R. v. Zehaf-Bibeau Date:, 2014 BCPC 253

Citation: R. v. Zehaf-Bibeau Date: 20141103 2014 BCPC 0253 File No: 223071-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL JOSEPH ZEHAF-BIBEAU RULING OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: T. Shaw Counsel for the CBC: K. Zimmer

Place of Hearing: Vancouver , B.C. Dates of Hearing: Oct. 27; Oct 29, 2014 Date of Judgment: Nov 3, 2014 [ 1 ] The Canadian Broadcast Corporation(the Corporation) and Yvette Brendt, a journalist with the Corporation (jointly referred to as the Applicants) have applied to be permitted to broadcast two different proceedings of the Provincial Court t(the Court) which involved Michael Joseph Zehaf-Bibeau(Mr. Zehaf-Bibeau). [ 2 ] The Attorney General of British Columbia (the Crown) represented by Crown Counsel Mr. Shaw appeared and offered arguments against the application. [ 3 ] Mr.

Zehaf-Bibeau was arrested late in 2011 for allegedly robbing a MacDonald’s restaurant. He subsequently appeared before Judge Senniw for his bail hearing on December 19, 2011. Judge Senniw detained Mr. Zehaf-Bibeau pursuant to the provisions of s. 515(10) (

b) of the Criminal Code . [ 4 ] On February 22, 2012, Mr. Zehaf-Bibeau appeared before me with counsel. He elected to be tried in the Provincial Court on the robbery charge. With the consent of the Crown, pursuant to s. 606(4), Mr. Zehaf-Bibeau pled guilty to the offence of threatening. I accepted a joint submission from counsel and sentenced Mr. Zehaf-Bibeau to one day in jail in addition to the 66 days he had spent in pre-trial custody. [ 5 ] On October 22, 2014, Mr.

Zehaf-Bibeau shot and killed a soldier in Ottawa and in turn was himself shot and killed inside the Parliament Buildings by security personnel. [ 6 ] On October 23, 2014, various media representatives including the Applicants appeared before me seeking disclosure of the Courts Digital Audio Recordings (DARS) of the proceedings before both Judge Senniw and myself. Some of the media representatives including Ms. Brendt also applied for a copy of and permission to broadcast the contents of a forensic psychological examination of Mr.

Zehaf-Bibeau filed as an exhibit during the proceedings before me. (the Exhibit) [ 7 ] I waived the requirement of accreditation for journalists, required by the Policies of the Provincial Court of British Columbia related to Access to the Court’s Records (the Policy) and granted each media representative who applied, access to a Compact Disk (CD) containing a reproduction of each DARS record of the proceedings before Judge Senniw and myself provided each representative first entered into an undertaking containing the terms set out at paragraph 6.3 (3) of the Policy.

I varied that undertaking so that each representative could publish quotes from the DARS record without first obtaining a transcript which is the ordinary course expected by the Policy to be taken by journalists.

I also ordered that a copy of the Exhibit be provided to each media representative. [ 8 ] One of the terms of the undertaking was not to broadcast the contents of the CD. [ 9 ] The Applicants, with the consent of the Crown, have adjourned their application to broadcast the entirety of the DARS record for both proceedings and have proceeded with an application to be permitted to broadcast only the contents of a statement made by Mr. Zehaf-Bibeau during the bail proceedings before Judge Senniw (the Statement).

The Applicants seek an order permitting them to broadcast the Statement without limitation upon the manner or context of such broadcast or their discretion to determine which portions of the Statement to broadcast. [ 10 ] The Crown also presented arguments against this application. [ 11 ] The only evidence before me other than the proceedings themselves is an affidavit of Manlion Sull served on October 7, 2009, and Ms. Brendt affidavit sworn October 27, 2014. Ms.

Brendt inter alia , deposed at paragraph 4, “I believe there is expression and sentiment conveyed in Michael Joseph Paul Zehaf-Bibeau’s statements made at the December 22, 2014 (sic) hearing which can only be conveyed when listening to DARS.” [ 12 ] According to the Applicants it is necessary they be allowed to broadcast the Statement since this is an extraordinary and unusual case and there is a real public interest in hearing the expression and sentiment of Mr. Zehaf-Bibeau’s comments to the Court as listening to them will provide insight into who Mr.

Zehaf-Bibeau was, his mental state, and what did and did not happen when he was in the legal system. According to the Applicants the Statement is, “The voice of the man who may change how our entire centre of democracy operates and how Canada responds to terrorist threats.” [ 13 ] I point out that it has yet to be formally determined whether Mr. Zehaf-Bibeau was a terrorist as defined in the Criminal Code . [ 14 ] The essence of the Crown’s position is that the Policy generally prohibits broadcasting of court proceedings and that was the case in 2011 prior to the Statement being made. Mr.

Zehaf-Bibeau can be deemed to have been aware of the Policy since it was published on the Court’s website as early as February 2011. The Applicants did not seek to broadcast the Statement or any portion of either of the proceedings beforehand. Mr. Zehaf-Bibeau was entitled to rely on the Policy both at the time he made the Statement and afterwards. Moreover, other individuals, be they witnesses or accused persons, who like Mr. Zehaf-Bibeau will be compelled to appear before the criminal division of the Court, are entitled to rely on the Policy.

Such individuals should not be concerned that due to the effluxion of time or unexpected events regardless of how terrible those events may be, the Policy will be disregarded by the Court itself. The Crown submits that the application is in fact an attempt to repurpose the Policy, claiming that applicants wish to permit everyone, anywhere, to do anything with the recorded proceedings of the Court. [ 15 ] In order to deal with this application it is necessary to set out my understanding of the Policy.

[16] The Applicants placed before me and relied upon during their submissions a copy of the Court’s Policies Regarding Public andMedia Access in the Provincial Court of British Columbia as it was in November 2012. The Policy has been revised to some degreesince then and I am relying on the latest version of the Policy which was published May 2014 which is the only version applicable to thisapplication.

Fortunately, there is no substantive difference in the versions of the Policy as it relates to the Court’s policy concerningaccess to and broadcast of its digital audio recordings of the Courts proceedings. [17] The Policy is very clear throughout that the Court is open to the public but access to the Court’s record must be supervised bythe Court to ensure that the ends of justice are not subverted by inappropriate disclosure. [18] The Policy clearly recognizes the fundamental freedoms set out in s. 2(

b) of the Canadian Charter of Rights and Freedoms (theCharter) and in particular recognizes that all members the public, both listeners and speakers have a constitutional right to informationpertaining to the Court as a public institution. [19] The Policy also clearly recognizes that since it is quite impractical for all members of the public to attend all court proceedings,a significant and effective means of providing that information to the public is through the press and other members of the media. [20] To ensure liberal access to the proceedings of the Court the Policy provides a variety of means by which the public and themedia may access the various records of the Court including DARS. [21] In particular the Policy permits journalists who through a specified process are accredited by the Court to gain access to a CDcontaining the DARS record of a proceeding by entering into an undertaking before a Court Services Justice of the Peace.

Moreover,any other member of the public including unaccredited journalists as was the case before me on October 23, may apply to a Judge of theCourt as specified in the policy for such a CD. [22] The policy makes a distinction between the DARS record of general proceedings and the DARS record of judgments andrulings. Access to the latter requires an application to a Judge of the Court as specified in the Policy. [23] The applications brought before me on Oct 23 sought the DARS record of all of the proceedings before myself and JudgeSenniw relative to Mr. Zehaf-Bibeau.

Judge Senniw was not available on Oct 23 and in accordance with the Policy I heard theapplications in my capacity as one of the presiding judges and in my capacity as Regional Administrative Judge for the ProvincialCourt’s Vancouver Region. Accordingly, I am seized with this application and with any other applications concerning access to theDARS record of both proceedings. [24] My order granting those applications effectively banned broadcast of the contents of the CD. The present application before meis in affect an application to vary that order.

I have contemplated whether it would be more appropriate for the Applicants to appeal myorder. Ms. Brendt, who was present on October 23 asserts in her affidavit that she was of the impression after the hearing on October 23,that if the media wanted to do anything with the DARS record beyond what was permitted by my October 23 order, they could make afurther application to the Court. [25] Although my order precluded the broadcast of the DARs record of the proceedings I did not deal with the issue in a substantiveway.

I have determined that in all the circumstances it is necessary to hear this application. [26] Both the Applicants and the Crown put before me a number of authorities which deal with the issue of broadcasting of Courtproceedings. I have considered them all but will only refer to some of them. [27] At the start of this application the Applicants asserted that the Crown had not met the onus to satisfy what is commonly referredto as the Degenais/Mentuck test namely: ….A publication ban should only be ordered when: (

a) such an order is necessary in order to prevent a serious risk to the administration of justice because reasonable alternative measureswill not prevent the risk; and (

b) 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 an accused to a fair and public trial, and the efficacy of the administrationof justice. (R. v.

Mentuck, 2001 SCC 76 at paragraph 32) [28] I do not agree with the Applicants. [29] The bulk of the authorities put before me by the parties considered the Dejenais/Mentuck test in the context of applications tobroadcast or publish various types of information and or exhibits placed in evidence during court proceedings but which were derivedfrom events external to the proceedings before the courts in question. (CTV v. R, 2006 MBCA 132), R. v. Fry 2010 BCCA 169, CBC v.R. 2010 ONCA 726, Toronto Star Newspapers Inc. v. Ontario 2005 SCC 41, R. v. Renderos, 2013 BCPC 10 , 2013 BCPC 0010,R. v.

Penghali, 2011 BCSC 422, ) [30] Indeed Dejanais v. CBC (SCC), 1994 Carswell Ont 112 dealt with an injunction preventing the CBC frombroadcasting a film concerning events which had led to a criminal trial and Mentuck involved an application to broadcast evidenceconcerning police techniques used during an undercover police operation. [31] Of the authorities put before me by the parties only R. v. Cho, 2000 BCSC 1162, Reference Re:

Section 293 of the CriminalCode of Canada 2011 BCSC 1588, CBC v. The Queen and Dufour, 2011 SCC 3 and CBC v. Quebec 2011 SCC 2 considered theDegenais/Mentuck test in the specific context of an application to broadcast a Court’s proceedings. [32] Cho permitted the broadcast of some of the proceedings before the trial judge but was decided well before the SCBC Practice

Direction No. PD-23 concerning television coverage of proceedings in the SCBC was first published. [ 33 ] Reference Re s. 293 permitted broadcast of the final submissions of counsel in an unusual proceeding before the Chief Justice of British Columbia.

Chief Justice Bauman noted that the Practice Direction was a recognition that televising proceedings was appropriate in some circumstances, the proceeding before him was unique and due to the exceptional nature of the proceedings commented that his ruling did not “necessarily have precedential value for future cases. (Reference Re s. 293 paragraphs 41-42) [ 34 ] Both the CBC v. Dafour and its companion decision CBC v.

Quebec considered the efficacy of the Rules of Practice of the Superior Court of the Province of Quebec which inter alia banned the broadcast of its proceedings. [ 35 ] Both decisions emphasized the distinction between broadcasting the contents of an exhibit produced during a Court’s proceedings and broadcasting the words of people who had morally or legally been compelled to participate in court proceedings. ( CBC v. Quebec para 83 , CBC v. Dafour para 17.) [ 36 ] The SCC in both decisions concluded that a restriction on broadcasting proceedings of the Court was a negative effect on the s. 2(

b) Charter right of freedom of communication by the press and other media but CBC v Quebec at paragraph 93 pointed out that “The negative effect that broadcasting the audio recordings would have on the proceedings and the real impact it would have both on those participating in the hearing and on the search for truth inherent in the judicial process are factors that must be taken into account. The recordings are first and foremost a means of keeping a record of the proceedings and journalists should not use them in a way that would distort that objective. The raison d’etre of the recordings must not be altered.

They are a means of conserving evidence. To broadcast them in the name of freedom of the press would undermine the integrity of the judicial process, which the open court principle is supposed to guarantee.” [ 37 ] Ultimately, the SCC determined that in the balance, the salutary and negative effects of the Quebec Superior Court’s ban on broadcasting its proceedings was constitutional. [ 38 ] While I will not quote them I have read and considered paragraphs 83-85 and 92-97 of CBC v. Quebec .

I am entirely satisfied that the Policy including its general proscription against the broadcast of the Court’s proceedings, accurately reflects not only the principles set down in those paragraphs but also the principles of the Dejenais/Mentuck test. Further, unlike the broadcast policy of the Quebec Superior Court the Policy permits me to exercise a discretion concerning the broadcast of the DARS record. The availability of such a discretion further diminishes any negative impact of the Policy on the media’s s. 2 (

b) rights. [ 39 ] It is a factor that the Statement was made during a bail hearing. Not only does the SCBC Practice Direction PD-23 which I note is invoked by the Court’s own Television Broadcast policy stipulate that such proceedings will not generally be broadcast but the Criminal Code s. 517 mandates a ban on publication of bail proceedings where the ban is sought by the accused. [ 40 ] I have listened to the Statement. Mr. Zehaf-Bideau took an opportunity to forthrightly advise the Court of his intentions should he be released on conditions of bail.

Were it not for his forthrightness, it is highly unlikely Judge Senniw would have detained Mr. Zehaf-Bideau. [ 41 ] The forthrightness of individuals who are compelled by law or moral obligation to speak to the court is fundamental to the effective administration of justice in Canada.

As was pointed out in Dafour, paragraph 17, such forthrightness might well be affected if an individual knew his or her statement might end up on the national or local television news and went on to state: “Thus the possibility that the statement will be broadcast could have a negative effect on the search for the truth, but it could also have a salutary effect on the voluntariness of the statement and consequently on the administration of justice.” [ 42 ] I agree with the Crown that once the DARS record of the Statement is broadcast regardless of any terms I might impose on the Applicants, there is no reasonable means to restrict the further use of the DARS record by third parties who may receive the broadcast from the Applicants. [ 43 ] I agree with the Crown’s contention that while broadcasting the Statement would not affect Mr.

Zehaf-Bideau’s forthrightness, broadcasting the Statement would tend to affect those, who in the future are compelled to speak to the court. Such persons might conclude that time or a change in their circumstances would affect the application and efficacy of the Policy and that might affect their own forthrightness.. [ 44 ] While I acknowledge that refusing to allow the broadcast of the DARS record of the Statement negatively affects the s. 2 (

b) rights of Ms. Brendt and the Corporation I am satisfied that the salutary effect of such a ban on the administration of justice outweighs that negative effect. [ 45 ] I am not prepared to permit the broadcast of any statement made by Mr. Zehaf-Bideau during his bail hearing before Judge Senniw on December 19, 2011. [ 46 ] The Application is dismissed.

_____________________________ The Honourable Judge R. Low Provincial Court of British Columbia