IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Black, 2006 BCSC 1357 Regina v. Date: Docket: Registry: Kelowna 2006 BCSC 1357

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Black, 2006 BCSC 1357 Regina v. Date: Docket: Registry: Kelowna Ronda Petra Black Before: The Honourable Madam Justice Humphries Oral Reasons for Ruling re Application for Ban on Publication September 1, 2006 Counsel for the Crown: Counsel for the Accused: Counsel for H. Steadman: Appearing on behalf of Kelowna Capital News, The Daily Courier and CHBC: Place of Trial: P. Johnstone, Q.C. N. Yates J. Gordon J. Butler M. Jones J. Harding D. Hinchcliffe Kelowna, B.C.

2 R. v. Black Page 2 [1] THE COURT: Counsel for Mr. Steadman, relying on the discretion given trial judges under the common law as recognized by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, applies for a ban on publication of Mr. Steadman s evidence, identity and actions pending Mr. Steadman s own trial as an accessory after the fact to the murder alleged to have been committed by Ms. Black, which is set for November 20, 2006, to take place in Kelowna before a jury. Ms. Black is currently in mid-trial on a charge of first degree murder in Kelowna before judge alone. It is now September 1, [2] Mr. Steadman and Ms. Black were originally charged on the same Information but the Crown severed the charges. The two had separate preliminary hearings and each subpoenaed the other at their respective hearings. Mr. Steadman s preliminary hearing took place first, but Ms. Black s trial has proceeded ahead of his, as he is alleged to be an accessory after the fact to her charge. Mr. Steadman s trial has been adjourned a couple of times already over his objections, pending completion of Ms. Black s trial. [3] Mr. Steadman has been subpoenaed by the Crown in Ms. Black s trial and was to begin testimony yesterday. [4] This application was brought mid-trial on the day Mr. Steadman was to begin testifying and was, for some reason, brought without notice to the media and seems to have taken Crown and defence by surprise as well. Nevertheless, Crown supports the application and defence takes no position.

3 R. v. Black Page 3 [5] Various representatives of the media, whom I directed were to be given notice, attended court in the afternoon and heard the argument of Mr. Butler on behalf of Mr. Steadman. They were given an opportunity to consult counsel, but chose to make representations themselves the following morning. [6] The media representatives oppose the ban. Mr. Jones for Kelowna Capital News and Mr. Harding for The Daily Courier both addressed the court. They were succinct and pointed in their submissions. [7] Mr. Jones conceded that there is indeed a risk to Mr. Steadman s rights to a fair trial if this evidence is published, but suggested that given all the circumstances, the rights of the press should outweigh that risk. He points out that Mr. Steadman bears the onus on this application, which is coming mid-trial when there is already evidence regarding Mr. Steadman before the court and the public. He suggests the administration of justice would not be served by having Ms. Black s allegations against Mr. Steadman go unanswered in the public eye. [8] He submits that a change of venue is a reasonable alternative, or at least that neither Mr. Steadman nor the Crown have provided any reason why it would not be, other than preference and inconvenience. The Crown chose the nature of the charge, which makes it necessary to complete the Black trial first, and the press should not pay the price of that choice. He submits that there are alternatives available to mitigate the risk to Mr. Steadman, and the ban is therefore unnecessary. [9] Mr. Harding referred to Dagenais, which he says has put the rights of the

4 R. v. Black Page 4 press on an equal footing with the right to a fair trial, and both must be subject to the balancing exercise established in R. v. Oakes, [1986] 1 S.C.R Mr. Steadman has not met the onus necessary to establish that his Charter right should prevail and that there are not reasonably available alternatives. Mr. Harding characterizes this as an 11th-hour application and says the short notice should also tell in the media s favour. [10] Mr. Butler acknowledges the strong messages sent by the Supreme Court of Canada in Dagenais; R. v. Mentuck, [2001] 3 S.C.R. 442; and Toronto Star Newspapers Ltd. v. Ontario, [2005] S.C.J. No. 41, regarding the importance of the rights in s. 2 of the Charter. In Dagenais, the court said at p. 878: 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 measure will not prevent the risk; and b) The salutary effects of the publication ban outweigh the deleterious effect to the free expression of those affected by the ban. [11] In Toronto Star Newspapers Ltd. v. Ontario, the court set out the test, reaffirmed but reformulated by R. v. Mentuck, as follows at para. 26: a publication ban should only be ordered when: a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably [available] alternative measures will not prevent the risk; and b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression,

5 R. v. Black Page 5 the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [12] Counsel for Mr. Steadman says the deleterious effect on his client s interests outweighs the interests of the public in this instance, and a ban is necessary to protect Mr. Steadman s right to a fair trial. [13] The court has heard evidence of an undercover operation involving Ms. Black, commonly referred to as a Mr. Big Scenario, in which she told Mr. Big she had killed her husband in Kelowna, wrapped up his body in a tarp, and had driven it to Alberta to Mr. Steadman s place. She said Mr. Steadman dismembered the body, shot the skull with a shotgun, and then they drove to various places in the Exshaw/Canmore area disposing of the parts of the body. A formal admission was filed regarding the transport of the body to Alberta by Ms. Black and the disposal of the remains with Mr. Steadman, and the bones which were eventually recovered were admitted to be Mr. Black s. [14] Upon hearing Ms. Black tell Mr. Big of Mr. Steadman s involvement, the RCMP continued their façade with her while they mounted another Mr. Big scenario involving Mr. Steadman. Apparently they gained Mr. Steadman s confidence by first becoming friendly with his cousin, Mr. Gilmore, and eventually received some admissions from Mr. Steadman in Mr. Gilmore s presence. Mr. Gilmore has been subpoenaed to give evidence by the Crown in the trial of Ms. Black. [15] The court has yet to hear any evidence of these events and has been given only the sketchiest outline by counsel for Mr. Steadman who, after consideration,

6 R. v. Black Page 6 enlarged his application to include evidence about Mr. Steadman coming from Mr. Gilmore as well. [16] It is Mr. Steadman s position, through his counsel, that he cannot have a fair trial if his evidence, which he is compelled to give in this trial, is publicized prior to his own trial set to commence in November in Kelowna with a jury. He is, of course, not compelled to take the stand in his own trial, and may choose not to do so. However, his evidence will be freshly before the public if publicized during this trial. As well, certain types of evidence that may be elicited under subpoena in this trial would not be admissible against him in his own trial for instance, character evidence. Although counsel did not mention it, from Mr. Steadman s evidence yesterday, I gathered that there may be a challenge to the reliability, if not the admissibility, of the Mr. Big video on the basis that it was coerced by fear and intimidation. [17] In R. v. Glowatski (12 April 1999), Victoria Registry No (B.C.S.C.), Macaulay J. considered an application to ban publication of all of the evidence at the trial of Mr. Glowatski in Victoria when a co-accused, Ms. Ellard, was facing trial in Vancouver in seven months, the venue having been moved at the request of Ms. Ellard s counsel. Macaulay J. said at para. 18: The question of whether a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial of [Ms. Ellard] is resolved by considering whether 12 impartial jurors can be found to try her in Vancouver in late November, as scheduled.

7 R. v. Black Page 7 [18] He decided that the change of venue to a community with a significantly larger jury pool and the seven-month gap would be enough to ensure impartiality, leaving it to the trial judge to conduct a challenge for cause or to adjourn the Ellard trial further if necessary, and to instruct the jurors to abide by their oaths. He said, however, that if the trials were back to back and both set in Victoria, he would be much more concerned. [19] The two trials here are virtually back to back, and both are set in a smaller center than Victoria. [20] I agree that there is a clear risk that the public perception of Mr. Steadman will be detrimentally affected by publication of his evidence. Now that I have heard Mr. Steadman s evidence in chief, it differs in some significant respects from the version given by Ms. Black to Mr. Big, but it does directly implicate Mr. Steadman in assisting Ms. Black to dismember and dispose of the body. [21] This trial has received a great deal of publicity in Kelowna through all media outlets papers, radio, television and the Internet. Dozens of witnesses from all walks of life in Kelowna and the surrounding area have testified and I understand many more will be called by the defence. The nature of the evidence has, so far, lent itself to a rather sensational approach for which the media can hardly be blamed. Though weeks of evidence from routine witnesses have been heard, the evidence insofar as it involves Mr. Steadman and Ms. Black has, from time to time, been quite startling and memorable.

8 R. v. Black Page 8 [22] Regardless of the strong admonishments that might be delivered to the jury to ignore anything they became aware of through the media regarding Mr. Steadman during the Black trial, the nature of the evidence is such that it would be almost impossible to put it from one s mind. At the least, Mr. Steadman s right to a fair trial would be compromised. [23] The question then, is whether there are reasonably available alternative measures that would alleviate the risk to a fair trial without necessitating a ban on publication. I asked counsel during argument whether this was more appropriately a problem for the trial judge who will preside over Mr. Steadman s trial. There could be, for example, a further adjournment, an application to change the venue, or a challenge for cause. [24] Counsel for Mr. Steadman says his client is anxious to have his charges dealt with, but is rather at the mercy of the Black trial, which has taken a slow course. Mr. Steadman s trial has already been adjourned more than once over his objections, and he does not want another adjournment. As Mr. Steadman is charged as an accessory to a murder alleged to have been committed by Ms. Black, he says it only makes sense, and Crown contends it is legally required, to deal with Ms. Black s charge first. I make no comment on this and do not necessarily accept Mr. Butler s contention that if Ms. Black is acquitted, the charge against his client falls. [25] Mr. Steadman has not applied to change the venue and does not wish to do so. Crown also takes the position that a change of venue is inappropriate. They say there are many witnesses based in Kelowna, this is a Kelowna matter, and Mr. Black

9 R. v. Black Page 9 was a Kelowna resident. A change of venue would be costly and inconvenient to many people. [26] As for a challenge for cause, Crown acknowledges it is available, but when the basis for the challenge is pre-trial publicity, it would not be effective and might even be counter-productive, given the enormous amount of press coverage Ms. Black s trial has received in the Kelowna area. [27] I also raised with counsel the significance of the evidence of Ms. Black and the admissions filed regarding Mr. Steadman s involvement which is already before the court and has been the subject of publicity. Crown submits that an admission from the witness himself is substantially different from allegations made by Ms. Black. As well, certain types of evidence elicited from Mr. Steadman as a witness would not be admissible against him as accused, but will already have been publicized. [28] Although I was initially attracted by the possibility of leaving the problem of the fairness of Mr. Steadman s trial for the next trial judge to solve, I have come to the conclusion that this would not be in the interests of the efficient and effective administration of justice, it is not a reasonably available alternative, nor would it have the desired effect of ensuring a fair trial for Mr. Steadman. [29] I am not, of course, faced with making orders with respect to the Steadman trial. I am simply considering whether there are reasonable alternatives that might obviate the necessity for a ban on publication of his evidence.

10 R. v. Black Page 10 [30] In this context, I am of the view that an adjournment until the immediate public recollection is dimmed is not a reasonable or constitutionally justifiable solution. If there is no ban, Mr. Steadman might well be compelled either to forego his constitutional right to a jury trial or to a trial within a reasonable time, or he might be compelled to apply to have the trial moved to a distant location. This would be expensive and inconvenient for the parties, and I question how effective it would be, given the nature of the evidence that is expected to be elicited from Mr. Steadman. Although it may not be of such immediate interest in another centre, the more memorable details stick in peoples minds and, fortunately or unfortunately, in this age of overwhelming availability of information, the evidence, once published, is there on the Internet to be searched at any time. I agree that there is a significant difference between evidence in the form of an admission elicited from Mr. Steadman himself and evidence coming from other witnesses as to his activities. [31] It is important that this is a Kelowna matter the deceased was well-known to many people here. Generally, trials are conducted where the offence took place. An application is required to change the venue. I note, in particular, that members of Mr. Black s family have attended every day of this lengthy trial. This is an example of the importance of a local trial, and it is not appropriate to require them to travel to a distant location for Mr. Steadman s trial. Ms. Black as well lives in Kelowna with her young son and will, I presume, be a witness at Mr. Steadman s trial. [32] As for the media, it would hardly suit their purposes, it seems to me, to have Mr. Steadman s high-profile local matter moved to a distant location. Mr. Jones

11 R. v. Black Page 11 acknowledged this in his submissions but is perhaps prepared to pay that price in order to resist the present application. [33] I think the Crown is right in saying a challenge for cause, in this very highprofile and sensational trial, in a jury selection taking place in three months time, is not an effective solution. [34] As for the nature of the charge and the logistics of having Ms. Black s trial complete before Mr. Steadman s begins, this is a matter in the discretion of Crown and I must deal with the reality of the situation faced by Mr. Steadman, not with hypothetical situations involving other charges that might have been laid. [35] I add here that I am not at all confident that the trial of Ms. Black will complete by the end of September as presently contemplated by counsel. From an initial estimate of six weeks with a jury to four weeks without, then revised back to six weeks, the Crown has not yet completed its case at the end of six weeks and there is a lengthy defence case to be presented. I intend to discuss this further with counsel in an effort to have this trial complete without a further adjournment. I am proceeding, for the present purposes, on the basis that Mr. Steadman s trial will take place in November. [36] The risk to Mr. Steadman s right to a fair trial is substantial if his evidence is published. I do not see a reasonably available alternative to a ban that would not be very costly and inconvenient and even then, likely ineffective - but I bear in mind that I should consider any measures that would limit the ban as much as possible.

12 R. v. Black Page 12 [37] First, the ban is only temporary and involves only Mr. Steadman s evidence, unlike Glowatski, where a ban of the entire evidence at trial was sought. This ban will last only until the jury retires in the Steadman matter. [38] Second, I have permitted the media to publish the fact that Mr. Steadman is a witness at the trial and to refer to previous evidence that has already been published about him; therefore, his identity and evidence of his alleged actions coming from other witnesses is not the subject of a ban. [39] Third, it may be that, after hearing the whole of Mr. Steadman s evidence, a ban over its entirety will not be necessary. I appreciate that news is a perishable commodity, but this trial is going to be going on for some time, and a short delay during which I hear and consider the evidence over which the ban is sought and whether some of it can be published is preferable to a complete ban, if one is not necessary. [40] As for Mr. Gilmore s evidence, the same considerations do not apply he is not an accused and his right to a fair trial is not in issue. I am given to understand that he and Mr. Steadman show up on a video together and speak to the undercover officer, but other than that, I have no knowledge of what was said or how it relates to Mr. Steadman, or whether evidence coming directly from Mr. Steadman on video will be adduced through Mr. Gilmore during cross-examination. As I mentioned above, I do not know what position will be taken to the evidence obtained through the Mr. Big scenario respecting Mr. Steadman during Mr. Steadman s trial.

13 R. v. Black Page 13 [41] Mr. Butler does not wish to keep returning to Kelowna to deal with this, I understand, but that is simply unfortunate. The court has accommodated him by interrupting Ms. Black s trial to deal with this matter which was brought on with no notice, and if further argument has to be addressed to Mr. Gilmore s evidence, once it is before the court, it can be done at an appropriate time. It may be done by telephone in order to accommodate Mr. Butler s schedule. M.A. Humphries, J. The Honourable Madam Justice M.A. Humphries