IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Basi |
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2006 BCSC 2084 |
Date: 20060328
Docket: 23299
Registry: Vancouver
Regina
v.
Udhe Singh (Dave) Basi
Bobby Singh Virk
Aneal Basi
Before: The Honoruable Madam Justice Bennett
Ruling on Application to Vacate or Vary Sealing Orders
In Chambers
March 28, 2006
| Counsel for the Crown |
W.S. Berardino, Q.C.,
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| Counsel for the Defendant Udhe Singh (Dave) Basi |
P.M. Bolton, Q.C.
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| Counsel for the Defendant Bobby Singh Virk |
K. McCullough |
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| Counsel for the Defendant Aneal Basi |
J. Doyle |
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| Counsel for The Sun, The Province, Victoria Times |
S. Dawson |
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| Counsel for CBC and CityTV |
H. Maconachie |
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| Counsel for The Globe and Mail |
R. McConchie |
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Vancouver, B.C. |
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[1] THE COURT: The applicants are The Globe and Mail newspaper, Mark Hume, (a reporter), the Canadian Broadcasting Corporation, CityTV, BCTV, and The Vancouver Sun, The Province and Victoria Times Columnist newspapers, which I will refer to collectively as “the media”.
[2] The media seek to vacate or vary sealing orders made by the Honourable the Associate Chief Justice Dohm relating to four search warrants issued in this case on dates in July, August, September and October 2004. At some earlier point, parts of the documents were released to the press on non-disclosure undertakings. I am not aware if reasons were given by the Associate Chief Justice at that time and, if they were, I have not seen them. I assume that the application, as this application, is taken in the context of s. 487.3 of the Criminal Code.
[3] Charges have been laid against the three accused by way of a direct indictment and they have elected to be tried by a judge without a jury. The media has a vetted copy of the Informations to Obtain a Search Warrant, (“the ITO”), in relation to the four warrants, but counsel for the media and their clients are bound by undertakings not to disclose the information to the public.
[4] The Crown and the defence oppose the application by the media. They submit that there is information contained in the search warrants that, if released, could jeopardize the evidence at trial. The submission is that witnesses will hear what other witnesses have said and may change or alter their evidence as a result. They submit that had there been a preliminary inquiry, then there would have been a ban on publication of the evidence of the witnesses pursuant to s. 539 of the Criminal Code. The submission is that the policy reasons behind not publishing the evidence from the preliminary inquiry apply equally to this trial where there has been a direct indictment.
[5] They further submit that I should not, in the interests of justice, permit a public trial in the media before the public trial in the courtroom, which is scheduled to commence June 5, 2006.
[6] The law in this area is straightforward, and other than to refer to the main principles, I do not propose to add to the jurisprudence. There is a presumption of openness in the courts. This presumption applies to search warrants and Informations to Obtain. Public access is only barred if disclosure would “subvert the ends of justice or unduly impair its proper administration.” See: Toronto Star Newspaper v. Ontario, [2005] 2 S.C.R. 188 at para. 4.
[7] Search warrants and Informations to Obtain are not automatically unsealed. However, the burden of establishing why they should remain sealed rests with the party who objects.
[8] There are three interests at issue, two which need to be balanced with the third interest, the s. 2(b) Charter rights of freedom of the press. These are the general interest in the court’s process and the right of the accused to a fair trial pursuant to s. 7 and 11(d) of the Charter of Rights and Freedoms. The Crown and the defence submitted that the accused should not be subjected to unfair publicity prior to trial. They submit that the accused should only be required to face the evidence which is called at trial and upon which there is cross-examination. They point out that the material sought will eventually be available to the public in a few months. The defence is very concerned over the possibility of witness tainting, as noted above.
[9] The Crown and defence point to several passages in the Informations to Obtain which set out the anticipated evidence of certain witnesses. These passages establish the basis for the concern raised. Counsel for the Crown and defence refer to R. v. Flahiff (1998), 123 C.C.C. (3d) 79 (Que.C.A.), where the court held that trial fairness also includes the fairness of the process in which the trial is conducted. In that case, the evidence sought to be suppressed was the hearsay statement of an accomplice which was relied upon as grounds for the search warrant. The court held that an accused should not have to face trial in the wake of unfair publicity, nor should triers of fact be put in the position of trying to banish unfair publicity from their minds. Given that I have read the Informations to Obtain, this latter point is obviously not applicable.
[10] In Flahiff, the court, in sealing the warrant information, relied on the fact that the evidence contained in the warrant would be banned from publication when it was heard at a preliminary inquiry, even though the evidence at that point would have been both under oath and cross-examined.
[11] The applicant’s submit there is no reason not to unseal the search warrants and point to much of the law which I have already summarized very briefly above. They point out there is no jury to be concerned about. Further, this is likely to be a long trial and a number of witnesses will testify and their evidence will be reported during the trial and that witnesses will have the opportunity to read and hear about this testimony.
[12] In the alternative, and clearly as a last resort, counsel for The Globe and Mail submitted that I could order delayed release of the information; for example, release the information to the media but order they cannot publish it until the witness in question has testified.
[13] Clearly, the conflicting rights must be balanced in the context of the law, and in particular what is now referred to as the Dagenais/Mentuck test. See: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 385; R. v. Mentuck, [2001] 3 S.C.R. 442. I must balance the freedoms associated in s. 2(b) of the Charter with the important right of the accused to have a fair trial. A fair trial includes that persons who are giving evidence do not have their evidence tainted, even inadvertently, through the publications of their statements or the statements of others, prior to trial.
[14] I have read the affidavits and most of what is contained therein may be accessed by the applicants, which, subject to the editing that I propose, also relieves them of the undertakings they have given. In my view, this will achieve the important balance necessary. The applicants will have broad access to the information; however, the evidence of the potential witnesses will be preserved for the trial itself. The applicants may receive largely unvetted copies of the Informations to Obtain in relation to the four search warrants in question. I add that I have not been provided with and have therefore not read any attachments or appendices mentioned in the Informations to Obtain. My order does not include releasing any information contained therein unless it has already been released or is otherwise covered by this order. For example, some of the appendices are simply copies of earlier Informations to Obtain. However, without seeing all of these documents, I am not prepared to include them.
[15] The July Information to Obtain: All information relating to private bank account numbers, telephone numbers, email addresses and the home addresses of the accused or witnesses will be deleted from the affidavit as they previously have been. Paragraphs 32, 33 and 47 are subject to the same undertakings as the material received earlier by the applicants. The applicants will be relieved of their undertakings with respect to paragraphs 32 and 33 after Erik Bornman has testified. Paragraph 47 may be released at the end of the trial. This information is not relevant to the current charges and, in my view, can only lead to unfair publicity. Otherwise the contents of the July search warrant and Information to Obtain is released to the applicants with no restrictions on publication other than that curtailed by legal advice received from their counsel. In other words, this order is not a judicial condoning of publishing the material but simply an order that will not prevent its publication except as stated.
[16] The August Information to Obtain: Again, private bank account numbers, telephone numbers, email addresses and home addresses of any accused or witnesses will be deleted from the affidavit. Paragraph 51 is the same as paragraph 47 and subject to the same terms as above.
[17] Counsel for the accused have today raised concern over publishing paragraph 41. This paragraph will remain sealed, however, the applicants may have a copy of this paragraph, subject to the undertakings as previously given. If the applicants decide, after reviewing the paragraph that they still wish to publish it, they may, as agreed by counsel, make a further application in writing. Otherwise the content of the Information to Obtain is released to the applicants with no restrictions on publication, as noted above.
[18] The September Information to Obtain: Again, private bank account numbers, telephone numbers, email addresses and home addresses of any accused or witness will be deleted from the affidavit. Paragraph 52 is the same as paragraph 51 and 47 and subject to the same terms as above. Otherwise the contents of the Information to Obtain is released to the applicants with no restrictions on publication as noted above.
[19] The October Information to Obtain: Again, private account numbers, telephone numbers, email addresses, credit card numbers and home addresses of any accused or witness will be deleted from the affidavit. The following paragraphs are subject to the undertakings previously given by the applicants: Paragraph 8, 10, 25, 28, 29, 30, 31 and 35. Paragraphs 8 and 29 relate to the evidence of Erik Bornman and may be released once Mr. Bornman has testified. Paragraphs 10, 25, 28, 31 and 35 relate to the evidence of Brian Kieran and may be published once Mr. Kieran has completed his evidence. Paragraph 30 relates to the evidence of Gary Rennick and may be released once Mr. Rennick has testified. Paragraph 55 in the ITO is the same as paragraph 47, 51 and 52 in the prior Informations to Obtain. It will not be published until the trial is over. Otherwise, the contents of the Information to Obtain is released to the applicants with no restrictions on publications as noted above.
[20] I would ask that the Crown, Mr. Berardino, prepare the documents and then edit them as above and prepare fresh undertakings for the applicants to sign in relation to this order. Mr. Berardino will not be required to commence the editing until after he has received an edited copy of these reasons.
[21] Finally, the material, subject to the undertakings, is not to be released to anyone except the applicant’s counsel after they have signed the undertakings.
“E. Bennett J.”
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The Honourable Madam Justice Bennett