C.R.141404 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN DANY KANE DECISION ON APPLICATION FOR STAY OF PROCEEDINGS HEARD: at Sackville, Nova Scotia before the Honourable Justice Felix A. Cacchione on September 23rd, 1998 DECISION: September 28th, 1998 (Orally) COUNSEL: Pierre Lapointe and Chris Morris, for the Crown Dani6le Roy and Isabelle LaMarche, for the Defence (Applicant) J. The accused, Dany Kane, is charged with murder in the first degree. He did not have the benefit of preliminary inquiry as result of the Crown preferring the indictment against him. There is no evidence before the court on the merits of the case as the trial has yet to begin. The accused brings this application for a stay of proceedings alleging that his rights under ss.11(d) and 11 (f) of Canadian Charter of Rights and Freedoms have been infringed due to the pre-trial publicity generated by this case. The applicants position, in short, is that the pre-trial publicity has prejudiced his right to be tried by an impartial jury of his peers. It is also argued that the security measures presently in place and focussed on by the media have instilled in the general populous climate of fear which makes the selection of an impartial jury impossible. It is argued by the applicant that prejudicial information, which has yet to be ruled admissible by this Court, is contained in many of the media reports aired to date. Reference is made to the following prejudicial comments contained in the news report; (a) the description of Mr. Kane as the accused killer not the alleged accused killer, (b) to Mr. Kane having links with the Hells Angels Motorcycle Gang; (c) to Quebec bikers being notorious for bombings; (d) to an incident during biker trial held in Montreal where car was driven up the courthouse steps; (e) to the RCMP belief that this case was contract killing involving the Hells Angels; (f) to the police taking extra precautions because the case is linked to bikers; (g) to the police saying the accused has ties to violent faction of the Hells Angels; (h) to the accused being transported by three van loads of heavily armed RCMP officers; (i) the escorting of the handcuffed accused into the courthouse. As well it is submitted that coverage about this trial being held in location other that the Law Courts Building together with the extensive security arrangements in place, such as cement barricades surrounding the building, external surveillance cameras, metal detectors, twenty-four hour per day perimeter patrols by civilian clothed RCMP officers and the transportation of the accused to the courthouse by what the media describes as heavily-armed guards travelling in bullet-proof vehicles have made it impossible for this accused to be tried by an impartial jury of his peers. The appellant's position is that the comments noted above coupled with very brief interview of two persons living near the make-shift courthouse who indicate that they are nervous because of the heightened security have made it impossible for the accused to receive fair trial. The applicant argues that these eight television news broadcasts aired at peak times on September 10th, 11 th, 15th, 16th and 17th together with five radio broadcasts aired on September 15th and 16th have created an atmosphere of fear and terror surrounding Mr. Kane's trial such that it will be impossible for him to get fair trial by an impartial jury. The applicant submits that this information is such that it would reasonably be expected to taint the accused in the eyes of the public and that potential jury has been irreparably prejudiced against him. It is the applicant's position that there is reasonable apprehension of bias such that Mr. Kane's rights have been or may be infringed. The Crown respondent acknowledges that the incident in Montreal where car was driven up the steps of the courthouse was not linked to the Hells Angels and that the reporting of this link is clearly wrong. The respondent argues essentially two points, these being: (a) that the applicant has not discharged its burden of proving on balance of probabilities that his Charter rights have been breached; and (b) that the application is premature because no attempt has been made to determine if an impartial jury can be selected. The respondent's position is that it is insufficient to simply say that there has been adverse publicity and therefore the applicant cannot receive fair trial because of that publicity. The respondent submits that the test is what effect has this publicity had on potential jurors and whether that effect is such that it precludes potential jurors from putting aside their preconceptions and judging the case on its merits. It is suggested that simply because two persons living near the courthouse have been made nervous by the visible security arrangements does not necessarily mean that all potential jurors will suffer that same effect to the point of not being impartial. It is clear that some of the pre-trial publicity has covered things which were factually wrong or things which have not, to-date, been established in evidence. It is also true that the media coverage has been sensational and inflammatory by focussing on the security arrangements presently in place. However, the pre-trial publicity generated in this case pales in comparison to the media coverage preceding the criminal trial in the Westray Disaster and in the trials of the Christian Brothers involved in the Mount Cashel abuse cases. In R. v. Kenny (1991), 1991 CanLII 2738 (NL SC), 68 C.C.C. (3d) 36 the accused was charged as result of incidents occurring at Mount Cashel. He applied for Stay of Proceedings on the basis of adverse pre-trial publicity. In his ruling on this application Barry, J. outlined the type of media coverage which preceded the commencement of Mr. Kenny's trial. Justice Barry noted that public inquiry, held before Mr. Kenny's trial, heard from twenty former residents of Mount Cashel who testified under relaxed rules of evidence about the abuse they suffered at Mount Cashel at the hands of various members of the Christian Brothers organization. The vast majority of the public inquiry was broadcast on cable television network covering 83% of the households in the area from which jury panel was to be selected. He noted as well that the story of the Mount Cashel abuse including video taped portions of the inquiry testimony of abuse victims was played and re-played both locally and nationally throughout the period from the commencement of the inquiry through to the date of Mr. Kenny's trial. In two year period leading up to Mr. Kenny's trial, in Newfoundland alone, there were 525 news stories involving 330,000 words relating to the abuse at Mount Cashel. Stay of Proceedings based on the unprecedented amount of prejudicial pre-trial publicity was denied in that case. The issues before me are: (a) has the appellant established on balance of probabilities that the circumstances of this case violate his right to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal under s.11(d) or his right to jury trial under s.11(f) of the Canadian Charter of Rights and Freedoms; and (b) if there has been violation of the accused's Charter rights is the proper remedy Stay of Proceedings. THE LAW It is well noted that in Charter cases the burden of establishing Charter violation rests with the applicant on balance of probabilities. R. v. Mack (1988), 44 C.C.C. (d) 513. The law applicable to Stay of Proceedings applications is clear and has been set out in various decisions of the Supreme Court of Canada commencing with R. v. Jewitt (1985), 1985 CanLII 47 (SCC), 21 C.C.C. (3d) 7; R. v. Keyowski (1988), 1988 CanLII 74 (SCC), 40 C.C.C. (3d) 481; R. v. Conway (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289; R. v. Scott (1990), 1990 CanLII 27 (SCC), 61 C.C.C. (3d) 300; R. v. Potvin (1993) 1993 CanLII 113 (SCC), 83 C. C. C. (3d) 97; R. v. Power (1994), 1994 CanLII 126 (SCC), 89 C. C. C. (3d) and R. v. O'Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1. In R. v. O'Connor the Supreme Court of Canada indicated that there was no utility in maintaining two distinct approaches to abusive conduct. Both the majority and minority judgments are in agreement that the concept of abuse of process has been subsumed in the Charter and should not be considered separately unless circumstances arise to which the Charter does not apply. The above noted authorities hold that Stay should be granted where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency or where proceedings are vexatious or oppressive. It is also established that Stay of Proceedings should only be entered in "the clearest of cases". In R. v. Conway it was held that where the affront to decency and fair play is disproportionate to the societal interest in the effective prosecution of criminal cases then the administration is best served by staying the proceedings. Justice L'Heureux-Dube in R. v. Power stated at page 10 that courts have residual discretion to remedy an abuse of process only in the clearest of cases. She described those cases as being "conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it would warrant judicial intervention." Further on she states what is required for situation to be deemed the "clearest of cases". To conclude that the situation 'is tainted to such degree' and that it amounts to one of the 'clearest of cases', as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interests of justice .... Where there is conspicuous evidence of improper motives of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and decent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.' In R. v. Sherratt (1991), 1991 CanLII 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.) L'Heureux-Dube stated at page 204: The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and respensentativeness, jury would be unable to perform properly many of the functions that make its existence desireable in the first place." The Supreme Court of Canada in R. v. Valente (1985), 1985 CanLII 25 (SCC), 23 C.C.C. (3d) 193 has stated that the test for independence and impartiality is the reasonable apprehension of bias. Has the pre-trial publicity generated in this case caused reasonable apprehension of bias? It may well be that at this stage there is an apprehension of bias but the question is whether that apprehension is reasonable. As was stated by the Ontario Court of Appeal in R. v. Hubbert (1975) 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279 at page 289: "...There is an initial presumption that juror not disqualified by the statute under which he is selected, will perform his duties in accordance with his oath." The Supreme Court of Canada in R. v. Sherratt referring with approval to the Ontario Court of Appeal decision in R, v. Hubbert stated at page 206: "Impartiality is state of mind to be tested at the time of the swearing-in of each juror." As of this date it is impossible to say whether an impartial jury can be selected because no potential jurors have been questioned on the effect of pre-trial publicity on their impartiality. In R. v. Vermette 1988 CanLII 87 (SCC), [1988] S.C.R. 985 case which involved exceptional pre-trial media publicity given to the statements of very popular Quebec Premier made in the National Assembly about matter then before the courts and about the credibility of witnesses the Supreme Court of Canada determined that Stay of Proceedings in that case was premature. At page 992 LaForest, J. stated: ".. It is only at the stage when the jury is to be selected that it will be possible to determine whether the respondent can be tried by an impartial jury... In deciding the question, one must not, in my view, rely on speculation... In an extreme case (and the present certainly qualifies), such publicity should lead to challenge for cause at trial, but am far from thinking that it must necessarily be assumed that person subjected to such publicity will necessarily be biased." am satisfied that in the present case the pre-trial publicity, filled as it is with prejudicial and inflammatory information has lead to an apprehension of bias. However am also of the opinion that until it is known to what extent this information has affected ­potential jurors, the issue remains speculative. Has that publicity so irreparably prejudiced potential jurors or so impaired the presumption of innocence that it is impossible to say that fair trial can be held? As of this writing there is no evidence that this has happened. It will only be at the stage of jury selection that this can be determined. Simply because there has been adverse publicity does not necessarily mean that fair trial cannot be held. As stated by Cory, J. in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) (1995), 1995 CanLII 86 (SCC), 98 C. C. C. (3d) 20 at p. 71: ".. The alleged partiality of jurors can only be measured in the context of the highly developed system of safeguards which have evolved in order to prevent just such problem. Only when these safeguards are inadequate to guarantee impartiality will s.11(d) be breached." In Phillips Cory, J. makes the valid point that impartiality cannot be equated with ignorance of all the facts of the case. He makes the following observation at p. 71. "...A definition of an impartial juror today must take into account not only all our present methods of communication and news reporting techniques, but also the heightened protection of individual rights which has existed in this country since the introduction of the Charter in 1982. It comes down to this: in order to hold fair trial it must be possible to find jurors who, although familiar with the case, are able to discard any previously formed opinions and to embark upon their duties armed with both an assumption that the accused is innocent until proven otherwise, and willingness to determine liability based solely on the evidence presented at trial." At p. 72 Justice Cory catalogues the safeguards he previously referred to as: The solemnity of the juror's oath, the existence of procedures such as change of venue and challenge for cause, and the careful attention which jurors pay to the instructions of judge all help to ensure that jurors will carry out their duties impartially. In rare cases, sufficient proof that these safeguards are not likely to prevent juror bias may warrant some form of relief being granted under s.24(1) of the Charter." In my opinion to this list can also be added the safeguard jury unanimity and peremptory challenges. Justice Cory notes that relief will not be granted on speculation alone and that the proper time for assessing whether the accused's s.11(d) rights have been violated is at the time of jury selection. As stated in R. v. O'Connor at p. 41 "A Stay of proceedings is last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted." Although v. O'Connor dealt with violation of the accused's s.7 Charter rights due to non disclosure, the principle enunciated is equally applicable to situation involving an accused's 11 (d) and (f) rights. In my opinion the Applicant in the present case has not established on balance of probabilities that his right to fair trial by an impartial jury has been violated. What the applicant has established is that challenges for cause are desirable and I will permit counsel to challenge prospective jurors for cause should counsel so wish providing that a list of proposed questions is presented to the Court for it perusal by 930 a.m. Thursday October 1 st, 1998. It may be that such an exercise will lead to the discovery that noimpartial jurors can be found, but until this exercise is attempted we are left with mere speculation as to the effect of the pre-trial publicity. Accordingly the application for a stay of proceedings is dismissed.
The accused was charged with first degree murder. Prior to jury selection, he applied for a stay of proceedings, alleging that there had been a breach of his right to a fair trial due to negative pre-trial publicity. Dismissing the application, that the application was premature. However, the accused would be permitted to challenge potential jurors for cause due to the highly prejudicial and inflammatory pre-trial media reports.