CITATION: R. v. Biddersingh, 2015 ONSC 6498

COURT FILE NO.: 15-10000564-0000

DATE: 2015/10/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EVERTON BIDDERSINGH

ELAINE BIDDERSINGH Applicant

TORONTO STAR NEWSPAPERS LTD., POST MEDIA INC. and BELL MEDIA INC. Respondents

Mary Humphrey and Anna R. Tenhouse, for the Crown

Jennifer Penman and Genevieve McInnes, for the Respondent/Applicant

Alana Page and Jennifer Myers for the Applicant

Paul B. Schabas and Jessica Lam for the Respondents

HEARD: October 20, 2015

RULING

APPLICATION FOR PUBLICATION BAN

a.j. o’marra j.

[1] Everton Biddersingh is charged with first degree murder, aggravated assault and indignity to a dead human body in relation to his 17 year old daughter, Melonie Biddersingh in 1994. His spouse, Elaine Biddersingh, stepmother of the deceased, is indicted separately on the offences of first degree murder, indignity to a dead human body and obstruct justice. Her trial is scheduled to commence April 11, 2016.

[2] Ms. Biddersingh, the Applicant, has been subpoenaed and is scheduled to testify as a witness at Everton Biddersingh’s trial, scheduled to commence before the jury October 28, 2015.

[3] The Applicant seeks an order from the court granting a partial publication ban of her evidence, and the evidence of any witness as to any actions, utterances or statements alleged to have been made by the Applicant, until the jury in her trial has retired to consider their verdict.

[4] In the alternative, the Applicant seeks an order directing the non-publication of any evidence after a certain date following the completion of Mr. Biddersingh’s trial and well before the commencement of her trial.

[5] The Applicant asserts that the publication ban is necessary otherwise she will not be able to be tried by an impartial jury due to pre-trial publicity to date, the publicity which will arise from Everton Biddersingh’s trial, in particular publication of her evidence and others about her on his trial, evidence which may not be adduced at her trial, yet publicly available.

[6] The Applicant gave notice to several media outlets regarding her application. Counsel for the Toronto Star Newspapers Ltd., Post Media Inc. and Bell Media Inc. appeared on the application in response. The Media Respondents oppose the granting of any ban with respect to any of the evidence tendered on Everton Biddersingh’s trial. The Crown takes no position. Defence counsel submit that if a ban is directed it should be a complete ban or none at all, rather than the partial ban sought by the Applicant, otherwise any reporting of the proceeding would present a skewed picture to the public of the evidence heard on his trial. Further, a partial ban could require the court to provide continuing direction by the court to the media as to what aspect of a witness’s evidence could or could not be reported.

Background

[7] The deceased, Melonie Biddersingh, is the daughter of Everton Biddersingh and stepdaughter of Elaine Biddersingh.

[8] On September 1, 1994 the body of a 17 year old girl was found in a suitcase which had been set on fire in an industrial area of Vaughan, Ontario. On autopsy, the deceased was found to have been severely malnourished, weighing 50 lbs. with 21 ante mortem fractures in varying stages of healing from 3 weeks to 6 months old. The cause of death was determined subsequently to have been drowning or drowning as a major contributing factor. Melonie’s body remained unidentified for almost 18 years.

[9] Melonie had come to Canada in 1991 as a 13 year old with her brother Dwayne, 12 years old and older stepbrother Cleon Biddersingh, 17 years old. They arrived from Jamaica to live with Elaine and Everton because of hard economic times in Jamaica and it was expected their lives would be better in Canada. When they arrived to live with Elaine and Everton in a one room apartment at 22 Close Avenue, Toronto, Elaine and Everton had three other children, Kenroy and O’Neill, 6 and 7 years old and within months Elaine gave birth to infant Charmaine. Everton had another daughter, Suan who did not live with them.

[10] Neither Melonie’s death in 1994 nor that she had gone missing was ever reported by the Biddersinghs. In December 2011 Elaine told her church pastor, Eduardo Cruz about the circumstances of Melonie’s death – her body had been put in a suitcase and that she and Everton had been involved in the disposal of her remains. Mr. Cruz in turn provided the information to the police, which led to Melonie’s identification through a DNA comparison with her biological mother, Opal Austin in Jamaica in 2012.

[11] The police interviewed Biddersingh family members Elaine, Cleon, Charmaine, Suan, and Everton as part of the follow-up investigation to Melonie’s death, including the circumstances involving the earlier death of Melonie’s brother Dwayne in June 1992. The investigation into Melonie’s death led to charges against Everton, Elaine and Cleon. The Crown withdrew charges against Cleon, also a witness scheduled to testify on Everton Biddersingh’s trial.

[12] Counsel for the Applicant submits that it is likely that Everton’s defence will attempt to lay blame at Elaine’s feet through cross-examination of her and other family witnesses. She has testified at Mr. Biddersingh’s preliminary hearing and given statements to the police, portions of which may be referred to in Everton Biddersingh’s trial, which may not be admissible at her trial.

[13] In terms of pre-trial publicity that exists to date, the Applicant has submitted an affidavit of Iman Haji-Jama, legal assistant to counsel for the Applicant who conducted an online search of prior media coverage, which referenced some fifty articles in relation to Elaine, Everton and/or Melonie Biddersingh.

[14] The applicant describes the print media coverage as follows:

There has been a significant amount of fairly sensational media coverage surrounding this prosecution. Some reporters call it the “Suitcase Murder”; and details of the post-mortem were revealed. This coverage centered around events in the investigation, arrest and court appearances including:

• around the time of the discovery of Melonie’s remains (1994);

• at the time of Elaine, Everton and Cleon’s arrests in March and April 2012;

• when Dwayne’s body was exhumed in January 2013 (a brother of Melonie who pre-deceased her in 1992);

• in and around the time of Elaine’s bail hearing, November 2012.

It is anticipated that there will be a significant amount of press coverage during the trials as well.

[15] In this instance, the Media Respondent submits that the Applicant has not produced any compelling evidence that she will not be able to be tried by an impartial jury as a result of pre-trial publicity and/or publicity arising from her evidence and others with respect to her at her trial. The suggestion that a potential jury pool will be tainted by the pre-trial publicity is at most speculative. Further, it presumes that jurors will not follow their oaths to try the matter solely on the evidence presented during the conduct of the trial.

Applicable Principles

[16] On the application, two important constitutional rights are in direct competition with each other; the right to freedom of the press which includes the open courts principle, a hallmark of democratic society and the accused’s right to a fair and public trial by an impartial tribunal.

[17] Applications for publication bans require the court to engage in balancing exercise between equal rights under the Charter of Rights and Freedoms, the rights of the press and other media of communication under s. 2(b) and the accused’s right to a fair trial under s. 11(d) of the Charter.

[18] The test to be applied in determining whether publication ban should be imposed is outlined in the seminal case of Dagenais v. Canadian Broadcasting Corp. (1994), 1993 CanLII 867 (BC CA), 84 C.C.C. (3d) 289 (S.C.C.) at p. 317 by Lamer C.J.C. for the majority 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 freedom of expression of those affected by the ban.

[19] The party seeking to limit public access through a publication ban bears the onus of establishing that the risk to be avoided is a “real and substantial risk” to trial fairness. In R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at para. 34, which confirmed the Dagenais test, although with an expansion of risk to “the proper administration of justice”, which includes trial fairness, Iacobucci J observed, the party seeking the ban must provide the court with “a convincing evidentiary basis for issuing the ban”.

[20] In Dagenais, Lamer C.J.C. stated at p. 318 that “publication bans are not available as protection against remote and speculative dangers”.

[21] The reason the Applicant bears the burden is because court proceedings are presumptively open, which ensures public scrutiny and confidence in the judicial process and that evidence is truthful and accurate. Fish J. in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] S.C.J. No. 41 (S.C.C.) observed at p. 3:

In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.

[22] In CBC v. New Brunswick, 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480 at p. 496, LaForest J. in reference to the openness principle stated:

Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and procedures. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place.

[23] Counsel contends that the pre-trial publicity and any publicity produced during Mr. Biddersingh’s trial will be available to the curious potential jurors summoned as part of the jury pool for her trial. It continues on the global internet. The life of a news story no longer expires as of the next day’s fish wrapping.

[24] In Dagenais, Lamer C.J.C noted at p. 23:

In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore the actual effect of bans on jury impartiality is substantially diminishing.

Assessment

[25] Where the Applicant has shown a serious risk the court then must consider whether there are reasonable alternative measures to a publication ban and a restriction of the right to freedom of the press, to guard against the risk of the trial being unfair. Indeed, Lamer C.J.C. stated at p. 327 of Dagenais that the judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative, for example a change of venue, sequestering the jury, an adjournment, challenges for cause and providing a strong judicial direction to the jury.

[26] The parties have provided the court a number of decisions where publication bans have been denied, partial publication bans granted and others in which bans were delayed until after the proceedings were over, then imposed prior to subsequent proceedings.

[27] The application is premised on the concern that pre-trial publicity as well as the publicity arising from her evidence at Everton Biddersingh’s trial will taint possible jury members and make it impossible for her to obtain an impartial jury. Prospective jurors may access the internet and be influenced by such news reports.

[28] Each case must be determined based on its particular factual circumstances however; I find the decision in R. v. Murrin, [1997] B.C.J. No. 3182 of Oppal J., then of the B.C. Supreme Court, a case of some similarity to the instant matter, as instructive. There the applicant was to be a Crown witness in a prosecution against three individuals charged with assaulting him. He was charged with first degree murder arising out of earlier events which were said to have led to the assault against him. There were allegations the RCMP had been involved in orchestrating the attack on him as a way of forcing a confession with respect to the murder. Mr. Murrin sought a publication ban of the entire trial evidence for fear that failing to do so given the nature of the allegations, it would be impossible for him to receive a fair trial subsequently on the murder charge. It was argued that some of the evidence from the first trial might be inadmissible at the second trial and would therefore be unfair for the witnesses’ testimony to be published prior to the applicant’s trial.

[29] Oppal J. noted that there had been other serious cases where there was an inordinate amount of pre-trial publicity followed by multiple trials. Yet, “in spite of extensive pre-trial publicity and overlapping evidence” they were able to proceed without any problem and without the need of a publication ban. He also observed that the second trial would not start until at least seven to eight months afterwards and that public knowledge in matters of such nature is often fleeting. He stated at para. 20:

We live in an era that is often marked by high degrees of pre-trial publicity which often features revelations of prejudicial pre-trial 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.

[30] Publication bans should be made only in the clearest of cases.

[31] There have been other cases where there have been multiple or staggered proceedings in which publication bans have been denied. In R v. J-S.R., Nordheimer J. refused to issue a ban with respect to sequential trials of persons charged in what was referred to as “the boxing day shooting of Jane Creba” outside of the Toronto Eaton’s Centre in December 2005. In that instance, the court was advised that the Crown found over one thousand articles referencing the event, in addition to “many sources of comment and opinion” found in various places on the internet”. The court held that even though there was considerable pre-trial publicity the risk to the accused’s fair trial rights was not real and substantial.

[32] Clearly, the media attention to date in this matter does not rise to the level as in that case. Here the negative impact is at most speculative.

Reasonable Alternative Measures

[33] Notwithstanding, there are frequently applied measures to prevent any real serious risk where there is concern to Applicant’s fair trial rights. A challenge for cause based on excessive or sensational publicity as having a negative impact on the impartiality of potential jurors is a viable alternative measure. Challenges for cause, which at one time had been rare are now frequently conducted in this jurisdiction. Further, sworn jurors are directed to consider only the evidence given at trial and not to seek out information.

[34] As noted by Chief Justice Lamer in Dagenais at p. 322: “Jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of criminal proceedings”.

[35] Even when information has come to the attention of potential jurors, Nordheimer J. observed in Regina v. Kossyrine 2011, ONSC 6081 at para. 20:

…that accused are entitled to an impartial jury not an uninformed jury. The fact that members of a jury may have read about the case and the allegations in it, is only problematic if they have formed a fixed opinion that they cannot disabuse themselves of. That is precisely what the challenge for cause process is designed to reveal. That process coupled with jury instructions regarding the need to decide the case based only on the evidence heard in the courtroom and not on any other information are the type of reasonable alternative measures that are capable of preventing risks that the applicants identify.

[36] Should the pre-trial publicity become “frenzied”, the challenge for cause procedure and “a strong judicial direction to the jury” are clearly “reasonable alternative measures” that can be employed to protect against any risk of harm that might exist. In R. v. Lake, [1997] O.J. No. 5446 McCombs J. stated, in refusing to impose a publication ban during the trial:

I am not persuaded that publication of the witness Mr. R.C.’s evidence at least a year before his trial, without revealing his identity, would create a real and substantial risk to the fairness of his trial. Moreover, even if I assumed that potential jurors at Mr. R.C.’s trial could be tainted by media reports of his testimony a year earlier, that possibility does not, in my view, create a real and substantial risk to the fairness of his trial. Jurors tainted in that way can be identified and, appropriate, excused, by means of the challenge for cause jury selection process: R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (O.C.A.). Moreover, experience has taught us that juries perform their duty according to the law, and abide by a judge’s directions to decide the case only on the evidence before them, ignoring information not presented at trial. Courts ought not to assume that juries are incapable of following the explicit instructions of a judge: R. v. Corbett (1988), 1988 CanLII 80 (SCC), 41 C.C.C. (3d) 385, per: Dickson C.J.C. at pp. 400-1.

[37] In Lake a delayed ban was imposed seven days after the completion of the trial. I have given consideration to a delayed ban in this instance but conclude that it is not necessary. As noted in J. S-R. at para. 73 the media report on the evidence in the proceeding taking place not what has been reported in past proceedings. To grant a delayed publication ban presumes that the media will not act responsibly with regard to their role in ensuring trial fairness in advance of the Applicant’s trial.

[38] In terms of potential jurors’ having been exposed to pre-trial media reports or by self-conducted internet searches of earlier reportage prior to jury selection, as noted above, where necessary the court may permit a challenge for cause to exclude those whose impartiality has been effected.

[39] As an added measure, all jurors are directed repeatedly that they must decide the case solely on the evidence given on the trial. Moreover, as a result of the advent of the global internet, social media and other electronic news conveyances, a standard admonition now included in the judge’s initial instructions to jurors is they are not to access the internet to seek out anything to do with the trial. In this trial, the jurors will be given the following direction, which they are presumed to abide:

Remember that you are judges of the facts, not lawyers or investigators. You must not seek out any information, or do any research about the case, the persons involved in it, or the law that applies, by any means, including the internet. Do not consult other people or other sources of information, print or electronic. Do not investigate any part of the case on your own or together with anyone else.

Do not use the internet or any electronic device in connection with this case in any way. This includes chat rooms, Facebook, Twitter, or any other electronic social media. Do not read or post anything about this trial. Do not engage in tweeting or texting about this trial. Do not discuss or read anything about this trial on a blog. Do not discuss this on e-mail. You must decide this case solely on the evidence you hear in the courtroom. Electronic media makes it easier to find outside information, but you must get all of your information from the court. Why is that? It would not be fair to the Crown or the defence if you consider evidence not tested by the Court process. The oath or affirmation you have taken in effect means that you have promised not to investigate or discuss the case in any way outside of your jury room.

[40] I am not persuaded that there is a real and substantial risk of the Applicant receiving an unfair trial due to pre-trial publicity or media reports of her evidence or actions heard on Mr. Biddersingh’s trial. In addition to the passage of time between trials during which the public’s recollection of the publicity is often fleeting, there are reasonable alternative measures available to ensure the applicant’s right to a fair trial will not be prejudiced – the challenge for cause process if required due to heightened publicity in advance of her trial and judicial direction to the jury that they must decide the case solely on the evidence given during the trial.

[41] The application for a partial ban or delayed ban is denied.

A.J. O’Marra J.

Released: October 28, 2015