What Is Life?: The Unanswered Question In The Supreme Court of Canada’s Levkovic Case

This blog posting is not about Erwin Schrodinger, the famous quantum physicist and winner of the Nobel Prize. Nor is it about his most famous thought-experiment, Schrodinger’s Cat, which illustrates how the quantum world works or doesn’t work, depending on whether the cat is dead or alive. Ah, “alive.” This posting is about what it means to be “alive” or, as our Criminal Code requires, “in a living state” and it just so happens Schrodinger did have something to say about life in his book entitled What Is Life?

First, let’s step back and set up the conundrum, as I see it, caused by the wording of the Criminal Code and the lack of clarification from the Supreme Court of Canada in the Levkovic case on the issue of life. Homicide under s. 222 of the Code is where a person, directly or indirectly, by any means, causes the death of a “human being.” However, it is only culpable homicide, as in murder, manslaughter or infanticide, which can form the basis of a homicide charge. Section 223 specifies when a child becomes a “human being” and therefore when a child can be the “victim” of a culpable homicide. Under that definition, a

child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

Thus a child can be a victim of a culpable homicide at the very instance of the completion of the birthing process, when the child has fully exited the mother’s womb but with the caveat that the child must be “in a living state.” This phrase denotes life and suggests the child must be alive to be thus defined as a “human being.” However, the section continues and seems to broaden the definition by making the “living state” independent of breath, circulation, and the umbilicus connection to the mother. This too makes sense in the context of the first moments of birth, when a baby duly born transitions from embryonic fluid to air. It may take a newly born baby up to ten seconds to breathe and for the blood to circulate. In those crucial moments, according to the law, the child is a human being.

But how does this interpretation impact s. 243, an offence requiring the child to be dead? The section creates an offence where the child’s death is concealed even if the child died before or during birth. Clearly if the child dies before or during birth, the child would not be a “human being” in accordance with the definition of s.223, which finds a child is a human being where the child is completely out of the womb and in a living state. Even so, in the Supreme Court of Canada’s decision in Levkovic, Justice Fish, speaking on behalf of the Court, refers to this section to inform the meaning of s. 243 of the Criminal Code, the section creating an offence for concealing the dead body of a child. In order to determine if a newborn child was unlawfully killed, Justice Fish opined, homicide investigators would need to determine if the child would have likely to have been born alive as opposed to a stillbirth. Indeed, Justice Fish suggested

In order to facilitate the investigation of homicides, s. 243 must therefore apply to children that were either born alive or were likely to be born alive and thus capable of satisfying the Criminal Code definition of a human being in s. 223(1). (Emphasis added)

By applying the concepts of s.243 to the definitional section 223, the Supreme Court of Canada has turned life or being “in a living state” into the likelihood of life. To base a required element of an offence on “likelihood,” and to “read down” an interpretation section, which does not require such a reading to be applicable, seems to import the “vagueness,” which the SCC abhors. Instead of taking an opportunity to clarify the meaning of life in the context of death, the SCC choose to apply the catch-all likelihood test as found in the Mabior case and the Whatcott decision (see my previous blog for further discussion). What the Court fails to understand is that being alive is much different than being likely alive.

How does this connect to Schrodinger? Erwin Schrodinger’s 1944 What Is Life? book, based on a series of lectures, is part scientific, part philosophical treatise in which he applies quantum principles to biology in a search for an explanation of life. Many believe his book to be a precursor to the discovery of DNA. Life, in the Schrodinger world, is quantifiable and real as exemplified by genetic “code-script.” Although Schrodinger the quantum physicist would approve, Schrodinger the bio-theorist certainly would not.

Terrorism And Exceptional Circumstances: Is There A Public Interest In the Right To Counsel?

The recent tragedy in Boston and the terrorist related charges in Toronto and Montreal have left North Americans reeling: the concept of domestic terrorism and our society’s ability to, not only respond but to also intercept such events has become an issue. In the case of Boston, the investigators have invoked the public interest exception to the giving of Miranda rights or, in Canadian terms, the right to remain silent and the right to counsel under the Charter. Coincidently (or not), Harper’s government introduced the reinstitution of the extraordinary powers in the Anti-terrorism Act on the day the Canadian terrorist plot was uncovered. These powers were subject to a “sunset clause” whereby their viability is to be reviewed and re-enacted every three years. Not surprisingly, the powers were re-enacted by Parliament within days of the Toronto/Montreal terrorism arrests.

There is no question these powers are extraordinary, permitting “investigative detention” on the basis of suspicion alone, not just for the brief period approved by our Supreme Court of Canada but also for an extended period of time, up to three days. This power is, on the surface, completely contrary to the long list of legal rights an individual has when suspected of a criminal offence as found in sections 7 to 14 of the Charter. In order to understand how this piece of legislation can survive a Charter challenge, we must look to the concept of “public interest.”

As early as 1985, in the earliest days of Charter jurisprudence, the Supreme Court of Canada, even while creating a Charter vision, was also envisioning a world without a Charter. In the Re B.C. Motor Vehicle Act case, Mr. Justice Lamer, speaking for the majority, tackled the still troubling issue of the need for criminal intention for a criminal offence as opposed to the no-fault concept found in absolute liability offences. In the Courts opinion, section 7 of the Charter through the “principles of fundamental justice” required mens rea or criminal intention for crimes. However, the same principles did not require full criminal intention for a public welfare or regulatory offence. For those quasi-criminal offences, where jail was a possible sanction, the SCC found the minimum intention required was a less fulsome type of intention akin to negligence. However, if a public welfare offence, where jail was a possible sanction, required no fault element as in an absolute liability offence, this violated s. 7 of the Charter and was deemed unconstitutional. No fault was only available for regulatory offences where jail was not a penalty. Justice Lamer, in coming to this conclusion, made two very interesting, and now very relevant, remarks on the “public interest” dimension found in Charter analysis and on the possibility of the inapplicability of the Charter in certain circumstances.

One of the arguments in support of absolute liability or no-fault offences urged that the “public interest” necessitated such offences in certain public welfare situations where the public good was at issue and the risk of public harm was engaged. Justice Lamer agreed but underlined the limited application the “public interest” aspect would have in Charter analysis. In his view, the public interest was not relevant to whether or not absolute liability violated the principles of fundamental justice under s.7 as a loss of liberty where no intention was required would always be contrary to s. 7. However, it was relevant to the s.1 analysis, section 1 permitting the reasonable limitation of a Charter right, which the government could establish was “demonstrably justified in a free and democratic society.” Thus, the government in establishing this justification could refer to and rely upon the “public interest” as a justification.

Another argument supports no-fault offences on the basis they are easier to prove and therefore more efficient or the “administrative expediency” argument. In the case of regulatory breaches, such efficiency would permit timely responses to scenarios of possible public harm. Justice Lamer soundly rejected the sacrifice of Charter values to administrative efficiency but with an important caveat: such a s.1 justification could only work “in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” 

It is this seemingly innocuous throwaway line (or obiter dicta), which I suggest will become the permission to suppress Charter rights in the name of terrorism.  In this way, an individual’s rights are not giving way to societal rights, in the sense that societal concerns trump individual protection. Instead, an individual rights actually become imbued with a “public interest” dimension. Thus, no longer can we speak of categories of rights created to protect the individual as the lines between rights become blurred. Indeed, we must now recognize that the individual is subsumed into the collective through the ever-present spectre of the “public interest.” Continuing on this line of reasoning, it is easy to see how even the jealously guarded right to counsel becomes expendable when “exceptional conditions,” like terrorism, rears its ugly head. Time may also show that this dimension will be carried further and become part of the right itself, not just a tool for justification by the state under s.1 but I will leave that analysis for a future posting!

This Is Thought-Provoking: Supreme Court of Canada To Hear Provocation Cases

In my last post, I considered the new defence of the person section in the Criminal Code, ruminating on the increased reliance this new section appears to have on the “reasonableness” or “reasonable person” standard of assessing the defence. Although the previous defence of the person sections cried out for modernization, the heavy reliance the government and the courts seem to place on the objective versus subjective standard of assessment, leaves one wondering where the individual fits into the new regime. This approach may make it easier for the trier of fact to determine responsibility but at the cost of dehumanizing the criminal law process by shifting the focus from this individual, who may have been justified in committing the crime, to the community norm of how people ought to act.  It is therefore of interest to see the Supreme Court of Canada hearing two Alberta cases, on the provocation defence found in section 232 of the Criminal Code, this April 26, 2013.

In the first case, R v Cairney, the accused was acquitted of second-degree murder but convicted of the lesser and included offence of manslaughter on the basis of the codified provocation defence in the Code. This defence stands apart from the self-defence sections (now section) of the Code and provides for a very specific partial defence based on very specific circumstances. Typically, the class of defences known as justifications and excuses, when accepted, exonerate the accused completely. Provocation, as a justification, only partially relives the accused from culpability, providing for a reduced charge where the defence is made out. Provocation can only be used as a defence where the accused is being tried for murder and the only possible outcome, if the defence is accepted, is a diminishment of the murder charge to the lesser crime of manslaughter. Often the defence is used in conjunction with other defences, such as the more general defence of the person or even the excuses of duress or necessity. In those instances, although provocation as a defence is raised, an accused may be acquitted if the trier of fact accepts these other defences or simply has a reasonable doubt on the accused’s guilt based on the totality of the evidence. Indeed, often the judge in instructing the jury on a murder trial may instruct that even if a particular defence itself does not raise a reasonable doubt, criminal intention may be negated on the basis that all of the defences “rolled up” together may raise a reasonable doubt. Thus, the whole is greater than the parts. In the Cairney case, this instruction was given, but by the conviction for manslaughter, provocation seems to be the controlling factor.

On the Crown appeal, the Alberta Court of Appeal was unanimous in allowing the appeal and sending the matter back, as a murder charge, to trial. In the court’s opinion, the defence of provocation had “no air of reality” and was therefore not properly before the jury. The concept of “air of reality” creates a threshold test, which requires there to be some evidence, upon which a properly instructed jury, acting judicially, could render a verdict based on the defence. In other words, there must be an evidential basis for the defence before the jury should consider it.  The judge does not weigh the evidence, she merely ensures that such evidence is present. It is the function of the jury to weigh the evidence, in its totality, to come to a final decision on guilt or innocence.

This threshold test is not, however, without controversy, as it does require the accused to point to some evidence, which may result in requiring the accused to lead evidence. Although this is viewed as an “evidential” burden only, where the accused has only one defence and is unable to overcome the threshold test, the accused will have no defence at all. On the other hand, there is a public interest in ensuring that a person is tried on the evidence and not on a fanciful doubt.

In the Cairney case, the Alberta Court of Appeal found there was no “air of reality” to the defence based on the objective assessment required for determining whether the wrongful act or insult directed toward the accused, was “sufficient to deprive an ordinary person of the power of self-control” and on the subjective element of the defence, which required the accused to act “on the sudden.” As, in the Court of Appeal’s view, there was no evidence supporting these factors, the defence was not viable and should not have been left to the jury.

There are two concerns here: first, whether or not the Court of Appeal is substituting their opinion when the trial judge, who was present at the trial, decided otherwise and second, whether or not the jury made their decision based on something other than provocation, which would make the manslaughter finding appropriate. Certainly, Cairney could have been acquitted of murder – not having the subjective foresight of death – and yet convicted of manslaughter as he had the objective foreseeability of bodily harm, all without consideration of the provocation defence. The Appellant’s Factum filed on behalf of Cairney at the SCC can be viewed here.

The other Alberta appeal case on provocation, R v Pappas, suggests a more nuanced point. Although Pappas raised the provocation defence, he was convicted of murder at trial. At issue, besides the argument that the trial judge misdirected the jury on the defence, was the post conduct evidence of Pappas disposing of some of the victim’s personal belongings and attempting to leave the country, and whether this evidence was relevant on the issue of provocation. Crown counsel thought it was and so urged the jury to consider the post conduct evidence as negating the provocation defence. Counsel for the accused argued the evidence was irrelevant and should not have been left to the jury on their consideration of provocation.

The majority of the Court of Appeal found there was no error as the trial judge, when referring to the evidence, instructed the jury that the evidence “has no relevance to the issues you must decide,” which was effectively telling the jury the evidence had “no probative value.” However, the trial judge connected the irrelevancy to the issue of identification and did not specifically refer to the defence of provocation. Furthermore, evidence, which has no probative value but is highly prejudicial to the accused, as this evidence may be, should be deemed inadmissible at trial. If the evidence and the manner in which the Crown referred to it in his jury address effectively “took away” the provocation defence from the jury, then the accused should have a new trial. Certainly Justice Berger, in dissent, disagreed with the majority on this issue, finding that the jury instruction did not clearly and unequivocally direct the jury not to use the evidence. Both the respondent and the Appellant’s Factum for the SCC can be viewed here.

Another issue raised on Pappas is the whether or not the defence had an “air of reality” to it. Although the majority preferred not to second-guess the trial judge and proceeded on the basis the defence was viable, Justice Berger came out strongly in the dissent for the defence being left to the jury as it was “for the jury to measure the Appellant’s conduct at the critical moment.” This brings us back to the Cairney case and the role of the jury. These cases may provide some needed guidance on not only provocation as a defence but generally on the issue of threshold tests and on the level of deference appellate courts should have for the jury process.

Canada’s New Defence of the Person Section: Is It Too Reasonable?

Quietly, Canada’s criminal law changed dramatically, without a word of criticism, on March 13, 2013 with the coming into force of the Citizen's Arrest and Self Defence Act. Perhaps, everyone was too focused on the broadened citizen arrest powers to notice the dramatic change in law or perhaps the legal community is at a loss for words. Without fanfare or discussion, Canada’s self-defence laws, from sections 34 to 42, were swept away on March 13, 2013 to be replaced by two broad sections: the new section 34, which outlines the defence of the person and the new section 35, which is defence of property. For purposes of this post, I will be making reference to the defence of the person found in section 34 and not defence of property under section 35. Although the new section 34 appears to be broader – no more does the law distinguish between provoked and unprovoked attacks – there is a noticeable emphasis on the reasonableness of the response as the standard for assessment.

Admittedly the old sections were cumbersome and confusing: section 34(1) offered a different defence from 34(2) and they both differed from sections 35 and 37. Then there were the myriad of defence of property sections from sections 38 to 42. Self-defence, as codified before the amendments, distinguished between a provoked and unprovoked attack. Section 34(1) could only be used as a defence by an accused who was subject to an unprovoked attack by the victim and who did not intend to cause death or grievous bodily harm in responding to that attack. In those very limited circumstances, the accused could use this self-defence section if the force used was no more than necessary to repel the attack.

Subsection 2 of that same section 34 offered a different and much broader defence. The section was silent as to who started the initial assault and therefore could be used by an accused who provoked an assault as well as an accused who did not provoke the assault. Additionally, the section applied where the accused intended to cause death or grievous bodily harm or did not intend it – as long as the victim died as a consequence of the action. The accused must have a reasonable apprehension of risk of death or grievous bodily harm from the victim to use the defence. The accused must believe on reasonable grounds that he or she could not otherwise be preserved from death or grievous bodily harm other than to use the force, which resulted in the victim’s death. The assessment was not totally objective, however, as the accused must have a subjective belief that force was necessary but must have a reasonable basis for the belief. Therefore, the defence a blending of objective and subjective elements.

Self-defence in section 35 was not used as often as section 34. The section restricts self-defence in circumstances where accused, without justification, assaults another or provokes an assault. The accused must not intend to cause death or grievous bodily harm before the need to defend self arose. However, to use the section, the accused must have a reasonable apprehension of death or grievous bodily harm and had a reasonable belief that force was necessary to preserve himself from death or grievous bodily harm. Finally, the accused must have attempted to retreat from the situation.

The final defence of the person section, under s. 37, is again a broader section of self-defence, which also extends the defence to the defence of another person under the accused’s protection. This section permits force only where the accused is preventing an assault or a further assault. Although the response of the accused must be reasonable there is no requirement that there be a reasonable apprehension of death or harm or a reasonable belief force was necessary to prevent death or harm.  The only requirement is the need for proportionality and therefore the force used must be no more than is necessary to repel the assault.

There are many difficulties with these sections, including the sheer difficulty in actually reading these sections and making sense of them.

Of course, these old sections come to us through the English common law, hence the requirement to retreat in where the accused is the aggressor. The sections thus deals with the seemingly “innocent” accused differently than the “aggressor” accused. The self-defence section 35, for the aggressor accused, is much more restrictive than s.34(1), for the innocent accused unjustly provoked. Contrasting the two sections, section 35 requires the accused, although the aggressor, not to intend death or grievous bodily harm but to have a reasonable belief that he would be subject to death or grievous bodily harm unless he acted. The force used must be no more than necessary and there must be an attempt to retreat. Indeed, a very difficult section to use considering the prerequisites. However, section 34(2), as broadly interpreted by the courts, filled that gap to include virtually any situation. The interpretation was so expansive, it seemed a wonder why section 35 was required at all. However, even with s. 34(2) expanding who could use self-defence, the objective/subjective assessment ensured that only those accused who fulfilled the objective/subjective requirements could use the defence successfully.

Two major difficulties are identified with this approach: firstly, to assess an accused’s actions at a time of split-second decision-making seemed mechanical and unrealistic. For an accused faced with an aggressive victim or for an accused in a highly emotional circumstance, the requirement that the accused use no more force than necessary was difficult to determine. Thus, the law stepped back from the emotions and required an objective assessment as well. This perhaps made it easier for the trier of fact, who was not faced with these circumstances and who could not possibly appreciate the life and death decision-making arising at that instance. But, it also made it much more difficult for an accused, who made a decision at the time in a heightened situation, to be then thinking of what application force, in response to that situation, is no more than necessary.

Secondly, the self-defence laws were so limiting that it failed to allow for exceptional circumstances, such as what arose in the Lavallee case, where a battered woman killed her husband. This case, in light of the recent SCC Ryan case (upon which I wrote a previous post here) also raises issue with other defences such as duress and defences – known as excuses – as opposed to self-defence, which are considered justifications. I will not delve into the these cases, other than to say a deeper analysis of them is required in light of this new legislation.

For further explanation, justifications such as self-defence, recognize that the elements of the crime have been made out – that both actus reus and mens rea are present – but the accused actions are justified as the accused faced external pressures (in the case of self-defence from another person) which caused the accused to act contrary to the law. As the major theme of our criminal law is choice and the ability of an actor to make the right choice, such pressures effectively take away choice, leaving the accused no other choice but to act as he or she did. In a justification defence, the accused challenges the wrongfulness of an action which would technically be a crime. In the circumstances the fundamental values of society and of the criminal law are promoted by disobeying the law rather than following it. Therefore, in self-defence there is a crime but the actions of the accused are not “wrong” and therefore the accused should not be held responsible for the crime and should therefore not be punished by the criminal justice system. Of course the real question is: how far does society want to go in justifying these criminal acts? Are our self-defence laws truly a reflection of our society’s fundamental values if they do not offer a defence for a battered spouse or a psychologically bullied child?

Do these changes then rectify the two problems as identified above? On the issue of creating an artificial scenario upon which the accused is to be assessed, the new section does little to alleviate this by imposing very clearly an objective assessment of the circumstances and leaving little room for individualization. Although the new amendments do equalize the section in the sense that now “any person” can use the defence, the list of factors to be considered in assessing the reasonableness of the criminal act ensures that all of the limiting circumstances, which were clearly set out in the old sections, are now found, not as clearly, in a list of factors which must be considered by the trier of fact.

Additionally, the assessment, which was viewed under the old sections as a blending of subjective/objective considerations, now appears to be more decidedly objective. There is no longer a consideration of the accused’s subjective belief in the force used being necessary. Now, stepping back, this change should be welcome as it does move away from the idea that an accused must weigh to the niceties the level of force used at the time. However, it also takes away any assessment of the accused’s subjective belief that the force used at the time was necessary. Instead the subjective belief only goes to whether or not the accused believed, reasonably of course, that the “force is being used against them or another person or that a threat of force is being made against them or another person.” After that “concession” to human frailty, the assessment is all done through the eyes of the reasonable man in an almost regulatory offence manner reminiscent of the due diligence or all due care defence in which the defendant will be acquitted if he or she or it (corporation) acted reasonably in all of the circumstances and took all reasonable steps required to avoid the harm. The only factor missing is the burden of proof, which in a regulatory scheme is “balance of probabilities” as opposed to the higher standard of proof “beyond a reasonable doubt.” Even in the criminal law’s cherished burden of proof the concept of “reasonableness” is present!

As to whether the new section will support extraordinary circumstances of a battered spouse or abused child will remain to be seen. Again, the lack of individualization in the assessment is concerning and although one of the factors to consider in determining the reasonableness of the act involves a review of the nature of the relationship between the accused and victim, the fact this must be assessed through the reasonableness lens does not permit a full consideration of the complexities of an abusive relationship.

Only the use of this section in court with a real set of facts will enlighten us on the viability and justiciability of this new defence of the person section. However, at first blush, it appears this is yet another example of how our criminal law is becoming more objective in outlook and less like the traditional principles of individualization, which was the hallmark of the criminal law as a humane law.

The Magnotta Case And The Exclusion of the Public

The details of the allegation are disturbing: a scandalous luring of a University student, a gruesome murder, a grisly dismemberment, and then a twisted disposal of the body parts, via mail, to elementary schools. Then the chase across Europe and odd sightings of a man, we know as Luka Magnotta, until the capture is made, almost innocently, as Magnotta in a German Internet Café surfed the web for the disturbing details of his own case. In a previous post, I discussed the extradition issues with the case but Magnotta, by consent, returned quietly to Canada to face a number of charges, including  first-degree murder under s. 231 of the Criminal Code, committing indignities to a human corpse under s.182 of the Criminal Code, mailing obscene materials under s.168 of the Criminal Code, publishing obscene materials under s.163 of the Criminal Code and threatening Prime Minister Stephen Harper under s.264.1 of the Criminal Code.

Now, with the start of Magnotta’s preliminary inquiry, the case is back in the media spotlight as Magnotta’s defence attempts to exclude the media and public from hearing the preliminary inquiry evidence. Today, Quebec Court Judge Lori-Renée Weitzman denied the defence request.

But what was this request all about?

A preliminary inquiry, as I explained in a previous post, is a procedure to determine if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. This vetting process is permitted for only those indictable offences, which the accused has elected to be tried before a superior court judge. The hearing is heard before a provincial court judge who hears the evidence and decides whether to commit the accused for trial on the charges or any other charges arising out of the evidence or to discharge the accused for the lack of evidence on an essential element of any of the charges. It should be noted that the “right” to a preliminary inquiry is not absolute. The accused can waive the preliminary inquiry and consent to committal on all or some of the charges. The Attorney General can also circumvent a preliminary inquiry by preferring a direct indictment under s.577 of the Criminal Code. In that case, no preliminary inquiry takes place and the matter proceeds directly to trial in superior court.

The powers of a judge sitting as a preliminary inquiry judge are many and varied and set out in s. 537 of the Criminal Code. As a matter of course, the preliminary inquiry judge will order a ban on publishing the evidence heard under s.539 of the Criminal Code. This is done to preserve the integrity of the trial process, particularly where the trial will be before a judge and jury. A publication ban will ensure that the public remains impartial and ensures that evidence, which might become inadmissible at trial, is not within the public domain. However, such a ban on publication does not include a ban on the public attending the inquiry to hear the evidence first hand. It merely bans publication or distribution of such evidence heard.

The Magnotta defence, however, wanted the judge to go that extra step by banning the public from attending the inquiry under s.537(1)(h), which gives the judge the power to “order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing.” There is also a general power to exclude the public under s. 486 of the Criminal Code on the basis that the judge “is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.”

Although the reasons for dismissing the application has yet to be released online, it is instructive to review two other equally disturbing infamous cases of Paul Bernardo and Robert Pickton, where somewhat similar requests were made, in an attempt to understand the dynamics of such an application. In Pickton, the defence made a motion for exclusion of the public on the basis the case was so media intensive and with thestate of modern-day publication technology,

” a simple ban on publication of the evidence would not serve the ends of justice and would not preserve the accused’s right to be tried before a fair and impartial tribunal. This was particularly so, submitted the defence, as the American media was not bound to the order and could, therefore, publish the evidence thereby tainting the jury pool once the matter came to trial. In dismissing the application, except for permitting the usual ban on publication, and leaving open the defence’s right to re-open the application, Judge Stone recognized “the conflicts which arise between our tradition of open access to the courts and the principles encompassed by the right of freedom of expression versus the rights provided to an accused person in order to ensure that he or she receives a fair trial.” Even in that context, Judge Stone recognized, as emphasized in the Supreme Court of Canada Dagenais case that such an order was “exceptional.” Ultimately, Judge Stone agreed with Justice Oppal of the British Columbia Supreme Court, wherein Justice Oppal stated in the Murrin case: We live in an era that is often marked by high degrees of pretrial publicity which often features revelations of prejudicial pretrial evidence. In fact, it can be safely said that sometimes media coverage can be described as frenzied. However, I do not think that the justice system is so fragile that appropriate corrective measures cannot be taken in certain cases so as to ensure that an accused's right to a fair trial is not jeopardized.

In the end, the Judge released a very specific ban on publication, specifically prohibiting the information to be placed on the Internet. As an aside, in the 1996 SCC Canadian Broadcasting Corp. v. New Brunswick (Attorney General) case, the SCC sets out specific factors in considering such a ban in light of the conflicting Charter rights of an accused's right to fair trial and the right to public access to our criminal justice system as well as freedom of the press under s.7 and s.2(b).

Conversely, in the Bernardo case, it was the Crown and the families of the victims, which requested an order prohibiting the public from hearing and watching the videotape recordings of the crime when presented as evidence in court.  The court permitted this limited ban out of public decency and respect for the victims. Ultimately, the tapes were destroyed.

Of course, although the application was dismissed for Magnotta, this will not be the end of the matter. As the case goes to trial, there will, no doubt, be a revisiting of this issue of publicity and publication of the case in the media. At that time, the issue will be whether or not an impartial jury can indeed be found in light of the intense media exposure of the case and ultimately whether even the worst allegations can produce a fair trial.