R. v. Daly and Global Communications Limited
From Ad IDEM / CMLA
July 21, 2003
The accused were convicted of breaching a bail hearing ban, and appealed to the Supreme Court of British Columbia. At issue in the appeal decision was the following broadcast by reporter Daly:
Judge Joel Groberman, noting carefully that the charges at this time remain unproven said it's amazing to me that if the allegations are correct, these two young men are starting in crime at the highest level. He said the types of crimes described are breathtaking in their seriousness, and he said the accused are alleged to have been acting as land pirates. He noted the shock the parents must feel, but he said the charges are so serious that there is no bail. He said both teens must stay in jail to maintain the public's confidence in the justice system.
The parents and uncle of one of the accused who offered his house for bail declined comment. Both teens are due in court again on Thursday.
Mr. Justice Sigurdson held that even though this didn't identify the accused, this report was a report of the "reasons" of the bail hearing judge contrary to the publication ban issued in the normal course under s.517 of the Criminal Code.
The defence argued that "reasons" had to be interpreted, in context, as a reference to information prejudicial to the fair trial rights of the accused. The court accepted the Crown's position that "reasons" are clearly "reasons", and there is no need for further interpretation. He added that it would be difficult to draw the line between prejudicial and non-prejudicial information this far in advance of the trial. Even so, he held that if he had to, he would find the information published to be prejudicial.
The fact that the report did not identify the accused did not impress the judge. Many reports from various media outlets could lead the public to piece together the identity of the accused. Identification, the court held in any case, is not an element of the offence.
The court found sufficient "mens rea" in the intention to commit the act. There was no need to intend the consequences.
And the court found that the reporter, while he could not be held to be a publisher, was still a party to the offence in preparing the report for broadcast.
Note: This was not a Charter challenge, per se, because that would have been considered a collateral attack on the publication ban order once the breach occurred. If this decision is not appealed, there remains the possibility that a pre-emptive Charter challenge of the section as a whole might be more successful.