R. v. Mastop

2010 BCSC 1961 R. v. Mastop

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Mastop, 2010 BCSC 1961 Date: 20100511 Docket: 25279 Registry: Vancouver Regina v. William Jacob Mastop Ban on Publication; s. 648(1) and Inherent Jurisdiction Before: The Honourable Madam Justice H. Holmes Oral Ruling on Application for Ban on Publication of Subject-Matter of Discussions at Pre-Trial Conference, including Crown Synopsis In Chambers Counsel for the Crown: D.A. Jardine C. Giles Counsel for the Accused: E.D. Crossin, Q.C. Place and Date of Hearing: Vancouver, B.C. May 11, 2010 Place and Date of Judgment: Vancouver, B.C. May 11, 2010 [1] THE COURT: I agree that a publication ban should issue, as both Crown and defence counsel request, in relation to matters discussed at the pre-trial conference. The order is based both on s. 648(1) of the Criminal Code, as supplemented by s. 645(5) (which essentially applies the restrictive effect of s. 648(1) at the earlier pre-trial stage), and on the court's inherent jurisdiction to limit or defer entitlement to publish the content of court proceedings. We can discuss its precise terms in a few minutes. [2] I conclude for the following reasons that the requested ban should issue on a discretionary basis, as well as on what Mr. Giles describes as the mandatory basis flowing from the combined effect of s. 648(1) and s. 645(5). [3] The trial will be before a jury. The

integrity of the trial process must be protected. [4] Also, the very purpose of a pre-trial conference is inconsistent with a public dissemination of its content. As s. 625.1 makes clear, pre-trial conferences are for case management, their purpose to ensure that the trial will proceed as efficiently and effectively as possible (to "promote a fair and expeditious trial"). [5] This purpose also animates the Court's Criminal Rules, enacted under the authority of the Criminal Code. Rule 5(6) expressly repeats the language of s. 625.1 in describing the purpose of a pre-trial conference as being ". . . to consider such matters as will promote a fair and expeditious trial". To further that purpose, Rule 5(7) provides for "...a full and free discussion of the issues raised...". [6] Under a recent Practice Direction (Criminal Pre-Trial Conference Pilot Project, issued on February 1, 2010), the Crown in certain court locations (including Vancouver) must file a Synopsis of its case, to assist the pre-trial conference judge in the management of the case. The Synopsis provides a non-binding overview of the Crown's allegations and the evidence it expects to tender in the trial, as at the time of the pre-trial conference. [7] Pre-trial conferences do not involve the calling of evidence or an adjudicative process. Rule 5(7) provides expressly that they are to be conducted in chambers, while

also on the record. Thus in this jurisdiction most pre-trial conferences involve only the court and counsel, without the accused person required or choosing to appear. [8] As Mr. Giles submits, the proper and intended function of the pre-trial conference would be greatly diminished if the topics and the details of the discussion at the pre-trial conference were subject to publication before the completion of the trial that the conference is intended to manage. [9] As to the scope or terms of the ban on publication, Mr. Giles, I believe you suggested that it should apply to the evidence mentioned at the pre-trial conference. I would be more inclined to describe it slightly differently, perhaps drawing from the language of s. 517, for example. Section 517 is the provision allowing for orders restricting publication in relation to a bail hearing, albeit, unlike here, an adjudicative process. I would appreciate counsels' submissions on this matter, but suggest that the present ban might be similarly framed as applying to "...the evidence described, the information given, and the discussions at the pre-trial conference...". Such a ban would not be intended to apply to the publication of information or discussions disclosed through some other means than the pre-trial conference. [10] MR. GILES: Well, I would agree with that. It does appear broader, but that is the way 517 sets out

the ban. Certainly this is the way the evidence is described in a pre-trial conference. In a lot of ways, it's similar to a bail hearing in that there's no real evidence called and these are representations that are being made. So I'd be in agreement with that, My Lady. [11] MR. CROSSIN: I tend to Your Ladyship's thoughts on it, but I think it should pertain to the subject matter of discussions at the pre-trial conference relevant to and in relation to the trial of the matter. Because I think without the scope of that kind of language, we would end up parsing submissions, and in my view that is all we will be doing in any event, is pursuing those matters in relation to pre-trial issues associated with trying this matter. [12] THE COURT: So the language you used, if I have it correctly, is that the ban would relate to matters discussed at the pre-trial conference. [13] MR. CROSSIN: Relevant to the trial. [14] THE COURT: Well, I would have to think there would not be any other matters discussed at the pre-trial. [15] MR. CROSSIN: Precisely. [16] THE COURT: All right. With nothing further, there will be a ban on publication of the subject matter of discussions at the pre-trial conference, including the content of the Crown Synopsis. As to its duration, I appreciate that s. 648 extends the ban until the jury retires to consider its verdict. However, exercising the Court's inherent jurisdiction I would extend the ban's duration until the jury renders its verdict. "H. Holmes, J." The Honourable Madam Justice H. Holmes