Date: 19990629 Docket: XO50473 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: HER MAJESTY THE QUEEN AND: BCTV, a division of WIC Television Ltd. and DEBORRA HOPE _______________________________________________________________ CONTEMPT PROCEEDINGS AND SENTENCING OF THE HONOURABLE MADAM JUSTICE S. STROMBERG-STEIN _______________________________________________________________ Counsel for the Applicant: Ronald B. Caryer Counsel for the Respondents: Daniel W. Burnett Place and Date of Hearing: New Westminster, B.C. June 25, 1999 [1] On June 25, 1999, counsel for BCTV, a division of WIC Television Ltd., admitted that BCTV was in criminal contempt of court for a broadcast it aired with respect to Terry Driver on November 5, 1998. [2] At the request of both counsel, the proceedings against Deborra Hope have been dismissed. Counsel have characterized her role as inadvertent because she was simply a newsreader and had no role in preparing the story. [3] These reasons address the appropriate sentence that should be imposed in the circumstances. It is necessary to set out the background in detail in order to provide a context for the determination of an appropriate sentence. Background [4] On October 14, 1995, in Abbotsford, Tanya Smith was beaten, sexually assaulted, and thrown into the Vedder River where she drowned. Misty Cockerill, her friend, was badly beaten. For four months following these attacks the police and the public were taunted by telephone calls and by the removal and defacing of Tanya Smith's headstone by a person who came to be known as "the Abbotsford killer". On February 21, 1996 a package was thrown through the window of a residence. The outer wrapping indicated the package was from the "Abby Killer" with a direction to call 911. Terry Driver's fingerprint was later identified on the sticky side of tape used to secure the package. Inside the package was a wrench, a note, newspaper clippings about two unsolved homicides and defaced photographs of Tanya Smith and Misty Cockerill. [5] Terry Driver was convicted of the first degree murder of Tanya Smith and the attempted murder of Misty Cockerill on October 16, 1997 by Oppal J. sitting without a jury. That trial attracted widespread publicity and Terry Driver was dubbed the "Abbotsford Killer" by the media. [6] Beginning in October, 1998 I presided over a judge and jury trial where Terry Driver was accused of attacking three women in Abbotsford in 1994 and 1995. The crimes of sexual assault causing bodily harm, sexual assault, aggravated sexual assault and robbery remained unsolved until 1996 when the Abbotsford police came into possession of the note in the Smith/Cockerill investigation. The information in the note enabled police investigators to search their files and identify Terry Driver as the perpetrator of these crimes. [7] Jury selection occurred on October 27, 1998. At the request of both Crown and defence potential jurors were challenged for cause. Jurors were pre-screened and carefully selected to ensure they were free from partiality or bias given the notoriety of Terry Driver. The challenge for cause process was a more time-consuming jury selection process than is usual. It is of note that eight of the twelve jurors already knew of Terry Driver by name. Interim Publication Ban [8] An interim publication ban was made at jury selection to protect the right of Mr. Driver to a fair trial. The interim publication ban was made in the following terms: This Court orders that the identity of the accused and any connection to his identification, trial or conviction with respect to the murder of Tanya Smith and the attempted murder of Misty Cockerill shall not be published in any document or broadcast in any way until the jury retires for deliberations. [9] The matter was set over to October 29, 1998 to allow interested parties to make representations and submissions to set aside or vary the order. The Hon. Lloyd McKenzie, Information Officer of the British Columbia Supreme Court and Court of Appeal, posted a notice of the hearing in the media room at the Vancouver Law Courts. Representatives of CKNW Radio, Global Television, The Vancouver Sun and The Abbotsford News appeared and made submissions to rescind the publication ban. Publication Ban Rescinded on November 2, 1998 [10] Media representatives were invited to make representations on October 29, 1998. At that hearing BCTV was not represented, although Ms. Maconachie, who represented CKNW, later appeared on behalf of BCTV. [11] On November 2, 1998 the ban on publication was rescinded for the reasons outlined in my decision of November 2, 1998: R. v. Driver, [1998] B.C.J. No. 3137 (B.C.S.C.). [12] Given the scope of the prohibitions inherent in the law of contempt, I rescinded the publication ban concluding that any risk to the fairness of the trial could be overcome by measures other than a publication ban. I held that the publication ban requested by the defence was redundant because regardless of whether a publication ban was in place the media were prevented from disseminating any information identifying the accused in connection with the investigation of, trial or conviction for, the murder of Tanya Smith and the attempted murder of Misty Cockerill, unless that information was divulged as part of the evidence at trial. Further, the media were prohibited from publishing any details from proceedings which occurred in the absence of the jury. Any media report of the nature described would be a violation of the law of contempt because it would be information which reflected adversely upon the conduct or character of an accused person, or suggested directly or indirectly that he had been previously convicted of any offence. [13] Recognition was given to the role of the media in informing the public, and of the right of the public to be informed, of court proceedings. However, weight was also given to the public interest in ensuring that an accused person has a fair trial thus avoiding unnecessary public expense in the event of a mistrial. I commented that there was a heavy onus on the media to conduct themselves responsibly. The removal of the publication ban relied heavily on the media taking responsibility to ensure any reporting was accurate and fair and would not interfere with the accused's right to a fair trial. The media were informed that any misconduct or violation would result in contempt proceedings. [14] In addition to filing written reasons, I read, in the presence of a number of media representatives, paragraphs 15 to 18 from those reasons in order to ensure there was no misunderstanding: [15] Although the publication ban will be rescinded, there is a heavy onus on the media to conduct themselves responsibly. The removal of the publication ban relies heavily on the media taking responsibility to ensure any reporting is accurate and fair, and will not interfere with the accused's right to a fair trial. While it is recognized the media has a role in informing the public, and the public has a right to be informed of court proceedings, the public also has an interest in the ability of an accused to have a fair trial and in avoiding unnecessary public expense in the event of a mistrial. Any misconduct or violation by the media will result in contempt proceedings. [16] I conclude any risk to the fairness of the trial can be overcome by measures other than a publication ban. In this case, a publication ban is not necessary because the law of contempt is a reasonable alternative measure which exists to protect the fairness of the trial. A publication ban is redundant having regard to the law of contempt. [17] To ensure there is no misunderstanding by the media, I want to make it perfectly clear that publication before or during the trial, of any statements, comments or information which reflects adversely upon the conduct or character of the accused, or suggests directly or indirectly that he has been previously convicted of any offence, including the murder of Tanya Smith and the attempted murder of Misty Cockerill, is prohibited by the law of contempt until the jury begins deliberations, unless that information becomes evidence at this trial. [18] The publication ban made on October 27th, 1998 is rescinded. Commencement of Trial and BCTV Broadcast on November 5, 1998 [15] Prior to the commencement of the trial, a three day voir dire was held concerning the admissibility of the note. [16] The trial commenced on November 5, 1998 at 10:00 a.m. On the same day the trial commenced, the BCTV 6:30 a.m. newscast carried coverage of the trial. A bold printed headline appeared on the screen, "WHAT'S MAKING NEWS/ ABBOTSFORD KILLER BACK IN COURT", and reporter Deborra Hope stated: To give you a head start on your day, here's what will be making news across the province today: Convicted murderer Terry Driver's back in court. Driver was convicted of killing Tanya Smith and attempting to murder her friend Misty Cockerill. Today he faces charges of sexual assault stemming back to 1994. Publication Ban of November 9, 1998 [17] The question of the publication ban was next before me on November 9, 1998. It had come to my attention that there had been at least two possible violations of the law of contempt. One concerned the television broadcast on November 5, 1998 on the BCTV morning news. The other concerned a publication in The Vancouver Sun. [18] Defence counsel applied to impose a ban on publication in the original terms, and a ban on publication of the fact of any publication ban. Crown counsel, who had originally taken no position with respect to a publication ban, now supported the defence application. BCTV was represented by counsel. [19] On November 9, 1998 I commented on the questionable effectiveness of my previous order, the reliance on the law of contempt, and the inability of certain media representatives to conduct themselves properly: R. v. Driver, [1998] B.C.J. No. 3139 (B.C.S.C.). I concluded there was a real and substantial risk to the fairness of the trial that could not be overcome other than by a complete publication ban in the original terms, imposed up to the point in time when the jury began deliberations. Mistrial Application [20] On November 10, 1998 I characterized my order banning publication as a complete media blackout until the jury began deliberations. [21] A mistrial application was made by the defence who argued that due to the media publications by BCTV and The Vancouver Sun the accused's right to a fair trial had been jeopardized because the only issues at trial were anticipated to be identification and the credibility of the accused. Concern was expressed that outside influences reflecting on the character of the accused could affect the impartiality of the jury. [22] I dismissed the mistrial application as I was satisfied that sufficient precautions had been taken to ensure the jurors were impartial and were likely to remain impartial. Actions of BCTV [23] A letter of apology from BCTV News Director Steve Wyatt was received by the Court on November 10, 1998. A letter of apology was subsequently received from BCTV Morning News Producer Randene Neill, the junior employee who wrote the script for the news anchor Deborra Hope. [24] Ms. Neill generated the story from a news wire service called Broadcast News (B.N.) which originates in Ontario. Although blame has been cast on Ms. Neill, senior management recognizes its accountability and responsibility to properly supervise junior employees. Apparently BCTV has a system in place to avoid errors of this sort including supervision, regular legal seminars and the availability of legal counsel to provide advice at all times. Following this incident, a special legal seminar on contempt was held for the morning news staff. BCTV points out that this system has been effective as they have only been found in contempt on one prior occasion: see R. v. Bengert (1979), 15 C.R. (3d) 215 (B.C.S.C.). Sentence [25] A delicate process is involved in balancing freedom of expression and the public's right to be informed about the criminal justice system on the one hand, with an accused's right to a fair trial on the other. The Court must be able to rely on the media to act responsibly so the public can be kept informed of the judicial process and an accused can have a fair trial. [26] With the right of the media to freedom of expression flows responsibility. If the media demonstrates irresponsibility, the Court must step in and curtail press freedom in the interests of justice, to ensure an accused's right to a fair trial is not jeopardized. This is not an action that would be taken lightly. [27] The onus is on the media, before reporting anything, to ensure they are in compliance with the law. It is no answer to blame a junior employee. There is an onus on senior management to properly supervise and educate junior employees about the principles underlying the criminal justice system, including media rights and responsibilities. [28] It was unfortunate that, in the midst of a very serious trial, the Court and counsel were sidetracked by the irresponsibility of certain of the media. It is fortunate, however, that I was able to conclude there was no jeopardy to the accused's right to a fair trial given all the precautions and steps taken to ensure an impartial jury. A mistrial was not necessitated by the broadcast. [29] Counsel have referred to a number of authorities dealing with the appropriate penalty for media found guilty of contempt: R. v. Bengert, supra; R. v. CHBC Television and Cariboo Press (l969) Ltd. (15 December 1997), Vernon No. 30061 (B.C.S.C.) rev'd. (8 February 1999), Vancouver No. CA024128 (B.C.C.A.); R. v. CHEK TV Ltd. (1987), 33 C.C.C. (3d) 24 (B.C.C.A.); R. v. Daily Courier, a division of Thompson Canada Ltd. and Silk FM Broadcasting Ltd. (26 July 1997), Kelowna No. 35396 (B.C.S.C.); and R. v. Edge, [1988] 4 W.W.R. 163 (B.C.C.A.). The penalties range from a fine, or a fine and costs, in the amount of $500 to $11,500. In some of the cases where a mistrial resulted from the conduct of the media, the fine was in the upper range. [30] It is the position of the Crown that a fine in the range of $2,500 to $5,000 is appropriate to protect the integrity of the judicial process and to censure BCTV. [31] It is the position of BCTV that the penalty should be in the range of $2,000 to $3,000 having regard to the mitigating factors that the contempt was inadvertent and no mistrial resulted. [32] Both counsel have agreed that in lieu of a fine the Court may impose no penalty on the understanding that BCTV will make a contribution, in an amount determined by the Court, to a public legal education society or fund. One such example is the Law Courts Education Society whose mandate is to maintain a bridge between the public and the court system in order to broaden public understanding of the legal system and how it works, and to contribute to the public's understanding of the rule of law and social and civil responsibility. [33] Having regard to all the circumstances in this case, I will not impose any fine on the understanding that BCTV will forthwith make a contribution to a public legal education society or fund of its choice in the amount of at least $4,000. "S. Stromberg-Stein, J." S. Stromberg-Stein, J.