Case Name: R. v. Mason

Transcription

1 Case Name: R. v. Mason Between Her Majesty the Queen, applicant, and Ryan Mason, respondent, and D.W., Sun Media (Toronto) Corporation and Sun Media Corporation, The Toronto Star Newspapers Ltd., and Oshawa This Week, intervenors [2005] O.J. No Court File No /05 Ontario Superior Court of Justice Oshawa, Ontario C.F. Graham J. Heard: October 28, Judgment: November 16, (67 paras.) Criminal law -- Procedure -- Trials -- Publication ban -- Application by the Crown for a publication ban respecting accused's trial on a charge of second degree murder allowed -- Young person was separately indicted with same offence -- Pair were involved in robbery and murder of elderly woman -- Murder labeled "Mother's Day Murder -- Certain newspapers opposed the ban -- Publication would create a real, substantial and serious risk to the fairness of the youth's trial. Application by the Crown for a publication ban respecting Mason's trial on a charge of second degree murder -- A young person, DW, was separately indicted with the same offence -- The pair were involved in the robbery and murder of an elderly woman -- Murder had been labeled the "Mother's Day Murder" -- Victim was well respected in the community -- Victim was 74 year-old retiree female -- Counsel for Mason and counsel for DW supported the application -- Toronto Star, Toronto Sun and Oshawa This Week opposed the application -- Mason was scheduled to plead guilty on September 16, 2005 in Whitby -- Application was commenced less than two months before jury selection for DW's trial -- Crown sought to ban publication in relation to proceedings against Mason until conclusion of DW's trial -- Whitby's population was approximately 110, Toronto Star's circulation was about 300,000 on weekdays and about 1,000,000 on Saturdays, mainly in the Greater Toronto Area, but also throughout Ontario -- Oshawa this week was distributed free to households throughout Whitby's regional area -- Crown argued that the jury pool for DW's trial would be tainted by the publication of the

2 proceedings against Mason -- Counsel for DW argued that any further pre-trial publicity would render DW's trial unfair -- He argued that Whitby and neighbouring Oshawa were "small towns" and the jury pool would be tainted -- HELD: Application allowed -- Publication less than two months before jury selection for DW's trial, of information about DW's role in the murder and subsequent indignities upon the victim's body and property and the connection with Mother's Day would create a real, substantial and serious risk to the fairness of DW's trial -- Such publication would seriously impair the proper administration of justice -- Adjourning DW's trial was not reasonable alternative as it was particularly important not to delay trial of a young person -- Change of venue was not reasonable solution -- Salutary effect of proposed ban outweighed the deleterious effect. Statutes, Regulations and Rules Cited: Youth Criminal Justice Act, Counsel: Glenn Brotherston and Kent Saliwonshyk, for the Applicant Brian J. Scott, for the Respondent Darren S. Sederoff for D.W. Alan Shanoff for Sun Media (Toronto) Corporation and Sun Media Corporation Ryder Gilliland for The Toronto Star Newspapers Ltd. and Oshawa This Week RULING ON MOTION 1 C.F. GRAHAM J.:-- Ryan Mason is charged with the second degree murder of Helena Ustupski. A young person, D.W., is separately indicted with the same offence. Jury selection for D.W.'s trial is scheduled to commence on January 12, 2006, in Whitby. 2 Mr. Mason was scheduled to plead guilty on September 16, 2005, in Whitby. On that date the Crown applied for a ban of publication in relation to the proceedings against Mr. Mason and with respect to any submissions and reasons for the court's ruling in relation to the application, until the conclusion of D.W.'s trial. 3 The Crown did not give notice to the media of its intention to seek a publication ban. 4 There were three reporters present in the courtroom on September 16, They represented the Toronto Star, the Toronto Sun and Oshawa This Week. Upon questioning by the court, Crown counsel advised that articles concerning Ms. Ustupski's murder had been printed by all three newspapers.

3 5 The court allowed the reporters an opportunity to obtain legal advice. The court also directed Crown counsel to attempt to contact counsel for D.W. to determine if he wished to participate in the application. 6 Upon the request of a reporter, the court adjourned the proceedings and required the Crown to serve notice upon the three newspapers and counsel for D.W. A schedule for filings was established. The application was scheduled for October 28, A target date of November 17, 2005, was set for Mr. Mason's plea and sentencing. 7 Prior to October 28, 2005, counsel for D.W. filed a factum and casebook, counsel acting for both the Toronto Star and Oshawa This Week filed a factum and casebook, counsel for the Toronto Sun filed a brief written argument, and Crown counsel filed a factum in reply. Crown counsel had also filed a factum and a number of cases on September 16, On October 28, 2005, the court was advised that the population of Durham Region was 567,000 in The court takes judicial notice that Durham Region's population is expanding. The population of Whitby is currently about 110,000 and the population of Oshawa, which directly borders Whitby, is about 150,000. The court was advised that Oshawa This Week is distributed free to households throughout Durham Region and that the Toronto Star's circulation is about 300,000 on weekdays and about 1,000,000 on Saturdays, mainly in the greater Toronto area (GTA), but also throughout Ontario. The court did not receive circulation information about the Toronto Sun but takes judicial notice that it is distributed mainly in the GTA, but also throughout Ontario. 9 Counsel for Mr. Mason and counsel for D.W. support the Crown's application. Counsel for the newspapers oppose the application. 10 The Crown and counsel for Mr. Mason provided the court with an Agreed Statement of Facts, upon which Mr. Mason's guilty plea will be based. Crown counsel advised the court that much of the Agreed Statement of Facts relates to evidence heard at D.W.'s preliminary hearing, in relation to which a statutory publication ban is in place. Crown counsel also advised the court that D.W. has not made any admissions. 11 The Agreed Statement of Facts, which has not been accepted as true by D.W., indicates that Mr. Mason learned, on May 8, 2004, that Ms. Ustupski, age 74, who lived in a retirement apartment building in Oshawa, was in the habit of leaving her apartment door unlocked. That night, at a house party, Mr. Mason asked D.W. if he would like to take part in a crime. D.W. agreed. In the early morning of May 9, 2004, they broke a window in a door to gain entry into Ms. Ustupski's building. After checking several other doors, they entered Ms. Ustupski's unlocked apartment with the intent of stealing items they could carry. When they entered the living room Ms. Ustupski jumped up from the couch where she had been sleeping. Mr. Mason immediately started to struggle with her in an effort to hold her down and keep her quiet. He says that D.W. hit Ms. Ustupski over the head with a flowerpot, which had no effect. Mr. Mason asked D.W. for something else with which to hit Ms. Ustupski over the head. D.W. ran into the kitchen and handed a knife to Mr. Mason. In the meantime, Ms. Ustupski continued to struggle. She tried to bite Mr. Mason's hand, which he had placed over her mouth, and she said, "Please stop". He punched her. Mr. Mason then used the knife upon Ms. Ustupski. He cut her chin and

4 he cut her throat, which severed her jugular vein. He also stabbed her in the shoulder and back. D.W. punched Ms. Ustupski and kicked her in the buttocks. Ms. Ustupski was killed by the wound to her throat. Mr. Mason washed his hands and the knife. He wrapped the knife in a dishtowel and placed it in a green garbage bag. Mr. Mason and D.W. went through the apartment looking for items of value. They took liquor, coins, ornaments, and a cordless telephone. D.W. wore Ms. Ustupski's fur coat when they left. He forgot to take the knife. They went to a nearby plaza where Mr. Mason telephoned a taxi. They got into the taxi with the stolen property. They took the taxi to an apartment building where Mr. Mason dropped off a bottle of Ms. Ustupski's liquor. They then took the cab to a bank where Mr. Mason tried, without success, to use Ms. Ustupski's bank card. While waiting at the bank, D.W. told the taxi driver he was a "pimp" because he was wearing a fur coat. They then went to another apartment building where they intended to leave the stolen property. They unloaded the taxi, but the apartment resident refused to help them when D.W. told him that he had killed someone. They then walked back to the house party. En route, Mr. Mason disposed of his blood-soaked pants. D.W. gave Mr. Mason another pair of pants (D.W. had been wearing two pairs of pants). At the party they gave various versions of where they had been and where the stolen property came from. D.W. continued to wear Ms. Ustupski's fur coat and repeatedly said he was a pimp. Later that day some of the property was sold and some was given away, including items given to their mothers as Mother's Day gifts. 12 Ms. Ustupski's body was discovered around noon on May 9, She had sustained multiple bruises and abrasions and additional knife wounds. The garbage bag containing the knife was found near her body. Ms. Ustupski had four children, eleven grandchildren and five great-grandchildren. She had many friends in the community. 13 Mr. Mason was arrested in the afternoon of May 10, Counsel for Mr. Mason advised the court that Ms. Ustupski's murder has been labelled the "Mother's Day Murder" by the press and it is notorious in Durham Region, including the allegation that D.W. kicked Ms. Ustupski's body. 15 Crown counsel argues that the jury pool for D.W.'s trial would be tainted by the publication of the proceedings against Mr. Mason. He suggests that potential jurors would form an opinion about D.W.'s guilt or innocence based on media reports published less than two months before jury selection. He says that some of the evidence underlying the agreed statement of facts was challenged as to admissibility at D.W.'s preliminary hearing and might not be admitted at D.W.'s trial. He did not, however, specify which aspects were challenged. He argues that there is no reasonable alternative to a ban of publication because it is too close to jury selection for a sunset clause to be effective, a change of venue would be very difficult for D.W., a young person, who should be near his family during such a serious trial, and inconvenient for witnesses for the Crown and defence, and a challenge for cause would not likely pass the air of reality test in R. v. Sherratt 1. Finally, the Crown argues that a significant amount of evidence cannot be published anyway because of the ongoing ban in relation to D.W.'s preliminary hearing and, therefore, the deleterious effect of a ban in relation to Mr. Mason's sentencing would be minimal. 16 Counsel for D.W. submits that any further pre-trial publicity would render D.W.'s trial unfair. He argues that Whitby and Oshawa are "small towns" and the jury pool would be tainted.

5 He points out that there will be only a short period of time between Mr. Mason's plea and the commencement of D.W.'s trial and submits that D.W. should not face the prospect of going to trial with certain facts having already been presented to the public. He adds that D.W.'s involvement in the offence is not merely peripheral or incidental. 17 Counsel for Mr. Mason says that his client is remorseful and does not want Ms. Ustupski's family to be inconvenienced by a change of venue in relation to D.W.'s trial. As noted earlier, he advised the court that this offence is known as the "Mother's Day Murder" and it is well known in the Durham Region. He submits that the usual alternatives set out in Dagenais 2 would not result in a fair trial for D.W. 18 Counsel for the Toronto Star and Oshawa Today underlines the strong language used by the Supreme Court of Canada in Dagenais. He submits that the Crown seeks too broad a remedy with very little by way of an evidentiary foundation. He submits that a ban would be unconstitutional in the present context. He points out that D.W. has never been named in the media as a result of the operation of the Youth Criminal Justice Act. He suggests that a short sunset clause combined with a challenge for cause will ensure that D.W. has a fair trial. He adds that publication of the fact that submissions were made in court concerning a ban on publication would not prejudice D.W.'s trial if reference to the Agreed Statement of Facts was not permitted. He submits that the public should know about the Crown's application to ban publication. 19 Counsel for the Toronto Sun argues that jurors today are intelligent and conscientious, and perform their duties in accordance with their oath and judicial instructions. He notes that the Crown led no expert evidence to support a ban and argues that the Crown's application is based on conjecture. He suggests that a challenge for cause and a strong direction from the court is a reasonable alternative. He submits that if a ban is imposed it should be as narrow as possible and it should allow reporting for one day. 20 All counsel referred the court to various authorities. 21 The seminal case with respect to the current law in relation to restricting dissemination of information with respect to criminal proceedings is Dagenais. The Supreme Court underlined that the right to a fair trial and the right to freedom of expression (including freedom of the press) are paramount values, recognized in the Charter, and essential attributes of a fair and democratic society. The court noted that trial judges have the discretion to direct that notice of applications to ban publication be given to the media. Given the importance of the rights involved, this court followed that suggestion. 22 Chief Justice Lamer, writing for the majority, established a framework for applications of this nature. The onus is on the applicant. A publication ban to preserve trial fairness is only appropriate if the applicant demonstrates that a ban is necessary to prevent a real and substantial risk to the fairness of a trial because reasonably available alternative measures would not prevent such a serious risk, and the salutary effect of a ban outweighs the deleterious effect. The court indicated that remote or speculative dangers would not suffice. The court observed that alternative measures could include the adjournment of a trial, a change of venue, sequestering of jurors, challenges for cause and/or strong judicial direction to a jury. The Chief Justice

6 emphasized the law's firm acceptance that jurors act in accordance with their oath and the court's instructions. The court also indicated that if a ban is necessary, it must be as narrow as possible. 23 In Dagenais the court was dealing with a different factual context than the case at bar. Nevertheless, the Chief Justice made the following observation: "More problematic is the situation in which there is a period ofsustained 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 wasimplanted by a steady stream of publicity." 3 [emphasis added] 24 This court is not aware whether there has been "sustained" publicity or a "steady stream" of publicity in relation to the case at bar. Given that the onus is on the applicant, the court must assume that there has not. Nevertheless, given the relatively short period of time between the anticipated plea and the commencement of D.W.'s trial, the court will keep in mind Chief Justice Lamer's concern about impressions that cannot be consciously dispelled. 25 In C.B.C. v. N.B. 4, the Supreme Court revisited the issue. Although again considering a different context, LaForest J., speaking for the court, stated: "It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution... The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminatingnews, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being." 5 [emphasis added] 26 LaForest J. saw fit to quote Lord Shaw of Dunfermline as follows: "Where there is no publicity there is no justice. Publicity is the very soul of justice." 6 [emphasis added] 27 In R. v. Mentuck 7 the Supreme Court confirmed the test established in Dagenais although the test was restated in more general terms. The reference to a real and substantial risk to "the fairness of a trial" was changed to such a risk to "the proper administration of justice" (which includes trial fairness). The court emphasized that the onus is on the applicant and that a sufficient evidentiary record is required to allow the proper exercise of judicial discretion and judicial review.

7 28 Recently, in Toronto Star Newspapers Ltd. v. Ontario 8, again in a different context, the Supreme Court again confirmed the Dagenais/Mentuck test. Fish J., writing for the court, commenced the court's reasons by stating: "In any constitutional climate, the administration of justice thrives on exposure to light - and withers under a cloud of secrecy." 9 29 The court declared that court proceedings are presumptively "open" in Canada and that access to information regarding such proceedings will be banned only when disclosure will subvert the ends of justice or unduly impair its proper administration. An applicant must allege a serious and specific risk that is real, substantial and grounded in the evidence although a high degree of predictive certainty is not required. In considering an application to limit freedom of expression (including freedom of the press) in relation to court proceedings, the court must exercise its discretion in a flexible and contextual manner. 30 Counsel referred the court to a number of decisions by trial judges in similar, but not identical, contexts. Some of these cases provide guidance. 31 In R. v. Wilson 10, pre-dagenais, Valin J., sitting in North Bay, was advised that the accused intended to plead guilty to murder based on an agreed statement of facts that repeatedly mentioned the involvement of another person whose trial, on a separate indictment, was to take place later. Unfortunately, the decision does not indicate how much later. Valin J. declined to ban publication of the other person's name on the basis that alternative measures such as challenge for cause or change of venue were available if needed. 32 In R. v. Peebles 11, Zuraw J., sitting in Hamilton, was presented with an agreed statement of facts on a plea to robbery that set out the involvement of a co-accused. On application by counsel for the co-accused, supported by counsel for the Crown and counsel for Mr. Peebles, for a ban on publication of the co-accused's name and his participation in the offence, Zuraw J. held, citingdagenais, that a ban in relation to the co-accused's name only would be appropriate. The ban was limited to Ontario and it expired upon commencement of the co-accused's trial, when the trial judge would have jurisdiction to deal with the issue. The time period between the plea and the co-accused's trial is not indicated. 33 In R. v. J.P.G. 12, Blishen J., sitting in Ottawa, was four weeks into a trial in youth court concerning a number of young persons charged with manslaughter, kidnapping, aggravated sexual assault and assault bodily harm, when an application was made by counsel for the youths and by counsel for certain adults, separately charged with the same offences, for a ban of publication of the evidence due to a concern about trial fairness. The adults' preliminary hearing was set to commence seven months later and the estimated time to their trial was likely a year or more after the preliminary hearing. Blishen J. noted that the adults' names had already been published during the first four weeks of the trial and ruled that the risk to trial fairness was remote and speculative given the length of time to their trial. 34 In R. v. Murrin 13, Oppal J., sitting in Vancouver, was asked to ban publication of all evidence, submissions and arguments in relation to a murder trial because one of the witnesses

8 was facing trial in relation to the same allegation, at the earliest seven to eight months later. Crown counsel on both trials supported the application. It was argued that some of the evidence at the first trial might be inadmissible at the second trial and it would be unfair for the witness' testimony to be published prior to his trial. Oppal J. dismissed the application on the basis that much of the evidence had already been broadcast, the second trial would not start until at least seven to eight months later and public knowledge is fleeting in matters of such nature, and appropriate alterative measures were available with respect to jury selection. Oppal J. noted that other trials have proceeded uneventfully despite considerable pre-trial publicity and indicated that the banning of broadcasting or publication of the whole of a trial, albeit temporarily, ought to be ordered, if ever, only in the rarest of cases. 35 In R. v. Lake 14, McCombs J., sitting in Toronto, dealt with a similar application where the witness' own murder trial would not take place until at least a year later. McCombs J. imposed a ban on publication to commence seven days after the completion of the first trial and to continue until the completion of the witness' own trial. McCombs J. noted: "It must be recognized... that as the time for Mr. R.C.'s trial comes closer, the risk to the fairness of his trial will increase if media reports of his compelled testimony at this trial are permitted." In R. v. Brown 16, Trafford J., sitting in Toronto, on a highly publicized murder/manslaughter trial, received an application from the Crown to ban publication with respect to a mid-trial stay of proceedings directed by the Crown in relation to one of the co-accused who was charged with manslaughter. The Crown also sought to ban publication of all information relating to the prosecution of the same accused. Trafford J. ultimately concluded that the court could release for publication a judicial summary of information relating to the prosecution that would not present a real and substantial risk to the fairness of the ongoing trial. In his analysis he quoted M. David Lepofsky in "Open Justice: The Constitutional Right to Attend and Speak about Criminal Proceedings": "Even a temporary news blackout, where duration is unpredictable and could extend over months, is fundamentally inconsistent with free speech and free press. News is news precisely because of its immediacy." In R. v. Tutin 18, Schuler J., sitting in Yellowknife, dealt with a publication ban application when the accused pled guilty to accessory after the fact in relation to a murder, based on an agreed statement of facts that included evidence that had been led at the preliminary hearing of the persons charged with murder. The murder trial was to commence four months later. Schuler J. noted that the population of Yellowknife is about 16,000 to 18,000 and the population of the entire Northwest Territories is about 37,000. The ban was sought by Crown counsel and the respective defence counsel. There had been considerable publicity about the case. 38 Schuler J. cited Chief Justice Lamer's passage in Dagenais with respect to impressions that cannot be consciously dispelled by jurors as a result of sustained publicity. The court was concerned about the effect of publication, close to the trial date, of a version of facts that, as part

9 of the plea process, had been accepted by the Crown and the court. Of great concern to the court was the relatively small population in Yellowknife and the Northwest Territories and how widely information disseminates there. 39 Schuler J. canvassed the usual alterative measures. The court found that strong jury instructions would not overcome the impressions created by considerable publicity. A change of venue was unrealistic because news of the facts admitted upon a plea would be widely disseminated throughout the Northwest Territories. A challenge for cause was not a solution because a significant portion of the jury panel would have to be excused in any event because the Crown intended to call 30 witnesses who were connected to Yellowknife, the defence and Crown had a total of 80 pre-emptory challenges, and many potential jurors would not be able to sit for a four week trial. Further, the possibility of a severance existed. 40 In relation to proportionality, Schuler J. found that most of the information taken at the plea would be banned from publication anyway because of the statutory ban in relation to the murder preliminary hearing. The court also found that completion of the murder trial, about five months later, would revive public interest in relation to the plea to accessory after the fact and it would be newsworthy again. 41 Schuler J. dismissed the application. 42 In R. v. Jacobson 19, on October 4, 2004, D. Ferguson J., sitting in Whitby, severed an accused from a joint murder trial after the completion of that accused's case but before the commencement of the case for the co-accused. After the completion of the co-accused's trial on November 14, 2004, the Crown applied for a ban of publication in relation to the evidence led during the joint trial. Details of that evidence had been reported during the joint trial. The Crown argued that publication should be banned pending the second trial to allow potential jurors' memories to fade because some of the evidence led by the Crown at the first trial would be inadmissible at the second trial and because all of the evidence likely to be led at the second trial was led during the joint trial. The trial of the other accused was not expected to commence until sometime in Ferguson J. granted the application but allowed publication in a particular newspaper in a different judicial region and in any publication intended primarily for judges or lawyers. The court also specified that the ban did not apply to the sentencing of the accused whose trial had been completed nor to evidence called in the presence of the jury in that case, as long as the other accused was not mentioned and publication occurred on or before December 9, 2004 (which was six days after the order). 43 In R. v. Penasse 20, Durno R.S.J., sitting in Orangeville, ordered a publication ban, on consent, after an accused pleaded guilty to murder. The application was made by a co-accused who did not plead guilty. Counsel for the applicant, the Crown, the accused who pleaded guilty, the Toronto Star and the Toronto Sun all consented to the terms of the order. 44 The applicant's trial was scheduled to commence four months later. Commencing four days after the making of the order, publication of any information in relation to the accused who pleaded guilty other than the fact he pleaded guilty to first degree murder, the sentence imposed, and the date and place of his plea and sentencing, was prohibited. During the intervening four days, publication was permitted but each publisher could publish on one day only, and the only

10 information pertaining to the remaining accused's involvement in the murder that could be published was: the fact another person was also charged with first degree murder in relation to the same death; the other person was scheduled to stand trial in February of 2006; and an order was made banning publication of any further information relating to the other person. 45 The Crown argued that Tutin was contextually similar to the present case and should be followed. 46 Counsel for the Toronto Star and Oshawa This Week argued that Tutin should be distinguished on its facts and, in any event, it was wrongly decided in relation to the effect of the statutory ban with respect to the preliminary hearing. Counsel suggested that the court should follow the earlier cases or, in the alternative, fashion an order similar to the consent order in Penasse. 47 The court agrees that Tutin should be distinguished on its facts. Fundamental to the decision intutin was the small population of Yellowknife and the Northwest Territories. Despite the suggestion that Whitby and Oshawa are "small towns", they are actually cities. The combined population of Whitby and Oshawa is about seven times greater than the population of the Northwest Territories. Durham Region has more than 15 times the population of the Northwest Territories. The contexts are very different. 48 The Court also agrees, with respect, that it is not bound by the statutory non-publication order in relation to D.W.'s preliminary hearing. Regardless whether the same information was heard at D.W.'s preliminary hearing, any evidence led in relation to Mr. Mason's plea and sentencing is just that. It falls to this court to regulate the conduct of this trial, including publication. It is for that very reason that the Crown's application is necessary if it wishes to restrict publication in relation to this proceeding. 49 That having been said, the court is concerned due to the very short time period between the plea date and the commencement of D.W.'s trial. None of the cases cited dealt with such a short period. The court's concern is heightened by the fact that the murder of Ms. Ustupski is notorious in Durham Region and has been nicknamed the "Mother's Day Murder". The label is memorable. Further, D.W.'s alleged role in the murder is certainly not peripheral. The Agreed Statement of Facts indicates that he hit Ms. Ustupski over the head with a flowerpot, he got the knife from the kitchen, he punched and kicked Ms. Ustupski's body, he left the knife in the apartment, he wore Ms. Ustupski's fur coat and joked about it, he returned to "party on" at the house party afterwards (with Ms. Ustupski's property), and he gave some items belonging to Ms. Ustupski to his mother for Mother's Day. 50 Bearing in mind that the test to be met does not require a high degree of predictive certainty, the court finds that publication, less than two months before jury selection for D.W.'s trial, of information about D.W.'s role in the murder and subsequent indignities upon the body and property of Ms. Ustupski, a 74 year old great-grandmother, living alone in a retirement residence, and the connection to Mother's Day, would create a real, substantial and serious risk to the fairness of D.W.'s trial which would seriously impair the proper administration of justice.

11 51 Adjourning D.W.'s trial is not a reasonable alternative because it is particularly important not to delay the trial of a young person given section 11(b) of the Charter and the difference between a young person's perception and an adult's perception of the passage of time. 52 Changing venue is not a reasonable solution because publication by the Toronto Star and the Toronto Sun would suggest a venue outside the GTA. A distant change of venue would mean significant displacement for the accused young person and his family. Further, it would mean significant displacement for Ms. Ustupski's family. 53 Sequestering jurors is not useful in this case because the plea is taking place prior to jury selection. 54 A challenge for cause procedure may not be effective in dealing with unconscious bias as noted by Chief Justice Lamer in Dagenais. Although strong impressions may be created by sustained publicity, they can also be created by egregious and memorable facts combined with insufficient time for abatement from memory. In this case that risk is real, given the nature of D.W.'s alleged involvement. Jurors may not be able to consciously dispel impressions resulting from pretrial publicity so soon before the trial. 55 For the same reason, strong judicial direction may be ineffective. 56 In Brown, Trafford J. was able to provide information for publication by release of a judicial summary. In Toronto Star, the court was able to release information after judicial editing. 57 This court has, therefore, reviewed the Agreed Statement of Facts and edited it to remove any reference to D.W.'s alleged role in the murder. Furthermore, the court has edited out references to any witnesses who could potentially corroborate the account to which Mr. Mason intends to agree. The court has not edited out information that is unlikely to be in dispute at D.W.'s trial (for example, Ms. Ustupski's activities on the day before her death or the nature of her injuries) because such facts are neutral with respect to whether D.W. was a participant, nor has the court edited out information that comes directly from Mr. Mason about his own role in the murder. 58 In the result, a slightly incomplete account of Mr. Mason's self-confessed involvement in the murder along with a reduced amount of neutral information remains for publication. About two-thirds of the Agreed Statements of Facts is not edited out. 59 The court proposes to ban, within Ontario, the publication, broadcast or electronic dissemination of the edited out portions of the Agreed Statement of Facts as well as any other information relating to D.W.'s alleged involvement in Ms. Ustupski's death, until a verdict is given at D.W.'s trial, except: 1.

12 2. Another person is charged with second degree murder in relation to the death of Mr. Ustupski. The other person's trial is scheduled to commence in early The court hearing Mr. Mason's plea and sentencing has prohibited publication of any information relating to the other person's alleged involvement in Ms. Ustupski's death until the completion of that person's trial. 60 The court also proposes to ban publication of the evidence, submissions, and ruling in relation to the application for a publication ban, except as noted above, for the same period of time. 61 The court will not ban the publication, broadcast or electronic dissemination of evidence or submissions at Mr. Mason's plea or sentencing that do not relate to the alleged involvement of D.W., provided that such publication, broadcast or electronic dissemination occurs on or before November 25, 2005, and such publication, broadcast or electronic dissemination occurs on one day only in relation to each individual publisher, broadcaster or electronic disseminator. 62 The ban will not apply to any publication intended primarily for judges or lawyers. 63 The salutary effect of the proposed ban is the protection of D.W.'s right to a fair trial, without undue delay, as well as his interest in having access to his family during the trial. Further, the interests of Ms. Ustupski's family and the broader community, to have the trial heard in Durham Region, are protected (subject, of course, to the views of the trial judge, should an application be made for a change of venue). Further, the public will learn immediately about most of the details of Mr. Mason's plea and sentencing and they will be informed of the nature and length of the publication ban. 64 The deleterious effect of the proposed ban is the restriction on the public's immediate right to know the banned information. On the other hand, the ban is narrow and, given that D.W.'s trial is expected to start soon, it may be that much or all of the restricted information may soon become public knowledge when evidence is reported during D.W.'s trial. In any event, the delay will not be lengthy and public interest in the banned information may revive when D.W.'s trial ends. 65 In the court's view, the salutary effect of the proposed ban outweighs the deleterious effect. 66 For ease of reference, the court has attached a copy of the Edited Statement of Facts as Appendix "A" and a copy of the Agreed Statement of Facts as Appendix "B". [Editor's note: Appendix A and B were not attached to the copy received from the Court and therefore are not included in the judgment.] 67 Order accordingly. C.F. GRAHAM J. cp/ci/e/qw/qlmxf/qlhcs

13 1 R. v. Sherratt, [1991] 1 S.C.R. 509 (S.C.C.). 2 Re. Dagenais et al. and Canadian Broadcasting Corp. et al., (1994) 94 C.C.C. (3d) 289 (S.C.C.). 3 footnote 2 at p Canadian Broadcasting Corp v. New Brunswick (Attorney General), (1996) 110 C.C.C. (3d) 193 (S.C.C.). 5 footnote 4 at p Scott v. Scott, [1913] A.C. 417 at 477 [H.L.]. 7 R. v. Mentuck, (2001) 158 C.C.C. (3d) 449 (S.C.C.). 8 Toronto Star Newspapers Ltd. v. Ontario, [2005] S.C.J. No. 41 (S.C.C.). 9 footnote 8 at p R. v. Wilson, [1993] O.J. No (Ont. Gen. Div.). 11 R. v. Peebles, [1995] O.J. No. 429 (Ont. Prov. Ct.). 12 R. v. J.P.G., [1996] O.J. No (Ont. Prov. Ct.). 13 R. v. Murrin, [1997] B.C.J. No (B.C.S.C.).

14 14 R. v. Lake, [1997] O.J. No (Ont. Gen. Div.). 15 footnote 14 at p R. v. Brown, (1998) 126 C.C.C. (3d) 187 (Ont. Gen. Div.). 17 Toronto, Butterworths, 1985 at p R. v. Tutin, [2004] N.W.T.J. No. 40 (N.W.T.S.C.). 19 R. v. Jacobson, [2004] O.J. No. 4134, (S.C.O.). 20 R. v. Penasse, (2005) (unreported) (S.C.O.).