R. v. Budai, Gill, Kim

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April 12, 2000

A publication ban was denied on a fresh evidence hearing in the British Columbia Court of Appeal in the cases on which former juror Gillian Guess sat. In weighing the Dagenais test, Mr. Justice Donald noted: [31] First of all, a new murder trial, if one is ordered, is a long way off. The hearing of the appeal is not yet set down and it is unlikely to be heard and decided until at least mid-autumn of this year. Then the trial date would have to be fixed. Assuming no intervening leave application and appeal to the Supreme Court of Canada, a new trial date is not likely to be less than six months after the appeal decision. It is doubtful that the publicity surrounding this proceeding would linger that long in the public's memory.

[32] Furthermore, there is nothing to suggest that the process of jury selection, including challenges for cause, instructions to the jury and similar safeguards would not assuage the risk of jury contamination.

Donald J. later quoted Madam Justice McLachlin (now C.J.C.) in a concurring judgment on Dagenais who wrote: ... What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered.

See R. v. Budai, Gill, Kim

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