R. v. Larue
From Ad IDEM / CMLA
A Yukon court refused to grant a publication ban on the trial of a co-accused in a first degree murder trial, after finding that the application was "seriously lacking in terms of the evidence required of a party seeking a publication ban". Justice Gower states that "while the accused is entitled to a "fair" trial, he is not entitled to the most favourable trial possible" and that alternative measures exist to protect the co-accused's fair trial rights.
Mr. Larue and a co-accused, Ms. Asp, were charged with first degree murder. Ms. Asp's trial is scheduled to take place prior to the commencement of Mr. Larue's trial, with both trials being held in Whitehorse. Mr. Larue applied for a publication ban on all proceedings and evidence in the trial of Ms. Asp, arguing that "there would be overwhelming prejudice to Mr. Larue if a total ban is not imposed" and it would be difficult to find an impartial jury. Notice was provided to all major media outlets in Whitehorse and counsel for the CBC appeared.
The issue on the application was whether the accused had satisfied the two-part test for a publication ban as set out in Dagenais. Justice Gower carefully examines the law with respect to the evidentiary burden that the applicant must meet in order to show that adverse pre-trial publicity would make it "difficult or impossible" to subsequently find an impartial jury, as per the first branch of the Dagenais test.
Gower J. states at para. 44 that:
The fact that prospective jurors may have been exposed to pre-trial publicity does not necessarily mean that they will be incapable of deciding the case solely on the evidence and the judge's instructions.
Gower J., goes on to cite Justice Nordheimer's observations in Kossyrine, at para. 20, with approval. I agree with counsel for the media that the accused are entitled to an impartial jury not an uninformed jury.
In his analysis, Gower J. found that the application for the publication ban was seriously lacking in terms of the evidence required of a party seeking a publication ban. And, he cites accused's counsel's perfunctory dismissal of the potential alternative measures of challenging Mr. Larue's prospective jurors for cause.
Gower J. concludes his analysis by stating at para. 50:
...I find that the accused has not succeeded in getting past the first branch of the Dagenais test. Specifically, Mr. Larue has not persuaded me that a publication ban is necessary in order to prevent the "real and substantial risk" that he will not receive a fair trial, especially when there are available alternative measures which, in my view, are reasonably capable of significantly ameliorating any risk which does arise.