R. v. Clauer, 2011 ABQB 98

Court of Queen ’ s Bench of Alberta Citation: R. v. Clauer, 2011 ABQB 98 Date: 20110310 Docket: 091026252Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Kalvin Kenneth Clauer Accused Restriction on Publication: By Court Order, information that may identify the person described in this judgment as the Complainant may not be published, broadcast, or transmitted in any manner. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] The Crown applies to exclude the public from the courtroom for the viewing of a proposed sentencing exhibit, a video and photographs of the complainant’s vaginal and anal areas taken by the accused while the complainant was sleeping, and for an order sealing the exhibit once entered. The Crown argues that the complainant will be re-victimized by the assault on her privacy caused by public access to the exhibit unless orders are granted.

[2] The applications are denied. [3] Insofar as the complainant’s privacy interests are concerned, the application to close the courtroom pursuant to s. 486(1)of the Criminal Code does not meet the undue hardship test: C.B.C.

Insofar as the material itself is concerned, Parliament has not put thistype of evidence even on the same ground as child pornography and the statutory provisions relating to child pornography do notmandate a closed courtroom but merely require the issuance of reasons for not closing the courtroom: s. 486(3). [4] The application for a discretionary publication ban to seal the proposed exhibit does not meet the Dagenais/Mentuck/ SierraClub tests: public access to the material will not subvert the ends of justice nor unduly impair its proper administration.

Cases and authority cited [5] By the Crown: Canadian Broadcasting Corp. v. The Queen 2011 SCC 3; Toronto Star Newspaper Ltd. v. Ontario, [2005]w. S.C.R. 188, 2005 SCC 41; R. v. Dagenais 2009 CarswellSask 186; R. v. Hilderman 2006 CarswellAlta 146. [6] By the court: R. v C.Q. (ON CA), [1979] O.J. No. 1166 (C.A.); Canadian Broadcasting Corp. v NewBrunswick (Attorney General) (Re R. v Carson) (SCC), [1996] S.C.J. No. 38, [1996] 3 S.C.R. 480; R. v B. 1979ALTASCAD 17 , [1979] 14 A.R. 183, [1979] A.J. No. 57 (C.A.) 1.

Background [7] The accused has pleaded guilty to two counts: committing a sexual assault on the adult complainant, and committing theoffence of voyeurism upon 15 unknown females. In relation to the count of sexual assault, the accused has signed an agreed statementof facts which includes the following: The video and pictures show the complainant lying on a bed in her underwear with her buttock area exposed, her upper torso beingcovered by a blanket.

The video shows the accused’s hand moving the complainant’s underwear to expose her vaginal and anal area. 9pictures are close up shots of the complainant’s clitoris and anal area, with the accused’s hand moving the complainant’s underwear.Finally, 8 photos are close up shots of the complainant’s buttocks with her underwear on.

The images were all taken on one occasion. [8] The video was made with a camera that was used by the complainant and the accused exclusively; at no time did the accusedattempt to publish or distribute this material. [9] The complainant has not been required to testify in these criminal proceedings: the accused waived his right to a preliminaryinquiry and pleaded guilty prior to the scheduled trial. [10] During the sentencing process, the prosecutor intends to show the video and photos. [11] The prosecutor notified the media of the hearing to determine the issues raised herein; no media representative madesubmissions at the hearing. 2.

Parliament has determined that the open court principle can be over-ridden only in exceptional circumstances; this is notone of them [12] The court concludes that the prosecutor has not established a basis for excluding the public from the courtroom while the

proposed evidence is shown. Insofar as the complainant is concerned, the prosecutor has not established undue hardship. Insofar as thematerial is concerned, the prosecutor has not demonstrated that it was Parliament’s intention to prohibit the public from access to what isclearly a “tough arena”. [13] The introductory words to s. 486(1), “any proceedings against an accused shall be held in open court”, encapsulate the basicprinciple of the public’s access to the justice system.

The reasons why courts in democracies operate openly are numerous and varied,but include the accountability of judges for their decisions, including their sentencing decisions. [14] The common law has long recognized that, exceptionally and despite the hallmark of open justice, courtrooms may, onoccasion, be closed to the public.

Parliament has established the following bases which might justify the exclusion of the public from acourtroom: if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the properadministration of justice or is necessary to prevent injury to international relations or national defence or national security. [15] In C.Q., the Ontario Court of Appeal held that: It is hard to imagine any trial, civil or criminal, where men or women, boys or girls, and particularly the latter, have to testify as to sexualbehaviour that the witness will not be embarrassed.

But this alone is not reason to suppose that truth is more difficult or unlikely or thatthe witness will be so frightened as to be unable to testify.

In this case there was no suggestion that the latter might be so. [16] Approximately 20 years after the Ontario Court of Appeal had spoken on the subject, in C.B.C., (Re R. v Carson) theSupreme Court of Canada reviewed the issue in light of the developing concern over privacy, but again concluded that, even in the caseof allegations of sexual assault on young females, there was no expectation that a courtroom would be closed unless the court wassatisfied that undue hardship to a complainant would be caused by adhering to the open court principle. 40 While the social interest in protecting privacy is long standing, its importance has only recently been recognized by Canadiancourts.

Privacy does not appear to have been a significant factor in the earlier cases which established the strong presumption in favourof open courts. That approach has generally continued to this day, and this appears inherent to the nature of a criminal trial. It must beremembered that a criminal trial often involves the production of highly offensive evidence, whether salacious, violent or grotesque.

Itsaim is to uncover the truth, not to provide a sanitized account of facts that will be palatable to even the most sensitive of human spirits.The criminal court is an innately tough arena. 41 Bearing this in mind, mere offence or embarrassment will not likely suffice for the exclusion of the public from the courtroom. Asnoted by M. D.

Lepofsky in Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (1985), at p. 35:"Proceedings cannot be closed only because the subject of the charges relates to purportedly morality-tinged topics such as sex." In thecourse of the balancing exercise under s. 1, the exigencies and realities of criminal proceedings must be weighed in the analysis. 42 Nonetheless, the right to privacy is beginning to be seen as more significant.

Thus Cory J. in Edmonton Journal, supra, consideredthat the protection accorded the privacy of individuals in a legislative enactment related to a pressing and substantial concern andunderlined its importance in Canadian law. In this area of the law, however, privacy interests are more likely to be protected where itaffects some other social interest or where failure to protect it will cause significant harm to the victim or to witnesses. This isparticularly so of sexual assault cases. As L'Heureux-Dubé J. recently put it in R. v.

O'Connor, (SCC), [1995] 4 S.C.R.411, a case involving the production of complainants' medical records in relation to charges of sexual offences (at para. 158): This Court has already recognized that society has a legitimate interest in encouraging the reporting of sexual assault and that thissocial interest is furthered by protecting the privacy of complainants: [R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577], atpp. 605-6. Parliament, too, has recognized this important interest in s. 276(3)(

b) of the Criminal Code. Similar views had earlier been expressed by Lamer J., in Canadian Newspapers, supra; see also L'Heureux-Dubé J. in R. v. L. (D.O.),

(SCC), [1993] 4 S.C.R. 419, at pp. 441-42. 43 So far as s. 486(1) of the Code is concerned, then, exclusion of the public is a means by which the court may control the publicityof its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to theunderreporting of sexual offences. . . . 84 The mere fact that the victims are young females is not, in itself, sufficient to warrant exclusion. There were other effective meansto protect them.

Indeed, the privacy of the victims was already protected by a non-publication order by which their identities werewithheld from the public. There was no evidence that their privacy interests required more protection. The victims were not witnesses inthe proceedings, the evidence of particulars of the offences having been read in by the Crown. As such, no stress could be said toemanate from their having to testify, and the protection of witnesses was in no way jeopardized.

While the criminal justice system mustbe ever vigilant in protecting victims of sexual assault from further victimization, it is my view that the record before Rice Prov. Ct. J.did not establish that undue hardship would befall the victims in the absence of a s. 486(1) order. Nor did the record reveal that therewere any other reasons to justify an exception to the general rule of openness. [17] Here, the complainant is an adult. The Crown asserts, and I accept, that the complainant will be very embarrassed by thepresentation in open court of the evidence which the prosecutor wishes to tender.

Moreover, I accept that the complainant feels verystrongly that the accused abused her trust in him. However, a publication ban protects the identity of the complainant, she was notrequired to be a witness in the proceedings, either at a preliminary inquiry or at a trial; therefore, no stress has been put on her as a resultof having to testify. [18] Also, the complainant is aware that, other than herself and her support person, no members of the public have been in thegallery on the various occasions when this matter has been before the court on this issue to date.

She is also aware that the media,although given notice of the application, has not made submissions in relation to the matter. She might therefore expect that the mediais not interested in re-broadcasting the subject evidence and that might provide some comfort to her. [19] However, the media’s lack of interest in these proceedings cannot be converted by the prosecutor into an argument in favourof closing the courtroom: no one has to prove that there is a societal value in the public seeing the subject evidence. That value isassumed.

In other words, the long-standing, basic, presumption is that court proceedings should be open to the public and it is the personwho is attempting to over-ride the basic rule, here the prosecutor, who bears the burden of satisfying the court that the rule should beover-ridden in a particular case. [20] The prosecutor also asserts that the public’s right to access would not be negatively affected because the court will, in itseventual sentencing reasons, describe the accused’s actions.

With respect, that is not a persuasive argument in the situation here wherethe accused has already agreed to a statement of facts describing the conduct. If the prosecutor is of the view that the words used in theagreed statement of facts are insufficient to justify the sentence that they will be requesting, then it is the video itself that is a key to theprosecutor’s sentencing position and the video itself that the public has the right to see. [21] I stated at the beginning of these reasons that one of the policy reasons that underlies the open court principle is the need foraccountability for judges.

In relation to the judge’s accountability in sentencing, only a few sentences are mandated by Parliament;usually, a judge must give reasons for her choice of sentence. In some cases where exhibits have been kept from the public, for example in the Bernardocase, the sentence was a mandatory sentence; therefore, there was no real need for the judge to explain the sentence that was imposed.

Here, the court will be called upon to justify the sentence that it will impose on the accused; as part of its right of open access to thecourts, the public should have the right to access the same materials which the judge considered prior to imposing sentence. [22] The additional clarification recently provided by the S.C.C. in the C.B.C. decision to the effect that judicial discretion inrelation to s. 486(1) must be exercised in accordance with the Charter, does not change the above analysis.

[ 23 ] As to the whether the nature of the materials requires that the courtroom be closed to the public, I note that Parliament applied its mind to the issue of whether courtrooms should be closed when materials of a salacious nature are entered into the proceedings, and Parliament concluded that, where child pornography must be shown, the prosecutor may apply to close the courtroom.

It is noteworthy that Parliament did not require the courtroom to be closed, even in the case of child pornography; the provisions in s. 486(3) of the Code are not mandatory as are, for example, the publication ban on the identity of complainants and witnesses under s. 486.4 of the Code.

In B. our own Court of Appeal established that the statutory obligation to give reasons for denying such an application is not the equivalent of a rule mandating the granting of the application: [The former equivalent of s. 486(3)] might be construed as meaning that on the application for the exclusion of the public being made, a Judge should always close the Court, unless he has special reasons which he must state for not doing so. I do not think that this

section can be so construed. Presumably a Judge always has reasons for excluding the public, or for not excluding them. He is required to state what those reasons are only in the latter case, but merely to require him to give reasons for not closing a courtroom does not in my opinion enlarge the grounds upon which the public may be excluded. [ 24 ] In this context, I note as well that Parliament did not, in s. 486(3) include references to the voyeurism provisions of the Code, even though it referred to the child pornography provisions of the Code.

The video and photographs here may be more akin to voyeurism than to child pornography. [ 25 ] Finally, I note that, even in the Hilderman decision on which the prosecution relies, the courtroom was not closed during the showing of the contested evidence. 3. Sealing orders are a form of discretionary publication ban; the person applying for one must meet the Dagenais/Mentuck/Sierra Club tests [ 26 ] The request for a sealing order for the exhibit referred to herein does not meet the Dagenais/Mentuck/Sierra Club tests.

The latter tests were summarized by the Supreme Court of Canada in the Toronto Star Newspapers decision cited by the prosecutor as follows: Court proceedings are presumptively ‘open’ in Canada and public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. [ 27 ] Although the application with respect to a sealing order is for a discretionary order, the same considerations as are taken into account with respect to the application to close the courtroom apply here and will not be repeated. [ 28 ] The first factor to take into account here is that evidence already exists.

The complainant is not required to give evidence. [ 29 ] Another factor which the court takes into account is that the prosecutor will undoubtedly ensure that, as soon as the appeal period has expired, the exhibit will forthwith be returned to the complainant. This is not a situation, therefore, in which the potential for public distribution of the exhibit will exist as a worry for the complainant for a long period of time. [ 30 ] The court also observes that the sealing application could be revived if the video is shown during the sentencing process.

Without having seen the video, the court is not in a position to know, for example, whether the video ensures the identification of the complainant. Having more information about the details of the video might be of assisting in determining, for example, whether editing of the video should be ordered, just as the court ordered the redacting of the agreed statement of facts. [ 31 ] The most recent C.B.C. decision from the S.C.C. on access to exhibits is not helpful here. In that case, there were rules of practice in Quebec which dealt with access to exhibits; there are no similar restrictions in Alberta.

Moreover, in that case, the accused was the person who was applying for a restriction to the exhibit, and the accused established that access to the exhibit would have a “dire” impact upon his because of his intellectual disability and the fact that he had been acquitted. Neither of those factors exist in the situation here.

[ 32 ] Nor is the Toronto Star Newspapers decision helpful to the prosecution here.

On the contrary, just as Doherty J.A. had held in the appeal judgment that was confirmed by the Supreme Court that allowing sealing in that case would result in a presumptive rule that would favour secrecy, so granting the prosecutor’s request on the factual basis here would result in a presumptive exclusion of the public’s access to evidence in all sexual assault cases. [ 33 ] The Hilderman decision is based on the sentencing judge’s conclusion that “ freedom of expression and freedom of the press must stop short of requiring the court to distribute obscene materials”.

Here, the prosecutor has not described the subject video as obscene. Moreover, the crime of which the court had convicted the accused in that case was aggravated assault; In that context, the portion of the videotape which was sealed was a portion showing an accused urinating on the victim; that portion of the tape was clearly not material to the charge of aggravated assault. Here, however, the video is material to the charge of sexual assault.

Overall, therefore, while I agree with the basic principles outlined in the Hilderman decision, the actual decision is not helpful to the court in the situation here. [ 34 ] In

summary, the court concludes that sealing of the proposed exhibit is not required to ensure that the ends of justice are not subverted. Heard on the 17 th day of February, 2011. Dated at the City of Edmonton, Alberta this 10 th day of March, 2011. J.B. Veit J.C.Q.B.A. Appearances: Julie Roy, Special Prosecutions Branch Edmonton for the Crown Michael D. Sparks, Beresh Cunningham for the Accused