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Criminal - Juries - 'Automatic Publication Ban'. La Presse inc. v. Quebec
In La Presse inc. v. Quebec (SCC, 2023) [Court's Case in Brief] the Supreme Court of Canada considered the (temporary) pre-jury-empanelment application of the CCC s.648 prohibition on publication of any criminal proceedings conducted in the absence of a jury (the 'automatic publication ban'):(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 were said to be affected by delays in the criminal justice system. This is so because “the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence” (para. 20). More recently, in R. v. Haevischer, 2023 SCC 11, at para. 46, this Court built on the Jordan vocabulary and presented trial fairness and trial efficiency as “interdependent” values.
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).
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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 CanLII 11 (SCC), [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 order to hold the hearing before the jury is empanelled. There are, however, other kinds of hearings that have never been required to take place “at trial”; these would not be covered by the prohibition found in s. 648(1). This determination can be made through the analysis outlined in Litchfield.
[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 CanLII 54 (SCC), [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’” (p. 348, quoting Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, at p. 599).
[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 by the trial judge based on the order of a “Wilson judge” (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 a trial judge only has under s. 645(5) to hear a matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn (see M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at p. 587, fn. 117). When a case management judge exercises jurisdiction traceable to s. 645(5), s. 648(1) automatically applies.
[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). Discussion at the pre-trial conference will include information such as the “nature and particulars” of proposed motions (B.C. Rules, r. 5(13)), and statements relating to the “respective positions of the parties” (Que. Rules, r. 44(b)).
[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 information from a pre-trial conference only when the pre-trial conference judge exercises jurisdiction ultimately rooted in s. 645(5). The Alberta Court of Justice seems to have excluded several such matters from adjudication at a pre-trial conference.
[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), 1979 CanLII 1119 (AB KB), 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 bear. It is of course open to courts to fill any gap in relation to pre-trial conferences through their rule-making authority under ss. 482 and 482.1 for example, the Superior Court of Quebec has made it a rule that “[p]roceedings at the pre-hearing conference are subject to a publication ban” (Que. Rules, r. 40) and judges retain inherent jurisdiction to impose discretionary publication bans in accordance with the Dagenais/Mentuck/Sherman principles.
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