CANADA CASE NUMBERS:975838
PROVINCE OF NOVA SCOTIA 976465
2001
IN THE PROVINCIAL COURT
HER MAJESTY THE QUEEN
VERSUS
ROBERT RHYNO
and
THE HALIFAX HERALD LTD.
(Intervener)
and
SOUTHAM INC. & THE DAILY NEWS
(Intervener)
_______________________________________________________________________
APPLICATION FOR BAN ON PUBLICATION
PURSUANT TO S.486(4.1) OF THE CRIMINAL CODE OF CANADA.
_______________________________________________________________________
Cite as: R. v. Rhyno , 2001 NSPC9
HEARD BEFORE: The Honourable Associate Chief Judge R. Brian Gibson
PLACE HEARD: Dartmouth, Nova Scotia
DATE HEARD: April 9, 2001
DATE OF DECISION: April 11, 2001
WRITTEN RELEASE OF DECISION WITH REASONS: April 27, 2001
COUNSEL: Alonzo Wright, counsel for the Crown (Applicant)
J. Patrick Atherton, counsel for the Defendant
Robert Aske, counsel for The Halifax Herald Ltd.
Gavin Giles, counsel for Southam Inc.
On April 11, 2001 I dismissed the Crown’s application for a publication ban pursuant to S.486(4.1) of the Criminal Code of Canada. The following are my reasons which I then indicated I would later provide.
The Crown, relying upon the provisions of S.486(4.1) of the Criminal Code of Canada, sought an order banning publication or broadcast of the names of two alleged victims as well as the name of the accused. The accused was charged with two counts of Assault Causing Bodily Harm in respect of the two alleged victims pursuant to the provisions of S.267(b) of the Criminal Code. These two offences were alleged to have occurred on or about the 12th of April, 2000 at or near Ship Harbour. The accused supported the Crown’s application.
The Halifax Herald Limited and Southam Inc. were granted standing as interveners. As interveners, represented by counsel, they opposed the Crown’s application.
S.486(4.1) provides as follows:
“A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or a witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.” (Emphasis added.)
The foregoing provision was enacted on June 17, 1999 as part of a number of provisions found in Section 2, Chapter 25, Statutes of Canada 1999 which section extensively amended the then existing provisions of S.486 of the Criminal Code.
Written notice of this application, as required by the provisions of S.486(4.4), was given by the Crown. Notice of the application was served upon the media in accordance with the direction of this Court, utilizing the facilities of the Kings University School of Journalism website.
The Crown, in order to succeed in its application, carried the burden to establish, on a balance of probabilities standard of proof, that the sought-after order was necessary for the proper administration of justice as prescribed in S.486(4.1). In particular, the Crown, in its notice of application, set out a number of grounds on which it relied to establish that the order was necessary for the proper administration of justice. They were:
“1. THAT there is a real substantial risk that the victims would suffer significant harm if their identity were disclosed:
2. THAT societies interesting encouraging (sic) the reporting of offences and the participation of victims and witnesses may be in jeopardy;
3. THAT there are no other effective alternatives available to protect the identity of the victims; and
4. Any other factors that the Judge considers relevant.”
I inferred from the Crown’s submissions that the Crown’s concern with respect to the second ground related to the possible jeopardy to society’s interest, in general, to report offences and to have victims and witnesses participate in the criminal process that may follow thereafter.
The Criminal Code in S.486(4.7) sets out a list of factors which are to be considered by the Court in the course of determining whether the Crown has met the burden of proof required for the sought-after ban pursuant to the provisions of S.486(4.1). Because the criminal charges alleged violence against two individuals under the age of 18 years I was required to also consider the provisions of S.486(1.1) relative to the proper administration of justice issue.
The Crown called one witness, namely Constable Wayne Knapman, an RCMP Constable who has been stationed in Sheet Harbour for the last three and a half years. He was involved in the investigation of the charges before this Court by interviewing the accused. He also spoke to the two alleged victims who are sisters, aged 11 and 13 years, but did not take statements from them. That function was performed by a different RCMP officer.
The alleged victims, at times material to the charges, lived with their mother and with the accused, who, according to the evidence, is the boyfriend of the mother. The accused and the alleged victims do not share the same surname. The evidence disclosed that they all live together in the small community of Ship Harbour which, according to the evidence, has a population of between 100 and 200 people. This community is policed by the RCMP Detachment at Sheet Harbour.
Constable Knapman believed, based upon his discussions with the alleged victims, that they would be humiliated if their names were published. No evidence was adduced as to how their possible concern about being humiliated might impact upon their ability to testify. There was no evidence adduced to suggest that these witnesses were likely to suffer long-term negative effects if their names were publicized. I could not speculate nor was I able to take judicial notice that they, because they are children, would be more significantly affected than would be an adult alleged victim whose name is made known to the public. Although they are young persons, they are not young persons charged with a criminal offence as contemplated by the Young Offenders Act. There was no evidence before me to suggest that they may be stigmatized or suffer lasting consequences should their names be made public as might be the case with a young person charged with a criminal offence.
Constable Wayne Knapman also gave evidence with respect to the wider community policed by the Sheet Harbour Detachment and what he believed to be a generally “stand-offish” characteristic of the general public in relation to the RCMP. He attributed that “stand-offish” characteristic to a general reluctance by the public to come forward and report criminal activity for fear of being labeled a “fink” or to a fear of retaliation. He stated that the fear of retaliation is likely to be more prevalent among high school students. There was no evidence adduced that high school students were involved in any manner with respect to these criminal charges before me. Neither of the alleged victims is or was a high school student.
I failed to see from the evidence how the wider Sheet Harbour community or the smaller Ship Harbour community was different from other rural communities in Nova Scotia.
As required by the provisions of S.486(4.7), I considered the factors set out therein in relation to the evidence adduced, the submissions made by all counsel, and the relevant case law. S.486(4.7) provides as follows:
“In determining whether to make an order under subsection (4.1), the judge or justice shall consider:
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed;
(c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses;
(e) whether effective alternatives are available to protect the identity of the victim or witness;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those effected by it; and
(h) any other factor that the judge or justice considers relevant.”
The provisions of S.486(4.7) appear to be based upon the guidelines set out in Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835 and, more particularly, as found in paragraphs 73 and 98. These factors are constitutional in nature and require that a balance be struck between the proper administration of justice, fairness in the trial process and freedom of expression.
I do not propose to set out a detailed application of the evidence, counsel’s submissions or the relevant case law to the seven factors set out in S.486(4.7). However, some comment in relation to these seven factors is appropriate. The following paragraphs identified (a) through (h) are intended to correspond with the paragraphs identified with the same letters in S.486(4.7).
(a) Both the accused and society have a right to a fair and public hearing. The most effective way to ensure that this objective is met is to have no restriction on the publication of evidence, the names of the witnesses or the accused and the reasons for judgement.
In R. v. Brown [1999] OJN No. 4870, a decision of the Ontario Superior Court, Trafford, J. stated at paragraph 19:
“Our courts conduct trials in open courtrooms. This has long been a common law principle governing the administration of justice in Canada and it now has constitutional recognition in the Charter. It is a safeguard for the integrity of our system and a means of maintaining the public confidence in it. Deviation from the full disclosure of any proceedings is to be limited to the extraordinary and compelling circumstances of a given case. See R. v. MacArthur, supra, at p.155, Re: Morin and the Queen; Kaufman et al, supra, at p.60 and Re: Dagenais et al and the Canadian Broadcasting Corporation et al, supra, at p.316-317.”
(b) No evidence was adduced to establish that there was a real and substantial risk that the alleged victims or witnesses would suffer significant harm if their identities were disclosed. The possibility of embarrassment or humiliation has not been shown to have the prospect of causing significant harm to these two alleged victims. It is not for this Court to speculate about this. If speculation were appropriate it might be reasonable to speculate that positive or sympathetic responses may be evoked in the community towards the alleged victims, regardless of the outcome of the trial.
(c) There was no evidence adduced that the alleged victims need the sought-after order for their security or to protect them from intimidation or retaliation. The evidence revealed that they continue to reside in the same home as the accused, notwithstanding these charges. There was no evidence before me indicating that the alleged victims would be at a greater risk should the Court not grant the sought-after order.
(d) There was no evidence before me that the alleged victims in this case would have difficulty participating in the trial as witnesses if their names were not banned from publication or that their cooperation in the investigation of these charges was predicated upon the seeking of such a ban. Society clearly has an interest in the reporting of offences, however, there was no evidence before me that without such bans, as sought here, in respect of these types of alleged offences, that individuals will be discouraged from reporting such offences.
There is a certain reality about the making of a complaint to the police or the reporting of alleged offences that must be recognized. It is the fact that it is a serious matter to complain or report that someone has allegedly committed a criminal offence. Such a complaint, when made to the police, is usually the initial step causing the State, through police agencies, to investigate. Thus, the power of the State is invoked through a complaint made to the police. The public always has an interest and right to be informed when the investigation leads to criminal charges because it is the State, on behalf of society, that brings criminal charges against an individual. Those who make complaints of possible criminal conduct ought to know and expect that the investigation of such complaints which lead to criminal charges, will be subject to public scrutiny. Public scrutiny provides a balance. That balance ought to exist and is presumed to exist even with respect to alleged child victims other than those victims of the offences enumerated in S.486(3) of the Criminal Code.
(e) If this Court had been persuaded that it was necessary to ban publication of the names of the alleged victims, an effective alternative measure would have been to exclude the accused from such ban. The accused and the alleged victims do not share the same last name. However, because of the conclusion that I have reached with respect to this application I need not consider that or any other measure.
(f) The deleterious effects of the proposed order outweighed the salutary effects of the proposed order. The only salutary effect of the proposed order would have been to save the alleged victims the possibility of some embarrassment or humiliation. It might be fairly said that in many cases involving spousal assault charges, for example, that it is embarrassing or humiliating for spouses to give evidence in court about their relationship with their accused spouse. Nevertheless, such matters routinely are dealt with in court without any publication ban.
(g) The trial of this matter was scheduled to take place a significant distance from the community where the offences allegedly occurred. Ordinarily, if the Provincial Court was still presiding at Sheet Harbour as it was until November, 2000, members of that community would have been more likely to attend the trial and thereby would have had a greater opportunity to learn the details of these charges, including the names of the accused and the alleged victims. The members of the greater Sheet Harbour area and the smaller community of Ship Harbour must, to an even greater extent than would have been the case had the trial been scheduled to take place in Sheet Harbour, rely on the media to inform them of this trial. The media, if this ban was imposed, would not have had the ability to inform that community nor the wider community of this province about this matter. The freedom of the media to express itself and perform its function of informing the public in relation to this matter would have been significantly limited.
(h) There were no other relevant factors for this Court to consider.
Accordingly, I concluded, for the reasons set out above, that the Crown did not satisfy me that the sought-after order was necessary for the proper administration of justice. The application for the publication ban was thereby denied.
_____________________________
R. Brian Gibson
Associate Chief Judge