R. v. Garnier

R. v. Garnier

Applying the Dagenais/Mentuck framework and the factors in s.486, the judge found a real and serious risk to the proper administration of justice and to the willingness of witnesses to assist if the voir dires proceeded publicly with potential publication of irrelevant prior sexual conduct; reasonable alternatives were inadequate and the salutary effects of in camera hearings outweighed deleterious effects, therefore the two voir dires (O'Connor and Prior Sexual Conduct applications) must be heard in camera and associated non‑relevant material sealed, while any evidence deemed relevant at trial will be heard in open court and may be published.

Citation
2017 NSSC 238
Parties
Prosecutor: Her Majesty the Queen; Accused: Christopher Garnier
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
7 September 2017
Procedural Posture
Criminal (second Degree Murder and Interference With Human Remains) / Pre Trial Voir Dire (applications for in Camera Hearings and Publication Ban)
Outcome
Crown's applications granted: the O'Connor Application and the Prior Sexual Conduct Application will be heard in camera; publication ban on identity of V.H. allowed; O'Connor materials remain sealed; any prior sexual conduct evidence ruled admissible at trial will be heard in open court.
Legal Topics
Voir Dire, Prior Sexual Conduct Admissibility, Publication Ban, Open Court Principle, Dagenais/mentuck Test, Section 486 Criminal Code, Rape Shield Considerations (s.276 Guidance), O'connor Application
Source Language
English
Criminal Law Evidence Constitutional Law (freedom of Expression) Administrative/judicial Procedure Voir Dire Prior Sexual Conduct Admissibility Publication Ban Open Court Principle +4 more

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Parties

Her Majesty the Queen

Prosecutor

Christopher Garnier

Accused

Procedural Posture

Criminal (second Degree Murder and Interference With Human Remains) / Pre Trial Voir Dire (applications for in Camera Hearings and Publication Ban)

Legal Issues

  1. 1 Whether two pre-trial voir dires touching on Catherine Campbell’s and V.H.’s prior sexual conduct should be held in camera
  2. 2 Whether s.276 Criminal Code applies and if not which statutory or inherent powers permit exclusion of the public
  3. 3 Whether application of the Dagenais/Mentuck test and s.486 factors justifies restricting press access

Ratio Decidendi

Applying the Dagenais/Mentuck framework and the factors in s.486, the judge found a real and serious risk to the proper administration of justice and to the willingness of witnesses to assist if the voir dires proceeded publicly with potential publication of irrelevant prior sexual conduct; reasonable alternatives were inadequate and the salutary effects of in camera hearings outweighed deleterious effects, therefore the two voir dires (O'Connor and Prior Sexual Conduct applications) must be heard in camera and associated non‑relevant material sealed, while any evidence deemed relevant at trial will be heard in open court and may be published.

Court Disposition

Crown's applications granted: the O'Connor Application and the Prior Sexual Conduct Application will be heard in camera; publication ban on identity of V.H. allowed; O'Connor materials remain sealed; any prior sexual conduct evidence ruled admissible at trial will be heard in open court.

Orders

  • The O'Connor Application and the Prior Sexual Conduct Application shall be heard in camera.
  • Publication ban on the identity of V.H. is allowed.