CITATION: R. v. Wabason, 2015 ONSC 6125
COURT FILE NO.: CR-11-0142 & CR-13-0770
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent,
Andrew T.G. Sadler, for the Crown
- and -
Shaldon Wabason,
Applicant/Defendant
Delmar Doucette, for the Applicant/Defendant Wabason
AND BETWEEN:
Her Majesty The Queen,
Respondent
- and -
Andrew T.G. Sadler, for the Crown
Adam Capay,
Delmar Doucette, Agent for the Counsel for the Applicant/Defendant Capay
Applicant/Defendant
HEARD: May 11, 2015, at Thunder Bay, Ontario
Platana J.
Reasons On Application For A Publication Ban
[1] The Applicants seek a publication ban under ss. 645(5) and 648 of the Criminal Code, with regard to a 2015 pre-trial “Kokopenace” application. In the alternative, they seek a partial ban with respect to certain information.
[2] On June 8, 2015, I advised counsel that a publication ban would be ordered prohibiting the publication of:
(a) The names of the Applicants/Defendants or any other information that might identify them; and, without restricting the generality of this condition;
(b) The facts of the allegations to be made and the evidence to be called against the Applicants/Defendants at their trials; and
(c) The fact that one of the persons bringing the 2015 “Kokopenace” application was the person who brought the 2014 “Kokopenace” application in R. v. Wabason, 2014 ONSC 2394.
I advised that written reasons were to follow and these are those reasons.
Background
[3] On March 19, 2015, an order was issued requiring service on a number of media contracts who participated at a previous hearing of a similar application. On the date of hearing this application, no members of the media were present.
[4] The circumstances of this application are agreed as follows:
[5] The Applicants/Defendants are to be tried by jury, in separate and unrelated proceedings in Thunder Bay.
[6] The Applicant/Defendant Wabason was previously to be tried by a jury selected from the 2014 Thunder Bay jury roll.
[7] The Applicant/Defendant Wabason brought a pre-trial “Kokopenace” application that challenged the constitutionality of that jury roll in 2014. At that time, Mr. Justice McCartney issued a publication ban on the 2014 pre-trial proceedings.
[8] Justice McCartney later determined that the 2014 Thunder Bay jury roll was unconstitutional and entered a temporary stay of the prosecution against the Applicant/Defendant Wabason. At that time, Mr. Justice McCartney on consent lifted the publication ban on the 2014 pre-trial “Kokopenace” proceedings.
[9] The Applicants/Defendants brought a pre-trial “Kokopenace” application, which began June 1, 2015, which challenged the constitutionality of the 2015 Thunder Bay jury roll.
[10] The Applicants/Defendants seek a full publication ban pursuant to s. 648 of the Criminal Code in regard to the 2015 pre-trial “Kokopenace” application. In the alternative, they seek a partial publication ban pursuant to the principles enunciated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.
Positions of the Parties
[11] Section 648 reads:
- (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.
[12] Mr. Doucette submits that s. 648 applies and that there is an automatic ban. He relies on R. v. Ahmed, [2009] O.J. No. 6150 (S.C.), where Dawson J., in dealing with pretrial motions, stated at para. 3:
While on its face s. 648 appears to apply only after a jury has been selected, a number of cases have held that s. 645(5) of the Criminal Code has the effect of rendering s. 648 applicable to motions conducted pursuant to s. 645(5) before the jury is selected: R. v. Bernardo, [1985] O.J. No. 247 (Gen. Div.); R. v. Regan (1997), 124 C.C.C. (3d) 77 (N.S.S.C.); R. v. Brown, [1998] O.J. No. 6168 (Gen. Div.); R. v. Malik, [2002] B.C.J. No. 3223. I agree with this conclusion. Section 645(5) provides as follows:
645(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn. R.S., c. C-34, s. 574; R.S.C. 1985, c. 27 (1st Supp), s. 133; 1997, c. 18, s. 76; 2001, c. 32, s. 43.
[13] He further references paras. 10 – 13, which reads:
[10] Heeney J. concluded that whether s. 648 applied depended on the nature of the motion or application. If it “would ordinarily or necessarily be heard before the trial judge in the absence of the jury” after the jury was empanelled, then s. 648 would apply by virtue of s. 645(5). If the motion or application did not fall in that category s. 648 would not apply, although a common law publication ban governed by the Dagenais/Mentuck test was potentially available.
[11] Before learning of Heeney J.’s decision I was inclined to take the same approach. However, after hearing submissions from all counsel I have decided not to adopt it or the other submissions made by Ms. Fischer. In my view, in the absence of a challenge to the constitutional validity of s. 648 I have no jurisdiction to restrict its application.
[12] I agree with the submissions made by counsel for some of the accused that Parliament deliberately used broad language for the purpose of ensuring a fair trial. I also agree with counsel’s submissions that prejudice to fair trial interests can flow from procedural motions, as well as from evidential motions. By prohibiting the publication of “any information regarding any portion of the trial at which the jury is not present,” Parliament ensured that prejudice from any pretrial proceeding before the trial judge would be caught. I also note that such motions will generally take place shortly before the jury is selected when the risk of prejudice is heightened.
[13] Although some of the motions I am dealing with could have been brought before another judge of this court, counsel brought them before me on the basis that they are best dealt with in the context of the evidence in this case by the judge who will preside once the jury has been empanelled. Once such a determination was made s. 648 applied pursuant to s. 645(5). As there is no ambiguity in the legislation itself which would allow me to cast an interpretation upon s. 648 that would minimize its potential impairment of the interests protected by s. 2(b) of the Charter, this court has no role altering the breadth of the section as enacted by Parliament in the absence of a constitutional challenge to the section.
[14] He notes the decision of Heeney J., in R. v. Canadian Broadcasting Corp., [2008] O.J. No. 5637 (S.C.), where at para. 20, he states:
20 It seems to me that the key to approaching this issue lies in focusing on the nature of the motion or application under consideration. Is it one which would ordinarily or necessarily be heard before the trial judge in the absence of the jury after it has been empanelled? If it is such a motion, and if it is only being heard in advance of the trial proper pursuant to s. 645(5), then there is no reason to treat it any differently than a similar motion heard during the course of the trial, where s. 648(1) would be engaged so as to ban publication. On the other hand, if it is a motion that could be heard by a judge other than the trial judge, or be heard before the jury is sworn, then s. 648(1) has no application.
[15] Mr. Doucette submits that the concluding sentence of that paragraph must now be considered in the light of s. 551.1, which provides for the appointment of a case management judge and sets out the powers of that judge in s. 551.3, and in particular 511.3(3), which states:
511.3(3) When the case management judge exercises the power referred to in paragraph (1)(g), he or she is doing so at trial.
[16] In the alternative, Mr. Doucette submits that if there is no automatic ban under s. 648.1, then I should make an order under the common-law test established in Dagenais and R. v. Mentuck.
[17] Mr. Doucette respectfully requested that a partial publication ban be issued in regard to the “Kokopenace” application, with the following information to be subject to the ban:
(a) The names of the Applicants/Defendants or any other information that might identify them; and, without restricting the generality of this condition;
(b) The fact that the Applicants/Defendants are First Nation persons;
(c) The names of counsel for the Applicants/Defendants and the Crown;
(d) The facts of the allegations to be made and the evidence to be called against the Applicants/Defendants at their trials;
(e) The fact that the “Kokopenace” applications is related to a criminal prosecution; and
(f) The fact that one of the persons bringing the 2015 “Kokopenace” application was the person who brought the 2014 “Kokopenace” application in R. v. Wabason, 2014 ONSC 2394.
[18] The Crown’s position is that if s. 648 applies, the ban is automatic. If it does not, the court must engage in the balancing test set out by the Supreme Court of Canada in Dagenais and Mentuck. The Crown submits that if the Applicants’ argument succeeds, McCartney J. had no authority to “lift” the statutory publication ban. No formal order is required, and any publication of information regarding the 2014 that the jury roll in Thunder Bay did not meet the constitutional standard was subject to prosecution.
[19] The Crown argues that s. 648(1) applies only after a jury is given permission to separate. He also references para. 20 in the decision by Heeney J. in R. v. Canadian Broadcasting Corp at para. 20:
20 It seems to me that the key to approaching this issue lies in focusing on the nature of the motion or application under consideration… if it is a motion that could be heard by a judge other than the trial judge, or be heard before the jury is sworn, then s. 648(1) has no application.
[20] The Crown acknowledges an apparent difference of opinion in Ahmad and Canadian Broadcasting, however, submits that Ahmad does not address the sort of motion being addressed in this application. A Kokopenace application, like a motion for challenge for cause, or a motion change of venue, “simply could not have been brought “before the trial judge, after the jurors have been sworn and in their absence.”
[21] The Crown further argues that as this motion could not have been captured by s. 648(1), the court must instead consider the test for discretionary publication ban. In that regard, the Crown references Dagenais where the Supreme Court reformulated the common law rule at para. 73, as follows:
A publication ban should only be ordered when:
(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.
[22] The Crown notes that the media in this case have not responded to the Notice served. Referencing Dagenais at para. 98, he submits that the Applicants bear the burden of justifying the publication ban sought. He argues that other options must be considered, and there must be a weighing to assess proportionality.
[23] The Crown then references Mentuck where a publication ban was sought with respect to the identity of undercover offices. There was no issue of fair trial rights to the accused. The issue was of broader application with respect to the administration of justice. The court reformulated the test at para. 32 as:
A publication ban should only be ordered when:
(a) 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
(b) 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.
[24] At paragraph 33 of Mentuck, the Court stated “… in those common law publication ban cases where only freedom of expression and trial fairness issues are raised, the test should be applied precisely as it was in Dagenais”.
[25] The Crown notes that the Court in Mentuck nonetheless added some general comments at paras. 38 and 39, that are of significance in conducting the applicable analysis. Although the first branch could be described simply as “necessity,” it contains several important elements:
[38] …when there is no party or intervener present to argue the interests of the press and the public to free expression, the trial judge must take account of these interests without the benefit of argument. The consideration of unrepresented interests must not be taken lightly, especially where Charter-protected rights such as freedom of expression are at stake. … The absence of evidence opposed to the granting of a ban, that is, should not be taken as mitigating the importance of the right to free expression in applying the test.
[39] It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban.
Discussion
[26] The Applicant has submitted that if a potential juror became aware that this current Kokopenace application seeking a stay is brought by the same applicant who sought, and was granted a stay last year, the potential juror could become prejudiced against the Applicant by wrongly concluding that he intends to try avoiding a trial, and draw an adverse inference against the Applicant.
[27] As I noted earlier, the media served did not respond to notice of this application.
[28] I agree with counsel that there is potential for a potential juror to draw an adverse inference that the Applicant is seeking to avoid a trial.
Conclusion
[29] Order to go that a publication ban with respect to this application on a “Kokopenace application” be issued, with the following information subject to the ban:
(i) The names of the Applicants/Defendants or any other information that might identify them; and, without restricting the generality of this condition;
(ii) The facts of the allegations to be made and the evidence to be called against the Applicants/Defendants at their trials; and
(iii) The fact that one of the persons bringing the 2015 “Kokopenace” application was the person who brought the 2014 “Kokopenace” application in R. v. Wabason, 2014 ONSC 2394.
This order may be reviewed at the commencement of trials.
___”original signed by”
Mr. Justice T. A. Platana
Released: October 2, 2015
CITATION: R. v. Wabason, 2015 ONSC 6125
COURT FILE NO.: CR-11-0142 & CR-13-0770
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent,
- and -
Shaldon Wabason,
Applicant/Defendant
AND BETWEEN:
Her Majesty The Queen,
Respondent
- and -
Adam Capay,
Applicant/Defendant
REASONS ON APPLICATION
FOR A PUBLICATION BAN
Platana J.
Released: October 2, 2015
/mls