R. v. Rafferty 2010
From Ad IDEM / CMLA
NoteThe Crown applied for direction from the court regarding the extent to which an automatic publication ban, provided for under s. 648 of the Criminal Code of Canada, would apply to pretrial motions and applications, in Michael Rafferty`s trial for the murder of Victoria Stafford. Justice Heeney of the Ontario Superior Court ordered a blanket publication ban on all pre-trial motions and applications, with the option for the media to apply for leave to publish.
A blanket publication ban with the option to apply for leave to publish provides the appropriate mechanism both to ensure compliance with applicable statutory bans, as well as to act as a temporary stay on publication until such time as a publication ban hearing can be held and the merits of a common law ban determined.
Mr. Rafferty and a co-accused were charged with the first degree murder of Victoria Stafford.
Section 648(1) prohibits the publication of any information regarding any portion of the trial where the jury is absent. Its purpose is to preclude the possibility that the jury might be exposed to evidence that may never be heard in open court, because of inadmissibility or some other reason.
Section 645(5) permits motions which would otherwise have been brought after a jury was sworn, but in their absence, to be brought before the trial judge, prior to the selection of the jury. This section of the Criminal Code allows pre-trial motions and applications to be heard without keeping a jury on hold.
Justice Heeney found that a motion brought during the trial, after the jury is sworn but in their absence, is covered by s. 648(1), with a blanket prohibition against publishing any information about that motion.
Heeney J. ordered at para 44 that:
...s.648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet;
Heeney J. went on to order that:
...no information concerning any part of any other pretrial motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet, without prejudice to the right of the Media Coalition to seek leave to publish all or part of the information relating to such motion or application.