Cite as: R. v. Regan, 1997 NSSC 124 C.R NO.97-137468 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN - and -GERALD AUGUSTINE REGAN - and -THE CHRONICLE-HERALD and MAIL STAR NEWSPAPERS, THE DAILY NEWS, THE CBC NEWS and ATV NEWS INTERVENORS - - - DECISION - MEDIA APPLICATION HEARD: before the Honourable Justice J. Michael Macdonald, at Halifax, Nova Scotia, on October 14,1997 DECISION: October 15,1997 (Orally) WRITTEN RELEASE OF DECISION: October 16, 1997 COUNSEL: Adrian C. Reid, Q.C., counsel for the Crown Douglas W. Lutz, counsel for the applicant, the Chronicle- Herald and the Mail-Star Newspapers Alan V. Parish, Q.C., counsel for the applicant, the Daily News David G. Coles, counsel for the applicant, the CBC News James B. Boudreau, counsel for the applicant, ATV News Edward L. Greenspan, Q.C., counsel for the accused
BAN ON PUBLICATION Publishers of this case please note that this decision is the subject of a publication ban.
(Orally) The accused is charged with numerous sex related offences. Over the next several months Iam expected to hear preliminary defence motions. Although not exhaustive, these include applications for: (a) further disclosure; (b) a stay proceedings; and (c) severance This initial application involves the scope to which the media may report on these upcoming pre-jury selection applications. The accused maintains that by virtue of Section 645(5) of the Criminal Code, all pre-trial proceedings are caught by the statutory ban prescribed by Section 648 of the Criminal Code. The relevant sections provide: 648. (1) Where 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 present shall be published, after the permission is granted, in any newspaper or broadcast before the jury retires to consider its verdict.
Section 645. (5) provides: 645.(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt within the absence of the jury after it has been sworn. Alternatively, and in the event that Section 648 is found to be inapplicable, the accused seeks a common-law publication ban. The Crown's position is not much different from that of the accused Additionally, it stresses the Crown's right to a fair trial. The media, as represented by the Chronicle HeraldlMail Star; The Daily News; ATV and CBC, maintain that: (a) Section 648(1) does not apply to the proposed preliminary motions; (b) Alternatively, Section 648(1) is unconstitutional, in that it restricts the
press' freedom under Section 2 of the Charter in a manner that is not saved by Section 1 of the Charter; and (c) In the further alternative, Section 648(1), as it applies to the proposed preliminary motions, is unconstitutional. In synthesizing the parties' respective positions, Ihave therefore identified the following issues: (1) Does Section 648(1) apply to the proposed motions? (2) If so, is Section 648(1) constitutionally valid in this context? (3) If so, how should it be interpreted? (4) If, for whatever reasons, Section 648(1) does not apply to the proposed motions, should the court exercise its inherent jurisdiction by imposing an appropriate common law publication ban?
1. DOFS SECTION 64811) APPl Y TO THF PROPOSFD MOTIONS? The answer to this question depends to a large extent on whether or not these proposed motions would be considered part of the accused's trial. In other words, I must determine when an accused's trial actually begins for the purposes of Section 648(1). After all, when an accused's trial actually begins can vary depending upon the particular circumstances of each case. Irefer to The Supreme Court of Canada decision of R v. Basarabas (19 82), 144 D.L.R. ( 3d) 115, where at page 123, Dickson J., (as he then was), noted: "The question of fixing the time of the commencement of a jury trial has been the subject of some difficulty in the past. It seems possible, however, on the authorities and on principle to reach the following conclusions: First, the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied." See also R. v. Barrow (1987), 38 C.C.C. (3d) 193, (S.C.C.).
I begin my analysis by exploring the legislative purposes of these two sections. This involves some consideration of their legislative evolution. Driedger On the Constmction of Statutes (3d) at page 449, cites this as a good starting point. "It is well established that the evolution of legislation may be relied on by the courts to assist interpretation. The meaning or purpose of a provision is often clarified by viewing i t in its original context and, with the assistance of permissible extrinsic aids, tracing it through successive versions. As Pigeon J. wrote in Gravel v. City o f St. Leonard: Legislative history [evolution] may be used to interpret a statute because prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it. InHills v. Canada (A.G.) LIHeureux-Dube wrote: A good starting point to interpret a statute properly is to examine, however briefly, its legislative history [evolution].
At the time Section 648 was enacted, virtually all motions relative to a jury trial were conducted after the jury was selected. In fact, the opening words of Section 648 presume this. See R. v. Chabot (1980), 18 C.R. (3d) 258, (S.C.C.). The fundamental purpose of this legislation was clear. A jury's verdict should be based solely upon admissible evidence presented at trial. This goal would be jeopardized if juries were exposed to media reports about hearings conducted in their absence (voir dires). Obviously, Parliament found this safeguard to be necessary, despite the precautions inherent in the existing jury selection process; such as the necessity for a juror's solemn oath and the accused's right to challenge prospective jurors. With the emergence of protracted wire tap based motions, it became impractical for trial judges to entertain all prospective applications after jury selection. Thus, Parliament enacted s.-s.645(5) of the Criminal Code to solve this problem. Now, before the jury is selected, the trial judge may entertain any matter
that would ordinarily be heard in the absence of the jury. The purpose of this amendment, and its interplay with Section 648(1), was recently explained by Salhany J., in R. v. Ross, [I9951 O.J.No. 3180, where at page 2 he states: "Prior to the enactment of Section 645(5), all pre- arraignment matters such as motions to quash the indictment, sever counts, sever accused etc., could not be heard in advance of the trial since such motions could not be brought until the indictment had been preferred. In Chabot (1980) 18 C.R. (3d) 258 (S.C.C.) the Supreme Court of Canada held that an indictment was preferred against an accused when it was lodged with the trial court at the accused's trial with the court ready to proceed. In other words, there had to be a jury ready to [sic] empanelled othemPsei t could not be said that there was a court ready to proceed. Section 645(5) was enacted to remedy that problem. Itenables the trial judge to resolve all procedural and evidentiary matters in advance of the day when the jury panel i s summoned. In my view, this application to stay proceedings falls within section 645(5) of the Code. As well, Ewaschuk, J., in R. v. Curtis (1991), 66 C.C.C. (3d) 156 at page 157, explains the evolution of Section 654(5):
"At common law, a trial judge sitting with a jury could not make evidentiary rulings until after a jury had been selected and the accused had been placed in their charge. Only then did a jury trial commence: See Morin v. The Queen (1890), 18 S.C.R. 407. Following the introduction in 1974 of the Criminal Code provisions relating to the admissibility of wire-tap evidence (1974-75, c. 50) lengthy jury trials became the norm in drug conspiracy prosecutions. As a result, juries were often selected in those lengthy trials and then sent home often for weeks and even months at a time so that the trial judge could determine the admissibility of the wire-tap evidence prior to the actual tendering of evidence before the jury. This procedure created various logistical and administrative nightmares. To eliminate those problems, the federal government enacted s. 645(5) of the Criminal Code; See R.S.C. 1985, c 27 (1st Supp.) s. 133" Thus, the purpose of each section is clear and simple: The press should not publish evidence flowing from voir dires and a trial judge can now conduct voir dires before jury selection. When put in its historical context, there is nothing in Section 6545) that should in any way diminish or qualify the safeguard provided in Section 648(1). There would be no logical purpose for Parliament to jeopardize the "648
safeguard" when it enacted Section 654(5). It simply attempted to alter the timing of voir dires. The fact that they can now be held earlier should not be seen as allaying Parliament's concerns. Parliament has already expressed its concern about pre-indictment publicity when it imposed statutory bans on bail hearings and preliminary inquiries. Thus, for the purposes of Section 648 ( I ) ,the proposed motions should be considered part of the accused's trial, thereby invoking the mandatory ban. In reaching this conclusion, I have carefully considered the submissions of lead media counsel, Mr. Lutz. In essence, he asserts that the combined effect of Section 648and Section 645, leads to the inescapable conclusion that a Section 648 ban applies only to hearings conducted by the trial judge. I agree that this is expressed in Section 645 and arguably implied in Section 648. He argues, when hearing the proposed applications, Iam acting only as a 'Motions judge" who just happens to be the trial judge. In other words, the proposed motions are not evidentiary motions that must be heard by the trial judge. Instead, they are simply procedural motions to be entertained by any judge of this court. As such, he argues that Section 648,if it applies at all to pre-selection hearings, should apply exclusively to hearings involving my jurisdiction as a trial judge.
I simply cannot accept this submission. To do so, would lead to endless confusion and delay. Before hearing any motion, Iwould have to first determine whether or not Iam acting as the trial judge or as a so-called "Motions judge". This determination would then have significant procedural consequences. If Iam making evidentiary rulings, Section 648 would apply. If Iam not making evidentiary rulings, Section 648 would not apply. Yet, the publication of non-evidentiary rulings can be more harmful to the accused than evidentiary rulings. As an example, the upcoming disclosure application will deal with allegations against the accused that are outside the scope of the indictment. Publication of these facts could be more prejudicial than publication of preliminary inquiry evidence. Accepting this interpretation would lead to an absurd result. 'Absurd" not in the literal sense, but "absurd" in the sense that its result would be unreasonable. Again, I refer to Driedger on the Construction of Statutes at page 85: "The modem view of the "golden" rule may be summarized by the following propositions. (1) It is presumed that legislation is not intended to produce absurd consequences. (2) Absurdity is not limited to logical
contradictions and internal incoherence; it includes violations of justice, reasonableness, common sense and other public standards. Also, absurdity is not limited to what is shocking or unthinkable; it may include any consequences that are judged to be undesirable because they contradict values or principles that are considered important by the courts. (3) Where the words of a legislative text allow for more than one interpretation, avoiding absurd consequences is a good reason to prefer one interpretation over the other. Even where the words are clear, the ordinary meaning may be rejected i f it would lead to an absurdity. (4) The more compelling the reasons for avoiding an absurdity, the greater the departure from ordinary meaning that may be tolerated. However, the interpretation that is adopted should be plausible." As stated, there are very compelling reasons to avoid Mr Lutz' interpretation. Media counsel also rely on the proposed amendment to Section 648 which was passed by the House of Commons recently, but defeated in the Senate. The argument has been summarized at page 5 of Mr. Lutz' brief and I quote: "It is also interesting that in 1994 Parliament
proposed an amendment to s. 648(1), and the effect of this amendment is described inBernardo (tab 4) at paragraphs 22-23. The proposed amendment read: 648(1) Information regarding any portion of a trial shall not be published in any newspapers or broadcast a) u s ~ e cotf a u m h x d ealt ~11thb v a l d a e before anv luror IS the iuw that is eventurn sworn retlres to consider its verdict; and (b) in respect of any matter dealt with after the jury is sworn but when the jury is not present and permission to separate is given to members of the jury, until the jury retires to consider its verdict. [emphasis added] LeSage A.C.J. discusses (at para. 22) how this section was part of a legislative package of amendments to the Criminal Code, which was initially passed by the House of Commons. However, after review by the Senate, the bill was approved except for the revisions to s. 648 and one other section. LeSage A.C.J. describes how the rejected amendment would have broadened the scope of s. 648(1), at paragraph 23: It appears to me that the proposed amendments were structured in a
broad manner so as to apply to all "in- trial" and "pre-trial" proceedings which occur in the presence of "a judge" as opposed to "the trial judge" during "in-trial" proceedings, which includes evidentiary rulings made by the trial judge prior to the empanelling of the jury. In other words, Parliament has considered amending the scope of s. 648(1) to cover pre-trial matters such as the Motions, but the proposed amendment was not enacted." In other words, the media asserts that it would take a legislative amendment to have s. 648 apply to the proposed motions. This amendment was tried and failed. In essence, Iam asked to consider, therefore, a proposed amendment when interpreting an existing statute. Despite my earlier reference to the use of legislative evolution, Iam nonetheless statutorily prohibited from doing this by virtue of s. 45(3) of the Interpretation Act, which provides: (3) The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law."
Therefore, if I am not to consider the effects of fully enacted amendments, there is all the more reason for me to ignore the effects of amendments that were never made law. Therefore, in conclusion on this issue, I accept the following passage from Salhany J., in R. v. Ross, supra, where at paragraph [6],it is noted: "Mr. Schabas has not attacked the constitutionality of section 648(1) of the Code. He may wish to do so but there is no such application before me. Accordingly, until the constitutionality of section 648(1) i s ruled upon, it stands as an absolute prohibition against the publication or broadcast of any portion of the trial conducted in the jury absence!'
It is clear that Section 648(1) offends Section 2 of the Charter. The real issue before me is whether or not, in the context of the proposed hearings, it is saved by Section 1 of the Charter. This involves an application of the "Oakes test" (R v. Oakes (1986), 2 D.L.R. (4th) 200 (S.C.C.)) as summarized by Lamer, C.J., in R. v. Schacter (1992) 93 D.L.R. (4th) 1 (S.C.C.), where at p. 16, he noted: "It is useful at this point to set out the two-stage s.1 test developed by this court in R. v. Oakes (1986), 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321, [I9861 1 S.C.R. 103: (1) Is the legislative objective which the measures limiting an individual's riahts or freedoms are designed t i s erve sufficient?y pressing and substantial to j-u stify the limitation of those rig- hts or freedoms? (2) Are the measures chosen to serve that objective proportional to it, that is: (a) Are the measures rationally connected to the objective? (b) Do the measures impair as little as possible the right and freedom in question? and, (c) , Are the effects of the measures proportional to the objective identified above7
Dealing with the first arm of the "Oakes test", it is clear to me that the guarantee of a fair trial is a sufficiently pressing and substantial objective so as to justify a limitation of the press' freedom. Turning to the proportionality test, Section 648 is designed to ensure a fair and unbiased jury. The publication ban is rationally connected to this objective. Furthermore, Section 648, properly interpreted, will impair the press' freedom as minimally as possible and the effects of Section 648 are proportional to the stated objective. Isay this for the following reasons: (a) Section 648 provides for a temporary, as opposed to a permanent, ban. (b) Press coverage can be intense. The case at bar is an example. (c) Parliament need not always choose the least intrusive measure as
- 17-
long as it falls into range of minimally intrusive measures I refer to R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.), at p.p. 513-514, where Lamer, C.J.C., stated: "This court has stated on a number of occasions that the absolutely least intrusive means need not be chosen in order for a law to pass the "as little as possible test" However, as Ihave indicated above, it is my view that the Oakes analysis requires somewhat different considerations when, as here, a judge-made rule is being challenged under the Charter. In cases where legislative provisions have been challenged under s. 52(1) of the Constitution Act, 1982, this court has been cognizant of the fact that such provisions have been enacted by an elected body which must respond to the competing interest of different groups in society and which must always consider the polycentric aspects of any given course of action. For this reason, this court has indicated that Parliament need not always choose the absolutely least intrusive means to attain its objectives, but must come within a range of means which impair Charter rights as little as is reasonably possible. However, as was indicated above, in cases where a common law, judge made rule is challenged under the Charter, there is no room for judicial deference."
Of course, in the case at bar Iam dealing with a challenge to a Parliamentary rule. (d) Most importantly, I feel that Section 648 can be reasonably interpreted in a manner that minimally impairs the press' freedom, thereby satisfying the "Oakes test". In other words, this section should be interpreted so as to uphold its validity, if such an interpretation is plausible. Again, referring to Driedger on the Construction of Statutes, at p. 323: W e r e p ossible and appropriate, the courts prefer interpretations that uphold rather than defeat the initiatives of the legislature. As Carlwright, J. wrote in McKay v. The Queen: ...[l]f an enactment . . . is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly. An alternative form inwhich the rule is expressed is that if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires and the other will have the contrary result, the former is to be adopted.
This preference for the validating interpretation is based on a presumption that the legislature intends to respect the constitutional limits on its jurisdiction when it enacts legislation. The limits to be respected include all those imposed by Canada's entrenched constitution, including the Charter. In Slaight Communications Inc. v. Davidson, Lamer J. wrote: Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Where a validating interpretation is plausible and appropriate in the circumstances, it is not necessary to declare legislation invalid in order to secure compliance with constitutional norms. To strike down legislation unnecessarily would show disregard for the work of the legislature." I believe that the aforesaid passage is equally applicable to pre-Charter legislation, as it would be post-Charter legislation.
3. HOW SHOUl D SFCTION 648 BF INTFRPRFTFD? Section 648 should be interpreted in a manner that minimally impairs freedom of the press. Therefore, the reference to "information" in that section should be narrowly interpreted. Specifically, Ifind that the reference to information should mean only that information which would reasonably be expected to taint a juror's impression of the accused. This would, therefore, involve a ban on details of any and all allegations of wrongdoing or impropriety on the part of the accused. Such allegations should not be limited to those set out in the indictment. By deductive reasoning, this would include details of most conventional voir dires, such as allegations against an accused as referred to in: - similar fact evidence applications; - disclosure applications; and - Corbett applications. There will be, at the same time, details contained in prospective applications
that do not allege impropriety on the part of the accused. This information should not be covered by Section 648. As well, because Section 648 will now apply to pre-selection hearings, it is important to clarify the temporary nature of such bans. In the event of pre-selection applications, the ban should be interpreted so as to terminate when the jury retires or when the case is otherwise disposed of, whichever is sooner. Even if Iam wrong on the inapplicability and constitutionality of Section 648, in the context of these proceedings, Iwould, nevertheless, impose a common-law ban identical to the ban Ihave confirmed under Section 648. Such a ban is necessary in the circumstances of this case. It would meet the two-fold test set out in Dagenais, where at page 38, Lamer, C.J.C., noted: "...I believe that the common-law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows:
A publication should be ordered when: (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measureswill not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban." Without the ban, as described above, there is a real and substantial risk to the fairness of the trial. Furthermore, the salutary effects, of the ban, as interpreted, outweigh deleterious effects to freedom of the press. In the case at bar, I am also gravely concerned about counsel's reciprocating allegations of impropriety. These allegations, if they persist, will have the effect of tainting many prospective jurors. They are so serious that I feel a supplementary common-law ban is warranted. In keeping with Dagenais, the ban should cover only that which is absolutely necessary. In this regard, I am imposing a ban on all evidence or submissions of counsel, during these pre-selection
hearings, that allege systemic abuse on the part of the Crown, including the police or on the part of the accused, including his counsel. In a very spirited argument, counsel for the media urged me not to impose such a ban. They argued that if counsel acted improperly, then the media and ultimately the public, should not be punished by their wrongdoing. Iwas instead urged to control counsel by directing that they stop such allegations. With respect, this is not a feasible solution. There may be legitimate complaints by one party against the other. Infad, Iexpect such reciprocating allegations to be relevant in some of the proposed motions. 1, therefore, cannot prevent the airing of such complaints in court if Iam to ensure a fair trial. Nonetheless, publication of such complaints may very easily taint a prospective juror, thereby jeopardizing the fair trial process. Therefore, this common-law ban is absolutely necessary to balance the need for a fair trial against the press' right to publish. However, let me reiterate that my ruling applies only to trial motions in the absence of the jury. It only deals with what happens in court. Ihave stated that there may be legitimate reasons for the parties to be critical of each other while before me presenting their cases. Imay have to respond to such criticisms and act accordingly. However, if the parties through counsel, or otherwise, continue to
criticize each other out of court, they will do so at their own peril. There may be reason to criticize the opposition in court, there should be no reason to so out of court. Furthermore, I confirm that Section 648, as I have interpreted it, should extend to the present media application. Finally, I trust that my directions are clear. However, Iwould be happy to modify my ruling should the need to do so become apparent in the future. Iwant to thank counsel for their able representation and valuable assistance.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.