R. v. Thomson Canada

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R. v. Thomson Canada Limited, 2001 ABQB 962

Date: 20011120

Action No. 005208111S1

IN THE COURT OF QUEEN'S BENCH OF ALBERTA

JUDICIAL DISTRICT OF EDMONTON

BETWEEN:

THOMSON CANADA LIMITED

Appellant

- and -

HER MAJESTY THE QUEEN

Respondent

______________________________________________________

REASONS FOR JUDGMENT

of the

HONOURABLE MR. JUSTICE J. A. AGRIOS

______________________________________________________

APPEARANCES:

F. S. Kozak and T. G. Rothwell

for the Appellant

S. L. Brown

for the Respondent

Introduction

[1] On October 25, 2001 I granted an appeal in the conviction of two newspapers owned by Thomson Canada Limited who had been found guilty by a Provincial Court Judge of publishing the name of the young victim of a young offender, contrary to s. 38(1) of the Young Offenders Act R. S. C., 1985, c. Y-1. The effect of my decision was to strike down that portion of s. 38(1) of the Act which prevents the media from publishing the names of young persons who are victims of crimes, such mandatory bans resulting solely because the perpetrator of the crime is a young offender and his victim a child or a young person. The impugned section reads as follows:

Identity not to be published

38. (1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of any hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed. [Emphasis added]

[2] "Young person" is defined by the Act as those who are twelve years of age or more, but less than eighteen years of age, and "child" is defined as a person who is or who appears in the absence of evidence to the contrary to be under the age of twelve years. The trial judge dealt only with mandatory bans in the context of young persons, not children, and the issue of mandatory bans in respect of children was not argued on this appeal. Nevertheless, for the same reasons outlined below in respect of young persons, I find it entirely consistent to include the words "a child" among those which I have stricken down as an unconstitutional and unjustifiable breach of the fundamental freedom of the press and other media communication enshrined in s. 2(b) of the Charter. This is appropriate because children are, in my view, a class analogous to young persons such that my reasons below apply to them as well. If the shooting victim in this case had been nine years old, there is no doubt that I would have similarly found the mandatory ban unconstitutional. Moreover, I find it patently clear, given the availability of discretionary bans to protect any victim of crime under s. 486(4.1)-(4.7) of the Criminal Code, that as there is a significantly less intrusive option and equally effective measure available than a mandatory ban the law in respect of mandatory child victim bans must fail as well: RJR-MacDonald Inc. v. Canada (Attorney General) (1995), 127 D.L.R.(4th) 1 (S.C.C.). Finally, it is sensible, in my view, that should further appellate courts review this decision, that they consider bans in respect of both children and young persons - as both classes of person engage the same social policy or legislative fact analysis described below. Accordingly the words "a child" are also struck, and I will make no further specific references to children in these reasons.

[3] As regards the possibility of an appeal, at the time of rendering the decision I advised the Crown that if it was their intention to appeal I would provide written reasons. The following day, Ms. Brown, counsel for the Crown, indicated no decision as to appeal had been made, however as a written decision would be of benefit to Youth Court Judges, she requested written reasons. I now provide the same.

Agreed Facts

[4] The facts are not in issue. Those relevant to the determination of the constitutional issue at the Provincial Court trial were agreed by both parties and are set out in the Appendix to this decision. For the purposes of this judgment a summary of the Agreed Statement of Facts follows.

[5] On April 28, 1999, at a high school in Taber, Alberta, a youth shot and killed one classmate and wounded two other youths. The youth was charged with the murder of one victim, and with attempted murder in the shooting of the others. One of the wounded victims was 17 years old at the time of the shooting. When the shooter appeared in Youth Court the presiding judge reminded the media that s. 38 of the Young Offenders Act expressly prohibited publishing any information that would identify any young person alleged to have been a victim of an offence committed by a young offender. Subsequently, both 7he Lethbridge Herald and 7he Taber Times published stories about the shooting and specifically noted that the name of the wounded teen could not be published under the terms of the Young Offenders Act. In the days following this tragic incident, there were a number of other stories published in the two newspapers about the shootings but they are not relevant to this decision.

[6] A member of the Taber police force took it upon himself to obtain some hockey memorabilia for the wounded victim, Shane Christmas, and eventually obtained a hockey stick donated by Wayne Gretzky and a Calgary Flames hockey jersey with the name "Shane Christmas" embroidered on the back. A press conference was arranged for August 5, 1999 originally to be held in the Christmas's back yard but subsequently moved to the Taber police station because of inclement weather. The Taber Police Service contacted members of the media to inform them of the conference. At the conference, reporters from 7he Taber Times and 7he Lethbridge Herald interviewed Shane Christmas about the presentation and he was asked if his name could be published. He agreed it could. His mother also consented to the use of her son's name. On August 6, 1999 7he Lethbridge Herald published two articles entitled "Taber Shooting Victim Recalls April 28th Horror" and "Cops Generosity Puts a Smile on Shane's Face". One of the articles was on the front page and included a photograph of Shane Christmas. The Taber Times also published two front-page articles referring to Shane Christmas by name and age. One of the newspapers had the following

Editor's note:

With permission of the Christmas family 7he Times has opted to identify Shane Christmas as a shooting victim in apparent contravention of Section 38 of the Young Offenders Act. Section 38 prohibits the identification of underage victims of young offenders. It is intended partly to protect the anonymity of victims, but those persons are ultimately entitled to waive that right to their own anonymity.
[7] The Editor's note was wrong in law. During this appeal, counsel for the Appellant, Mr. Fred Kozak, noted accurately that the story was the good news side of the terrible story.

[8] It is difficult to conceive of a more innocuous breach of s. 38(1), but it is a breach of the section nevertheless.

The Decision Below

[9] While not significant to this appeal, the accused shooter subsequently entered a plea of guilty to a number of charges and in November, 2000 he received a three-year sentence. Prior to that, on September 11, 2000, the Attorney General of Canada was notified of the accused's intention to challenge the constitutional validity of s. 38(1) of the Young Offenders Act. The Attorney General of Alberta conceded that s. 38(1) constituted an infringement of the accused's Charter rights pursuant to s. 2(b) of the Charter, and at trial the Appellant sought an order pursuant to s. 52(1) of the Constitution Act, 1982 striking down that portion of s. 38(1) insofar as it prohibits publishing the identity of a young victim of a crime committed by a young offender. The learned Provincial Court Judge declined to grant the order sought by the Appellant on the basis that the challenged portion of Young Offenders Act was saved by s. 1 of the Charter and the Appellant accordingly appealed the ruling of the learned Provincial Court Judge.

[10] The evidence before the Provincial Court was the Agreed Statement of Facts and three expert witnesses, one called by the Crown and two by the Defence. It is unquestioned that all three experts were concerned that publishing the banned information could cause further trauma to child victims. However, they disagreed as to whether a mandatory ban was necessary as opposed to a discretionary ban. For the reasons set out herein, I have allowed the appeal on the basis that there was no evidence that a mandatory ban is necessary and a discretionary ban, provided for under s. 486(4.1)-(4.7) of the Criminal Code, is more appropriate and less intrusive of the accused's Charter rights. Nothing in the trial or the appeal in any way affects the ban that prohibits the publication of the names of young offenders themselves. This appeal deals only with banning the names of young victims of crimes perpetrated by young offenders.

Standard of Review

[11] Both the Appellant and Respondent agree that the standard of review on a question of law is correctness. The Appellant goes further and says that the standard of review for constitutional matters for the finding of facts is also correctness. The Crown disagrees with respect to findings of fact and states that the standard of review is that the findings must be clearly unreasonable (R. v. Yebes (1987), 36 C.C.C. (3d) 417 (S.C.C.). The Crown argues this standard applies to both findings of fact and findings of credibility in respect of the weight to be given to particular testimony.

[12] If the Crown was correct with respect to the standard of review and the findings of the trial judge, this appeal would be lost. The Crown has correctly stated the Supreme Court of Canada has repeatedly affirmed the importance of Courts of Appeal taking into account the special position of the trier of fact on matters of credibility, taking into account the special position of the trier of fact in matters of credibility. The trial judge has the advantage of seeing and hearing the evidence of witnesses although, as a matter of law, it remains open to an appellate court to overturn the verdict based on the findings of credibility where, after considering all the evidence and having due regard to the advantages afforded the trial judge, that court is of the view that the verdict reached was unreasonable. As quoted by Crown in R. v. Jussila (1997), 192 A.R. 29 (C.A.), affirmed (1998), 124 C.C.C. (3d) 261 (S.C.C):

A verdict is unreasonable if no properly instructed jury acting judicially could have rendered it. In assessing the verdict the Court must re-examine and to some extent re-weigh the effect of the evidence but only for the purpose of determining whether the evidence is reasonably capable of supporting a trial judge's conclusion. Where an allegation of an unreasonable verdict is predicated upon determination of credibility the Court must show great deference to the findings made at trial and ought not to intervene unless the record reveals an error of law or in principal or a manifest error in the appreciation of the evidence.
[13] As the Crown stated, the trier of fact in the case at bar was an experienced Provincial Court Judge. I am aware that the trial judge has a long and distinguished history of judicial involvement with the Young Offenders Act and I am not prepared to say that his findings are clearly unreasonable. For reasons which I will explain, I happen to disagree with the learned trial judge but, to repeat, his findings are clearly not unreasonable. He has provided a careful and thorough decision. A reading of the trial transcript establishes that he was ably assisted throughout by both Crown and Defence who exhibited a high level of advocacy. The Defence cross-examination of the Crown's expert witness is particularly praiseworthy. I am persuaded by Mr. Kozak, for the Appellant, that the facts in this case are legislative or social in nature, not simply adjudicative, and in the context of appellate review in this case the proper standard of review is correctness such that I may interfere with the trial judge's determination of a legislative or social fact if I find that he erred in the consideration or appreciation of the fact in issue. In a s. 1 Charter analysis, the distinction between adjudicative and legislative facts is important, as the latter are accorded less appellate deference. Justice LaForest in RJR-MacDonald Inc. v. Canada (Attorney General) (1995), 127 D. L. R. (4th) 1 (S.C.C.) ruled on appellate deference in respect of this distinction and is worth quoting at length:
In my view, Chabot J. erred in finding that there was insufficient evidence to satisfy the proportionality requirement, and the majority of the Court of Appeal was correct to interfere with his findings and re-evaluate the evidence. It is, of course, well-established that an appellate court may only interfere with the factual findings of a trial judge where the trial judge made a manifest error and where that error influenced the trial judge's final conclusion or overall appreciation of the evidence: see Dorval v. Bouvier, [1968] S.C.R. 288; Lapointe v. Hpital Le Gardeur (1992), 90 D.L.R. (4th) 7 at pp. 10-11, [1992] 1 S.C.R. 351, 10 C.C.L.T. (2d) 101. However, it is important to emphasize that the trial findings on which the appellants rely are not the type of factual findings that fall within the general rule of appellate "non-interference" discussed in these cases. The appellate non-interference rule reflects the traditional recognition that a trial judge is better placed than an appellate court to assess and weigh so-called "adjudicative" facts or, in John Hagan's terms, "who did what, where, when and how and with what motive or intent": see John Hagan, "Can Social Science Save Us? The Problems and Prospects of Social Science Evidence in Constitutional Litigation" in Robert J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987), at p. 215. Fauteux J. explained the rationale for the non-interference rule in Dorval, supra, at p. 293, as follows (translation):
Because of the privileged position of the judge who presides at the trial, who sees and hears the parties and witnesses and who assesses their evidence, it is an established principle that his opinion is to be treated with the utmost deference by the appellate court, whose duty it is not to retry the case nor to interfere by substituting its own assessment of the evidence for that of the trial judge, except in the case of a clear error on the face of the reasons of the judgment appealed from.
However, the privileged position of the trial does not extend to the assessment of "social" or "legislative" facts that arise in the law-making process and require the legislature or a court to assess complex social science evidence and to draw general conclusions concerning the effect of legal rules on human behaviour. As Ann Woolhandler observes in "Rethinking the Judicial Reception of Legislative Facts " (1988), 41 Vand. L. Rev. 111, at pp. 114 and 123, conclusions of this nature are most accurately characterized as social or legislative facts because they involve predictions about the social effects of legal rules, which are invariably subject to dispute:
In contrast to adjudicative facts, legislative facts do not presume a preexisting legal norm because by definition such facts are used to create law. A paradigmatic legislative fact is one that shows the general effect a legal rule will have, and is presented to encourage the decision maker to make a particular legal rule. There is less a sense that legislative facts are true or knowable because such facts are predictions, and, moreover, typically predictions about the relative importance of one factor in causing a complex phenomenon.



Legislative facts are predictions about the effects of legal rules and are by their very nature disputable. The creation and reception of legislative facts will be governed by pre-existing presumptions about desirable effects and their causes. Legislative facts, moreover, cannot neutrally provide answers to legal questions because by definition legislative facts are used to make the rules that pose the questions. Although legislative facts provide information for the pragmatic balancing of desirable effects, these "facts" cannot tell us what effects are desirable, or how to weigh them.

In my view, the casual connection between tobacco advertising and consumption, or the lack thereof, is a paradigm example of a legislative or social fact. While a trial judge is in a privileged position with respect to adjudicative fact-finding, this is not the case with legislative or social fact finding, where appellate courts and legislatures are as well placed as trial judges to make findings. Certainly, one does not have to be a trial judge to come to general conclusions about the effect of legal rules on human behaviour. Moreover, given the intimate relation that exists between legislative facts and the creation of legal rules, there is also a strong policy reason for suspending the non-interference rule with respect to legislative or social facts. As Brian G. Morgan notes in "Proof of Facts in Charter Litigation" in Charter Litigation, supra, at p. 186, the rigid application of that rule would deny appellate courts their proper role in developing legal principles of general application:
... where legislative and constitutional facts are considered and determined at the trial court level, it is important that reference to the traditional division between fact and law in fixing the scope of appellate review not lead the appellate court to treat as conclusive the findings of the trial judge. First, the traditional and accepted expertise of the trial court in determining adjudicative facts does not extend to the less familiar and inherently less certain task of determining legislative or constitutional facts. Secondly, unless the appellate courts retain sufficient discretion to review findings of the trial court on matters of legislative or constitutional facts, the appellate courts will be denied their proper role of developing principles in this area of the law to be applied in the multitude of individual cases which come before trial judges.
The United States Court of Appeals for the Fifth Circuit, in Dunagin v. City of Oxford, Miss., 718 F. 2d 738 (5th Cir. 1983) (en banc); cert. denied, 467 U.S. 1259 (1984), a case involving the constitutionality of a ban on liquor advertising, made the same point, at pp. 748-9, n. 8, in slightly more colourful terms:
There are limits to which important constitutional questions should hinge on the views of social scientists who testify as experts at trial. Suppose one trial judge sitting in one state believes a sociologist who has found no link between alcohol abuse and advertising, while another trial judge sitting in another state believes a psychiatrist who has reached the opposite conclusion. A similar situation actually occurred here. Should identical conduct be constitutionally protected in one jurisdiction and illegal in another? Should the fundamental principles of equal protection delivered in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 96 L.Ed. 873 (1954), be questioned if the sociological studies regarding racial segregation set out in the opinion's footnote 11 are shown to be methodologically flawed? Should the constitutionality of the property tax as a means of financing public education, resolved in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed. 2d 16 (1973), depend on the prevailing views of educators and sociologists as to the existence of cost-quality relationship in education? Does capital punishment become cruel and unusual when the latest regression models demonstrate a lack of deterrence? The social sciences play an important role in many fields, including the law, but other unscientific values, interests and beliefs are transcendent.

Perhaps for these reasons, the Supreme Court's recent commercial speech and other relevant speech cases indicate that appellate courts have considerable leeway in deciding whether restrictions on speech are justified. In none of them did the Court rely heavily on fact findings of the trial court.

For the foregoing reasons, I conclude that an appellate court may interfere with a finding of a trial judge respecting a legislative or social fact in issue in a determination of constitutionality whenever it finds that the trial judge erred in the consideration or appreciation of the matter. As applied to these cases, I find that, apart from his specific findings with respect to the credibility of witnesses and the probative value of reports, Chabot J.'s factual findings concerning the connection between tobacco advertising and consumption are entitled to minimal defence by this court. With this in mind, I proceed to the proportionality analysis.
[14] For the reasons enumerated above, particularly as they relate to expert testimony on legislative or social facts, I have decided that it is justifiable for me to interfere. As well, Mr. Kozak is correct in his submission that I have no cause to defer to the trial judge's findings on the basis that they were related to credibility. A careful reading of the Provincial Court Judge's decision reveals there are no specific findings with respect to the credibility of the witnesses.

Analysis

[15] Breach of s. 2(b) of the Charter is not in issue, and I find, as did the learned trial judge, and as conceded by the Attorney General for Alberta, that the challenged portions of s. 38(1) of the Act are in breach of the fundamental freedom of the press and other media of communication.

[16] The trial judge found, however, that this breach was not unconstitutional as it was

saved by s. 1 of the Charter as a reasonable limit in a free and democratic society. He so

found on the basis of the expert evidence of social or legislative facts put before him and it is

with his analysis of what he took to be good evidence on the core issue of the harm of publication to young victims of young offenders with which I disagree and take jurisdiction, pursuant to RJR-MacDonald Inc. v. Canada (Attorney General) (supra), to reconsider whether he had a sufficient evidentiary foundation to find that a mandatory ban is necessary notwithstanding the availability of discretionary bans on identifying victims of crime pursuant to s. 486(4.1) of the Criminal Code.

[17] The Provincial Court Judge notes that the Crown called one witness, Dr. Allan Lescheid, an a associate professor of education at the University of Western Ontario, who is a registered psychologist and has been so for twenty years. Dr. Lescheid has published several articles in respect of his discipline and he gave his opinion with regard to the danger of media publications of the names of victims which included victim stress, falling away of support systems, reluctance to testify, etc. Basically, Dr. Lescheid was opposed to the publication of either the offender's identity or the victim's identity when either are young. The trial judge also notes that the accused called two expert witnesses. Dr. John T. Dalby, an associate professor adjunct of the Department of Psychiatry at the Faculty of Medicine of the University of Alberta who has testified over 600 times in Court. Amongst other testimony, he stated that there were no studies about the effect of publication of the identity of a young victim of crime. The second Defence witness called was Dr. Anthony Doob. Mr. Kozak submitted before me that Dr. Doob was the preeminent expert in this field and noted that Dr. Doob had been the Crown's own expert in the case of Southam v. The Queen. (1984), 16 C.C.C. (3d) 262 (Ont. H.C.J.), affd. (1986), 25 C.C.C. (3d) 119 (Ont. C.A.), leave to appeal to the S.C.C. refused loc. cit. The trial judge noted that Dr. Doob was a professor of criminology at the University of Toronto, a distinguished author, served in an advisory capacity to the Government of Canada, to the Provincial Government, and had outlined the background of the Young Offenders Act. He, too, was not aware of any empirical work about the impact of the publication of the identity of a young victim of crime. In reviewing the expert testimony, the trial judge concluded that there was no empirical evidence on this point. Once again, I can locate no specific findings in the trial judgment with respect to the credibility of the witnesses.

[18] I have accepted the argument by the Appellant that the Court below failed to properly assess the credibility of the Respondent's sole expert witness and erred by placing an inappropriate amount of weight on the opinion of the Crown's sole expert witness. The Supreme Court of Canada stated in R. v. Mohan (1994), 114 D.L.R. (4th) 419:

The trial judge should consider the opinion of the expert and whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group. Put another way: Has the scientific community developed a standard profile for the offender who commits this type of crime? An affirmative finding on this basis will satisfy the criteria of relevance and necessity. Not only will the expert evidence tend to prove a fact in issue but it will also provide the trier of fact with assistance that is needed. Such evidence will have passed the threshold test of reliability which generally ensure that the trier of fact does not give it more weight than it deserves.

[19] It is fair comment that Dr. Lescheid conceded that:

1. there were no empirical studies on what the effects on a child victim are if their names were to appear in the media; 2. he had no direct clinical experience; and 3. there were no reliable studies or scholarly articles.
[20] In essence, Dr. Lescheid was relying solely on his years of experience and was therefore stating little more than personal opinion. While I do not agree with Mr. Kozak that his evidence should be given no weight, it should be given less weight than the trial judge gave it.

[21] As was repeatedly stated by counsel at the trial, there is no empirical evidence on the central issue as regards any evidentiary foundation for the opinions set forth by two of the experts. Dr. Lescheid conceded in cross-examination that he had no clinical experience in treating a young victim of a young offender who had been traumatized by publication of his or her identity. Mr. Kozak went much further, successfully challenging the three articles relied upon by Dr. Lescheid. His very detailed cross-examination confirmed that none of the articles were relevant to the trial. For example, there had been a reference by Dr. Lescheid to a paper published by the Appellant's expert, Dr. Doob, in 1979. Dr. Doob testified that what Dr. Lescheid had said that the paper showed, wasn't actually in the paper. It was Dr. Doob's [?] own study and he didn't see that it was relevant at all to the issues at trial. Dr. Doob also noted that he read the three articles that had been picked out by Dr. Lescheid against what Dr. Lescheid was asserting, and his conclusion was as simple one: the studies did not show what Dr. Lescheid suggested they were showing.

[22] It is difficult to come to any other conclusion than that Mr. Kozak clearly destroyed Dr. Lescheid's testimony insofar as it related to any relevant publications and put much of the balance of the testimony in doubt. Conversely, Dr. Doob stated, in answering whether there was a legitimate policy objective in having a mandatory ban:

I wouldn't see any purpose in having a blanket ban. I do think there are circumstances where victim's names should be kept private. Victims of all ages should be kept private and those would have to do with various complex characteristics... But I don't see any purpose in having a blanket ban in large part because... I don't know of any research which would suggest there is an overall harm to the young victim or to a victim or to society more generally in publication.
[23] It is difficult not to prefer the testimony of Dr. Doob over that of Dr. Lescheid.

Section 1 Analysis

[24] R. v. Oakes (1986), 26 D.L.R. (4th) 200 (S.C.C.) is the leading decision respecting the interpretation application of s. 1 of the Charter and led to the development of the "Oakes test" with its four elements. The Crown has the onus of establishing the four elements before a Charter breach can be justified. The learned Provincial Court Judge determined that the objective of s. 38(1) was the protection of a person twelve years of age or older, and under 18 years of age, who has suffered trauma as a result of a criminal act of a young offender, from the further trauma of unnecessary public identification. He held that this objective was of superordinate importance and therefore passed the first stage of the Oakes test. There was no evidence presented at the trial on which to draw a conclusion regarding the objective of Parliament in banning the publication of the identities of young offenders, let alone the objective relating to bans on the identity of their victims. One may presume that the policy objective of the ban on identifying young offenders is to prevent those who have fallen foul of the law from being branded as criminals who might thereby suffer consequences which could limit their opportunities and put them in jeopardy of becoming recidivists or career criminals. However, neither the trial judge nor I have any evidence of this. And although section 3 of the Young Offenders Act sets out the principles upon which the Act is interpreted, it is silent with respect to the purpose of banning publication of the identity of young victims of young offenders, an area which, in my view, is considerably more opaque, in terms of a judge attempting to fathom Parliament's policy underpinnings, than those in respect of offender bans. I agree with Mr. Kozak for the Appellant that the Court below erred in concluding the challenged portion of s. 38(1) is rationally connected to the objectives of the legislation.

[25] This case deals with a core value which has been found by the Supreme Court of Canada to underlie the freedom of expression. In RJR-MacDonald (supra) the Court noted the powerful common sense observation, namely it is difficult to believe the Canadian tobacco companies would spend over $75 million on advertising if they did not know that advertising increases the consumption of their product. From this common sense observation the Court was able to conclude that restricting advertising would also have an impact on tobacco consumption by children. In the case at bar, however, there is no similar common sense to apply. Worse, there was expert evidence at the trial that the reason there was no empirical research on the effect of publishing victim's identity was that the issue had not been identified by anyone as a real problem. I accept the proposition of the Appellant that the Oakes test mandates that legislation must not be arbitrary or based on irrational considerations and, in my view, using the age of the perpetrator is the sole factor employed by s. 38(1) is an irrational consideration. The Appellant aptly demonstrated the absurdity and irrationality of s. 38(1) with the following examples:

a. The name of an 18-year old victim of an 18-year old perpetrator could be published; b The name of an 18-year old victim of a 17-year old perpetrator could be published; c. The name of an 18-year old victim of an 1 l-year old perpetrator could be published; d. The name of an 11-year old victim of an 18-year old perpetrator could be published; e. The name of an 11-year old victim of an 11-year old perpetrator could be published; f. The name of a 17-year old victim of an 18-year old perpetrator could be published; g. The name of a 17-year old victim of an 11 -year old perpetrator could be published; h. The name of a 17-year old victim of a 17-year old perpetrator who is transferred to adult court could be published; i. The name of a 17-year old victim of a 17-year old perpetrator could not be published.
[26] When viewed in this light, using the age of the perpetrator of the crime as the sole criterion is clearly inconsistent, confusing, and is not rationally connected to achieving the apparent objectives of the legislation.

[27] I have accepted the following arguments by the Appellant:

1 . The infringing measure should impair the Charter right "as little as possible"; RJR-MacDonald (supra). On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, a law must fail, 2. In R. v. Dagenais [19941 3 S.C.R. 835 the Supreme Court of Canada has determined that a discretionary decision regarding publication bans is a reasonable method of balancing the rights of free expression against the rights for privacy and the protection of the identity of young persons who are victims of adult perpetrators. 3. Section 38(1) does not constitute a minimal impairment of the s. 2(b) rights of the Appellant as it fails to vest any discretion in the judiciary decide whether a publication ban should be imposed. 4. The mandatory ban on publication of victim names therefore extends beyond the "sliver of information" of the name of the victim including a ban on publicizing information regarding events with regard to the criminal activity if the publication of those events would serve to identify the young victim.
[28] It is illogical to require a mandatory publication ban for young victims of young offenders when a less intrusive option of a discretionary ban is available.

[29] I again agree with counsel for the Appellant that striking down the offending parts of s. 38(1) will leave no legislative void as s. 51 of the Young Offenders Act will cause the provisions in s. 486(4.1)-(4.7) of the Criminal Code to operate in their place, allowing discretionary publication bans in respect of identifying victims of crime, including young victims of crime.

[30] The learned trial judge took judicial notice of the harm that a discretionary ban may in some circumstances cause. He stated it comes too late to prevent some publications of the identity of a victim and thereby concluded that a discretionary publication ban is not a reasonable and less intrusive alternative. I respectfully disagree. If impugned legislation is not rationally connected to the apparent objective of the legislation, it fails the Oakes test and the fact that no less intrusive alternative exists to achieve that objective cannot, of course, save legislation which is already insufficiently connected to its objective. The use of age as the sole criterion for determining mandatory bans is, as stated above, insufficiently rationally connected to the object of the legislation to pass the Oakes test. Additionally, trial judges are alive to the sensitive issues confronting them with young victims of crime and if a discretionary ban appears appropriate they can be trusted to inquire if an application should be brought under s. 486(4.1) of the Code. In the case at bar when the young offender appeared before the presiding judge, he reminded those attending of the mandatory s. 38(1) ban on information tending to identify the victims. Instead that same judge would now inquire of those attending whether anyone wished to make an application for a discretionary ban pursuant to s. 486(4.1) of the Code.

Conclusion

[31] The appeal is allowed, and the judgement below set aside. The words in s. 38(1) of the Young Offenders Act which are underlined in paragraph [1] of these reasons, namely "a child or a young person who is a victim of the offence", are struck away, effective October 25, 2001.

HEARD on the 25th day of October, 2001.

DATED at Edmonton, Alberta this 20th day of November, 2001.

John A. Agrios J.C.Q.B.A.
Appendix

AGREED STATEMENT OF FACTS

IT IS AGREED THAT:

1 On April 28, 1999 in the town of Taber, in the province of Alberta, a shooting occurred at W.R. Meyers High School. (hereinafter "the shooting"). The accused shooter was a youth. He was initially charged with one count of murder for the death of Jason Lang and one count of attempted murder in the shooting of victim Shane Christmas. Shane Christmas's date of birth is August 7, 1981. He was 17 at the time of the shooting.

2. The shooter appeared in youth court on April 29, 1999 and both the prosecutor and Judge Debow reminded those in attendance that s. 38 of the Young Offenders Act expressly prohibited publishing any information that would identify any young person who is alleged to have been a victim of the offence.

3 . On April 30, 1999 the Lethbridge Herald ran a front page article on the shooting in which reporter Craig Albrecht wrote "The name of the wounded teen cannot published under the terms of the Young Offenders Act. ... On April 30, 1999, on page A3 an editorial note appeared in the Herald entitled "The Herald's decision: Why We're not publishing name of wounded victim". ...

4. On July 23, 1999 the Crown laid a new Information that added a second charge of attempted murder against the shooter with the named victim being Brian Emes. Brian Emes' date of birth is August 2, 1982. ... That new Information appeared in court on July 26, 1999 and again it was reiterated in open court that there was a ban on publication of anything tending to identify the victims pursuant to Section 38 of the Young Offenders Act.

5. On July 28, 1999 an article entitled "Shooting suspect faces third charge" was published in the Taber Times about the laying of the charge with victim Brian Emes. In that article Craig Albrecht writes: "The accused's name can't be published under provisions of the Young Offenders Act and neither can those of his alleged victims who survived the shooting." ...

6. On July 27, 1999 an article entitled "Taber boy faces third charge" was published by the Lethbridge Herald about the laying of the charge with victim Brian Emes. In that article Craig Albrecht writes: "The accused's name can't be published under provisions of the Young Offenders Act and neither can those of his alleged victims who survived the shooting. ...

7. Taber Police Constable Matt Allen contacted his friend Constable Cheney Venn, a constable with the Brantford Police Department who obtained autographed hockey memorabilia for Shane Christmas, including a hockey stick with the words "To my friend Shane, Wayne Gretzky." Taber police also contacted the Calgary Flames hockey team and obtained a Flames jersey from them with Shane Christmas' name embroidered on the back.

8. On August 4, 1999 members of the Taber Police Service contacted members of the media including the Lethbridge Herald and Taber Times and advised them that there would be a press conference held on August 5, 1999 in which Shane Christmas would be presented with gifts donated by celebrities including Wayne Gretzky and the Calgary Flames. The event was originally scheduled to be held in the Christmas' back yard, but was moved to the Taber Police Station because of inclement weather. The press conference was attended by Dave Husdal, who attended as a photographer employed by the Taber Times, and Robert Ashcroft, who was employed as a reporter by the Taber Times and Jason Lothian, who was employed as a reporter by the Lethbridge Herald.

9. After the press conference both Robert Ashcroft and Jason Lothian interviewed Shane Christmas. Brian Emes was present for the interview by Jason Lothian which took place at the Christmas residence. Prior to the interviews Shane Christmas was asked whether his name could be published and he agreed that it could. His mother was also asked whether his name could be used and agreed that it could. His mother was also asked whether the Lethbridge Herald could publish the contents of his interview and she agreed that it could. Jason Lothian asked Brian Emes whether the Lethbridge Herald could publish the contents of his interview and he agreed that it could. His mother was also asked and she agreed. There is conflicting evidence on the issue of whether that agreement specifically included publishing Brian Emes's name.

10. In August 1999, Taber's population was approximately 7,700. Shane Christmas moved to Taber with his family when he was 1 year old and has lived there since. Brian Emes was born in Taber and has lived with his family there all his life, until starting University in Lethbridge in September, 2000.

11. On August 6, 1999 the Lethbridge Herald published two articles written by Jason Lothian entitled "Taber shooting victim recalls April 28 horror" and "Cops' generosity puts a smile on Shane's face". The first article was on the front page and included a photograph of Shane Christmas and referred to both Shane Christmas and Brian Emes by name and age, 17. ... The second article refers to both Shane Christmas and Brian Emes by name and age. ...

12. On August 11, 1999 the Taber Times published two front page articles written by Robert Ashcroft entitled "Beyond the bullet: Shane copes" and "Gifts arrive from Great One". In the first article Shane Christmas is referred to by name and age, "now 18" and in the second article he is referred to by name. The articles are accompanied by a picture, taken by Dave Husdal, of Shane Christmas accepting gifts. Within the article the following Editor's note appears:

Editor's note: With permission of the Christmas family, The Times has opted to identify Shane Christmas as a W. R. Myers shooting victim, in apparent contravention of Section 38 of the Young Offenders Act. Section 38 prohibits the identification of underage victims of young offenders. It is intended partly to protect the anonymity of victims, but those persons are ultimately entitled to waive that right to their own anonymity.
13. Both newspapers were aware that Shane Christmas was turning 18 on August 7, 1999.

14. By letter dated September 11, 2000, the Attorneys General of Alberta and Canada were notified of the accuseds' intention to challenge the constitutional validity of a portion of 38(1) of the Young Offenders Act. ...

15. By letter dated September 15, 2000 the Attorney-General of Canada conveyed its intention not to intervene on the constitutional issue. ... The Attorney-General of Alberta acknowledged service of the letter of September 11, 2000. ...

16. The Attorney-General of Alberta has conceded that s. 38(1) constitutes an infringement of the accused's Charter rights pursuant to s. 2(b) of the Charter of Rights and Freedoms.

17. In August and September 2000, the Crown applied to have the accused shooter transferred to adult court. The application was denied on October 5, 2000.

18. On November 17, 2000 the accused shooter entered a plea of guilty and received a three year sentence.

19. At all material times both the Lethbridge Herald and the Taber Times were owned and operated by the accused Thomson Canada Ltd. The articles in question were all published in the Province of Alberta.

Dated this 14th day of February, 2001.

Action No: 005208111S1

IN THE COURT OF QUEEN'S BENCH OF ALBERTA

JUDICIAL DISTRICT OF EDMONTON

BETWEEN:

THOMSON CANADA LIMITED

Applicant

- and -

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

of the

HONOURABLE MR. JUSTICE J. A. AGRIOS

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