** Unedited ** Indexed as: R. v. Bernardo Between Her Majesty The Queen, and Karla Bernardo also known as Karla*Teale* [1993] O.J. No. 2047 Action No. 125/93 Ontario Court of Justice - General Division St. Catharines, Ontario Kovacs J. July 5, 1993. (77 pp.) Charge: Criminal Code of Canada, S. 236 - Manslaughter x 2. M. Segal, for the Crown. M. Fairburn, Assisting counsel for the Crown. G. Walker, for the Accused. T. Breen and C. MacDonald, for Paul Bernardo Teale, Intervenor. R.S. Bruser, for The Toronto Star, Intervenor. T. Jackson, for Thompson Publications, Intervenor. P. Tomlinson, for Stephen William, Intervenor. M. Hughes and D. Henry, for C.B.C. Legal Dept., Intervenor. S. Nathu and J. Conforti, for The Toronto Sun, Intervenor. L. DeLisio, for the Buffalo News, Intervenor. KOVACS J. (Orally):-- INTRODUCTION [para1] This is an application by the Crown brought before the arraignment of the accused Karla Bernardo also known as Karla Teale. The Crown seeks a time limited ban on the publication of the proceedings in the accused's trial until the completion of the trial, or the discharge, of Paul Bernardo, also known as Paul Teale (hereinafter referred to as Paul Bernardo Teale). The Crown has put to the Court various options to ensure that any temporary ban is observed and has efficacy. [para2] The accused is before this Court facing two charges of manslaughter in the deaths of Leslie Erin Mahaffy and Kristen Dawn French, contrary to the provisions of s. 236 of the Criminal Code. The intervenor Paul Bernardo Teale is not before me for trial. He is charged, in this jurisdiction, with: (1) Two counts of first degree murder arising from the same alleged factual basis as the charges against the accused, Karla Bernardo Teale. (2) One count of kidnapping Kristen Dawn French with intent to cause her to be ons for Decision confined contrary to s. 279(1)(a) of the Code. (3) Aggravated sexual assault on Leslie Erin Mahaffy contrary to s. 273(1) of the Code. (4) Aggravated sexual assault on Kristen Dawn French contrary to s. 273(1) of the Code. (5) Unlawful confinement of Leslie Erin Mahaffy contrary to s. 279(2) of the Code. (6) Unlawful confinement of Kristen Dawn French contrary to s. 279(2) of the Code. (7) Offering an indignity to the body of the deceased, Leslie Erin Mahaffy contrary to s. 182(b) of the Code. (8) One count of kidnapping Leslie Erin Mahaffy with intent to cause her to be confined contrary to s. 279(1)(a) of the Code. [para3] In another jurisdiction, (Metropolitan Toronto), Paul Bernardo Teale faces 43 charges, including charges of sexual assaults. There are other charges against him. There is a charge of sexual assault in this jurisdiction and one of sexual assault in the City of Mississauga (see exhibit four). In this jurisdiction there is also a charge of assault with a weapon (see exhibit three). [para4] Paul Bernardo Teale appears as an intervenor on the issue of whether there should be a temporary publication ban issued in the trial of the accused before the Court. His position is that there should be no ban on publication. [para5] Paul Bernardo Teale originally applied for a publication ban in the trial of Karla Bernardo Teale. The other intervenors before me, sought leave for standing to oppose that application for an order for a ban on publication brought by Paul Bernardo Teale. Paul Bernardo Teale then abandoned his application for a ban on publication in this trial. [para6] Procedurally the following occurred: (1) By "Notice of Application" dated June 1, 1993 Paul Bernardo Teale applied for "an order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms banning the publication of the proceedings in R. v. Karla Bernardo (a.k.a. Teale) until the completion of the applicants trial." (2) By "Notice of Abandonment" dated June 22, 1993 Paul Bernardo Teale's counsel stated in the application he "hereby abandons his application for a publication ban in the proceedings of R. v. Karla Bernardo (a.k.a. Teale)" (3) By "Notice of Application" dated June 24, 1993 Paul Bernardo Teale brought an application for "an order granting Paul Bernardo Teale leave to intervene in any application to prohibit publication of the proceedings in R. v. Karla Bernardo (a.k.a. Teale)". In the factum his position was stated as follows: (a) "The prosecution has no standing to assert the fair trial interests of the applicant as a basis for limiting public access to the proceedings invoking Karla Bernardo (sic)". (b) "... the right of an accused to control the conduct of their defence is personal and absent prejudice that the legitimate interests of the accused, ought not to be scrutinized by the Court at the request of the Crown." (c) "... any attempt by the prosecution to plead 'fair trial interests' of the applicant, ought to be viewed with scepticism, particularly in light of the conduct of the police and the Attorney General." (d) "Alternatively ... any potential prejudice flowing from the publication of proceedings against Karla Bernardo Teale can be remedied by the Criminal Code provisions governing venue and jury selection." THE SUBMISSIONS ON BEHALF OF PAUL BERNARDO TEALE [para7] In addition to the submission that the Crown has no standing to bring the application on the basis of the fair trial interests of Paul Bernardo in an adversarial setting, the submissions on his behalf were: (a) Paul Bernardo Teale is prejudiced by a publication ban by reason of the past portrayal of the accused as a victim and Paul Bernardo Teale is the principal in the press to this point in time. The accused has been insulated by the police from an attack on her credibility because of the apparent plea negotiations between the Crown and the accused. An "open trial", it was submitted, will show the true facts. It is important that the public know the "deal" that she has made in the negotiated plea. (b) There is a presumption a jury will honour its oath to try the case on the facts and to follow the trial judge's instructions. The Crown has not discharged the onus on it to displace that presumption. (c) There is no evidentiary basis for the order for a temporary ban on the basis simply that the press coverage has precluded obtaining an impartial jury. (d) The remedies under the Code in respect to challenge for cause and as to venue are the protections available for the empanelling of an impartial jury. (e) The right to an open trial under s. 2(b) of the Charter is a right particularly important in a criminal trial, so that the public may scrutinize government action and the Court. [para8] Counsel for Paul Bernardo Teale emphasized that he was arguing in a "vacuum" as he has not had disclosure in the murder charges against his client. Since the Crown agreed that counsel for Paul Bernardo Teale should be present at the trial of the accused (if there was an order excluding the public in whole or in part) counsel reserved the right to reapply after the accused's trial. The Crown did not consent to give counsel for Paul Bernardo Teale standing in the accused's trial. THE SUBMISSIONS ON BEHALF OF KARLA BERNARDO TEALE THE ACCUSED [para9] Counsel for the accused supported the Crown on its application for a temporary ban on publication. Counsel submitted that the application by Paul Bernardo Teale's counsel for an open trial so that the press could rectify the alleged depiction of the accused as a victim and Paul Bernardo Teale as the principal was "trial by press." Counsel submitted that the psychological harm to the accused's family was also a real issue. His submission was that exhibit one filed by the Crown of press clippings since the beginning of this year and the press clippings in the application record of Paul Bernardo Teale, is ample evidence of the type of sensational reporting which has taken place. He submitted that an open trial will continue that sensationalism. Mr. Walker also submitted that there was trauma to the community. He submitted that if Paul Bernardo Teale wanted an open hearing he could waive his right to a publication ban at his preliminary. [para10] Several notices of application for standing were filed by the media opposing the application for a temporary ban on publication, when Paul Bernardo Teale filed his original application. After the abandonment of that application, they appeared to oppose the Crown's application for a time limited ban on publication. Opposing the Crown's application were: (1) The Toronto Star Newspapers Limited (2) Thompson Newspapers Company Limited (3) The Toronto Sun (4) The Canadian Broadcasting Corporation [para11] Also filing an application opposing a ban, or if granted, leave to be present in the courtroom if the public were excluded was Stephen Williams, an author, who described himself in his affidavit as being "established as a chronicler of Canadian culture." He deposed (and there is no reason to doubt him) that he had a contract to "author the story of the trial of Paul Bernardo Teale and all surrounding events." [para12] There has been a great deal of media attention, far out of the ordinary, not only as to the two charged with offences but also as to their families, and as to the victims' families. The Crown filed samples of newspaper clippings (between February 1993 and June 1993) which was accorded to this case (see exhibit 1). Exhibit one included press clippings with headlines and heading such as: (1) "Kristen suspect caught" (2) "Have police questioned Kristen's killers?" (3) "Sigh of relief follow arrest of suspect" (4) "Neighbours hole nightmare over for Mahaffys" (5) "French killings Women terrorized by series of rapes in Scarborough" (6) "Finally the worst is over Why so long?" (7) "Arrest sharks "new look" at other killings police say" (8) "Crime of the century Deadly Delay?" (9) "Bernard's dad Jailed 9 months for sex assaults during 1969-74" (10) "Police race time in Bernardo house probe May seek second extension of search warrant" (11) "Bernardo's lawyers feel stonewalled on evidence" (12) "Bernardo and wife charged in slayings" (13) "Stalking a killer" (14) "Cases very rare World to focus on trials" (15) "Bernardo faces new six charges" [para13] I have taken the above sampling at random from exhibit one. There were other news reports filed by counsel for Paul Bernardo Teale in his record on the application supporting the position which he took and to which I have referred, that is that the characterizations therein are such, as to depict the accused as the victim and Paul Bernardo Teale as the principal in the crimes. [para14] The United States media has also given extensive coverage to the charges (see Exhibit one, Tab 2). This area has easy access by cable, dish, aerials (even "rabbit ear" types of aerials) to many American television channels from Buffalo and other United States' cities. There can be no effective blackout of the cable television channels (See exhibit 5, Affidavit of Robert Kelly). [para15] There are also numerous radio stations in the border cities and nearby cities in the United States within broadcast range of this area. American newspapers are easily obtainable in this area. (See exhibit 5). [para16] It has been reported that the American media do no feel bound by any order (issued by a Canadian court) for a ban on publication. No objection was filed to the news reports stating that that was the position of some members of the United States media. Objection was made, however, that the articles were not admissible for the truth of those statements i.e. as being hearsay. I reserved on the issue. I rule that the statements therein are not admissible for their truth. THE ISSUES [para17] In that background, the issues before me are: (1) Does the Crown have standing to bring and application to ban publication on the basis of the fair trial interests of Paul Bernardo Teale. (2) Should a temporary ban on publication issue until after the trial of the accused Paul Bernardo Teale, in the face of the media's constitutional right to "freedom of the press and other media communication" under s. 2(b) of the Canadian Charter of Rights and Freedoms? (Such a ban would include the obtaining of transcripts of the trial.) (3) If such an order for a ban on publication were to issue, what would be its efficacy if the American media considered themselves not bound by the order? (4) Should there be an exclusion of all or any members of the public from the courtroom pursuant to s. 486.1 of the Criminal Code which provides: s. 486(1) "Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the courtroom for all or part of the proceedings, he may so order." [para18] There was no issue taken that all of the intervenors had standing and the Crown consented to their standing. [para19] I shall deal with the first issue of the standing of the Crown to bring the application for a temporary ban on publication. THE STANDING OF THE CROWN TO BRING THE APPLICATION [para20] Counsel for Paul Bernardo Teale submitted that the Crown (while it had standing) lacked standing to bring the application on the basis of the fair trial interests of Paul Bernardo Teale. The right of Paul Bernardo Teale of whether to seek a publication ban has to be respected in an adversarial system of justice, he submitted. It is not for the Crown, or the Court, to second guess the position of the defence of Paul Bernardo Teale, it was submitted. [para21] Counsel for Paul Bernardo Teale relied on two cases in this respect, R. v. Swain (1991) 63 C.C.C. (3d) 481 (S.C.C.) and Cloutier v. The Queen (1979) 48 C.C.C. (2d) 1 (S.C.C.). [para22] In the Swain case the Court considered whether the common law rule which allowed the Crown to independently raise evidence of insanity over and above the wishes of the accused was inconsistent with the Charter. The accused had plead not guilty. The Crown lead evidence of insanity over and above the accused's wishes. Lamer C.J.C. said at p. 505- 506: "Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence .... "An accused person has control over the decision of whether to have counsel, whether to testify on his or her behalf, and what witnesses to call. This is a reflection of our society's traditional respect for the individual autonomy within an adversarial system." The Court held at (p. 507-508): "That the ability of the Crown to raise evidence of insanity over and above the accused's wishes ... (did) interfere with the accused's conduct of his or her defence." The Court also said at p. 508: "Thus, although it is a principle of fundamental justice that an accused has the right to control his or her own defence, this is not an absolute right." [para23] The Court went on to say that if the accused conducted a defence which put his mental capacity for criminal intent into question, the Crown would be entitled in that case to introduce evidence of insanity contrary to the accused's wishes. [para24] Counsel for Paul Bernardo Teale submitted that just as in the Swain case the Crown could not introduce, on its own initiative, evidence which might exculpate an accused, so here the Crown could not, on its own initiative, seek to potentially ensure empanelling an impartial jury in the accused's fair trial interest. He submitted that if in the Swain case the Crown could not independently raise a defence which would exculpate an accused for criminal liability, here the Crown could not do so for what is only a potential contamination of the jury, allegedly in Paul Bernardo Teale's interest. [para25] In the Cloutier case the accused was wrongly denied a peremptory challenge by the trial judge after the accused had exercised a challenge for cause. The accused was acquitted. The Crown appealed submitting that the trial was a nullity on the basis that the jury was improperly empanelled, because the accused was denied a peremptory challenge by the trial judge. The Court held that the prosecution cannot complain about the failure of the accused to exercise a peremptory challenge whether it was the decision of the accused or of the judge (as in that case). Pratte J. said at p. 24: "The rights of peremptory challenge accorded to the accused and the prosecution are personal to each other ... The prosecution may not complain about the fact that the accused exercised or failed to exercise one of his rights to challenge ..." [para26] It was argued that, similarly, the Crown's concern for a fair trial, in this case, intrudes on a defence position personal to the accused. In this respect, the decision of counsel for Paul Bernardo Teale must be respected, counsel submitted by the Crown and by the Court. [para27] I accept that there is the right of Paul Bernardo Teale to control the conduct of his defence. I do not accept the submission that the Crown's application for a limited ban on publication, to ensure a fair trail for Paul Bernardo Teale, is an intrusion on his right to control the conduct of his defence. [para28] A fair trial is not only an individual interest in the defence of an accused, but also a societal interest. In R. v. Morin (1992) 71 C.C.C. (3d) 7 (S.C.C.) the Court considered the right of an accused to be tried within a reasonable time. In considering the accused's rights under s. 11(b), Sopinka J. said at p. 12: "The primary purpose of s. 11(b) is the protection of the individual rights of the accused. A secondary interest of society as a whole, however, has been recognized by this Court. I will address of each of these interest and their interaction. The individual rights which the section seeks to protect are (1) the right to security of the person; (2) the right to liberty and (3) the right to a fair trial ... ... Society as a whole has an interest in seeing the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect, trials held promptly enjoy the confidence of the public ..." (Emphasis added) [para29] Sopinka J. spoke of the "interaction" of the individual rights of the accused (which include a fair trial) and with society's interest as a whole. In my view, he meant the societal interest for a fair trial paralleled the right of the accused to a fair trial. [para30] In R. v. Lortie (1985) 21 C.C.C. (3d) 436 (Que.C.A.) the accused had been convicted of murder. Pending his appeal an intervenor (of the media) sought to broadcast videos of the murders (which were filed as an exhibit at the trial). The Crown opposed the publication of the video tapes depicting the murders on the ground that the showing of the video tapes on television "might be prejudicial to a fair trial" (p. 469) if a new trial were ordered. It is noteworthy that the accused in that case supported the publication of the video takes in full. That the rights of an accused and of society are parallel rights were clear, in my view, in the words of L'Heureux-Dube J.A. (as she then was), at p. 465. (She dissented on other grounds.) "Independent of the fact the appellant does not argue that his right to a fair trial may be jeopardized, the prosecution, which represents society, has the duty to secure a fair trial for the accused before an impartial tribunal." [para31] In the same case, Chevalier J.A. said at p. 475: "Unquestionably, the appellant, Denis Lortie has the right to a fair trial should ever a new trial be ordered. ... "The prosecutor also has this right. ... This balance which must exist between these two parties who may eventually face off against each other, must not be upset by a third or fourth trial taking place in the public forum ..." [para32] Therefore, the Crown has the right to bring the application on the basis of a societal right to ensure that Paul Bernardo Teale has a fair trial. By doing so, the Crown has not interfered with the right of Paul Bernardo Teale to control his defence. [para33] The societal interest in a fair trial has long been deeply rooted in a free and democratic society. If s. 11(d) of the Charter refers only to an individual right of the accused to a fair trial, the societal right to a fair trial is preserved by s. 26 of The Charter. It provides: s. 26 "The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada." [para34] It is not necessary for my finding, but it may be that a court on its own motion may do that which is necessary to control its proceedings and to ensure justice. In R. Church of Scientology of Toronto v. The Queen (no. 6) (1986) 27 C.C.C. (3d) 193 (H.C.J.) Watt J. said at p. 209: "... at common law, at least upon the application of a co-accused, a court of record had authority to suspend publication of accounts of related proceedings ... ... I am further satisfied that such authority ... is but an incident of the general authority of courts of record to do that which is necessary to regulate their proceedings and ensure justice ..." (Emphasis added) [para35] [I interject to say that similar authority may be found in R. v. R.S., unreported, a decision of Wood J. (S.C.B.C.) March 14, 1989 No. CC 881914, and R. v. Barrow (1989) 48 C.C.C. (3d) (N.S.S.C.)] [para36] That authority at common law continues in force under s. 8(2) of the Code as Watt J. in the Scientology case pointed out. While Watt J. was dealing with an application for a ban of publication by a co-accused, his remarks as to the common law authority of courts to regulate their proceedings and ensure justice are of general application. [para37] In the factum of Paul Bernardo Teale a submission by his counsel is stated as follows: "... any attempt by the prosecution to plead 'fair trial interests' of the applicant (i.e. Paul Bernardo Teale) ought to be viewed with scepticism, particularly in light of the past conduct of the police and Attorney General." [para38] The "past conduct" referred to was that the accused in the press had been depicted (falsely it was submitted) as a victim and Paul Bernardo Teale as the principal in the alleged homicides. It is alleged that the ongoing discussions between the accused and the Crown was "leaked" to the press. The result reinforced in the public perception that Paul Bernardo Teale was the principal and the accused Karla Bernardo Teale was seen as assisting the prosecution. Counsel for Paul Bernardo Teale filed such articles, published in the press. (See the "Application Record" of the intervenor, Paul Bernardo Teale). He submitted that an application ban now would shield this accused, previously depicted as a victim, from any discussion in the press as to her true role. She would continue to be seen as the alleged "victim" and Paul Bernardo Teale as the principal. Her credibility would be insulated. [para39] I cannot with respect accede to that submission. [para40] A limited ban on publication must rest on the balancing of the constitutional rights of freedom of the press and the right of a fair trial by an impartial tribunal for Paul Bernardo Teale. It should not be a decision reached on the basis of the Court's perception of trying to even out the image of Paul Bernardo Teale in the press that is submitted to have been depicted unfairly. I appreciate Mr. Breen's submission as to the alleged unfairness of the "leak". Taken at its highest, that would be a dangerous course for the Court to follow. As Chevalier J.A. said in R. v. Lortie, supra, there must not be "a third or fourth trial taking place in a public forum." [para41] From a practical point of view, counsel for Paul Bernardo Teale forcefully made the point publicly that the depiction of the image of Paul Bernardo Teale was at least unbalanced. The hearing of this application was in public. (The Crown in his opening remarks described the large number of members of the media who were in the courtroom and in the environs of the Court House.) [para42] It was submitted also by counsel for Paul Bernardo Teale that a criminal trial is an adversarial proceeding. It was submitted that, therefore, it was not in the mouth of the Crown to say that the Crown seeks an order for a temporary ban on publication for the protection of Paul Bernardo Teale's fair trial rights. Counsel referred to Bain v. The Queen (1992) 69 C.C.C. (3d) 481 (S.C.C.). In that case, the Court held that the former provisions in the Code giving the Crown 48 stand asides in the jury selection process infringed on an accused's right to a fair trial. [para43] In the Bain case Stevenson J. said at p. 527: "While I agree that the stand-by may be used beneficially I do not think we can rely on professed good intentions to uphold such a disparity ... The Crown acts within an adversarial forum. It is not unreasonable to think that there are times when the Crown's challenges or standbys are motivated by an anxiety to secure a conviction rather than a strictly quasi-judicial interest in the fairness of the trial." [para44] At p. 530 Stevenson J. said: "I see no inherent justification for giving the litigants different roles in selecting their jury If (i.e. the Crown) suggests it has no adversary interest in jury selection, I cannot commend that proposition as commanding itself to anyone observing the trial process." (Interpolation added.) [para45] It is clear that in the trial itself the Crown is in an adversarial position in the selection of the jury, and in other aspects as well. It is the Crown's duty at trial to seek a conviction, vigorously and fairly where the facts warrant it. That is an adversarial process. However, before the trial, at least, the Crown is in a quasi-judicial role. There is authority for that proposition. [See R. v. Logiacco (1984) 11 C.C.C. (3d) 374 (O.C.A.) and Boucher v. The Queen (1954) 110 C.C.C. 263 (S.C.C.) at 270.] The Crown's pre-trial role as a quasi-judicial officer is exercised when it decides to proceed summarily or by indictment in hybrid offences (a decision which affects the maximum sentence to which an accused is liable, the forum in which the case will be heard and the mode of trial of the accused). The Crown's quasijudicial role is exercised also when it has a responsibility to make full disclosure to the defence before the trial of evidence favourable to the Crown as well as evidence favourable to the defence. The Crown has the right, in appropriate cases, to decide by prosecutorial discretion if a prosecution should proceed, and if a charge should be withdrawn. Those are quasi-judicial roles of the Crown. In my view, the obligation of a Crown to bring an application to limit publication in the trial of an accused when the rights of another person to a fair trial may be affected, is an obligation of the Crown in its role as a quasi-judicial officer. I have already commented that the exercise of that role is in the societal interest, a parallel role to the individual right or interest of the accused to a fair trial. I therefore do not accept the submission that the Crown, in its adversarial role has no standing to raise Paul Bernardo Teale's fair trial interests. (I interject to say that there was no submission by the intervenors, that the Crown, otherwise, had no standing.) [para46] I distinguish the Swain case and the Cloutier cases as the Crown was there acting in its adversarial role at the trial. That is not the case here. I am dealing with a pretrial motion involving a societal interest. [para47] The Crown made reference to Paul Bernardo Teale's changed position on the request for a publication ban. Counsel for Paul Bernardo Teale responded that the change in that position was at least in part due to the refusal of the Crown to make full disclosure as to the murder charges to counsel for Paul Bernardo Teale, until after this trial. I draw no inferences against Paul Bernardo Teale for changing his position. It is not uncommon, for a person charged, to take different and even contradictory positions. That is the right of a person charged. His defence is personal. (I make this comment, in part, because counsel for Paul Bernardo Teale filed a supplementary application record which he subsequently withdrew, in part, as portions were subject to a court ordered publication ban.) [para48] Counsel for Paul Bernardo Teale submitted that, in the cases referred to by the Crown, it was always a co- accused who applied for the ban, or there was no opposition to the application for the ban. In this case, the person charged with murder arising from the same factual basis is opposing a ban of publication as not being in his interest. In R. v. Lortie, supra, the Crown opposed a ban on publication in a case where the accused objected to a ban on publication. While it was not a case where a co-accused sought the ban, the case is instructive because the accused objected to the ban on publication and it was the Crown who sought the ban. As I said, there the accused had been convicted of three counts of murder at his trial. To enlarge on the facts as I gave them earlier, video cassettes were taken in the Quebec "National Assembly" which recorded the homicides. Those tapes were admitted as exhibits at the trial. The trial judge prohibited the broadcast of the video cassettes during the trial. The accused was convicted. Pending the appeal by the accused, a motion was made by the media to broadcast the tapes. The Crown opposed the application of the publication of the video cassettes because of the prejudice which may result to a fair trial in empanelling an impartial jury, if a new trial was ordered. As here, the accused supported the media's position to permit publication of the video cassettes. The accused had plead insanity at his trial. His position on the application was that the publication of the video cassettes would enhance his defence of insanity. The Court of Appeal ruled that the video cassettes should not be shown by the media pending the appeal (with L'Heureaux-Dube J.A. dissenting). McCarthy J.A. said at p. 469: "... The Crown's argument cannot be said to be frivolous. If the situation were reversed and the appellant were objecting to the public showing of the cassettes while the Crown wanted them shown, I would have little hesitation in deciding in favour of the appellant. I see no reason to treat the Crown's objection differently. I do not think that such a temporary prohibition of public showing on the ground indicated involves any violation of any rights or freedoms guaranteed by the Canadian Charter of Rights and Freedoms." [para49] McCarthy J.A. then referred to s. 2(a), p. 11(d) and s. 1 of the Charter and said: "The order requested by the Crown in the present case, if it limits the freedom of the media of communication, will do so in a manner which in my view is permitted under s. 1." [para50] In conclusion, for all of the above reasons, I find that the Crown does have standing on the basis of asserting a societal right and interest for a fair trial for Paul Bernardo Teale, notwithstanding the objection of Paul Bernardo Teale to a ban on publication. THE PRINCIPLES APPLICABLE TO THE RIGHT OF FREEDOM OF THE PRESS AND OTHER MEDIA OF COMMUNICATION, AND THE RIGHT OF AN ACCUSED TO A FAIR TRIAL [para51] The Crown submitted that if there is a conflict between the right of freedom of the press and the right to a fair trial, the right to a fair trial prevails. Counsel for this accused supported the Crown. [para52] I received a plethora of excellent submissions from counsel for Paul Bernardo Teale and from counsel for the media. They submitted: (1) The Crown had not satisfied the onus on it to show that a temporary ban on publication was necessary or that there was a real and substantial risk for the impossibility of a fair trial. There was no evidentiary basis, it was submitted, to support such an order. (2) Less drastic remedies such as the challenge for cause and the provisions for venue were available to ensure the drafting of an impartial jury. (3) The capacity for modern juries to be able to follow their oath to try the case only on the evidence and to follow the trial judge's instructions would ensure a fair trial. There was a presumption that a jury panel could be empanelled which would be impartial and "unpolluted" by publicity. (4) The concept of open justice was essential so that government and its agencies would be in public scrutiny. This was particularly so as it was reported that the Crown and the accused had arrived at a negotiated plea or "plea bargain". It was the participants therein who sought the temporary ban on the application, it was pointed out. (5) The media was the "surrogate" of the public and have a duty to scrutinize the judicial process. (6) There was a compelling necessity for immediacy in reporting as the trial of Paul Bernardo Teale was at least 18 months to two years away or perhaps longer. (7) There has not been a reported case of publication ban when a co-accused opposed the publication ban. (8) Publication enhances a fair trial. (9) The "factors" considered in the Scientology case, supra, are not satisfied. (10) The trial must be public unless there is a compelling reason otherwise. There are none here it is submitted. (11) "Even a temporary news blackout, whose duration is unpredictable and could extend over several months is fundamentally inconsistent with free speech. News is news precisely because of its immediacy. It is for the public and journalists, not legislators, prosecutors and judges to decide when information (especially truthful information regarding public events involving judicial institutions of government) is sufficient newsworthiness to warrant immediate publication." (per David Lepofsky "Open Justice" p. 242). (12) Since the Scientology case, other cases such as R. v. Corbett, infra, R. v. Vermette, infra, as well as R. v. Hubbert, infra, have put a new gloss on the acceptance of the Court that juries are capable of trying the case on the evidence, uninfluenced by media reports. (13) The case of C.B.C. v. Dagenais (1992) 12 O.R. (3d) 239 (O.C.A.) is distinguishable as a case based on a fictional account. (Leave to appeal has been granted to the S.C.C.) (14) The "Oakes Test" of a rational connection (a publication ban) to the objective (a fair trial) is not met because there is no evidence a fair trial cannot be had. It is mere speculation. (15) The community is better served by accurate news reporting rather than rumours, if there is a publication ban. (16) Psychological harm to victims and trauma to the community due to publication ban are not considerations in law. [para53] The Crown argued that a factor, albeit not a determinative factor, was the psychological harm to innocent victims, including a child (a brother of a victim) which will be inflicted (see Ex. 4) by repeated publication of the details of the deaths of the victims, is a factor. As these events will be public in any event at the trial of Paul Bernardo Teale, the Crown submits such delay in publication will have a therapeutic effect for a child who is of tender years and for the other innocent victims. The media submitted that there was no basis, in law, for that proposition. [para54] There was also a submission by counsel for the accused that the community has been traumatized by the constant and repetitive publicity. The media submitted that there was no basis in law for that submission. [para55] I shall address those submissions in the course of a review of the law in which I have instructed myself. I start with the right to freedom of the press. 1. FREEDOM OF THE PRESS (a) AT COMMON LAW [para56] In a seminal case, Scott v. Scott (1913) A.C. 417 (H. of L.) Lord Shaw said at p. 417: "It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "In the darkness of secrecy sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any checks applicable to judicial injustice operate. Where there is no publicity there is no justice. It is the keenest spur to exertion and the surest of all guards against probity. It keeps the judge himself while trying under trial." "The security of securities is publicity." [para57] So at common law before the Charter was passed the right of a free press was guaranteed as the safeguard of the "very soul of justice." (b) THE CHARTER s. 2(b) [para58] After the enactment of the Charter in 1982, Wilson J. in Edmonton Journal v. Alberta (A.G.) (1989) 64 D.L.R. (4th) 577 (a decision of the Supreme Court of Canada) said in respect to the freedom of the press at p. 587: "Another reason for allowing the press to provide complete accounts of what goes on in the court room is that an open trial is more likely to ensure that the judge and jury conduct themselves properly so as to inspire confidence in the litigants that the procedures followed and the results reached are fair. In a criminal setting the importance of an impartial judge and jury is obvious and the role of an open trial in compelling judge and jury to act responsibly has repeatedly been noted." [para59] She said at p. 588: "In summary, the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the court room is rooted in the need (1) to maintain an effective evidentiary process; (2) to ensure judiciary and juries that behave fairly and that are sensitive to the values espoused by society; (3) to promote a Shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the Courts affects them." [para60] Wilson J. was discussing the constitutionality of Alberta civil legislation which purported to limit the publication in judicial proceedings in family law proceedings. Her remarks have wide application. She said at p. 587: "This concern is obviously not confined to criminal trials." [para61] So it is clear that freedom of the press in our legal tradition and under the Charter is a hallmark of a free and democratic society. [para62] There are, however, statutory limitations on the freedom of the press. For example, parliament has legislated restrictions on the publication of the identity of a complainant in sexual offences [s. 486(3)], restrictions on the publication of evidence at a preliminary inquiry [s. 539] and as to evidence given at a show cause hearing [s. 517]. Counsel for Paul Bernardo Teale submitted that these restrictions are mandatory at the request of the accused and permissive only at the request of the Crown. He suggested, if I understood him correctly, that parliament was less restrictive as to bans on publication in respect to a request by the accused. That is true as to s. 539 and s. 517. However it is not accurate as to the many sexual offences covered under s. 486(3) where the prohibition of the publication of the name of the complainant is mandatory in the complainant's interest and not that of the accused. These restrictions on publication, passed by parliament, are designed to ensure fair trials. [para63] In addition to statutory restrictions on the right of freedom of the press there is an inherent jurisdiction in the Court to restrict publication. In R. v. Barrow (1989) 48 C.C.C. (3d) 308 (N.S.C.A.) Nathanson J.A. said at p. 305: "This Court has inherent jurisdiction to prohibit publication and broadcast in order to protect an accused's rights to a fair trial or to protect the fairness of a trial then conducted The exercise of that jurisdiction does not contravene s. 2(b) of the Canadian Charter of Rights and Freedoms." [para64] So while we prize highly the Charter right of freedom of the press, we recognize, both by statute and by inherent jurisdiction in the Court, that in some circumstances (and specifically to protect an accused's fair trial) that limitations may be imposed. [para65] However, the limitations imposed on freedom of the press by the inherent jurisdiction of the Court are circumscribed. (c) THE LIMITATION ON A COURT TO PLACE LIMITS ON THE RIGHT OF FREEDOM OF THE PRESS UNDER THE COURTS INHERENT JURISDICTION [para66] The inherent jurisdiction of the Court to prohibit publication does not extend to the creation of a new rule of substantive law. That principle was expressed in R. v. Unnamed Person (1985) 22 C.C.C. (3d) 284 (O.C.A.). The judge of first instance prohibited the publication of the name of an accused charged with infanticide, inter alia, because the accused would suffer embarrassment and problems with her employment. The order was not subject to a time limit. There was no statutory basis for the order. The Court of Appeal held that the judge had no inherent jurisdiction in the creation of substantive law. Zuber J.A. said at p. 286: "... The limits of this power (i.e. inherent jurisdiction of the Court) are difficult to define with precision but cannot extend to the creation of a new rule of substantive law." (Interpretation added.) [para67] Therefore, the order banning from publication of the accused's name by the Motions Court judge was vacated by the Court of Appeal. [para68] In R. v. McArthur (1984) 13 C.C.C. (3d) 152 (Ont. H.C.), Dupont J. made an order prohibiting the publication of the names of witnesses who were inmates in jails. The physical safety of the inmates was in danger if their names were publicized. The judge exercised his discretion and made an order banning publication of inmates' names in the interests of "the proper administration of justice" under what is now s. 486(1) of the Code. Dupont J. said at p. 155: "... if such section provides authority to grant the order sought, it must be under the provisions relating to the interest of the public administration of justice ... ... any deviation from full disclosure of such proceedings must be restricted to the most meritorious and/or extraordinary compelling circumstances." [para69] Zuber J.A. approved of the McArthur case in R. v. Unnamed Person, supra. Zuber J.A. in doing so said at p. 286: "I think that such an order was properly within the inherent jurisdiction of the Court to protect the trial that was being conducted." [para70] It should be noted that ensuring the physical safety of the inmates was the result of the order, but it was not the focus of the order. The aim of the order was the interest of the administration of justice, so that the inmates would be able to testify and not be deterred from testifying by threats to their physical well being. [para71] The aim of the publication ban in such circumstances (i.e. as to the concern for safety of informants) was expressed by Goldie J.A. in Needham v. British Columbia (1992) 76 C.C.C. (3d) 146 (B.C.C.A.). He said at p. 155: "The safety of a witness is, prima facie, good cause to close the court and for an ancillary ban on publication. There are two grounds for this, both of which fall within the principle stated by Viscount Haldane, namely, the attainment of justice would otherwise be rendered doubtful. The first ground is the direct effect apprehension over his or her own safety may have on the probative value of the testimony to be offered by the witness in question. The second ground is the discouraging effect on other or potential witnesses if it is perceived the court is indifferent to concerns of this nature. As to the first ground, it is self-evident that the readiness of a witness to speak the truth and the whole truth will be affected if physical reprisal is the anticipated result of so doing. Such a witness may develop a high degree of forgetfulness. He may go further and wholly subvert the truth. The source of danger may not be confined to the accused in a particular trial. Nor is fear of safety confined to the person of the witness. The history of some of the drug trials in this province attest to all this. The public interest in protecting the identity of the justifiably fearful witness is in securing un-distorted and complete testimony. If this is not promoted the ends of justice will not be met." [para72] I am discussing these cases not only to show the inherent jurisdiction of the Court [within the guidelines of s. 486.1 of the Code] to restrict publication, but also to show the limitations on that jurisdiction. I do so because the Crown submitted that a factor, albeit not a determinative factor, that should be considered by me in making an order for a limited ban on publication is the fragile psychological health of two victims - one of them a child of tender years. (See Ex. 4) [para73] In R. v. P. (1978) 41 C.C.C. (2d) 377 (H.C.J. Ont.) the male accused was charged as a potential customer of a female prostitute. The Crown decided to make a test case of it. It would have generated wide publicity. The publicity would have adversely affected innocent victims, i.e. the accused's wife whose health was poor, and his children's careers who were in responsible positions. So innocent victims would suffer. The judge made the order of non publication. That was a decision of a scholarly and experienced judge. I respectfully disagree that he had inherent jurisdiction, or any jurisdiction, to do so. The report of the case cites no authorities. I note that the case was decided before the Court of Appeal decided R. v. Unnamed Person, supra, and before the Needham case, supra, which I have discussed. [para74] The "attainment of justice" (per Goldie J.A.) must be the primary purpose of an order for a limited publication ban, in the sense of advancing the interests of the "proper administration of justice." (per s. 486(1) of the Code). [para75] It is for these reasons, and with some regret, that I cannot consider as a factor what I see is a real concern for the psychological well being of the innocent victims - especially an infant. This is not a case in which I should break new ground in the law, opposed to authority, until an Appellate Court makes a determination on that issue. [para76] Similarly, submissions were made, by counsel for the accused, that trauma to innocent persons who were related to the accused was considerable. The trauma to this community by the constant publicity was also mentioned. Again, I must say I have no inherent jurisdiction to make substantive law in this area as Zuber, J.A. held in R. v. Unnamed Person, supra, an authority which is binding on me. [para77] A restriction of the public's accessibility to the Courts is also within the Court's jurisdiction. It is a right which the Court may exercise only in circumscribed limits. Dickson, J. set out the limited circumstances in which public accessibility may be limited by a court in Attorney General of Nova Scotia v. McIntyre (1982) 26 C.R. (3d) 193 (S.C.C.). In that case the Court considered the public right to access to sworn informations which were the basis for obtaining a search warrant, after the search warrant was executed. Dickson, J. (as he then was) said at p. 213: "In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of super ordinate importance. One of these is the protection of the innocent." [para78] (I interject to say that of course Paul Bernardo Teale is in law presumed innocent). Dickson, J. also said on the same page: "... The editors of 10 Halsbury (4th) state [at p. 316 para 705] the rule in these terms: "In general, all cases, both civil and criminal, must be heard in open court, but in certain exceptional circumstances, where the administration of justice would be rendered impractical by the presence of the public, the Court may sit in camera." [para79] If a fair trial cannot be obtained for the intervenor Paul Bernardo Teale (a person presumed innocent) then that is a "social value of super ordinate importance" (to use the words of Dickson, J.) whether it be by reason of publicity or otherwise. [para80] The integrity of the Court's process is also a "social value of super ordinate importance". The integrity of the Court's process requires that only admissible evidence be tendered at the trials on the many charges which the intervenor, Paul Bernardo Teale faces. The manslaughter charges against the accused Karla Bernardo Teale arise from the same facts as the murder charges (as do some of the other charges) against the intervenor Paul Bernardo Teale. It is inevitable that "facts" will be disclosed at the trial of the accused common to the charges against the intervenor, Paul Bernardo Teale. However, the "facts" said to be common to the two trials and information revealed at the trial of the accused Karla Bernardo Teale will not be tested on behalf of the intervenor, Paul Bernardo Teale. Indeed, the "facts" and information given at the trial of the accused may not be admissible against the intervenor Paul Bernardo Teale at his trial or trials. To publicize such "facts" before the trial of Paul Bernardo Teale which may not be admissible against Paul Bernardo Teale will not protect the integrity of the Court's process. In this regard, Watt, J. said in the Church of Scientology case, supra: "... It would seem clear that the purpose of any order prohibiting publication, of whatever length and whatever terms, is to protect the integrity of the Court's process not merely to minimize the embarrassment of those charged with or giving evidence of crime." [para81] While Corbett v. The Queen (1988) 41 C.C.C. (3d) 385 (S.C.C.) and R. v. Vermette (1988) 50 D.L.R. (4th) 335 (S.C.C.) were decided after the Scientology case (as counsel pointed out) the principles which Watt, J. set out with respect to protecting the integrity of the Court's process is still good law. [para82] If the accused pleads guilty that fact would be inadmissible against the intervenor Paul Bernardo Teale. (See R. v. Simpson and Ochs (1988) 38 C.C.C. (3d) 481.) [para83] I conclude, therefore, that the right of freedom of the press may be curtailed to protect a "social value of superordinate importance." (per Dickson J.) Two such values are the protection of an accused presumed innocent and the protection of the integrity of the Court's process. [para84] I turn to consider the requirement, as a societal interest, of a fair trial. THE REQUIREMENT OF A FAIR TRIAL FOR THE INTERVENOR PAUL BERNARDO TEALE [para85] S. 11(b) of the Charter gives the intervenor, Paul Bernardo Teale, the right to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal. As I have said, that is a societal interest which parallels the accused's right. Even if the Crown, as submitted by counsel for Paul Bernardo Teale, has no standing to bring an application on Paul Bernardo Teale's fair trial interest, Paul Bernardo Teale cannot waive a fair trial. If publication of the evidence in the case against the accused prejudices the fair trial of the intervenor Paul Bernardo Teale it is argued that he has waived, in effect if not formally, his right to complain that he cannot receive a fair trial. That may be intriguing; however I cannot accept it. The actions of Paul Bernardo Teale as an intervenor in this case and the submissions on his behalf, may well go to the weight of such submissions if he applies for a stay of proceedings. However will have the right to make the submissions. In view of the large number of charges he faces, in Metropolitan Toronto, here and elsewhere, the imponderables leading to an alleged waiver of his right to complain as to obtaining a fair trial are significant. [para86] If Paul Bernardo Teale is innocent his waiver of his right to later argue he cannot receive a fair trial would be tragic. If on the other hand, he is guilty, the harm done to society by a successful application for a stay would be inestimable. [para87] The right of an accused, charged on the basis of the same factual basis as another accused, to a fair trial is in delicate balance. [para88] In the Scientology case, supra, Watt, J. reviewed the right at common law to prohibit publication where several accused are charged arising from common facts. He referred to two old English cases R. v. Clement (1821) 106 E.R. 918 and R. W.I. Clement (1822) 147 E.R. 404. [para89] In R. v. Clement, supra, several accused were being tried separately for high treason. The trial judge ordered that there be no publication of any proceedings until the trials (conducted successively or nearly so) of all of the accused were concluded. On appeal, the trial judge was upheld. Bailey, J. said in that old case at p. 922: "... the Court ... had authority to make any order which they might judge to be necessary, in order to preserve the purity of the administration of justice ... in order to prohibit any publication which might have a tendency to prevent the fair and impartial consideration of the case." [para90] Holroyd, J. said in that case at p. 923: "... a Court of Record has a right to make orders for regulating their proceedings, and for the furtherance of justice in the proceedings before them, which are to continue in force during the time that such proceedings are pending ... This order was made to delay publication only so long as was necessary for the purposes of justice, leaving every person at liberty to publish a report of the proceedings subsequently to their termination. I am, therefore of the opinion, that this was an order which the Court had the power to make." [para91] Watt, J. in discussing the reasons for the Court's authority in the Scientology case said at p. 208: "... The authority (i.e. to ban publication pending trial of a co-accused) ... is rooted in and a necessary incident of the Court's authority, indeed obligation, to see that justice is done in proceedings within its judicial cognizance ... What the prophylactic order sought to achieve was the preservation of the rights of those co-accused later to be tried to a fair trial unpolluted or uncomplicated by any prejudicial references to their words or conduct which may emerge unchallenged from the earlier proceedings." (Emphasis and interpolation added.) [para92] Watt, J. also noted (at p. 217) that it is almost "common place", where accused are jointly indicted and there is a plea by one, to direct there be no publication of the fact of such plea and the "facts" tendered in support of it until the conclusion of the trial. In this case the accused and Paul Bernardo Teale, the intervenor, are not jointly indicted, but the facts giving rise to the charges are common. While the intervenor Paul Bernardo Teale does not oppose the publication of the trial of the accused the Court has the "authority, indeed the obligation, to see that justice is done" (per Watt, J. supra). [para93] I turn to consider the circumstances where the right of freedom of the press and the right to a fair trial are competing interests. THE BALANCING OF THE RIGHT TO A FAIR TRIAL AND THE RIGHT TO FREEDOM OF THE PRESS UNDER s. 2(b) OF THE CHARTER [para94] Courts have held that the right of a fair trial and un-prejudiced trial has paramountcy over the right of freedom of expression, if the two conflict. In Re Canadian Newspapers Co. Ltd. and The Queen (1984) 16 C.C.C. (3d) 495, (Man. C.A.) Monnin, C.J.M. of Manitoba said at p. 500: "... I have no difficulty in saying that one of these two rights, namely the right to a fair and unprejudiced trial, must have paramountcy over the right of freedom of expression. Great harm will occur if an accused is not assured of a fair trial and an unprejudiced hearing and for a temporary period of time there must be limitations on the freedom of expression". [para95] A similar view was expressed by Smith, J. in Re Southam Inc. and The Queen (No. 2) (1982) 70 C.C.C. (2d) 264 (H.C.J. of Ont.) at p. 267 where Smith, J. said: "... and when the two interests, namely, the freedom of the press and the right of an accused person to have a fair and unprejudiced trial, competed one with the other, the second was invariably held to be paramount..." [para96] [See also R. v. Banville (1983) 3 C.C.C. (3d) 312 at p. 316 (N.B. Q.B.).] [para97] In R. v. Sophonow (No 2.) (1983) 34 C.R. (3d) at p. 287, (Man. C.A.) Hall, J.A. said at p. 291: "Freedom of the press and the right of an accused to a fair trial so expressed, are not difficult to reconcile if it is recognized that freedom of the press is not conferred in absolute terms but carries with it a quality of restraint, that is to say, the freedom will be exercised reasonably with due regard to the right of an accused person to a fair trial as expressed in s. 11(d) of the Charter." [para98] In Southam v. Brassard (1987) 38 C.C.C. (3d) 74 (Que. S.C.) Boilard, J. said at p. 74: "... A balance must always be struck between the right of the media to disseminate news and the right of an accused to a fair trial. As soon as this balance is upset or risks being upset, the right to a fair trial must take precedence over the freedom of the press." [para99] In C.B.C. v. Dagenais et al. (1992) 12 O.R. (3d) 239, (O.C.A.) Dubin, C.J.O. said at p. 245: "... However, where there is a conflict between these two values (i.e. right to a fair trial and freedom of the press), or indeed a conflict between any of the values enunciated in the Charter, the Court is again called upon to balance them, and as was the case before the Charter, if there is a conflict between freedom of expression and a fair trial, then the right to a fair trial is held to be paramount". [para100] In R. v. Dalzell (1991) 63 C.C.C. (3d) 134 (O.C.A.) Finlayson, J.A. said for the Court at p. 148: "... Usually in cases involving non-publication orders there is a conflict between the two Charter rights: one being the right of the accused to a fair trial under s. 11(d) of the Charter and the other being the right of the media to report the proceedings pursuant to s. 2(b) of the Charter. Where these two rights compete, there must be a weighing of them and the exercise of judgment and discretion as to which rights is to prevail." (Emphasis added) [para101] (In the latter case leave to appeal to the Supreme Court of Canada was dismissed, on June 13, 1991). [para102] In the balancing process, Watt, J. suggested factors which should be considered. In the Scientology case he said at p. 221: "... factors such as the nature of the election of the remaining co-accused, the imminence or otherwise of future trial proceedings, the nature of the evidence to be disclosed upon the plea of guilty and the likelihood of its publication, the perceived adequacy or otherwise of the traditional procedural mechanisms, as for example change of venue and challenge for cause, to ensure a fair trial, and the precise terms of the order sought". [para103] I considered those factors outlined in the Scientology case, supra, as follows: (1) The Nature of the Election by the Intervenor Paul Bernardo Teale [para104] If the trial of Paul Bernardo Teale were judge alone there would be less basis for a publication ban. It is not unreasonable, in my view, to presume that there will be a judge and jury trial for at least some of the many charges he faces. (2) The Imminence of Future Proceedings [para105] Here the trial of Paul Bernardo Teale may be well into the future. Normally, this would minimize the effect of the press coverage of the first trial. However, the Courts have noted the tendency of the media to refresh the public's minds just before an interesting or sensational trial [See R. v. Lazell (1988) 48 C.R.R. 258 (H.C.J.) and Re Pilzmaker and Law Society of Upper Canada (1989) 70 O.R. (2d) 126 (Ont. Div. Ct.)]. In R. v. Lazell the judge permitted publication until "about" six months before the trial. In this case the facts are less likely to be forgotten by the public in view of the very considerable media coverage which has already taken place. In any event, such an order will be of little effect, if any, on the American media who are not subject to the jurisdiction of this Court unless they attorn to this jurisdiction. (3) The Nature of the Evidence to be Disclosed [para106] The evidence at this trial would be untested by the intervenor Paul Bernardo Teale. The charges arise from the same factual background. Such untested evidence would be highly prejudicial to the intervenor Paul Bernardo Teale, especially if inadmissible against him. It will likely contain numerous references to Paul Bernardo Teale, as the charges arise from a common set of facts. (4) The Likelihood of Publication [para107] This is inevitable. (5) The Adequacy of Other Procedural Mechanisms [para108] The effect of utilizing challenge for cause (because of the limitations in the procedure) in these extraordinary circumstances of mass publicity, is not as efficacious as normally. I considered R. v. MacGregor (unreported of Charron, J. in December, 1992 in Ottawa). There was much publicity in Ottawa in a murder case. It was held that publicity prevented a fair trial by jury, in spite of the challenge for cause procedure available. A change of venue in this particular case may be problematic in view of the broad publicity across the province. (6) The Terms of the Order [para109] With the assistance of terms to be suggested by counsel (upon whom I shall call) present publication may state, for example, the fact of conviction (but not the plea), whether there was a joint submission, perhaps why manslaughter charges were laid, the position of the victim's families, the principles of sentencing considered by the trial judge, whether the accused is a danger to the public and of course, the sentence. [para110] This would preclude the reporting of the facts common to the charges against the accused and Paul Bernardo Teale and would also inform the public of the essential information required for the public. [para111] I turn to discuss the efficacy of any order as to such partial reporting in view of the fact that the Court has no jurisdiction over the American media controlled outside of the country. THE AMERICAN MEDIA [para112] There has been extensive coverage of this case in the American media which are geographically nearby. The American media, with different legal traditions, are not subject to any order of this Court unless they attorn to the jurisdiction. [para113] R. v. Banville (1982) 69 C.C.C. (2d) 520, was a case where the accused was a reporter for the Bangor Daily News. He reported news in the border communities of Edmunston, New Brunswick and Madawaska, Maine. The accused reported news, contrary to an order for a publication ban, in his newspaper published in Maine, and distributed there and in Canada. At the trial of the accused, who attorned to the jurisdiction, for contempt Harper Prov. Ct. J., said at p. 530: "... The fact that he may actually have composed the final draft of his story in the State of Maine is of no consequence. This Court finds that it has jurisdiction both over the person and the offence." [para114] An appeal was dismissed by Hoyt J. [reported at (1983) 3 C.C.C. (3d) 312 (N.B.Q.B.)]. [para115] A comparison of our two legal traditions was considered in Re Global Communications Ltd and the Attorney General for Canada (1984) 10 C.C.C. (3d) 97 (O.C.R.), Thorson, J.A. said at p. 110: "The central thrust of the submission in this regard made by counsel for the appellant before this Court, as before Linden J., is that in the United States, being itself a free and democratic society and, as well, the very country in which the fugitive in this case will stand trial if committed in Canada for extradition, prior restraint of the press is an exceptional procedure. This, it is said, is demonstrated by the decision of the U.S. Supreme Court in Nebraska Press Ass'n et al. v. Stuart, Judge, et al. (1976), 427 U.S. 539, in which the Court observed that the 'barriers to prior restraint remain high and the presumption against its use continues in tact'". [para116] Thorson, J. continued: "It will be seen from the latter passage that what is there being discussed are two different approaches to achieving the same goal, namely, the protection of the accused's right to a fair trial. That the approaches are indeed different is, I think, undeniable. It is true that generalizations about the approach followed in the United States are somewhat unsafe because there are differences from state to state, and even the decisions of the United States Supreme Court appear less categorical than the Nebraska case might suggest: see for example the more recent decision of that court in Gannett Co., Inc. v. Depasguale, etc., et al. (1979), 443 U.S. 368. Generally speaking, however, the approach taken in the United States seems to be to allow for the widest possible latitude in media reporting of events transpiring prior to and during the course of the trial of an accused person. This is counterbalanced in the interests of ensuring an impartial and unbiased jury, in a number of ways including, during the jury selection process, by an often searching examination into the attitudes, biases and even the personal and financial affairs of potential jurors and, after the jury selection process has been completed, by the sequestration of the members of the jury while the trial is in progress to reduce the risk of their exposure to the media and other publicity generated by it. In Canada, by contrast, the process of jury selection is neither as prolonged nor as exhaustive as a general rule; indeed the kind of questioning and probing into the affairs of potential jurors that is sometimes seen in the United States would be unlikely to be permitted under our system. Moreover, in Canada the sequestration of jurors throughout a trial occurs only exceptionally. The strong bias of our system is to prevent the dissemination before the conclusion of the trial of media publicity that might be prejudicial to the accused's fair trial." (Emphasis added) [para117] Thorson, J. continued: "I offer no comment on the relative merits of the two different approaches, except to say that each shares the common objective of seeking to ensure a fair trial but comes at that objective from a different tradition of legal history." [para118] I am satisfied, subject to such further submissions which I may hear, that there is little or no efficacy to any order for a ban on publication in so far as the United States media is concerned if the court room is open to the United States media, as the Court has no jurisdiction over the publisher. For reasons enunciated by Thorson, J.A. supra, I note that they have a different legal tradition, which I respect. [para119] That creates a further problem because if the public has access to the Court there would be nothing to prevent the American media from having a "source" in the courtroom either by plan or otherwise, whose identity would very likely not be revealed by the American media. Indeed that "source" may also not be a Canadian. [para120] I turn to discuss the submission that modern day jurors can put out of their mind on proper instruction, what they have read in the newspaper, saw on television or heard on the radio. That, coupled with the procedures in the Code for challenge for cause and as to venue, it is submitted can ensure the empanelling of an unprejudiced jury. [para121] (I interject to say that while trial by judge alone may be available to Paul Bernardo Teale that is not an entirely unfettered right, but see R. v. McGregor (1992) O.J. No. 3040, Charron, J. where the Court held that the Crown could not refuse to consent to a judge alone trial in a murder case. In that case, excessive publicity precluded a trial by jury. Of course, trial by jury is a constitutional right of an accused). THE SAFEGUARDS IN THE JURY SELECTION PROCESS AND PROVISIONS AS TO CHANGE OF VENUE [para122] Courts have regularly paid due deference to the capacity of juries to disassociate from their minds what they heard, saw or read and try the case on the evidence. In R. v. Hubbert (1975) 29 C.C.C. 279 [affirmed (1977) 2 S.C.R. 267 (S.C.C.)] the Ontario Court of Appeal adopted what Seaton, J.A. said in R. v. Makow (1974) 28 C.R.N.S. 87 at p. 94: "Today's jurors are intelligent people, well able to put from their minds something they heard elsewhere. While engaged in a tense jury trial they will not hark back to something heard elsewhere that they have been told to disregard. I have not heard it suggested that a trial judge who has heard about a case is not competent to decide it and I do not think that his capacity to reject what he heard before is unique. Jurors, too, are able to decide upon the evidence." The Court of Appeal also said at p. 289: "There is an initial presumption that a juror ... will perform his duties in accordance with his oath." [para123] The Supreme Court of Canada, in R. v. Vermette, supra, approved R. v. Hubbert, LaForest J. said at p. 392, "... In an extreme case (and the present certainly qualifies) such publicity should lead to challenge for cause at trial, but I am far from thinking that it must necessarily be assumed that a person subject to such publicity will necessarily be biased". [para124] In R. v. Corbett (188) 41 C.C.C. (3d) 385, Dickson, C.J.C. said at p. 401: "... The Court should not be heard to call into question the capacity of juries to do the job assigned to them". [para125] However, parliament recognized the potential for prejudice in the minds of jurors potentially caused by the publication of evidence at preliminary hearings and at show cause hearings. I appreciate that those provisions are mandatory only at the insistence of the accused; however, I am mindful of the right of the Crown in this case to assert the societal right to a fair trial where excessive publicity will prejudice an impartial jury. The Courts in exercising their inherent jurisdiction to ban publication recognize the danger of excessive publicity. [para126] In R. v. McGregor (December 31, 1992 unreported, a decision of Charron, J.) the accused was charged as, I had indicated with first degree murder of his wife by the use of a cross-bow. In that case Charron, J. accepted, apparently, the evidence of an expert of social science and law. She said at p. 4: "... He (referring to the expert) testified that while challenges for cause can certainly be of much assistance in ensuring a jury be impartial, there are certain particular difficulties in cases of massive pretrial publicity where emotions run high and where there is a perception of an apparent societal consensus as to the desired result. In such cases it is more difficult to identify those prospective jurors who lack the required impartiality through the challenge for cause process particularly under our Canadian system of law which does not permit an in depth probe into the prospective juror's beliefs and opinions. Further in such cases, the group decision process often serves to polarize the jurors initial beliefs and opinions". (Interpolation added) [para127] The expert in that case expressed the opinion that the likelihood of empanelling an impartial jury was quite low. A poll had been taken professionally. Of course, there is no such evidence before me. [para128] Each case must be decided on its own merits, considering whether publicity was intensive, whether there were peculiar features of the case that would stay,in a juror's mind, whether publicity was widespread, whether the publicity was repetitive, et cetera. A court must exercise its discretion. CONCLUSION [para129] The task before me was stated succinctly by Finlayson, J.A in R. v. Dalzell, supra, at p. 147: "... the trial judge should concentrate on protecting the integrity of the trial process for the benefit of the accused and the public alike ..." [para130] In instructing myself, I have considered the important Charter right of freedom of the press, the societal right to a fair trial, the protections in the Code's procedure for empanelling a jury and as to venue, presumption that a jury can disassociate its mind from media influence. All of these considerations go to the consideration of protection of the integrity of the trial process for the public. [para131] In considering the protection of the integrity of the trial process for the public I must keep in mind that if the accused is guilty of the multitude of serious charges he is facing it is essential he be tried and no fault be found in the court process. That, of course, applies as well if he is found innocent. [para132] I am satisfied that there are here "exceptional circumstances" (per Dickson, J. in the McIntyre case), and "extraordinary compelling circumstances" (per Dupont J. in the McArthur case) which have sufficient weight that they require the Court to protect the integrity of the trial process in the interests of the public by imposing a temporary and partial ban on publication of the trial. [para133] Those extraordinary and exceptional circumstances are: (1) The publicity has been widespread, massive and repetitive and no doubt will continue. It may reach the "dew point" of whether an impartial jury can be selected. (See exhibit one and the articles in the Application Record of the intervenor, Paul Bernardo Teale). (2) The evidence or "facts" read in at the trial of Karla Bernardo Teale are not evidence against Paul Bernardo Teale, but arise from the same factual situation and should not be publicized in view of the massive publicity attendant upon this trial and in view of the many charges he faces. (3) Inferences may be drawn improperly from the fact that the accused and Paul Bernardo Teale lived together as man and wife in the same house. (4) This Court has no jurisdiction over the American media in so far as its publishers are concerned, which media has also given broad coverage to this trial. (5) The charges against Paul Bernardo Teale are extraordinarily serious and numerous, including two charges of first degree murder. [para134] I believe that the considerations for a fair trial outweigh the right to freedom of the press in these exceptional circumstances. [para135] Mr. Henry on behalf of the Canadian Broadcasting Corporation urged on me that the test in cases of excessive publicity is whether "there is a real and substantial risk that a fair trial would be impossible" as stated in C.B.C. v. Dagenais, supra, I do not accept that high standard as the proper test. It is the test for granting an injunction which is an extraordinary equitable remedy. That was the issue before the Court in the Dagenais case. [para136] I accept that there is a presumption that the procedures set out by parliament in the Code will provide a fair trial. I also accept that there is a presumption that a juror will honour his/her oath to try the case on the facts and to follow the trial judge's instructions. I also accept that the onus is on the applicant (here the Crown) to establish that there are exceptional circumstances. I find the Crown has satisfied that onus. [para137] I am prepared to make the following order under s. 486(1) of the Criminal Code in the interests of the proper administration of justice: (1) The Canadian media on proof of accreditation to the Court Services Manager will be admitted to the trial. (2) For reasons given the public will be excluded from the court room except: (a) The families of the victims, (b) The families of the accused, (c) Counsel for Paul Bernardo Teale, (d) The Court's Law Clerk (3) For reasons given the foreign press is excluded from the court room. (4) There will be no publication of the circumstances of the deaths of any victims referred to during the trial and they shall not be revealed directly or indirectly to a member of the foreign press. [para138] As I indicated, I shall permit the reporting of part of the proceedings. Before making a final ruling, I shall hear submissions on the matter. [para139] The following are the matters that I would ask submissions on: (1) The contents of the indictment may be reported. (2) Whether if there is a joint submission as to the sentence may be reported. (3) Whether a conviction was registered but not the plea. (4) The sentence. (5) That part of the judge's reasons on the sentencing under the following headings: (a) The prosecutorial discretion (b) The principles of sentencing applied. (6) The evidence as to whether the accused is a danger to society but not including any reference to Paul Bernardo Teale's relationship with the accused. (7) The order for non-publication would apply to the transcript of the trial proceedings. (8) The order for the non-publication shall be temporary until the completion of the trial of Paul Bernardo Teale on the two first degree murder charges he is facing. ("Submissions by Counsel") [para140] Having heard submissions on the terms of the order, I make the following order under s. 486(1) of the Criminal Code in the interests of the proper administration of justice: (1) The Canadian media on proof of accreditation to the Court Services Manager may be admitted to the trial. (2) For reasons given, the public is excluded from the court room except, (a) the families of the victims, (b) the families of the accused, (c) counsel for Paul Bernardo Teale who will not have standing, (d) three police officers, (e) the Court's law clerk, Ms. Padeanu (3) For reasons given the foreign media is excluded from the court room. (4) There will be no publication of the circumstances of the deaths of any persons referred to during the trial. [para141] The following may be published, (1) The contents of the indictment. (2) Whether there was a joint submission as to sentence. (3) Whether a conviction was registered but not the plea. (4) The sentence imposed. (5) That part of the Court's reasons under the following headings: (a) The prosecutorial discretion (as referred to in the judge's reasons only), (b) The principles of sentencing applied by the Court. (c) The remarks of the Court in passing sentence on the issue of whether the accused is a danger to the public. [para142] The order for non-publication shall apply to the transcript of the trial proceedings. [para143] The order as to non-publication shall be temporary until the completion of the trial of Paul Bernardo Teale on the two first degree murder charges he is facing, or as further ordered by the Court on application and on notice to the intervenors represented today. [para144] I address a few points raised by counsel. (1) Any evidence as to the psychiatric evidence on the issue of whether the accused is a danger to the public is not to be reported. I make that ruling because it is not admissible at the trial of Paul Bernardo Teale. The societal concerns of his fair trial interests were a significant part of my reasons. (2) For the same reasons as above the evidence of a plea, which would not be admissible at the trial of Paul Bernardo Teale, save as to a limited purpose, shall not be reported. The fact of a conviction may be reported. (3) I shall not limit the publishing to 90 or 120 days as requested by the Crown. The purpose of my order is to report proceedings not prejudicial to the societal interest for a fair trial. Therefore the reporting of those events are not prejudicial to Paul Bernardo Teale's trial. (4) On the issue of prosecutorial discretion, only the Court's reasons only for sentencing will be reported. The Crown's remarks as indicated by the Crown should not be reported. In this way if there is a common element it will not work to the prejudice of the societal interest for the fair trial of Paul Bernardo Teale. THE APPLICATION OF STEPHEN WILLIAMS [para145] I also have the application of Stephen Williams who seeks to be excluded from the order excluding the public. He seeks that order as an exception because he is a historian and an author. My order is designed for representation of the public to be present through the media and not otherwise. Logic compels me to exclude Mr. Williams. His interest is a private interest in a book contract. I respect the Charter Right of Freedom of Expression by authors. However, he does not represent the public at large. He represents a limited number of the public. His rights will not be infringed as he will have the right to obtain a transcript after the publication ban expires, as will the press and any other member of the public who so desires. [para146] I appreciate the submission made on his behalf that he is one who is interested in far more than the printed word of the proceedings; however, I regret that I cannot permit him to be present. [para147] I appreciate that the media also has a material interest in these proceedings; that is not the distinction. As I have said, the Courts on higher authority have recognized the rights of the media under freedom of the press. Despite the able arguments of Mr. Tomlinson, I regret that I cannot accept Mr. Williams as one excluded from my order.