The BC Rail Scandal Case. The Publication Ban

The BC Rail Scandal.  For the Supreme Court of British Columbia Ms. Jill Leacock, (June 29, 2010), Law Officer reproves Robin Mathews for his interpretation of the Publication Ban “in the absence of the jury” imposed by Associate Chief Justice Anne MacKenzie in the Basi, Virk, and Basi trial.  Robin Mathews replies.

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“Mr. Mathews

You seem to be unaware of section 648 of the Criminal Code.  It provides as follows

Restriction on publication

648. (1) After permission to separate is given to members of the jury under subsection 647 (1), 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.

Offence

(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.

   Mr. Mathews, this section of the Criminal Code bans the publication of any information about what occurs during a trial when the jury is absent, unless the jury has been sequestered and is in the process of deliberating its verdict.  The 648 ban applies automatically as a matter of statute – no one has to apply for it – it is automatically in place.  The presiding judge may extend the terms of a publication ban, but the statutory ban always applies as a matter of law.

[Ms. Leacock highlights the following sentence.] A person who breaches the ban by broadcasting information about what has happened in the court room when the jury is not present, is in breach of the ban, and guilty of an offence punishable on summary conviction.

Jill Leacock, Law officer”

Dear Ms. Leacock:  Thank you for your message.  I read the Criminal Code as you have represented it.  I also read the publication ban as it is represented in the piece I wrote about the whole question of publication ban. That passage on the Supreme Court of Canada website repeating the publication ban set by Associate Chief Justice Anne MacKenzie says that it is “pursuant to” 648 and sets out the terms – as I say in the piece I wrote – SPECIFYING the four matters under ban.  I took it to mean that if a total ban was intended the specifying would not have taken place.  648, as it is, declares total ban.

As you will have observed, I didn’t write about any of the four specifically named matters.  I was, I believed, honouring the ban.  And I would not violate it with intention. 

I assumed that if 648 was meant – unmodified – Associate Chief Justice MacKenzie would simply have named 648.  But since it was “pursuant to” and itemized kinds of publication ban, I took it to be (and I think that is a reasonable inference) an intention to modify 648 to characterize particular matters banned – as you say automatically.  But not to intend a total blackout, so to speak.

You suggest I am wrong in that reading.

If that is the case, then I will observe a “total” ban, and I regret any misunderstanding.  I assure you that it was not and is not at any time my intention to violate the ban.

Sincerely,

Robin Mathews