CITATION: [REDACTED] v. [REDACTED], [REDACTED]

COURT FILE NO.: [REDACTED]

DATE: [REDACTED]

ONTARIO

SUPERIOR COURT OF JUSTICE

RULING

(MEDIA APPLICATION FOR COPY OF EXHIBITS)

Judge: [REDACTED]

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 [REDACTED] of the Toronto Star, Ms. [REDACTED] of the Toronto Sun and Mr. [REDACTED] 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] [REDACTED] supported the request of the media as reasonable in the circumstances. [REDACTED] 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 [REDACTED]'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. [REDACTED] 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 [REDACTED] 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.

AnalysisandConclusion

[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.

________________________

Judge: [REDACTED]

Released: [REDACTED]

CITATION: [REDACTED] v. [REDACTED], [REDACTED]

COURT FILE NO.: [REDACTED]

DATE: [REDACTED]

Released: [REDACTED]