Court File and Parties
Court File No.: 13-12835 Date: March 10, 2014 Location: London, Ontario
Ontario Court of Justice
Between:
Her Majesty the Queen Respondent
-and-
David Cake Bradley Mielke Accused
-and-
Anthony George Applicant/Intervenor
-and-
Sun Media Corporation & Canadian Broadcasting Corporation ("the Media") Intervenors
Reasons for Decision on Application for Publication Ban
Before: Justice Jonathon C. George
Counsel:
- Geoff Snow for accused D. Cake and as agent for Terry Brandon counsel for A. George
- Peter Rollings for Crown
- Justin Safayeni for "the Media"
Background
[1] On February 27, 2014 David Cake pleaded guilty to, and was found guilty of obstructing justice contrary to section 139(2) of the Criminal Code of Canada. The plea was taken pursuant to section 606(4) as Mr. Cake was initially charged with accessory after the fact to murder. The Crown consented to this plea and procedure.
[2] Bradley Meilke is jointly charged with Mr. Cake. His charge is outstanding. The applicant Anthony George is charged separately but his matter arises from the same set of circumstances.
[3] The finding of guilt was based on representations from counsel, a reading in of the facts, and upon review of an Elgin Middlesex Detention Center (EMDC) surveillance video capturing Mr. Cake's crime and surrounding events. The latter was filed and marked as an exhibit.
[4] The offence date is October 31, 2013 when both Mr. Cake and Adam Kargus were inmates at EMDC. On November 1st Mr. Kargus was found dead by jail staff in the washroom area.
[5] Counsel made sentencing submissions on February 27th. On that issue, I reserved. Mr. Cake returns on March 18, 2014 to be sentenced.
[6] On behalf of Mr. George's counsel, and initially on behalf of his own client, Mr. Snow made an application for a publication ban citing several reasons, including protection concerns relative to his client and trial fairness issues respecting Mr. George. Little is known of Mr. Meilke's position as his counsel has not attended. I'm told that he supports the application. Mr. Cake has since abandoned his application. Media representatives were present and requested an opportunity to have counsel attend.
[7] Anthony George and the Media have been granted intervenor status on this application.
Orders and Endorsements to Date
[8] On February 27th I made the following order:
On an interim, without prejudice basis, and pending submissions from the parties, counsel for the co-accused and media representatives, I am banning completely the reporting of any evidence taken and submissions heard at Mr. Cake's proceeding today, directing that it not be published in any newspaper or broadcast in any way.
[9] The matter was adjourned to March 3, 2014 for full argument. Submissions were made and upon completion I made the following handwritten endorsement, which is found directly below the original order:
The interim order made on February 27, 2014 shall be extended and will now include any evidence, information or submissions heard or made on today's date. This will remain in effect until my reasons for decision are released on this application.
Position of Parties
[10] Counsel for the Media, in addition to opposing the application, seeks an order granting the CBC and Sun Media Corporation access to the exhibit filed upon Mr. Cake's plea, with permission to copy, reproduce, edit, publish and broadcast it.
[11] The Crown opposes the release and broadcast of the exhibit, and supports a limited publication ban. Its position is while the plea and facts surrounding Mr. Cake's involvement in this crime should be reported upon there should be no reference to Mr. George, Mr. Meilke or to their respective conduct and involvement.
[12] Not surprisingly, Mr. George opposes the release and broadcast of the exhibit. He continues to seek a full publication ban.
Statutory Authority v. Common Law
[13] Publication bans are provided for in legislation. Respecting evidence and information, the Criminal Code of Canada addresses it relative to bail hearings and preliminary inquiries. Respecting identity and information that has the effect of establishing identity, in addition to the Criminal Code, the Youth Criminal Justice Act, as well as mental health and child protection statutes apply. Respecting informational publication bans, the issue is typically trial fairness. That is, as an exception to the open court principle, is a ban necessary in order to protect an accused's right to a fair trial?
[14] As none of these provisions apply, I am being asked to exercise my authority under the common law and to make the order as a way to ensure the integrity and fairness of the applicant's trial.
Jurisdiction
[15] The issue of jurisdiction was raised. All counsel agree that I have the ability to control and make orders respecting the exhibits filed in Mr. Cake's matter. Counsel for the Media mildly objects to my authority to make a broader publication ban, and in so doing specifically references the Dagenais decision of the Supreme Court of Canada.
[16] Whether pursuant to a statutory provision or under the common law, an application for a publication ban should be made before the trial judge, if that is known. Dagenais expands upon the process to be followed if that is unknown, directing an assessment of where the matter will ultimately be heard. If that cannot be ascertained definitively the default position should always be to make the application to a superior court judge.
[17] Counsel for the Media specifically cites paragraph 16 of the Dagenais decision, which states as follows:
…….to seek a ban under a judge's common law or legislated authority, the Crown and/or the accused should ask for a ban pursuant to that authority. This request should be made to the trial judge (if one has been appointed) or to a judge of the court at the level the case will be heard (if the level of court can be established definitively be reference to statutory provisions such as ss. 468, 469, 553, 555, 798 of the Criminal Code, and s. 5 of the Young Offenders Act). If the level of court has not been established and cannot be established definitively by reference to statutory provisions, then the request should be made to a superior court judge (i.e. it should be made to the highest court that could hear the case, in order to avoid later having a superior court judge bound by an order made by a provincial court judge). To seek or challenge a ban on appeal, the Crown and the accused should follow the regular avenues of appeal available to them though the Criminal Code.
[18] In Mr. Cake's instance there is no future risk of a superior court judge being bound by my order. If and when the applicant appears before a superior court, that court will independently address what bans are necessary relative to that proceeding and the evidence before it. I am Mr. Cake's trial judge and am therefore compelled to decide this issue. There is no other appropriate forum.
Publication Ban – Test and Evidentiary Threshold
[19] From Dagenais we know that a ban should only be granted when it's necessary to prevent a real and substantial risk to the fairness of a trial, because reasonably available alternative measures will not prevent the risk. Also, the salutary effects of the publication ban must outweigh the deleterious effects to the free expression of those affected by the ban.
[20] The test has remained intact since Dagenais, modified only by the Supreme Court's decision in R. v. Mentuck, which simply adapts the test to a situation where there are additional factors beyond a simple contest between trial fairness and freedom of speech.
[21] As to the evidentiary threshold, the following passage in C.B.C. v. New Brunswick (Attorney General), paragraph 72, is most helpful:
There must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially. In some cases in which the facts are not in dispute the statement of counsel will be sufficient.
[22] On this application, the record consists of the evidence heard and exhibits filed at Mr. Cake's plea and sentencing; an affidavit from Jane Sims (of the London Free Press) which has attached to it a collection of articles reporting on this matter, and a 'publication list' which purports to be a summary account of what transpired in court on February 27, 2014. Beyond that I have only counsel's submissions, which I found to be relevant to the evidentiary considerations at hand. I do not agree with the Media's position that the evidentiary foundation is lacking. I appreciate the parties differ as to what I should take from them but the facts supporting Mr. Cake's plea, the nature and extent of the reporting on this matter to date, as well as the general interest in the issues surrounding EMDC, are not in dispute. What import it has and how I characterize it is a matter for argument and for me to ultimately decide, but the facts speak for themselves, and are sufficient so as to enable me to make an informed decision.
[23] The onus of justifying a publication ban falls on the party seeking it. The threshold is high. Should a court decide a ban is necessary, it should be made narrowly and with a specific focus.
Public Interest & Media Reporting to Date
[24] Freedom of the press is a constitutionally protected right. An open court is a fundamental aspect of our society and is something that should be protected vigorously. The media performs a crucial function in informing the public, and as I proceed through the analysis I must be mindful of its important societal role.
[25] Specific to this case, the London Free Press has reported on it in a number of articles. These reports have focused on the incident itself and on more general problems that exist at EMDC. It is a matter of public interest, both locally and perhaps beyond. It is correct to say, as counsel for the Media points out, that the reporting has not been as sustained and intense as for example the Paul Bernardo and Michael Rafferty cases, but it has been significant.
Analysis
[26] Is a publication ban necessary?
Real and Substantial Risk
[27] Mr. Snow asserts that without a complete publication ban the applicant's constitutional right to a fair trial is compromised. It is submitted that if publication is permitted, given the media coverage to date, knowledge of Mr. Cake's guilty plea will inevitably lead the public to conclude a crime was committed by Mr. George.
[28] It is true that the coverage of this case does not rise to the level of other, more sensational trials. Is the fact this case isn't as sensational as others mean there hasn't been a period of sustained pretrial publicity that would touch upon matters that will be the subject of the applicant's proceeding? This question is complicated by the fact that beyond the crime itself, issues surrounding the location of the crime (EMDC) has been subject to intense scrutiny and has been reported on extensively. It would be impractical and disingenuous to separate the two. The reporting of this case is linked inextricably to the broader issues at EMDC.
[29] The applicants argue there should be a temporary restriction on the public's right to be informed, given that real and substantial risk.
[30] The Media argues there is no real and substantial risk to Mr. George's right to a fair hearing. It asks that I essentially conclude the following:
That there hasn't been sustained pretrial publicity; which I reject.
That a publication ban would be ineffective, as the media has already reported on much of what's contained in the facts supporting Mr. Cake's plea. This argument is compelling and is certainly relevant to the scope of any ban.
And, that even if I had concerns, the fact the applicant's trial is not on the horizon and likely not to occur any time soon, should ameliorate against any concerns, in turn making the ban unnecessary. This position relies on the public having a limited and short-lived attention span. As a matter of common sense, this is likely true. The danger in adopting this is to risk the court being perceived as turning a blind eye to real, articulable risks, simply hoping the public will forget certain things in a year or two, or whenever that trial occurs. I believe this to be a dangerous approach.
[31] Recognizing that publication bans are not to protect against speculative risks, a continuation of the complete ban currently in place is unnecessary. Publishing the fact Mr. Cake has pleaded guilty to obstructing justice and received a particular sentence would not meet this first threshold. Not only will that fact become known quickly at the applicant's trial, it is actually something that should be made public well before a jury selection process begins. Otherwise how would one test the appropriateness of a particular juror's empanelment if that is learned mid trial. Knowledge of Mr. Cake's plea, and what impact it has on potential jurors views or perceptions should be dealt with at the front-end within a challenge for cause. Furthermore, I must have faith in our jury system and assume that the trial judge will properly and thoroughly instruct the jury and highlight for them the law and what they can and cannot take into account.
[32] However, some of the evidence and information arising from Mr. Cake's plea and sentencing, as it relates to the circumstances surrounding Mr. Kargus' death, does require further consideration of a ban as potentially a necessary step to prevent a real and substantial risk to the fairness of the applicant's trial. The question is, are there reasonably available alternatives that could accomplish this same goal?
Reasonable Alternatives
[33] Clearly a publication ban would be an effective method to address any concerns. Is it, however, the only option?
[34] I wouldn't go so far as to say the information presented at Mr. Cake's plea was sensational. It was presented in a respectful, straightforward manner and as troubling and uncomfortable as it was, the nature of the facts alone don't warrant restriction from the public domain as a way to ensure trial fairness. This is a significant distinction from the Rafferty and Bernardo examples cited earlier. The complicating factor, which is another distinction from those cases, is the surrounding coverage of EMDC, of another death and several beatings in that jail, and the politics of the institution including public discussions over levels of guard supervision, inmate on inmate violence and labour and staffing issues. It would be irresponsible to consider these separate from this specific event.
[35] In my view there is no alternative to making a temporary partial publication ban. There are some aspects of the case against Mr. Cake that, if publically known, would create problematic impressions as to the applicant's role in the events of October 31, 2013.
[36] Relevant to the exploration of reasonable alternatives, is the fact that in the applicant's matter a section 517 ban has been imposed. That being the case, if a ban isn't made in some form, would it not be defeating the purpose of and logic behind the section 517 order that exists and any subsequent order under section 539 that will likely be made at a preliminary hearing? Of course it would. Viewed in this light, the position of the Media makes little sense, as it would be tantamount to completely ignoring the existence and purpose of such orders, which are there, and often made as a matter of course, with the specific view to insulate prospective jurors.
[37] Each case must be determined on its own merit. In doing so I must be mindful of not just the specifics of the matter before me, but also of the context. This is why Mr. Cake's matter is special, which would be appreciated by anyone who resides in the London area and is familiar with the conditions at EMDC. Not only are the applicant's fair trial rights at risk, so are those of people who might yet be charged. Given the information presented upon Mr. Cake's plea, the investigation must be ongoing.
Effects of a Ban / Impact of Not Making a Ban
[38] Does the salutary effect of a ban outweigh the deleterious effects?
[39] This requires a balancing of competing interests, on which both sides have compelling arguments. Both an accused' right to a fair trial, and the media's right to inform the public are of exceptional importance. Both are hallmarks of a free and democratic society. To draw the line in any definitive way is an exercise in futility. All that can be asked is the judge hearing an application like this be fully informed and exercise their discretion judicially, with appropriate levels of caution.
[40] Much was made at the hearing about the significant evidentiary threshold and who bears the onus. Of course there is a high threshold, but in conducting this exercise one can't help but be prospective in their view. This is unavoidable, there being a need to, based on sound facts, look ahead and anticipate the impact certain types of information would have on potential jurors or on the process itself. The net effect of this is, not only should I use extreme caution in limiting the media's right to report on news, I must exercise the same amount of caution in doing something (or not doing something, as the case may be), relative to one's fair trial interests to which there is no ability to repair damage already done. In formulating this thought, I was guided by the Ontario Court of Appeal's comments in the case of Re Global Communications Ltd. And Attorney General for Canada:
The right to a fair trial is a fragile right. It is quite capable of being shattered by the kind of publicity that can attend a bail hearing and, once shattered, it may, like Humpty Dumpty, be quite impossible to put back together again.
Other Arguments
Victim Family Input
[41] Although not formally granted intervenor status, but without objection, counsel for Mr. Kargus' family addressed the court. Although it wasn't entirely clear, I took from his submissions that the family supported the Media in its opposition to the publication ban, but asked that, should I allow reporting on the exhibit (surveillance video), that it be edited.
[42] Although I am sympathetic and sensitive to this position and to those on whose behalf it's being made, this should not inform my analysis insofar as it diverts from the fair trial interests of any accused still before the court.
Systemic Discrimination and its Impact
[43] The applicant is an aboriginal person.
[44] Mr. Snow makes a compelling argument in this respect. If I understand the position correctly, I am being urged to have an awareness of and heightened sensitivity to the applicant's aboriginal ancestry and to consider how that impacts trial fairness.
[45] This is a novel point. Although it's difficult to frame the issue as a balancing between the fair trial rights of an aboriginal accused and the free expression rights of the media and the open court principle, I would be negligent in not turning my mind to this.
[46] The Supreme Court of Canada in R. v. Gladue, R. v. Ipeelee, and in other cases, has addressed the plight of aboriginal people in the justice system. Granted, these are primarily elaborations on sentencing principles (section 718.2(e)) but the reasoning and commentary are far broader than that and speak directly to larger systemic issues impacting aboriginal people. Informing its direction to sentencing judges, higher courts have consistently recognized that aboriginal people are disproportionately represented in Canada's jails. They are also more likely to be charged with a criminal offence; to be held by the police for a bail hearing; they are more likely to be detained after a show cause hearing; more likely to be convicted; and more likely to be sentenced to a period of incarceration. These are well-known and commonly accepted facts.
[47] Perhaps more relevant to trial fairness are the comments of Justice Iacobucci in his recent report: First Nations Representations on Ontario Juries – Report of the Independent Review Conducted by the Honourable Frank Iacobucci. He outlines the many concerns respecting aboriginal people and how they are treated within the administration of justice in Ontario. He describes it as a crisis situation. Several points are made, including the fact they are over-represented in the prison population, which is surely a result, at least in part, of trial fairness deficiencies. One might argue that aboriginal people simply commit crimes at higher rates because of the many social ills that plague their communities, and that that sad fact justifies, on its own, a more creative approach to sentencing. Construing it simply as a sentencing consideration or as an attack on the underlying causes of crime, misses the mark. It is broader than that, which includes the notion that aboriginal people, collectively, are not treated fairly at several stages of the criminal justice process.
[48] At paragraph 15 of the report, it states:
….the underrepresentation of individuals living on reserves on Ontario's jury roll – is a symptom of this crisis. It is that narrow problem, and the concerns it raises about the fairness of our jury system, that have rightly prompted the Government of Ontario to arrange for this independent review to be carried out. But an examination of that problem leads inexorably to a set of broader and systemic issues that are at the heart of the current dysfunctional relationship between Ontario's justice system and Aboriginal peoples in this province.
[49] The Ontario Court of Appeal in U.S.A. v. Leonard also addresses aboriginal offenders in the context of systemic discrimination, which is indeed a trial fairness issue. The following is found at paragraph 60:
….insisting that aboriginal defendants be treated as if they were exactly the same as non-aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of aboriginals in our prisons. Yet it is on the idea of formal equality of treatment the minister rests his Gladue analysis. That approach was soundly rejected by the Supreme Court in both Gladue and Ipeelee, which emphasize that consideration of the systemic wrongs inflicted on aboriginals does not amount to discrimination in their favour or guarantee them an automatic reduction in sentence. Instead, Gladue factors must be considered in order to avoid the discrimination to which aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances. Treating Gladue in this manner resonates with the principle of substantive equality grounded in the recognition that "equality does not necessarily men identical treatment and that the formal 'like treatment' model of discrimination may in fact produce inequality".
[50] It is difficult to articulate and conceptualize how this should be brought to bear on this application, or what impact it should have respecting terms. Mr. Snow submits it means I should have a heightened sensitivity to trial fairness issues because the applicant is an aboriginal person, suggesting that should impact two things. First, whether or not I grant the application and make a ban. And second, it should, depending on how much weight I give to the various factors, lead me to be as restrictive as possible in formulating the terms of any ban.
[51] Having regard to the Supreme Court's reasoning in Gladue and Ipeelee, and in light of the commonly accepted facts which are contained in Justice Iacobucci's report, I should indeed turn my mind to the circumstances of Ontario's aboriginal community in assessing this application. It presupposes a systemic problem in ensuring sufficient aboriginal people in jury pools, something which will certainly impact the applicant as he moves towards trial. This isn't to say an aboriginal person's fair trial interests are greater or more important than anyone else. Rather, that more caution should be used in considering this question because the process for them is, in most instances, already and inherently unfair.
Conclusion
[52] I find that the salutary effect of a publication ban, on these facts and in these circumstances, outweighs the deleterious effects to the public's right to know. In acknowledging the importance of the media's right to inform the public, any such ban must be a temporary one. It must be as limited in scope as possible placing trust in the effectiveness of front-end challenges for cause, the use of peremptory challenges, and proper jury instructions. As well, the focus of the order should be solely to protect the applicant's constitutional right to a fair trial.
Order
[53] First, I am denying the Media's request respecting the exhibit filed at Mr. Cake's plea and sentencing. It cannot be copied, reproduced, edited, published or broadcast in any way.
[54] Second, a publication ban is necessary.
[55] I make an Order restricting the publication of evidence taken at Mr. Cake's guilty plea and sentencing, having concluded such an order is necessary to prevent a serious risk to the proper administration of justice and that reasonably available alternative measures will not prevent the risk. The terms of this order are set out below.
[56] The ban imposed on February 27, 2014 (as amended on March 3, 2014) is amended as follows:
The following information may be published, broadcast or disseminated:
On February 27, 2014 Mr. Cake entered a guilty plea to (and was found guilty of) obstructing justice. A description of all those present in court, including names and respective roles.
Mr. Cake did not plead guilty to being an accessory after the fact to murder, with the Crown acknowledging it couldn't prove all essential elements of that offence.
That sentencing submissions were made with the matter being adjourned to March 18, 2014 for decision.
All submissions relative to the facts and sentence (that don't mention or reference or name Anthony George or Bradley Meilke), including Mr. Cake's background, and the respective positions being advanced.
That there was no input from Mr. Kargus' family at the sentencing hearing.
That Mr. Cake and Mr. Kargus were both inmates at EMDC on October 31, 2013, in the same range, in cells in close proximity to each other.
The reasons both were incarcerated.
On November 1, 2013 jail officials found Mr. Kargus in the washroom, unresponsive.
That emergency medical assistance was called but Mr. Kargus was dead.
That before this discovery, Mr. Kargus' body was dragged, cloaked in a sheet, from the cell area to the washroom.
A complete description of Mr. Cake's activities before, during, and after the dragging of the body, including all of the conduct that comprises the offence for which he's been found guilty.
Mr. Cake's statement to the court.
An application for a publication ban was made on February 27, 2014, which was adjourned to March 3, 2014 for full argument. That on March 3rd I reserved decision, without selecting a return date on the application.
These reasons.
The existence of the surveillance video; that it was played in court, and what it captures generally. Reporting on its content shall be in compliance with all other terms of this order and subject to the limitations described below.
The following may not be published, broadcast or disseminated in any way, in any format or medium:
Evidence presented or information discussed in court on either February 27 or March 3, 2014 as to the cause, or possible causes of Mr. Kargus' death.
Evidence, information or submissions made orally or in writing that mentions, refers to, directly or indirectly, or names Anthony George or Bradley Mielke. This includes all evidence, submissions and materials presented or filed on either February 27, or March 3, 2014.
[57] This publication ban comes into effect at 4:00 p.m. on Wednesday March 12, 2014. This provides counsel the opportunity to meet with and explain the order to their respective clients and to, given the likely absence of appeal options, consider an extraordinary remedy (i.e. certiorari). The ban imposed on February 27, 2014 (as extended and amended on March 3, 2014) shall be in effect until that time.
[58] This ban is temporary and shall remain in effect only until the trial of Anthony George has been completed.
March 10, 2014
Justice Jonathon C. George