R. v. Bandura Date:, 2011 BCPC 122

Citation: R. v. Bandura Date: 20110418 2011 BCPC 0122 File No: 91251 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN LORNE BANDURA RULING ON APPLICATION OF KAMLOOPS DAILY NEWS OF THE HONOURABLE JUDGE S. A. DONEGAN Counsel for the Crown: S. Lawhead Counsel for the Defendant: M. Stanford Place of Hearing: Kamloops, B.C. Date of Hearing: February 15, 2011 Date of Judgment: April 18, 2011 Introduction [ 1 ] Mr. Bandura is charged with a number of serious offences arising out of his assault upon Bishop Munroe on October 25, 2010. The sole issue for the court’s determination is whether Mr.

Bandura is not criminally responsible by reason of mental disorder. [ 2 ] The Kamloops Daily News, a newspaper, seeks access to two forensic psychiatric reports filed by the Crown and marked as Exhibits 7 and 8 in this proceeding. Exhibit 7 is an assessment prepared by Dr. L. Meldrum dated November 17, 2010 regarding Mr. Bandura’s fitness to stand trial. Exhibit 8 is an assessment prepared by Dr. L. Meldrum dated December 22, 2010 regarding Mr. Bandura’s mental state at the time of the offence.

Kamloops Daily News seeks access to these reports to ensure accurate reporting, to assist in the public’s understanding of what transpires in court and the reasons for the court’s decision.

[3] The Crown and defence oppose the application for related, but slightly different, reasons. The court heard the application a weekprior to the hearing and reserved its decision until the conclusion of the evidence, in order to fully appreciate the context of theapplication and the concerns raised by the parties. At the conclusion of the evidence and bearing in mind the necessity of timelyreporting, I allowed the application and granted access to the reports, upon certain conditions. I indicated that my reasons would follow. These are those reasons. The Law A.

General: Openness of the court and role of the media [4] The open court principle, permitting public access to information about the courts, is deeply rooted in the Canadian system ofjustice. The strong public policy in favour of openness and of “maximum accountability and accessibility” in respect of judicial or quasi-judicial acts pre-dates the Charter: A.G. (Nova Scotia) v. MacIntyre, (SCC), [1982] 1 S.C.R. 175 at p. 184.

As DicksonJ. stated at pp. 186-187: “At every stage the rule should be one of public accessibility and concomitant judicial accountability” and“curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinateimportance.” [5] Now recognized as a fundamental aspect of the rights guaranteed by s. 2(

b) of the Charter, the open court principle has taken onadded force as “one of the hallmarks of a democratic society” that deserves constitutional protection. The open court principle and therights conferred by s. 2(

b) of the Charter embrace not only the media’s right to publish or broadcast information about court proceedings,but also the media’s right to gather that information, and the rights of listeners to receive the information. “[T]he press must beguaranteed access to the courts in order to gather information” and “measures that prevent the media from gathering that information,and from disseminating it to the public, restrict the freedom of the press.” Canadian Broadcasting Corp.

New Brunswick (A.G.), (SCC), [1996] 3 S.C.R. 480 at paras 22 -26. [6] When a court is asked to consider making a discretionary decision limiting freedom of the press in relation to court proceedings,it is to two Supreme Court of Canada cases – Dagenais v. CBC, (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, [2001]3 S.C.R. 1326 - that one must turn as a starting point. [7] The Dagenais/Mentuck test, as restated in Toronto Star Newspapers Ltd. v.

Ontario, 2005 SCC 41 , [2005] 2 S.C.R.188 stressed the importance of the open court principle and the rights of freedom of expression and freedom of the press in relation tojudicial proceedings. At paragraphs 1 through 4, Justice Fish wrote: In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy. That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms.

Section 2(

b) of the Charter guarantees, in morecomprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms bothdepend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, andmanifestly is, of central concern to Canadians. The freedoms I have mentioned, though fundamental, are by no means absolute. Under certain conditions, public access to confidentialor sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice.

A temporaryshield will, in some cases, suffice; in others, permanent protection is warranted. Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that courtproceedings are presumptively “open” in Canada.

Public access will be barred only when the appropriate court, in the exercise of itsdiscretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. [8] In Mentuck, the Supreme Court of Canada emphasized the important role the media plays in the dissemination of courtinformation to the public. At paragraph 52, Justice Iacobucci wrote: The right to a public trial is meant to allow public scrutiny of the trial process. It is exceedingly difficult for many, if not most, people to attend a court trial.

Neither working couples nor mothers and fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press toinform them about court proceedings – the nature of the evidence that was called, the arguments presented, the comments made by thetrial judge – in order to know not only what rights they may have, but how their problems might be dealt with in court. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as towhat transpired in court.

Practically speaking, this information can only be obtained from the newspapers or other media. [9] The Court further made clear that restrictions on the open court principle and freedom of the press in relation to judicialproceedings can only be ordered where the party seeking such a restriction establishes through convincing evidence that: (

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 restriction outweigh the deleterious effects on the rights and interest 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. [10] While the Dagenais/Mentuck test was developed in the context of publication bans, the Supreme Court of Canada, in TorontoStar, stated that it applies any time s. 2(

b) freedom of expression in relation to legal proceedings and freedom of the press rights areengaged in judicial proceedings. In other words, the Dagenais/Mentuck test applies to all discretionary court orders that limit that

freedom. Further, it is a test that should not be applied mechanistically – it is flexible and contextual. B. Media Access to Court Exhibits [11] A presumption exists that all documentary evidence relied upon by the trial judge should be available to the media and public. InProvince (The) Newspaper v. B.C. (A.G.) (1989), (BC SC), 41 BCLR (2d) 111, the principles laid down by TrainorJ. are summarized at pp. 119-120: Generally all documentary evidence to which a trial judge refers should be available to both the public and media.

Because of itsreporting role, the media has a right to full and detailed examination of documentary evidence. The principle of an open court and fulldisclosure of documentary evidence may be limited where necessary for a fair trial. However, such limitation is not warranted byembarrassment, fear, inconvenience, as the burden of proof is on the person opposing disclosure to establish some other overridingprinciple that defines the field of exception. [12] The Ontario Court of Appeal recently considered access to court exhibits in R. v. Canadian Broadcasting Corporation, 2010ONCA 726.

As outlined at paragraph 9 of Mr. Koopmans’ written submissions, the CBC sought access to a series of jailhousevideotapes depicting events leading up to, and capturing the death of a 19 year old girl. Portions of the videotapes had been played at thepreliminary hearing of four officers charged in relation to her death. The charges were stayed during the hearing. Seven months later,the court granted CBC’s application for access, but limited the access to only the portions of the tapes played in open court. CBCappealed. The Ontario Court of Appeal set aside the restrictions and allowed access generally.

In doing so, the Court reviewed theauthorities, including Lac D’Amiante du Quebec Ltee v. 2858-0702 Quebec Inc., 2001 SCC 51 , [2001] 2 S.C.R. 743 where theSupreme Court of Canada defined the media’s right to access court records and exhibits very broadly at paragraph 72: [O]nce a trial begins, and except for the limited number of cases held in camera or subject to a publication ban, the media will have broadaccess to the court records, exhibits and documents filed by the parties, as well as to the court sittings.

They have a firm guarantee ofaccess, to protect the public’s right to information about the civil or criminal justice systems and freedom of the press and freedom ofexpression. [13] The Ontario Court in CBC went on to confirm the application of the Dagenais/Mentuck test and added some additionalconsiderations: [43] When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a partof the record in the case.

While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whetherjudge or jury, is not limited to considering only those portions when deciding the case.

A party who introduces an exhibit withoutrestriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses toread out or play in open court. [44] As the entire exhibit is evidence to be used in deciding the case, I can see no principled reason to restrict access to only thoseportions played or read out in open court…..Absent some countervailing consideration sufficient to satisfy the Dagenais/Mentuck test,the open court principle and the media’s right of access to judicial proceedings must extend to anything that has been made part of therecord, subject to any specific order to the contrary. [14] In Re Vickery and Prothonotary of Supreme Court of Nova Scotia (1991), (SCC), 64 C.C.C. (3d) 65, theSupreme Court of Canada held that the following matters are relevant on a media application to access and copy exhibits: 1.

The nature of exhibits as part of the court "record". 2. The right of the court to inquire into the use to be made of access, and to regulate it. 3. The fact that the exhibits were produced at trial and open to public scrutiny and discussion so that the open justice requirement hadbeen met. 4.

That those subjected to judicial proceedings must undergo public scrutiny of what is said at trial or on appeal and contemporaneousdiscussion is protected, but different considerations may govern when the process is at an end and the discussion removed from thehearing context. [15] The issue before the court in Vickery was whether the applicant could have access to certain tapes which had been relied on bythe jury in finding the accused guilty of murder, but which had been subsequently held to be inadmissible on appeal, generating anacquittal at the appellate level. [16] The applicant, a television producer, who was doing research on videotaped confessions, sought and was granted access to thetapes by the trial court, an order which was successfully appealed.

A subsequent appeal was taken to the Supreme Court of Canada. Theapplicant did not seek to rely on a Charter right until the Supreme Court of Canada level, and that court would not entertain the argumentat that last stage. The Supreme Court of Canada relied on Nova Scotia (Attorney General) v. MacIntyre, (SCC), [1982]1 S.C.R. 175, for the proposition that the fundamental principle that the innocent must be protected from unnecessary harm was held tooverride the public access interest. In Vickery, the accused had been acquitted on appeal so his interest needed to be protected fromunnecessary harm.

As well, the court noted that the journalist making the application was not purporting to do so in the interests ofensuring judicial accountability through public accessibility, but rather to further his own personal interests. [17] Madam Justice Humphries considered media access to a “Mr. Big” confession videotape in R. v. Black, 2006 BCSC 2040. Inallowing media access, subject to restrictions, she considered the apparent incompatibility between Toronto Star and Vickery. Atparagraph 19 she wrote:

[19] The Supreme Court of Canada could have expressly overruled Vickery in Toronto Star but did not do so. The two decisions are, in my view, not necessarily incompatible. The Toronto Star case is a case analyzed within a Charter context. Vickery is not.

Given the test set out in Toronto Star and the statement of the court that the Dagenais / Mentuck test must be applied flexibly and contextually, it should not be difficult to incorporate the considerations with respect to exhibits from Vickery into the exercise of discretion as to the release for reproduction of a particular exhibit. [ 18 ] Our Court of Appeal recently considered this issue in the context of a request for access to exhibits in a first degree murder trial. In a split decision, the media’s application was allowed. As set out at paragraph 15 of Mr.

Koopmans’ written submissions, Justice Chiasson summarized the general principles to consider at paragraph 26: [26] It is important to place the present case into legal context. I derive the following propositions from the jurisprudence: 1. There is a strong common law presumption in favour of access to information provided in the judicial process; 2. That presumption derives from Canada’s open court principle; 3. Real risk to the administration of justice must be shown, not speculation, if access is to be denied; 4. The determination whether to deny access is discretionary.

Global BC, A Division of Canwest Media Inc. v. British Columbia 2010 BCCA 169 [ 19 ] To put this in context, this appeal considered the relationship between freedom of expression, including freedom of the press as guaranteed by s. 2(

b) of the Charter in the context of judicial proceedings, and a court’s control of trial exhibits after a trial has concluded. Mr. Fry was convicted by a jury of first degree murder. He confessed to the murder to a “ crimeboss ” in a police undercover operation. The confession was recorded on videotape and an imperfect transcript of the recording was prepared. At trial, the videotape and the transcript were admitted and marked as Exhibits 39 and 40 respectively. As a result of an application at trial on behalf of undercover officers, the identity of the officers was ordered to be protected.

With this limitation, the videotape was played and the transcript was made available to the jury. Subject to the restriction on identifying the officers, there was full media coverage of the trial. Neither the transcript nor the videotape was released to the media. The day after Mr. Fry’s conviction, media outlets brought an application seeking an order that Exhibits 39 and 40 be made available for review and duplication. The trial judge dismissed the application, citing the need to protect the privacy and safety of the undercover officers and the integrity of future operations.

The Court of Appeal allowed the appeal and granted access, but with certain restrictions. [ 20 ] Mr. Justice Powers in R. v. Schoenborn , provided a thorough review of the law in this area. This was a triple first degree murder case in which Mr. Schoenborn killed his children. The children’s mother was a witness for the Crown. In the course of the police investigation, the mother agreed to meet Mr. Schoenborn in jail and have a recorded conversation with him. The recording and a transcript of the recording were played in court and entered as exhibits.

The transcript was released to the media, but some media outlets sought release of the recording itself. Justice Power’s review of the law was extensive. In balancing the different interests at play, the court ultimately concluded that “ the children’s mother’s concerns and privacy interests go much beyond mere embarrassment.

To allow her suffering, in her own voice to be available to the entire world indiscriminately would pose a serious risk to the proper administration of justice in the sense that it would impact negatively on the reputation of the administration of justice if the court simply allowed the re- victimization of the children’s mother in this case.” ( para 52). Mr.

Justice Powers continued: [53] I am also satisfied that the salutary effects of the publication restriction or the denial of the right to copy the exhibits outweighs any deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression. The media, including the applicants, already have access to the transcripts of these conversations. Accredited members of the media may listen to the audio without reproducing it or recording it themselves if they wish to make arrangements with the court registry to do so. C.

Media Access to Court Exhibits: Psychiatric Reports [ 21 ] In R. v. Arenburg , [1997] O.J. No. 2386 , the accused was charged with first degree murder. The issue was whether he was not criminally responsible by reason of mental disorder. [ 22 ] A psychiatric assessment was prepared with regard to this issue, which included a video taped interview at the hospital where the accused was held. The psychiatrist diagnosed Mr. Arenburg with paranoid schizophrenia. The Court ultimately found him to be not criminally responsible by reason of mental disorder, relying up the psychiatrist’s opinion.

The media sought release of the videotaped interview for a follow up story related to mental illness. The psychiatrist and the accused objected to its release on grounds of privacy. [ 23 ] Despite the objections, the court ordered the release of the videotape, pointing out how it demonstrated the accused’s fluctuations in demeanour and mental health. The Court stressed how the public had a right to know and understand how the disease affected Mr. Arenburg and why he was found not criminally responsible by reason of mental disorder. [ 24 ] R. v.

Quintal , 2003 ABPC 79 is an Alberta Provincial Court decision referred to at paragraph 12 of Mr. Koopmans’ written argument. As he points out, it is a decision not binding on this court, but it does provide an extensive overview of the law in this area. In this case, a forensic assessment was used by the sentencing judge to assist in crafting an appropriate sentence. Mr. Quintal sought to prevent access by the media to this report on the basis of privacy and the “chilling effect” release might have on future offenders’ cooperation with assessments and other grounds.

In allowing access to media outlets, the court noted that the assessment was central to the sentence imposed and essential to the public’s understanding of the reasons behind such a sentence. Position of the Parties: [ 25 ] The parties provided extensive submissions and case authorities. The Kamloops Daily News also filed a thorough written

argument. In summarizing the positions of the parties, I have condensed their positions to the essential points. I have considered fully all of the submissions, materials and cases provided. [ 26 ] The Applicant, Kamloops Daily News, seeks access to two forensic psychiatric reports tendered by the Crown in support of a finding of not criminally responsible by reason of mental disorder. It seeks these exhibits in order to provide full media coverage of Mr. Bandura’s hearing which, it argues, is in the public interest.

The exhibits will aid the media in its accurate reporting of the hearing and ultimately, the public’s understanding of what transpires in court. It argues that it is up to the parties opposed to access to demonstrate why access to the exhibits would create serious harm or risk that cannot be avoided or mitigated in any other way but denial of access.

The Kamloops Daily News argues that there is no serious harm or risk sufficient to satisfy the Dagenais / Mentuck test and restrict the open court principle and the media’s right of access to judicial proceedings. [ 27 ] The Crown opposes this application on two main grounds, the first of which – prematurity of this application - this Court acknowledged in deferring its decision until the conclusion of the evidence.

It’s second, and central, objection to access to the reports is based upon the negative affect it would have on the administration of justice in that it could put a “chill” on the willingness of accused persons to participate in the assessment process honestly and openly if they knew their personal information would be subject to broadcast. This would, the Crown argues, negatively impact the effectiveness and usefulness of assessments in the future and ultimately, the administration of justice. [ 28 ] The defence opposes the application on three essential grounds, somewhat related to the Crown’s grounds.

First, Ms. Stanford argues that the accused has a high expectation of privacy in those reports and the personal information contained within them. She submits that Mr. Bandura’s privacy interests are as high as in, for example, clinical records prepared under the Mental Health Act or records dealt with under s. 278 of the Criminal Code . In these two circumstances, procedural protections are in place to protect privacy interests and, she argues, similar protections should exist in this case.

The defence also supports the Crown position that access to these assessments would create a “chilling effect”, negatively impacting the administration of justice. Decision [ 29 ] This case has generated media attention and public interest in the Kamloops community and elsewhere. The circumstances are tragic and disturbing for not only the innocent victim of this attack, Bishop Munroe, and his family, but for Mr. Bandura , his family and the community at large. [ 30 ] I reserved my decision on this application until the evidence was heard. This court has been asked by both Crown and defence to find Mr.

Bandura not criminally responsible by reason of mental disorder. The two psychiatric assessments at issue were both ordered by the Court and have now both been filed and relied upon by both parties in support of their joint position. The court heard viva voce evidence from the author of both reports, Dr. Meldrum. No portions of the report were sought to be excluded from evidence by either party, nor were any publication bans sought. [ 31 ] Both of these exhibits were documents prepared for the court so that the court could properly discharge its duty.

The media seeks access to them to aid in accurate reporting and to assist the public understanding of the reasons behind the court’s determination. There is no evidence that supports the suggestion that access to these reports is sought for any other or improper purpose. [ 32 ] Applying the Dagenais / Mentuck test, this court may only make an order restricting access if it is necessary to prevent a serious risk to the proper administration of justice and the salutary effects of such an order outweigh the deleterious effects on the rights and interests of the parties and the public.

The onus is upon the Crown and the defence, the parties opposing access to these exhibits, to show that access would create serious harm or risk that cannot be avoided or mitigated in any other way but denial of access. It is abundantly clear from the case law that there is a strong presumption in favour of public access to court records, including exhibits. This public access should be curtailed only with the greatest of reluctance. [ 33 ] Turning first to the defence submission that Mr. Bandura’s expectation of privacy in the contents of these reports is high and requires access to be limited.

In my view, the opposite is true at this stage of the proceedings. An accused’s expectation of privacy within the criminal justice system is low. The accused’s privacy is largely surrendered to the judicial process. As the Supreme Court wrote in Vickery : “Public access to and reporting of these proceedings is a price that he and any other accused must pay in the interests of assuring the accountability of those engaged in the administration of justice.” [ 34 ] The case at bar is distinguishable from a case provided by the Crown, R. v. Ottawa Citizen 2010 Carswell 9545 ( Ont.S.C.J .).

In that case, the press sought access to an assessment regarding the issue of criminal responsibility in a first degree murder case. The application was brought at a very early stage of the proceedings, prior to a bail hearing and prior to the preliminary inquiry where counsel advised the assessment would likely be tendered in evidence and subject to the standard publication ban at a preliminary inquiry. The Court denied access to the report largely on the basis that it might taint a potential jury pool and seriously undermine the accused’s right to a fair trial.

The Court concluded that if the media had access to the report at this early stage of the proceedings, prior to evidence being subjected to examination in-chief and cross-examination, impressions could be created in the minds of the potential jury member that could not be dispelled. The Court allowed for the application to be brought at a later time, in front of the trial judge, who “would be in a much better position to determine the effect of permitting access to this report on the fairness of the trial.” [ 35 ] Of course, the distinct and material difference here is that Mr.

Bandura’s case is before the trial judge. I have heard all of the evidence. The contents of the reports were largely repeated in open court with no publication bans sought. Dr. Meldrum was examined thoroughly in chief and in cross examination. The very real risk to trial fairness that existed in Ottawa Citizen does not exist here. Mr. Bandura and the Crown both sought these reports and both rely upon them heavily in support of their joint position. Mr. Bandura knew the assessments were not private and were to be prepared for court purposes. Dr. Meldrum wrote at page 1 of Exhibit 8 that “Mr.

Bandura was aware of the nature of the assessment and the limits of confidentiality”. I find Mr. Bandura’s privacy interests to be low in the judicial process to which he is now subject. As such, an order restricting access is not necessary to prevent a serious risk to such an interest. [ 36 ] This leads me to consider the somewhat related defence submission that these two reports are akin to clinical records in either the

mental health context or the context of records defined in s. 278 of the Criminal Code . The defence points to the high privacy interests in those types of records and the procedural safeguards regarding access to them present in both the Mental Health Act and Criminal Code (regarding complainant’s records) and seeks to draw a parallel to this case. [ 37 ] In my view, those types of clinical records are much different that the reports in consideration in this case and no parallel can be drawn.

Those records are prepared outside of the court process and are sought by participants within the court process for a different purpose from which they were originally prepared. They are records prepared in circumstances of confidentiality and engage very different considerations with respect to privacy interests. Exhibits 7 and 8 were generated to assist the court with a specific function and are being relied upon by Mr. Bandura , without editing, in support of a particular verdict.

No parallels can be drawn. [ 38 ] Finally, both the Crown and defence point to a general harm or risk that access to psychiatric reports in this context would create a “chilling effect” on future offenders. In other words, the fear that disclosure of personal details might be revealed in the newspaper could potentially prevent future offenders from providing full disclosure to assessors. No evidence was introduced in support of this argument. The Alberta provincial court judge was faced with this same submission in Quintal and found it to be based only upon speculation of harm.

At paragraph 191, the court wrote that the forensic assessment: ... is an expert report from a qualified medical practitioner with a specialty in psychiatry, whose report is provided to assist the court. As was noted by Woods in his evidence, he does not independently seek to verify the truth or accuracy of the statements given to him by the accused... If he felt that the accused was not telling him the truth, he would note it within the body of the report.

In other cases, I have received assessments which recorded that the accused had not cooperated in the assessment, fell asleep during some of the routine testing which is done as part of the FACS assessment and where the author of the FACS assessment was not certain that the accused had been telling the truth to the author. In these other instances, the FACS assessment was not terribly helpful in determining a fit and just sentence. However, it illustrates that a FACS assessment is not writ in stone, nor does it become the Rosetta stone for what is a fit and just sentence.

It is simply another tool which may help the sentencing court in discharging its duties. I am not prepared to conclude that if all accused were told that the FACS assessment that they were participating in would be read in its entirety in open court, that this information would by and of itself cause the FACS assessment process to terminate, or that assessments which were inherently unreliable would result.

One would hope that the psychiatrist conducting the assessment would be alive to such acts, statements or nonverbal communication during the assessment to enable that psychiatrist to include some reference within the assessment about such things as were noted in order to assist the sentencing court in reviewing the assessment. In my opinion, the argument that FACS assessments would either “dry up” or will be subject to a “chilling” affect if FACS assessments became public is based upon a perception of speculative harm. I am not prepared to conclude that this harm is real.

If in future an accused wished to impart highly confidential information to a psychiatrist as part of an FACS assessment, the accused is entitled to legal advice about publicity, and about the possibility of prophylactic publication ban order of appropriate period. In such a situation, the application could be made before the information considered confidential was disclosed as part of the assessment. That approach commends rather than an ex post facto application. [ 39 ] I too find that the “chilling effect” argument is speculative and not supported by any evidence.

I am not prepared to conclude that this harm is real. [ 40 ] Having heard all of the evidence in this case, I find there has been no serious risk of harm to the administration of justice established in order to deny access to Exhibits 7 and 8, subject to restrictions, which will be outlined below. The exhibits were prepared for the court so it could discharge its duties. To withhold the exhibits from scrutiny at the conclusion of the evidence would, in my view, only cause uncertainty with regard to the court process and prohibit the public’s full ability to engage in a discussion of the court’s decision.

To deny access could lead to less respect for the rule of law and the proper working of the courts in the circumstances of this case. [ 41 ] I do find, however, that reference to Mr. Bandura’s family members and reporting of their names and perhaps personal information would be detrimental to them and would not assist the public in understanding the court’s decision in any great regard. Limiting access to that information is required when it is established that their privacy interests go much beyond mere embarrassment. The defence filed an affidavit by one such family member, which outlines this concern. Mr.

Koopmans, on behalf of the Kamloops Daily News, agrees that a limited restriction involving their names and personal information may be appropriate. I am satisfied that to allow their names and personal information to be available to the public would pose a serious risk to the proper administration of justice in the sense that it might cause harm to Mr. Bandura’s family members, who can be considered secondary victims in this case. [ 42 ] I am not satisfied that any other restriction on access has been established by either the Crown or the defence.

This prosecution centres upon the court’s decision with respect to a finding of not criminally responsible by reason of mental disorder. It is not sufficient for the public to simply know the outcome, it is important for the public to know the reasons for the outcome. The disposition of this matter should be kept fully in the public view. This includes making available to the public these two critical exhibits, which are central to the court’s determination on this issue.

Save for the protection of the third parties which has been outlined above, it has not been established there is any reason to deny access to these reports. By allowing full access by the public to the assessments, with a limited restriction regarding third parties, the compelling societal values inherent in

Section 2(

b) of the Charter are protected. [ 43 ] In the result, I make the following orders: 1. The Applicant, Kamloops Daily News and other members of the media, be provided access to Exhibits 7 and 8 filed in this proceeding, the reports of Dr. Meldrum dated November 17, 2010 and December 22, 2010 for the purpose of having copies made. 2. Each person that receives a copy of these exhibits is under an obligation to keep such copies in his or her own custody and at the conclusion of these proceedings, to destroy those copies. 3.

There shall be no publication, broadcast or dissemination of any information contained within these two reports pertaining to the background, personal history or information of family members of John Bandura , including: SF, RB, DE, RL, SB, WE, SE.

4. No copy of these reports is to be reproduced in any publication. Access to these documents is for the purpose of facilitating accuracy in reporting. ________________________ S. A. Donegan Provincial Court Judge