R v Daviau, 2016 ABQB 511

Court of Queen’s Bench of Alberta Citation: R v Daviau, 2016 ABQB 511 Date: 20160914 Docket: 141399436Q1 Registry: Calgary Between: Her Majesty the Queen Applicant - and - David Charles Daviau Kyle Phillip Andree Respondents _______________________________________________________ Oral Judgment of the of the Honourable Mr. Justice E.C. Wilson _______________________________________________________ [ 1 ] When delivering my oral decision on this matter on September 9, 2016 I reserved the right to edit my remarks for accuracy and completeness.

Accordingly, any differences between my oral remarks and this judgment are resolved in favour of the latter. [ 2 ] The Crown has brought an Application pursuant to

Section 486.5(1) of the Criminal Code on behalf of seven civilians who will be called as Crown witnesses on this murder trial set to commence in April 2017. The Application is for an Order directing that any information that could identify each witness not be published or broadcast or transmitted in any way at any time. [ 3 ] The Crown’s Application and required Notice fully complies with s.486.5(4) and this Court’s Criminal Practice Note No.4. [ 4 ] The Crown’s Application is supported by an affidavit of RCMP Constable Joany Paradis. [ 5 ] The Application is resisted by PostMedia Network Inc. which owns or operates a number of newspapers, and the CBC and

CTV.

The collective media’s position is supported by the two accuseds. [ 6 ] The media’s position is also supported by an affidavit of Monica Zurowski, deputy editor of the Calgary Herald and Calgary Sun, which area part of the enterprise known as PostMedia Network Inc. [ 7 ] The basis of the Crown’s Application is found in Constable Paradis’ affidavit where she deposes to a belief that there is a risk that the named witnesses might be dissuaded or prevented from testifying and/or a risk or threat to the safety of these witnesses, their friends, co-workers, family and members of the public if the Application is denied.

These risks are premised upon the claim that publishing the identity of these witnesses might prompt these accuseds and/or their alleged criminal associates and/or other alleged criminals having no affiliation with the accuseds to threaten or cause harm in these various ways as retribution for the witnesses breaking the criminal “Code of Silence” – that is to say, the code of silence which holds that people are not to assist police or the Crown in the prosecution of accused persons. [ 8 ] Constable Paradis’ affidavit and her cross-examination reveal one stark reality – to date, none of these witnesses, their family, friends or co-workers have received any direct or indirect threats nor have any of these witnesses, their family, friends or co- workers or members of the general public suffered any actual or threatened harm or assaultive type action from anyone as a result of any of these seven persons becoming Crown witnesses. [ 9 ] All seven witnesses testified at the preliminary inquiry.

All of them were apparently identified in Crown disclosure as Crown witnesses and either their statements or “will-says” of what they would say on the witness stand was made known to each accused by defence counsel weeks, if not months before they testified at that preliminary inquiry. [ 10 ] While there was a publication ban on the evidence called at the preliminary inquiry which presumably extended to a prohibition on identifying these witnesses, the fact is that the preliminary hearing was open to the public and thus any person – whether or not associated with the accuseds – who might be minded to sit in the audience could take note of who might be on the witness stand and apparently violating this “Code of Silence”. [ 11 ] This is a murder case.

The Crown theory is that these two accuseds shot and killed the deceased in 2006 during an attempt to extricate information from the victim about a rival drug gang so that one or more of the rivals could be murdered. [ 12 ] From various pieces of information presented during various other pre-trial applications before me this week, and from Constable Paradis’ affidavit, it seems clear that these two accuseds were involved in some organized drug trafficking and associated violent activities including assault and home invasion robbery.

The evidence before me includes newspaper reports referencing a Parole Board decision involving one of these accuseds wherein the Board described that accused as a psychopath and danger to society. Both have also been convicted of manslaughter involving a different victim in unrelated circumstances.

Both are reported responsible for two arsons back in 2006 of residential property where risks to the lives and safety of the public were palpable. [ 13 ] I am presuming for the purposes of this Application that these media reports accurately reflected their criminality because no- one has suggested before me anything to the contrary. [ 14 ] Notwithstanding this is now 10 years later, I am prepared for the purposes of this Application to assume that these two accuseds remain a danger to the health and safety of the public and undoubtedly to anyone who may cross them. [ 15 ] But I return again to the fact that notwithstanding these very real concerns, there is no evidence that these witnesses have been, directly or indirectly, threatened, let alone physically harmed.

There is no evidence that anyone has attempted to dissuade these witnesses from testifying. [ 16 ] Interestingly, some of these witnesses had been criminal associates of the accuseds. One of them, Peter Young, had a falling out with them following which these accuseds retaliated by, among other things, trying to burn down his parents’ house. Notwithstanding that, Mr Young has testified at this preliminary hearing and will be called at trial. [ 17 ] Another witness, Jeffrey Bell, was the victim of an unlawful confinement perpetrated by these accuseds at a time when he too was a criminal.

Both accuseds were convicted of that crime. I assume he must have testified at that case. But even if he did not, his own victimization has not dissuaded him from testifying at the upcoming murder trial. [ 18 ] To be clear, the episodes described above did not arise directly or indirectly from either Young or Bell appearing as or slated to appear as a witness in any court case.

They occurred because of a different reality – that criminals sometimes don’t trust other criminals and will turn on each other either to remove them from the criminal activity or to intimidate them in some fashion to ensure they pose no further problems or difficulties in the future to the criminal organization. [ 19 ] Six of the seven witnesses were criminal associates of these two accuseds. They would know these accuseds firsthand and would know what they are capable of doing. But all six of them have testified at the preliminary inquiry and are expected to testify at the trial.

The seventh witness was a girlfriend of one of the six – Mr Chris Roberto. I seriously doubt she was so naïve as to be completely unaware of the criminal lifestyle of her boyfriend and his associates. Yet she also testified and is also expected to testify at the trial. Roberto has provided police with much information of other serious criminal activity not involving these two accuseds. Indeed, once his involvement was disclosed on some of those other cases, I am advised that three accuseds have pleaded guilty to first degree murder, second degree murder and conspiracy to commit murder respectively.

Mr Roberto apparently has been far from dissuaded about testifying against anyone. [ 20 ] Mr Watson on behalf of the media observes that none of Constable Paradis’ fears about risks of harm or attempted obstruction of justice in attempting to dissuade witnesses from testifying are based upon any incident or fact or particular complaint. He submits that Constable Paradis’ fears in this case can only be described as speculative. [ 21 ] Constable Paradis testified that she is aware such things have happened in other cases, notwithstanding she did not name any

such case. But the Court’s experience with criminal litigation certainly would mirror Constable Paradis’ fears.

In other words, I do notpretend that people have not been convicted of threatening witnesses and that people have not been convicted of assaulting and evenkilling witnesses or potential witnesses who might assist the police in the apprehension or prosecution of criminals. [22] It is based upon that reason, i.e. the awareness that such intimidation and violence has occurred in other unrelated criminalcases in the past which has prompted the Crown to seek this Order as a logical prophylactic – simply to better ensure that witnesseswon’t be dissuaded from testifying and that violence or harm will not occur to anyone as a result of or in response to witnesses testifyingabout this 10 year old murder. [23] But a consideration of the Crown’s submission that I may find harm by applying this reason and logic (Re: A.B. v BraggCommunications Inc, 2012 SCC 46 at paragraphs 15 and 16) is far from compelling. [24] This is a 10 year old murder case.

In most, if not all, of the intervening years the two accused have been in jail – some ofwhich has been in institutions outside Alberta according to the filed media reports. There is no evidence of present or even recentconnections to criminal activity or associating with criminals who might do their bidding. [25] The seven witnesses have done nothing to protect or shelter their identities from prying eyes. None have, for example, enteredthe witness protection programme. In these intervening 10 years, some have taken up residence elsewhere.

But if it was done, even insmall part, due to their involvement in this case, is not a fact that has been shared with the Court. None of these witnesses are in jail. Onehas returned to his home country in Africa. [26] As a result of these facts I find that the risks identified by Constable Paradis are simply too insubstantial to logically supportthe position of the Crown.

See also R v Mentuk, 2001 SCC 76 (paragraph 58). [27] With that background I turn to the law. [28] The Supreme Court of Canada in Dagenais v CBC (SCC), [1994] 3 SCR 835 and R v Mentuk supra, amongother decisions, has underscored the importance of open and public courtrooms and the constitutional support for the media to be able tofully and freely report on all that happens in our Canadian courts subject to very limited exceptions. [29] No counsel before me has suggested there are facts in this case which could somehow escape those broad directions from theSupreme Court. [30] The law is also clear that absent the Order being sought, the media would be lawfully entitled to identify all of these witnessesand detail all of their testimony. [31] Parliament has directed that the right of the media is not to be lightly set aside. [32]

Section 486.5(5) states as follows:

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the properadministration of justice. (emphasis added) In other words, there is a high onus upon the Crown which it must meet in order to obtain the order it seeks. [33] Has the Crown established that in this case a ban on publication of the names of the witnesses or any information that mighttend to identify the witnesses is necessary for the proper administration of justice? [34] To answer that question requires the Court to consider certain mandated factors that are set out in s. 486.5(7): 486.5 ...

(7) In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identitywere disclosed; (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation orretaliation; (

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participantsin the criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. [35] I will consider each factor in turn.

(

a) the right to a fair and public hearing [ 36 ] This certainly speaks to the accused’s right to a fair and public hearing. But it is also intertwined with society’s interests too. Justice must not only be done but appear to be done. Court Orders which have the effect of shrouding any part of a criminal trial in darkness must not be easily or routinely granted upon the mere asking for same.

Section 486.5(5) directs that the Order can only be given in this case if it is necessary for the proper administration of justice. (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed [ 37 ] A “real and substantial risk” as opposed to merely “a risk” must be shown. These adjectives clearly require evidence or reliable information concerning the witnesses in this case. As Constable Paradis conceded – there is nothing of that here. (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation [ 38 ] Again, the language speaks to a demonstrable requirement that the Order is needed for the witness’ security or safety. There is nothing in the material before me to show that such an Order is needed in this case. (

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process [ 39 ] I have not been advised why these witnesses came forward. Perhaps they did not. Perhaps they really had little choice. Perhaps they have now eschewed any further criminal lifestyle and wish to demonstrate that they are responsible citizens. I do not know if they even reported to the police any of the activities related to the offences before the Court. The Court is therefore quite unable to place “any meat upon the bone” as it were. (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant [ 40 ] The Crown’s Application to have all witness identifying information banned from publication carried with it a request that the witnesses be named through the use of pseudonyms. The Crown suggested no other alternatives to protect the witnesses’ identification. The Court is not able to conjure up any type of alternative. (

f) the salutary and deleterious effects of the proposed order [ 41 ] As I have repeatedly said, the difficulty for the Crown is the absence of any compelling information in this case about risks to witnesses, their friends, co-workers and family or to the public at large. Nor is there any compelling information about the risk of witness intimidation. There is insufficient information before the Court to allow it to conclude that there is a basis to find any objectively discernible threat of harm. Giving an Order absent an evidentiary basis on either a direct or objective basis is not permissible at law.

Bluntly stated, courts are not empowered to issue Orders which are based purely on speculation. [ 42 ] There is also another consideration. [ 43 ] The Crown’s concerns in this case can be equally expressed by other Crown prosecutors on every other case where serious criminals, organized or not, are on trial and where civilian witnesses will be called by the Crown.

If I grant this Order which would be rooted solely in speculation, the Crown might be mistakenly encouraged to bring similarly deficient Applications in the future. [ 44 ] In my respectful view the deleterious effect upon the media’s constitutional rights arising from the granting of such Orders in the absence of a compelling record cannot be overstated. (

g) the impact of the proposed order on the freedom of

expression of those affected by it [ 45 ] Little further comment need be made here. Any restriction on the media’s general right to identify trial witnesses without a basis to impose such a restriction must be carefully guarded against. To repeat, such Orders can only be granted upon a clear or compelling showing that it would be, in the words of s. 486.5(5) – “necessary for the proper administration of justice”. It is difficult to conceive how this requirement could be met simply on the basis of the witnesses requesting such an Order, whether they bring their application personally or, as occurred here, request that the Crown do so on their behalf. (

h) any other factor that the judge or justice considers relevant [ 46 ] There is an interesting wrinkle in this Application. [ 47 ] Earlier this year my colleague Hall, J granted a s. 486.5(1) Order in an unrelated murder trial in relation to the witness Christopher Roberto who is a witness in this case. [ 48 ] The Crown suggests that refusing to grant the Order in this case may inadvertently have the effect of subverting Hall, J’s Order. [ 49 ] I disagree. Hall, J made his decision upon the facts before him in that case; not on the facts of this case.

Further, my Order could not have any effect upon his Order inasmuch as they are unrelated cases having only fact in common – that Christopher Roberto is a witness in both cases. Hall, J’s Order could only apply to the case before him. It could not be interpreted to apply to any other case. [ 50 ] Should I make an Order on the basis that I felt bound to adopt Hall, J’s Order as my own would mean that I had conducted no independent inquiry and was simply content to repeat my colleague’s decision notwithstanding that it issued in an unrelated case and based upon different evidentiary considerations.

With respect, that would be an unacceptable exercise of my discretion. [ 51 ] In the result, I am not persuaded that the Crown’s Application should be granted. Of course, should circumstances changes, the Crown is entitled to bring a new Application upon proper notice. Heard on the 6 th day of September, 2016. Dated at the City of Calgary, Alberta this 13 th day of September, 2016. E.C. Wilson J.C.Q.B.A. Appearances: Adam May Brian Holtby, Q.C. for the Applicant Greg Dunn Matthew Deshaye for the Respondent Daviau Alain Hepner, Q.C. Kelsey Sitar for the Respondent Andree

G. Scott Watson for PostMedia Network Inc, CBC and CTV