Supreme Court of Canada upholds contested Amanda Todd pre-trial publication ban

Canada's highest court has upheld interpretations of the Criminal Code that apply automatic publication bans for matters when a jury is not in place — which media outlets and civil liberty advocates argued stifles freedom of the press.

The unanimous 47-page ruling was delivered Friday morning by seven of eight Supreme Court of Canada judges, who considered the matter after hearing oral submissions in Ottawa in May.

The ruling involved two separate jury-trial cases, one of them the high-profile trial in British Columbia of the Dutch man ultimately sentenced to 13 years in prison for his role in the death of Amanda Todd, a 15-year-old from Port Coquitlam.

Supreme Court of Canada justices were asked to weigh public interest with protecting the accused's rights, considering most media stories live online forever and are easy to distribute widely.

'Intent to protect'

They ruled unequivocally over two parts of the Criminal Code: one, 648 (1), that puts in place blanket publication bans for information during jury trials, even if the jury is not in place at the time; and another, 645 (5), giving judges jurisdiction over any matters that would be decided if a jury was in place.

"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 provisions," reads the ruling, written by Chief Justice Richard Wagner.

"Parliament aimed to shield the jury from information about any portion of the trial from which it was absent ... this objective is relevant with respect to both the existent jury and the jury yet to be empanelled."

There was significant interest in the ruling from media outlets and others as a decision supporting their challenge could have influenced future cases over the application of section 648 (1) of the Criminal Code and whether or not the code's blanket publication ban for jury trials applies to pretrial matters before a jury is even selected.

Section 648 (1) of the Criminal Code says, "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."

In 2012, Todd died by suicide after she posted a YouTube video using flashcards describing how she sank into depression after she was exploited online.

Lawyers for CBC News, along with co-appellants Global News, Postmedia, CTV News, Glacier Media, CityNews, the Globe and Mail and the Toronto Star, argued that being unable to report the details of pre-trial court proceedings, which took place over a 15-month period, limited the freedom of the press.

The other case which formed the substance of Friday's ruling involved a pre-trial publication ban in Quebec involving Frédérick Silva. The former mafia hitman was charged with four counts of murder and one count of attempted murder between 2017 and 2018 and was convicted on four counts in 2022.

In both cases, several matters were dealt with before the jury was in place. They included requests to exclude some evidence from the trial, stop the proceedings for abuse of power and even a constitutional challenge over reporting Amanda Todd's name.

Lawyers behind the challenges argued that the wording of the 648 (1) section was ambiguous, but Wagner wrote that taken in context with other sections of the Criminal Code, including 645 (5), there is no confusion.

"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," the ruling reads.

The B.C. Civil Liberties Association (BCCLA), an intervenor in the case at the Supreme Court of Canada, said in court in Ottawa in May that blanket publication bans resulting from section 648 (1) could harm trial fairness by not allowing public scrutiny of the criminal process.

Lawyers representing Coban and the Crown said in May that section 648 (1) is a "safeguard" against any potential miscarriage of justice and that any matters heard during pre-trial should be considered part of the trial.

'Avoid uncertainty'

In recent years 648 (1) has been questioned in several cases for being too broadly interpreted, including another high-profile case involving an RCMP officer who had an affair with a key witness in the deadliest gang-related shooting in B.C.'s history.

• How a reporter navigated a publication ban over an ex-RCMP misconduct case

In Friday's ruling Wagner provided some advice for judges to "avoid uncertainty" over what matters are covered by a publication ban.

He wrote that it would be "prudent," for judges holding hearings to announce and explain the actions being taken under sections 645 (5) and 648 (1).

In response the BCCLA said in a statement it was pleased with the ruling because it discussed at length how trials must balance fairness and freedom of the press.

Wagner wrote that there is, "no irreconcilable conflict between the open court principle and trial fairness. They both serve to instil public confidence in the justice system."

The BCCLA said statutory publication bans should be interpreted narrowly in order to "best protect," these interests. It said the Supreme Court's decision allows for "more openness than those of the lower courts," which were the Supreme Court of B.C. and the Superior Court of Quebec.