Court of Queen s Bench of Alberta Citation: R. v. Twitchell, 2010 ABQB 692 Between: Her Majesty the Queen - and - Date: Docket: Q1 R

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1 Court of Queen s Bench of Alberta Citation: R. v. Twitchell, 2010 ABQB 692 Between: Her Majesty the Queen - and - Date: Docket: Q1 Registry: Edmonton Respondent Mark Andrew Twitchell Applicant/Accused Restriction on Publication: These Reasons for Judgment are subject to a court-ordered publication ban. The materials in relation to which publication has been banned may be accessed only by persons employed by a media organization and then only upon the accessing person providing a written undertaking to abide by the publication ban and an undertaking from their employer to the same effect. The undertakings must be in a form suitable to the Trial Judge. Those undertakings shall expire once the jury is sequestered. There should be no access to the sealed materials by any persons until the jury is sequestered. For details see the Summary in judgment 2010 ABQB 692. Editorial Notice: This judgment has been released on the Court s direction. The trial ended on April 12, Introduction Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson on the Application for a Ban on Publication and Sealing Order [1] Mark Andrew Twitchell was originally charged on a single indictment with the murder of John Altinger and the attempted murder of Gilles Tetreault. I severed the indictment and the

2 Page: 2 Crown has opted to proceed, first, with the murder indictment. This application is brought by Crown and defence to ban publication of any of the pre-trial applications heard by me and to seal the evidence proffered in those applications. I. Facts and Circumstances [2] The Crown's case is that the Accused made a decision to become a serial killer, documented that decision, and embarked upon that role by luring and attempting to kill Mr. Tetreault. The Crown's theory is that the Accused learned from his failure with Mr. Tetreault and refined his techniques, which he also documented. The Crown alleges that seven days after failing to kill Mr. Tetreault, the Accused lured and killed and disposed of Mr. Altinger. The Accused also documented those actions. [3] The theory of the Crown is supported by a number of features common to both the attempt on Mr. Tetreault's life and the killing of Mr. Altinger. The Crown's case is also supported by forensic evidence and written material obtained from the deleted files on a laptop computer found in Mr. Twitchell's vehicle. [4] As the scheduled trial judge, I have heard three pre-trial applications (applications made before a jury has been selected). The applications are: to quash the indictment or sever the indictment; for a pervasive publication ban and sealing order in relation to all aspects of all applications; and for an order excluding evidence at the trial. As well, I have been called upon to determine whether a global challenge for cause of prospective jurors is appropriate and the process to be engaged for that purpose. [5] At the outset, I imposed a temporary but full publication ban and sealing order on the entirety of the proceedings until I had heard full argument on the subject and rendered my decisions. [6] In the course of the applications I have heard evidence from the technician who extracted the purported diary of the Accused from his laptop. I have been provided with a written copy of that diary, a series of electronic exchanges between the Accused and others, an Agreed Statement of Facts (agreed upon as admissible only for the purpose of the pre-trial applications heard by me), the warrants obtained and the sworn affidavits and attachments relied upon to secure those warrants. As well I have heard argument and, on some of the applications, I have received written submissions. II. Analysis [7] The Applicants argue that s. 648 in conjunction with s. 645 of the Criminal Code imposes a statutory publication ban on these applications. If they are wrong in that, they argue that the principled application of the Dagenais (Dagenais v. Canadian Broadcasting Corp., [1994] 3

3 Page: 3 S.C.R. 835) test must result in precisely the same result. As well, the Applicants argue that Justice Germain s previous publication ban and sealing orders continue to apply to any materials covered by that Order introduced in the proceedings before me. [8] Counsel on behalf of the CBC and the Edmonton Journal (hereinafter referred to as the media) argue that s. 648 and s. 645 do not apply to the proceedings before me and therefore the Applicants must satisfy the Dagenais test. Additionally, the media argues that on the principles of Dagenais, some portions of the proceedings and material should not be kept from the public. A. What Is the Appropriate Process to Restrict Public Access? [9] Section 648 provides: 648. (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. (2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction. [10] Section 645(5) provides: 645(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn. [11] All agreed that s. 645(5) was designed to recognize the reality that in this day and age of long complicated multi-issue trials, there is a need to be able to efficiently dispose of matters before empanelling a jury and allocating trial time. The alternative of wasting days and sometimes weeks of court time and exhausting juror patience while they idle as disputes are resolved is simply intolerable. [12] However, the Applicants also argue that to be effective, having regard to the potential prejudice an accused might suffer if the making of such applications is not treated the same as if made after the jury is sworn, the ban imposed by s. 648 must also extend to such pre-trial applications, even though the wording of the section does not seem apt for the suggested interpretation. The Applicants argue that otherwise there is no incentive to make any applications before trial and the objective of s. 645(5) would not be realized, because the potential compromise of the Accused s right to a fair trial would militate against any pre-trial motions. Accordingly, the Applicants argue that parliament must have intended that pre-trial applications such as those before me would be protected by s. 648.

4 Page: 4 [13] There is some authority on this issue. Both Binder J. in R. v. Cheung (2000), 150 CCC (3d) 192 (QB) and Watson J., as he then was, in R. v. Trang (2001), 295 A.R. 250 (QB) concluded that pre-trial applications are not captured by s. 648 and therefore any restriction on public access to or publication of the proceedings is subject to the Dagenais principles. However, the rest of the country has adopted a different approach. [14] In R. v. Regan (1997), 124 C.C.C. (3d) 77 (NSSC), s. 648 was interpreted to extend to pre-trial proceedings even though unconstitutional, as violating s. 2 of the Charter, because it is saved by s. 1 of the Charter. MacDonald J. also concluded that if s. 648 did not extend to pretrial motions or was not saved by s. 1, then the common law ban was appropriate in identical terms. [15] In R. v. Brown (1998), 126 C.C.C. (3d) 187 (Ont. Gen. Div.), s. 648 was interpreted to apply to pre-trial proceedings. The constitutionality of the resulting scope of s. 648 was not challenged, but Trafford J. read down the extent of the ban because of the ambiguities he found in s. 648 which allowed him to use Charter values as an interpretive aid. [16] In R. v. Malik, 2002 BCSC 80, s. 648 was interpreted to apply to pre-trial proceedings. No constitutional challenge to that interpretation was made. Josephson J. followed Brown and Regan and read down the scope of the ban to comply with Charter values. R. v. Sandham (2008), 248 C.C.C. (3d) 543 (Ont. S.C.) and R. v. Valentine, 2009 CarswellOnt 5190 (S.C.) are to a like effect. [17] In R. v. Ahmad, [2009] CarswellOnt 9301 (S.C.), Dawson J. explained that in the absence of a constitutional challenge, s. 648 provided an absolute ban respecting pre-trial applications and its provisions are not ambiguous. [18] In Cheung, the media s argument was captured by Binder J. in these words: [32] The Media argued that the plain meaning of s. 648(1) cannot support the interpretation put forward by the Applicant: no permission to separate has been given, there are no members of a jury prior to jury selection, and no order has been made under s.s. 647(1). Section 648 refers to any portion of the trial, but for most purposes a trial does not commence until the members of the jury are sworn and the accused is given in charge of the jury. Section 648 clearly does not purport to make all pre-trial applications part of the trial for the purposes of s. 648(1); s. 645(5) makes no reference to s. 648 at all. If Parliament had intended to broaden the scope of the ban in s. 648(1) when it enacted s. 645(5), or at any time since, it could have amended either section to make clear such an intention. [33] The Media cited R. Sullivan, Driedger on the Interpretation of Statutes, 3d ed. (Toronto: Butterworths, 1994) at 128 and 417 for the propositions that as

5 Page: 5 a general rule interpretation should not add to the terms of the law, and the implicit change of the existing law in an important regard should not be lightly presumed. As well, it is presumed that the legislature does not intend to interfere with the rights of subjects (at 370). [34] They further argued that the legislative history of a statute, including reports of debates in Parliament, can be resorted to as an aid to interpreting the statute, particularly when the constitutionality of the statute is under consideration and the legislative record is clear, relying on R. v. Morgentaler, [1993] 3 S.C.R. 483, Re Rizzo Shoes Ltd., [1998] 1 S.C.R. 45 and R. v. Gisby, [2000] A.J. No (C.A.) (QL). [35] The Media referred to Bill C-42 (An Act to amend the Criminal Code and other Acts (miscellaneous matters)), introduced by Parliament in the House of Commons on June 15, Bill C-42 contained the following amendment: 62. Subsection 648(1) of the Act is replaced by the following: Restriction on publication 648(1) Information regarding any portion of a trial shall not be published in any newspaper or broadcast (a) in respect of any matter dealt with by a judge before any juror is sworn, until the jury that is eventually sworn retires to consider its verdict; and (b) in respect of any matter dealt with after the jury is sworn but when the jury is not present and permission to separate is given to members of the jury, until the jury retires to consider its verdict. [36] At the time of the second reading of Bill C-42 on October 4, 1994, Ms. Sue Barnes stated (Record of Hansard Proceedings, p. 6521): There are proposals aimed at removing obsolete provisions or filling gaps created by changing circumstances. Gaps which presently exist with respect to publicity for certain pretrial proceedings would be closed. It is important that the rights of accused persons to a fair trial before an impartial jury not be compromised by premature publicity of information which may or may not be relevant in admissible evidence.

6 Page: 6 [37] On December 6, 1994, representatives of the Canadian Daily Newspaper Association appeared before the Standing Senate Committee on Legal and Constitutional Affairs arguing that the proposed s. 648 amendment was overbroad, in effect throwing a blanket of secrecy over events which take place in open court and which would not affect the ability of an accused to receive a fair trial (pp. 17:4-17:8). [38] Dagenais was released on December 8, Four days later, the Committee Report to the Senate recommended that s. 62 of Bill C-42 be dropped. Chairman Senator Gérald Beaudoin stated (p. 1096): In light of the recent decision of the Supreme Court of Canada regarding The Boys of St. Vincent s in which the Supreme Court indicated that one must strike a fair balance between the right of the accused to a fair trial and the public s right to know, the committee feels it is preferable to drop this clause from Bill C-42. If the Minister of Justice is of the opinion that the clause is necessary, he will have to revise the wording to bring it into line with the recent decision of the Supreme Court of Canada and the rights and freedoms protected by the Canadian Charter of Rights and Freedoms. [39] Although not brought to the attention of this Court by the Media, a review of Hansard further reveals that on December 13, 1994, Allan Rock moved that amendments made by the Senate to Bill C-42 be concurred in, stating (p. 9010): It was pointed out by the committee of the Senate which considered this clause that the language which the government used to achieve that purpose might be overbroad. It might be mandatory where permissive language might be preferable. In any event the provision, however worded, should permit the publication of matters other than those which might sway a jury if they were made public before the panel was sworn in. We are happy to have that clause removed as well. We will consider it and try to meet the legitimate concerns that have been expressed. We will try to improve it and bring it forward at another time. [40] The Media argued that it is clear from this legislative history that Parliament never understood nor intended s. 648(1) to apply to pre-jury proceedings. Furthermore, Dagenais was issued four days prior to the Senate Committee s vote to delete the amendments to s. 648 from Bill C-42, and was

7 Page: 7 clearly taken into account in the Senate Committee s deliberations. The court should not do that which Parliament has refused to do, particularly where the refusal was as a result of a constitutional concern. [41] The Media asserted that where a statute is open to more than one interpretation, one of which accords with the Constitution and the other which does not, the interpretation which is consistent with the Constitution should be adopted. The decisions where s. 648(1) has been interpreted to extend to prejury proceedings contain suspect reasoning in that they read up s. 648 to catch pre-jury proceedings, and then read it down to exclude non-prejudicial information. The cases are not in agreement as to how this reading down should be accomplished. [19] Binder J. then put the determination as to the scope of s. 648 in the form of a series of questions as follows: [58] As a result of the subsequent enactment of s. 645(5), a situation arose whereby trial applications were heard prior to jury selection, to which s. 648(1), on a plain reading, does not apply. What was Parliament s intention with respect to publication of those proceedings? There are several possibilities: Parliament was not aware of any potential interpretive difficulty; Parliament was aware, but by oversight failed to clarify the situation; Parliament was of the view that s. 648(1) implicitly applies to some or all pre-jury selection proceedings; Parliament was of the view that s. 648(1) does not extend to pre-jury selection proceedings, and felt it was not appropriate to extend its scope; Parliament was of the view that s. 648(1) does not extend to pre-jury selection proceedings, and is aware that a mechanism exists whereby the courts can protect the accused s right to a fair trial by imposing a ban where appropriate under Dagenais. [20] Binder J. concluded that s. 648 did not extend to pre-trial proceedings because: [61] First, as argued by the Media, it is obvious that the plain wording of s. 648(1) does not support the interpretation suggested by the Applicant: there is no permission to separate, there are no members of a jury, and no order has been made under subsection 647(1). [62] Secondly, to hold that s. 648(1) implicitly applies to proceedings which occur prior to a jury being in place, assumes that Parliament would be of the view that none of the policy factors which distinguish the pre- and post-jury scenarios would warrant different treatment of the two. Living in a post-dagenais world, it is difficult to imagine that factors such as, inter alia, the anticipated length of time between proceedings and jury selection, the alternatives available to ensure jurors are not tainted, the nature of the proceedings, and the large pool of potential jurors who may or may not have any interest in the proceedings, would lead to the

8 Page: 8 conclusion that the scenarios are sufficiently similar to warrant identical treatment. [63] Thirdly, to find ambiguity, or a gap, as suggested by the Applicant, one would necessarily have to conclude that there exists no effective alternative mechanism to protect the fairness of the trial. The Applicant argued that the Media s interpretation would not only be inconsistent with the treatment of postjury selection proceedings, it would fly in the face of the entire legislative scheme. However, this would only be true if a partial Dagenais ban is so inconsistent with the legislative scheme providing for bans on judicial interim release, preliminary inquiries, and post-jury selection proceedings, among others, that a s. 648(1) blanket ban on all pre-jury trial proceedings is warranted. Such reasoning would be absurd. To use the Applicant s terminology, it would fly in the face of Dagenais to accept that the inherent jurisdiction recognized in that case is insufficient to protect the integrity of an accused s trial. [21] I respectfully agree, as did Watson J. in Trang. [22] I recognize that there is merit in adopting a common approach respecting the interpretation and application of the provisions of the Criminal Code. However, this is not the first time nor likely to be the last that trial courts have differed in their interpretation of a federal statute. That is why we have appellate courts. The correct approach is that s. 648 does not extend to pre-trial applications such as those made before me. [23] Accordingly, in order to limit public access and publication, the Applicants must meet the Dagenais test. B. What Is the Dagenais Test? [24] Plainly, if the right to a fair trial and free speech conflict, any solution will require some impingement of one or both rights. In Dagenais, Lamer C.J. on behalf of the majority offered this comment on the old approach to the common law discretion to ban publication: 72 The pre-charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favoured the rights protected by s. 11(d) over those protected by s. 2(b). A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.

9 Page: 9 [25] The revised test was stated by him as follows: 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. 1. Real and Substantial Risk Not Met by Other Means. [26] At the time of the proposed broadcast, Dagenais was in the middle of his trial. The other three defendants trials had not yet commenced and their juries had not been chosen. Applying the newly minted test, Lamer C.J. concluded that a publication ban was not required: 79 The publication ban in the case at bar would have passed the first stage of analysis under the common law rule if: (1) the ban was as narrowly circumscribed as possible (while still serving the objectives); and (2) there were no other effective means available to achieve the objectives. However, the initial ban in the case at bar was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, there were other effective means available to achieve the objectives. The publication ban ordered by Gotlib J. has, in fact, expired, making it unnecessary to discuss in great detail the particular alternative measures that were available in the case at bar. Possibilities that readily come to mind, however, include adjourning trials, changing venues, sequestering jurors, allowing challenges for cause and voir dires during jury selection, and providing strong judicial direction to the jury. Sequestration and judicial direction were available for the Dagenais jury. Apart from sequestration, all of the other effective alternatives to bans were available for the other three accused. For this reason, the publication ban imposed in the case at bar cannot be supported under the common law. As a result, in purporting to order the ban under her common law discretionary authority, Gotlib J. committed an error of law. [27] Having made that finding, Chief Justice Lamer was not called upon to determine whether the salutary effects of the publication ban outweighed the deleterious impact the ban had on the freedom of expression. [28] In this case, Mr. Twitchell faces a jury trial, but his jury has not yet been selected. He is in the same position as the other three defendants in Dagenais, in the sense that sequestration is

10 Page: 10 not an available option at the moment. The other three accused in Dagenais were charged with having abused young boys resident at a Catholic institution of which they were part. Lamer C.J. was of the view that effective measures could be taken to protect those persons right to a fair trial, including: adjourning their trial (presumably until some time after the broadcast of the fictional account of the abuse of young boys by Catholic priests in a Catholic institution), changing venues (presumably to a location other than one close to the site of the alleged abuses, predominantly Ontario and Newfoundland), allowing challenges for cause of prospective jurors (presumably on the basis of pre-trial publicity), and providing strong judicial direction to the jury. [29] In the case before me, having the connection it does to a popular weekly U.S. television program, having the unusual features it does, changes of venue and adjournments of any reasonable sort are not likely to reduce the interest of the media or the public in the details of the story. That leaves challenges for cause, judicial instruction and sequestration once the jury is selected as available options to ensure the fair trial of Mr. Twitchell. There is a real risk that pretrial publicity will undermine the accused s constitutionally protected right to a fair trial. That risk is that it is most likely the result of pre-trial publicity which will influence prospective jurors minds consciously or subconsciously and make it extremely difficult to obtain 12 persons who can truly be said to be completely impartial as between the Crown and Mr. Twitchell. [30] On the efficacy of judicial instruction as a tool to override publicity, Lamer C.J. offered these comments: 87 To begin, I doubt that jurors are always adversely influenced by publications. There is no data available on this issue. However, common sense dictates that in some cases jurors may be adversely affected. Assuming this, I nevertheless believe that jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of the criminal proceedings. As Lord Taylor C.J. wrote in Ex parte Telegraph plc. and other appeals, [1993] 2 All E.R. 971 (C.A.), at p. 978: In determining whether publication of matter would cause a substantial risk of prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them. This Court has also made some strong statements about the reliability of juries. In R. v. Corbett, [1988] 1 S.C.R. 670, Dickson C.J. wrote (at pp ): The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are

11 Page: 11 often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law.... It is of course, entirely possible to construct an argument disputing the theory of trial by jury. Juries are capable of egregious mistakes and they may at times seem to be ill-adapted to the exigencies of an increasingly complicated and refined criminal law. But until the paradigm is altered by Parliament, the Court should not be heard to call into question the capacity of juries to do the job assigned to them. The ramifications of any such statement could be enormous. Moreover, the fundamental right to a jury trial has recently been underscored by s. 11(f) of the Charter. If that right is so important, it is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge. [Emphasis in original.] Corbett was about the issue of whether evidence of prior convictions could be presented to the jury given that such evidence has both proper and improper uses. The case at bar is, in part, about the issue of whether juries are irremediably adversely influenced by publications. However, the difference of issue is irrelevant here. What matters is that this Court has strongly endorsed the ability of a jury to follow the explicit instructions of a judge. This endorsement surely applies as much to the instruction to ignore all information not presented in the course of the criminal proceedings as it applies to the instruction to use evidence of prior convictions for one purpose and not another. I am comforted in my extension of Corbett to the case at bar by R. v. Vermette, [1988] 1 S.C.R. 985, at pp , in which La Forest J. wrote in the context of the impact of publicity that "[t]his Court has recently had occasion to underline the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider; see R. v. Corbett". [31] Despite the strong endorsement of our jury system and the expectation that jurors will understand and abide by judicial instruction, Lamer C.J. did recognize that screening and sanitization may not be as effective where there is more sustained pre-trial publicity. On that topic having just quoted La Forest J. in R. v. Vermette he continued at para. 88 as follows: 88 These observations are particularly apt in a case, such as this, in which the publication ban relates to identifiable and finite sources of pre-trial publicity. More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial. In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

12 Page: 12 [32] I think it is also likely that the pervasiveness of the coverage, the intensity of the coverage and the degree of interest in the story would serve to reduce the efficacy of challenges for cause and judicial direction. [33] Furthermore, despite the enormity of the danger of calling into question the capacity of jurors to do the job assigned to them, the right of an accused to a fair trial is a constitutional right. Its importance outstrips and cannot be sacrificed to the idealistic hope that a stern fatherly admonition will invariably and inexorably set all 12 jurors on the correct path and lead them to scrub their conscious and subconscious of the detritus fed to them by the myriad of information sources marking modern day communication. [34] If that is the approach which must be followed, then why the caution sounded by Lamer C.J. in para. 88 in Dagenais. Indeed why would we need to sequester a jury? In my view, it is necessary to recognize that there is a real and substantial risk that, in cases which command public attention and involve intense media coverage, such as Bernardo, Williams, Pickton and the like, challenges for cause and judicial instruction may not be sufficient to ensure a completely uncontaminated jury. In my view, this is such a case. Some form of ban is necessary. There is a real and substantial risk to the right of the accused to a fair trial which alternative measures short of a ban cannot overcome. 2. The Scope of the Ban [35] Lamer C.J. pointed out in Dagenais that the issue is not simply media freedom versus an accused s right to a fair trial. He offered the following insights into some of the repercussions of imposing or not imposing a publication ban: 83 Third, the analysis of publication bans should be much richer than the clash model suggests. Rather than simply focusing on the fact that bans always limit freedom of expression and usually aim to protect the right to a fair trial of the accused, it should be recognized that ordering bans may: - limit freedom of expression (and thus undercut the purposes of s. 2(b) discussed above); - prevent the jury from being influenced by information other than that presented in evidence during the trial (for example, information presented in a tabloid television show and evidence discussed in the absence of the jury and held to be inadmissible); - maximize the chances that witnesses will testify because they will not be fearful of the consequences of publicity; - protect vulnerable witnesses (for example, child witnesses, police informants, and victims of sexual offences);

13 Page: 13 - preserve the privacy of individuals involved in the criminal process (for example, the accused and his or her family as well as the victims and the witnesses and their families); - maximize the chances of rehabilitation for "young offenders"; - encourage the reporting of sexual offences; - save the financial and/or emotional costs to the state, the accused, the victims, and witnesses of the alternatives to publication bans (for example, delaying trials, changing venues, and challenging jurors for cause); and - protect national security. 84 It should also be recognized that not ordering bans may: - maximize the chances of individuals with relevant information hearing about a case and coming forward with new information; - prevent perjury by placing witnesses under public scrutiny; - prevent state and/or court wrongdoing by placing the criminal justice process under public scrutiny; - reduce crime through the public expression of disapproval for crime; and - promote the public discussion of important issues. [36] The foregoing potentials must inform not only the question of whether a ban is necessary but also the scope of any ban to be imposed (para. 89). [37] In determining the scope of the ban, the efficacy of the proposed ban is a relevant consideration: Lamer C.J. identified the issue as follows: 89 It should also be noted that recent technological advances have brought with them considerable difficulties for those who seek to enforce bans. The efficacy of bans has been reduced by the growth of interprovincial and international television and radio broadcasts available through cable television, satellite dishes, and shortwave radios. It has also been reduced by the advent of information exchanges available through computer networks. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly

14 Page: 14 difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing. 90 These concerns about the efficacy of some publication bans fit into the analytical approach under the common law rule outlined previously at several stages, since it is necessary to consider how efficacious a publication ban will be before deciding whether a ban is necessary, whether alternative measures would be equally successful at controlling the risk of trial unfairness, and whether the salutary effects of the ban are outweighed by its negative impact on freedom of expression. 91 If any adverse influence of a publication on jurors can be remedied by means short of banning the publication, then it might well be argued that there is no rational connection between the publication ban and the objective of preventing the jury from being adversely influenced by information other than that presented in evidence during the trial. In such a case, it could not be asserted that a ban was necessary to protect the fairness of the trial. I should note, however, that although it is possible that a publication ban will have a total absence of influence on the fairness of the trial, such cases will be rare. As a result, one will generally have to go further and consider the availability of reasonable alternative measures when assessing whether, in a given case, a publication ban was necessary. [38] It seems to me that each application heard by me requires separate treatment so as to ensure an appropriate scope for the ban to be imposed. a. Publication Ban Application [39] In this case, the ban sought relates to all of the pre-trial motions heard by me including the application for this ban. It is clear that the application for a publication ban by itself is not likely to have any real impact upon the impartiality of the jury. However, the materials filed in support of the application, the arguments made and portions of my reasons may, if published etch themselves into the consciousness of prospective jurors. [40] Again, it is ensuring impartiality which necessitates the ban. Once the jury starts its deliberations, it is sequestered and cut off from outside information sources. At that point, there is no longer a reason to continue the ban. I note that no one has suggested that any ban I choose to impose should extend beyond sequestration, notwithstanding the possibility that appeals and retrials may lie in the future. Therefore, once jury sequestration occurs any ban imposed by me would end. [41] In my view, the written arguments, the agreed facts, the evidence of Constable Roszko, the evidence of Mr. Tetreault, the oral arguments, the materials gleaned from Mr. Twitchell s computers, the search warrant, the informations to obtain search warrants, the attachments to the

15 Page: 15 informations to obtain search warrants, and my reasons all contain information which may inexorably damage Mr. Twitchell s right to an impartial jury. All represent evidence or references to evidence which may or may not be admissible in this proceeding. [42] The only appropriate solution is to ban publication of all of that material. However, that does not include the notice of motion for the publication ban, the cases relied upon by the Accused, and the fact that the Accused and Crown sought to ban publication of facts and materials until the trial of Mr. Twitchell. [43] If history can be relied upon to assess the efficacy of such a ban, then it would appear that a ban will be reasonably likely to have the desired effect. b. Quashing/Severance [44] In a previous judgment I ordered the severance of the two count indictment. That application, the materials filed, the written and oral arguments made, the evidence presented, the warrants and informations to obtain those warrants and attachments thereto, and my reasons for that decision and the decision could potentially impinge Mr. Twitchell s right to a fair trial as each represents evidence or references to evidence which may or may not be admissible at his trial. In my view, the materials relating to the quashing application are at least as potentially inimical to the Accused s right to a fair trial as the materials relating to the publication ban application. The reasons I gave for the appropriateness of that ban and its protective efficiency apply to the quashing/severance application materials. [45] Therefore, the publication of all information in relation to the quashing/severance application is banned until such time as the jury is sequestered. c. Exclusion of Evidence Application [46] Plainly, all the material filed, the Notice of Motion, the written and oral arguments made, the evidence presented, the warrants and informations to obtain those warrants and attachments thereto, my decision and the reasons for my decision are all potentially inimical to the Accused s right to a fair trial. For all of the reasons given when considering the other applications, this application also requires protection beyond that afforded by challenge and judicial direction. All of the foregoing material is therefore banned from publication until such time as the jury is sequestered. Again, if history can be relied upon to assess the efficacy of such a ban, then it would appear that a ban will be reasonably likely to have the desired effect. d. Challenge for Cause [47] The parties are agreed that pre-trial publicity in this case is such and likely to be such that juror impartiality will be a real and substantial concern. They agree that each prospective juror ought to be challenged for cause. I share their concerns and have ordered that each juror will be

16 Page: 16 challenged to determine if the juror is indifferent as between the Queen and the Accused. To achieve that end, the following questions will be put to each juror: 1. Have you read, heard or seen anything about this case or the Accused in any media (including newspapers, on the radio or television, or on the internet)? 2. Have you obtained any information about this case from anywhere else? 3. (If the answer to question 1 or 2 is yes, then) Have you formed an opinion about the guilt or innocence of Mr. Twitchell?. 4. (If the answer to question 3 is yes) Are you able to set aside that opinion and decide this case only on the evidence you hear in the courtroom and the Judge s directions on the law? [48] The questions are framed with a view to discovering and then eliminating potential partiality. In my view the efficacy of the questions would be compromised by publication in advance of the selection process. The challenge process and judicial instruction remain as part of the arsenal available to ensure a fair trial. Publication of the questions designed to determine the existence of preconception could potentially undermine the effectiveness of the screening process and therefore, potentially, the fairness of the trial. A limited ban is likely to be effective to preclude that risk. [49] Accordingly the questions may not be published in any way until after the jury commences to hear evidence. 3. Balancing [50] I have concluded that a publication ban is necessary to protect the Accused s right to a fair trial and I have set the scope of that ban in terms of each of the applications made before me. Notwithstanding those decisions, the bans cannot be invoked unless it can be said that the salutary effects of the ban outweigh the deleterious effects to the freedom of expression of those affected by the ban. [51] Even though, not required by the decision in Dagenais, Lamer C.J. offered opinion on this subject: 92 If the actual beneficial effects of publication bans are limited, then it might well be argued in some cases that the negative impact the ban has on freedom of expression outweighs its useful effects. The analysis that is required at this stage of the application of the common law rule is very similar to the third part of the second branch of the analysis required under s. 1 of the Charter, as set out by this Court in R. v. Oakes, [1986] 1 S.C.R As Dickson C.J. stated in Oakes (at p. 140), "[e]ven if an objective is of sufficient importance, and the first two elements

17 Page: 17 of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve". In many instances, the imposition of a measure will result in the full, or nearly full, realization of the legislative objective. In these situations, the third step of the proportionality test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective. At other times, however, the measure at issue, while rationally connected to an important objective, will result in only the partial achievement of this object. In such cases, I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms. A legislative objective may be pressing and substantial, the means chosen may be rationally connected to that objective, and less rights-impairing alternatives may not be available. Nonetheless, even if the importance of the objective itself (when viewed in the abstract) outweighs the deleterious effects on protected rights, it is still possible that the actual salutary effects of the legislation will not be sufficient to justify these negative effects In my view, characterizing the third part of the second branch of the Oakes test as being concerned solely with the balance between the objective and the deleterious effects of a measure rests on too narrow a conception of proportionality. I believe that even if an objective is of sufficient importance, the first two elements of the proportionality test are satisfied, and the deleterious effects are proportional to the objectives, it is still possible that, because of a lack of proportionality between the deleterious effects and the salutary effects, a measure will not be reasonable and demonstrably justified in a free and democratic society. I would, therefore, rephrase the third part of the Oakes test as follows: there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures. 96 A similar view of proportionality must inform the common law rule governing publication bans (this is, of course, apparent from the way I have expressed the second part of the rule). This suggests that when a ban has a serious deleterious effect on freedom of expression and has few salutary effects on the fairness of a trial, the ban will not be authorized at common law.

18 Page: 18 [52] Of course the salutary effect of an effective publication ban in this case is an untainted, impartial panel of jurors. [53] Some of the deleterious effects of the ban had been previously itemized. However, these effects are for the most part temporary. Temporary limits on publication seems a smallish price to pay to achieve the objective of a fair trial. To cast the task in terms of examining the balance between the degree of damage done to freedom of speech as compared to the degree of assurance that a fair trial will occur by a publication ban, leads to the same result. The temporary nature of the ban significantly reduces the degree of damage. Whereas ensuring a fair trial where there is reason to fear that result is a significant achievement, and the likelihood of that benefit substantially greater if jurors are not inundated with material leading to pre-judgment. [54] However, a publication ban which is not effective will not have the desired salutary effect. The admonition of Lamer C.J. in that respect bears repeating: 89 It should also be noted that recent technological advances have brought with them considerable difficulties for those who seek to enforce bans. The efficacy of bans has been reduced by the growth of interprovincial and international television and radio broadcasts available through cable television, satellite dishes, and shortwave radios. It has also been reduced by the advent of information exchanges available through computer networks. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing. 90 These concerns about the efficacy of some publication bans fit into the analytical approach under the common law rule outlined previously at several stages, since it is necessary to consider how efficacious a publication ban will be before deciding whether a ban is necessary, whether alternative measures would be equally successful at controlling the risk of trial unfairness, and whether the salutary effects of the ban are outweighed by its negative impact on freedom of expression. [55] The rapid dissemination of information and the limitless ways that the information may be published is a significant difficulty in cases with high profiles, such as this one. There are local media, national media, United States media, ordinary citizens, thrill seekers, amateur and professional bloggers, law students, lawyers and those looking for personal gain or profit who can be expected to be interested in the various materials associated with the applications made before me. [56] Most who might be minded to broadly circulate information will abide by an order directing them not to do so. At least that seems to have been the case in other high profile cases. However, more limited person to person publications are virtually impossible to monitor or preclude. No doubt some of the potential jurors in this case may explore the internet for material

19 Page: 19 because of the kind of case this is. Additionally, some of those who might be minded to publish more broadly, may not feel compelled or motivated to abide by a publication ban. Thus providing a further source for the curious. Finally, there are many instances where court orders and statutory direction are ignored by otherwise ordinary law abiding citizens. That courts are extremely busy is all the evidence necessary to make that point. [57] However, if we may not be able to fully and completely ban publication do we eschew trying? Do we ask the accused to settle for what we hope will be a fair trial. How far ought we to go before acknowledging that we cannot devise a perfect mechanism. Do we seal materials, close the courtroom, exclude all but essential players, use undertakings, or engage in a combination of these activities in an attempt to ensure that the fair trial which we have found to be in jeopardy by publication is not in fact compromised in any event? [58] Justice Germain recognized this dilemma in the order he made in this case banning publication and sealing portions of the warrants and informations used to obtain those warrants. [59] In my view, if any of the evidence, in the form of agreed facts, the affidavits relied upon to obtain the warrants, the material found on Mr. Twitchell s computer or the electronic communication between the Accused and third parties reaches perspective jurors, it will be exceedingly difficult to successfully purge that information from the minds of those prospective jurors. That danger warrants more extensive measures than a simple ban to protect against an unfair trial. A simple ban simply won t be effective. [60] Publication of the Agreed Statement of Facts could be devastating to the Accused s right to an impartial jury especially if the publication includes the fact that there was agreement on the published facts. For that reason sealing of the agreed facts is the only protection likely to be completely effective. The agreed facts will be sealed until such time as the jury is sequestered. [61] The written and oral arguments respecting the applications for publication ban, quashing/severance and exclusion of evidence, drawing as they do upon the agreed facts are also sealed. The electronic communication records involving Mr. Twitchell and the so called confession recovered from his laptop are also so potentially explosive that it is reasonable to expect that if they become public in any way before trial, sanitization of perspective jurors will likely be ineffective. Therefore both are ordered sealed until such time as the evidence they represent is actually heard by the Accused s jury, or the jury is sequestered. [62] I recognize that sealing the material identified is unusual and is usually seen as an even greater affront to the democratic hallmarks of open courts and free speech. However, any lesser restriction would provide uncertain protection to the Accused s right and society s interest in a fair trial. [63] Furthermore, again with a view to ensuring the efficacy of the measures, the reasons for my decisions, the Notices of Motion, the evidence of Constable Roszko and Mr. Tetreault including the video recording and transcript, may not be published in any way until such time as