Court of Queen’s Bench of AlbertaCitation: R. v. Twitchell, 2010 ABQB 692

Date: 20101117Docket: 091027300Q1

Registry: EdmontonBetween:

Her Majesty the QueenRespondent

- and -

Mark Andrew Twitchell

Applicant/Accused

Restriction on Publication: These Reasons for Judgment are subject to acourt-ordered publication ban. The materials in relation to which publication has beenbanned may be accessed only by persons employed by a media organization and then only upon theaccessing person providing a written undertaking to abide by the publication ban and an undertakingfrom their employer to the same effect. The undertakings must be in a form suitable to the Trial Judge.Those undertakings shall expire once the jury is sequestered. There should be no access to the sealedmaterials by any persons until the jury is sequestered. For details see the “Summary” in judgment 2010ABQB 692.

Editorial Notice: This judgment has been released onthe Court’s direction. The trial ended on April 12, 2011.

_______________________________________________________

Reasons for Judgmentof the

Honourable Mr. Justice T.D. Clackson on the Application for a Ban on Publication and Sealing Order _______________________________________________________

Introduction

[1] Mark Andrew Twitchell was originally charged on a single indictment with the murder ofJohn Altinger and the attempted murder of Gilles Tetreault. I severed the indictment and the

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Crown has opted to proceed, first, with the murder indictment. This application is brought byCrown and defence to ban publication of any of the pre-trial applications heard by me and to sealthe evidence proffered in those applications.

I. Facts and Circumstances

[2] The Crown's case is that the Accused made a decision to become a serial killer,documented that decision, and embarked upon that role by luring and attempting to kill Mr.Tetreault. The Crown's theory is that the Accused learned from his failure with Mr. Tetreault andrefined his techniques, which he also documented. The Crown alleges that seven days afterfailing to kill Mr. Tetreault, the Accused lured and killed and disposed of Mr. Altinger. TheAccused also documented those actions.

[3] The theory of the Crown is supported by a number of features common to both theattempt on Mr. Tetreault's life and the killing of Mr. Altinger. The Crown's case is also supportedby forensic evidence and written material obtained from the deleted files on a laptop computerfound in Mr. Twitchell's vehicle.

[4] As the scheduled trial judge, I have heard three pre-trial applications (applications madebefore a jury has been selected). The applications are: to quash the indictment or sever theindictment; for a pervasive publication ban and sealing order in relation to all aspects of allapplications; and for an order excluding evidence at the trial. As well, I have been called upon todetermine whether a global challenge for cause of prospective jurors is appropriate and theprocess to be engaged for that purpose.

[5] At the outset, I imposed a temporary but full publication ban and sealing order on theentirety of the proceedings until I had heard full argument on the subject and rendered mydecisions.

[6] In the course of the applications I have heard evidence from the technician who extractedthe purported diary of the Accused from his laptop. I have been provided with a written copy ofthat diary, a series of electronic exchanges between the Accused and others, an AgreedStatement of Facts (agreed upon as admissible only for the purpose of the pre-trial applicationsheard by me), the warrants obtained and the sworn affidavits and attachments relied upon tosecure those warrants. As well I have heard argument and, on some of the applications, I havereceived written submissions.

II. Analysis

[7] The Applicants argue that s. 648 in conjunction with s. 645 of the Criminal Code imposesa statutory publication ban on these applications. If they are wrong in that, they argue that theprincipled application of the Dagenais (Dagenais v. Canadian Broadcasting Corp., [1994] 3

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S.C.R. 835) test must result in precisely the same result. As well, the Applicants argue thatJustice Germain’s previous publication ban and sealing orders continue to apply to any materialscovered by that Order introduced in the proceedings before me.

[8] Counsel on behalf of the CBC and the Edmonton Journal (hereinafter referred to as themedia) argue that s. 648 and s. 645 do not apply to the proceedings before me and therefore theApplicants must satisfy the Dagenais test. Additionally, the media argues that on the principlesof Dagenais, some portions of the proceedings and material should not be kept from the public.

A. What Is the Appropriate Process to Restrict Public Access?

[9] Section 648 provides:

648. (1) After permission to separate is given to members of a jury undersubsection 647(1), no information regarding any portion of the trial at which thejury is not present shall be published in any document or broadcast or transmittedin any way before the jury retires to consider its verdict.

(2) Every one who fails to comply with subsection (1) is guilty of an offencepunishable on summary conviction.

[10] Section 645(5) provides:

645(5) In any case to be tried with a jury, the judge before whom an accused is oris to be tried has jurisdiction, before any juror on a panel of jurors is calledpursuant to subsection 631(3) or (3.1) and in the absence of any such juror, todeal with any matter that would ordinarily or necessarily be dealt with in theabsence of the jury after it has been sworn.

[11] All agreed that s. 645(5) was designed to recognize the reality that in this day and age oflong complicated multi-issue trials, there is a need to be able to efficiently dispose of mattersbefore empanelling a jury and allocating trial time. The alternative of wasting days andsometimes weeks of court time and exhausting juror patience while they idle as disputes areresolved is simply intolerable.

[12] However, the Applicants also argue that to be effective, having regard to the potentialprejudice an accused might suffer if the making of such applications is not treated the same as ifmade after the jury is sworn, the ban imposed by s. 648 must also extend to such pre-trialapplications, even though the wording of the section does not seem apt for the suggestedinterpretation. The Applicants argue that otherwise there is no incentive to make anyapplications before trial and the objective of s. 645(5) would not be realized, because thepotential compromise of the Accused’s right to a fair trial would militate against any pre-trialmotions. Accordingly, the Applicants argue that parliament must have intended that pre-trialapplications such as those before me would be protected by s. 648.

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[13] There is some authority on this issue. Both Binder J. in R. v. Cheung (2000), 150 CCC(3d) 192 (QB) and Watson J., as he then was, in R. v. Trang (2001), 295 A.R. 250 (QB)concluded that pre-trial applications are not captured by s. 648 and therefore any restriction onpublic access to or publication of the proceedings is subject to the Dagenais principles.However, the rest of the country has adopted a different approach.

[14] In R. v. Regan (1997), 124 C.C.C. (3d) 77 (NSSC), s. 648 was interpreted to extend topre-trial proceedings even though unconstitutional, as violating s. 2 of the Charter, because it issaved by s. 1 of the Charter. MacDonald J. also concluded that if s. 648 did not extend to pre-trial motions or was not saved by s. 1, then the common law ban was appropriate in identicalterms.

[15] In R. v. Brown (1998), 126 C.C.C. (3d) 187 (Ont. Gen. Div.), s. 648 was interpreted toapply to pre-trial proceedings. The constitutionality of the resulting scope of s. 648 was notchallenged, but Trafford J. read down the extent of the ban because of the ambiguities he foundin s. 648 which allowed him to use Charter values as an interpretive aid.

[16] In R. v. Malik, 2002 BCSC 80, s. 648 was interpreted to apply to pre-trial proceedings.No constitutional challenge to that interpretation was made. Josephson J. followed Brown andRegan and read down the scope of the ban to comply with Charter values. R. v. Sandham(2008), 248 C.C.C. (3d) 543 (Ont. S.C.) and R. v. Valentine, 2009 CarswellOnt 5190 (S.C.) areto a like effect.

[17] In R. v. Ahmad, [2009] CarswellOnt 9301 (S.C.), Dawson J. explained that in theabsence of a constitutional challenge, s. 648 provided an absolute ban respecting pre-trialapplications and its provisions are not ambiguous.

[18] In Cheung, the media’s argument was captured by Binder J. in these words:

[32] The Media argued that the plain meaning of s. 648(1) cannot support theinterpretation put forward by the Applicant: no “permission to separate” hasbeen given, there are no “members of a jury” prior to jury selection, and noorder has been made under s.s. 647(1). Section 648 refers to “any portion of thetrial”, but for most purposes a trial does not commence until the members of thejury are sworn and the accused is given in charge of the jury. Section 648clearly does not purport to make all pre-trial applications part of the trial for thepurposes of s. 648(1); s. 645(5) makes no reference to s. 648 at all. IfParliament had intended to broaden the scope of the ban in s. 648(1) when itenacted s. 645(5), or at any time since, it could have amended either section tomake clear such an intention.

[33] The Media cited R. Sullivan, Driedger on the Interpretation of Statutes,3d ed. (Toronto: Butterworths, 1994) at 128 and 417 for the propositions that as

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a general rule interpretation should not add to the terms of the law, and theimplicit change of the existing law in an important regard should not be lightlypresumed. As well, it is presumed that the legislature does not intend to interferewith the rights of subjects (at 370).

[34] They further argued that the legislative history of a statute, includingreports of debates in Parliament, can be resorted to as an aid to interpreting thestatute, particularly when the constitutionality of the statute is underconsideration and the legislative record is clear, relying on R. v. Morgentaler,[1993] 3 S.C.R. 483, Re Rizzo Shoes Ltd., [1998] 1 S.C.R. 45 and R. v. Gisby,[2000] A.J. No. 1145 (C.A.) (QL).

[35] The Media referred to Bill C-42 (An Act to amend the Criminal Codeand other Acts (miscellaneous matters)), introduced by Parliament in the Houseof Commons on June 15, 1994. Bill C-42 contained the following amendment:

62. Subsection 648(1) of the Act is replaced by the following:

Restriction on publication

648(1) Information regarding any portion of a trial shall not bepublished in any newspaper or broadcast

(a) in respect of any matter dealt with by a judge before any juroris sworn, until the jury that is eventually sworn retires to considerits verdict; and

(b) in respect of any matter dealt with after the jury is sworn but whenthe jury is not present and permission to separate is given to members ofthe jury, until the jury retires to consider its verdict.

[36] At the time of the second reading of Bill C-42 on October 4, 1994, Ms.Sue Barnes stated (Record of Hansard Proceedings, p. 6521):

There are proposals aimed at removing obsolete provisions orfilling gaps created by changing circumstances. Gaps whichpresently exist with respect to publicity for certain pretrialproceedings would be closed.

It is important that the rights of accused persons to a fair trialbefore an impartial jury not be compromised by prematurepublicity of information which may or may not be relevant inadmissible evidence.

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[37] On December 6, 1994, representatives of the Canadian Daily NewspaperAssociation appeared before the Standing Senate Committee on Legal andConstitutional Affairs arguing that the proposed s. 648 amendment wasoverbroad, in effect throwing a “blanket of secrecy” over events which takeplace in open court and which would not affect the ability of an accused toreceive a fair trial (pp. 17:4 - 17:8).

[38] Dagenais was released on December 8, 1994. Four days later, theCommittee Report to the Senate recommended that s. 62 of Bill C-42 bedropped. Chairman Senator Gérald Beaudoin stated (p. 1096):

In light of the recent decision of the Supreme Court of Canadaregarding “The Boys of St. Vincent’s” in which the SupremeCourt indicated that one must strike a fair balance between theright of the accused to a fair trial and the public’s right to know,the committee feels it is preferable to drop this clause from BillC-42. If the Minister of Justice is of the opinion that the clause isnecessary, he will have to revise the wording to bring it into linewith the recent decision of the Supreme Court of Canada and therights and freedoms protected by the Canadian Charter of Rightsand Freedoms.

[39] Although not brought to the attention of this Court by the Media, areview of Hansard further reveals that on December 13, 1994, Allan Rockmoved that amendments made by the Senate to Bill C-42 be concurred in,stating (p. 9010):

It was pointed out by the committee of the Senate whichconsidered this clause that the language which the governmentused to achieve that purpose might be overbroad. It might bemandatory where permissive language might be preferable. Inany event the provision, however worded, should permit thepublication of matters other than those which might sway a juryif they were made public before the panel was sworn in.

We are happy to have that clause removed as well. We willconsider it and try to meet the legitimate concerns that have beenexpressed. We will try to improve it and bring it forward atanother time.

[40] The Media argued that it is clear from this legislative history thatParliament never understood nor intended s. 648(1) to apply to pre-juryproceedings. Furthermore, Dagenais was issued four days prior to the SenateCommittee’s vote to delete the amendments to s. 648 from Bill C-42, and was

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clearly taken into account in the Senate Committee’s deliberations. The courtshould not do that which Parliament has refused to do, particularly where therefusal was as a result of a constitutional concern.

[41] The Media asserted that where a statute is open to more than oneinterpretation, one of which accords with the Constitution and the other whichdoes not, the interpretation which is consistent with the Constitution should beadopted. The decisions where s. 648(1) has been interpreted to extend to pre-jury proceedings contain suspect reasoning in that they read up s. 648 to catchpre-jury proceedings, and then read it down to exclude non-prejudicialinformation. The cases are not in agreement as to how this reading down shouldbe accomplished.

[19] Binder J. then put the determination as to the scope of s. 648 in the form of a series ofquestions as follows:

[58] As a result of the subsequent enactment of s. 645(5), a situation arosewhereby trial applications were heard prior to jury selection, to which s. 648(1),on a plain reading, does not apply. What was Parliament’s intention with respectto publication of those proceedings? There are several possibilities: Parliamentwas not aware of any potential interpretive difficulty; Parliament was aware, butby oversight failed to clarify the situation; Parliament was of the view that s.648(1) implicitly applies to some or all pre-jury selection proceedings;Parliament was of the view that s. 648(1) does not extend to pre-jury selectionproceedings, and felt it was not appropriate to extend its scope; Parliament wasof the view that s. 648(1) does not extend to pre-jury selection proceedings, andis aware that a mechanism exists whereby the courts can protect the accused’sright to a fair trial by imposing a ban where appropriate under Dagenais.

[20] Binder J. concluded that s. 648 did not extend to pre-trial proceedings because:

[61] First, as argued by the Media, it is obvious that the plain wording of s.648(1) does not support the interpretation suggested by the Applicant: there is no“permission to separate”, there are no “members of a jury”, and no order has beenmade under subsection 647(1).

[62] Secondly, to hold that s. 648(1) implicitly applies to proceedings whichoccur prior to a jury being in place, assumes that Parliament would be of the viewthat none of the policy factors which distinguish the pre- and post-jury scenarioswould warrant different treatment of the two. Living in a post-Dagenais world, itis difficult to imagine that factors such as, inter alia, the anticipated length of timebetween proceedings and jury selection, the alternatives available to ensure jurorsare not tainted, the nature of the proceedings, and the large pool of potential jurorswho may or may not have any interest in the proceedings, would lead to the

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conclusion that the scenarios are sufficiently similar to warrant identicaltreatment.

[63] Thirdly, to find ambiguity, or a “gap”, as suggested by the Applicant, onewould necessarily have to conclude that there exists no effective alternativemechanism to protect the fairness of the trial. The Applicant argued that theMedia’s interpretation would not only be inconsistent with the treatment of post-jury selection proceedings, it would fly in the face of the entire legislativescheme. However, this would only be true if a partial Dagenais ban is soinconsistent with the legislative scheme providing for bans on judicial interimrelease, preliminary inquiries, and post-jury selection proceedings, among others,that a s. 648(1) blanket ban on all pre-jury trial proceedings is warranted. Suchreasoning would be absurd. To use the Applicant’s terminology, it would fly inthe face of Dagenais to accept that the inherent jurisdiction recognized in thatcase is insufficient to protect the integrity of an accused’s trial.

[21] I respectfully agree, as did Watson J. in Trang.

[22] I recognize that there is merit in adopting a common approach respecting theinterpretation and application of the provisions of the Criminal Code. However, this is not thefirst time nor likely to be the last that trial courts have differed in their interpretation of a federalstatute. That is why we have appellate courts. The correct approach is that s. 648 does not extendto pre-trial applications such as those made before me.

[23] Accordingly, in order to limit public access and publication, the Applicants must meetthe Dagenais test.

B. What Is the Dagenais Test?

[24] Plainly, if the right to a fair trial and free speech conflict, any solution will require someimpingement of one or both rights. In Dagenais, Lamer C.J. on behalf of the majority offeredthis comment on the old approach to the common law discretion to ban publication:

72 The pre-Charter common law rule governing publication bans emphasizedthe right to a fair trial over the free expression interests of those affected by theban. In my view, the balance this rule strikes is inconsistent with the principles ofthe Charter, and in particular, the equal status given by the Charter to ss. 2(b) and11(d). It would be inappropriate for the courts to continue to apply a common lawrule that automatically favoured the rights protected by s. 11(d) over thoseprotected by s. 2(b). A hierarchical approach to rights, which places some overothers, must be avoided, both when interpreting the Charter and when developingthe common law. When the protected rights of two individuals come into conflict,as can occur in the case of publication bans, Charter principles require a balanceto be achieved that fully respects the importance of both sets of rights.

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[25] The revised test was stated by him as follows:

73 . . .

A publication ban should only be ordered when:(a) Such a ban is necessary in order to prevent a real andsubstantial risk to the fairness of the trial, because reasonablyavailable alternative measures will not prevent the risk; and

(b) The salutary effects of the publication ban outweigh thedeleterious effects to the free expression of those affected by theban.

1. Real and Substantial Risk Not Met by Other Means.

[26] At the time of the proposed broadcast, Dagenais was in the middle of his trial. The otherthree defendants’ trials had not yet commenced and their juries had not been chosen. Applyingthe newly minted test, Lamer C.J. concluded that a publication ban was not required:

79 The publication ban in the case at bar would have passed the first stage ofanalysis under the common law rule if: (1) the ban was as narrowly circumscribedas possible (while still serving the objectives); and (2) there were no othereffective means available to achieve the objectives. However, the initial ban in thecase at bar was far too broad. It prohibited broadcast throughout Canada and evenbanned reporting on the ban itself. In addition, there were other effective meansavailable to achieve the objectives. The publication ban ordered by Gotlib J. has,in fact, expired, making it unnecessary to discuss in great detail the particularalternative measures that were available in the case at bar. Possibilities thatreadily come to mind, however, include adjourning trials, changing venues,sequestering jurors, allowing challenges for cause and voir dires during juryselection, and providing strong judicial direction to the jury. Sequestration andjudicial direction were available for the Dagenais jury. Apart from sequestration,all of the other effective alternatives to bans were available for the other threeaccused. For this reason, the publication ban imposed in the case at bar cannot besupported under the common law. As a result, in purporting to order the banunder her common law discretionary authority, Gotlib J. committed an error oflaw.

[27] Having made that finding, Chief Justice Lamer was not called upon to determine whetherthe salutary effects of the publication ban outweighed the deleterious impact the ban had on thefreedom of expression.

[28] In this case, Mr. Twitchell faces a jury trial, but his jury has not yet been selected. He isin the same position as the other three defendants in Dagenais, in the sense that sequestration is

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not an available option at the moment. The other three accused in Dagenais were charged withhaving abused young boys resident at a Catholic institution of which they were part. Lamer C.J.was of the view that effective measures could be taken to protect those persons’ right to a fairtrial, including: adjourning their trial (presumably until some time after the broadcast of thefictional account of the abuse of young boys by Catholic priests in a Catholic institution),changing venues (presumably to a location other than one close to the site of the alleged abuses,predominantly Ontario and Newfoundland), allowing challenges for cause of prospective jurors(presumably on the basis of pre-trial publicity), and providing strong judicial direction to thejury.

[29] In the case before me, having the connection it does to a popular weekly U.S. televisionprogram, having the unusual features it does, changes of venue and adjournments of anyreasonable sort are not likely to reduce the interest of the media or the public in the details of thestory. That leaves challenges for cause, judicial instruction and sequestration once the jury isselected as available options to ensure the fair trial of Mr. Twitchell. There is a real risk that pre-trial publicity will undermine the accused’s constitutionally protected right to a fair trial. Thatrisk is that it is most likely the result of pre-trial publicity which will influence prospective jurorsminds consciously or subconsciously and make it extremely difficult to obtain 12 persons whocan truly be said to be completely impartial as between the Crown and Mr. Twitchell.

[30] On the efficacy of judicial instruction as a tool to override publicity, Lamer C.J. offeredthese comments:

87 To begin, I doubt that jurors are always adversely influenced bypublications. There is no data available on this issue. However, common sensedictates that in some cases jurors may be adversely affected. Assuming this, Inevertheless believe that jurors are capable of following instructions from trialjudges and ignoring information not presented to them in the course of thecriminal proceedings. As Lord Taylor C.J. wrote in Ex parte Telegraph plc. andother appeals, [1993] 2 All E.R. 971 (C.A.), at p. 978:

In determining whether publication of matter would cause asubstantial risk of prejudice to a future trial, a court should creditthe jury with the will and ability to abide by the judge's direction todecide the case only on the evidence before them.

This Court has also made some strong statements about the reliability of juries. InR. v. Corbett, [1988] 1 S.C.R. 670, Dickson C.J. wrote (at pp. 692-93):

The very strength of the jury is that the ultimate issue of guilt orinnocence is determined by a group of ordinary citizens who arenot legal specialists and who bring to the legal process a healthymeasure of common sense. The jury is, of course, bound to followthe law as it is explained by the trial judge. Jury directions are

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often long and difficult, but the experience of trial judges is thatjuries do perform their duty according to the law. . . .

It is of course, entirely possible to construct an argument disputingthe theory of trial by jury. Juries are capable of egregious mistakesand they may at times seem to be ill-adapted to the exigencies ofan increasingly complicated and refined criminal law. But until theparadigm is altered by Parliament, the Court should not be heard tocall into question the capacity of juries to do the job assigned tothem. The ramifications of any such statement could be enormous.Moreover, the fundamental right to a jury trial has recently beenunderscored by s. 11(f) of the Charter. If that right is so important,it is logically incoherent to hold that juries are incapable offollowing the explicit instructions of a judge. [Emphasis inoriginal.]

Corbett was about the issue of whether evidence of prior convictions could bepresented to the jury given that such evidence has both proper and improper uses.The case at bar is, in part, about the issue of whether juries are irremediablyadversely influenced by publications. However, the difference of issue isirrelevant here. What matters is that this Court has strongly endorsed the ability ofa jury to follow the explicit instructions of a judge. This endorsement surelyapplies as much to the instruction to ignore all information not presented in thecourse of the criminal proceedings as it applies to the instruction to use evidenceof prior convictions for one purpose and not another. I am comforted in myextension of Corbett to the case at bar by R. v. Vermette, [1988] 1 S.C.R. 985, atpp. 993-94, in which La Forest J. wrote in the context of the impact of publicitythat "[t]his Court has recently had occasion to underline the confidence that maybe had in the ability of a jury to disabuse itself of information that it is not entitledto consider; see R. v. Corbett".

[31] Despite the strong endorsement of our jury system and the expectation that jurors willunderstand and abide by judicial instruction, Lamer C.J. did recognize that screening andsanitization may not be as effective where there is more sustained pre-trial publicity. On thattopic having just quoted La Forest J. in R. v. Vermette he continued at para. 88 as follows:

88 These observations are particularly apt in a case, such as this, in which thepublication ban relates to identifiable and finite sources of pre-trial publicity.More problematic is the situation in which there is a period of sustained pre-trialpublicity concerning matters that will be the subject of the trial. In suchcircumstances, the effect of instructions is considerably lessened. Impressionsmay be created in the minds of the jury that cannot be consciously dispelled. Thejury may at the end of the day be unable to separate the evidence in court frominformation that was implanted by a steady stream of publicity.

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[32] I think it is also likely that the pervasiveness of the coverage, the intensity of thecoverage and the degree of interest in the story would serve to reduce the efficacy of challengesfor cause and judicial direction.

[33] Furthermore, despite the enormity of the danger of “calling into question the capacity ofjurors to do the job assigned to them”, the right of an accused to a fair trial is a constitutionalright. Its importance outstrips and cannot be sacrificed to the idealistic hope that a stern fatherlyadmonition will invariably and inexorably set all 12 jurors on the correct path and lead them toscrub their conscious and subconscious of the detritus fed to them by the myriad of informationsources marking modern day communication.

[34] If that is the approach which must be followed, then why the caution sounded byLamer C.J. in para. 88 in Dagenais. Indeed why would we need to sequester a jury? In my view,it is necessary to recognize that there is a real and substantial risk that, in cases which commandpublic attention and involve intense media coverage, such as Bernardo, Williams, Pickton andthe like, challenges for cause and judicial instruction may not be sufficient to ensure acompletely uncontaminated jury. In my view, this is such a case. Some form of ban is necessary.There is a real and substantial risk to the right of the accused to a fair trial which alternativemeasures short of a ban cannot overcome.

2. The Scope of the Ban

[35] Lamer C.J. pointed out in Dagenais that the issue is not simply media freedom versus anaccused’s right to a fair trial. He offered the following insights into some of the repercussions ofimposing or not imposing a publication ban:

83 Third, the analysis of publication bans should be much richer than the clashmodel suggests. Rather than simply focusing on the fact that bans always limitfreedom of expression and usually aim to protect the right to a fair trial of theaccused, it should be recognized that ordering bans may:

- limit freedom of expression (and thus undercut the purposes of s.2(b) discussed above);

- prevent the jury from being influenced by information other thanthat presented in evidence during the trial (for example,information presented in a tabloid television show and evidencediscussed in the absence of the jury and held to be inadmissible);

- maximize the chances that witnesses will testify because theywill not be fearful of the consequences of publicity;

- protect vulnerable witnesses (for example, child witnesses, policeinformants, and victims of sexual offences);

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- preserve the privacy of individuals involved in the criminalprocess (for example, the accused and his or her family as well asthe victims and the witnesses and their families);

- maximize the chances of rehabilitation for "young offenders";

- encourage the reporting of sexual offences;

- save the financial and/or emotional costs to the state, the accused,the victims, and witnesses of the alternatives to publication bans(for example, delaying trials, changing venues, and challengingjurors for cause); and

- protect national security.

84 It should also be recognized that not ordering bans may:

- maximize the chances of individuals with relevant informationhearing about a case and coming forward with new information;

- prevent perjury by placing witnesses under public scrutiny;

- prevent state and/or court wrongdoing by placing the criminaljustice process under public scrutiny;

- reduce crime through the public expression of disapproval forcrime; and

- promote the public discussion of important issues.

[36] The foregoing potentials must inform not only the question of whether a ban is necessarybut also the scope of any ban to be imposed (para. 89).

[37] In determining the scope of the ban, the efficacy of the proposed ban is a relevantconsideration: Lamer C.J. identified the issue as follows:

89 It should also be noted that recent technological advances have brought withthem considerable difficulties for those who seek to enforce bans. The efficacy ofbans has been reduced by the growth of interprovincial and internationaltelevision and radio broadcasts available through cable television, satellite dishes,and shortwave radios. It has also been reduced by the advent of informationexchanges available through computer networks. In this global electronic age,meaningfully restricting the flow of information is becoming increasingly

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difficult. Therefore, the actual effect of bans on jury impartiality is substantiallydiminishing.

90 These concerns about the efficacy of some publication bans fit into theanalytical approach under the common law rule outlined previously at severalstages, since it is necessary to consider how efficacious a publication ban will bebefore deciding whether a ban is necessary, whether alternative measures wouldbe equally successful at controlling the risk of trial unfairness, and whether thesalutary effects of the ban are outweighed by its negative impact on freedom ofexpression.

91 If any adverse influence of a publication on jurors can be remedied bymeans short of banning the publication, then it might well be argued that there isno rational connection between the publication ban and the objective ofpreventing the jury from being adversely influenced by information other thanthat presented in evidence during the trial. In such a case, it could not be assertedthat a ban was necessary to protect the fairness of the trial. I should note,however, that although it is possible that a publication ban will have a totalabsence of influence on the fairness of the trial, such cases will be rare. As aresult, one will generally have to go further and consider the availability ofreasonable alternative measures when assessing whether, in a given case, apublication ban was necessary.

[38] It seems to me that each application heard by me requires separate treatment so as toensure an appropriate scope for the ban to be imposed.

a. Publication Ban Application

[39] In this case, the ban sought relates to all of the pre-trial motions heard by me includingthe application for this ban. It is clear that the application for a publication ban by itself is notlikely to have any real impact upon the impartiality of the jury. However, the materials filed insupport of the application, the arguments made and portions of my reasons may, if publishedetch themselves into the consciousness of prospective jurors.

[40] Again, it is ensuring impartiality which necessitates the ban. Once the jury starts itsdeliberations, it is sequestered and cut off from outside information sources. At that point, thereis no longer a reason to continue the ban. I note that no one has suggested that any ban I chooseto impose should extend beyond sequestration, notwithstanding the possibility that appeals andretrials may lie in the future. Therefore, once jury sequestration occurs any ban imposed by mewould end.

[41] In my view, the written arguments, the agreed facts, the evidence of Constable Roszko,the evidence of Mr. Tetreault, the oral arguments, the materials gleaned from Mr. Twitchell’scomputers, the search warrant, the informations to obtain search warrants, the attachments to the

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informations to obtain search warrants, and my reasons all contain information which mayinexorably damage Mr. Twitchell’s right to an impartial jury. All represent evidence orreferences to evidence which may or may not be admissible in this proceeding.

[42] The only appropriate solution is to ban publication of all of that material. However, thatdoes not include the notice of motion for the publication ban, the cases relied upon by theAccused, and the fact that the Accused and Crown sought to ban publication of facts andmaterials until the trial of Mr. Twitchell.

[43] If history can be relied upon to assess the efficacy of such a ban, then it would appearthat a ban will be reasonably likely to have the desired effect.

b. Quashing/Severance

[44] In a previous judgment I ordered the severance of the two count indictment. Thatapplication, the materials filed, the written and oral arguments made, the evidence presented, thewarrants and informations to obtain those warrants and attachments thereto, and my reasons forthat decision and the decision could potentially impinge Mr. Twitchell’s right to a fair trial aseach represents evidence or references to evidence which may or may not be admissible at histrial. In my view, the materials relating to the quashing application are at least as potentiallyinimical to the Accused’s right to a fair trial as the materials relating to the publication banapplication. The reasons I gave for the appropriateness of that ban and its protective efficiencyapply to the quashing/severance application materials.

[45] Therefore, the publication of all information in relation to the quashing/severanceapplication is banned until such time as the jury is sequestered.

c. Exclusion of Evidence Application

[46] Plainly, all the material filed, the Notice of Motion, the written and oral arguments made,the evidence presented, the warrants and informations to obtain those warrants and attachmentsthereto, my decision and the reasons for my decision are all potentially inimical to the Accused’sright to a fair trial. For all of the reasons given when considering the other applications, thisapplication also requires protection beyond that afforded by challenge and judicial direction. Allof the foregoing material is therefore banned from publication until such time as the jury issequestered. Again, if history can be relied upon to assess the efficacy of such a ban, then itwould appear that a ban will be reasonably likely to have the desired effect.

d. Challenge for Cause

[47] The parties are agreed that pre-trial publicity in this case is such and likely to be such thatjuror impartiality will be a real and substantial concern. They agree that each prospective jurorought to be challenged for cause. I share their concerns and have ordered that each juror will be

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challenged to determine if the juror is indifferent as between the Queen and the Accused. Toachieve that end, the following questions will be put to each juror:

1. Have you read, heard or seen anything about this case or the Accused in anymedia (including newspapers, on the radio or television, or on the internet)?

2. Have you obtained any information about this case from anywhere else?

3. (If the answer to question 1 or 2 is yes, then) Have you formed an opinion aboutthe guilt or innocence of Mr. Twitchell?.

4. (If the answer to question 3 is yes) Are you able to set aside that opinion anddecide this case only on the evidence you hear in the courtroom and the Judge’sdirections on the law?

[48] The questions are framed with a view to discovering and then eliminating potentialpartiality. In my view the efficacy of the questions would be compromised by publication inadvance of the selection process. The challenge process and judicial instruction remain as part ofthe arsenal available to ensure a fair trial. Publication of the questions designed to determine theexistence of preconception could potentially undermine the effectiveness of the screeningprocess and therefore, potentially, the fairness of the trial. A limited ban is likely to be effectiveto preclude that risk.

[49] Accordingly the questions may not be published in any way until after the jurycommences to hear evidence.

3. Balancing

[50] I have concluded that a publication ban is necessary to protect the Accused’s right to afair trial and I have set the scope of that ban in terms of each of the applications made before me.Notwithstanding those decisions, the bans cannot be invoked unless it can be said that thesalutary effects of the ban outweigh the deleterious effects to the freedom of expression of thoseaffected by the ban.

[51] Even though, not required by the decision in Dagenais, Lamer C.J. offered opinion onthis subject:

92 If the actual beneficial effects of publication bans are limited, then it mightwell be argued in some cases that the negative impact the ban has on freedom ofexpression outweighs its useful effects. The analysis that is required at this stageof the application of the common law rule is very similar to the third part of thesecond branch of the analysis required under s. 1 of the Charter, as set out by thisCourt in R. v. Oakes, [1986] 1 S.C.R. 103. As Dickson C.J. stated in Oakes (at p.140), "[e]ven if an objective is of sufficient importance, and the first two elements

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of the proportionality test are satisfied, it is still possible that, because of theseverity of the deleterious effects of a measure on individuals or groups, themeasure will not be justified by the purposes it is intended to serve". In manyinstances, the imposition of a measure will result in the full, or nearly full,realization of the legislative objective. In these situations, the third step of theproportionality test calls for an examination of the balance that has been struckbetween the objective in question and the deleterious effects on constitutionallyprotected rights arising from the means that have been employed to achieve thisobjective. At other times, however, the measure at issue, while rationallyconnected to an important objective, will result in only the partial achievement ofthis object. In such cases, I believe that the third step of the second branch of theOakes test requires both that the underlying objective of a measure and thesalutary effects that actually result from its implementation be proportional to thedeleterious effects the measure has on fundamental rights and freedoms. Alegislative objective may be pressing and substantial, the means chosen may berationally connected to that objective, and less rights-impairing alternatives maynot be available. Nonetheless, even if the importance of the objective itself (whenviewed in the abstract) outweighs the deleterious effects on protected rights, it isstill possible that the actual salutary effects of the legislation will not be sufficientto justify these negative effects.

. . .

95 In my view, characterizing the third part of the second branch of the Oakestest as being concerned solely with the balance between the objective and thedeleterious effects of a measure rests on too narrow a conception ofproportionality. I believe that even if an objective is of sufficient importance, thefirst two elements of the proportionality test are satisfied, and the deleteriouseffects are proportional to the objectives, it is still possible that, because of a lackof proportionality between the deleterious effects and the salutary effects, ameasure will not be reasonable and demonstrably justified in a free anddemocratic society. I would, therefore, rephrase the third part of the Oakes test asfollows: there must be a proportionality between the deleterious effects of themeasures which are responsible for limiting the rights or freedoms in question andthe objective, and there must be a proportionality between the deleterious and thesalutary effects of the measures.

96 A similar view of proportionality must inform the common law rulegoverning publication bans (this is, of course, apparent from the way I haveexpressed the second part of the rule). This suggests that when a ban has a seriousdeleterious effect on freedom of expression and has few salutary effects on thefairness of a trial, the ban will not be authorized at common law.

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[52] Of course the salutary effect of an effective publication ban in this case is an untainted,impartial panel of jurors.

[53] Some of the deleterious effects of the ban had been previously itemized. However, theseeffects are for the most part temporary. Temporary limits on publication seems a smallish priceto pay to achieve the objective of a fair trial. To cast the task in terms of examining the balancebetween the degree of damage done to freedom of speech as compared to the degree of assurancethat a fair trial will occur by a publication ban, leads to the same result. The temporary nature ofthe ban significantly reduces the degree of damage. Whereas ensuring a fair trial where there isreason to fear that result is a significant achievement, and the likelihood of that benefitsubstantially greater if jurors are not inundated with material leading to pre-judgment.

[54] However, a publication ban which is not effective will not have the desired salutaryeffect. The admonition of Lamer C.J. in that respect bears repeating:

89 It should also be noted that recent technological advances have brought withthem considerable difficulties for those who seek to enforce bans. The efficacy ofbans has been reduced by the growth of interprovincial and internationaltelevision and radio broadcasts available through cable television, satellite dishes,and shortwave radios. It has also been reduced by the advent of informationexchanges available through computer networks. In this global electronic age,meaningfully restricting the flow of information is becoming increasinglydifficult. Therefore, the actual effect of bans on jury impartiality is substantiallydiminishing.

90 These concerns about the efficacy of some publication bans fit into theanalytical approach under the common law rule outlined previously at severalstages, since it is necessary to consider how efficacious a publication ban will bebefore deciding whether a ban is necessary, whether alternative measures wouldbe equally successful at controlling the risk of trial unfairness, and whether thesalutary effects of the ban are outweighed by its negative impact on freedom ofexpression.

[55] The rapid dissemination of information and the limitless ways that the information maybe published is a significant difficulty in cases with high profiles, such as this one. There arelocal media, national media, United States media, ordinary citizens, thrill seekers, amateur andprofessional bloggers, law students, lawyers and those looking for personal gain or profit whocan be expected to be interested in the various materials associated with the applications madebefore me.

[56] Most who might be minded to broadly circulate information will abide by an orderdirecting them not to do so. At least that seems to have been the case in other high profile cases.However, more limited person to person publications are virtually impossible to monitor orpreclude. No doubt some of the potential jurors in this case may explore the internet for material

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because of the kind of case this is. Additionally, some of those who might be minded to publishmore broadly, may not feel compelled or motivated to abide by a publication ban. Thusproviding a further source for the curious. Finally, there are many instances where court ordersand statutory direction are ignored by otherwise ordinary law abiding citizens. That courts areextremely busy is all the evidence necessary to make that point.

[57] However, if we may not be able to fully and completely ban publication do we eschewtrying? Do we ask the accused to settle for what we hope will be a fair trial. How far ought we togo before acknowledging that we cannot devise a perfect mechanism. Do we seal materials,close the courtroom, exclude all but essential players, use undertakings, or engage in acombination of these activities in an attempt to ensure that the fair trial which we have found tobe in jeopardy by publication is not in fact compromised in any event?

[58] Justice Germain recognized this dilemma in the order he made in this case banningpublication and sealing portions of the warrants and informations used to obtain those warrants.

[59] In my view, if any of the evidence, in the form of agreed facts, the affidavits relied uponto obtain the warrants, the material found on Mr. Twitchell’s computer or the electroniccommunication between the Accused and third parties reaches perspective jurors, it will beexceedingly difficult to successfully purge that information from the minds of those prospectivejurors. That danger warrants more extensive measures than a simple ban to protect against anunfair trial. A simple ban simply won’t be effective.

[60] Publication of the Agreed Statement of Facts could be devastating to the Accused’s rightto an impartial jury especially if the publication includes the fact that there was agreement on thepublished facts. For that reason sealing of the agreed facts is the only protection likely to becompletely effective. The agreed facts will be sealed until such time as the jury is sequestered.

[61] The written and oral arguments respecting the applications for publication ban,quashing/severance and exclusion of evidence, drawing as they do upon the agreed facts are alsosealed. The electronic communication records involving Mr. Twitchell and the so calledconfession recovered from his laptop are also so potentially explosive that it is reasonable toexpect that if they become public in any way before trial, sanitization of perspective jurors willlikely be ineffective. Therefore both are ordered sealed until such time as the evidence theyrepresent is actually heard by the Accused’s jury, or the jury is sequestered.

[62] I recognize that sealing the material identified is unusual and is usually seen as an evengreater affront to the democratic hallmarks of open courts and free speech. However, any lesserrestriction would provide uncertain protection to the Accused’s right and society’s interest in afair trial.

[63] Furthermore, again with a view to ensuring the efficacy of the measures, the reasons formy decisions, the Notices of Motion, the evidence of Constable Roszko and Mr. Tetreaultincluding the video recording and transcript, may not be published in any way until such time as

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the jury is sequestered. In addition, access to the banned material is prohibited except thatpersons who are employed by a media organization may access the banned materials, but not thesealed materials upon their employer’s execution and their personal execution of an undertakingto be bound by the ban and not to publish any of the material in any way contrary to that ban. Tobe clear, the evidence of Constable Roszko which may not be published, does not include thematerials that he was able to extract from the Accused’s laptop computer. Those extractedmaterials are sealed.

[64] In my view, the foregoing measures are necessary to make attaining the objectiveprobable and the salutary effects of engaging the measures ordered outweigh the limited natureof the deleterious effects caused by so doing.

III. Summary

1. All materials, including evidence, Notices of Motion, warrants, informations to obtainwarrants, arguments (written and oral), recordings of proceedings, exhibits, decisions andreasons for decision relating to the application for a publication ban, quashing/severanceof the indictment and exclusion of evidence may not be published in any way. This banshall last until the jury is sequestered.

2. The evidence of Constable Roszko and Gilles Tetreault, the video and transcript ofTetreault to the police, the Agreed Statement of Facts, the electronic communicationbetween the Accused and others and the alleged diary recovered from the Accused’slaptop computer are sealed. No access to those materials may be granted. These materialsshall remain sealed until the jury is sequestered.

3. Publication of the challenge for cause questions is prohibited until the jury hascommenced hearing evidence.

4. The materials in relation to which publication has been banned may be accessed only bypersons employed by a media organization and then only upon the accessing personproviding a written undertaking to abide by the publication ban and an undertaking fromtheir employer to the same effect. The undertaking, must be in a form suitable to the TrialJudge. Those undertakings shall expire once the jury is sequestered in the case of all suchmaterials except the challenge for cause questions. There should be no access to thesealed materials by any persons until the jury is sequestered.

5. The Notice of Motion for the publication ban, the authorities relied upon in making thatapplication, except for the decision of Germain J., are not subject to any publication ban.Additionally, the record of the proceedings respecting challenges for cause, except thequestions to be used, are not subject to any restriction on publication.

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Heard on the 14th day of October, 2010.Dated at the City of Edmonton, Alberta this 17th day of November, 2010.

T.D. ClacksonJ.C.Q.B.A.

Appearances:

Avril Inglis and Lawrence Van Dyke Crown Prosecutors’ Office

for the Crown

Charles B. Davison Abbey Hunter Davison

for the Accused

Sean Ward and Matthew WoodleyReynolds Mirth Richards and Farmer LLP

for the Edmonton Journal and CBC Television

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