COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF SECTION 696.3 OF THE CRIMINAL CODE, S.C. 2002, C. 13;

AND IN THE MATTER OF AN APPLICATION FOR MINISTERIAL REVIEW (MISCARRIAGES OF JUSTICE) SUBMITTED BY STEVEN MURRAY TRUSCOTT IN RESPECT OF HIS CONVICTION AT GODERICH, ONTARIO, ON SEPTEMBER 30, 1959, FOR THE MURDER OF LYNNE HARPER;

AND IN THE MATTER OF THE DECISION OF THE MINISTER OF JUSTICE TO REFER THE SAID CONVICTION TO THE COURT OF APPEAL FOR ONTARIO FOR HEARING AND DETERMINATION AS IF IT WERE AN APPEAL BY STEVEN MURRAY TRUSCOTT ON THE ISSUE OF FRESH EVIDENCE, PURSUANT TO SUBSECTION 696.3(3)(a)(ii) OF THE CRIMINAL CODE.

DATE: 2006-03-22
DOCKET: M33326 (C42726)

BEFORE: McMurtry C.J.O., Doherty and Moldaver JJ.A.

COUNSEL:

James Lockyer, Philip Campbell, Marlys Edwardh and Hersh E. Wolch, Q.C. for the appellant, Steven Murray Truscott

Rosella Cornaviera, David Lepofsky, Gregory J. Tweney, Alexander Alvaro and Leanne Salel for the respondent, Her Majesty the Queen in Right of Ontario

Daniel J. Henry for the Canadian Broadcasting Corporation

HEARD: January 20, 2006

ENDORSEMENT

[1] In the context of a Reference to this court directed by the Minister of Justice under s. 696.3(3)(a)(ii) of the Criminal Code, the parties seek the direction of the court on two issues:

i) the forum in which the examinations of witnesses will be conducted; and

ii) whether proceedings on the Reference may be recorded by the news media, and, if so, the terms and conditions governing the said recording.

[2] The appellant seeks an order under s. 683(1)(b) of the Criminal Code directing that the examinations of witnesses be conducted before this court. The Crown’s position is that such an extraordinary procedure is not warranted and that there is no reason to depart from the usual practice of conducting examinations out of court. Having considered the arguments put forward by counsel, in our view, the interests of justice require that the panel hearing the Reference hear the evidence of the witnesses viva voce.

[3] The Canadian Broadcasting Corporation has also moved for an order to permit camera access to these proceedings, pursuant to ss. 136(3)(a) or (c) of the Courts of Justice Act, R.S.O. 1990, c. C-43. The prohibition against recording court proceedings under s. 136(1) of the Courts of Justice Act precludes the order the Canadian Broadcasting Corporation seeks. The exemption to the prohibition against recording court proceedings found in s. 136(3)(a) is not applicable. The exemption to the prohibition against recording court proceedings in s. 136(3)(c) does not apply because the Crown is not consenting to such an order at this time.

“R. Roy McMurtry C.J.O.”

“D. Doherty J.A.”

“M. Moldaver J.A.”