ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11557
DATE: 2014/06/13
B E T W E E N:
Her Majesty the Queen
Peter Rollings, for the Crown
Respondent
- and -
David Cake & Bradley Mielke
Accused
David McCarthy, for the accused Bradley Mielke
-and-
Anthony George
Respondent Applicant (Intervenor)
Geoff Snow, for David Cake and as Agent for Terry Lynn Brandon, for Anthony George
-and-
Les Lonsbury
Applicant (Intervenor)
Ron Ellis, for Les Lonsbury
-and-
Sun Media Corporation & Canadian Broadcasting Corporation and Sun Media Corporation
Justin Safayeni, for the Media Applicants
Applicant (Intervenors)
HEARD: May 22, 2014
Ruling on Certiorari Application
Introduction
[1] Sun Media Corporation and the Canadian Broadcasting Corporation (the media parties) seek an order for certiorari quashing the Order of the Honourable Mr. Justice George of the Ontario Court of Justice dated March 10, 2014, which granted a partial publication ban in respect of a guilty plea entered by David Cake on February 27, 2014. Justice George denied the media parties access to a certain court exhibit filed at the Cake guilty plea hearing. The media parties wished the right to access, copy, reproduce, edit, publish and broadcast a video entered as Exhibit No. 1 at the Cake plea and an accompanying video description as I will describe below.
Background
[2] On October 31, 2013, Adam Kargus died while in detention at the Elgin Middlesex Detention Centre (EMDC). Anthony George has been charged with second degree murder and David Cake and Bradley Mielke were both charged with being accessory to murder after the fact contrary to s. 240 of the Criminal Code.
[3] On February 27, 2014, Mr. Cake pleaded guilty to obstruction of justice contrary to s. 139(2) of the Code. The guilty plea was accepted and a conviction was entered by Justice George of the Ontario Court of Justice pursuant to s. 606(4) of the Code.
[4] Exhibit No. 1 at the plea was a ten minute video clip taken at the EMDC on the morning of Mr. Kargus’ death, which was played in court. The video was accompanied by a document prepared by Assistant Crown Attorney Peter Rollings and handed up to Justice George, which contained a description of the events that were being seen on the video. Mr. Rollings narrated the events depicted on the video as it was being played.
[5] On the same date, at Mr. George’s request and that of Mr. Cake, application was made for a publication ban. Justice George ordered an interim publication ban until March 3, 2014 when he agreed to hear full argument on the issue. On March 3rd, Mr. George’s application for publication ban and the media parties’ application for access to the exhibit from the Cake plea were heard. By this time, Mr. Cake had abandoned his application for a publication ban. Mr. Mielke did not appear on that date.
[6] Following argument, Justice George ordered that the interim ban from February 27, 2014 continue until the release of his decision.
[7] On March 10, 2014, Justice George released his reasons for decision and ordered a partial publication ban in respect of:
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 material presented or filed on either February 27 or March 3, 2014.
[8] He denied the media parties’ request for access to Exhibit No. 1 and ordered that it could not be copied, reproduced, edited, published or broadcast in any way.
[9] Justice George concluded that his order was “necessary to prevent a serious risk to the proper administration of justice and that reasonably available alternative measures will not prevent the risk”. Nevertheless, he permitted the media to publish many details respecting Mr. Cake’s guilty plea and sentencing.
[10] Justice George provided lengthy and thoughtful reasons for his decision to grant the relief sought by Mr. George (and originally by Mr. Cake). He noted as follows:
[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 applicants’ trial.
[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 … Dagenais v. Canadian Broadcasting Corporation, 1994 39 (SCC), [1994] S.C.J. 104.
[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 an unknown, directing an assessment of whether 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.
[11] Justice George quoted from para. 16 of the Dagenais decision:
[17] ….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 by reference to statutory provisions such as ss. 468, 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 through the Criminal Code.
[12] He concluded that there was no risk of a superior court judge being bound by his order because when Mr. George appears in the Superior Court, that court will independently address what bans are necessary. He was “Mr. Cake’s trial judge and….therefore compelled to decide this issue.”
[13] He continued the analysis by considering the test to be applied and the evidentiary threshold. He referred to the leading authorities, namely Dagenais, supra, R. v. Mentuck, [2001] S.C.R. 442 and Canadian Broadcasting Corporation v. New Brunswick (Attorney General), 1996 184 (SCC), [1996] 3 S.C.R. 480.
[14] He acknowledged the fundamental importance of the freedom of the press and the open court principle. He noted that there was significant media interest in the murder and the conditions at EMDC, although it was not as intense as perhaps in other high profile murder cases.
[15] The judge considered whether there was a real and substantial risk to Mr. George’s fair trial rights; whether there were reasonable alternatives; the balance between competing interests; Mr. Kargus’ family’s submission; as well as Mr. George’s status as an aboriginal person.
[16] In this regard, Justice George made the following comments:
[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 certain 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.
The position of the parties
[17] The media parties submit that the application judge did not have jurisdiction to make the partial ban because the application necessarily had to be heard in the Superior Court given that is where Mr. George will be tried.
[18] They also argue that the impugned orders are not necessary to prevent a real and substantial risk to trial fairness. They submit that reasonable alternative measures are available, including jury instructions, challenge for cause, change of venue and subsequent applications for a publication ban. They point out that it is possible to edit and obscure the identities of those identified on the video. They submit that Mr. George’s aboriginal status was not properly considered.
[19] The Crown submits that the minimal restriction on media, broadcast and publication is fair and balanced given the nature of the offences charged and the overlapping character of the evidence. The Crown submits that to allow the media to broadcast the video with respect to the guilty plea of Mr. Cake would have serious repercussions on the fair trial rights for both Mr. George and Mr. Mielke. The impugned order strikes a balance between the media’s right to fully publish relevant information, the public’s right to be fully informed of the circumstances of Mr. Cake’s guilty plea, while preserving the rights of Mr. George and Mr. Mielke to have their matters determined in court without the concern that potential jurors might be tainted. Finally, the narrative provided by Mr. Rollings during the plea hearing is not evidence before the court.
[20] Mr. George adopts the position taken by the Crown and in addition, suggests that Justice George’s consideration of his aboriginal status was necessary and appropriate.
[21] Mr. Mielke supports and endorses the position being taken by the Crown.
[22] In addition, during the course of the hearing, I granted standing to Les Lonsbury. Mr. Lonsbury is a corrections officer who works at EMDC. On March 5, 2014, he was charged with an offence under s. 215(2) of the Criminal Code arising from the death of Adam Kargus. I understand that two other EMDC employees have also been charged but they did not appear at the hearing of this application. Counsel on behalf of Mr. Lonsbury echoes and supports the submissions made by Mr. Rollings on behalf of the Crown.
The Law
[23] The Criminal Code provides several opportunities to obtain a partial or full ban on publication in balancing fair trial rights with the open court concept. Section 517 of the Code provides for the non-publication of evidence taken at a bail hearing. Section 539 permits a publication ban of evidence taken at a preliminary hearing. Section 542(2) prohibits the publication or broadcast of any confession or admission made at a preliminary hearing. Section 648 of the Code provides that no information regarding any portion of a trial at which the jury is not present, shall be published before the jury retires to consider its verdict. As an example, evidence given at a voir dire may not be published before the jury retires to consider its verdict. There are also provisions prohibiting the publication of information that would identify a complainant (section 486.4); a juror (section 631(6)); a justice system participant (section 486.5(2)); and a witness (section 486.5).
[24] As is readily apparent, none of those statutory provisions apply to the circumstances of this case. As a result, Justice George was asked to make a publication ban under his common law authority.
[25] In Dagenais, supra, the Supreme Court of Canada set out the general principles governing the exercise of common law authority. At the risk of repetition because this passage was reproduced by the court below, the court noted as follows:
[16] To seek a ban under a judge’s common law or legislated discretionary 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 in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provisions such as ss. 468, 469, 553, 555, 798 of the Criminal Code…and section 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 at 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).
[26] There is a presumption that court proceedings are open. Freedom of the press and the openness of courts are fundamental values: Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332 at para. 24 and Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 21.
[27] The burden for rebutting the presumption of openness lies with the party making application for a publication ban. See Dagenais at pp. 890-891.
[28] The Dagenais/Mentuck test has been expressed in this way:
A publication ban should only be ordered when:
• Such an order is necessary in order to prevent a serious risk to the proper administration of justice, because reasonably alternative measures will not prevent the risk; and
• The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
[29] Under the first branch of the test, the “serious risk to the proper administration of justice” must be a “real and substantial risk.” That is, “it must be a risk the reality of which is well-grounded in the evidence. It must also be a risk that poses a serious threat to the proper administration of justice. Judges are cautioned not to interpret the proper administration of justice so broadly as “to keep secret a vast amount of enforcement information the disclosure of which would be compatible with the public interest” (Mentuck at pp. 463-64).
[30] The second branch of the test requires a consideration of reasonable alternatives and restrictions (Mentuck at p. 464). The Supreme Court of Canada, in the more recent decision Re Vancouver Sun, supra, at para. 30 observed as follows:
The first part of the Dagenais/Mentuck test reflects the minimal impairment requirement of the Oakes test, (R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103), and the second part of the Dagenais/Mentuck test reflects the proportionality requirement. The judge is required to consider not only ‘whether reasonable alternatives are available, but also to restrict the order as far as possible without sacrificing the prevention of the risk’: Mentuck, supra, at para. 36.
[31] Dagenais has this to say respecting jurisdiction and the avenue for review:
[38] Provincial superior courts have jurisdiction to hear applications for the extraordinary remedy of certiorari against provincial court judges for excesses of jurisdiction and for errors of law on the face of the record. As I will explain in Part C of these reasons, the common law rule governing the issuance of orders banning publication must be consistent with the principles of the Charter. Since the common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error of law on the face of the record. Therefore, if a publication ban order is made by a provincial court judge, the media can apply to the superior court for certiorari and argue that the ban is not authorized by the common law rule. If this is the case, the ban will then constitute an error of law on the face of the record. By virtue of. s. 784(1) of the Criminal Code, an appeal lies to the Court of Appeal from a decision granting or refusing the relief sought in proceedings by way of certiorari.
Analysis
[32] I have concluded that Justice George had jurisdiction to make the order that he did and that the order is justified and necessary.
[33] On the issue of jurisdiction, Justice George was Mr. Cake’s trial judge and it was in this context that the relief was sought. He was obliged to consider the request and adjudicate. He had the jurisdiction to do so.
[34] Support for this proposition is found in Dagenais, supra, at paras. 16 & 38 and in Re Church of Scientology of Toronto et al and the Queen (No. 6) (1986), 1986 4649 (ON SC), 27 C.C.C. (3d) 193 (Ont. H.C.) a decision of Watt J. (as he then was).
[35] Following a detailed review of the authorities, Watt J. made the following observation:
It is, indeed, almost a commonplace where several accused jointly indicted are together presented for trial at a jury sittings that, upon a plea of guilty being entered by one or more accused upon arraignment before the presiding judge, to direct that there be no publication of the fact of such plea, the “facts” tendered in support of it, representations made and reasons given at the conclusion of the plea proceedings until the conclusion of the proceedings pending against the co-accused. Such orders are made and equally salutary whether the offence charged is listed in s. 427 of the Criminal Code or otherwise and whether the plea is preceded by re-election for trial by judge alone or consent to trial by judge alone by the accused who enters the plea of guilty. It would generally not seem to be thought that an order suspending publication is necessary in the event that all remaining accused are to be tried by judge alone or provincial court judge. It is assumed that in such cases the presiding judge is less likely to be affected by the publication of such information. For jurisdictional purposes, in my view, it matters not whether the judge to whom the application is made is, in circumstances like the present, sitting under Part XVI of the Criminal Code or whether he or she is presiding at a jury sittings whose procedure is regulated by Part XVII of the Criminal Code. The court is none the less a court of record and the fairness of the pending trials ought equally to be their concern. It is absolutely critical that if an order for non-publication is to be made that it be made in the plea of guilty proceedings, for in the event that it should not there be made it will be of no avail if left to the judge presiding in the jury trial thereafter taking place as the damage occasioned by such publicity may well, by then, have been done.
[36] As a result, the court concluded that:
It is, accordingly, my respectful view that, as a court of record, a provincial court judge, acting under Part XVI in receiving a plea of guilty tendered by one of several accused jointly charged has authority to entertain an application, on behalf of another or other accused jointly charge, for an order suspending publication of such matters disclosed in the proceedings upon the plea of guilty as may reasonably be said, if published, to impair the appearance of fairness in subsequent proceedings taken against such co-accused.
[37] I recognize that Mr. George is not jointly charged with Mr. Cake and Mr. Mielke but this situation is analogous. The offences arise from the same series of transactions. My own review of Exhibit 1 shows the events to be interrelated. And as Watt J. noted “a substantial residuum of non-statutorily defined discretion remains in a trial court to do essentially that which is just, at least so far as what is done does not contravene express statutory enactment or do violence to that which arises by necessary implication therefrom.”
[38] I have also concluded that Justice George considered the relevant principles set out in the Dagenais and Mentuck decisions and appropriately balanced the competing interests at play. A complete ban, which had been sought, was not ordered but rather a nuanced partial ban which respected the public’s right to be informed while safeguarding the other accuseds’ fair trial rights.
[39] In my view, Mr. George’s aboriginal status was an appropriate consideration. It was not emphasized to the detriment of other factors but was one that required some thought, given the underrepresentation of individuals living on reserves on Ontario’s jury roll as outlined by the Honourable Iacobucci in his report entitled “First Nations Representations on Ontario Juries”. This situation has been discussed in R. v. Kokopenace, [2013] ONCA 389 respecting the jury roll in the District of Kenora and in R. v. Kennedy, 2013 ONSC 6419 respecting Middlesex County. The impact of the tainting of a jury pool is exacerbated given this problem.
[40] I see no error of law in the decision. The application for certiorari is dismissed.
“Justice H. A. Rady”
Justice H. A. Rady
Date: June 13, 2014
COURT FILE NO.: 11557
DATE: 2014/06/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and -
David Cake & Bradley Mielke
Accused
-and-
Anthony George
Respondent Applicant (Intervenor)
-and-
Les Lonsbury
Applicant (Intervenor)
-and-
Sun Media Corporation & Canadian Broadcasting Corporation and Sun Media Corporation
Applicant (Intervenors)
Ruling on Certiorari Application
Rady J.
Date Released: June 13, 2014