⚖️ Publication banned

To: Hearsay Readers

SCC

Plain language sent packing

Pool of journalists crowd around man yelling outside

Photo by Valery Tenevoy

The Supreme Court released a decision on Friday about publication bans in criminal jury trials (La Presse inc. v. Quebec). It will mostly interest criminal lawyers and media members, but the Court’s comments about statutory interpretation and mootness have broader significance.

What happened? Media agencies wanted to publish information about pre-trial motions during two relatively notorious criminal trials. Section 648(1) of the Criminal Code says you can’t publish information about portions of a trial during which the jury wasn’t present, but the wording suggests the publication ban applies only if and when jury members get permission to separate. Here’s the text:

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 [before the jury deliberates]

If the publication ban applies only after the jury receives permission to separate, anyone could publish information about pre-trial motions decided before the jury has been selected. (Say goodbye to trial fairness once a newly selected jury member finds a published story about the accused’s inadmissible confession).

So, what effect do the words “after permission to separate” have on the scope of the publication ban? None whatsoever. The Court held that the publication ban applies both before and after the jury is selected.

How’d they get there? When the publication ban was enacted in 1972, judges had to make most of their rulings after a jury was selected. The practice was to select a jury, then send them home while the judge dealt with pre-trial motions in their absence. All rulings of substance were made after jury selection, and the publication ban therefore applied broadly, notwithstanding its limiting language.

Parliament has since amended the Criminal Code. Judges can now rule — before jury selection — on the same issues that would undoubtedly have been subject to the publication ban in 1972. Most pre-trial motions are now decided that way in practice.

The Court concluded that, even though pre-trial motions are now addressed before jury selection, the publication ban continues to apply to the same broad scope of matters. It applies to substantive matters addressed in the jury’s absence, both before and after the jury is selected.

In other words, trial procedure may have changed, but the meaning of the legislative provision has not. Or, if you prefer $5 words:

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.

La Presse, para 9

For those worried the Court’s interpretation effectively strikes out the opening language of the provision, fret not: “[That portion] simply describes the time at which, when it was enacted in 1972, the prohibition would have had any practical value.” In other words, that portion was added fluff since day one.

Other nuggets:

  • Mootness: The issue was moot because the publication bans challenged by the media companies expired before the appeals were heard. The Court heard the appeals anyway, because these publication bans are short-lived and likely to avoid appellate review while still in force. The issue had also caused uncertainty for lower courts.

  • Confusion cure: According to Chief Justice Wagner, there is “enduring confusion” about the modern approach to statutory interpretation. Thankfully, he extended a helping hand to those of us lost in the sauce. His reasons reiterate: (i) we can’t simply rely on the plain meaning of words; and (ii) words are only ambiguous if there are two possible meanings after considering purpose, context, and relevant legal norms. So, there you have it media members: next time you wonder whether an automatic publication ban applies to you, spend more time thinking about the relevant legal norms and less time worrying about the words on the page.

Decision Report Card:

🥱◻️◻️◻️◻️ Factual interest

◻️😐◻️◻️◻️ Legal interest

◻️🤨◻️◻️◻️ Writing style

WEEK AHEAD

Maxime Bernier et. al. v. Expired Federal Vaccine Mandates

Maxime Bernier shaking hands with Rick Peterson

Photo by Parti conservateur du Québec, licensed under CC 2.0

Several people, including Maxime Bernier and Brian Peckford, are trying to challenge the federal government’s vaccine travel mandates through judicial review applications. Given that vaccine mandates no longer apply to rail or air transportation (RIP ArriveCan 🪦), the Federal Court held that the applications are moot.

The decision is on appeal to the Federal Court of Appeal, with oral argument taking place on Wednesday. Expect a few references to the Supreme Court’s timely comments on mootness in La Presse.

The Federal Court of Appeal issued a public notice saying that those who want to watch the hearing cannot attend in person and must register in advance to receive a zoom link. Presumably the Court didn’t want a whole convoy of spectators clogging up the gallery.

Supreme Court of Canada

The Supreme Court is sitting again this week and kicking off its fall session. The PMO has yet to appoint a replacement for retired justice Russell Brown, which means the Court will continue sitting with only eight of nine judges (as it has since February).

On the docket this week:

  • R v Tompouba (October 10). If the Court does not advise a criminally accused person of their right to a French-language trial, and the trial is conducted in English, what is the appropriate remedy on appeal?

  • Jim Shot Both Sides v Canada (October 11). Can the Kainai (Blood) Tribe sue Canada for breaching Treaty 7, or is their claim barred by a limitation period? The answer turns on whether Indigenous peoples could sue for treaty breaches before section 35 of the Constitution Act, 1982 was enacted. In other words, apart from the Constitution, is there a cause of action for breaching a treaty?

Decision release: This Friday, the Court is releasing its much anticipated reference decision on the federal Impact Assessment Act. A majority of judges at the Alberta Court of Appeal struck the Act down for encroaching on provincial jurisdiction.

HEARSAY ROUNDUP

 💉 Rickcola Brinton, a Nova Scotia Provincial Court judge, is suing the province for $5 million over a workplace requirement to disclose her vaccination status. She has been on an extended absence from the Court since November 2021.

💰 The City of Prince George is settling compensation claims related to the City’s destruction of a homeless encampment two years ago.

🔬 Manitoba politicians are now subject to stricter conflict of interest rules. MLAs need to disclose information about assets, liabilities, and sources of income that exceed $5,000, for themselves as well as any spouse or dependent children.

🥾 British Columbia’s Supreme Court held that it does not have jurisdiction to hear a workplace sexual harassment lawsuit filed by a former CSIS employee. The proper mechanism is under the Federal Public Sector Labour Relations Act.