January 23, 2018
R v Stanley 2018 SKQB 27

Gerald Stanley was charged with the second degree murder of Colten Boushie. The media brought an application for permission to place cameras in the courtroom during the trial.

The application was heard on January 16, 2018 and both the Crown and the defence opposed the application. The family of the deceased was in favour of the application.

On the issue of the imposition of a publication ban, Justice Popescul states:

The fact that an application was being made by the Media to broadcast certain segments of the trial was reported in the media. Apparently, no consideration was given to the possibility that the application itself would be caught by either a mandatory or temporary publication ban.

The question of publication bans in the context of pre-trial motions has been considered by courts throughout this country on several occasions. Unfortunately, the conclusions reached have not been consistent.

I agree with the approach adopted in Millard (Canadian Broadcasting Corp v Millard 2015 ONSC 6583). This is an issue of statutory interpretation whereby the plain meaning of the provisions must be discerned. Such interpretations must defer to the intention of Parliament and give the same full effect. At issue is the meaning of “no information regarding any portion of the trial at which the jury is not present”. Where, as here, the provision is not ambiguous, ambiguity should not be read in. I adopt the conclusion and analysis of Goodman J. where he says, at para. 64:

…in my opinion all pre-trial motions adjudicated by the designated trial judge, fall under the s. 648 umbrella. Section 645(5) is a jurisdictional assist, nothing more, as it permits a judge to decide matters that were once delayed until after a jury is selected. Section 654(5) does not limit the operation of s. 648.

…following the reasoning in Millard, I conclude that the Media’s application is subject to a mandatory publication ban, by virtue of the combined operation of ss. 648 and 645(5).

Finding that a mandatory publication ban does apply in these circumstances is conclusive of this issue. However, given the uncertainty in the state of the law it is useful

On the issue of introducing cameras into the courtroom, to record and publish certain segments of the trial, Popescul J.considered that this was a revolutionary step.

The relief requested is a marked departure from the longstanding principle that cameras are not permitted in courtrooms. In order to deviate from such a longstanding principle a thorough analysis informed by multiple entities is necessary to safeguard the key principles underlying our justice system. The same would require that notice of the hearing be provided to multiple stakeholders; that a sufficient evidentiary basis is established from which the known and unknown risks and benefits of extended media coverage can be understood; and, that sufficient time is available for due consideration of each concern raised. The importance of a decision to break from tradition and televise trials cannot be understated and should not be made in an ad hoc manner.