R. v. Lamar, 2017 BCSC 243

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lamar, 2017 BCSC 243 Date: 20170127 Docket: 98324-8 Registry: Kamloops Regina v. Jerry Lee Lamar Leon Francis Leclerc Before: The Honourable Mr. Justice Dley Oral Ruling on Application for Publication of Dashcam Video Counsel for the Crown: J.M.K. Gold F.J. Caputo Counsel for the Attorney General of Canada on behalf of the RCMP appearing by teleconference: K.J. Elvin-Jensen Counsel for the Accused Lamar: D.G. Campbell Counsel for the Accused Leclerc: J. Jensen Place and Date of Trial/Hearing: Kamloops, B.C.

January 10,2017 Place and Date of Judgment: Kamloops, B.C. January 27, 2017 [ 1 ] THE COURT: This is an application made by Kamloops This Week seeking a copy of the video recording of an assault on a peace officer. The newspaper intends to publish the video by means of placing it on its website and YouTube. [ 2 ] The peace officer and the RCMP are opposed on the basis that the privacy interests outweigh the public interest in having access to the recording. Background Facts [ 3 ] On July 5, 2014, a member of the RCMP was conducting a roadblock in a rural area near Kamloops. He was alone.

He stopped a vehicle driven by Mr. Lamar and formed the opinion that he had consumed alcohol. The officer requested Mr. Lamar to provide a roadside sample of his breath. Mr. Lamar refused to do so. The officer advised him that he was under arrest for refusing to provide a sample of his breath. [ 4 ] Mr. Leclerc was a passenger in Mr. Lamar's vehicle. He was agitating to become involved in the discussions involving the peace officer and Mr. Lamar. He was warned to keep his distance or he would be arrested for obstruction. [ 5 ] Mr.

Lamar resisted being arrested and he and the officer became embroiled in a physical struggle. They went to the ground with Mr. Lamar on top. Mr. Lamar shouted out to Mr. Leclerc, who ran over and kicked and stomped the officer until he was unconscious. Messrs. Lamar and Leclerc walked back to the vehicle and drove away, leaving the officer at roadside. [ 6 ] The officer regained consciousness and pleaded for help. A passing motorist stopped to render assistance. The officer asked if his eye was in or out.

The officer continued to make other comments as sequelae to the assault. [ 7 ] All of the events were recorded on a dashboard-mounted camera in the police cruiser. The recording included audio. [ 8 ] The recording was played in court at the sentencing hearing and filed as an exhibit. [ 9 ] Kamloops This Week has been given a copy of the Agreed Statement of Facts as filed at the sentencing hearing. Kamloops This Week has published stories describing the events depicted on the recording. [ 10 ] The reporter, Mr. Petruk, argues that the public should know what takes place in the courts.

He says that the public is entitled to see what happened by being able to view the recording on the newspaper's website and YouTube. Mr. Petruk says that without seeing the recording, the community would not be able to appreciate what occurred and comprehend the significance of what happened to one of its

peace officers. [11] Counsel for the peace officer and the RCMP does not take issue with the open court principle. Ms. Elvin-Jensen endorses therights of the press to gather and disseminate information about court proceedings. However, she argues that the rights of the press are notabsolute. In this case, she says that the public knows what happened, because Mr. Petruk has been able to describe what the recordingshows and he has a copy of the Agreed Statement of Facts.

As a result, not having the recording would have a minimal effect on the rightto freedom of expression as guaranteed by the Charter of Rights and Freedoms. [12] The peace officer has filed an Affidavit indicating that he would be re-victimized if the recording was published. He says thefollowing: 6. I am a father of two small children. If the video of the Assault is broadcast they will inevitably see the video.

Even if I am able toprevent them from viewing it now, once it is broadcast and available on the internet I will not be able to prevent them, or theirclassmates, friends and members of my community from viewing it. I am very concerned that if the video is disseminated by the media,my children, other family and community members will view the video of the Assault and my children, in particular, will be traumatizedby what they see. The impact of the Assault was difficult for my family when it happened in July 2014.

Having to be pulled back into theincident and re-explain to my children what happened to their father after they have viewed the video of my Assault – potentially morethan once – will be emotionally gruelling and may re-open old wounds and traumas. 7. My children will foreseeably have to make sense of the video on their own if their schoolmates, friends, and perhaps strangersapproach them about the video.

The burden of expecting small children to explain to others – on either a one-on-one interaction or in agroup setting (e.g., in a playground) – and comment on a video of the Assault on their father is unfair and may cause further trauma. Thiswill also cause issues for them with me going to work as they will question my safety before every shift and cause them more unduetrauma. 8. This burden will follow them wherever they go if the video is placed online.

The RCMP may send me to other detachments, andmy children may have to repeat the process of explaining the video all over again in their new home, school, or other socialactivities/groups. In short, this extremely difficult moment for me and my family will echo indefinitely into our family's future, and thevideo will amplify the pain and suffering it has caused my family and me. 9. The same is true of the burden that the publication of this video will put on my [family] and other adult family members. TheAssault and my recovery was very difficult for my family and something we would like to move on from. 10.

As the victim of this vicious assault, the publication of the video would also re-traumatize me. The publication of the video willmean that all my family, friends, co-workers and clients will have access to it. Inevitably some will watch the video and want to discussit. Each time will cause me to relive the trauma and be detrimental to my wellbeing and mental health. As a victim who just wants to healand move past this event, the release of this video will do nothing but cause me and my family to be forced to relive the Assault.

Discussion [13] The right of the press to disseminate information about a court proceeding is presumptive. However, the right is to be balancedagainst competing rights, including the privacy interests of the victim and his family: R. v. Fowler, 2006 BCSC 498 at para. 6 andCanadian Broadcasting Corporation v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480 at para. 39. [14] The re-victimization of the family, the victim, must be real and substantial: R. v. Dagenais, 2009 SKQB 104 at para. 47. [15] I am satisfied that the re-victimization of the peace officer and his family is real and substantial.

It is not necessary for thevictim to show a medical condition, such as post-traumatic stress disorder. All that is necessary is the production of convincing evidenceof re-victimization. [16] The issues here are similar to those covered in R. v. Panghali, 2011 BCSC 422. The comments of Madam Justice Holmes atparas. 51-53 are applicable to my disposition of this application: [51] To allow the placing of the video-recordings on the internet would give their content both immediacy and permanence in thepublic domain.

Individuals would be easily able to download portions of interest and to send them -- whether in the original or a distortedform -- to anyone with internet access. [52] The effects would, in my view, amount to further affront to Ms. Panghali’s dignity, and to what is often described as “re-victimization” of the people grieving her loss who Mr. Panghali maligned and attempted to implicate in her disappearance and death.Those effects would extend well beyond the mere embarrassment that is insufficient to ground a restriction. [53] Mr. Justice Powers reasoned similarly in R. v.

Schoenborn, 2010 BCSC 40, in rejecting a media application to broadcast audio-recordings of the accused’s wife speaking with the accused after the events in which the accused killed their young children [Mr. JusticePowers said]: [50] This is a particularly tragic case which has attracted the attention of the public. The children’s mother agreed to assist the RCMPin their investigation by allowing her conversations with the children’s father on the telephone and at KRCC to be recorded. This wasextremely difficult for her to do, and it is obvious from the exhibits themselves, stressful at the time.

The audiotapes reveal her pain andher distress. Her privacy would be significantly impacted if these materials were reproduced. They could well be published on theInternet. Many media outlets, in particular the Canadian press, provide information over the Internet. The recording of her voice wouldbe accessible for an indefinite period of time by anybody doing a simple search on the Internet. She would know that her pain andanguish could be exposed indiscriminately over and over again to anybody with access to the Internet. I am told by Crown counsel that

after discussions with her, it is her position that this would be extremely damaging to her and prolong her already significant suffering. [52] I am satisfied that the children’s mother’s concerns and privacy interests go much beyond mere embarrassment.

To allow her suffering, in her own voice to be available to the entire world indiscriminately would pose a serious risk to the proper administration of justice in the sense that it would impact negatively on the reputation of the administration of justice if the court simply allowed the revictimization of the children’s mother in this case. [53] I am also satisfied that the salutary effects of the publication restriction or the denial of the right to copy the exhibits outweighs any deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression.

The media, including the applicants, already have access to the transcripts of these conversations. . . . [Emphasis added] [ 17 ] The underlined comments that I have referred to in the reasons of Mr. Justice Powers with respect to hearing the victim's own suffering being uttered for the world at large are applicable here. I have balanced the salutary and deleterious effects of the issue that arise.

I conclude that the salutary effects of refusing to allow the newspaper to copy and publish the recording outweigh any deleterious effects on the rights and interests of the press and the public. [ 18 ] The result is that the application is dismissed. “S.D. Dley J.” DLEY J.