Supreme Court rules publication bans in pre-trial are automatic and required

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Publication bans that block news media from reporting on pretrial hearings until a jury retires, such as the one in the cyberbullying case of Aydin Coban, are automatic and judges must impose them, the Supreme Court of Canada ruled unanimously on Friday.

The question before the country’s top court was whether a publication ban on information jurors would not normally be permitted to hear is mandatory even before a jury is chosen.

Pretrial hearings lasted 15 months in the Coban case, which heard evidence of extortion and harassment that led 15-year-old Amanda Todd of Port Coquitlam, B.C., to take her own life. Interest in the case was intense in Canada and internationally. Before her death, Ms. Todd described her ordeal in a YouTube video, holding up flash cards. Mr. Coban was ultimately convicted and sentenced to 13 years in prison.

Among the issues being decided before the Coban trial was whether the prosecution should be permitted to introduce evidence of similar, though unproven, behaviour in the past. (It wasn’t.) Another question was whether a mandatory publication ban on Ms. Todd’s name violated the Charter of Rights and Freedoms. (It did, and the news media were able to report her name, though not why were they allowed.)

News media organizations including The Globe and Mail, CBC, Rogers and Torstar challenged the mandatory ban on reporting about the pretrial motions. La Presse challenged a similar ban in the unrelated case of Frédérick Silva, accused of four counts of murder and one of attempted murder in Quebec. (Pretrial hearings for that case considered whether police had used illegal tactics, and other matters.)

The mandatory publication bans were not being challenged as a constitutional matter about the Charter’s protection of freedom of speech in the trial process. Rather, the Supreme Court case was about interpreting two provisions in federal statutes on publication bans and juries.

A ban set out in the Criminal Code states that no information shall be published on any portion of a trial at which a jury is not present, until the jury retires to consider its verdict. (Violating the ban is a criminal offence.) That section took effect in 1972.

It wasn’t until 1985 that another section of the Criminal Code allowed for hearings to take place before jury selection, on legal issues that a jury would not be able to hear if they occurred once the trial had begun.

The news organizations argued that the ban before jury selection was meant to be at the discretion of judges. Rulings on this question had varied widely around the country. A mandatory ban had the effect, news organizations said, of blindfolding the public during matters that affect the functioning of the justice system.

But the Supreme Court ruled 7-0 that Parliament’s reason for creating a ban in 1972 was to allow jurors who might otherwise be sequestered at a hotel at night to go home. And the pretrial hearings – those done before a jury is selected – were intended to bring efficiency, as trials became more complex in the era of police wiretaps and the 1982 Charter.

“Juries were sent home for days or weeks during the hearing of applications prior to the presentation of evidence at trial,” Chief Justice Richard Wagner wrote for the court.

News organizations criticized the ruling.

“It’s a blow to openness in courts,” said Daniel Burnett, a lawyer who represented several news agencies that challenged the ban in the Coban case. “It means many criminal pretrial hearings are under a media blackout until trial, which in major cases can exceed a year.” He added that certain motions not related to guilt or innocence, such as the successful challenge to the ban on Ms. Todd’s name, should be reportable.

Marc-André Nadon, a lawyer for La Presse, said the newspaper is disappointed, and that often pretrial motions “contain public interest information that is not prejudicial to the accused or likely to taint members of the jury.” La Presse argued that there are safeguards to prevent jury contamination, including the oath jurors take to consider only evidence from the courtroom.

Trevor Martin, a lawyer representing Mr. Coban, praised the ruling.

Because of the mandatory ban, he said, “we were able to operate with certainty that no misleading, untested, inadmissible or otherwise prejudicial information would reach the jury pool.” A discretionary ban would be cumbersome and distract from the issues being litigated, he said.

Vibert Jack, litigation director of the BC Civil Liberties Association, an intervenor in the case, said that the ruling recognized that the openness of courts and trial fairness are not in conflict.

“Many pretrial motions have to do with deciding what evidence can fairly be given to the jury, and that process is simply a waste of time if future jurors are hearing about it in the news,” he said. But, he added, “the problem is that many courts were applying this publication ban to all matters, even where the risk of tainting the jury didn’t exist.” The ban will apply in most situations, he said.