CITATION: R. v. [REDACTED], 2011 ONSC 2196
COURT
FILE NO.: CRIMJ(P) 3908/09
DATE: 20110509
ONTARIO
SUPERIOR COURT OF JUSTICE
|
B E T W E E N:
|
)
|
|
|
|
)
|
|
|
HER MAJESTY THE QUEEN
|
)
)
)
)
|
S. Sherriff and K. Holmes, for the Crown
|
|
|
)
|
|
|
- and -
|
)
|
|
|
|
)
|
|
|
|
)
|
|
|
[REDACTED]
|
)
)
)
|
M. Friedberg and A. Bugo, for the
Defendant
|
|
Defendant
|
)
)
)
)
)
)
)
)
)
)
|
B. Mitchell, Toronto Star
M. Mandel, Toronto Sun
A. Delaney, CTV News
Applicants
|
|
|
)
|
HEARD: March
30 and April 8, 2011
|
SPROAT J.
Introduction
[1]
Mr. [REDACTED] was tried for first degree murder. Mr.
[REDACTED] admitted that he sexually assaulted the deceased and unlawfully caused her
death.
[2]
During the trial I ruled that media representatives
were entitled to certain exhibits. These are my reasons.
The 911 Call
[3]
The jury heard evidence that the deceased made a
911 call from her cell phone but then did not respond to the 911 operator. The line was kept open and a recording
made for the next 18 minutes.
[4]
The audio recording is disturbing. The recording
contains explicit references to the fact that a sexual assault is ongoing. At
various times the deceased is screaming or obviously in pain.
[5]
The cell phone used to make the 911 call was hidden
in a stack of blankets. Portions of the recording are indistinct and words are
difficult to interpret. Having said that, the police, Crown and defence all
independently prepared transcripts of the 911 recording. With what I will call
a consensus transcript in hand, the recording was played in court in the
absence of the jury. Many portions of the recording were played multiple
times. We reached a point at which Crown and defence were content with a
transcript to be provided to the jury which contained a few segments
highlighted to indicate that there were alternative interpretations of what was
heard on the recording.
[6]
The jury was provided with the usual instruction
that the transcript was being provided only as an aid to the interpretation of the recording and that what counted
was what the jury heard on the recording. The recording and the transcript
were marked as exhibits on the trial.
[7]
At the end of the court day Mr. Mitchell of the
Toronto Star, Ms. Mandel of the Toronto Sun and Mr. Delaney of CTV news
requested a copy of the transcript and a copy of the audio file in order to be
able to broadcast brief excerpts from the audio recording. Specifically, the
911 operator answering the call, making statements such as “hello” and “are you
okay” (to which no answer was given) the police knocking at the door, forcing
their way into the apartment, tasering and then arresting the accused. No request
was made to broadcast any portion of the recording on which the voice of the
deceased could be heard.
[8]
Mr. Sherriff supported the request of the media as
reasonable in the circumstances.
Mr. Friedberg expressed concern about Mr. [REDACTED]’s fair trial interests and
suggested that I defer ruling until the jury had retired to deliberate.
[9]
I ruled that the media request should be granted
except that the media representatives should be provided with an edited copy of
the 911 recording comprised of only the excerpts requested.
Video Statement of Accused to Police
[10] Later in the trial Mr. [REDACTED] testified and, on the authority of R. v.
Edgar 2010 ONCA 529 (CanLII), 2010 ONCA 529, he was allowed to play for the jury the video of his
initial interview by the police. The media requested a copy of the video
recording. The Crown supported the request. The defence opposed the request
on the ground that it might impair Mr. [REDACTED]’s rights to a fair trial. The
defence did not, however, seek to present any evidence in that regard. I ruled
that the media representatives were entitled to a copy of the video.
The Law
[11] In Canadian Broadcasting Corp. V. The Queen, [2011] S.C.J. No.
3, Deschamps J., for the Court, describes media access to exhibits as a
“corollary to the open court principle” (para. 12). As such, I am obliged to
apply the Dagenais/Mentuck analytical approach.
[12] In order to adapt the
analytical approach to the case of a request for access to an exhibit, I
paraphrase from R. v. Mentuck, [2000] S.C.J. No. 73, para. 32:
Access to an exhibit
should only be denied 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 denying access to the
exhibit 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.
[13] In Canadian Broadcasting Corp. v. R. (2010), 102 O.R. (3d) 673
(C.A.) the Court was concerned with a CBC request for a copy of a videotape which
captured the actual circumstances
of the death of a female inmate. The videotape had been filed as an exhibit at
a preliminary inquiry into charges of criminal negligence causing death against
four correctional officers. The Crown decided not to proceed with the charges
part way through the preliminary hearing and so the defendants were
discharged. The CBC wanted the video to use as part of an investigative
documentary. The family of the deceased welcomed public scrutiny of her
treatment and so had no objection.
[14] The CBC was granted access to the videotape. The application judge
imposed a number of conditions, which the CBC did not challenge, as follows:
•
the faces of any CSC officer or any other
individual who did not consent to their faces being shown was to be digitally
obscured;
•
the audio recordings were to be edited to remove
the names of any corrections officers or other person
who did not consent to their name being broadcast;
•
the copying and editing of the video and audio
recordings was to be done so as to maintain the integrity of the original
recordings;
•
the exhibits are to be used solely for use in a
documentary by the fifth estate;
•
no copies are to be made of the exhibits other than
for that use;
•
copies of the exhibits are not to be posted on any
internet site except as part of a documentary by the fifth estate;
[15] The CBC did appeal the following conditions,
namely that it was:
•
entitled to access and copy only the portions of
the video recordings that were played in open court (where it was uncertain
what portion of an exhibit was actually played in open court CBC was denied
any access to that exhibit);
•
entitled to view but not copy the portion of the
video Ashley Smith's death that was played in open court;
•
entitled to view but not to copy the portion of one
video recording showing four correctional officers entering the segregation
unit;
[16] The Court of Appeal applied the Dagenais/Mentuck test. Sharpe J.A. for
the Court stated:
[40] I conclude that
the trial judge was correct in applying the Dagenais/Mentuck
test to CBC’s request for access to and
copies of the exhibits at issue in this case. If CBC is to be denied
access, or to have its access limited, it is for the party seeking to assert or
uphold that denial to demonstrate through convincing evidence that the two-part
Dagenais/Mentuck test has been satisfied.
[17] The application judge had denied the CBC the right to broadcast the
video showing the circumstances of death on the basis the judge did not “feel
it needed” to be broadcast to the general public. In this regard, Sharpe J.A.
stated:
[49] There are no
comparable findings in this case. The application judge’s perception [at
para.49] that “[t]he gruesome image of a person dying is not something that I
feel needs to be broadcast to the general public” is not based upon a finding
of potential harm or injury to a recognized legal interest. Ashley Smith’s
mother, willing to have the circumstances of her daughter’s death publicly
considered, asserts no claim to privacy and agrees that CBC should have access
and no other member of Ashley Smith’s family has objected.
[50] With respect,
absent any finding of potential harm or injury to a legally protected interest,
there is nothing in the law that permits a judge to impose his or her opinion
about what does not need to be broadcast to the general public. That
would be inconsistent with the constitutional protection our legal order
accords freedom of expression and freedom of the press. In this case, there is
no finding of harm or injury capable of overriding a constitutional guarantee,
and I would set aside that part of the application judge’s order.
[18] The court held that the right to access exhibits includes the right to
make copies absent a countervailing interest sufficient to satisfy the Dagenais/Mentuck
test. The Court also held that there was no reason to limit access to the
portion of the exhibit actually played in court given that the entire exhibit constituted
evidence that could be relied upon in the proceeding.
Analysis and Conclusion
[19] I cannot see any valid objection to providing the media with a copy of
the transcript of the 911 call. In many murder trials witnesses testify to
highly disturbing facts. The media routinely reports on this testimony. The
content of the recording, and hence the transcript, is disturbing. The jury,
however, is well aware of this information. The jury will certainly not be
prejudiced by the media reporting what the members of the jury already know.
[20] There is an important public interest in fair and accurate reporting of
court proceedings. If I did not make a copy of the transcript available the
alternatives available to the media representatives would have been:
(a) to base a report based upon what each thought they heard listening to
the recording one time. Without the assistance of a transcript, given the poor
quality of the recording, any such report would inevitably be inaccurate; or
(b) to report that, “At times I could not tell what was said on the recording
and so I cannot report what in fact occurred in court.”
[21] The limited excerpt of the audio recording that was requested was
innocuous. Essentially, knocking on a door followed by a commotion. This
could not conceivably fan the flames of public outcry or prejudice that might
blow back and influence the members of the jury prior to the deliberations. Further,
as Justice Sharpe observed, it is not my function to determine if the public
“needs” this information.
[22] The video recording of the police interview similarly did not contain
any material that could cause prejudice to Mr. [REDACTED]’s fair trial rights. The
video recording put forward a scenario tending to support Mr. [REDACTED]’s defence.
Other Comments
[23] I recognize the importance to the media of reporting on matters in a
timely manner. In this case, it was possible to deal with the media requests
expeditiously at the end of the court day.
[24] I make the observation, however, that significant difficulty would have
been encountered had this been a situation in which a person opposing media
access asked for an opportunity, in the words of Sharpe J., “to demonstrate
through convincing evidence” that the Dagenais/Mentuck test had been
met. I certainly would not have been inclined to interrupt the proceedings
before the jury for any extended period of time. That would not be fair to the
jurors who had been provided with an estimated time for trial that did not
build in time to conduct an evidentiary hearing regarding media access.
[25] This argues in favour of Crown and defence counsel attempting to
anticipate cases that are likely to attract media attention and requests for
access to exhibits. The media will follow most high profile cases from the
start and will therefore, be in a position to alert Crown and defence counsel in
advance of trial as to access requests they intend to make. If it appears that
contentious issues will arise it would be preferable to schedule a time during pre-trial
proceedings to consider media requests. This would permit an advance ruling as
to whether, and on what terms, the media will have access to exhibits when
presented in court.
[26] This would avoid the unfortunate result that a legitimate media request
for access to an exhibit might not be able to be heard in a timely fashion due
to the necessity of moving the jury trial itself forward. If at all possible
the media should not be put in the position of having to report yesterday’s
news.
________________________
SPROAT J.
Released: May
9, 2011
CITATION:
R. v. [REDACTED], 2011 ONSC 2196
COURT
FILE NO.: CRIMJ(P) 3908/09
DATE: 20110509
|
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
and –
[REDACTED]
SPROAT
J.
|
Released: May
9, 2011