Court File and Parties

COURT FILE NO.: CJ 9846

DATE: 2020-09-15

ONTARIO

SUPERIOR COURT OF JUSTICE

(CENTRAL SOUTH REGION)

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

ADAM DE-GANNES Respondent

– and –

CTV NEWS, a division of Bell Media Inc. and WATERLOO REGION RECORD, Respondent

– and –

P.B. (A Young Person) Respondent

Counsel:

V. Karadzic and A. Bain, Counsel for the Crown, Applicant

M. McRae, Counsel for the Respondent, Adam De-Gannes

R. Gilliland, Counsel for the Media Respondents.

W. Halkiw and S. Safieh Counsel for the Respondent, P.B.

HEARD: September 3, 2020

Reasons for Ruling on Publication Ban Applications

PARTIAL BAN ON PUBLICATION IN ACCORDANCE WITH FINAL PARAGRAPH 53.

The Honourable Mr. Justice C. S. Glithero

[1] This is a Crown application seeking two orders preventing the publication of portions of two documents. The first is a temporary common law publication ban of certain portions of an agreed statement of fact [i]intended to be filed at the sentencing of Mr. De-Gannes on September 11, 2020. The second is an order temporarily extending the publication ban made under s. 517 in respect of certain portions of the material presented at the s.522 bail application of Mr. De-Gannes heard on April 27, 28 and May 6, 2020, or in the alternative an order temporarily sealing that same material.

Circumstances of the Offence

[2] Bradley Pogue was shot and killed in Cambridge, Ontario at approximately 8:00 p.m. on November 19, 2018. Adam De-Gannes and P.B., then age 17, were separately charged with second degree murder, the former as an adult, and the latter as a young person under the Youth Criminal Justice Act, S.C. 2002. C.1.(YCJA).

[3] Briefly stated, the Crown case is that Mr. De-Gannes was a low-level drug dealer who sold opioids to support his own addiction. He was being threatened with harm by unsatisfied customers. He also owed money to various people including P. B. Two days before the shooting P. B. sent a threatening text to De-Gannes demanding payment of money owing.

[4] To satisfy the debt owing to P.B., De-Gannes agreed to arrange a drug deal for a pound of marijuana in which Bradley Pogue was to be the seller and P. B. was to play the part of the purported purchaser, but in fact was to rob Bradley Pogue of the marijuana at gun point.

[5] At the appointed hour of 8:00 p.m. on November 19, 2018 the parties met at the appointed plaza. Mr. Pogue brought his brother as he was concerned about a rip off. De-Gannes and P. B. attended together. P. B. was armed with a pistol.

[6] Mr. Pogue showed the marijuana to P.B. who handed it to De-Gannes. P. B. then produced the pistol and asked Mr. Pogue "what's worth more to you your life or this pound of weed?" Mr. Pogue reached for the gun and P. B. shot him twice. Mr. Pogue died shortly thereafter in the hospital.

[7] Later in the morning of November 20, 2018, police attended at a hotel where they had information that P. B. and De-Gannes were to be found. The two left the hotel by a rear door and got into a taxi which was shortly thereafter pulled over by the police. De-Gannes fled but was apprehended shortly thereafter and arrested for second degree murder. P. B. remained in the taxi and was arrested.

[8] The murder weapon was found and recovered on April 10, 2019 hidden under a deck at a Cambridge home, and was identified as a 9 mm gun with one bullet in the gun and one in the magazine. Forensic testing determined it to be the gun used in the murder.

[9] De-Gannes acknowledges setting up the drug rip off so P. B. could rob the vendor of the marijuana using a firearm but denied any intention that Mr. Pogue would be killed.

[10] On that basis it was agreed between counsel that De-Gannes would plead guilty to manslaughter. A new indictment charging that offense was presented. He entered a plea of guilty to that charge before me on June 25, 2020. It was agreed between counsel for the crown and De-Gannes that an agreed statement of fact would not be presented in support of the plea on the date of the plea, but instead on the date set for sentencing. This was done so as to permit service on the media and on the young person of an application for a temporary ban on publication of portions of the agreed statement of fact relating to the involvement of P. B. This application was sought to protect the fair trial rights of P.B. To support the plea it was simply admitted that De-Gannes had participated in the planned robbery knowing that P.B. was armed.

[11] It was then adjourned to a date to be set for sentencing once the temporary closure of courts for Covid-19 ended. That date was subsequently set for September 11, 2020.

[12] This application was then served on counsel for the young person, and on the media. On consent, the application was then scheduled to be argued on September 3, 2020.

[13] Although served, neither counsel for De-Gannes nor counsel for the young person appeared on the return of the motion, nor filed any materials, but through Crown counsel indicated their support for the Crown application in the case of the young person, and on behalf of De-Gannes took no position.

[14] At the hearing of the application, the portions of the agreed statement of fact in respect of which the ban was sought were shaded on the copy filed with the court. Similarly, the portions of the bail synopsis in respect of which the ban or the sealing order was sought were also shaded. On both documents, the name of the young person was included, with counsel readily acknowledging that it also would have to be the subject of a ban pursuant to the provisions of the YCJA.

[15] At the conclusion of the hearing on September 3, 2020, I reserved my decision. On September 8, 2020 I released to counsel “Appendix A”, which included my decision with respect to the publication ban sought in respect of the agreed statement of fact and indicated reasons would follow. On September 9, 2020, I released to counsel “Appendix B” setting forth my decision with respect to the publication ban sought in respect of the bail synopsis, again advising counsel that reasons would follow. These documents were released at that time as counsel needed the results prior to the September 11, 2020 scheduled sentencing of De-Gannes. These are the reasons that I indicated would follow. Appendix A and Appendix B are attached.

Legal Principles

[16] In Dagenais[^2] the Supreme Court of Canada held that the common law rule governing the discretion to order a publication bank was not Charter compliant. The common law rule required a demonstration of a real and substantial risk of interference to the right to a fair trial. It did not go far enough to sufficiently protect the right to freedom of expression by the press and other media, as guaranteed by ss.2(b) of the Charter. The court held that where those rights under ss.2(b) came into conflict with the fair trial rights guaranteed by s.11(d), the court is required to balance the importance of both.

[17] At para. 73 the new test was stated to be:

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.

[18] At para. 79, the court directed that when considering reasonably available alternative measures as now included in (a), consideration should be given to adjourning trials, a change of venue, sequestering juries, challenge for cause and strong judicial instruction to the jury. At para. 88, the court observed that situations involving a period of sustained pretrial publicity may lead to a diminution of the effectiveness of judicial instruction and the other preventive measures, but at para. 87 the Chief Justice expressed the belief that jurors are capable of following instructions from the trial judge, but then in the next paragraph observed that it is more problematic in situations where pretrial publicity has been sustained, such as to create impressions in the minds of the jurors that could not be displaced by judicial instruction.

[19] At para. 98, the court also held that on such an application the onus is on the party seeking the ban, and that the court must consider all other options and conclude there to be no reasonable and effective alternative, and must consider ways to limit the ban as far as possible, having weighed the importance of the objectives behind the seeking of the ban as against the importance of the right of expression.

[20] In Mentuck[^3] the purpose for the ban sought did not relate to fair trial rights in an upcoming case, but rather related to protecting the identity of undercover police operatives. At para. 32, the court restated the test in broader terms:

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.

[21] In my opinion, the test as there restated does not materially alter the approach to be taken in the circumstances of this case.

[22] Mr. Karadzik acknowledged in his factum the importance of the Charter guarantees protecting our open court system, including the important role of the media to attend court proceedings and to report to the public what has occurred in its courtrooms.

[23] He also points however to the fact that parliament has recognized in some instances that the required balancing between fair trial interests and the freedom of expression right protected in s.2(b) is properly resolved in favour of a publication ban, and cites those contained in Criminal Code sections 648, 517, 539 and 486.

[24] Crown counsel brings forward a number of cases in support of the application for the ban sought. A very broad ban on publication was granted in Bernardo[^4]. One must remember that that case involved an extraordinary amount of media attention, provincewide, if not beyond, and very sensational newspaper reporting. I also point out that Bernardo was decided before the Supreme Court of Canada decision in Dagenais.

[25] The Crown also relies on Sandham[^5] in support of the request for a ban. That too was a case involving substantial publicity as it involved multiple murders of persons alleged to be members of a motorcycle club, by six accused who were also said to be associated with the same club. The Crown sought a ban of publication with respect to the guilty plea of one accused and of the reasons given on his sentencing, and with respect to the withdrawal of charges against another accused.

[26] A partial ban was granted and was time limited. The ban only extended with respect to facts likely to create an indelible prejudicial impression. Other facts set forth in the agreed statement of fact with respect to the guilty plea were permitted to be published.

[27] Similarly, the Crown relies on McClintic[^6], another case which received substantial publicity. The publicity centered on the disappearance and then subsequent discovery of the body of a young female, Tori Stafford, and the prosecution of McClintic and Rafferty for kidnapping and first degree murder. The accused McClintic pleaded guilty. The accused Rafferty was proceeding on to trial. The ban was sought so as to protect the fair trial rights of Rafferty. An edited version of the agreed statement of fact tendered on the guilty plea was allowed to be published, as was an edited statement of McClintic at sentencing. The publication ban granted with respect to other information was to be in place until Rafferty’s trial had been completed and a verdict rendered.

[28] Mr. Gilliland, on behalf of the media, relies on a number of cases which stress the efficacy of strong judicial instructions to jurors, the ability of jurors to follow instructions, and other well-known measures in our system aimed at ensuring a fair trial. In my opinion it is unnecessary to refer to all of them. They are well understood, they are accepted as essential parts of our legal system. I accept without reservation that each of them alone, or where warranted in combination, can go a long way towards overcoming prejudicial pretrial publicity. I also recognize that if they were thought to be an absolute answer in every case, there would be no need for the type of ban sought here.

[29] Mr. Gilliland relies on the decision in J.S.R.[^7], a 2008 decision of a judge of this court. It is another case which involved much notoriety and sensational media coverage. To many, it would be better known as the case involving the Jane Creba murder. In that case the trial of a young offender accused was to proceed first, and the argument was that publicity from that trial would prejudicially affect the fair trial rights of the adults who were to be tried later.

[30] Nordheimmer J, (as he then was) concluded at para. 8 that the extensive publicity gave risk to trial fairness but that the risk did not amount to a real and substantial one as required by the Dagenais test. He held that the jury’s recollection of publicity is often fleeting, often displaced by other events that occur in the interim and concluded it would be unlikely that jurors selected for the subsequent trials would retain a recollection of specific evidence publicized as a result of the trial of the young person. In the following paragraph he also recited the many other steps available to ensure fair trials and the ability of jurors to follow instructions and obey their oath or affirmation. The application for a ban on publication was dismissed.

[31] Mr. Gilliland further relies on the case of B.S.(Yo) and K.J.(Yo)[^8] where the two young persons pleaded guilty to a lesser included offence of manslaughter but had originally been charged with murder in a homicide in which two adult offenders were also charged, and the preliminary hearings for the two adults were not set to conclude until 16 months after the plea of the two young persons. The Crown sought a ban on publication relating to any facts which referenced the adult accuseds. The application for a ban of publication was dismissed based upon the passage of time expected between the guilty pleas and the trial of the adults, raising the likelihood that intervening of events would likely dim or eliminate the public’s recollection of the events by the time of the adults’ trials, and in reliance on the effectiveness of jury instructions, the willingness of jurors to obey oaths or affirmations, challenge for cause and the like. The conclusion was that the deleterious effects of such a ban would outweigh the salutary effects.

[32] On behalf of the media, reliance is also placed on the decision in Pearson[^9] where a ban of publication of the evidence at one trial because of the impact it would have on the fair trial rights of a second accused whose trial had been severed and was to take place some five months later. Five months was held to be a sufficiently long period of time that the application judge concluded that granting of the ban would be more harmful, observing “that the administration of justice thrives on exposure to light and withers under a cloud of secrecy”. He also allowed that a subsequent application might be brought, if advisable, after the first trial had been concluded.

[33] Similarly, in Biddersingh[^10] both parents of the victim daughter were charged with first degree murder, indignity to a dead human body and other offences. Their trials were scheduled to take place approximately six months apart. The trial of the male accused was to proceed first. The female accused had been subpoenaed to testify at her husband’s murder trial and sought an order banning publication of any evidence she was to give or of any evidence as to utterances or statements attributed to her.

[34] The application judge concluded that he was not persuaded that a real and substantial risk to the fair trial rights of the applicant female accused had been made out. He relied on the passage of time expected to lapse between the trials, on a belief that the recollection of such publicity is often fleeting, and on the availability of other alternate measures such as challenge for cause.

[35] In the same vein, a publication ban was denied in Hannaford[^11]. There, a police officer was charged with attempt murder and other charges and was expected to testify as a witness at Hannaford’s trial. The officer’s trial was not expected to take place until nine months after Hannaford’s trial. His application for a ban on publication was dismissed on the basis that the period of time was such that the public’s memory would fade and challenge for cause would effectively address any remaining concerns.

[36] To the same end, in Murrin[^12], a second trial arising out of the same events was not expected to commence until approximately six months after the completion of a first trial in respect of which the partial ban on publication was sought. Again, the conclusion was that jury instructions, juror’s oath and other measures were available to ensure the fair trial rights of the second accused.

[37] In Puddicombe[^13] two accused charged with murder were to be tried separately, with the second trial to commence immediately after the conclusion of the first. The accused in that second trial sought an order banning publication of the evidence from the first trial. The passage of time was not a factor. Nevertheless, it was held that the array of protective measures was adequate and that any risk to her fair trial rights was not real and substantial and that the deleterious effects of the ban outweighed any salutary effect.

[38] Similarly, in Kossyrine and Voroviov[^14], the applicants and a third person were all jointly charged with first degree murder but one of them pleaded guilty before the trial of the remaining two commenced. The other two sought a ban on publication of the guilty plea and the evidence given on it on the basis that it would impair their fair trial estimated to commence about two months later.

[39] In that case it was concluded that the challenge for cause process would adequately address any concerns that pretrial publicity may have prejudiced prospective jurors. Strong jury instructions, the effectiveness of the juror’s oath or affirmation, and the challenge for cause process were held to be reasonable alternative measures, and the ban was refused.

[40] I have also considered the case of Vickery[^15], a 1991 decision of the Supreme Court of Canada, in which the majority upheld the denial of the application for access to various tapes which had been admitted at the respondent’s murder trial. On appeal, the tapes were found to have been improperly admitted and the respondent’s conviction was overturned, and an acquittal was entered. It was held that the respondent’s privacy interests as a person acquitted of crime outweighed the public’s right of access to exhibits judicially determined to be inadmissible.

Discussion

[41] P. B. remains charged with second-degree murder, as a youth, and has elected trial by judge and jury. His preliminary inquiry is scheduled to be heard on September 16 and 17, 2020 and to be completed on October 17, 2020. It is expected that he will request and be granted the mandatory ban on publication of the evidence taken at the preliminary pursuant to s. 539(1) until he is either discharged or his trial has ended.

[42] If ordered to stand trial it is to be expected that he would first appear in Superior Court at a trial scheduling court on October 30, 2020. The availability of trial dates is uncertain at this stage because of the pandemic. A backlog of cases developed since mid-March as courts were temporarily closed. While they re-opened in August it was on a reduced scale such that only one courtroom for Superior Court criminal and civil matters opened under the provincial government’s phase one. Two more are supposed to be open by September 21, and the rest in November. No off-site locations have been made available for Kitchener. The backlog continues to grow.

[43] Pursuant to the order of the Chief Justice, extended from time to time, criminal matters scheduled for trial during the Covid-19 closure were adjourned and are now to be spoken to during the week of September 14. It is during the scheduling sessions held that week that priorities will be set as between those adjourned cases, and as between them and other cases already scheduled to be heard this fall and into next year. Some of the cases not reached during the spring and summer were homicides. More homicides are already scheduled for this fall.

[44] In my experience it seems most likely that if P. B. is ordered to stand trial at the conclusion of his preliminary on October 17, 2020 that trial dates will not realistically be available until the fall of 2021.

[45] As to the extent to which the ban is sought as to any involvement of the young person, in my opinion the likely passage of time between the plea of De-Gannes and the trial of the young person does not make the order sought necessary to prevent a serious risk to the proper administration of justice, because in my view alterative measures are available with respect to that portion of the ban sought, and because the salutary effects of the ban sought do not outweigh the deleterious effects on the right of free expression and the important right of the press to report, and the important right of the public to be so advised, of what goes on in our courtroom.

[46] After consideration of the circumstances underlying this application, and the legal principles discussed above, I have concluded that insofar as the application seeks a ban of publication of the young person’s participation in the murder, a ban in the scope sought is not necessary to prevent a real and substantial risk to the fairness of the young person’s subsequent trial, within the wording of Dagenais, nor is it necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures would not prevent the risk and that the salutory effects of the ban do not outweigh the deleterious effects on the rights and interests of the parties, including the effects on the rights of free expression in referring to the test as formulated in Mentuck.

[47] However, I have concluded that a publication ban is warranted with respect to some of the evidence in respect of which it is sought. Primarily, I conclude it is warranted in respect of evidence which may serve to identify the young person, or is presumptively inadmissible at the young person’s trial, either as constituting evidence of admissions said to be made by him, or as evidence of bad character of a nature I think likely to be ruled inadmissible at his trial.

[48] In my opinion, one of the principles associated with change of venue applications is applicable to the circumstances here. Of course, a change of venue is one of the safeguards or alternative measures often said to be available if a ban on publication is not granted.

[49] In Suzack[^16] the Court of Appeal of Ontario noted at para. 36 that a valid factor in refusing a change of venue application arises where the allegedly prejudicial pretrial publicity involves matters which will be led against the applicant in any event at trial, and as observed there, accordingly the jury will hear the prejudicial evidence as soon as the Crown’s opening address to the jury.

[50] Similarly, here it seems to me that the description of the role that the young offender played in this matter will obviously be admissible at his trial and will be made known to the jurors as early as the opening address of Crown counsel.

[51] Simply put, it seems to me that those portions of the agreed statement of fact tendered on the De-Gannes guilty plea which relate to the role played by the young person in this homicide will be admissible at his trial in any event. It seems to me that goes a long way towards undermining the claim that his fair trial right will be prejudiced.

[52] In making the above observation, I am distinguishing between a description of his role in the matter, as opposed to some of the evidence that might be tendered against him over and above that basic description of his role. Particularly in the Bail Synopsis there is background information which is permissible under the relaxed regime on show cause hearings, but which would not likely to be admitted at trial.

[53] For these reasons, the application is allowed only to the extent indicated in Appendix A (as to the Agreed Statement of Facts) and Appendix B (as to the Bail Synopsis), and as to the corresponding contents of the submissions of counsel, both written and oral on both this application, and at the De-Gannes sentencing, and as to these reasons and my reasons on sentencing De-Gannes. The ban so allowed is temporary and expires on the rendering of a verdict in the trial of the young person unless otherwise ordered by the court.

C.S. Glithero J.

Date: September 15, 2020

C. Stephen Glithero

[^2]: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3S.C.R. 835 [^3]: R.v. Mentuck, 2001 SCC 76, [2001] S.C.J. No. 73 [^4]: R. v. Bernardo [Publication ban-Proceedings against co-accused], [1993] O.J. No. 2047. [^5]: R.v.Sandham, [2007] O.J.No.5310 [^6]: R.v.McClintic, [2010] O.J.No. 6404 [^7]: R.v.J.S.R., 2008 CanLII 54303 [^8]: R.v. B.S. (YO) and K.J. (YO), OCJ unreported, August 22,2019 [^9]: R.v.Pearson, 2011 ONSC 1910 [^10]: R,v.Bittersingh, 2015 ONSC 6498 [^11]: R.v.Hannnaford,unreported decision of Skarica J dated February 14,2020 [^12]: R.v.Murrin, [1997] B.C.J. No. 3182 [^13]: R.v.Puddicombe, 2009 CanLII 92188 (ONSC) [^14]: R.v.Kossyrinne and Vorobiov, 2011 ONSC 6081 [^15]: Vickery v. Nova Scotia Supreme Court (Prothonotary), 1991 CanLII 90 (SCC), [1991] 1 S.C. R. 671 [^16]: R.v.Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont.C.A.)