Canadian Broadcasting Corporation v Bodnarek, 2017 ABQB 691

Court of Queen’s Bench of Alberta Citation: Canadian Broadcasting Corporation v Bodnarek, 2017 ABQB 691 Date: 20171110 Docket: 1603 11024 Registry: Edmonton Between: Canadian Broadcasting Corporation Applicant - and - The Honourable Judge R. K. Bodnarek and Her Majesty the Queen Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A.

Yungwirth _______________________________________________________ Introduction [ 1 ] This matter deals with the impact on the open court principle of a stay under s 579 of the Criminal Code of Canada , RSC 1985, c C-46 (the Code ), where the Crown’s ability to recommence the proceedings under s 579(2) has expired. [ 2 ] The Applicant, Canadian Broadcasting Corporation [CBC or Applicant], was refused access to an exhibit from a proceeding that had been stayed under s 579 of the Code . The accused, Piara Kang, died during the year following the stay and before proceedings were recommenced.

Provincial Court Judge Raymond K. Bodnarek concluded that the wording of s 579(2), specifically the phrase, “the proceedings shall be deemed never to have been commenced,” operates to override the open court principle respecting access to exhibits. [ 3 ] The CBC applies for judicial review in the Court of Queen’s Bench, and seeks: a. an order in the nature of certiorari , quashing the decision of Judge Bodnarek;

b. an order in the nature of certiorari , quashing the procedure implemented in the Provincial Court of Alberta; c. an order in the nature of mandamus , directing the clerk of the Provincial Court of Alberta to release the fitness assessment of Piara Kang to the Applicant without delay. [ 4 ] In addition, and only if this Court finds that Judge Bodnarek was correct in his

interpretation of s 579(2) of the Code , the Applicant seeks: a. a declaration pursuant to s 52 of the Constitution Act, 1982 , that s 579(2) of the Code violates the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c11 [ Charter ], and is therefore invalid, of no force or effect, and inoperative; b. a declaration pursuant to s 52 of the Constitution Act, 1982 that the procedure violates the Charter and is therefore invalid, of no force or effect, and inoperative. Background [ 5 ] On August 30, 2014, Piara Kang was charged with second degree murder in connection with the death of his wife. He was remanded in custody and ordered to undergo an assessment for fitness to stand trial.

He was admitted to Alberta Hospital Edmonton on September 24, 2014 to undergo an in-house forensic mental health evaluation. [ 6 ] On October 10, 2014, the Court ordered an assessment of the mental condition of Mr. Kang to be conducted by Alberta Hospital for a period of 30 days, pursuant to s 672.11 of the Code . [ 7 ] On February 20, 2015, a fitness hearing was held pursuant to s 672.27 of the Code . The record indicates that Dr. Santoch Rai testified on behalf of the Crown. Two reports related to Mr. Kang’s fitness to stand trial, were entered as exhibits in the fitness hearing.

Ultimately, the Crown and Counsel for Mr. Kang consented to Mr. Kang being found unfit to stand trial. The Court then found Mr. Kang unfit to stand trial, and a disposition was made detaining him in custody at Alberta Hospital Edmonton. [ 8 ] On September 11, 2015, the Crown directed a stay of proceedings against Mr. Kang, who was suffering from advanced dementia and an incurable brain tumor. The stay was entered on September 14, 2015. Proceedings were never recommenced, and Mr.

Kang died shortly thereafter while in Alberta Hospital. [ 9 ] On May 31, 2016, the Applicant, through employee Janice Johnston, completed a Request for Exhibit or Private Hearing Record form [Request Form], requesting the “fitness assessment filed as an exhibit written by Dr. Rai” in Mr. Kang’s proceedings. The Request Form included a comments

section (inviting a further description of intended use). All that was written under that

section were the words “charge stayed Sept. 14/2015 Crown advises accused has died.” The Request Form was provided to a Judicial Clerk of the Provincial Court of Alberta. [ 10 ] In a letter dated June 3, 2016, Judge Bodnarek responded as follows to the Judicial Clerk who sent him the Applicant’s request: “I have considered the request for a copy of the fitness assessment prepared by Forensic Psychiatry Services in relation to Mr. Piara Kang. I confirm that you advised that Mr. Kang is deceased and that the Crown directed a stay of proceedings.

I have reviewed the court file and have confirmed that the stay was entered on September 14, 2015. With this background in mind, I have reviewed the relevant provisions of the Criminal Code regarding the impact of a stay of proceedings. S. 579(2) , provides a one year time limit for the Crown to recommence proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is earlier.

Once the Crown is out of time to recommence proceedings, s. 579(2) provides that: “…the proceedings shall be deemed never to have been commenced.” As mentioned, the stay was entered in September of 2015. Even though we’re still within the 1 year timeframe, the Crown’s time to recommence proceedings has now clearly expired as a result of Mr. Kang’s death. Therefore, by operation of law, the proceedings are deemed to have never taken place. In my view, this operates to override the open court principle respecting access to exhibits.

As such, without a compelling argument to the contrary, I’m not inclined to approve release of the exhibit requested. Please feel free to share this memo with the applicant.” [ 11 ] There were five reports prepared in relation to Mr. Kang, as follows: 1. Forensic Mental Health Evaluation – Psychiatric Court Report, dated October 9, 2014, prepared by Vijay Singh M.B.,B.S., F.R.C.P.(UK), F.R.C.P.(C), Specialist in Forensic and Adult Psychiatry; 2.

Updated Psychiatric Report in regards to fitness to plead criteria determination, dated November 20, 2014, prepared by Vijay Singh M.B.,B.S., F.R.C.P.(UK), F.R.C.P.(C), Specialist in Forensic and Adult Psychiatry; 3. Psychological Fitness Report, dated November 20, 2014, prepared by Dr. Andrew M. Haag, Psychologist, Alberta Hospital; 4. Updated Psychiatric Court Report, dated January 7, 2015, prepared by Vijay Singh M.B.,B.S., F.R.C.P.(UK), F.R.C.P.(C), Specialist in Forensic and Adult Psychiatry (the Updated Psychiatric Report); 5. Update to Supplement Dr. V.

Singh Reports of October 9, 2014 and January 7, 2015, dated February 19, 2015, prepared by

Santoch Rai M.R.C. Pysch Forensic Psychiatrist [the Update to Supplement Report]. [12] Though all five reports are on the Court file, only two of the reports were entered on the record of proceedings and marked asexhibits. Those were the Updated Psychiatric Report, dated January 7, 2015, prepared by Dr. Singh, and the Update to SupplementReport, dated February 19, 2015, prepared by Dr. Rai. Only Dr. Rai’s Update to Supplement Report was requested by the Applicant.

Preliminary Issue [13] This application comes before the court by way of Originating Application for Judicial Review by way of certiorari, of adecision made by a Provincial Court Judge. [14] Neither Respondent objected to the process chosen by the Applicant. [15] As will become clear in the analysis set out below, the Court is satisfied that requiring the Applicant to first undertake a moreformal application before the Provincial Court Judge is neither justifiable nor reasonable.

Standard of Review [16] In this case, the CBC and Alberta Justice (the only respondent that made submissions), both submit that the standard ofreview is correctness. [17] I agree. [18] Whether or not the learned Provincial Court Judge misconstrued what the enabling statute permitted him to do, is ajurisdictional question reviewable on the correctness review standard in an application for certiorari: Dubois v The Queen, (SCC), [1986] 1 SCR 366, 26 DLR (4th) 481. [19] Questions of statutory

interpretation are questions of law and are reviewable on a standard of correctness: Canadian NationalRailway Co v Canada (Attorney General), 2014 SCC 40 at para 33, [2014] 2 SCR 135; R v Fedossenko, 2014 ABCA 314 at para 2, 584AR 90. Issues for Determination [20] The following issues are for determination in this application: 1) Did the Provincial Court Judge err in his

interpretation of the Code, s 579(2)? 2) Is it necessary to return the matter to Judge Bodnarek for further consideration or can this court make the decision related to therelease of the exhibits to the applicant? 3) Is the Applicant entitled to access the fitness assessments of Piara Kang that were entered as Exhibits in his fitness hearing? [21] I turn to discuss each of them below. Did the Provincial Court Judge err in his

interpretation of the Code, s 579(2)? [22] The CBC argues that the learned Provincial Court Judge erred when he interpreted s 579(2) to mean that the expiry of theperiod within which the Crown may recommence proceedings operates to override the open court principle respecting access to exhibits. [23]

Section 579 of the Code provides as follows: 579(1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to anaccused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on therecord that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedingsshall be stayed accordingly and any recognizance relating to the proceedings is vacated.

(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a newindictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of therecommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within oneyear after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have beencommenced, whichever is earlier, the proceedings shall be deemed never to have been commenced. [24] It is the

interpretation of the phrase, “the proceedings shall be deemed never to have been commenced” that forms the basis ofthe decision in the court below. [25] For the reasons set out below, I find that the Provincial Court Judge erred when he interpreted those words to mean that theproceedings that took place prior to the stay, cease to exist and that consequently the records from those proceedings are not accessible to

the public. [26] The provisions of s 579(2) are procedural in nature.

They provide facilitated administrative machinery to reconstituteproceedings, and do not alter the substantive rights of the Crown to proceed with a matter previously stayed: Boudreault v Barrett(1993), (AB KB), 140 AR 24, 1993 CarswellAlta 20 at para 23, rev’d on other ground, 1995 ABCA 311 ,174 AR 71 (Alta CA). [27] In the case of British Columbia College of Teachers v British Columbia (Ministry of Attorney General), 2010 BCSC 847,256 CCC (3d) 345, the College applied to obtain a copy of the transcript of a preliminary inquiry in disciplinary proceedings against theaccused under the Teaching Profession Act, RSBC 1996, c 449.

The accused had previously been charged with sexually offendingagainst a child. At the preliminary inquiry, the judge imposed a ban on the evidence and identification of the child. After the preliminaryinquiry, the accused was ordered to stand trial, but the charges were eventually stayed. The Attorney General of British Columbia did notexercise its entitlement to recommence the prosecution under s 579(2) and no new criminal information or indictment was proffered.

Thepublication ban was in effect until “the accused is discharged, or, if ordered to stand trial, the trial is ended.” The accused argued that theeffect of the Crown directed stay of proceedings, after a year had passed, was that the proceedings were deemed never to have beencommenced, pursuant to s 579(2) of the Code. He argued that the preliminary inquiry proceedings are a nullity, with the effect as thoughthey do not exist at law. The Court did not accept that argument and stated (at para 21): I am not persuaded by Mr.

Sidhu’s argument that because the proceeding against him has been statutorily deemed never to have beencommenced the publication ban over the evidence taken at the preliminary inquiry continues under s 539(1). These two concepts areunrelated. The proceedings are deemed never to have been commenced vis-à-vis the crown and Mr. Sidhu, and this means that he is nolonger in jeopardy in respect of that particular Provincial Court proceeding.

But this does not mean that evidence that was given at thepreliminary inquiry is deemed to not exist and to be forever banned from broadcast. [28] I agree with this reasoning. [29] Further, at paragraph 24 of the same decision, the Court, in considering the rationale for ending the s 539(1) publication ban,stated: I can think of no principled basis to distinguish the situation of a stay of proceedings from the situation where an accused is dischargedfollowing a preliminary inquiry, or from the situation where a trial commences and then ends in any number of ways, including onacquittal of the accused.

When a stay has been entered there is no contest between the individual and the state; the prosecution has cometo an end. [30] In this case this same rationale can be applied when considering whether what occurred prior to the stay of proceedingsshould be accessible to the public. The public has an interest in understanding what takes place in our criminal justice system, includingthe basis upon which a stay was directed. [31] A stay of proceedings halts the progression of the prosecution.

In my view, the words “shall be deemed never to have beencommenced” must be related back to the words “may be recommenced without laying a new information or preferring a newindictment.” The Crown loses its ability to proceed on the original information or indictment if the period specified in s 579(2) expires. [32] Once the time limit has expired, the proceedings are deemed never to have been commenced as between the Crown and theaccused.

It does not follow that everything that occurred before the stay ceases to exist. [33] This would create a distinction between the public’s ability to access information in a case where the accused is discharged oracquitted and that same ability where proceedings are stayed by the Crown and not recommenced within the time period required by s579(2).

I agree with the Court’s conclusion in the British Columbia College of Teachers case referenced above, that there is noprincipled basis for this distinction. [34] Parliament cannot have intended that s 579(2) be applied in a way that would restrict the freedoms protected under s 2(

b) ofthe Charter. The Supreme Court of Canada has held that “[i]f a statutory provision is capable of an

interpretation that is constitutionaland one that is not, then the courts should choose the construction that conforms with the Charter”: R v Ruzic, 2001 SCC 24 at para 26,[2001] 1 SCR 687. It is a well-established principle of statutory

interpretation that legislation is presumed not only to be constitutional,but also in compliance with Charter values: Ruth Sullivan, Statutory

Interpretation, 3rd ed (Toronto: Irwin Law, 2016) at 307-309. [35] There is nothing in s 579 or in the Code that restricts media access to exhibits in relation to charges that have been stayed or inrelation to a stay that has expired. If this was intended by Parliament, as with, for instance, collection of bodily substances, the Codewould have said so explicitly: see e.g. Code, s 487.09(1). Similarly, s 119(2)(

d) of the Youth Criminal Justice Act, SC 2002, c 1,specifically provides that any record relating to a youth criminal matter shall remain accessible for a period of one year after a stay hasbeen entered. I agree with the Applicant that this provision would not have been necessary if s 579(2) operates to deem that records ceaseto exist after the expiry of the period within which the Crown can recommence proceedings. [36] In this case, where Mr.

Kang was committed to Alberta Hospital, if the proceedings upon which his committal were basedcease to exist, it would mean that there would be no accessible evidence on which to substantiate his committal to that institution by theCourt. This is not supportable. The public, the accused, and his family all have a right to know the basis for the stay, the basis for thecommittal to a mental health institution, and the processes by which the matter was concluded. The ability to have these things subject topublic scrutiny is the foundation for the open court principle.

Is it necessary to return the matter to Judge Bodnarek for further consideration orcan this court make the decision related to the release of the exhibits to the applicant?

[37] Given my conclusion on Judge Bodnarek’s

interpretation of s 579(2), this Court must determine whether it can make thedecision related to the release of the exhibits, or alternatively, remit the matter back to Judge Bodnarek or another Provincial CourtJudge. The Applicant’s position is that the decision can and should be made in this Court; and as such, seeks an order in the nature ofmandamus, directing the release of Mr. Kang’s fitness assessment.

Alberta Justice submits that the request to access the exhibit shouldbe sent back to Judge Bodnarek or another Provincial Court Judge for consideration, because every court is responsible for protectingand overseeing its own records: Attorney General of Nova Scotia v MacIntyre, (SCC), [1982] 1 SCR 175 at 189, 132DLR (3d) 385.

However, Alberta Justice concedes that this Court could review the requested fitness assessment and make the decisionon its release. [38] In this case, both parties agree that this Court is authorized to make the decision because the decision-making body was aProvincial Court Judge, and the judicial review was heard by a Court of Queen’s Bench Justice.

The Supreme Court in Hyrniak vMauldin, 2014 SCC 7 at para 2, [2014] 1 SCR 87, encouraged a culture shift to expedite access to the civil justice system. [39] Since the correctness standard of review applies to the review of Judge Bodnarek’s decision in this matter, I find that it isneither appropriate nor obligatory to remit this matter back to Judge Bodnarek or another Provincial Court Judge. In addition, it is myview that remitting this matter back to the Provincial Court and requiring the CBC to make a formal application for access wouldeffectively delay the Applicant’s access to the exhibit that it seeks.

As a result, I conclude that this Court has authority to, and should,make the decision on whether the exhibits should be released. It would be in the interest of expediting justice to make such a decision. Is the Applicant entitled to access the fitness assessments of Piara Kang that wereentered as Exhibits in his fitness hearing? [40] The CBC seeks access to the “fitness assessment filed as an exhibit written by Dr. Rai.” This access was denied by JudgeBodnarek.

The Applicant’s position is that the Court cannot deny access to exhibits unless the Court has undertaken the analysis requiredby the tests in Dagenais v Canadian Broadcasting Corp, (SCC), [1994] 3 SCR 835, 120 DLR (4th) 12, and R vMentuck, 2001 SCC 76, [2001] 3 SCR 442 [Dagenais/Mentuck test]. [41] I agree. [42] The Supreme Court has indicated that, “[a]ccess to exhibits is a corollary to the open court principle”: CanadianBroadcasting Corp v The Queen, 2011 SCC 3 at para 7, [2011] 1 SCR 65 [Dufour].

Unless there is a limiting statutory provision, thetrial judge retains discretion to decide how exhibits will be used to ensure an orderly trial: Dufour at para 12. Because the restriction ofexhibits is a discretionary decision that affects the open court principle, the tests outlined in Dagenais and Mentuck apply. [43] There is no limiting statutory provision in this case. The Code does not have any mandatory restrictions on access to exhibitsin cases where a stay of proceedings has expired.

Although every court is responsible for its own records, discretionary decisions whichaffect the open court principle are subject to the Dagenais/Mentuck test. This was a discretionary decision made by Judge Bodnarek, butthere is nothing in Judge Bodnarek’s letter that suggests that he completed the necessary analysis. [44] Further, assessment orders and reports, disposition hearings, as well as disposition information are all addressed in

Part XX.1of the Code. In this case, there is no indication that the public was excluded from the fitness hearing, pursuant to s 672.5(6). Section672.51 deals with disposition information and there is no suggestion that there were any orders for prohibition of disclosure under thatsection or any restrictions on the release of information pursuant to any

section in

Part XX.1 or otherwise. [45] In Mentuck at para 32, the Supreme Court prescribed the analytical approach to be used in assessing whether to restrictpublication. It determined that a publication ban should only be ordered when: 1. The order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures willnot prevent the risk; and 2.

The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public,including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of theadministration of justice. [46] This analysis must be done in a “case-specific manner,” having regard for the unique composition of rights and interestsengaged in different cases: Mentuck at para 37.

Additionally, even in cases where there is no party or intervener present to argue theinterests of the press, the trial judge must consider these interests when making the decision on whether to allow access: Mentuck at para38. [47] Though the Dagenais/Mentuck test was developed in the context of publication bans, the Supreme Court has confirmed thatit applies any time s 2(

b) freedom of expression and freedom of the press rights are engaged in relation to judicial proceedings: TorontoStar Newspapers Ltd v Ontario, 2005 SCC 41 at para 7, [2005] 2 SCR 188; R v Canadian Broadcasting Corporation, 2010 ONCA 726at para 21. [48] Further, the Supreme Court in Vickery v Nova Scotia Supreme Court (Prothonotary), (SCC), [1991] 1 SCR671 at 681-82, 64 CCC (3d) 65, outlined factors that come into play in deciding whether access should be given to exhibits.

Though theauthority of Vickery – post Dagenais/Mentuck – is limited, the case still stands as good law “for the proposition that concern for theprotection of the privacy and reputation of innocent persons are among the factors to be considered and weighed by the judge applyingthe Dagenais/Mentuck test, although under Dagenais/Mentuck, privacy interests and the protection of the innocent no longerautomatically trump the public’s right to access”: R v Canadian Broadcasting Corporation at para 27.

[ 49 ] Applying the analytical framework, I am satisfied that there is no evidence in this case to indicate that releasing the fitness assessment to the CBC will present risks to the proper administration of justice. [ 50 ] Secondly, the accused’s right to a fair trial is not in issue as the matter has concluded, and the accused has died. The victim is deceased. The only third parties that may be affected by the release of the information are the family members of the accused (and the victim).

Those parties are unaware of the request by the CBC for the fitness assessment, and have therefore not had an opportunity to voice any concerns that they may have. This can be addressed by providing them with notice of the request and giving them a fixed period of time within which to raise any objection. [ 51 ] In

summary, under the Dagenais / Mentuck analytical framework, there is no basis to restrict access to the fitness assessment of the accused. I agree with the Applicant, that it is imperative that members of the public have the opportunity to learn why the Crown had elected to stay charges, given the seriousness of Mr. Kang’s alleged offence. [ 52 ] Having reviewed all of the reports prepared in relation to Piara Kang, I conclude that the Update to Supplement Report, dated February 19, 2015, prepared by Dr.

Rai must, for context, be considered with the Updated Psychiatric Court Report, dated January 7, 2015, prepared by Dr. Singh, which was also entered as an exhibit at the fitness hearing.

Disposition [ 53 ] After considering all the circumstances, I direct that notice be sent to the children of the accused – who are also the children of the victim and are identified in the reports – and that they be advised of the intended release of the fitness assessment to the CBC. [ 54 ] They will have 30 days, from being notified, to bring the matter back before me to address any concerns that they may have; failing which the Updated Psychiatric Court Report dated January 7, 2015 and the Update to Supplement Report, dated February 19, 2015, shall be released to the Applicant. [ 55 ] Failing agreement, costs may be spoken to within 60 days.

Heard on the 22 nd day of September, 2017. Dated at the City of Edmonton, Alberta this 10th day of November, 2017. D.A. Yungwirth J.C.Q.B.A. Appearances: Matthew Woodley Reynolds Mirth Richards & Farmer LLP for the Applicant, Canadian Broadcasting Corporation Hillary Flaherty Alberta Justice for the Respondent, Her Majesty the Queen in Right of Alberta Marvin Bloos, QC Provincial Court of Alberta for the Respondent, The Honourable Judge R. K. Bodnarek

Bruce F Hughson Department of Justice for the Government of Canada