R. v. The Nanaimo Daily News Date:, 2011 BCPC 478

Citation: R. v. The Nanaimo Daily News Date: 20111115 2011 BCPC 0478 File No: 73497-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION 486.6(2) CCC REGINA v. THE NANAIMO DAILY NEWS, A DIVISION OF POSTMEDIA NETWORK INC. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: E. Gottardi Counsel for the Defendant: S. Dawson Place of Hearing: Nanaimo , B.C.

Date of Hearing: November 15, 2011 Date of Judgment: November 15, 2011 [ 1 ] THE COURT (orally): This is on File 73497-2-C.

Before me is a single-count information that reads as follows: The Nanaimo Daily News, a division of Postmedia Network Inc., between the 10th day of January, 2011 and the 12th day of January, 2011, inclusive, at or near Nanaimo, in the Province of British Columbia, did fail to comply with an order of non-publication, made on January 10, 2011 by the Provincial Court of British Columbia in Nanaimo, to not publish in any document, or broadcast or transmit in any way any information that could identify the complainant or a witness in the matter of R. v. G. M.[name deleted] (Nanaimo Registry No.

A, B-1, and B-2-C), thereby committing an offence contrary to

Section 486.6(1) of the Criminal Code . [court file numbers deleted] [ 2 ] I have heard a joint submission that has been made to me by both Crown and defence with respect to the matter before me. Crown has outlined the circumstances with respect to this matter. No issue is taken by the defence with respect to the circumstances.

In fact the defence has provided some additional information which I accept as part and parcel of the joint submission. [ 3 ] A plea of guilty has been entered with respect to Count Number 1. [ 4 ] The circumstances may be summarized in the following fashion: An order was made by the Provincial Court of British Columbia by the Honourable Judge Gould on January 10, 2011. That order was made pursuant to s. 486.4(2) of the Code . [ 5 ] The Code heading summarizes the contents of what is found in s. 486.4 as "Order Restricting Publication — Sexual Offences".

In effect, the provision is designed to protect the identity of complainants or witnesses in matters relating to certain sexual offences under the Code . [ 6 ] On January the 11th, 2011, The Nanaimo Daily News published an

article concerning the trial and the proceedings taking place with respect to the matter involving Mr. G.M. As part of the newspaper article, there were two provisions in the

article which have given rise to the charges before me. One provision in the

article identified the residential area, as well as the age of one of the complainants, and the

article went on to make a specific reference to a particular special need of the complainant. [ 7 ] As a result of the publication of that article, which appeared, as I understand it, both in the newspaper, including online version of the newspaper and in a so-called free weekend edition of the newspaper, or a version thereof, people who knew both the parents of the complainant and the complainant herself contacted the parents. They indicated that they believed that the complainant named in the newspaper

article was in fact the child of the parents who had been contacted. [ 8 ] This publication had some significant unfortunate results as far as the family were concerned. I have had the benefit of reading a victim impact statement which has been presented to me by the mother of the complainant.

It has been read into the record pursuant to s. 722(2.1) of the Criminal Code . [ 9 ] The victim impact statement indicates that the family was of the understanding that because of the publication ban and through the steps being taken by the Royal Canadian Mounted Police there would be no way that their child would be identified as one of the alleged victims of the accused in the alleged sexual assault offences. The victim impact statement indicates that within hours of the newspaper being published, the parents received a call from a family friend asking if their particular daughter had been victimized.

In the words of the mother of the complainant, and I quote: We were astonished that the promise of anonymity had been broken. We knew that our daughter's and our family's privacy had been breached. [ 10 ] The mother phoned the newspaper and apparently spoke to an editor at the newspaper. Based on the victim impact statement, and I take it that there is no dispute with respect to this issue, their conversation was focused on the harm that had been done by the publication of the information in the article. Then the same

article that had been the topic of conversation between the parent and the editor, shortly after the publication of the original article, appeared in the weekend edition. [ 11 ] It is clear that the mother felt that her concerns totally had gone unheeded, and I must say, in my own estimation, totally discounted. [ 12 ] As a result of this particular event, the family has suffered. The mother has suffered from some medical conditions that have been exacerbated by this particular experience.

There has been a necessity for her to increase her medication to deal with certain medical conditions from which she was suffering . She has been required to take medical leave. She has exhausted her leave benefits from her employer and financial loss is a possibility, should a further medical issue occur for her in the future. [ 13 ] The victim impact statement also points out that the father's mother was also extremely upset by the information that was contained in the newspaper.

The mother of the father has had to undergo counselling to deal with the publication breach, as well as the original circumstances that gave rise to the charges against Mr. G.M. [ 14 ] The father has become very fearful that the court case involving Mr. G.M. has in some way been compromised. However, I do not have anything before me to suggest, in fact, that that is the case. However, the father has, as a result of his assessment of the situation, become much more withdrawn and angry, and it has affected him somewhat profoundly due to some emotional issues with which he is already having to cope.

[ 15 ] The child complainant in this matter has not been made fully apprised of the circumstances, and in fact the parents have had to take steps in order to attempt to protect her from the publicity and also from the fact that she has become identifiable by virtue of the content of the newspaper articles. [ 16 ] The Nanaimo Daily newspaper has admitted that they are guilty of this offence. They have done so notwithstanding the fact that the limitation for the bringing of these charges, being six months, has elapsed.

In fact, the information, as I understand it, was sworn some 10 months after the actual event occurred. However, pursuant to s. 786(2) of the Criminal Code , the prosecutor and defence have agreed with respect to these charges proceeding. [ 17 ] The newspaper itself has a long and important tradition as part of the Greater Nanaimo community. It was founded back in 1874. The newspaper itself has a large readership within the Nanaimo area. It also employs over a hundred employees.

While not in any way attempting to minimize the conduct of the newspaper, defence counsel has pointed out that a newspaper, as with most media outlets, has a number of different parts with a number of very specialized individuals attempting to produce news within deadlines. That is not offered as an excuse, but as somewhat of an explanation.

The important thing that I have heard from defence counsel is the full admission that the newspaper in this case made a mistake, and that they are taking responsibility for what occurred. [ 18 ] One of the facts brought to my attention is that the newspaper published information that went beyond an RCMP press release; that has given rise to the charges that they now face. [ 19 ] With respect to a disposition of this particular matter, I have been referred to a couple of authorities.

These authorities are instructive in terms of providing something in the nature of a range of sentences for offences of this nature. [ 20 ] From a sentencing position, I have heard a joint submission that an appropriate disposition of this matter would be a fine of $4,000. This would also be accompanied by letters of apology to both the parents, as well as to the child victim in the circumstance. I have been presented with forms of those letters that have been signed. [ 21 ] I understand, as I requested, that those letters have be shown to the parents of the child victim in this matter.

They have agreed substantially with the form of the apology, and with a form of public apology that the newspaper will be running in the “A”

section of their newspaper under what is generally referred as the "Setting it Straight" column. [ 22 ] That particular statement certainly is a public acknowledgment not only of the breach that the newspaper has pleaded guilty to, but also they are making a public acknowledgment of the harm that has been caused, both, I might say, to the complainant in this matter and to her family, but also to the fact that they have not lived up to the expectation of the broader community as a responsible member of the press and related media outlets. [ 23 ] As part of the disposition of this matter, I understand it is the intention of the newspaper to hold information and educational sessions for their employees, for the purpose of having experienced media counsel inform and educate the members of the staff of the newspaper as to the nature of publication bans, their breadth and the reasons that they are imposed.

That will be followed by a question and answer session. I understand that a specific date has already been scheduled for December 5th, 2011. [ 24 ] Through their counsel, an apology has also been extended by the newspaper to this court for the breach of the order that was in place. [ 25 ] The newspaper has taken steps in order to attempt to mitigate the impact of their breach of the ban. That includes the removal of the story from their webpage and from the webpage of other related Postmedia outlets.

Steps are being taken to suppress the availability of that information from the archive system of The Nanaimo Daily News. Specifically my question was how the information that is already available on the Internet can be suppressed. It is clear to me that there is little, at this point, that the newspaper can do. To use an old analogy, the genie is truly out of the bottle. [ 26 ] However, I am satisfied that what can be done has been done by the Postmedia Network Inc. With the passage of time the fact is that the information contained in that newspaper

article will become of a much lower priority. The simple elapsing of time offers me at least a measure of comfort that this story will not continue to be a particularly live issue. [ 27 ] With respect to the overall matter, this has been characterized as an impactful set of circumstances. However, it is not at the high or egregious end of matters of this nature. In that regard, the authorities that have been provided to me are useful. [ 28 ] In R. v. CHBC Television , a Division of CanWest MediaWorks Inc ., 2007 BCSC 74 , a decision of our British Columbia Supreme Court, presents a range of fines.

That particular case reviews seven cases. In that review, Justice Humphries acknowledges that the range set forth in those cases that were referred to her was somewhere between $2,000 and around $5,000. [ 29 ] The Crown asserts, and is joined in by defence, that the appropriate range here would be between $2,000 and $10,000. [ 30 ] The cases that were before the court in R. v. CHBC Television, and in another case, R. v. The Canadian Press and Sullivan , 2009 BCSC 988 , dealt with a breach of these protective orders, that could give rise to the identification of undercover police officers.

So while they are different in terms of their facts, they certainly are useful in terms of providing guidance as to an appropriate fine. [ 31 ] From the aspect of aggravation, the fact that there was a publication of the story after a first complaint was made by the parents is certainly something of which I am mindful.

From the aspect of mitigation, I am also mindful of the steps that have been taken by the defendant newspaper once the issue and the severity of the issue was more appropriately addressed by them. [ 32 ] I am also mindful of the fact that, as I have been told by defence counsel, that the newspaper in the last 10 years has not been subject to similar types of charges or convictions. I treat that as a mitigating factor.

I am also treating as a mitigating factor those steps that have been taken by way of an apology to the family, who has been victimized in this set of circumstances, and also the steps they are taking with respect to their public disclosure of their offences under this particular

section of the Code , and the intended public apology

that has been presented to the court. [ 33 ] Having regard to all of those circumstances and the facts that are before me, I find that a fine in the amount of $4,000 is appropriate. It meets the goal of the principles of sentencing. [ 34 ]

Section 718 of our Criminal Code indicates both the purpose as well as some of the principles of sentencing.

Section 718 provides as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives . . . Subsections (

a) and (b), which are appropriate to this case, read as follows: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; The next appropriate provisions are under subsections (

e) and (f): (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 35 ] Having regard to those considerations, I find that the fine of $4,000 and the written apologies, and the publication of the apology in the newspaper, and the courses that will be offered to the employees of the newspaper are an appropriate disposition of this matter. [ 36 ] With respect to time to pay the fine, I take it that that can be done within a short period of time. [ 37 ] MR.

DAWSON: I was going to suggest 60 days, but I can't imagine it taking that long. [ 38 ] THE COURT: All right. Out of an abundance of caution, we will make it 60 days, and I take it that there is a victim surcharge which will apply to this particular matter, is that correct? [ 39 ] MR. GOTTARDI: Yes, Your Honour. [ 40 ] HE COURT: All right, then the victim surcharge will apply. [ 41 ] THE CLERK: Time to pay same as the fine, Your Honour? [ 42 ] THE COURT: Within the 60-day period of time. (REASONS CONCLUDED)