||R. v. Pickton - Excerpt Ruling
|2002 BCPC 0526
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
EXCERPT FROM PROCEEDINGS
HONOURABLE JUDGE D. STONE
|Counsel for the Crown:
|Counsel for the Defendant:
|Place of Hearing:
Port Coquitlam, B.C.
|Date of Hearing:
December 6, 2002
|Date of Judgment:
December 6, 2002
Criminal Code contains two sections under which
members of the public may be excluded from the courtroom: s.
486(1) and s. 537(1)(h). Section 486 is a section of general
application contained under the part of the
Criminal Code titled "Special Procedure and Powers".
Section 537 is contained in the section of the
Criminal Code titled "Preliminary Inquiry" and is
applicable specifically to that proceedings.
537(1)(h) reads as follows:
A justice acting under this Part may . . .
order that no person other than the prosecutor, the
accused and their counsel shall have access to or remain
in the room in which the inquiry is held, where it
appears to him that the ends of justice will best be
served by so doing.
Prior to the commencement of the taking of evidence at a
preliminary inquiry, the justice holding the inquiry
shall, if application therefore is made by any of the
make an order directing the evidence taken at the inquiry
shall not be published in any newspaper or broadcast before
such time as in respect of each of the accused,
- he is discharged, or
- if he is ordered to stand trial, the trial is ended.
Any proceedings against an accused shall be held in open
court, but where the presiding judge, provincial court judge
or justice, as the case may be, is of the opinion that it is
in the interest of public morals, the maintenance of order
or the proper administration of justice . . . to exclude all
or any members of the public from the court room for all or
part of the proceedings, he . . . may so order.
defendant in this proceeding has brought an application pursuant
to s. 537(1)(h) of the
Code of Canada. The defence also seeks an order
pursuant to s. 539(1) of the
Code of Canada. Because of the particular
circumstances of this case, and as a result of the state of
modern-day publication technology, the applicant submits that an
order simply banning publication of the proceedings cannot
effectively protect his right to a fair trial and that the
circumstances of this case require the court to exercise its
jurisdiction, pursuant to s. 537(1)(h) of the
Criminal Code, to exclude the public from the
 The usual
procedure is for the defence or Crown, prior to the commencement
of evidence being taken at the preliminary inquiry, to request
that I order a ban on publication. This application is as of
right for the accused, and I have no discretion to refuse to
make the order under s. 539.
 It is
unusual for the court to take the next step which is being
requested by the accused. That is, to have everyone excluded
from the courtroom during the preliminary inquiry other than the
prosecutor, the accused and his counsel, pursuant to s.
537(1)(h) of the
Code. Because of the unusual nature of the
application, the Crown and defence have requested that I first
hear submissions from the parties regarding this application
prior to imposing the usual publication ban under s. 539.
Ritchie, on behalf of his client, indicated that he felt the
submissions should be open to the media and public to allow an
understanding of, if such an order was made, the rationale
behind it. Mr. Ritchie also indicated at the outset of the
application that he would consent to allowing various counsel
for the media to make representations as to whether or not the
media should be banned from the courtroom for the duration of
the preliminary inquiry. Mr. Petrie for the Crown also agreed
that I should hear all the submissions and make a ruling before
imposing the usual ban under s. 539.
 As a
result, I have had the opportunity to review the written
submissions, affidavits and other material filed by Mr. Ritchie
on behalf of the accused, Robert William Pickton. Mr. Skene, on
behalf of CTV and Kate Corcoran; Mr. Gibson and Mr. Burnett on
behalf of The Province, The Sun, the CTV and the CBC; and
Mr. Sutherland on behalf of the American media; and, of course,
Mr. Petrie acting for the Crown.
 I want to make
some comments about the various sections referred to prior to
doing an analysis of the case law. Any order made pursuant to s.
539 banning publication must be made prior to the commencement
of the taking of the evidence at the preliminary inquiry.
Therefore, there is a time limitation for making the
application. There is no time restriction on when an application
can be made for an order under s. 537(1)(h) of the
Criminal Code when conducting the preliminary
inquiry. Similarly, there is no restriction on when an order can
be made pursuant to s. 486(1) of the
 Numerous cases
have considered the conflicts which arise between our tradition
of open access to the courts and the principles encompassed by
the right of freedom of expression versus the rights provided to
an accused person in order to ensure that he or she receives a
fair trial. Mr. Ritchie argues that even if I impose the usual
ban on publication, that it will not be enough to ensure that
his client receives a fair trial. He submits that the American
media are not bound by Canadian law and are entitled to
broadcast the details of the preliminary inquiry via the
American media. Mr. Ritchie says that because of this, the ban
reports will leak their way back into Canada and the potential
jury pool will be tainted, resulting ultimately in a prejudiced
jury as it relates to his client.
 Mr. Ritchie
further submits that this situation is exacerbated by the
Internet and our current technological age. He has filed an
affidavit outlining the coverage up to date, which indicates
extensive coverage of the pre-trial investigation of this case
by the media on the Internet, radio, television and newspapers.
 Mr. Ritchie
also emphasizes that this is a preliminary inquiry, not a trial,
and as a result it is more open to me to make the order banning
the publication from people from the courtroom.
 Mr. Petrie,
for the Crown, opposes the application, as do counsel who have
spoken for the media. Mr. Sutherland, for his clients, has gone
so far as to say that his clients will undertake to file
statutory declarations indicating that the TV stations he
represents will blackout the feed to Canada of any broadcast
information, subject to the publication ban. He had stated that
if they were unable to do so, his clients would not broadcast
United States viewers, although I have given an opportunity to
file such a document with such an undertaking and as of today's
date the document he has filed does not indicate that they will
not broadcast United States viewers if they are unable to
broadcast, so this undertaking filed today falls short of that.
In any event, that is what he told us a couple days ago.
 It is
recognized that the court may, where circumstances justify,
exercise its discretion to exclude the public from a courtroom,
but those circumstances will be exceptional and rare where the
order sought is to conduct all proceedings in camera, and the
exercise of the discretion must balance the rights of the
accused against those who would be affected by the order
excluding the public.
 The test set
out in s. 537(1)(h) is contained in the words "where it appears
to him that the ends of justice will be best served by so
doing". Guidance with respect to the principles invoked by these
words can be found in cases where either partial or temporary
closures of the courtroom have been granted pursuant to this
section in the past and in cases where bans on publication have
been considered. The latter have most frequently occurred in the
superior courts in cases where no statutory ban on publication
is applicable, those courts being asked to exercise inherent
jurisdiction to ban publication and/or exclude the public in
furtherance of the proposed or existing ban.
 As I
indicated, earlier, the remedy of closing the courtroom for the
entirety of the proceedings during a preliminary inquiry is
highly exceptional. The only authority that I have been referred
to where the court granted such an order during a preliminary
inquiry was R. v. Sayegh (No. 1)  66 C.C.C.
(2d) 430 and No. 2 at 432, which was an Ontario Provincial Court
 Prior to
taking evidence on a preliminary inquiry, counsel for the
accused applied for a publication ban on evidence being taken at
the preliminary inquiry, pursuant to the section which entitles
an accused to such an order upon request. The accused also
applied for an order pursuant to what is now s. 537(1)(h) to
have the courtroom closed. The matter before the court had
received a certain amount of publicity to that point. The court
determined that the American media had been present at the
proceedings and that it was their intent to publish evidence
from the preliminary inquiry. The court ultimately made an order
pursuant to what is now s. 537(1)(h). I have had an opportunity
to read the case. It was decided before Dagenais v.
Canadian Broadcasting Corp.
 3 S.C.R. 835, Supreme Court of Canada which sets out
the test respecting publication bans and, by analogy, provides
assistance in the interpretation of the test involved under s.
537(1)(h). R. v. Sayegh has also never been
referred to in any other case that I am aware of. In my view, it
puts a very narrow interpretation on the powers of the court to
ban parties from the courtroom during the course of a
preliminary inquiry, and I decline to follow it.
 I have also
been referred to R. v. Bernardo  O.J. No.
2047. In the Bernardo case, the Crown applied at trial for a
publication ban and to limit access to the courtroom. The
accused, Carla Bernardo, was charged with two counts of
manslaughter relating to the deaths of two teenage girls, which
were also to be the subject of a subsequent murder trial of her
husband. The case had received substantial media attention and
the Crown was concerned about the impact the publication of
evidence from Carla Bernardo's trial might have on the jury, and
consequently the fairness of the trial at Paul Bernardo's
subsequent murder trial.
 The court
noted that there had been a great deal of media attention and
that the United States media had been covering the proceedings.
The court also recognized the difficulties associated with
attempting to curtail publication in areas close to the American
border where American media may not feel bound by a publication
ban when they are outside the Canadian borders.
 Kovacs J.
referred to numerous cases where courts have taken steps to
protect the rights of an accused to a fair trial in a manner
which limited in some way the freedom of the press. He
recognized the difficulties caused by the sensational nature of
the case which had attracted American media interest, noting
that any American media coverage would be readily available to a
potential jury pool, that any order of the court would
essentially be useless against American media, and that the
court could have no power to enforce such an order against the
 He ultimately
ordered that there be a ban on publication of all proceedings
pursuant to s. 486, and that all persons be excluded from the
courtroom with the exception of the parties, their counsel,
families of the two victims and accused, counsel for Paul
Bernardo, members of the Canadian media, and court and security
 One case which
is of great assistance is R. v. Murrin 
B.C.J. No. 3182. This is a B.C. Supreme Court decision of Mr.
Justice Oppal. Mr. Murrin applied for an order prohibiting the
broadcast or publication of all evidence, submissions and
arguments in a trial in which he was being called as a Crown
witness prior to his own trial for first degree murder. It was
argued that a temporary ban of the whole of the evidence in the
case was necessary in order to protect Mr. Murrin's right to a
fair trial and to protect the integrity of the justice system.
The Crown supported Mr. Murrin's application.
 Mr. Justice
Oppal noted, at page 2:
Extensive media coverage has linked the murder
investigation with the investigation involving this case.
Mr. McMurray, counsel for Murrin, has argued that particular
parts of the evidence against the three accused will render
a fair trial for Murrin impossible if the evidence is not
subject to a ban.
 Mr. Justice
Oppal stated further:
The aforementioned evidence relating to the interviews of
Murrin, the conversations he apparently had with undercover
officers will not be subjected to any of the usual
exclusionary rules. At the same time, evidence which may be
admissible at this trial and reported at large by the media
may not be admissible at the trial of Murrin.
Of particular note and concern are the so-called
confessions. Counsel in support of the ban have argued that
the conventional measures or methods of dealing with
deleterious effects of such evidence involving judicial
caution, challenge for cause, change of venue, and
sequestering jurors are not practicable alternatives in the
It is argued that the temporary ban of the whole of the
evidence in this case is necessary in order to protect
Murrin's right to a fair trial and to protect the integrity
of the justice system.
In opposition to the application, I have before me the
affidavit of Margo Harper, a reporter with the CBC. In her
affidavit she deposes that the Canadian Broadcasting
Corporation has an ongoing interest in following and
reporting of all serious criminal matters and that this case
is of particular interest because it relates broadly to the
public interest and the widely reported Mindy Tran
disappearance and investigation and also because it involves
already made publicly and widely reported improprieties by
investigating police officers which raise a significant
public interest in all of the evidence.
 Justice Oppal
then goes on to review the applicable principles governing bans
on prohibition orders and cites Dagenais as
setting out the established guidelines which courts ought to
follow in applications of this nature. He states, at page 3,
referring to Dagenais:
The Court attempted to balance the accused person's right
to a fair trial with the right of freedom of expression. It
is trite to say that these rights at times conflict one with
The court pointed out that prior to the enactment of the
Charter, the right to a fair trail "inappropriately" took
precedence over the right to freedom of expression.
referring to the guidelines set out by the Supreme Court of
Canada in Dagenais, Justice Oppal refused the
application and said, at page 4:
The remedy sought is extremely wide. The banning of
broadcast or publication of the whole of a trial, albeit
temporary, is, to my knowledge, unprecedented and,
accordingly, ought to be ordered, if at all, only in the
rarest of cases.
 He stated
The fact of Murrin testifying for the Crown in this case
and then facing a first degree murder charge in his own case
and the allegations of the R.C.M.P. engaging in vigilantism
are but two of the noteworthy and unusual aspects of the
evidence which will be led, but much of this evidence has
already been broadcast and has been available to the public.
 Mr. Justice
It should also be noted that in the past, in this
jurisdiction and in this country, there have been some
noteworthy cases that involved an inordinate amount of
pretrial publicity followed by multiple trials. The cases
are R. v. Huenemann (1993), 38 B.C.A.C. 20, R. v. Pesic
(1993), 22 B.C.A.C. 170 (C.A.), R. v. Charalambous, New
Westminster Registry No. X035780, (January 1994 (S.C.) R. v.
Bernardo (1995) 38 C.R. (4th) 229 (Ont. Gen.
Div.) are some examples of cases that have preceded
apparently in an uneventful manner in spite of extensive
pretrial publicity and overlapping evidence.
Moreover, the case of
Phillips v. Nova Scotia (Commission of Inquiry America Local
into the Westray Mine Tragedy,  2 S.C.R. 97, 98
C.C.C. (3d) 20 also involved significant pretrial publicity.
 Mr. Justice
Oppal says further:
We live in an era that is often marked by high degrees of
pretrial publicity which often features revelations of
prejudicial pretrial 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.
I agree with Mr. Burnett, counsel for the CBC, CTV and
CKNW, that the issue in this application must be viewed
globally and the question which must be asked is as follows:
At the end of the day can 12 impartial jurors be found in
order to try the case of Murrin? I believe that for the
reasons already stated, 12 such jurors can be found.
 He then went
on to dismiss the application. I also recall that Mr. Murrin was
eventually acquitted on the charge, so one would assume he
suffered no prejudice as a result of the ruling by Mr. Justice
Oppal. The comments of Mr. Justice Oppal apply, in my view, to
the application made at this stage to ban the public and media
from the courtroom for the duration of the preliminary inquiry.
 I am not
prepared to accept, at this stage of the proceeding, that the
justice system is so fragile that appropriate corrective
measures cannot be taken so as to ensure that an accused's right
to a fair trial is not jeopardized. As a result, I decline to
make an order pursuant to s. 537(1)(h) of the
 I indicated
earlier in my reasons that there is no time limitation for an
application pursuant to s. 537 or s. 486 of the
Code. As Mr. Petrie readily conceded, it may be that
new applications will be put before the court at later stages of
the preliminary inquiry and that he may also be requesting such
 Mr. Ritchie,
would you like me to impose the ban under 539 at this stage?
 THE COURT:
I will make that order, then. There will be a ban pursuant to s.
539(1)(b) banning any evidence being published in any newspaper
or broadcast, pursuant to that section.