Public 'blinded' by mandatory publication ban in Amanda Todd case, media organizations argue at Supreme Court

Lawyers representing several media companies, including CBC News, were at the Supreme Court of Canada on Wednesday arguing that a publication ban applied to months of pretrial proceedings in the case of the man who sexually extorted B.C. teenager Amanda Todd stifled the freedom of the press.

"What happened in this case is the public was blinded for 15 months," said Daniel Coles, a lawyer representing the appellants, which also include Global News, Postmedia, CTV News, Glacier Media, CityNews, the Globe and Mail and the Toronto Star.

The matter could influence future cases over how courts implement section 648 (1) under Canada's Criminal Code, which says that "no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict."

The case will determine whether or not the criminal code's blanket publication ban for jury trials applies to pretrial matters before a jury is even selected.

The provision in the code is meant to protect an accused's right to a fair trial, but lawyers for the media consortium argue it was not properly interpreted in the trial of Aydin Coban and its implementation harmed openness in the judicial system.

"Secrecy should be the exception and not the rule," said Coles on Wednesday.

Supreme Court justices said during Wednesday's proceedings that they must weigh public interest with protecting the accused's rights, considering most media stories live online forever and are easy to distribute widely.

"There is a durability of whatever is reported," said Justice Sheilah L. Martin.

They must also consider questions of when a trial actually begins.

In 2014, Coban was charged in Canada for extortion, criminal harassment, child luring and child pornography in connection with Amanda Todd, a 15-year-old from Port Coquitlam, B.C.

Amanda killed herself in 2012 after she posted a YouTube video using flashcards to tell how she sank into depression after she was exploited online.

Following a trial in B.C., Coban was sentenced last October to 13 years in prison.

Publication ban before jury even in place

Before the jury selection process began, there were more than a year of pre-trial applications in the case, which the media was unable to report on due to a ban under section 648 (1). 

The media consortium applied to have the ban clarified and declared applicable only after the jury was selected, but the judge handling the application dismissed it.

Last June, the consortium applied to the Supreme Court of Canada for leave to appeal the ruling.

The B.C. Civil Liberties Association (BCCLA), an intervenor in the case, said on Wednesday that "there is no zero-sum trade-off between freedom of the press and the right to a fair trial."

Patrick Williams, a lawyer representing the BCCLA, told the court that blanket publication bans resulting from section 648 (1) could harm trial fairness by not allowing public scrutiny of the criminal process.

"Openness often promotes fairness. This court should ultimately consider this," he said.

The BCCLA wants the court to rule that statutory publication bans should be interpreted narrowly, "in order to best protect all of the interests at play," it said in a statement.

Lawyers representing Coban and the Crown said Wednesday that section 648 (1) is not ambiguous and that matters heard during what is considered a pretrial period, before jury selection, should be considered part of the trial.

"Section 648 is a safeguard against a potential miscarriage of justice," said the respondents' factum.

"The section promotes public confidence in the judicial system, by enabling the public to be confident that the pretrial proceedings do not contaminate the fairness of the later trial, through prejudicial publicity."

On its website, the Supreme Court says judgments on appeals are rendered on average six months after the hearing of the appeal.