R. v. J.J.P., 2017 YKSC 66

SUPREME COURT OF YUKON Citation: R. v. J.J.P. , 2017 YKSC 66 Date: 20171116 S.C. No. 16-01514 Registry: Whitehorse BETWEEN REGINA APPLICANT AND J.J.P. RESPONDENT Publication of information that could disclose the identity of the complainant or witness has been prohibited by court order pursuant to sections 486.4 of the Criminal Code . Before Mr. Justice R.S. Veale Appearances: Noel Sinclair and Sue Bogle Counsel for the Crown Vincent Larochelle Counsel for J.J.P.

REASONS FOR JUDGMENT (Section 486 Exclusion of Public Order) INTRODUCTION [ 1 ] The accused pled guilty to nine counts of sexual interference with persons under the age of sixteen years, eight counts of production of child pornography and two counts of voyeurism. [ 2 ] The Crown applies for an order under s. 486(1) of the Criminal Code to exclude the public from viewing a proposed exhibit of various child pornography photographs and video-recordings, which includes images of the child victims. This is not an application to exclude the public from the sentencing hearing.

It is an application to have me review the exhibit in camera in my chambers, and to then seal it and prohibit public access entirely. [ 3 ] The privacy of the victims is presently protected by a court order under s. 486.4 prohibiting the publication, broadcast or transmission of any information that could identify them. [ 4 ] The Crown gave oral notice of its application in open court on October 5, 2017, and served it on local media including the Canadian Broadcasting Corporation. No one from the media appeared to oppose the application or otherwise provided submissions.

I am advised that counsel for J.J.P. has reviewed the exhibit and does not take a position on this application. The Evidence Already Before the Court [ 5 ] Eleven girls under the age of 16 have been victimized by the accused. Nine were sexually assaulted and photographed while two became the subjects of pornographic photos and videos by means of a hidden camera. [ 6 ] The accused admits to sexually fondling nine of the victims. He admits to digital anal penetration of six of the girls, penile anal penetration of three and attempted penile penetration of one.

He applied a vibrator to the genital areas of three girls. [ 7 ] The accused as well admits to taking hundreds of photographs and numerous video recordings of his victims. [ 8 ] The Crown’s two original Indictments, each containing 49 counts and identifying the victims by initials only, have been sealed within the court file. After negotiation with counsel for the accused, the Crown filed a Replacement Indictment of 19 counts. The accused pled guilty to these 19 counts and the Replacement Indictment has been sealed.

[9] An Agreed Statement of Facts identifying the victims by their initials was filed and has been sealed. [10] An Agreed Statement of Facts with the names of victims redacted entirely has been filed and is not sealed. A ReplacementIndictment of 19 counts identifying them only as Victim 1, Victim 2, etc, has been filed and is not sealed. [11] The exhibit being considered here includes extensive, graphic, and profoundly disturbing photographs and video-recordings ofthe victims, in accordance with the Agreed Statement of Facts.

All of the images and recordings fit within the definition of childpornography set out in s. 163.1 of the Criminal Code. THE LAW [12] At the outset, I should state that I agree with the Crown that it is important that these photos and videos be viewed as part of thesentencing proceedings. [13] Two relatively recent appellate cases to consider the viewing of child pornography in a sentencing context are R. v. Hunt, 2002ABCA 155 (“Hunt”) and R. v. P.M., 2012 ONCA 162 (“P.M.”). [14] In Hunt, a guilty plea proceeded on the basis of an Agreed Statement of Facts based on 549 graphic photographs of childpornography.

The Crown attempted to introduce the photographs at the time of sentencing and defence counsel objected as the AgreedStatement of Facts did not refer to the photographs. The sentencing judge declined to view the photographs, finding that the offenceswere well described in the Agreed Statement of Facts and it would be of no benefit to see the photographs. [15] In finding that the sentencing judge should have reviewed the photographs, the Alberta Court of Appeal stated at para. 16: Ordinarily, a sentencing judge would be expected to review photographs that depict the crime.

By definition, such photographs arerelevant. In this case, the photographs do not depict the crime - they are the crime. That is, the actus reus of this offence is making,printing, publishing, or possessing photographic representations of someone under eighteen years engaged in explicit sexual activity.Thus, they are relevant. Being relevant, they should have been reviewed by the sentencing judge unless some other exclusionary ruleapplied. Counsel for the Respondent did not suggest the prejudicial effect outweighed the probative value.

We doubt such an argumentcould be made when dealing with the actus reus of the crime. … [16] P.M. also considered a sentencing judge’s refusal to view a disc of child pornography, which in that case included, among otherimages, five photos and three videos depicting the offender’s forced anal and vaginal intercourse with his daughter. There, theexpectation seemed to be that the disc would be played in open court, and the victim expressed her view that she did not want the discviewed.

In a sense picking up where Hunt left off, Rosenberg J.A. for the majority, found that sentencing judges do have the ability toexclude relevant evidence at sentencing on the basis that the prejudicial effect outweighs the probative value. He also, however, agreedwith the determination in Hunt that, ordinarily, the sentencing judge should view the kind of evidence proffered in this case if asked todo so (para. 31), as well as the view expressed by Molloy J. in R. v. Kwok, (ON SC), [2007] O.J.

No. 457 (S.C.) that“[w]hile the description in words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of suchpornography without actually looking at it” (para. 33). [17] Despite the sentencing judge’s concern about playing the disc in open court, Rosenberg J.A. noted that he could have takensteps to limit the exposure of the public and the victim to the images contained. [18] In the result, the majority of the Court of Appeal refused to interfere with the sentencing judge’s decision to decline to view thedisc. [19] In her dissenting opinion, however, Epstein J.A. found that he had erred.

More specifically, with respect to the views of thevictim, she commented that there are practical ways to provide a trial judge an opportunity to view images like the ones at issue whileminimizing the impact on the victim, and pointed to R. v. Bernardo, [1995] O.J. No. 1472 (Gen. Div.) (“Bernardo”), R. v. Lehman, 2007ONCJ 18, R. v. M.G., 2009 ONCJ 561 and R. v. J.V.H., 2010 BCPC 253.

In both Lehman and M.G., it appears that the sentencing judgereviewed child pornography images outside of the courtroom, while in Bernardo and J.V.H. the court adopted a process whereby videoevidence was played in court but visible and/or audible only to the judge and the parties. [20] The Crown here has requested that I view the images and videos in my chambers and has brought this application under s. 486of the Criminal Code. Sections 486(1) and (2) state: Exclusion of public 486

(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of theprosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for allor part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen bymembers of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance oforder or the proper administration of justice or is necessary to prevent injury to international relations or national defence or nationalsecurity. …

Factors to be considered

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider (

a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justiceprocess; (

b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings; (

c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made; (

d) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (

e) the protection of justice system participants who are involved in the proceedings; (

f) whether effective alternatives to the making of the proposed order are available in the circumstances; (

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

h) any other factor that the judge or justice considers relevant. (my emphasis) [21] Superior courts have both statutory jurisdiction pursuant to s. 486 of the Criminal Code and the inherent jurisdiction “to ensurethe observance of the due process of the law, to prevent improper vexation or oppression, to do justice between the parties and secure afair trial between them”. See Endean v. British Columbia, 2016 SCC 42 (“Endean”), at paras 23 and 24, quoting I.H. Jacob, “TheInherent Jurisdiction of the Court”, (1970), 23 Curr. Legal Probs. 23.

As well, all courts, superior and provincial/territorial, have aninherent or implied jurisdiction to control their own process (see e.g. Cunningham v. Lilles, 2010 SCC 10). [22] While there is no limit upon the power of the court in the exercise of its inherent jurisdiction, it must be exercised sparingly toregulate court proceedings in a way that secures the convenience, expeditiousness and efficiency in the administration of justice.

SeeEndean, at para. 60. [23] The application in this case is not precisely to exclude members of the public from the courtroom as contemplated by s. 486, butrather to have some of the Crown’s evidence viewed outside of the courtroom entirely. Accordingly, in my view, it requires an exerciseof the inherent jurisdiction described in Endean, which should be informed by the framework of s. 486. [24] R. v. Bernardo, is one example of the exercise of inherent jurisdiction in a similar context.

In Bernardo, LeSage A.C.J.O.C.ordered that video-recordings depicting the brutal and degrading sexual assaults of four teenaged girls be played at the accused’s trial insuch a way that the video would only be visible to jurors, the judge, the parties, and court reporters, while the audio would be heardthroughout the courtroom. There, as here, verbal or text descriptions of the images captured were available to the public. [25] LeSage A.C.J.O.C. confirmed that “open justice” was the foundation of our legal system but it was not an absolute concept.

Herecognized the important role played by the media in reporting on criminal trials but stated that there must be a proper balance betweenthe right to know and publish and the protection to be afforded to victims and their families. See Dagenais v. Canadian BroadcastingCorp., [1994] 3. S.C.R. 835, and Edmonton Journal v.

Alberta (Attorney General), (SCC), [1989] 2 S.C.R. 1326. [26] LeSage A.C.J.O.C. determined, at paras. 121-123, that the harm, there the harm to the surviving family members of the threegirls who subsequently died at Bernardo’s hands, would far exceed any benefit from the public exposure of the graphic sexual assaults.He stated that the public pictorial display had virtually no redeeming societal value and would seriously affect the families and friends ofthe victims, as well as a large number of citizens.

The limitations imposed would not affect the accused’s right to a fair and publichearing. [27] Since the Crown was seeking something less than a s. 486(1) publication ban, it was necessary to involve the court’s inherentjurisdiction. Section 486(1), then read as follows:

Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as thecase may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice toexclude all or any members of the public from the court room for all or part of the proceedings, he may so order. [28] LeSage A.C.J.O.C. was satisfied that he was permitted to exercise his inherent jurisdiction to the extent that it was required to“see that justice is done.” He decided that s. 486(1) of the Code did not restrict his authority to grant what was in effect a lesser remedy(at para. 13). [29] I note that Bernardo differs from the case at bar in that the video-recordings there were being played as part of the Crown’scase at trial, and witnesses were going to be questioned about the contents in the course of their testimony. [30] In Canadian Broadcasting Corp. v.

New Brunswick (Attorney General) (Re R. v. Carson), (SCC), [1996] 3S.C.R. 480 (“CBC v. New Brunswick”), the Supreme Court of Canada ruled that s. 486(1) constitutes a justifiable limit on the freedom ofexpression guaranteed by s. 2(

b) of the Charter of Rights and Freedom and is thereby saved by s. 1 of the Charter. In that case, aprominent Moncton resident pled guilty to two charges of sexual assault and two charges of sexual interference. On a motion of theCrown, consented to by defence counsel, the trial judge excluded the public and the media with the exception of the accused, thevictims, their immediate families and a victim services coordinator, from those parts of the sentencing proceedings dealing with thespecific acts committed by the accused. The ultimate issue was whether the trial judge exceeded his jurisdiction.

The Court decided thatthe judge did not have all the facts before him to provide a sufficient factual foundation for the exercise of his discretion under s. 486(1).The mere fact that it was a sexual assault case was not sufficient to establish undue hardship for the complainants requiring the exclusionof the public. [31] The burden of displacing the general rule of openness of the court lies upon the party making the application. See CBC v. NewBrunswick, at paras. 71 and 75; and Dagenais v. Canadian Broadcasting Corp., [1994] 3. S.C.R. 835.

There must be a sufficientevidentiary basis from agreed facts or found in a voir dire if there is a dispute. There must be a sufficient evidentiary basis generally toallow the judge to determine; 1. Whether the order is necessary in light of reasonable and effective alternatives; 2. Whether the order has been limited as much as possible; and 3. Whether the positive and negative characteristics are proportionate. [32] I add that there is also a category for the exclusion of the public in the interest of public morals. See R. v.

Colalillo, 2006 QCCS7903, at para. 12, where the judge to had to determine what evidence might reasonably be expected to offend, or to have an adverse orcorrupting effect on public morals by publicity of obscenities, perversions or the like. That is not specifically submitted to be the case inthis application.

ANALYSIS [33] In the case at bar, as in P.M., the photography and video recordings contained within the exhibit depict the acts forming thebasis of both the sexual interference and production of child pornography offences. [34] As stated in both P.M. and Hunt, a sentencing judge is expected to review this type of evidence when it is presented. I amsatisfied, however, that in these circumstances, it is appropriate that I do so in chambers rather than in open court.

I also conclude that theexhibit should be sealed within the court file. [35] I reach this conclusion both on the basis of the reasoning in Bernardo as well as with consideration of the factors nowenumerated within s. 486 of the Criminal Code.

In my view, a public display of this exhibit in court would seriously and adversely affectthe victims, as well as their families and friends, and the open courts principle is satisfied by the public availability of the AgreedStatement of Facts, which sets out the details of the offences in a manner sufficient to allow the public to grasp the shocking andabhorrent nature of them. [36] As well, allowing the exhibit to be viewed by the media or the public could, in my view: 1. disclose the identity of the victims; 2. cause significant psychological harm to the victims; 3. discourage the reporting of sexual offences; 4. publicize child pornography; and 5. disadvantage women and girls who are subjected to significant trauma by sexual violence and pornography.

CONCLUSION [37] I conclude that the order sealing the exhibit and limiting its viewing to the sentencing judge addresses the factors to beconsidered in s. 486(2)(a), (b), (

d) and (e). [38] There is really no other way of protecting the privacy and security of the victims and, overall, the negative consequences ofmedia and public access overwhelmingly outweigh this limited restriction on court openness.

[ 39 ] In my view, the order is necessary and the availability of the redacted Agreed Statement of Facts satisfies the public’s right to know about the offences committed by the accused and these proceedings. [ 40 ] I therefore make the following order: 1. that the copies of the Replacement Indictment dated October 5, 2017, one including the full names of the eleven victims and one including only the victims’ initials, be sealed and secured in the Court records in a manner which will ensure the confidentiality of the victims’ identities, subject to any further order of the Court; 2. that the Crown tenders an audio-visual exhibit of various child pornography photographs and video recordings featuring images of the victims indicated in the Replacement Indictment filed in this proceedings; 3. that the Court examine the said audio-visual exhibit in camera , privately within the presiding Justice’s chambers; 4. that following the Justice’s examination of the audio-visual exhibit, the exhibit shall be sealed to prevent access and viewing by anyone other than the presiding Justice, subject to any further order of the Court; 5. that the audio-visual exhibit shall be secured in the Court records in a manner which will ensure the confidentiality of the exhibit, subject to any further order of the Court; and 6. that when the said exhibit is no longer required for the due administration of justice, the Crown may apply for its return to the RCMP for destruction.

The Crown shall give notice of its application to local media and any victims who may have commenced civil proceedings in the Supreme Court of Yukon. ___________________________ VEALE J.