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- This ruling deals with an application made by Joseph Charles Guité for an in camera hearing of his testimony, or, subsidiarily, for a publication ban of his evidence, or, again subsidiarily, for a postponement of his testimony until after his criminal trial. Mr. Guité fears that the publicity which will result from his appearance before the Commission, which is scheduled to take place within the next two weeks, will make it impossible for him to have a fair trial on the criminal charges which are pending against him. He alleges that he expects that his criminal trial before a court composed of a judge and jury, will take place in Montreal at the January assizes, that is to say within the next two or three months.
- There are three circumstances that are to be taken into consideration in deciding this application; these circumstances do not usually exist in other cases where publication bans and similar remedies are sought.
- First, this is a public inquiry on questions of national importance. It is particularly important that the Canadian public be enabled to follow what occurs at the Commission and to read media reports of the evidence presented, unless there are compelling reasons not to allow free access to such reports. Since the inquiry is public, it is more important that there be no limitation on media access than if the inquiry were one conducted, for example, by a coroner.
- Secondly, counsel for the Commission have undertaken not to adduce evidence before the Commission of the contracts that are the subject of the criminal charges upon which Mr. Guité is to be tried. Accordingly, Mr. Guité, in his testimony before the Commission, will not be compelled to say anything of an incriminating nature which might predispose a jury candidate to consider him guilty of the counts in the indictment.
- Thirdly, Mr. Guité has already testified at some length before the Public Accounts Committee of the House of Commons. One may assume therefore that impact or shock value of his testimony before the Commission will be lessened. Publicity concerning his statements has already occurred, and to the extent that that publicity might affect the possibility of empanelling an impartial jury to try him, the damage has already occurred and would not be substantially aggravated by a repetition of that testimony.
- Nevertheless, it is to be expected that Mr. Guité's appearance before the Commission will be the occasion of extensive reporting and comment in the media. Many potential jurors will have heard about Mr. Guité and his involvement in the administration of the sponsorship program and advertising activities of the Government as a result of his appearance before the Commission. The question which his application raises is as follows: has he shown that that publicity will so jeopardize his chances of having a fair trial that steps should be taken to avoid such publicity by an in camera order, or a publication ban, or by postponing his appearance to a later date.
- From the submissions made to me by counsel for the applicant, by Commission counsel, and by the other parties who have made submissions on this question, I retain that the decision of the Supreme Court of Canada in Dagenais, and the opinion of Mr. Justice Cory in the Westray case, are the leading authorities on the subject. I do not propose to make a detailed analysis of this jurisprudence; it would be presumptuous for me to comment on it in any case, since the rules have been very clearly established.
- First of all, the rule as enunciated by Chief Justice Lamer in Dagenais is stated as follows1:
- A publication ban should only be ordered when:
(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.
- I take it that the same rule would apply to an application for an in camera hearing.
- With respect to the criterion of necessity, it is well established by the jurisprudence that a publication ban is not necessary if there are reasonable alternatives to assure a fair trial to the accused person. In this case, the only threat to a fair trial is the possibility that the impartiality of prospective jurors will be affected by the publicity surrounding Mr. Guité's testimony before the Commission. Surely I am entitled to assume, in the absence of evidence to the contrary, that the Judge of the Superior Court of Quebec who will have the responsibility of supervising the selection of a jury for Mr. Guité's trial, will take the usual precautions to ensure that prospective jurors are untainted by pre-trial publicity. Any prospective jurors who may have heard about Mr. Guité's involvement in the sponsorship program and advertising activities of the Government, (and let me say that it is probable that some prospective jurors will not have heard any such reports, in spite of widespread publicity), will be carefully screened to determine if they have formed opinions unfavorable to the accused; if they have formed such opinions, it may be assumed that questions will be put to the candidate to find out whether or not those opinions are so firmly held that they cannot be changed in the light of the evidence to be presented by the Crown.
- In this fashion, biased jury candidates are weeded out. I am also entitled to assume that the presiding judge will give the usual instructions to the jury, once it has been formed, that they should judge the case on the evidence presented at the trial and not on the basis of what they might have heard elsewhere. And finally, I believe that I am entitled to assume that the jurors will listen attentively to the judge's instructions and will comply with them. In other words, I am of the opinion that the usual procedures involved in the choosing of an impartial jury and the instructions to be given to it in the course of Mr. Guité's trial provide a reasonable alternative to what is requested here by Mr. Guité, and they therefore avoid the infringement to freedom of expression which is the inevitable consequence of an in camera hearing or a publication ban.
- What I have already said is sufficient, in my opinion, to dispose of the matter, but I would like to add an additional comment on one issue, which was strongly urged by several counsel, concerning the evidentiary burden upon the person requesting a publication ban, and, to an even greater extent, on the person urging the more draconian remedy of an in camera hearing. This issue is dealt with as follows by Mr. Justice Cory in the Westray decision2:
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- Those seeking to have the court ban the publication of evidence have the burden of establishing the necessity of the ban. That is to say they must demonstrate that the effect of publicizing the evidence will be to leave potential jurors irreparably prejudiced or so impair the presumption of innocence that a fair trial is impossible. Before relief is granted in order to preserve the right to a fair trial, satisfactory proof of the link between the publicity and its adverse effect must be given.
- Assessment of the effect of the publicity on the right to a fair trial must take place in the context of the existing procedures to safeguard the selection of jurors. Further, the nature and extent of the publicity must be considered.
- The applicant seeking the ban must establish that there are no alternative means available to prevent the harm the ban seeks to prevent.
- In the present case the applicant's only evidence goes to establishing that there has been, and presumably will be, extensive media coverage of the issues giving rise to the present inquiry and Mr. Guité's involvement in it. There is no evidence at all of the effect this publicity has had or will potentially have on the minds and opinions of jury candidates, and there is nothing to indicate that they will or might become irreparably prejudiced as a result. Mr. Auger argues that this absence of evidence may be overcome by the use of common sense. However, I cannot say that my own common sense, which has been to some extent sharpened by my experiences as judge who has presided over a number of jury trials, leads me to conclude that the minds and opinions of jurors are so readily influenced by the media that they lose irretrievably their ability to decide upon the guilt or innocence of an accused upon the basis of the evidence presented at a criminal trial, rather than upon the basis of what they see and hear on the television and in newspapers. In any event, regardless of my own personal beliefs and experiences, and what I like to think of as my common sense, Mr. Guité has quite simply failed to discharge his evidentiary burden of showing the possibility, much less the probability, of bias resulting from publicity, no matter how extensive.
- With respect to the lesser remedy of postponing the testimony of Mr. Guité until after his criminal trial, present indications are that the trial will not take place before January 2005 and that it will last for from four to six weeks. In practical terms this means that if I were to accept his request to postpone his testimony, the postponement would have to be until about the end of February 2005, by which time all or most of Phase 1A of the Inquiry would have been completed. This would completely distort the presentation of the evidence as it has been envisaged by counsel for the Commission and would make it difficult if not impossible to lead evidence in a logical way by other witnesses who had dealings with Mr. Guité. Just as Mr. Guité has rights to defend, other parties have rights and interests, the defense of which requires them and Commission counsel to know in advance what Mr. Guité has to say about his dealings with others. In all of the circumstances, I agree with the submission of Mr. Finkelstein that any postponement of Mr. Guité's testimony is an unacceptable interference with the orderly presentation of evidence before the Commission, an interference unjustified when weighed against the prejudice which he alleges pre-trial publicity might cause to him. As already indicated, I am not persuaded that any such prejudice is irreparable and cannot be avoided by other alternatives such as careful jury selection.
- For these reasons, Mr. Guité's application is dismissed.
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John H. Gomery, Commissioner
Dated at Ottawa October 28, 2004
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