R. v. Bayley Date:, 2018 BCPC 16

Citation: R. v. Bayley Date: 20180126 2018 BCPC 16 File No: 241405 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANGUS CHARLES BAYLEY RULING ON APPLICATION BY THE COLLEGE OF MASSAGE THERAPISTS OF BRITISH COLUMBIA OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Applicant: B. Martland Counsel for the Defendant: S. Nicoll Counsel for the Crown: A. Seymour Place of Hearing: Vancouver, B.C. Date of Hearing: August 28, 2017; January 16, 2018 Date of Judgment: January 26, 2018

INTRODUCTION [ 1 ] This is an application by the College of Massage Therapists of British Columbia (the “College”) for an order permitting access to the trial transcripts of a sexual assault trial where a publication ban pursuant to s. 486.4 (2) of the Criminal Code has been Ordered. [ 2 ] For the reasons that follow the application is granted in that; all information contained in the transcripts will be released to the College, but for any information that could identify the victim, R.K. BACKGROUND The College of Massage Therapist of BC [ 3 ] Mr.

Bayley is a massage therapist who is registered with the College of Massage Therapists of British Columbia (the “College”). The College operates pursuant to the Health Professions Act, R.S.B.C. 1996, c. 183, (the “ HPA ”). According to the HPA the College is mandated to serve and protect the public. They are also required to exercise their powers and discharge their responsibilities in accordance with the public interest: Section 16 (1) of the HPA . [ 4 ] The College fulfils their mandate by complying with the HPA and by exercising certain powers granted to them by the HPA .

As an example, the College is required to monitor and enforce practice standards and ethical standards for all registrants. Some of the powers granted to the College include; investigatory powers, as well as, powers related to the issuance of citations, and powers necessary to conduct a discipline hearing including imposing discipline: Sections 36 - 39 of the HPA . Circumstances leading to the s. 486. 4 (2) publication ban [ 5 ] In September of 2015, Mr. Bayley was treating R.K., a 14-year-old, for injuries she suffered in a motor vehicle accident. On September 28, 2015, R.K. reported that Mr.

Bayley sexually assaulted her during a therapy session. [ 6 ] On May 4, 2016, an Indictment was sworn charging Mr. Bayley with sexual assault and touching a person under the age of sixteen years for a sexual purpose. A trial was held and at the commencement of the trial a publication ban pursuant to s. 486.4 (2) of the Criminal Code was ordered by the Court. Events after the ban [ 7 ] R.K. and her mother testified at trial and on August 28, 2017, Mr. Bayley was acquitted.

Immediately following the acquittal, counsel, acting on behalf of the College, made an application seeking an Order permitting the release of the trial transcripts. At that time the application was adjourned so the College could advise R.K. about the application. [ 8 ] On January 16, 2018, the application was continued. On this date the Court had the benefit of; 2 affidavits from Eric Wredenhagen, Registrar/Chief Executive Officer for the College, a letter from counsel for Mr. Bayley, various authorities and oral submissions by counsel for the College and the Crown.

Position of the parties [ 9 ] In October of 2017, the College was advised by R.K.’s guardian that R.K. did not want the transcripts released. [ 10 ] With respect to Mr. Bayley, in December of 2017, counsel for the College advised Mr. Bayley’s counsel of the application. Mr. Bayley’s counsel responded by letter which stated in part: Our client will take no position on your application for production of the transcripts from the criminal proceedings in the case of R. v.

Angus Charles Bayley, Court file No. 241405 on the basis that you provide us with the transcripts if the order is granted. [ 11 ] The Crown does not oppose the release of the transcripts provided all information tending to identify R.K. is redacted with the redaction being done by the Crown. [ 12 ] The Crown’s submissions rest on the importance of taking all steps to protect the privacy of sexual assault complainants. As such, they submit, the redaction of all information which could identify R.K. is necessary.

As to the Crown performing the redaction, the Crown argues they are best situated to appreciate what information may tend to disclose R.K.’s identity. [ 13 ] In support of their position the Crown relies on, The British Columbia College of Teachers v. British Columbia (Attorney General), 2010 BCSC 847 , where at paragraphs 31 and 33 , Madam Justice Griffin observed: [31] It should be noted that the s. 486.4(2) ban is not simply a ban on publishing the identity of the child complainant; it is a ban on the publication, broadcast, or transmission of "information that could identify the complainant".

I did not have a copy of the transcript of the preliminary inquiry before me during the course of this application. I am not satisfied that simply deleting the child complainant’s name from the transcript will protect the identity of the complainant.

There could be other information within the body of the evidence recorded in the transcript that could identify the complainant: for example, the child’s birth date, address, parents’ names, or other identifying information. … [33] In my view, the only way to preserve the s. 486.4(2) ban is to make an order that has a built-in process that provides that the transcript is not released to the College until an officer of the court reviews it and redacts information that could identify the complainant. The Crown has offered to take on this responsibility.

Since the Crown participated in the original preliminary inquiry, I

accept that this would be an appropriate process to ensure maintenance of the s. 486.4(2) ban. [14] The College argues the publication ban does not apply in these unique circumstances. In support, counsel points out, thepurpose in obtaining the transcripts is not to broadcast or publish information to the community, rather, it is so the College can fulfilltheir statutory mandate of protecting the public through an investigation of Mr.

Bayley’s behavior and if necessary conduct a hearing,which as per the College, falls within the ambit of the administration of justice. [15] Finally, the College suggests that a redaction is not necessary because it is not the intention of the College to publish orbroadcast any information contained in the transcripts; rather, they simply wish to investigate and if warranted issue a citation and ordera hearing. As a secondary position, the College acknowledges this Court’s jurisdiction to order a redaction of the transcripts but arguesthat it is not necessary to burden the Crown with this task.

ANALYSIS [16] The relevant Criminal Code provisions read as follows: Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identifythe victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271,272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conductalleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make anapplication for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victimis under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify thevictim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years,the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. … Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration ofjustice when it is not the purpose of the disclosure to make the information known in the community.

The administration of justice [17] Of note is, s. 486.4 (4) of the Criminal Code expressly limits the disclosure to circumstances where the disclosure is in thecourse of the administration of justice and when the purpose of the disclosure is not to make the information disclosed known in thecommunity. [18] As a first step, this Court must determine if the College’s investigation and process falls within “the administration of justice.” As will be shown “the administration of justice” is a broad concept that includes regulatory bodies when they are engaged in disciplinematters. [19] In R. v.

Wijeshinha, (SCC), [1995] 3 S.C.R. 422, the Supreme Court of Canada decided that a disciplinaryinvestigation undertaken by a professional regulatory body such as the Law Society could be considered part of “the course of justice in ajudicial proceedings”. The circumstances of the case involved: a lawyer being charged with obstruction of justice for providing false

declarations to the Law Society. [20] In deciding the issue the Court observed that the professional regulatory body in issue (the Law Society) could conduct hearingswhere oaths were administered, witnesses could be compelled to testify and findings could be made regarding legal rights and liabilities. These characteristics, thus contributed to the finding that an investigation by a regulatory body was in the course of the administration ofjustice. [21] In Di Iorio v.

Warden of the Montreal Jail, (SCC), [1978] 1 S.C.R. 152, the Court was required to consider thephrase “administration of justice” in the context of s. 91 (27) of the Constitution Act, 1986. In deciding the issue, Mr.

Justice Dickson ashe then was, observed that the phrase the “administration of justice” should, “be given a fair, large and liberal construction” (p. 199) and“that it was intended to have a wide meaning” (p. 204). [22] With respect to the College, I observe that it has been delegated powers and authority by statute whereby the College canconduct investigations and hearings similar to the circumstances in Wijeshinha. As such, they can order a person to attend at a hearingand order them to give evidence. They can also order the production of records:

Section 38, HPA. In addition to these powers theCollege can make findings and if warranted impose sanctions: See

section 39, HPA. [23] It is also noted that, the College is seeking the transcripts within the context of protecting the public through the regulation oftheir profession. In this regard, the transcripts will contribute to a fulsome investigation in that they will provide a record of theallegations as told by R.K. and Mr. Bayley’s account of what transpired. Such information will undoubtedly assist in the College’sobligation to protect the public.

Protecting R.K.’s privacy [24] Counsel for the College argues it is not necessary for this Court to order that the information that could identify R.K. beredacted from the transcripts. In support counsel submits the College would be accessing the information for the purpose of theirinvestigation and they would not be publishing information to the community.

In further support, counsel points to the College’sobligation pursuant to the Freedom of Information and Protection of Privacy Act, R.B.C. 1996, c. 165, to protect the privacy of thirdparties as a guarantee that information will not be broadcast. [25] The Crown supports the redaction of the information. They direct the court’s attention to, The British Columbia College ofTeachers v. British Columbia (Attorney General), 2010 BCSC 847, where Madam Justice Griffin dealt with a similar issue.

In that case,the Teachers’ College, despite a s. 486.4 (2) publication ban, applied for the release of preliminary inquiry transcripts in order to usethem at a teacher’s discipline hearing. In deciding the matter Madam Justice Griffin found that providing the transcripts was publishinginformation and therefore a contravention of the publication ban: Paragraph 32. [26] Although the circumstances in The British Columbia College of Teachers v.

British Columbia (Attorney General) may appearanalogous to the instant matter, it must be recognized that, the case involving the Teachers’ College was argued in the BC SupremeCourt, wherein the court could rely on their inherent jurisdiction to redact information. This Court is a court of statutory authority andthere is nothing within the related statutes permitting an order for redaction. [27] Despite the above, this court is acutely aware of the competing interests at play.

These interests are; the public’s access to thecourts, a victim’s right to privacy, and society’s interest in the proper administration of justice. In my view, these interests can bebalanced if all of the information in the transcripts is released, but for any information that could identity R.K.

I see this approach not asredacting information; rather as maintaining the publication ban on information that is not required in the course of the administration ofjustice. [28] In this case, the College has not established that disclosure of all of the information in the transcripts is required in the course ofthe administration of justice. Specifically, it has not been established that information which could identify R.K. needs to be released foran investigation or hearing. In fact, I observe the College already possesses substantial information related to R.K.’s identity.

In thisregard, counsel for the College (not counsel on this application) interviewed R.K., and that representatives for the College were presentthroughout the trial. As such, the College already has information related to R.K.’s identity and therefore the release of furtheridentifying information is not necessary for their investigation and by extension not necessary in the course of the administration ofjustice.

CONCLUSION [29] I find the College has established that all information contained in the transcripts but for information that could identify R.K.will be used by the College in the course of the administration of justice and that the College does not intend on publishing theinformation to the community. [30] Based on the above, the transcripts may be released to counsel for the College provided that counsel for the College undertakesthe following: Not to disclose the transcripts to the College until the following occurs;

a) Counsel for the College removes all information from the transcripts that could identify R.K.,

b) Counsel for the College then provides the transcripts (absent the information he has removed) to this Court for review, and

c) Upon receiving the transcripts back from this Court, counsel for the College must then release the transcripts directly to theCollege. _____________________________

The Honourable Judge R.P. Harris Provincial Court of British Columbia