R. v. Mullin Date:, 2015 BCPC 48

Citation: R. v. Mullin Date: 20150224 2015 BCPC 0048 File No: 25349-3 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES MULLIN RULING ON APPLICATION OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: J. Johnston Appearing for the Defendant: G. Lilienweiss, agent for Tony Zipp Counsel for Vancouver Sun : J. Gratl Counsel for Cst. S. : D. Butcher, Q.C. Place of Hearing: Quesnel , B.C. Date of Hearing: February 5, 2015 Date of Judgment: February 24, 2015

Overview: [1] This is my decision regarding the Vancouver Sun’s application for access to an exhibit used on Mr. Mullin’s criminal trial. Theexhibit is a DVD visual recording of an RCMP Const. punching Mr. Mullin in the face when Mr. Mullin was in police custody. Thepunch occurred as a result of Mr. Mullin threatening to abduct the Constable’s young daughter. [2] The purpose for the application is for possible publication of the visual recording. [3] The Provincial Crown takes no position on the application. Mr. Mullin was not present but his counsel, Tony Zipp, advisesthrough agent Gary Lilienweiss that Mr.

Mullin supports the application. [4] The application is opposed by the Constable. Background: [5] Mr. James Mullin was charged on October 16, 2012, of uttering a threat to cause death or bodily harm to the daughter of a localRCMP officer. The trial of the matter concluded on August 25, 2014. I gave my reasons for convicting Mr. Mullin on October 17,2014. Mr.

Mullin was sentenced on January 13, 2015. [6] The Vancouver Sun made the present application on January 12, 2015 and the matter was adjourned to allow the RCMPofficer’s counsel to attend to make submissions in opposition of the disclosure. [7] The facts of the incident as found at trial were set out in my October 17, 2014 written decision at paragraphs 2 through 26. Abrief synopsis of those facts is as follows. [8] The intoxicated accused was arrested by other police officers on a mischief charge, and was taken to the Quesnel RCMPdetachment booking-in counter.

The Const. to whom the threat was uttered was standing behind the counter not interacting with theaccused. The accused recognized the officer from prior dealings and from seeing him the day before when the officer was off duty, andwalking with his young daughter in downtown Quesnel. [9] The accused told the officer that he would feel differently some day when the accused had the officer’s daughter in the trunk ofhis car and the accused would be the only person able to touch her. The officer was shocked and appalled at the threat and asked theaccused to repeat what he just said.

The accused started to repeat his threat and the Constable, in a fit of anger, grabbed the accused bythe clothing and punched him one time in the face, dislodging one of the accused’s teeth. [10] The officer was charged and pled guilty to assaulting the accused and was sentenced on that matter by another judge in anotherlocation. Mr. Butcher, Q.C., advises the Const. received an absolute discharge. [11] The DVD that was entered as an exhibit is a visual only recording. It shows Mr. Mullin being punched and a subsequent briefmelee as other officers intervene.

It also shows the accused in a cell acting in a way consistent with being both intoxicated and veryupset with having been assaulted. The Constable’s position [12] Mr. Butcher says the Constable is opposed to the application primarily because the real victim is the Constable’s seven-year-old daughter. [13] He submits it is open to the court to conclude through common sense that it would be harmful for the young girl to either learn,or be subject to repeated reminders, that a stranger had made a threat to abduct and harm her. [14] In the alternative, Mr.

Butcher says that if disclosure is ordered, the Constable’s daughter is entitled to remain anonymous andthat the only way that can occur is to order a ban on the publication of the Constable’s name. [15] Mr. Butcher raises other concerns about the disclosure of the Exhibit for the purposes of publication. Those concerns arewhether the other officers depicted in the visual recording should have been given proper notice of the application. He emphasizes he isnot representing those officers, and that they would have received a general notice of the application.

It is his understanding that two ofthe three officers remain in general duties and one of the officers is working with the drug squad and therefore his identity should be keptsecret. Mr. Butcher submits that if the DVD exhibit is ordered to be disclosed for the purposes of publication by the Vancouver Sun thecourt should also order that the other three officers depicted in the video should have their faces pixelated such that they cannot beidentified. [16] Mr. Butcher refers me to Global BC, A Division of Canwest Media Inc. v.

British Columbia, 2010 BCCA 169, where, atparagraph 79, Justice Newbury sets up a process to be followed with respect to release of an exhibit to the media. Mr. Butcher says thiscase is authority that the court has control over its own process with respect to media applications and the breadth of disclosure. The Vancouver Sun’s position [17] Mr. Gratl submits the court should be guided by the decisions in Dagenais v. Canadian Broadcasting Corp, (SCC), [1994] 3 S.C.R. 835, and R. v.

Mentuck, 2001 SCC 76. [18] He submits those cases made clear that only legally protected interests can outweigh the interest in free speech set out under s. 2

(

b) of the Charter. He also emphasizes that in Canada we have an open court system and the burden of displacing the general rule ofopenness lies on the party opposed to the application. [19] Mr. Gratl directs my attention to paragraph 38 in the Mentuck decision for authority that there needs to be a convincingevidentiary basis for issuing a ban on publication. In paragraph 39 of that decision Iacobucci J., speaking for the court, says as follows: 39.

It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is sostrong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban.

Effectiveinvestigation and evidence gathering, while important in its own right, should not be regarded as weakening the strong presumptivepublic interest, which may go un-argued by counsel more frequently as the number of applications for publication bans increases, in atransparent court system and in generally unrestricted speech on matters of such public importance as the administration of justice. [20] In Mentuck, the concern was over disclosure of a police investigatory technique and whether the disclosure would weaken theefficacy of the technique.

It was determined by the court in that case that given information about the technique had been publishedmany times previously, the danger of weakening its efficacy would not be significantly increased by republication. (See par. 45) [21] Mr Gratl says the facts in Mentuck are particularly relevant to the case at bar given that on October 23, 2014, the ProvinceNewspaper published an

article referring to my decision convicting Mr. Mullin after trial. In that

article reference was made to theConstable by name and also to the specifics and the threat that Mr. Mullin had made to the Constable in respect of the Constable’sdaughter. Mr. Gratl says the fact of this prior publication means the publication of the visual recording would have only a slenderincremental effect on privacy interest concerns. [22] Mr. Gratl also made able submissions regarding the importance of respecting the open court principle, and the potential publicinterest in the case at bar. Decision: [23] I have considered and am guided by the cases referred to me by counsel as set out above.

I also have considered, and amparticularly guided by the decision in Canadian Broadcasting Corp. v. The Queen [2001] SCC 3. [24] In the Canadian Broadcasting Corp. case, at paragraph 12, it was held: 12. Access to exhibits is a corollary to the open court principle. In the absence of an applicable statutory provision, it is up to the trialjudge to decide how exhibits can be used so as to ensure that the trial is orderly. This rule has been established in our law for a very longtime. As long ago as in Attorney General of Nova Scotia v.

MacIntyre, (SCC), [1982] 1 S.C.R. 175, at p. 189, Dickson J.(as he then was) wrote: Undoubtedly every court has a supervisory and protecting power over its own records.

Access can be denied when the ends of justicewould be subverted by disclosure or the judicial documents might be used for an improper purpose. [25] It was also confirmed in the C.B.C. case that the analytical approach developed in Dagenais and Mentuck applies to alldiscretionary decisions that affect the openness of proceedings (see par. 13) and that the analysis must include a consideration of thespecific context of the case before the judge (see par. 16). [26] I am well aware that in the case before me part of the context is that the order for disclosure being sought is post trial, as it wasin the C.B.C. case.

This aspect of the overall context is very relevant in regards to the first branch of the analytical approach enunciatedby Iacobucci J. in Mentuck. [27] That analytical approach in Mentuck is set out at paragraph 32 as follows: 32. A publication ban should only be ordered when: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternativemeasures will 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 the accused to a fair and public trial, and the efficacy of theadministration of justice. [28] In regards to the first branch of the analysis, the risk to the proper administration of justice must be real and substantial andsoundly based on the evidence (see Mentuck par. 34; and Global par. 65). [29] In the case before me, the only real competing interest is in regards to the true victim of Mr.

Mullin’s crime, that being theConstable’s very young daughter, who is now only 7 years old. [30] I do not find that is has been established that there would be a real and substantial risk to the proper administration of justice ifthe video were disclosed for broadcasting. This is in significant part because the trial and sentencing of Mr. Mullin has been completed. [31] The possible concerns of the other officers who are briefly depicted in the video, are speculative and do not amount to a factor I

need consider. Mr. Butcher confirmed he does not act for these officers. [ 32 ] The question in this case is to be resolved by way of considering the rights and interests of the parties and the public, starting from a recognition that we have an open court system and that the request for publication of the DVD visual recording exhibit is something that is consistent with the right to freedom of expression. [ 33 ] The evidence before me is primarily the evidence heard at trial and on sentencing.

Additional application specific evidence in support of denying publication of the visual recording is via submissions of counsel that the Constable, in his capacity as father of the young child who was the subject of Mr.

Mullin’s threat, is concerned about the impact on his daughter. [ 34 ] The Constable’s actions captured on the visual recording and his testimony at trial were infused with that concern, and in this case it was enough to hear via counsel’s direct and implied submissions that the father remains concerned and is concerned about prolonging this negative episode in his daughter’s life, and of the negative effect that could very likely have on her emotional wellbeing. I did not need direct testimony on this.

Properly, counsel for the Vancouver Sun did not make any suggestion that the father would not have this stated concern. [ 35 ] Part of the evidence I received during sentencing Mr. Mullin was via a victim impact statement from the young girl’s mother. The sentiments expressed in that statement were consistent with counsel’s submissions regarding the father’s concerns. [ 36 ] There is Parliamentary recognition of a general concern that it may well be contrary to the interests of young victims of certain crimes to have their identities published.

The Criminal Code has several examples of mandatory prohibition orders respecting young persons who are complainants or witnesses in sexual offence cases. Although the charge Mr. Mullin was convicted of was not a sexual offence, it would be open to persons to not unreasonably infer - even if unintended by Mr. Mullin - a sexual connotation to the specific words he used in his threat. [ 37 ] Even absent that possibility, the Constable’s young daughter is nevertheless a vulnerable person because of her age.

In Canadian Broadcasting Corporation , the Supreme Court of Canada upheld the lower court’s decision to prohibit publication of a video recording of the accused providing a pre-trial statement on the basis that the accused - who had been acquitted - was a vulnerable person as a result of his intellectual disability.

Deschamps J., speaking for the court, at paragraph 19, confirmed that there are cases where the protection of social values must prevail over openness, and that the protection of vulnerable persons is one of those cases. [ 38 ] I do not find that the previous written publication in the Province online news summarizing the facts of the trial means that publication of the visual recording would have no further, or only a slightly incremental, deleterious effect on the privacy related interests of the young victim. [ 39 ] The balance of interests between an open court system and privacy related interests of the young victim were, in my mind, achieved by way of the public having access in the normal fashion to the trial decision and reasons and the sentencing decision and reasons.

In this particular case, having the matter resurface by way of publication of the visual recording on television or the internet dramatically tips the scale. [ 40 ] Protection of our children is a social value, and given the young age of the Constable’s daughter, I find she is a vulnerable person who is old enough to watch TV and become stressed, confused and otherwise negatively affected by seeing the visual recording herself or by the subsequent discussion and comments that can be expected to occur in her presence or be directed her way as a result of the sought after publication. [ 41 ] In this particular context, the above social value outweighs the Vancouver Sun’s right to broadcast, or the public’s interest in watching, the video of this 7 year old girl’s father punching the stranger who threatened to abduct her. [ 42 ] The application is denied.

There will be a ban on the publication, broadcast or transmittal of the DVD visual recording exhibit in question. R.D. Morgan Provincial Court Judge