Home / BCCLA welcomes Supreme Court of Canada decision harmonising freedom of the press and fair trial rights

BCCLA welcomes Supreme Court of Canada decision harmonising freedom of the press and fair trial rights

For Immediate Release 

Ottawa, ON (unceded Anishinabe Algonquin Territory) – The BC Civil Liberties Association (BCCLA) welcomes the Supreme Court of Canada’s decision in La Presse inc. v. Quebec (and CBC, et al. v. Coban, et al.), a pair of cases deciding whether the blanket publication ban under s. 648(1) of the Criminal Code applies to “pre-trial” matters before a jury is selected. A group of media organizations brought this challenge after they were prevented from publishing details related to the prosecution of the man convicted of online harassment and extortion of Amanda Todd, who died by suicide in 2012.

The Court upheld the application of the publication ban to matters occurring prior to the jury being selected. However, the Court found that the ban applies only to certain matters that must be kept from potential jurors to ensure they remain impartial. In coming to this decision, the Court emphasized the underlying purposes of the law – protecting trial fairness and preventing delays in criminal proceedings. 

The BCCLA intervened in this case to argue that there is no zero-sum trade-off between freedom of the press and the right to a fair trial. The open court principle often promotes trial fairness. While the open court principle must yield to the right to a fair trial on occasion, interpreting s. 648(1) to apply universally can impair trial fairness in many cases. Public scrutiny of the criminal process helps prevent state wrongdoing and promotes public trust in the system. Statutory publication bans should be interpreted narrowly in order to best protect all of the interests at play.

The BCCLA is pleased that the Court explicitly recognized that “there is no irreconcilable conflict between the open court principle and trial fairness.” As a result, the Court came to a decision that allows for more openness than those of the lower courts.

Vibert Jack, Litigation Director for the BCCLA: “The Supreme Court has reaffirmed that the open court principle is critical to the public’s confidence in our justice system. Far from being in conflict, trial fairness and freedom of the press go hand in hand to ensure a properly functioning criminal law process.”

The BCCLA is represented by Patrick Williams and Victoria Tortora of McCarthy Tétrault.

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For general media inquiries contact media@bccla.org