R. v. Kossyrine and Vorobiov
From Ad IDEM / CMLA
This decision of Justice Nordheimer of the Ontario Superior Court of Justice was delivered orally on October 13, 2011.
An Ontario Court refused to grant a publication ban on a co-accused's guilty plea in a first degree murder trial. The deciding upheld the importance of media's role in reporting court activity to the public and made some important observations about the relationship between the media an juries. "the accused are entitled to an impartial jury not an uninformed jury.".
Mr. Kossyrine, Mr. Vorobiov, and Mr. Ross were charged with first degree murder. Before jury selection commenced, Mr. Ross entered a guilty plea. The remaining accused Kossyrine and Vorobiov applied for a publication ban on Mr. Ross's plea until their own trial was completed. They argued that Mr. Ross's guilty plea might taint prospective jurors. Notice was given to the media and counsel for the Toronto Star and CBC appeared.
Justice Nordheimer applied the two-part 'Dagenais' test.
On the first prong of the test Justice very thoughtfully questioned whether or not the Court should accept the presumption that any exposure of prospective jurors to media reports about a case will automatically compromise the accused's opportunity to receive a fair trial. He took notice of the fact that there had already been considerable media exposure on this case and that the Crown and Defense were both prepared to deal with that reality through the "challenge for cause" process.
He goes on to look at the particular facts in the case and considered whether it was logical to conclude in this case that publication of Mr. Ross's guilty plea and surrounding facts would make it impossible for the applicants to receive a fair trial. Justice Nordheimer found this proposition untenable for several reasons. First it relies on a presumption that juries will not honour their duties and obligations. Second, it renders the challenge for cause process irrelevant.
As for the second prong, the balancing test, Justice Nordheimer recognized the importance of the media's role in disseminating Court activity to the public.
In paragraph 16 Justice Nordheimer soundly rejected the arguments by both Crown and Defence counsel that the court ought to "err on the side of caution" and grant a publication ban.
... The test, of course is not whether it is safer to impose a publication ban. If that were the test, then publication bans would routinely be granted. The test is whether it is necessary to do so. If we were to simply chose the safer route when these issues arise and impose publication bans because they provide an additional preventative measure to protect the fair trial rights of the accused, it would lead to a result where the right of the public to be informed on a timely basis about significant events occurring in the justice system through the freedom of the press enshrined in x. 2(b) of the Charter is relegated to secondary status.
Finally Justice Nordheimer endorsed some insightful comments by media counsel.
 I agree with counsel for the media that the accused are entitled to an impartial jury not an uninformed jury. The fact that the members of the jury may have read about this case and the allegations in it, is only problematic if they have formed fixed opinions that they cannot disabuse themselves of. That is precisely what the challenge for cause process is designed to reveal. That process coupled with jury instructions regarding the need to decide the case based only on the evidence heard in the courtroom and not on any other information are the type of reasonable alternative measures that are capable of preventing the risks that the applicants identify.