ODELIA v. NERISSA QUEWEZANCE, 2022 SKKB 260

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 260 Date: 2022 11 29 Docket: CRM-YT-00011-2022 Judicial Centre : Yorkton BETWEEN: ODELIA AND NERISSA QUEWEZANCE ACCUSED - and - HIS MAJESTY THE KING IN RIGHT OF THE MINISTER OF JUSTICE FOR SASKATCHEWAN CROWN Counsel: Deanna Harris, James Lockyer, Jerome Kennedy, K.C. for the accused Katherine Roy Ministry of Justice & Attorney General Kelly Kaip for the Crown Robert Sokalski Aboriginal Peoples Television Network Sean Sinclair Canadian Broadcasting Corporation JUDGMENT LAYH J.

NOVEMBER 29, 2022 Introduction [ 1 ] The judicial proceedings concerning Odelia Quewezance and Nerissa Quewezance will surely be writ large in the annals of Saskatchewan’s prominent court cases. This decision concerns a small, but important, aspect of the Quewezance sisters’ involvement in the criminal justice system that began nearly 30 years ago.

That involvement, according to legal counsel for all parties, may continue for a considerable time into the future. [ 2 ] This decision answers the question of whether, at the request of the Crown, the court should order a publication ban on proceedings coming before the court on January 17 and 19, 2023.

On that date, the Quewezance sisters will seek interim release from custody pending the Minister of Justice’s [Minister] review of their application alleging they were wrongfully convicted for the second degree murder of Joseph Dolff on February 25, 1993. [ 3 ] The following is the sequence of inquiries I have addressed in the Crown’s application for a publication ban of the proceedings in the interim release application:

February 25, 1993 – The Murder of Joseph Dolff The Quewezance Sisters – What has Happened in the Last 30 Years? What is a Ministerial Review Under

Section 696.1 of the Criminal Code ? The Application for Release Pending Ministerial Review Should the Court Impose a Publication Ban? Participants in the Application Basic Principles A Preliminary Position: The Relevance of Section 517(1) of the Criminal Code Is an Order Necessary to Prevent a Serious Risk to the Proper Administration of Justice? The Salutary and Deleterious Effects of a Publication Ban R v Assoun – Is it Applicable? Has a Constitutional Question Been Raised?

Conclusion February 25, 1993 – The Murder of Joseph Dolff [ 4 ] Odelia, now 50 years old, was born on January 18, 1972 on the Keeseekoose First Nation near Kamsack, Saskatchewan. She was 21 years old on February 25, 1993 when 70-year old Joseph Dolff was murdered in his home. Odelia and her sister, Nerissa, now 48 years old, born September 14, 1974, were convicted of second degree murder on February 4, 1994 and sentenced to life in prison with a 10-year parole eligibility period.

The sisters’ cousin, Jason Keshane, then 15 years old, pleaded guilty to second degree murder and was sentenced to five years in prison. The Quewezance sisters’ appeal of their convictions to the Saskatchewan Court of Appeal was dismissed on October 4, 1995. The Supreme Court of Canada dismissed their application for leave to appeal on April 18, 1996. [ 5 ] Mr. Dolff met a violent death. The R.C.M.P. found his body the morning of February 25, 1993 in the bedroom of his home near the First Nation. He was stabbed 11 times in the chest with wounds to the heart, lungs, diaphragm and liver.

He was stabbed three times in the abdomen, with a knife still in one wound, twice in the back, and once in his left arm. Mr. Dolff also had head and facial blunt force injuries, including a fracture near his right eye. A phone cord was wrapped loosely around his neck. [ 6 ] The R.C.M.P. took the Quewezance sisters into custody that morning. After a police caution, both Odelia and Nerissa gave a number of statements to the police. No videos of the statements were taken.

Current legal counsel for the Quewezance sisters now challenges how those statements were taken from young Indigenous women held in Kamsack cells, particularly in light of intervening case law proscribing the limits of voluntariness of an accused’s statement (as for example stated in R v Oickle , 2000 SCC 38 , [2000] 2 SCR 3). [ 7 ] Odelia and Nerissa testified at their trial before a jury. Their statements were ruled to be voluntary and were admitted into evidence.

The jury rejected their counsels’ position that a conviction of manslaughter was appropriate and, instead, entered a guilty verdict to second degree murder for each of them. The Quewezance Sisters – What Has Happened in the Last 30 Years? [ 8 ] With a parole eligibility of 10 years, one might have expected that the Quewezance sisters would have been released as early as 2004 to live under conditions specified by the Parole Board. That has not happened. Odelia [ 9 ] Odelia attended St.

Philips Indian Residential School on the First Nation before transferring to the Qu’Appelle Indian Residential School in Lebret, Saskatchewan. Her mother and stepmother both died from drug overdoses. She states that she has suffered an intergenerational loss of identity and culture. Family violence, alcohol abuse and suicide have deep roots in her family. [ 10 ] Odelia was granted day parole in 2001 and, in June 2004, was granted full parole. Over the next six years, her parole was suspended several times for drug violations and for failing to report to her parole officer.

In 2010, Odelia’s parole was revoked after she left her home, which she then apparently shared with her partner and three daughters.

She told the Parole Board she left because, “she had let family issues build up to the point where she felt she needed time off.” Odelia was denied day and full parole at her next hearing in May 2017, although the Parole Board was “impressed” with her “open and honest presentation.” In September 2018, she was authorized to go on Unescorted Temporary Absences (UTA) but these privileges were cancelled two months later after she tested positive for a drug used to treat opioid addiction. [ 11 ] Since September 2020, Odelia has lived at Eagle Women’s Lodge in Winnipeg, Manitoba, an Indigenous facility that, pursuant to an agreement with the Minister of Public Safety and Emergency Preparedness provides correctional services for Indigenous offenders.

In April 2022, the Parole Board granted Odelia day parole. Nerissa

[ 12 ] Nerissa also attended St. Philips Residential School on the First Nation and then Qu’Appelle Indian Residential School in Lebret. Prior to her conviction for second degree murder, Nerissa experienced considerable involvement in the criminal justice system. Nerissa was raised in physically and verbally abusive environments for much of her early life. [ 13 ] In 2003, Nerissa was granted day parole. While on parole, she was arrested in Saskatoon, Saskatchewan for being “under the influence of alcohol.” She gave her sister’s name and spat at one of the officers.

She received a 30-day sentence for assault and obstructing an officer. In 2011, Nerissa was granted a UTA from Edmonton Institution but failed to return. She was arrested the next day in Yorkton, Saskatchewan, pleaded guilty to resisting arrest and was sentenced to 60 days. [ 14 ] In 2013, Nerissa was granted day parole to live in a residential substance abuse treatment program. She left the program and was arrested in February 2014. Her day parole was revoked.

In June 2018, Nerissa was again given day parole and released to Anderson Lodge Community Residential Facility in Vancouver, British Columbia [Anderson Lodge]. On March 30, 2019, Nerissa signed out of the Anderson Lodge and did not return, remaining at large for more than two years. Nerissa was apprehended on July 10, 2021 and charged with being unlawfully at large. On December 23, 2021, her parole suspension was cancelled, and she was released on day parole for the holiday season. She was apprehended in Vancouver a week later for being at large and her parole was suspended. Her parole was revoked in May 2022.

She is currently in custody at the Fraser Valley Institution for Women in Abbotsford, British Columbia, with no reasonable prospect of parole. [ 15 ] Both Odelia and Nerissa attended the instant hearing in Yorkton on November 24, 2022, the first time they had seen each other in 18 years. What is a Ministerial Review Under

Section 696.1 of the Criminal Code ? [ 16 ] Counsel for the Quewezance sisters, James Lockyer, senior counsel for Innocence Canada with the law firm Lockyer Zaduk Zeeh (Toronto, Ontario), having reviewed the pre-trial and trial circumstances of their conviction, turned to s. 696.1 of the Criminal Code , RSC 1985, c C-46 . This unique provision reads as follows: 696.1

(1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under

an Act of Parliament… and whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted. [ 17 ]

Section 696.1(1) gives the federal Minister of Justice power to review a conviction, like the Quewezances’ conviction, to determine whether there may have been a miscarriage of justice, often called a “wrongful conviction.” With the assistance of Mr. Lockyer, Odelia and Nerissa followed Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice, SOR/2002-416 [ Regulations ] and applied on December 21, 2021 for a ministerial review of their conviction.

Section 2 of the Regulations details the voluminous materials that must accompany such an application. [ 18 ] Once the Minister receives an application, lawyers with the Criminal Conviction Review Group [CCRG] assess the application and provide advice to the Minister whether a remedy is warranted. In what Mr.

Lockyer describes as “lightning speed” (given his previous experience with such applications) in five months, in correspondence dated June 2, 2022, external counsel for the Minister provided Justice Minister David Lametti’s response to the Quewezances’ application, writing: On behalf of the Minister of Justice, I am writing to advise you that it has been determined there may be a reasonable basis to conclude that a miscarriage of justice likely occurred in this matter. In accordance with sections 4(1) (

a) and (2) of the Regulations Respecting Applications for Ministerial Review – Miscarriages of Justice , this matter will not proceed to the investigation stage of the conviction review process. [ 19 ] The Minister is currently completing the investigation. Under the Regulations he may request further information from Odelia and Nerissa. The Minister has several investigative powers. He may exercise the powers of a commissioner under

Part I of the Inquiries Act , RSC 1985, c I-11 . He may delegate to a member in good standing of the bar, retired judge or any other individual who, in his opinion, has similar background or experience, the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses and compel them to give evidence.

How long this investigation may take is uncertain, but realistically it could be several months (as has already transpired since June 2, 2022) or considerably longer. [ 20 ] At the end of his investigation, the Minister will provide a report of his decision under s. 696.3(3) of the Criminal Code . If the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, he can either direct a new trial or refer the matter to the Saskatchewan Court of Appeal as though the Quewezance sisters were appealing the conviction.

Alternatively, if the Minister does not conclude that a miscarriage of justice likely occurred, he can dismiss the Quewezance sisters’ application. [ 21 ]

Section 696.2(3) states: 696.2(3) On an application under this Part, the Minister of Justice may (

a) if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred, (

i) direct, by order in writing, a new trial before any court that the Minister thinks proper…, or (ii) refer the matter at any time to the court of appeal for a hearing and determination by that court as if it were an appeal by the convicted person…; or (

b) dismiss the application.

[22] So, at this point, while the Quewezance sisters await the completion of the Minister’s investigation and report,they remain subject to the decisions of the Parole Board.

The Application for Release Pending Ministerial Review [23] Shortly after the Minister’s correspondence of June 2, 2022, on June 27, 2022, the Quewezance sisters filed anotice of application for release pending the Minister’s ultimate determination of their application under s. 696.1 of the Criminal Code. [24] The Criminal Code has detailed bail provisions respecting the release of persons charged with a crime to seekrelease from incarceration pending their trial. Furthermore, after conviction, if they choose to appeal their conviction, they can seekrelease from a court of appeal pending their appeal hearing.

Both instances are covered by provisions of the Criminal Code, the firstunder s. 517 and the second under s. 679(1). [25] However, nothing in the Criminal Code specifies how a person awaiting a Minister’s report under s. 696.1might seek release.

In this statutory lacuna, both the Crown and the Quewezance sisters look to R v Phillion, [2003] OJ No 3422 (QL)(Ont Sup Ct) and accept that Odelia and Nerissa have a Charter right [Canadian Charter of Rights and Freedoms] to apply for releasewhere a s. 696.1 application to the Minister is pending and an evidentiary threshold has been met. [26] As the date of the Quewezances’ application for release neared – originally scheduled for November 24 and 25,2022 – and as the parties were filing their supporting material, the Local Registrar of the Court of King’s Bench received a request fromAboriginal Peoples Television Network [APTN] to obtain copies of the materials filed on the court file respecting the Quewezances’application for release. [27] Upon receiving notice of APTN’s request, the Crown, by notice of motion dated November 9, 2022, sought apublication ban and sealing order respecting the proceedings for interim release.

That motion resulted in further filings at the court and ahearing on November 24, 2022. At the end of the hearing, I placed a temporary publication ban respecting all written materials filed onthe court file respecting both the interim release application and the publication ban application until I provided my decision. However, Idid not ban the reporting of the oral arguments presented in court on November 24, 2022. [28] Because the application for a publication ban was heard on November 24, 2022, the interim release hearing waspostponed to January 17 and 18, 2023. Should the Court Impose a Publication Ban?

Participants in the Application [29] Notice of the publication ban hearing was provided to news outlets. APTN, through its legal counsel, RobertSokalski of Hill Sokalski Walsh LLP (Winnipeg, Manitoba), filed a brief of law and made oral argument as has the CanadianBroadcasting Corporation [CBC], though its legal counsel, Sean Sinclair of Robertson Stromberg LLP (Saskatoon, Saskatchewan).Crown counsel, Kelly Kaip, also filed a brief of law and made oral argument at the hearing, as did Mr.

Lockyer, legal counsel for Odeliaand Nerissa. [30] At a case management meeting between the court and legal counsel on November 10, 2022, Crown counselraised the issue of whether APTN’s position involved a Charter issue and would therefore require notice to the Attorney General underThe Constitutional Questions Act, 2012, SS 2012, c C-29.01. Mr. Sokalski, counsel for APTN, stated his view that such notice wasunnecessary, but that he would, nonetheless, provide such notice to avoid any later objection.

Having provided such notice, KatherineRoy of the Constitutional Law Branch of the Saskatchewan Ministry of Justice and Attorney General filed a brief of law and made brieforal argument, although her standing was challenged by counsel for APTN and the CBC. [31] The Quewezance sisters, APTN and CBC object to any publication ban. The Crown, both the prosecution andthe constitutional law branch, support a publication ban. Basic Principles [32] All parties essentially agree on the correct statement of the legal principles, but they disagree on the applicationof those principles.

My review of the cases cited by counsel has led to one preliminary conclusion: the court must sensitively read eachcase and determine, among several matters, who seeks the publication ban, who opposes the publication ban (the media invariablyopposes a ban), the stage of proceedings when the ban is sought, what is the subject matter of the ban (trial evidence, third partypublications, investigative techniques), the rights and privacy of third parties and the length, the scope of the ban sought and the lengthof time of the ban. [33] The parties begin with Dagenais v Canadian Broadcasting Corp., (SCC), [1994] 3 SCR 835[Dagenais].

In Dagenais, members of a Catholic religious order were charged with physical and sexual abuse of young boys in their carein Ontario schools. They applied for an injunction restraining the CBC from broadcasting the mini-series “The Boys of St-Vincent”, afictional account of child abuse in a Catholic institution in Newfoundland. At the time of the hearing, the accuseds’ trials were beingheard or were scheduled to be heard. The Supreme Court reversed the publication ban imposed by lower courts. Chief Justice Lamerprovided general guidelines that courts should follow in an application for publication bans.

In summarized form, he said that the mediashould have standing at such applications, the party seeking the ban bears the burden of justifying any limitation and that no reasonablealternative measure is available, there must be proportionality between the salutary and deleterious effects of the ban, and the judge mustconsider all possible ways to limit the ban as much as possible.

[34] Seven years later, the Supreme Court revisited Dagenais in R v Mentuck, 2001 SCC 76, [2001] 3 SCR 442[Mentuck]. Mentuck illustrates how contextual the court’s analysis must be. For example, unlike Dagenais, the Crown, not the accused,sought the ban. Indeed, as in this application, the accused opposed the ban. Notably, too, the proposed ban was intended to protect notthe rights of the accused to a fair trial, but the interests of police officers who conducted the investigation. The police had gatheredevidence by way of a “Mr.

Big” operation (a covert investigation procedure using undercover officers to elicit confessions fromsuspects). The Crown sought a publication ban respecting evidence that would identify the names and identities of the undercover policeofficers and the operational methods they used.

The Supreme Court affirmed the trial judge’s decision to grant a one-year ban respectingthe identity of the undercover officers but refused a ban respecting the operational methods used in the investigation. [35] In reaching its decision, the court recognized that Chief Justice Lamer’s instruction in Dagenais needed a“reformulation” to recognize that publication bans may invoke more interests and rights than an accused’s rights to trial fairness andfreedom of expression.” (para. 33).

Justice Iacobucci thought this reformulation was necessary to accommodate a broadened analysis tofit differing circumstances when necessary to protect different private and public interests of those seeking and those opposing apublication ban.

He then provided three specific elaborations on the components of the Dagenais test. [36] First, the risk in question must “be a serious one,” a “real and substantial risk.” It must “be a risk the reality ofwhich is well-grounded in the evidence,” “a risk that poses a serious threat to the proper administration of justice” and “a serious dangersought to be avoided.” (para. 34). [37] Second, respecting “the proper administration of justice,” Justice Iacobucci stated that “judges should becautious in deciding what can be regarded as part of the administration of justice.” His concern was that judges might interpret the phrase“so widely as to keep secret a vast amount of enforcement information the disclosure of which would be compatible with the publicinterest.” (para. 35). [38] Third, respecting the weighing of the salutary and deleterious effects of a publication ban, Justice Iacobuccistated that this task reflected the minimal impairment branch of the Oakes test [R v Oakes, (SCC), [1986] 1 SCR 103]:“the test for common law publication bans requires the judge not only to consider whether reasonable alternative are available, but alsoto restrict the order as far as possible without sacrificing the prevention of the risk.” (para. 36). [39] Justice Iacobucci provided his reformulation of the appropriate test at para. 32 as follows: [32] … In assessing whether to issue common law publication bans, therefore, in my opinion, a better way of stating the properanalytical approach for cases of the kind involved herein would be: A publication ban should only be ordered when: (

a) Such on order necessary in order to prevent a serious risk to the proper administration of justice because reasonably 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 thepublic, 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. [40] Three years after Mentuck, the Supreme Court returned to the Dagenais/Mentuck test, this time not respecting apublication ban, but the degree of secrecy to attach to a highly unique, in camera, judicial investigative hearing under s. 83.28 of the Criminal Code respecting a terrorism charge.

In Vancouver Sun (Re), 2004 SCC 43, [2004] 2 SCR 332, (arising in thecontext of the Air India bombing) the court, relying upon the Dagenais/Mentuck test, found the existing order was too restrictive. Thecourt emphasized the importance of the open court principle, stating, at paras. 26 and 27: 26 The open court principle is inextricably linked to the freedom of expression protected by s. 2(

b) of the Charter and advances thecore values therein: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra [ (SCC), [1996] 3S.C.R. 480], at para. 17. The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public toreceive information is also protected by the constitutional guarantee of freedom of expression: Ford v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712; Edmonton Journal, supra, [ (SCC), [1989] 2 SCR 1326] at pp. 1339-40.

Thepress plays a vital role in being the conduit through which the public receives that information regarding the operation of publicinstitutions: Edmonton Journal, at pp. 1339-40. Consequently, the open court principle, to put it mildly, is not to be lightly interferedwith. 27 Furthermore, the principle of openness of judicial proceedings extends to the pretrial stage of judicial proceedings because the policy considerations upon which openness is predicated are the same as in the trial stage: MacIntyre, supra, [ (SCC),[1982] 1 S.C.R. 175] at p. 183.

Dickson J. found “it difficult to accept the view that a judicial act performed during a trial is open topublic scrutiny but a judicial act performed at the pretrial stage remains shrouded in secrecy”: MacIntyre, at p. 186. [41] Recently, the Supreme Court retuned to the Dagenais/Mentuck test in Sherman Estate v Donovan, 2021 SCC 25, 458 DLR (4th) 361, a decision concerning the estate of Barry and Honey Sherman, a prominent couple found dead in their home inToronto. The estate trustees wished to stem intense press scrutiny by seeking a sealing order of the probate files.

The application judgesealed the probate files, concluding that the harmful effects of the order were substantially outweighed by the salutary effects on privacyand physical safety interests. The Court of Appeal allowed the appeal, which was upheld by the Supreme Court. At competing interestswere the privacy interests of individuals and the public interest in open courts. The Supreme Court began with the premise that courtproceedings are presumptively open to the public, a premise protected by the constitutional guarantee of freedom of expression, essentialto the proper functioning of Canadian democracy.

Open courts can be a source of inconvenience and embarrassment, but this discomfortis not, as a general matter, enough to overturn the strong presumption of openness. [42] What is the summarized result of these Supreme Court decisions? The Dagenais test continues, sensitized by

Mentuck and the need to contextualize the competing interests at stake. Overarching each of these decisions, is the importance of the open court principle, the right of the public to see the workings of the judicial system. A Preliminary Position: The Relevance of Section 517(1) of the Criminal Code [ 43 ] Before proceeding to the Dagenais/ Mentuck test, the Crown makes an introductory observation by looking to s. 517(1) of the Criminal Code and stating that publication bans are not extraordinary orders; they are quite commonplace.

Because the Minister may order a new trial, the Quewezances’ interim release application might be seen in a light similar to a preliminary hearing or bail hearing that proceed criminal trials. In those instances, publication bans are commonly granted pending a trial determination. In the case of a bail hearing, s. 517(1) states: 517(1) If the prosecutor or the accused intends to show cause under

section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings, under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such as (

a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged or (

b) if the accused in respect of whom the proceedings ar held is tried or ordered to stand trial, the trial is ended. [ 44 ]

Section 517 illustrates that publication bans can be automatic, mandatory or discretionary.

Section 517 makes a publication ban mandatory, if requested by the accused; discretionary, if requested by the Crown. [ 45 ] The constitutionality of a mandatory publication ban under s. 517 (when requested by the accused) was challenged by several media organizations in Toronto Star Newspapers Ltd. v Canada, 2010 SCC 21 , [2010] 1 SCR 721 [ Toronto Star ]. They urged the court to find that s. 517 unjustifiably violated freedom of expression because of the mandatory nature of a publication ban when requested by the accused. The Supreme Court upheld the constitutionality of such bans at bail hearings.

Again, the court looked to the Dagenais/ Mentuck test and found that requiring an accused to seek a discretionary publication ban would place additional burdens on accuseds when they are vulnerable and overwhelmed by the criminal process. Evidence and submissions at bail hearings are often wide- ranging, and include matters inadmissible at trial, such as criminal records, speculations about the strength of the Crown’s case, personal information and character assessments.

The court explained reasons why the right to a mandatory publication ban lies with an accused, reasons that do not apply if the Crown were to seek a publication ban: [51] …A day in the life of an accused person may have a lifelong impact. In addition to protecting this very important liberty interest, the ban means that accused persons can focus their energy and resources on their liberty interests rather than on their privacy interests. It ensures that they will not renounce their right to liberty in order to protect their reputations.

It also ensures that the public will not be influenced by untested, one-sided and stigmatizing information bearing on issues that are often irrelevant to guilt.

It ensures consistency with the objectives of other publication bans provided for in the Criminal Code , such as the one under s. 539 concerning evidence produced at a preliminary inquiry. [52] Another relevant aspect of the bail hearing which is of particular importance in the assessment of the effect of the ban is the fact that the information relevant to interim release often relates to the character of the individual accused and not to the crime… Evidence will bear not on whether the accused committed the crime, but on the accused as an individual: what kind of person he or she is, and whether he or she is likely to be a danger for society or to appear at trial. … [ 46 ] Relying on the commonplace publication bans invariably and mandatorily given at a bail hearing under s. 517 does not advance the Crown’s position in this application.

The purpose of s. 517, as described in Toronto Star , bears no similarity to the circumstances now facing the Quewezance sisters. What is a commonplace publication ban when requested by the accused at a bail hearing is unrelated to the Crown’s request in this application. Furthermore, as counsel for CBC points out, requests from the Crown for a publication ban at a bail hearing, unsupported by the accused, are “few.” The Crown has not cited any.

Is an Order Necessary to Prevent a Serious Risk to the Proper Administration of Justice? [ 47 ] I will now consider the Dagenais/ Mentuck test in light of the various points of argument that counsel for the Crown, counsel for APTN and CBC and counsel for the Quewezance sisters have raised. For ease of reference the initial inquiry is whether “an order is necessary in order to prevent a serious risk to the proper administration of justice…” [ 48 ] Several concepts are entangled is this statement. What is a “serious risk”? What is the “proper administration of justice”? And, what is “necessary”?

As a preliminary observation, if there is no risk to the proper administration of justice, then, axiomatically, a publication ban order is unnecessary. I will begin by addressing whether a “serious risk” exists. [ 49 ] The onus lies with the Crown to establish that a serious risk attends the publication of the proceedings at the Quewezances’ interim release application. In the Crown’s brief I have found the following identification of the risk it seeks to avert with a publication ban: 20.

In the case at bar, a substantial amount of information has been filed in support of, and in opposition to, the respondents’ application for judicial interim release. There are, as mentioned above, three potential outcomes to the respondents’ application to the Federal Minister under

section 696.1 . One of those outcomes may be that a new trial could be ordered. Not only does the material filed contain personal and private information from several sources , but the material filed also makes mention of the confessions of the respondents to the police and to various third parties at the time of the offence. overall, in the interest of trial fairness , the materials and

information relating to the judicial interim release hearing should be sealed and a publication ban ordered. [Emphasis added] [50] Essentially, the Crown is concerned that trial fairness (if a new trial were ordered) may be compromised withouta publication ban. Opposing counsel suggests that the concern of trial fairness lies principally with the Quewezances and should be theirrisk to raise, not the Crown’s.

However, the court accepts that the Crown, in its role as prosecutor, is a public authority who, in thepublic interest, applies the criminal law, but is always sensitive to both the rights of the accused and the overall effectiveness and fairnessof the criminal justice system. Trial fairness is not the exclusive domain of the accused. [51] However, other than this common-sense truism, the Crown offers little evidence that publication of the interimrelease proceedings will raise a serious risk to the administration of justice.

Repeatedly, the courts have stated that the party seeking apublication ban must present an evidentiary basis. This requirement was aptly stated by the Manitoba Court of Appeal in CTV TelevisionInc. v R, 2006 MBCA 132, 208 Man R (2d) 244 [CTV Television]. In that case, after the trial and conviction of an accused for aggravatedassault, CTV wanted access to the accused’s videoed statement to the police tendered as an exhibit at the preliminary hearing. (Atranscript of the statement was available to CTV.) The Crown supported its release.

The Court of Appeal reversed the lower court’sdecision to deny release of the video tape because the lower court reached its decision without an evidentiary basis.

Justice Monninwrote that a court cannot rely “on common sense and logic or judicial experience…without the benefit of real and substantial evidence.”(paras. 32 and 33). [52] CTV Television is a restatement of Justice Iacobucci’s earlier direction in Mentuck that an alleged risk must be“well-grounded in the evidence” or, as stated in Canadian Broadcasting Corp. v New Brunswick (Attorney General), (SCC), [1996] 3 SCR 480 at para 72: “There must be a sufficient evidentiary basis from which the trial judge may assess the applicationand upon which he or she may exercise his or her discretion judicially.” The Crown, in this instance, has linked no evidence to a real riskthat would pose a threat to the proper administration of justice. [53] Although this heavy evidentiary burden is placed upon the person seeking a publication ban, in counterdistinction, in the absence of a party opposing a publication ban, the court must begin from a strong presumption that free expression andcourt openness are paramount.

At para. 38, Justice Iacobucci, in Mentuck, considered such a situation and wrote: 38 … In cases where the right of the public to free expression is at stake, however, and no party comes forward to press for thatright, the judge must consider not only the evidence before him, but also the demands of that fundamental right.

The absence ofevidence opposed to the granting of a ban, that is, should not be taken as mitigating the importance of the right to free expression inapplying the test. [Emphasis in original] [54] The onerous evidentiary burden placed on the party seeking a publication ban, contrasted against theunnecessity of evidence favouring the “fundamental right” to free expression, illustrates the premise that open courts are the rule,publication bans are the exception. [55] The Crown also asserts that the materials filed contain “personal and private information from several sources.”This assertion seemingly is not a concern of the 15 persons who have submitted affidavits in support of the Quewezance sisters’ interimrelease.

One can observe from the nature of the affidavits that several affiants have already spoken publicly and might well take offenceat being muzzled by the court’s publication ban given their vocal support of Odelia and Nerissa. None of the affiants, including Odeliaand Nerissa, mention facts related to the murder of Mr. Dolff. They singularly focus on post-conviction facts. [56] The Crown also points out that the materials filed may make mention of the Quewezances’ confessions to thepolice.

Although the affidavits filed in support of their release are silent respecting trial matters, their counsel has prepared writtenargument in which he liberally cited the trial transcript. However, the entirety of the trial proceedings has been available to the public fornearly 29 years. As Crown counsel has advised the court, testimony of confessions made by Odelia and Nerissa to (non officer) thirdparties was led through Crown witnesses at trial and will be obvious from the trial transcripts.

A publication ban respecting the interimrelease proceedings will not prevent the public from assessing and reading the entire trial transcript and the evidence of the Crownwitnesses at the trial. Legal counsel for Odelia and Nerissa states at para. 11 of his brief of law, “The evidence regarding the murder ofMr. Dolff has not changed from the evidence set out in the trial transcripts.

Rather, it is a new and informed understanding of how toassess the evidence that is before the Minister.” [57] Trial fairness – the risk that an untainted jury will not be available without a publication ban (if the Ministerorders a new trial) – does not pose a serious or substantial risk for several reasons. There is no certainty that the Minister will order a newtrial.

Even if a new trial is ordered, all parties spoke about the unlikelihood of a trial before three or four years, a considerable temporaldistance from any publication of the proceedings arising during the interim release, a distance that will dim most people’s memory. [58] Furthermore, there exists no pre-condition that a juror must be completely ignorant of all the facts of the case tobe heard.

The caution invariably given to all jurors is to render a decision solely on the evidence led at trial, and to disregard any priorknowledge of facts, whether heard through the media or otherwise. [59] Although not mentioned by counsel (and not pivotal in my decision), s. 473(1) of the Criminal Code allows that (in the event that the Minister ordered a new murder trial) an accused and the AttorneyGeneral can agree to a trial without a jury and by a judge of a superior court.

If a new trial is ordered the Quewezances and the Crown, ifthey agree, need not proceed by a jury trial. [60] In conclusion, I find that any risk to justify a publication ban is scant and speculative. As previously stated, if Ifind little or no risk to the proper administration of justice, the necessity component of the Dagenais/Mentuck test becomes irrelevant:without risk there is no necessity of a publication ban. However, if one were to parse “risk” from “necessity”, the obvious reality is that

much of the Quewezance case has long been accessible to the public, making a publication ban largely superfluous. [ 61 ] The entirety of the Quewezance sisters’ criminal proceedings, both in this Court and the Saskatchewan Court of Appeal, has lain open for public inspection and reporting for nearly three decades. Furthermore, their quest for ministerial review alleging their wrongful conviction has been a matter of significant media coverage. Kathleen Martens, a reporter with APTN, and Mark Blackburn, Social Media Producer with APTN, have each provided affidavits in this application.

APTN began covering the Quewezance sisters’ case in 2020. It produced a two-part documentary entitled “A Life Sentence”, which is still available on the APTN News’ YouTube channel. The documentary was followed with an online report outlining the case on November 20, 2020, with the caption “Salteau woman says she was wrongfully convicted, trying to clear her name after 25 years in prison.” On November 27, 2020, APTN reported on Mr. Lockyer’s interest in the Quewezance sisters’ case as part of his work for Innocence Canada. Ms.

Martens then describes more than a dozen further reports she has authored during 2021 and 2022 respecting the Quewezance sisters’ case. [ 62 ] Given this wide reporting and the long-existing availability of the trial and appeal proceedings, I intimated to counsel at the case management meeting on November 10, 2022 that seeking a publication ban might be akin to closing the barn door after the horse escaped.

Diligent research by counsel located the case of R v R.D.F ., 2016 SKPC 89 , 362 CRR (2d) 316 where members of the media sought release of the names of adult victims of the mass shooting in LaLoche, Saskatchewan. There, after an extensive review of the law, Judge Martinez referred to a Facebook notice for a fundraising event where the names of the victims appeared. He was also aware of an

article in the Cumberland News Now, a Nova Scotia newspaper which identified one of the adult victims. Another Facebook post by two of the underage victims and one by an adult victim revealed their identity. Acknowledging that “much of the information about the victims is widely known in their community,” (para. 68), he concluded that “the prosecutor’s application seeks to close the stable door after the horse has bolted.” (para. 67). Such is the situation in this application. [ 63 ] In

summary, even if the court found a risk to the proper administration of justice – which it does not – there would be little use or necessity to impose a publication ban in the face of the widely known circumstances of the Quewezance sisters’ trial and their recent efforts to have their case reviewed and, ultimately, to gain their release pending the Minister’s review.

The Salutary and Deleterious Effects of a Publication Ban [ 64 ] Having found no “serious risk” or “necessity” to impose a publication ban, little need be said about Justice Iacobucci’s instruction in Mentuck that a publication ban of court proceedings must be measured against the salutary and deleterious effects on the rights of the parties and the public. However, I will make a brief comment. What, then, is salutary and what is deleterious if a publication ban is or is not ordered in this instance? [ 65 ] First, what might be the effects of a publication ban upon Odelia and Nerissa? Mr.

Lockyer has had considerable experience working with Innocence Canada and bringing applications for wrongful convictions before the Minister for review. I accept his assertion that these cold conviction cases often rely upon media coverage to gain sufficient public prominence to drive them forward. Mr. Lockyer candidly states at para. 15 of his brief of law, “The Respondents have benefited from media coverage and community concern over their convictions.

Without it, it is doubtful that their cases would already be as far advanced as they are.” [ 66 ] This frank comment accords with the statement in R v Driskell , [2003] MJ No 484 (QL) (Man QB) where Associate Chief Justice Oliphant, in denying a sealing order on a report prepared by the Winnipeg Police Service, noted at paras. 4 and 5: 4 There was considerable amount of attention paid to this case by the media, even after Mr. Driskell’s conviction. The thrust of the media attention following the conviction of Mr.

Driskell was that he may have been wrongfully convicted. 5 In 1993, the Winnipeg Police Service conducted an internal review of Mr. Driskell’s case. There is little doubt in my mind that pressure from the media precipitated that review. [Emphasis added] [ 67 ] Second, having found only deleterious effects on a publication ban upon the Quewezance sisters, what might be the effects of a publication ban upon the public? One might have (unrealistically) expected Mr.

Lockyer to present evidence to the court to support his assertion that without media coverage and public interest, wrongful conviction cases such as David Milgaard, Donald Marshall Jr. and Steven Truscott would not have seen the light of justice. However, the public interest in these convictions, both before and after they were overturned, is both indisputable and important to the functioning of the criminal justice system. Indeed, few criminal proceedings will engage the public interest more than someone alleging they have been wrongfully convicted.

The public is entitled to know the workings of the criminal justice system, including allegations of its frailties and fallibilities. In this light, the comment by Justice Fish in Toronto Star Newspapers Ltd. v Ontario , 2005 SCC 41 , [2005] 2 SCR 188, is apt and eloquent: 1 In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy. [ 68 ] In

summary, I see mainly deleterious effects if a publication ban were ordered and salutary effects if not ordered. R v Assoun – Is it Applicable? [ 69 ] The Crown’s brief of law cites R v Assoun, 2014 NSSC 381 , 351 NSR (2d) 300 [ Assoun ], a publication ban issued in the midst of a ministerial review for wrongful conviction when Mr. Assoun was about to seek interim judicial release. As previously stated, applying the Dagenais/ Mentuck test must be contextual, sensitive to who brings and who opposes the publication ban and the interests that are affected.

Assoun , in my view, is readily distinguishable from the instant application. [ 70 ] In 1999, Glen Eugene Assoun was convicted of second degree murder and given a life sentence with no parole eligibility for 18.5 years. Like the Quewezance sisters, his appeal was dismissed and leave to the Supreme Court of Canada was denied.

Fourteen years later, on April 18, 2013, he applied for ministerial review of his conviction. In August 2014, the CCRG released a Preliminary Assessment to Mr. Assoun and the Nova Scotia Public Prosecution Service, but on a strictly confidential basis, evidenced by a signed undertaking that neither would divulge its contents to third parties. The purpose of the initial report was to elicit further feedback from Mr. Assoun and Public Prosecutions. On September 12 ,2014, Mr. Assoun sought a judicial interim release pending the Minister’s final determination. [ 71 ] Notably, neither Mr.

Assoun nor Public Prosecutions filed the notice of application for a publication ban. The Attorney General for Canada, representing the CCRG, applied for an order sealing the Preliminary Assessment and banning the publication of any information emanating from the prospective judicial interim release proceedings that would reveal the content of the Preliminary Assessment. CBC opposed the application. Mr. Assoun and Public Prosecutions supported the application.

Justice Chipman received and read the Preliminary Assessment but refused CBC’s request for a redacted copy. [ 72 ] Justice Chipman granted a publication ban respecting the interim release proceedings. The main concern in Assoun was the contents of the Preliminary Assessment, a concern primarily raised, not by Mr. Assoun or Public Prosecution, but of the Attorney General for Canada. Its concern was the integrity of the ministerial review process. The Attorney General argued that the CCRG had no statutory obligation to provide a copy of the Preliminary Assessment to either Mr.

Assoun or Public Prosecution and would not have done so if it had thought the document would be available to the public. The Preliminary Assessment was the Minister’s initial step taken to review Mr. Assoun’s application. The CCRG did not oppose Mr. Assoun’s use of the Preliminary Assessment at his release application, so long as it was protected by a sealing order and publication ban. Justice Chipman enumerated the CCRG’s concerns, not only respecting Mr. Assoun’s application to the Minister, but of ministerial reviews in general.

The Preliminary Assessment contained a large amount of personal and sensitive information regarding witness and potential witnesses relevant to Mr. Assoun’s case. Justice Chipman identified the CCRG’s concern that if the report and its appendices became public, potential witnesses who may need to be interviewed or re-interviewed as part of the investigative phase of the Minister’s review might read them or hear broadcasts about their content, thereby jeopardizing the integrity of the entire ministerial review process.

Justice Chipman, having read the Preliminary Assessment, found it contained information: 56 … 1. from persons who are both vulnerable and marginalized in society; 2. from persons who would have had no expectation that their information would find its way into a public forum; 3. that may be characterized as opinions of an implicit and explicit nature which have not been verified; 4. which ultimately may be found to be inadmissible opinion and/or hearsay evidence; 5. which is privileged and protected by statute; 6. that if released may jeopardize an ongoing investigation; and 7. which is privileged and confidential (turned over to CCRG for a purpose other than being part of a public forum). [ 73 ] After granting the sealing order and publication ban on October 23, 3014, Mr.

Assoun was granted bail. After a long delay, on March 1, 2019, the federal Minister of Justice directed that Mr. Assoun should have a new trial and, on the same day, the Crown offered no evidence. The charge against him was dismissed for want of prosecution. On March 5, 2019, CBC brought an application to unseal the documents, principally the Preliminary Assessment. Justice Chipman noted that the ministerial review was complete and there would be no further criminal proceedings. He ordered the Preliminary Assessment and appendices to be unsealed stating, at para. 45, “Mr.

Assoun must be able to tell his story,” and the media “must be able to report why the Minister made his decision and why the Crown had no new evidence on the new trial.” [ 74 ] Assoun is markedly different than the case before the court. In Assoun the main concern was the contents of the initial Preliminary Assessment authored by the CCRG. The application was led by its counsel and supported by both the Crown and Mr. Assoun. The integrity of the ministerial review process was in jeopardy.

Justice Chipman found several reasons why the contents of the Preliminary Assessment would compromise the Minister’s further investigation of the wrongful conviction review. These facts are not present in the instant case. [ 75 ] Justice Chipman’s concluding comments in R v Assoun , 2019 NSSC 220 , echo my earlier conclusion that the interests of the proper administration of justice are best served in the Quewezance case without a publication ban. He wrote: [62] The investigation that had to be protected for a time is now complete.

Members of the general public must be able to appreciate why relevant and reliable information was not disclosed to Mr. Assoun when it should have been. The public should be able to appreciate why bail was granted. They must be able to see why the Minister made his decision. The public has the right to know why the Crown led no evidence at the new trial and why the second degree murder charge was dismissed. It is in the interest of Mr. Assoun and the general public that Mr. Assoun’s story be told. The open court principle compels me to lift the order and release the complete court file.

Has a Constitutional Question Been Raised? [ 76 ] As earlier stated, counsel for APTN served notice under The Constitutional Questions Act, 2012 largely because the issue was raised by Crown counsel during a case management telephone conversation on November 10, 2022. I accept that Mr. Sokolski agreed to serve the notice, not because he thought APTN was seeking a remedy that questioned Charter rights, but only to avoid an objection at the hearing. Mr. Sokolski pointed out that APTN was not challenging any statutory provision or the status of any law.

[ 77 ] I also accept the characterization of Charter issues engaged in this hearing are to provide a framework for the development of the common law, in this instance, the principles set out in the Dagenais / Mentuck test. [ 78 ] In any event, the brief of law and oral argument offered by the Attorney General of Saskatchewan mirror the position taken by the Crown. [ 79 ] I find that no party opposing the publication ban – the Quewezance sisters, CBC or APTN – has sought a Charter remedy or raised a constitutional question. Conclusion [ 80 ] The Crown’s application for a publication ban and sealing order is denied. J. D. H. LAYH