedings will have no greater impact than any other news.
[43] By using the language, “any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn”, the media coalition submits that this s. 645(5) focuses on those applications – usually concerning admissibility of evidence – that would be brought during a trial after the jury has been sworn. Further, this fits with the scope given to s. 648(1), so that those matters that “ordinarily or necessarily” arise “after permission to separate is given to members of a jury” should be subject to that provision’s statutory ban.
[44] There is no disagreement that the media play an important role. However, some perspective is required. After all, “open courts are undoubtedly a vital part of our legal system and of our society, but their openness cannot be allowed to fundamentally compromise the criminal justice system”: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253.
[45] According to Lamer C.J.C., in Dagenais, at p. 881, this duty to consider alternatives will have been satisfied if: “(1) the ban is as narrowly circumscribed as possible (while still serving its objectives); and, (2) there are no other effective means available to achieve the objectives.”
[46] In Rafferty, Heeney J. held that every pre-trial motion that does not fall within s. 645(5) necessarily falls outside s. 648. His ruling was clear, where he stated at para. 16, “there are certain motions which are not caught by the language of s. 645(5), and therefore do not fall within the statutory ban provided for in s. 648(1).” At para. 18, Heeney J. explained, however, that s. 645(5) is expansive:
Section 645(5) is not restricted to motions which were required, prior to the passage of that section, to be brought during the trial before the trial judge in the absence of the jury, such as motions dealing with the admissibility of evidence. It could also include procedural motions that could be brought have been brought [sic] prior to the selection of the jury, and before a judge other than the trial judge, but which counsel choose to bring before the trial judge so as to have the benefit of the continuity and knowledge of the case that the trial judge offers. Prior to the passage of s. 645(5), counsel may have "ordinarily" chosen to bring such motions before the trial judge during the trial, in order to obtain that continuity, even though these motions could have been brought earlier before someone else. Such motions fall with [sic] s. 645(5), and the statutory ban in s. 648(1) therefore applies.
[47] With respect, I am not persuaded by the approach taken by my colleague in Rafferty. First, by notionally dividing pre-trial motions into two classes created a layer of litigation one might not immediately expect. To that end Heeney J. offered some procedural suggestions. Initially, in Sandham, Heeney J. ruled that any publication restriction for motions falling outside s. 648 were discretionary so the Dagenais/Mentuck test had to be satisfied. Such pre-trial applications were presumptively publishable unless the litigants satisfy their onus seeking a ban on publication. The litigants were compelled to identify those applications that fell outside s. 648 then make an application on notice to the media for a publication ban or restriction. In Rafferty, Heeney J. re-considered the authorities and changed his procedure somewhat from that employed in Sandham. Justice Heeney held that motions falling outside s. 648 would start off as not publishable unless and until the media acted. Only if the media sought leave to publish a pre-trial application would litigants then be required to copy and forward material to the media and a date would be set to argue the matter. There is an argument that this procedure provides for an additional layer of litigation and a process that could detract from the substantive issues to be decided in the pre-trial proceedings and lead to further protracted litigation.
[48] In Ahmad, Dawson J. declined to follow the approach taken by Heeney J. in Sandham. Justice Dawson held there was only one class of pre-trial motion before the trial judge and they were all captured by s. 648. At paras. 12-13 he explained:
I agree with the submissions made by counsel for some of the accused that Parliament deliberately used broad language for the purpose of ensuring a fair trial. I also agree with counsel's submissions that prejudice to fair trial interests can flow from procedural motions, as well as from evidential motions. By prohibiting the publication of "any information regarding any portion of the trial at which the jury is not present," Parliament ensured that prejudice from any pre-trial proceeding before the trial judge would be caught. I also note that such motions will generally take place shortly before the jury is selected when the risk of prejudice is heightened.
Although some of the motions I am dealing with could have been brought before another judge of this court, counsel brought them before me on the basis that they are best dealt with in the context of the evidence in this case by the judge who will preside once the jury has been empanelled. Once such a determination was made s. 648 applied pursuant to s. 645(5). As there is no ambiguity in the legislation itself which would allow me to cast an interpretation upon s. 648 that would minimize its potential impairment of the interests protected by s. 2(b) of the Charter, this court has no role altering the breadth of the section as enacted by Parliament in the absence of a constitutional challenge to the section.
[49] Justice Dawson is not the lone voice on this issue. In Badhwar, Glass J. treated all pre-trial motions the same and held that they all fell under the publication ban. In that case, Glass J. made an order restricting publication of pretrial motions under ss. 645(5) and 648. Thereafter the media sought to re-open the matter because they argued that things had changed. The Crown argued that there was nothing to re-open because the sections operated automatically making the s. 648 order mandatory. In addressing the issue, Glass J. wrote at para. 12:
Mr. MacKinnon, for the [media] Applicants, takes the position that the June 15th order is not mandatory because it does not deal with evidentiary matters. There has been a change of circumstances because the Defence application for a stay of proceedings resulting from an abuse of process has been dismissed. In addition, the Defence change of venue motion was dismissed.
[50] Justice Glass rejected the media application in very strong terms at paras. 13 and 16:
I conclude that the order is mandatory pursuant to sections 645(5) and 648 of the Criminal Code. This is not a discretionary order pursuant to the common law. I do not find that there is an exception with the abuse of process and change of venue applications. They are simply part of the pre-trial applications. The sections state that no information is to be disclosed. There is not room for derogation from those terms.
I am prepared to grant Mr. MacKinnon intervenor [sic] status so that his application might be presented. In effect, his clients are asking whether my order of June 15th meant to include all information. My answer is yes.
[51] As the litigants point out, Heeney J. weighed in last on this issue in Rafferty wherein he considered Ahmad, and stated, at paras. 19 and 21:
What was not addressed in Ahmad, though, was how to deal with a motion that simply could not have been brought before the trial judge, after the jurors had been sworn and in their absence. One obvious example of this is a motion for a challenge for cause. By definition, it must be dealt with before the jury is sworn, because it determines the methodology by which the jury will be selected. Another example is a motion for a change of venue, which the defence intends to bring in the case at bar, but which has yet to be formally filed. Pursuant to s. 599(1), such a motion may be brought before any judge who sits in the court before which an accused is to be tried, "at any time before or after the indictment is found". Clearly, therefore, this is not a motion which is “necessarily" dealt with by the trial judge in the absence of the jury after it is sworn. Nor can it be said to be one that is "ordinarily" dealt with after the jury is sworn. The venue of a trial has to be established before a trial is even scheduled, let alone a jury selected. It is impossible to imagine an accused moving for a change of venue after having participated in the selection of the jury that will try him.
While Dawson J. did rule that s. 648(1) applied to all pre-trial motions and applications that had proceeded before him since Sept. 24, 2007, we do not know what those motions and applications were. It may well be that they did not include any motions in the narrow category discussed above, such as a change of venue, that could not have been brought during the trial in the absence of the jury. That may explain why the point I have been discussing was never addressed in Ahmad. (Emphasis added)
[52] With respect, I agree with the respondents that there are two problems with Heeney J.’s more recent treatment of s. 648. There are many examples to illustrate this point. First, it does not appear that Heeney J. considered Glass J.’s decision in Badhwar which clearly includes change of venue as one of the applications under the s. 648 umbrella – a kind of pre-trial application Heeney J. expressly excludes. Second, while Heeney J. acknowledged that Dawson J. ruled that s. 648(1) applied to all pre-trial motions, Heeney J. explained he did not know if there were any pre-trial rulings that could have been decided by a non-trial judge. Justice Dawson delivered his judgment on the s. 648 issue, thereafter Dawson J. released a judgment on challenge for cause, precisely the type of motion that Heeney J. held fell outside this provision. Justice Dawson held change of venue fell within s. 648. He delivered a judgment regarding an application for particulars under s. 587 (which can be ordered by any court) and an application to split a count under s. 590(2) (which must be the trial court). Justice Dawson also heard argument on an application to strike down the provisions defining the offences charged. This kind of application would necessarily have to happen before a jury heard the accused arraigned and need not be considered by the trial judge.
[53] Even in those cases that have found that a publication ban under s. 648(1) can apply to pre-trial motions and all other trial proceedings heard in the absence of the jury, it is clear that the scope of such a ban must be in accordance with Charter principles and interpreted in a manner that minimally impairs freedom of the press. Some cases have found that only “information” which would reasonably be expected to taint a juror's impression of the accused (or otherwise prejudice a fair trial) should not be published until the jury is sequestered: Bernardo; Regan; Malik; R. v. Brown, [1997] O.J. No. 6170; R. v. Brown, [1997] O.J. No. 6168 (Gen. Div.)
[54] In Phillips v. Nova Scotia, (Commission of Inquiry into the Westray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97, an accused facing criminal charges brought an application to stay a public inquiry on the basis that pre-trial publicity would prejudice their right to a fair trial. In allowing the public inquiry to proceed despite the pending criminal trial, Cory J. stated at paras. 133:
I am of the view that this objective [a fair trial] is readily attainable in the vast majority of criminal trials even in the face of a great deal of publicity. The jury system is a cornerstone of our democratic society. The presence of a jury has for centuries been the hallmark of a fair trial. I cannot accept the contention that increasing mass media attention to a particular case has made this vital institution either obsolete or unworkable. There is no doubt that extensive publicity can prompt discussion, speculation, and the formation of preliminary opinions in the minds of potential jurors. However, the strength of the jury has always been the faith accorded to the good will and good sense of the individual jurors in any given case.
[55] As the media coalition points outs, the key issue is whether twelve impartial and fair jurors can be empanelled for the trial of the accused. The law does not require twelve ignorant or oblivious jurors to be selected. The strength of the jury system relies on the assumption that jurors will follow their oath seriously and decide the case before them only on the evidence and submissions they hear in court. It would be naïve to believe that jurors can be impartial and fair only if they are devoid of any knowledge of a case. The strength of the jury system relies on the assumption that jurors will follow their oath seriously and decide the case before them only on the evidence and submissions they hear in court.
[56] That may be entirely true once the array has been presented for selection or once the jurors have been sworn but it does not apply to the public at large and even those who have been summoned to attend court as a part of the array. Jury instructions are not provided in advance, and potential jurors can form preconceived notions and partiality based on even, what appears to be, the most innocuous information arising from a pretrial motion being published.
[57] Most significantly to this case, to permit publication of some or all pretrial motions presented for adjudication, would, in my opinion, wreak havoc with the intended process. In other cases, the publication of failed applications to change venue have formed the basis for successful renewed applications to change venue. That is, some courts have ruled that where the prospective jurors have been informed that the accused has sought to have the trial taken out of their locality for reason of his mistrust of their fairness, this added knowledge, together with their existing prejudice, arguably makes it improbable that the accused will have a fair trial in that locality and change of venue ought then to be ordered: R. v. Fosbraey (1950), 1950 120 (ON SC), 98 C.C.C. 275 (Ont. H.C.), R. v. Nicholas, [1986] N.J. No. 60 (Nfld. S.C.), R. v. Arenburg, [1997] O.J. No. 2411 (Gen. Div.).
[58] Specifically, in this case, one accused brought an application for a change of venue, the other did not. One could conclude, albeit erroneously, that one accused has complete faith in the citizens of Hamilton to render a true and just verdict, while the other may not share such a similar view.
[59] The media coalition’s concerns also focus on the timeliness of publication. If public scrutiny is not timely, it can be lost. In support of this position, the applicants turn to Doherty J.A.’s statement in R v. Domm, 1996 1331 (ON CA), [1996] O.J. No. 4300 (C.A.), at para. 40:
Timely publication may be essential to a meaningful exercise of one’s right to freedom of expression. Sometimes an order delaying publication will be tantamount to an outright ban on publication. The values promoted by s. 2(b) are not served by publication when the speaker has lost his audience and the message to be conveyed has lost its purpose.
[60] However, I note further along the same statement, Doherty J.A. continues: “This is not a case like Fields, supra, where compliance with the court order would result in an irretrievable loss of a right which could not be salvaged by a subsequent setting aside of the order”. In this vein, I agree with the Crown respondents that this is not an absolute publication ban, rather it is of a temporal nature. The ban only lasts until the jury is sequestered and does not result in the irretrievable loss of the media’s rights under the Charter and the jurisprudence.
[61] I disagree with the applicant’s submission that the respondents are asserting that, where a designated trial judge is dealing with pre-trial motions, the ability to control the openness of the proceedings consistent with the Dagenais/Mentuck test has been wrested from the court’s power. Sections 645(5) and 648(1) are not far from being as clear and explicit as would be required for this intended purpose, particularly in light of all of the stakeholders’ Charter values at stake. I reject the media’s contention that the Crown’s and defence’s approach provides an invitation to cloak all such proceedings, and any others between committal and the trial itself, in total secrecy from the public at large.
[62] In my review of the legislative scheme and the interests of a fair trial I do not accept the applicant’s characterization that the temporal non-publishing of pretrial motions provides for a draconian result. If I am in error on this point, in weighing the interests of the parties, any such delay in timing of the eventual release of information is overborne by the accused’s fair trial interests.
[63] Further, I do not accept that there are many other kinds of motions, not directly related to the admissibility of evidence at trial, that may, in whole or part, be properly disclosed to the public. Examples provided include applications for change of venue, particulars, abuse of process, unreasonable delay, challenges for cause or severance of charges and even where an accused may sit at trial. While all of these would ordinarily be dealt with prior to trial or selection of a jury, pursuant to s. 645, they could also be considered after the jury has been empanelled.
[64] I adopt the approach taken by my colleagues in the Ahmad and Badhwar cases. In my opinion, all pre-trial motions adjudicated by the designated trial judge, fall under the s. 648 umbrella. Section 645(5) is a jurisdictional assist, nothing more, as it permits a judge to decide matters that were once delayed until after a jury is selected. Section 645(5) does not limit the operation of s. 648.
[65] Section 648 was broadly framed for legitimate reasons. To adopt an approach requiring counsel to attempt to determine if a particular motion or evidence would “ordinarily” be brought before the trial court and invite argument as to which class particular motions belong would inject significant uncertainty where none should exist. Moreover, I agree with the respondents that to split pre-trial motions into two classes is to increase the burden on litigants and make the proceedings more complex and drawn out than they need to be. I query whether as trial judge, in cases involving multiple pretrial motions, it would be a useful exercise of judicial resources to review all of the applications and rulings to select what potential segmented information could be released to the public; in the face of ensuring that the accused are not prejudiced or their fair trial rights negatively impacted.
[66] My decision is premised on the fact that these pretrial motions fall before me as the designated trial judge. While I find that the statutory ban under s. 648(1) applies in this case, that does not mean that the Dagenais/Mentuck test has been all but neutered in criminal proceedings. The very important role and recognition of the balance between the fair trial interests of an accused with the principles of openness of the courts still remains intact.
[67] The Dagenais/Mentuck test entails that if Charter s. 2(b) rights are to be infringed, any ban to be imposed must be as narrowly circumscribed as possible. Given my conclusion as to the scope of s. 648(1) in this proceeding regarding some of the pretrial motions sought to be published, I need not address this issue further. However, had it become necessary, as an example, pertaining to the arguments regarding the change of venue application, I would have found, for reasons discussed earlier in this decision, that the defence had met their onus for a ban on publication of the proceedings and the results under the common law principles and the Dagenais/Mentuck criteria.
Conclusion
[68] I find that the reference to "portion of the trial" in s. 648 includes all pretrial motions decided by the trial judge whether litigated before or after a jury is picked. Section 648 is not restricted to applications relating to admissibility of evidence and applies to applications of what can be described as procedural or otherwise. The reference to "all information" in s. 648 does not mean or is limited to "all prejudicial information"
[69] Similarly, the reference to “all information” in s. 648 includes, the contents of all documents, including application records, facta and affidavits filed with the Court in relation to pretrial motions as well as all in-court submissions. The media coalitions’ request to obtain pretrial application materials, facta from the parties, and my rulings, at this stage, is denied.
[70] I conclude that the order is mandatory pursuant to ss. 645(5) and 648 of the Criminal Code. This is not a discretionary order subject to the common law. Section 648 states that no information is to be disclosed without differentiation. I am satisfied that this provision of the Code applies to all pretrial motions to be heard in this case before or after a jury is empaneled. As there is no room for derogation from the language in the relevant sections, the ban on publication of all pretrial motions continues by operation of ss. 648(1) and 645 of the Criminal Code until the jury is sequestered or until a further order of this Court directs.
[71] For greater certainty, the reference to publication, broadcast and transmission includes posting on or distribution by the internet.
[72] For all of the aforementioned reasons, the application is dismissed.
[73] The facta were of great assistance to me and I am grateful to counsel for the thoroughness of their oral and written submissions on this issue.
A. J. GOODMAN, J.
Released: October 28, 2015
CITATION: CBC v. Millard and Smich, 2015 ONSC 6583
COURT FILE NO.: 14-4348
DATE: 2015/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC., SUN MEDIA CORPORATION, CTV, A DIVISION OF BELL MEDIA INC., and THE GLOBE AND MAIL INC.
Applicants
- and -
DELLEN MILLARD
MARK SMICH
And HER MAJESTY THE QUEEN
Respondents
- and -
HAMILTON SPECTATOR, CHCH-TV and TORONTO STAR
Respondents/Interveners
RULING ON MEDIA APPLICATION TO PUBLISH CERTAIN PRETRIAL MOTIONS
A. J. GOODMAN, J.
Released: October 28, 2015