Court File and Parties

Court File No.: 14-4348 Date: 2016/06/15 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent -and- Dellen Millard, Applicant Mark Smich, Applicant Canadian Broadcasting Corporation, Postmedia Network Inc., Sun Media Corporation, CTV, A Division of Bell Media Inc., and The Globe and Mail Inc., Respondents/Interveners – and – Hamilton Spectator, CHCH-TV and Toronto Star, Respondents/Interveners

Counsel: B. Moodie, on behalf of the Respondent Crown R. Pillay, on behalf of the Applicants I. MacKinnon, on behalf of the Respondents/Interveners B. MacLeod Rogers, on behalf of the Respondents/Interveners

Heard: June 10 & 13, 2016

Before: A. J. Goodman J.

Mid Trial Written Ruling #9 - Defence Application to Prohibit Publication of Rulings, Submissions and Evidence After the Sequestration of the Jury

[1] This is an application brought by Dellen Millard joined by Mark Smich, (“the applicants”) requesting an order prohibiting or delaying the publication of all evidence, submissions and rulings made during this trial and in the absence of the jury on specific applications, objections or issues until the completion of the applicants’ trials on the charge of murder of Laura Babcock (“Babcock”).

[2] The applicants are jointly charged in this Court with first degree murder. The trial is nearing its conclusion pending the jury’s verdict. Further, the applicants both stand charged and await trial with respect to the Babcock murder prosecution – an expected date of trial is forecast to be in 2017.

[3] The respondents, Crown attorney and counsel for the various media organizations (“Media Coalition”) accept that certain matters may be covered by an extended ban on publication; however it is the scope and breadth of matters sought to be covered by such an extraordinary remedy that is the subject of this application.

[4] To assist the parties in advance of this application, I asked the court reporter to compile a list of all of the evidential and legal objections and rulings made during the course of this 4.5 month trial. The court reporter compiled all of the mid trial objections, submissions and motions raised in the absence of the jury that are captured on 10 full pages on minute book sheets.

[5] Given the timing of this application at the end of this trial, I advised the parties that all evidence, applications, submissions and rulings would be subject to the automatic lifting of the usual publication ban once the jury is sequestered. However, certain specific mid-trial matters raised herein would continue to be covered by a publication ban until the completion of the Babcock case, with reasons to follow. These are my brief Reasons.

Positions of the Parties

[6] The applicants submit that there is significant overlap in the evidence anticipated at the Babcock trial with the evidence presented at this trial such that the applicant’s right to a fair trial, as protected by ss. 7 and 11(d) of the Charter, will be irreparably damaged by the publication of evidence, rulings, submissions and exhibits regarding the matters identified herein.

[7] The applicants submit that the overlap includes evidence related to the purchase, storage and use of the Eliminator, the evidence of numerous witnesses, text messages, evidence touching on the Noudga letters and their transmission and evidence related to firearms.

[8] It is anticipated that Mr. Smich may advance an antagonistic defence at the Babcock trial. This may include introducing bad character and propensity evidence against Mr. Millard. The publication of such evidence will also undermine the applicant’s right to a fair trial as protected by ss. 7 and 11(d) on the Babcock murder charge.

[9] The Applicant submits that there are no alternate measures to prevent the substantial damage that will be occasioned to his right to a fair trial and that the salutary effects of a publication ban outweigh any deleterious effects to free expression.

[10] The Crown’s position is two-fold. The Crown does not oppose the applicant’s request for an extension of the s.648 Criminal Code publication delay as it relates to the re-litigation of matters dealt with during pre-trial applications. The subject matter and the rationale remains the same as when this Court decided that motion.

[11] With respect to the remaining requests, the Crown submits the applicants have not met their onus that such a delay is warranted. The open court principles should continue to apply. Put simply, the remaining matters do not impact the Babcock trial in a way that would require the order requested. The jury safeguards provide adequate protection to all remaining concerns raised by the applicants and therefore the application should be dismissed in part.

[12] The Media Coalition says that the applicants seek the same terms as my previous December 16 ruling for 27 specific voir dires held during this trial. As ten of these particular matters are accepted by the Crown attorney as being appropriate, the media coalition focussed on the remaining issues arising from the various voir dires. Counsel for the Media Coalition shares the Crown’s position that these do not require an extended publication ban.

Discussion

[13] Absent my December 16 Ruling and any order made on this application, section 648(1) of the Criminal Code applies in the normal course and its statutory publication ban ends when “the jury retires to consider its verdict”.

[14] As mentioned, on December 16, 2015, I ruled that the s. 648 Criminal Code ban on publication of pre-trial applications is extended to the conclusion of the Babcock trial. In this regard, I stated at para. 75:

With respect to the pre-trial applications (currently subject to a publication ban), I am satisfied that the applicants have demonstrated the necessity to extend such a ban, at least to the conclusion of the Babcock trial. Therefore, an order will issue extending the s. 648 Criminal Code publication ban on all pre-trial applications to the conclusion of the Babcock trial, at the point when the jury in that case has reached their verdict. This ban shall include all evidence, submissions, exhibits and rulings made during the course of the pre-trial applications in this case.

[15] Regarding the application to extend the ban on publication of in-trial matters held in the absence of the jury, I held at paras. 76 and 77:

Finally, the applicants have requested a delay or ban on publication of all matters that may not be heard by the jury during the course of this trial. It is axiomatic that evidence not properly presented or considered by the jury is not to be published or transmitted by the media or by anyone else until the jury is sequestered. Such information may arise during the course of a voir dire with respect to evidential rulings, substantive or procedural issues and may include counsels' submissions, or any other matter that may surface during the course of the trial in the absence of the jury.

At this juncture, I am disinclined to render a blanket order imposing or extending a prohibition over the publication of such information. Upon the conclusion of the evidence to be adduced in this trial and prior to the jury being sequestered, I will entertain further submissions as to what, if any, evidence or other matters ought to fall under a delayed publication ban.

[16] The applicants must establish that publication of the voir dire information is likely to cause a material risk of prejudice – not just a speculative possibility – directly to the Babcock trial, through a “convincing evidentiary basis”. Further, such risk of prejudice must be one that cannot be addressed by all the alternative measures available.

[17] It is trite law that the Court must follow the requirements of the Dagenais/Mentuck test in exercising its discretion to grant any restriction on s. 2(b) rights under the Canadian Charter of Rights and Freedoms. This requires a Court to be satisfied that:

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 the justice.

[18] This test requires “a convincing evidentiary basis for issuing a ban” and should not be used to protect against “remote and speculative dangers” or merely “speculative” risks of prejudice. Further, even if that part of the test is met, the Court must also consider whether reasonably alternative measures are available and that any ban is as narrowly circumscribed as possible.

[19] The Crown submits that in line with the December 16, 2015 ruling all “reconsideration” motions should be the subject of the same order. The Crown says that this Court provided extensive reasons why such a publication delay was necessary at paras. 58-69 of the earlier ruling.

[20] At the same time, the Crown submits that other motions heard in the course of the trial however do not have the same prejudicial effect, either because there is a remote or no connection to the Babcock matter, or because the prejudice does not rise to the same level and therefore demand the same extreme remedy.

[21] As discussed, in previous related rulings, a cornerstone of the justice system is that jurors obey their oath. As Chief Justice Lamer stated in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at para. 87: “jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of criminal proceedings”.

[22] The Supreme Court of Canada has echoed this time and time again. In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] S.C.J. No.36, the accused facing criminal charges brought an application to stay a public inquiry on the basis that pre-trial publicity would prejudice their right to a fair trial. In allowing the public inquiry to proceed despite the pending criminal trial, Justice Cory stated at paras. 133-134:

I am of the view that this objective [a fair trial] is readily attainable in the vast majority of criminal trials even in the face of a great deal of publicity. The jury system is a cornerstone of our democratic society. The presence of a jury has for centuries been the hallmark of a fair trial. I cannot accept the contention that increasing mass media attention to a particular case has made this vital institution either obsolete or unworkable. There is no doubt that extensive publicity can prompt discussion, speculation, and the formation of preliminary opinions in the minds of potential jurors. However, the strength of the jury has always been the faith accorded to the good will and good sense of the individual jurors in any given case”.

[23] None of the parties challenge the extension of the s.648 publication bans imposed during the pre-trial motions. My Reasons for the extension of the ban on publication for these motions are reflected in my December 16, Ruling on the Application to Prohibit the Publication of Trial Evidence (R. v. Millard, 2015 ONSC 7561 - unreported). That being said, the parties were advised, without any objection being raised, that 14 written rulings with respect to these pre-trial motions were to be released once the jury was sequestered. There is an obligation on a Court to consider s. 2(b) of the Charter and apply the applicable jurisprudence related to those well-established principles. At this stage of the trial, by withholding these specific pre-trial rulings, I am convinced that there is neither weighty evidential overlap nor any prejudicial impact on the applicants’ rights pending the Babcock trial that are not outweighed by the open courts principle.

[24] Therefore, all of the matters covered during the pre-trial motions stage of this trial continue to remain subject to a delayed publication ban except for the following specific Rulings: Application for a change of venue; procedure for rotating triers; post-offence conduct evidence; Smich “Omnibus application”; Application to challenge warranted Cell phone searches; Application to quash search warrant, electronic devices and iphone; Media motion #1- October 16, 2015; Application to exclude Millard’s utterances and police observations of May 10, 2013; Oral Ruling to exclude evidence of Millard’s arrest and Application to exclude evidence obtained from May 14, 2013 telewarrant to search 2007 GMC Yukon.

[25] It is clear from my December 16 Ruling, that I postponed any consideration of a publication ban over the voir dires held during the trial until this time. Clearly, I am now in a better position to assess not only what occurred during these voir dires, but also their potential impact, if any, on the future Babcock trial.

[26] The question for my consideration in this motion has been aptly raised by Crown counsel. The concern with publication is simply this: Evidence excluded in the Bosma case may be subject to applications in the Babcock case, and if successful, would it be too prejudicial to have this information in the media and the public, thus, in the minds of prospective jurors?

[27] I agree with the media coalition and Crown counsel that most of the information sought to be delayed from publication as identified by the applicants does not give rise to the same level of concerns that were present in materials forming the balance of my previous December 16th order. Put simply, this information is remotely connected to the Babcock matter and does not need to be banned.

[28] Rarely, have Superior Courts have ordered certain items banned from publication to protect future juries. For example, R. v. Sandham, [2007] O.J. NO. 5310, involved the high-profile murders of eight members of the Bandidos Motorcycle Club that had significant media coverage. Justice McDermid imposed a partial publication ban on only those facts “likely to create an indelible and prejudicial impression in the minds of members of the public that is unlikely to be dispelled by judicial instruction” and allowed the publication of the majority of matters contained in the agreed statement of facts presented to support the guilty plea of one of the six accused.

[29] Similarly, in R. v. McClintic, 2010 ONSC 2944, at para. 39, McDermid J. imposed a partial publication ban on only those matters that “in my opinion are likely to create an indelible and prejudicial impression in the minds of members of the public that is unlikely to be dispelled by judicial instruction or alternative measures.” Justice McDermid allowed an edited Agreed Statement of Facts, edited victim impact statements, and edited statement by McClintic to be published, which permitted “the publication and broadcasting of the majority of what was contained in the Agreed Statement of Facts upon which the guilty plea was founded”.

[30] While McClintic and Sandham were publication bans concerning the same trial, the concern here is for a different trial with the same accused, albeit with some overlapping evidence, and defence strategy, much of which is already captured in my s. 648 ruling of December 16.

[31] In my previous Ruling, I also looked closely at particular issues arising in this case, such as evidence concerning the Eliminator. I was concerned that “[A]ny information that may overlap between the trials, such as evidence about the Eliminator, will only be referenced in the context of the facts relevant to each trial”.

[32] That said, I agree with the respondents that the mischief here is different than the situation facing me in December 2016. The jury in this case will not be impacted by subsequent and timely release of information. There will also be a separation in time between trials.

[33] As expressed earlier, we have confidence in the jury system to protect the fair trial right interests of the accused. As expressed in my December 16, 2015 Ruling, I am of the firm belief that “jurors are capable of following trial judge’s instructions and separating pre-trial publicity from the evidence presented to them”.

[34] Another fact that must now be taken into account is the importance of trial rulings and information ruled inadmissible in order for the public to understand how the Crown and defence have conducted the case and how the trial process works. I agree with the media coalition that at this stage, it is important that the community, which has given this case such understandable scrutiny, has confidence in the judicial process and are in a position to engage in informed, not speculative, discussion concerning it.

[35] To their credit, in this application, the applicants have already winnowed down the various applications from ten pages of the Court’s Minute Book to encompass a relatively narrow set of issues. The applicants have reduced their request from the original 28 items to about 17 issues.

[36] After due consideration, I am satisfied that the applicants have demonstrated a convincing risk of prejudice with regards to their fair trial rights on select matters raised in these proceedings in the absence of the jury. For reasons already expressed elsewhere, I find that references to the Eliminator device during the period around July 2012, the timeframe of the alleged Babcock killing would be highly prejudicial. The manner of the transmission of letters from the jail is also prejudicial to Mr. Millard in the context of the likely antagonistic defences to be advanced in the future proceeding.

[37] Moreover, while Ms. Noudga is not a party to this application, there may be unintended consequences on her fair trial rights charged as an accessory after the fact from evidence adduced during the voir dires related to her involvement in this case, including but not limited to the various redacted letters sent and received between her and Mr. Millard. If by my ruling, some ancillary protection flows to Ms. Noudga for her upcoming trial as a result of protecting the applicants’ fair trial rights of the applicants, so be it.

[38] Thus, I am persuaded that the following mid-trial voir dire rulings or objections ought to be covered by an extended publication ban as having a direct impact on matters touching upon the Babcock case and the rights of the applicants to a fair hearing. I am satisfied that the applicants have demonstrated prejudice that would inure if the following rulings, evidence, objections or submissions were made known to the public or prospective jurors prior to the completion of the Babcock case:

• February 22, 2016 - Objection to introduction of emails and text messages involving Shane Schlatman;
• February 23, 2016 - Applications by Crown to revisit December 1st 2015 ruling excluding emails and text messages;
• February 23, 2016 - Mistrial application #1- Re: Wood
• March 1, 2016 - Objection to Falconer PowerPoint;
• March 29, 2016 - Ruling on Schlatman text messages;
• April 24, 2016 - Ruling on Noudga letters;
• April 26, 2016 - Ruling on further redactions to Noudga letters;
• April 27, 2016- Ruling on Noudga letter redactions; Ruling on caution to Noudga; Ruling on potential testimony of Noudga;
• May 3, 2016 - Ruling on Pollock and Morrison application re Noudga;
• May 4, 2016 - Ruling on redactions on Letters seized from Noudga;
• May 5, 2016 - Ruling on Crown Application to revisit admissibility of text messages previously ruled inadmissible;
• May 11, 2016 - Ruling on probative value of Smich evidence against Millard.

Conclusion

[39] For the Reasons expressed herein and in companion rulings, the relief sought by the applicants to delay publication of certain mid-trial objections, rulings, evidence and submissions made in the absence of the jury during this trial is granted, in part.

A. J. GOODMAN, J. Released: June 15, 2016