November 18, 2020
R v Wright 2020 ONSC 7049

The accused is facing murder charges in Sudbury in a case that has garnered significant local media attention. The defence requested an Order banning the publication of all materials relative to the accused’s change of venue application until the conclusion of the evidence adduced at trial.

At issue was the interplay between s. 645(5) and s. 648(1) of the Criminal Code in respect of publication bans of pre-trial proceedings in jury trials.  Two lines of cases have emerged in Ontario where the issue has been interpreted differently.  One line of cases holds that together, s. 648(1) and 648 operate to impose a mandatory publication ban on all pre-trial proceedings in jury trials that take place before the trial judge.  The second line of cases interprets the sections to impose a mandatory ban in respect of certain pre-trial proceedings.  In this second line of cases, if the subject pre-trial proceeding would not “ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn” then the ban is discretionary and the Dagenais/Metuck test is to be applied.

A third line of cases originating from Alberta, based on a strict reading of the statutory language, holds that the ban set out in s.648(1) has no application to proceedings that take place at any point before a jury is empaneled.  This line of cases had previously been rejected by Ontario judges.

Looking at the issue as a matter of statutory interpretation, the court found that both lines of Ontario cases ignored the plain meaning of the opening words of s. 648(1), being: “After permission to separate is given to members of a jury…”  The court concluded that “the Ontario courts have engaged in impermissible legislative amendment, rather than permissible statutory interpretation.” It was ruled that s.648(1) does not apply to applications heard under s.645(5).

In coming to this decision, the court followed the reasoning in R. v. Cheung (2000 ABQB 905) and found that the Dagenais/Mentuck test must be applied in consideration of requests for pre-trial publication bans, where a clear statutory ban is not present.

Previously, both lines of Ontario cases limited the ability to challenge publication bans relative to  pre-trial proceedings in jury trials.  This decision is a departure from those cases and would circumscribe the number of mandatory publication bans available for pre-trial proceedings in jury trials.