Shawn Seong Su Yu

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February 27, 2006

Publication of a voir dire in a judge alone trial is not problematic. The Vancouver Sun and the Vancouver Province were vindicated for publishing accurate court information that had the effect of deterring a defence witness from appearing later in the case. An application for a stay of the proceedings was denied.

A few select passages make the point:

S.K. MacGregor, Prov. Ct. J.:

[16] The substance of the defence argument is that the press, in reporting the evidence heard on the voir dire, has overstepped its bounds and has committed, using the word used by counsel, "contempt". It is submitted by counsel that the publication of evidence on the voir dire in a trial before a judge alone, without a jury, is not allowed in this jurisdiction.
...
[22] I appreciate that the press has had no opportunity to make any representations in this regard, but I do not find that the publication of the articles shown as Exhibit A or Exhibit B were improper or could in any way be construed to be a contempt of court. There was no publication ban sought with respect to the evidence on the voir dire and there was no such order pronounced by the Court.
[23] I do not accept that it is the law of British Columbia that the press is not able to report on the evidence of a voir dire, subject to the appropriate limitations which would include, as in this case, protecting the identity of young witnesses and the identification of the complainant, and contain privacy rights, but not of the accused.
[24] I have been referred by Crown counsel to a decision from the Nova Scotia Supreme Court in 1993, which is a different application, but is much closer to the matters in this case as far as the facts are concerned with respect to the argument. In the Muse case, the accused, Mr. Muse, applied for a ban on the publication of all evidence on the voir dire, including evidence of any statements that he had made.
[25] In that case, counsel for the accused submitted that such evidence should be restricted from publication after the trial if the accused is found not guilty of the charges against him, and that the accused had a constitutional right to be presumed innocent, and that the publication of voir dire evidence not found to be admissible may lead to a perception of guilt in the minds of the public.

[26] Mr. Justice Kelly, on page 4 of the reasons, stated the following:

To operate effectively, the criminal law must have the support of the community. The public has traditionally, and very properly, had a compelling interest in the criminal trial process. In simpler days gone by, a significant segment of the community could attend criminal proceedings. Those who were present could, and did, advise their families and friends as to the nature of these proceedings. The process was, in the truest sense of the term, open to the public. Obviously, times have changed. Courtroom space is limited. Even if it were not, it is impossible for most members of the community to attend in court no matter how much they might wish to do so. Obligations of work and family make attendance impossible. The public is now represented by members of the media who are, in a very practical sense, the proxies of the community in the trial process. This has been recognized by reserving a special place for members of the press in most courtrooms. The public has accepted the media as their representative in the unfolding of the criminal process. However, it necessarily follows that the modern community must rely upon the media for a fair and accurate depiction of the proceedings in order to facilitate the public right to comment on and criticize that process. This simply cannot be done without a degree of openness which would provide the media with full access to court documents, records and exhibits. The more barriers that are placed in the way of access, the more suspect the proceedings become and greater will be the rational criticism of the process. It is through the press that the vitally important concept of open court is preserved.

[27] Mr. Justice Kelly also referred to the open court rule:

... is admitted in exceptional circumstances; for example, when the administration of justice requires the Court to sit in in-camera hearings for the issuance of certain search warrants, certain proceedings involving infants, and the Criminal Code provisions which grant a Court discretion to hear certain other matters in-camera during a trial, if necessary, and of course the provisions of the Criminal Code with respect to jury trials and preliminary inquiries.

[28] At paragraph 10, Judge Kelly said:

Where the public has a right to attend a court proceeding, the press, as agents of the public, have a right to publish those proceedings, subject only to publication bans issued by the Court to protect its process and subject to the constitutional rights of persons who might be prejudicially affected by the publication of certain evidence.
[29] I am not persuaded in this case that the publication of evidence introduced at the voir dire so displaces the presumption of innocence of Mr. Yu that it raises any Charter protection. Accordingly, the application with respect to a judicial stay of proceedings is dismissed.

See: Shawn Seong Su Yu

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