This Ruling deals with three applications, filed respectively on behalf of Jean S. Brault, Paul Coffin and Joseph Charles Guité, each having been charged by the Attorney General of Quebec in preferred indictments with multiple counts of fraud and conspiracy under the Criminal Code. Their trials, before courts composed of a Quebec Superior Court judge and jury, are scheduled to begin on May 2, 2005 and are expected to last from four to six weeks. In the meantime they have been subpoenaed to appear before this Commission to testify concerning matters relevant to its mandate. The applications ask that their testimony be made subject to a publication ban to have effect until the completion of their criminal trials.

The expression "publication ban" as it is used in this decision, should be taken to have the meaning those words have been given in subsection 486(4.9) of the Criminal Code, which states that "no person shall publish in any way (…) any evidence taken, information given or submissions made at a hearing", in this case, a hearing of the Commission. In my interpretation of this disposition, "broadcast" includes a posting on the Internet.

The word "broadcast" means "broadcast to the public", so that a publication ban would not prohibit a television broadcaster such as CPAC from continuing to capture the television images and sound of the Commission's proceedings, and from transmitting them to the media room and other in-house outlets, as it does at present. Rule 50 of the Commission's Rules of Procedure and Practice should not be construed so as to prevent this practice.

All three applicants request that the publication ban should be made to apply not only to their own testimony, but also to the testimony of others which relates to the criminal charges they are facing. It should be remembered, however, that at the very beginning of the hearings counsel for the Commission agreed and undertook not to adduce evidence before the Commission relating to the matters that are the subject of the criminal charges which the applicants are facing. This undertaking will continue to be respected. The testimony of the applicants themselves may give rise to other problems, such as impressions that potential jurors might receive with respect to their character or conduct; this difficulty will be dealt with later, but for now, I will say, for reasons that will be explained later, that I am not convinced that there is any justification for a publication ban with respect to the evidence introduced by persons other than the applicants themselves.

The applications in written form presented by Messrs. Coffin and Guité also ask that their testimony be heard in camera, but in their oral representations before me no arguments in favor of an in camera hearing were formulated, and I have concluded that this aspect of the applications has either been withdrawn, or is not their true objective.

In the application presented on behalf of Mr. Guité he requests, as an alternative conclusion, that his appearance before the Commission to testify be postponed until after his criminal trial. This request will not be granted since a publication ban, if it is granted, gives him equivalent relief. In addition, the postponement of his testimony would disrupt the orderly presentation of evidence and unduly delay the completion of the Commission's hearings, and the production of its first Report, a matter of considerable urgency.

Accordingly, the sole issue which remains to be decided is whether or not there should be a publication ban with respect to the testimony of the applicants, and if so, its scope and duration.

All of the applicants allege that the media attention which will be given to their appearances before the Commission will make it impossible for them to have a fair trial, since the jury selected to try them will inevitably be influenced by that publicity. They point to paragraph (k) of the Commission's Terms of Reference which directs me "to ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or criminal proceedings"; they argue that if the effect of their testimony before the Commission is to make it impossible for them to have a fair trial, I will have failed to fulfill this obligation.

The applications are contested by Mr. Bantey representing a consortium of newspapers and broadcast media. He submits that all of the reasons given in my Ruling of October 28, 2004 for refusing a publication ban which was then requested by Mr. Guité still apply, and that there is no reason alleged or evidence offered to support a modification of that Ruling. Counsel for the Auditor General of Canada, the Attorney General of Quebec, the Attorney General of Canada and counsel for the Commission itself, all indicate in their representations that if a publication ban is contemplated, it should be limited as to its duration and scope, so as to conform to the principles enunciated by Chief Justice Lamer for the majority of the Supreme Court of Canada in the Dagenais case¹, by Mr. Justice Cory in the Westray case², and by the Supreme Court, unanimously, in Mentuck³.

This matter is a classic case where a balance must be found between two constitutionally protected rights, the right of the public to be informed of matters affecting them, guaranteed by section 2 of the Canadian Charter of Rights and Freedoms⁴, and the right of every person accused of a crime to have a fair trial, guaranteed by section 11(d) of the Charter. It should be noted that Canadian citizens have an interest in the protection of both of these rights, since the freedom of the press is an essential value in a democracy, and the guarantee that every person is presumed innocent and cannot be found guilty of a criminal offence without undergoing a fair trial is for the protection of us all.

I do not propose to repeat in detail what I said in my decision of October 28, 2004; the reasons that were given then continue to be valid, but it must be again recalled that in their testimony before the Commission, the applicants will not be questioned with respect to the matters underlying any of the criminal charges upon which they are to be tried in May. Accordingly, they have no reason to fear self-incrimination on those charges. I also wish to emphasize that the fundamental responsibility for assuming that accused persons have a fair trial rests primarily upon the court that tries them, which has many means at its disposal to ensure that the citizens chosen as jurors are impartial and able to decide upon the guilt or innocence of the accused based only upon the evidence presented at their trial, and not upon what they may have heard elsewhere.

Nevertheless, I am obliged to take into account the great interest with which the proceedings of the Commission have been followed by the public, as evidenced by extensive media and broadcast coverage and commentary. As the Supreme Court of Canada commented recently in Krymowski⁵, a court may accept without the requirement of proof facts that are either "(1) so notorious or generally accepted as not to be the subject of debate amongst reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy."

Judging by the number of journalists and cameramen who are present at the hearings, the intensity of this media coverage has increased since Mr. Guité first testified before me in Ottawa in November. Media reports of which I am aware refer to a high degree of public indignation at certain recent revelations in the evidence presented before the Commission. Applying judicial experience and common sense, these factors probably make it more difficult than previously to empanel an impartial and dispassionate jury.

The problem is aggravated by the circumstance that the testimony of the applicants will be presented before the Commission only a few weeks or days before the commencement of their trials. It may not be easy for potential jurors to distinguish between the facts admitted into evidence in the criminal trials and the facts, possibly of a prejudicial nature, which will be disclosed in the evidence presented during their appearances before the Commission.

Mr. Bantey takes the position that in spite of these factors, it should be possible to select, by a careful screening process, jurors who either have not followed the media coverage of the proceedings of the Commission, or who have not formed opinions favorable or unfavorable to the applicants. Furthermore, he argues that no evidence has been presented by the applicants to demonstrate that the depositions of the applicants will leave potential jurors irreparably prejudiced or impair the presumption of innocence.

These arguments have two inherent weaknesses.

First of all, in spite of the efficiency and effectiveness of the screening process, Mr. Justice Cory, in his opinion in Westray, does not entirely exclude the necessity, in some cases, of a publication ban. In other words, it must be foreseen that in some cases, admittedly cases of an exceptional nature, the pool of potential jurors may be irreparably tainted by information that has been disseminated prior to the criminal trial.

Secondly, the difficulty for an accused person to demonstrate, by an evidentiary process, that future publicity will cause him an irreparable prejudice, should not be underestimated. I cannot imagine how one is to assess the effect that revelations will have upon the public consciousness, particularly when one does not know what the revelations will be, the extent to which they will be reported by the media, and in what terms. The burden of proof imposed upon an applicant for a publication ban⁶, presupposes that the extent and nature of the publicity is already known and measurable, whereas in the present matter, where the applicants have not yet testified, the possibly prejudicial effect of their depositions and how they may be reported and commented upon can only be guessed.

Mr. Justice Cory expresses the opinion that the hearings of a public inquiry do not in general present an unacceptable risk to the Charter right of an accused to have a fair trial, expressing himself on this subject in the following terms:

Often the publicity pertaining to the evidence given at the Inquiry will have little effect on potential jurors. The impact may be fleeting and quickly fade away. How very quickly the details of a news story can be forgotten. The passage of a very few days may suffice to dim if not obliterate the memory of the reporting of Inquiry evidence. The likelihood of a prejudicial effect upon fair trial rights may be small indeed, a minor item washed away in the flood of information generated daily by the media.⁷

It is on the basis of this passage that I have concluded that there is no justification for a publication ban with respect to the evidence produced by persons other than the applicants themselves.

Mr. Justice Cory sees the matter differently however when the evidence before the public inquiry is the testimony of the persons accused of criminal offences. He is of the view that in those cases a publication ban may be necessary, as appears from the following passage:

However, the publication of the testimony of the two accused managers presents a very different situation. Obviously anything said by the accused will have a far greater impact than the evidence of many other witnesses. There is a real possibility that it will be stressed in media reports and well remembered by potential jurors. Yet, as accused, the managers can never be required to testify at their trial. The publication of their evidence at the Inquiry might mean that potential jurors would have been exposed to testimony that they might never hear at the trial. This coupled with the fact that it came from the accused themselves would make it difficult for jurors, despite their good intentions and the best of instructions from the trial judge to set it aside and leave it out of their considerations. In respect of this evidence, then, there is a clearly identifiable and serious risk that the fair trial rights of the two accused will be jeopardized.⁸

I am of the opinion, notwithstanding the undertaking made by Commission counsel, that the foregoing citation is applicable to the present hearings. A publication ban is needed, as a precaution, with respect to the testimony of the applicants and evidence presented during their depositions, in order to prevent a serious risk to the proper administration of justice, because reasonable alternative measures cannot be sure to prevent that risk.

Since publication bans should be limited as to their duration, scope and content, in order to minimally restrict the freedom of the press and the right of free expression that it represents, I will impose a publication ban only until the moment at the end of the criminal trial of the applicant concerned when jurors are sequestered to deliberate. In the meantime, at the end of the deposition of each of the applicants, I will be prepared to hear representations from interested parties, including counsel for the media, on the question of whether some or all of the deposition should be immediately released from the publication ban, taking into consideration the effect that such a release might have upon forthcoming jury selection.

For these reasons, the three motions are granted in part, and I order

(1) That the testimony of Jean S. Brault, Paul Coffin and Joseph Charles Guité before this Commission of Inquiry during Phase 1B of its hearings, and any written evidence presented or referred to during their depositions, or any representations by counsel with respect thereto, shall be the subject of a publication ban as that term is used in subsection 486(4.9) of the Criminal Code, to remain in effect until the completion of the trial of the witness concerned before the Superior Court of Quebec, when the jury is sequestered to deliberate, unless ordered otherwise in the meantime;

(2) That upon the completion of the deposition of each of these witnesses, I will hear representations by counsel for interested parties who may request the immediate release from the effect of the publication ban of the deposition of the witness concerned, or a part or parts thereof.

(3) That notwithstanding Rule 50 of the Commission's Rules of Procedure and Practice, CPAC may continue to capture the television images and sound of the Commission's proceedings, and to transmit them to the media room and other in-house outlets, as it does at present.

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John H. Gomery, Commissioner

¹ Dagenais v. CBC, [1994] 3 SCR 835
² Phillips v. Nova Scotia, [1995] 2 SCR 97 (Westray)
³ R. v. Mentuck, [2001] SCR 442
⁴ Schedule B to the Constitution Act, 1982, enacted as the Canada Act, 1982 (U.K.), c. 11
⁵ R. v. Krymowski, 2005 SCC 7 at para. 22
⁶ Westray at pages 173-4
⁷ Westray at page 177
⁸ Westray at pages 177-8