WHAT: BCCLA at the Supreme Court of Canada to intervene in Canadian Broadcasting Corporation, et al. v. Aydin Coban, et al. to argue that freedom of the press can promote the right to a fair trial
WHEN: May 17, 2023, at 9:30 am EST / 6:30 am PST
WHERE: Supreme Court of Canada (Ottawa)
Ottawa, ON (unceded Algonquin Anishnaabeg Territory) – The BC Civil Liberties Association (BCCLA) will make oral arguments at the Supreme Court of Canada in Canadian Broadcasting Corporation, et al. v. Aydin Coban, et al., a case that will determine whether or not the Criminal Code’s blanket publication ban for jury trials applies to pre-trial matters before a jury is even selected.
This case addresses the relationship between an accused’s right to a fair trial and freedom of the press and the public’s right to be informed. A group of media organizations are bringing 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 of suicide in 2012. Section 648(1) of the Criminal Code creates a publication ban that applies to “information regarding any portion of the trial at which the jury is not present” from “after permission to separate is given to members of a jury” until “the jury retires to consider its verdict.” Despite this language, some courts have interpreted this ban as applying to all pre-trial proceedings, even before the jury is selected. The media organizations argue that this interpretation is unreasonable, while the defendant and the Crown say that it is necessary to ensure a fair trial.
The BCCLA will 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, blanket publication bans like s. 648(1) can actually impair trial fairness in many cases. Public scrutiny of the criminal process helps to 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 represented by Patrick Williams and Victoria Tortora of McCarthy Tétrault LLP.
The BCCLA’s factum is available here.