R. v. Henley - RFJ Date:, 2012 BCPC 71

Citation: R. v. Henley - RFJ Date: 20120203 2012 BCPC 0071 File No: 38725 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA APPLICATION BY CBC TO REVOKE PUBLICATION BAN REGARDING IDENTITY OF COMPLAINANT REGINA v. MICHAEL DAVID HENLEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.A. DONEGAN Counsel for the Crown: Michael Wong Counsel for the Defendant: Joseph Saulnier Counsel for the Applicant (CBC): Steven DuMont Place of Hearing: Kamloops , B.C.

Date of Hearing: January 12, 2012 Date of Judgment: February 3, 2012 INTRODUCTION [ 1 ] The Canadian Broadcasting Corporation (“CBC”) applies for an order vacating a 1991 publication ban regarding the identity of the complainant in this case. The Crown and the complainant consent to the application. Mr. Henley does not oppose the application on its merits, but submits this Court has no jurisdiction to make such an order. FACTS [ 2 ] In 1991, Mr. Henley was charged with indecent assault upon the complainant between September of 1976 and June of 1977. On February 26, 1991, Mr.

Henley elected to be tried by a provincial court judge and pled guilty to the offence as charged. He was sentenced by The Honourable Judge Simpson on May 17, 1991. The Record of Proceedings, handwritten on the back of the Information, reflects that on that day Judge Simpson made the following order: “Ban on publication to the release of complainant’s name and any evidence taken during submissions .” [ 3 ] This application pertains to the first part of that order – the ban on publication regarding release of the complainant’s name.

Although not specified in the order, it is common ground between the parties that this order was made pursuant to

Section 486 of the Criminal Code . For simplicity I will refer to this order as the “486 ban”.

[4] In 1991, Section 486 (3) of the Criminal Code provided that where an accused was charged with one of a number of enumeratedsexual offences, the presiding judge may make an order directing that the identity of the complainant or a witness and any informationthat could disclose his or her identity shall not be published or broadcast. Subsection (4) provided that such an order was mandatory incertain circumstances: 4) The presiding judge or justice shall:

a) at the first reasonable opportunity, inform any witness under the age of 18 years and the complainant to proceedings in respect ofan offence mentioned in subsection (3) of the right to make an application for an order under subsection (3); and,

b) on application made by the complainant, the prosecutor or any such witness, make an order under that subsection. [5] While the court file contains a transcript of Judge Simpson’s Reasons for Sentence, no recording or transcript of a recording ofthe application for the 486 ban or the order itself exists. The complainant indicates through Mr. Dumont, counsel for CBC, that he didnot attend court proceedings in 1991 or provide any input with respect to the 486 ban. [6] Judge Simpson died several years ago. [7] On December 14, 2011, CBC applied to this court to revoke the 486 ban.

The complainant provided an affidavit consenting tothe revocation. The application was adjourned in order to provide notice to Mr. Henley and allow him the opportunity to put his positionbefore the court. The matter came on for hearing before me on January 12, 2012. At that time, Crown counsel consented to theapplication. [8] Counsel for CBC and Mr. Henley both provided written submissions and case authorities.

In the course of oral submissions, itwas made clear to me that the sole issue for my determination is a jurisdictional one: Whether a provincial court judge has the power torevoke a 486 ban issued by another provincial court judge who is now deceased. As might be expected on such a narrow issue, thereare no case authorities precisely on point. POSITION OF THE PARTIES [9] Given that both counsel have provided full written submissions, I do not intend to repeat them here. I will simply summarize themain points. [10] Relying upon R. v.

Adams (SCC), [1995] 4 S.C.R. 707 (S.C.C.), CBC submits that a trial court, in this case theProvincial Court of British Columbia, has the power to reconsider its own order. Since both the Crown and complainant now consent tovacating the 486 ban, circumstances have changed since the making of the order, allowing reconsideration to occur. That the trial judgeis deceased is jurisdictionally immaterial. Mr. Dumont argues that the power to reconsider lies with the trial court, not specifically thetrial judge.

To hold otherwise, would result in an unfairness that could not have been intended by Parliament or by the Supreme Court. [11] Mr. Saulnier, counsel for Mr. Henley, relying upon Adams and Her Majesty The Queen v. Ireland (Ont.S.C.J.), submits that as a statutory court, the provincial court possesses no authority to reconsider the 486 ban. He argues that Mr.Henley has been convicted and sentenced many years ago, rendering the trial court functus. Consequently, only the trial judge or a courtof inherent jurisdiction has this authority.

ANALYSIS [12] I will turn first to consider of the Provincial Court’s common law power to reconsider this order. [13] In Adams, the Supreme Court of Canada considered the power of a trial judge to rescind a 486(4) ban. In that case, the trialjudge ordered the ban at the request of the Crown. After the trial was completed, the trial judge acquitted the accused and immediatelylifted the ban on his own motion. When Crown counsel objected, the trial judge stayed the revocation of the ban pending a full hearing.

At the conclusion of that hearing, the trial judge upheld his revocation order, citing his findings that the complainant was a prostitute anda liar. The Crown did not consent to the revocation of the ban, nor did the complainant. One of the questions before the Supreme Courtwas whether the trial judge had the authority to reconsider the ban after he had rendered a verdict. [14] The Court first examined the wording of the legislation in the context of its purpose. Nothing in the language of

Section 486authorizes reconsideration. This, the Court held, is necessary to fulfil the purpose of the legislation - to encourage reporting of sexualoffences by providing certainty that a victim’s identity will be protected. However, Sopinka J. went on to consider whether a trial judgepossesses the inherent power to reconsider, vary or rescind orders made during the course of trial. He found, as a general rule, any orderrelating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made havematerially changed (paragraph 30). [15] In addressing

Section 486 of the Criminal Code specifically, Sopinka J. wrote: 28. I agree with the respondent that nothing in the language of s. 486 of the Criminal Code expressly excludes any power possessed by acourt to reconsider an order made under s. 486(3) and (4). These provisions address the making of the order but do not deal withwhether the order is reviewable after it has been made. It is, therefore, not inconsistent with the

interpretation of these subsections tohold that, whatever inherent power to reconsider resides in a court, survives. Indeed, as I shall point out hereafter, it may be desirableand in keeping with the purpose and objects of the section, to permit reconsideration and revocation of the order if the circumstanceswhich justified its making have ceased to exist. It is, therefore, necessary to consider what authority a judge has to reconsider a previousorder and its application to the circumstances of this case. (emphasis added) 29.

The court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus. The courtcontinues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. See Oley v. City of

Fredericton (1983), (NB CA), 50 N.B.R. (2d) 196 (C.A.). With respect to orders made during trial relating to theconduct of the trial, the approach is less formalistic and more flexible. These orders generally do not resolve in a formal order beingdrawn up and the circumstances under which they may be varied or set aside are also less rigid. The ease with which such an order maybe varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made.

For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will beless formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can bevaried or revoked. This will apply with greater force when the initial making of the order is mandatory. (emphasis added) 30. As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at thetime the order was made had materially changed.

In order to be material, the change must relate to a matter that justified the making ofthe order in the first place. [16] Given that no circumstances had materially changed, Justice Sopinka concluded that the trial judge did not have the authority torevoke the order. He did go on, however, to consider the trial judge’s authority in the event circumstances had materially changed atparagraph 32: ... it is useful to add that, had the Crown consented to the revocation order but the complainant did not, the trial judge would equallyhave had no authority to revoke.

The complainant was also entitled to a publication ban even if the Crown had not applied for it. If,however, both the Crown and the complainant consent, then the circumstances which make the publication ban mandatory are no longerpresent and, subject to any rights that the accused may have under Section 486(3), the trial judge can revoke the order. (emphasisadded) [17] The language used by Mr. Justice Sopinka was specific. He referred to the “power” of a trial judge to revoke such an order.

Hereferred to “an inherent power to reconsider [which] resides in a court”. [18] On the basis of Adams, Judge Simpson would have the power to reconsider the 486 ban were he alive. It therefore stands toreason that the trial court is not functus for the purposes of this application. [19] In Ireland, Mr. Justice Delfrate discussed this issue as well. Mr. Ireland had been convicted and sentenced in 2003 in front ofanother Superior Court Justice. Two years later, CBC applied to have the

Section 486 ban revoked, with the complainant’s consent. Thematter came before Mr. Justice Delfrate who was a Superior Court Justice, but was not the trial judge who made the order. Heconcluded that a judge other than the trial judge could vary, rescind or revoke such an order. He found such a power “by the inherentjurisdiction of the Superior Court”. [20] I find Ireland to provide little assistance in this case. Justice Delfrate, sitting as a Superior Court judge, did not have to considerthe issue of whether a court of inferior jurisdiction has the power to vary or rescind its own orders.

He was considering a superior court’sjurisdiction only and therefore did not address the issue before me. [21] Three decisions from the Provincial Court of British Columbia are instructive, although also not directly on point. [22] In R. v. Turley B.C.P.C. April 6, 2011, the Honourable Judge Higinbotham found that he had the jurisdiction to revoke a 486 banhe imposed 15 years earlier at trial. In this case, the CBC, with the support of the complainant and the Crown, brought an application torevoke the 486 ban.

Judge Higinbotham cited Adams for the proposition that, as the trial judge, he has the power to revoke such anorder. After ensuring that Mr. Turley’s rights had been considered, he vacated the ban in a subsequent ruling on April 28, 2011. [23] The Honourable Judge Palmer was presented with the same application in Application Re: CTV, Michael Killeen, The VancouverSun and The Province [2002] B.C.J. No. 2887. The application was brought approximately three weeks following the original hearing. Judge Palmer “treated this application as a continuation of the hearing before me on November 21, 2002”.

Relying on Adams, sheconcluded she had the ability to reconsider the order she had made and revoked it. [24] The Honourable Associate Chief Judge Stansfield had occasion to consider the inherent powers or, what he describes as “inherentprocedural jurisdiction” of the Provincial Court, in Regina v. D.A.D.

(1999) B.C.P.C. 0017. [25] This decision was made in the context of an application for what is often referred to as a “Rowbotham order” - an order stayingor adjourning proceedings until the Attorney General of British Columbia provides funded counsel for the accused. I find, however, thatthe general principles outlined by Judge Stansfield are applicable to the matter before me. [26] After reviewing a number of authorities, Judge Stansfield held that there is “no dispute as to the Provincial Court’s common lawjurisdiction to ensure a fair trial when the Provincial Court is acting as a trial court.” (paragraph 7).

He went on to consider theProvincial Court’s jurisdiction to follow procedures the Court perceives to be necessary to ensure fairness but which are not expresslyauthorized by the Criminal Code. In doing so, Judge Stansfield referred to one of his earlier decisions: 18. In a wholly unrelated context (a family proceeding, Craig v. Gidyk [1994] B.C.J. No. 1591), I was required to consider whether as ajudge of an inferior court, I possessed what Judge Lilles [Regina v. Lewis

(1995) Y.J. No. 119] would describe as “ancillary”jurisdiction, or what I described in that case as “inherent procedural” jurisdiction, as distinct from inherent substantive jurisdiction,where there was a “gap” in the Court’s Rules.

I will repeat part of what I said in that case, as in my view the principles aretransferrable: [para 26] It may be thought that characterizing a court as one of statutory jurisdiction (typically an “inferior” as distinct from“superior” court) is inconsistent with concluding the court is vested with any inherent jurisdiction, but it appears that is not the case. [para 27] In obiter dictum in Dr. “A” v. Mr. “C” and Mrs. “C”, (BC SC), [1994] B.C.J. No. 488, March 4, 1994),Chief Justice Esson acknowledged (at page 11) that the concept of inherent jurisdiction applies to Provincial Court.

His Reasons includean excerpt from an Ontario Court of Appeal decision quoting an

article by Isaac H. Jacob entitled “The Inherent Jurisdiction of the

Court” (1970) 23 Curr. Leg. Prob. 23. At page 51 of that

article Jacob defines inherent jurisdiction as being: ...

a) reserve or fund of powers, a residual source of powers, (upon) which the court may draw... as necessary whenever it is just and equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. Earlier in the same

article (page 24), Jacob suggests that the inherent jurisdiction of the court is exercisable as part of the process of the administration of justice. It is part of procedural law, both civil and criminal, and not of substantive law; it is invoked in relation to the process of litigation. [para 28] The concept of an inherent power to deal with matters of procedure in order to ensure that justice is done is not new. In Cocker v.

Tempess (1841), 151 E.R. 864 (Exch.) , for example, Baron Alderson expressed the opinion that: “the power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and (to) see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter of the most careful discretion... [para 31] I conclude that this Provincial Court possesses an inherent procedural jurisdiction which is, as Jacob suggests (at page 50), “complementary” to the Rules of the court.

In the absence of a contrary binding authority I conclude such jurisdiction exists as an essential corollary to the establishment of the court and the substantive jurisdiction which it is charged to administer. [ 27 ] Judge Stansfield concluded that a judge of the Provincial Court is vested with jurisdiction at common law, independent of the Canadian Charter of Rights and Freedoms , to take such reasonable procedural steps as are necessary to ensure that proceedings in the Court over which that judge presides are fair. (paragraph 20) He went on, however, to stress the need to use “the most careful discretion” in the exercise of such jurisdiction.

He stressed that this jurisdiction should be exercised cautiously, in a manner consistent with the principles articulated in the Criminal Code , and wherever possible avoiding conflict with the legislative or executive branches of government as they act within their respective domains. [ 28 ] On the basis of the authorities outlined above, I conclude that judges of the Provincial Court of British Columbia possess the inherent power to control the court’s own process. This power is crucial to enable the court to regulate its own procedures, to ensure fairness and to prevent abuses of its processes.

To use the words of Judge Stansfield, this court must be authorized to “take such reasonable procedural steps as are necessary to ensure that proceedings in the court over which that judge presides are fair”. [ 29 ] Counsel for Mr. Henley concedes that were Judge Simpson alive and this application before him, he would have the power to reconsider the order. In my view, fairness requires that another judge of the trial court possess the same power as the trial judge in this context. Indeed, the language used by Justice Sopinka in Adams supports this determination.

To do otherwise would, in my view, punish the very person for whom the 486 ban was imposed to protect by preventing the complainant from the opportunity he seeks to be heard. This would be an injustice. [ 30 ] Although I have concluded that I possess the common law power to reconsider the 486 ban, I also find I have the statutory authority, found in

section 669 of the Criminal Code . The relevant portions of

section 669.2 of the Criminal Code provide:

(1) Subject to this section, where an accused or defendant is being tried by

a) a judge or provincial court judge... as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant

(2) Where a verdict was rendered by a jury or an adjudication was made by a judge, provincial court judge, justice or other person before whom the trial was commenced, the judge, provincial court judge, justice or other person before him the proceedings are continued shall, without further election by an accused, impose the punishment or make the order that is authorized by law in the circumstances. [ 31 ] Here, if Judge Simpson were alive, he would clearly have the power to make this order. Based upon Adams , he would not be functus for the purposes of this application.

As Judge Palmer found in Application Re: CTV et al , the proceedings (which includes this application) could be continued in front of him.

Section 669.2(2) authorizes another judge of the same court to continue on and make an order that is authorized by law in the circumstances. I find that the order being sought is authorized by law in the circumstances. [ 32 ] Having concluded that I have both the common law and statutory authority to make the order sought, I turn now to the merits of the application. [ 33 ] Both the Crown and complainant consent to revoking the publication ban regarding the complainant’s identity that was issued on March 17, 1991. No issue is taken by Mr. Henley on the merits of the application.

Although it is unknown whether the Crown sought the ban or the trial judge imposed it on his own motion, circumstances have most certainly changed since that time. The complainant did not have any input into the order at the time. He now seeks to have the ban revoked and to have the ability to speak freely about his victimization at the hands of Mr. Henley. I find this to be a material change in circumstances. The order of Judge Simpson dated May 17, 1991 directing a “ban on publication to the release of the complainant’s name” is revoked. _________________________________

The Honourable Judge S.A. Donegan