Judgments

[1995] 1 F.C. 323

T-505-94

T-506-94

T-508-94

Canadian Broadcasting Corporation (Applicant)

v.

Sergeant Mark Adam Boland, Master Corporal Clayton Matchee, Her Majesty the Queen and Private Elvin Kyle Brown (Respondents)

Indexed as: Canadian Broadcasting Corp. v. Boland (T.D.)

Trial Division, Simpson J.—Ottawa, June 13, 16 and September 28, 1994.

Armed forces — Applications for judicial review of Judge Advocate’s decisions banning publication of evidence filed at court martial of soldier charged with killing prisoner in Somalia — Judge Advocate, applying test in R. v. Oakes, rejecting total ban, granting ban on more limited terms — Court martial having common law jurisdiction to make non-publication orders — Orders ineffective if civilian media not bound — Real, substantial risk fair trial impossible without non-publication orders — Criminal Code, s. 648 not applicable in court martial proceeding but Judge Advocate having jurisdiction to make order identical to that under Code.

Broadcasting — CBC seeking judicial review of non-publication orders in court martial of Canadian soldier on ground prevented from discharging mandate under Broadcasting Act — Bans preventing media from identifying role played by other accused in death of Somalian prisoner and from publishing photographs taken during torture — Civilian media bound — Orders justified as real, substantial risk fair trial otherwise impossible.

Charges were laid against a Canadian soldier, Private Brown, in connection with the torture and death of a young Somali man while in custody of the Canadian Airborne Regiment. The CBC brought applications for judicial review of the decisions made by the Judge Advocate at Brown’s Court Martial ordering bans on the publication of certain evidence and of the exhibits filed during the Court Martial. The evidence and exhibit bans meant that, in reporting on the Court Martial, the media could neither identify the role played by any of the other accused in the events leading to the Somali’s death, nor publish the sixteen photographs taken during his torture. The CBC argued that the exhibit ban would prevent it from properly discharging its mandate under the Broadcasting Act and that such ban discriminates against television broadcasters who rely primarily on pictures to present their news stories. Four issues were addressed herein: 1) whether the Judge Advocate had jurisdiction to make the non-publication orders; 2) whether such orders bound the civilian media; 3) whether they were justified and 4) whether section 648 of the Criminal Code applies to the Brown court martial.

Held, the applications should be dismissed.

1) A court martial is a statutory tribunal and an inferior court of record, and at common law, inferior courts of record have inherent jurisdiction to issue non-publication orders as part of their duty to ensure that justice is done. That being so, the issue was whether that jurisdiction had been lost since non-publication orders are not specifically mentioned in the National Defence Act or in the Queen’s Regulations and Orders for the Canadian Forces and since there is no saving provision for the common law jurisdiction. The inherent common law jurisdiction to impose a ban on publication continues to exist because it has not been taken away by statute. Parliament had no intention of removing this important jurisdiction simply by omitting reference thereto in the National Defence Act. Moreover, in matters of criminal law such as the Brown Court Martial, subsection 8(2) of the Criminal Code expressly continues the common law inherent jurisdiction of inferior courts of record. For both these reasons, the Judge Advocate had jurisdiction to order the evidence and exhibit bans in the Brown Court Martial.

2) Section 60 of the National Defence Act cannot be read as a limitation on a judge advocate’s inherent common law jurisdiction to make non-publication orders which would operate effectively to protect the integrity of the court martial process. The non-publication orders would be ineffective, at least in Canada, if they did not bind the civilian media. In the absence of a contrary authority or statutory provision, the Judge Advocate at the Brown Court Martial had jurisdiction to make an effective non-publication order which bound the civilian media.

3) In his reasons justifying the non-publication orders, the Judge Advocate acknowledged that he was faced with “a direct conflict in this case between a right and a freedom both guaranteed by the Charter.” He declined to impose a total ban in favour of the more limited terms found in the evidence and exhibit bans. He was also justified in rejecting the CBC’s suggestion that prospective panel members and witnesses be “cut off” from all media by his order. Such an order would have been unrealistic and unenforceable and would not have provided meaningful protection for the fair trials of the other accused. The Judge Advocate committed no error in law in stating that there was a real and substantial risk that a fair trial would be impossible without the non-publication orders.

4) Contrary to the Judge Advocate’s finding, section 648 of the Criminal Code does not apply in a court martial proceeding. However, it was within the jurisdiction of a judge advocate in a court martial to make an order similar to or identical to the non-publication order codified in subsection 648(1) of the Criminal Code.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2(b), 7, 11(d), 24(1).

Criminal Code, R.S.C., 1985, c. C-46, ss. 8(2), 276.3(1) (as enacted by S.C. 1992, c. 38, s. 2), 486(3) (as am. by R.S.C., 1985 (4th Supp.), c. 23, s. 1), (4) (as am. idem), 517(1) (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 101) , 539(1) (as am. idem, s. 97), 648.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1(4) (as enacted idem, s. 5).

National Defence Act, R.S.C., 1985, c. N-5, ss. 60 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60), 118, 302.

Queen’s Regulations and Orders for the Canadian Forces (1968 Revision), art. 101.07.

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Wood (D.A.) (No. 2) (1993), 124 N.S.R. (2d) 128 (S.C.); R. v. Jobidon, [1991] 2 S.C.R. 714; (1991), 66 C.C.C. (3d) 454; 7 C.R. (4th) 233; 128 N.R. 321; 49 O.A.C. 83; Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29 D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 21 C.R.R. 76; 67 N.R. 241; 16 O.A.C. 81.

DISTINGUISHED:

Ryan v. The Queen (1987), 4 C.M.A.R. 563 (C.M.A.C.); Church of Scientology of Toronto et al. and The Queen (No. 6), Re (1986), 27 C.C.C. (3d) 193 (Ont. H.C.).

CONSIDERED:

Canadian Broadcasting Corp. v. Dagenais (1992), 12 O.R. (3d) 239; 99 D.L.R. (4th) 326; 12 C.R.R. (2d) 229; 59 O.A.C. 310 (C.A.); R. v. Bernardo, [1993] O.J. No. 2047 (QL) (Ont. Gen. Div.).

REFERRED TO:

R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Regina v. Makow, [1975] 1 W.W.R. 299; (1974), 20 C.C.C. (2d) 513; 28 C.R.N.S. 87 (B.C.C.A.); Monaghan v. Canadian Broadcasting Corp. (1993), 110 D.L.R. (4th) 39 (Ont. Gen. Div.).

APPLICATIONS for judicial review of Judge Advocate’s decisions ordering bans on the publication of certain evidence and exhibits filed at a court martial. Applications denied.

COUNSEL:

Edith H. Cody-Rice and Leslie Saunders for applicant.

Arnold Fradkin for respondents.

SOLICITORS:

Canadian Broadcasting Corporation, Ottawa, for applicant.

Deputy Attorney General of Canada for respondents.

The following are the reasons for order rendered in English by

Simpson J.: On March 16, 1993 a young Somali man, Shidane Arone (Arone) died in the custody of the Canadian Airborne Regiment. It was serving as part of Canada’s commitment to the United Nations’ peacekeeping efforts in Somalia. Charges were laid in connection with Arone’s torture and murder and the first accused to be tried was Private Elvin Kyle Brown (Brown).

The General Court Martial of Private Brown (the Brown court martial) led to three applications by the Canadian Broadcasting Corporation (the CBC). The applications are for judicial review pursuant to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] (the Act). Two applications concern decisions made by Judge Advocate Lieutenant-Colonel J. S.T. Pitzul (the Judge Advocate) on February 14, 1994 and February 22, 1994 wherein he ordered bans on the publication of certain evidence and of the exhibits filed during the Brown court martial. The third application concerns a decision made by the Judge Advocate on February 14, 1994 wherein he concluded that section 648 of the Criminal Code [R.S.C., 1985, c. C-46] applied to the Brown court martial.

By way of background, a brief description of court martial proceeding is in order. The Code of Service Discipline (the Code) is found as Parts IV to IX of the National Defence Act, R.S.C., 1985, c. N-5 (the NDA). The Code defines the standard of conduct to which military personnel and certain civilians are subject and provides for military tribunals to deal with offenders. Certain provisions of the Code are clarified and procedural details are provided in the Queen’s Regulations and Orders for the Canadian Forces [(1968 Revision)] (the QR&O).

Offences under the Code (service offences) are punishable whether they are committed in Canada or abroad and a person charged with a service offence may be tried outside Canada. Service offences include offences under the Criminal Code, as well as other offences which exist only in the military.

Under the Code, there are four types of courts martial. One is a General Court Martial, such as the Brown court martial. General Courts Martial take jurisdiction over the most serious offences and have the power to impose the most severe penalties. The main participants in a General Court Martial are the prosecutor, the Judge Advocate and a panel composed of the president and four other members (the panel). The prosecutor is responsible for making the case against the accused. The Judge Advocate officiates at the court martial and determines questions of law or mixed questions of fact and law. However, he is not a trier of fact. The role of the president is to ensure that the court martial is conducted in an orderly and judicial manner. The panel members are all senior officers. They determine the guilt or innocence of the accused by a majority vote and, if necessary, they impose a sentence.

Those who were charged in addition to Brown with offences related to the death of Arone (the related proceedings) will hereinafter be referred to collectively as the other accused. The related proceedings have unfolded as follows:

Accused	Charges	Trial Date	Status at Sept. 19, 1994
Private Brown: (Brown)	Second degree murder and torture	February 14, 1994	March 18, 1994, guilty of manslaughter, and torture. Sentenced to 5 years in prison and dismissal with disgrace from Her Majesty’s Service
Sergeant Gresty: (Gresty)	Negligent performance of a military duty	March 21, 1994	Acquitted on April 11, 1994
Sergeant Boland: (Boland)	Torture and negligent performance of a military duty	April 29, 1994	Acquitted on torture charge and pleaded guilty to negligence charge, sentenced to 90 days detention
Major Seward (Seward)	Unlawfully causing bodily harm	May 9, 1994	Acquitted on June 3, 1994
Master Corporal Matchee (Matchee)	Murder and torture	April 25, 1994	Proceedings terminated as Matchee was unfit to stand trial
Lieutenant-Colonel Mathieu (Mathieu)	Negligent performance of a military duty	May 30, 1994	Acquitted, on June 24, 1994
Private Brockelbank (Brockelbank)	Torture and negligent performance of a military duty	Originally February 28, 1994 Adjourned to Oct. 11, 1994	Pending

The Motions for Non-Publication Orders

During the Brown court martial, Boland, one of the other accused, was given the right to intervene to seek relief, pursuant to section 7, paragraph 11(d) and subsection 24(1) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter). He sought an order which would have entirely prohibited the publication or broadcast in any form of the proceedings in the Brown court martial until such time as Boland’s court martial was completed.

Counsel for Matchee also requested a non-publication order and was permitted to intervene for that purpose. The applications made by Boland and Matchee were supported by the prosecution. Of the remaining other accused, Brockelbank, Seward and Mathieu were not represented and took no position. Gresty did not oppose the applications.

Counsel for the CBC was given leave to intervene to oppose the granting of orders banning publication. Brown’s counsel also opposed on the basis that a non-publication order was not in his client’s interest.

The Non-Publication Orders

The Judge Advocate made the following two orders which were, to his knowledge, the first non-publication orders made by a Canadian court martial.

1.         The Non-Publication of Evidence—February 14, 1994

This court orders that the application for a temporary total ban on publication of the evidence at the trial of Private Brown be dismissed. This court, however, orders a ban on the publication of evidence at the trial of Private Brown, which directly or by necessary implication identifies Private Brockelbank, Sergeant Gresty, Sergeant Boland, Major Seward, Master Corporal Matchee or Lieutenant-Colonel Mathieu in the commission of an offense for which they have been charged and includes their name, rank and position held.

I turn now to the duration of the ban. It shall be temporary but remain in force and effect until the later of:

a.   the termination of proceedings of the trial by court martial of Private Brockelbank; or

b.   the termination of proceedings of the trial by court martial of Sergeant Gresty; or

c.   the formal disposition of charges against Sergeant Boland or the termination of proceedings by court martial in respect of Sergeant Boland; or

d.   the termination of proceedings of the trial by court martial of Major Seward; or

e.   the termination of proceedings by court martial on the issue of Master Corporal Matchee’s fitness to stand trial or if the termination of those proceedings results in Master Corporal Matchee standing trial by court martial then at the termination of proceedings of the trial by court martial of Master Corporal Matchee; or

f.    the termination of proceedings of the trial by court martial of Lieutenant-Colonel Mathieu.

This non-publication order will hereinafter be referred to as the evidence ban.

2.  The Non-Publication of Exhibits—February 22, 1994

After having considered the facts and circumstances of this case, the submissions of counsel, including the cases cited, it is the decision of this court based on the above reasons to:

…

b.   not provide copies of exhibits to members of the public including the media; and

c.   direct that the public including the media shall have access at appropriate times during adjournments as determined by the judge advocate to view the exhibits that have been placed before the court. The access is for viewing only. There is to be no reproduction of the exhibits in any way, shape, or form. They can be viewed, not handled, inspected, nor taken away. This direction applies until the termination of the proceedings of this court martial.

This non-publication order will hereinafter be referred to as the exhibit ban.

As a practical matter, the evidence and exhibit bans meant that, in its reports of the Brown court martial, the media could not identify the role played by any of the other accused in the events leading to Arone’s death. As well, the media could not publish the sixteen photographs taken during the torture of Arone. However, journalists were free to describe the photographs and other exhibits with the restriction that the identities of those depicted (other than Brown) could not be revealed.

According to the affidavit material filed by the CBC, the evidence ban prevented Michael McAuliffe, a CBC radio journalist, from preparing clear reports about the Brown court martial. He deposed in an affidavit sworn on March 9, 1994 that the ban:

… prevented me from properly discharging my functions as a journalist and has caused confusion in the minds of the public which may be leading the public to wrongly interpret the extent of involvement of certain co-accused to the detriment of those co-accused because the media is unable to properly identify the co-accused persons in this matter.

The exhibit ban also affected the CBC. In an affidavit sworn on March 9, 1994, Chris Waddell who is the Parliamentary Bureau Chief for CBC Television, stated that the exhibit ban:

… has prevented the Canadian Broadcasting Corporation from properly discharging its mandate under the Broadcasting Act as it is unable to convey to the public in a medium appropriate to television the evidence, including exhibits, which is before the General Court Martial and upon which a finding of guilt or innocence may be made.

In argument, counsel for the CBC noted that the exhibit ban discriminates against television broadcasters, because they rely primarily on pictures to present their news stories. Other media, which convey the news primarily through the printed and spoken word, are less affected by the exhibit ban.

The Issues

There are four issues to be addressed. They are:

Part A

1. Does a judge advocate have jurisdiction to make a non-publication order?

2. If jurisdiction exists, can such an order bind the civilian media?

3. If jurisdiction exists, were the orders justified in this case?

Part B

Did section 648 of the Criminal Code apply to the Brown court martial?

Part A

Issue I: Did the Judge Advocate Have Jurisdiction to Make the Non-Publication Orders?

The CBC submits that, although a judge advocate lacks jurisdiction to make non-publication orders, such orders could be made in the course of a court martial by the Federal Court of Canada or by a provincial court of record.

It was agreed in argument that a court martial is a statutory tribunal and an inferior court of record. It was also agreed that, at common law, inferior courts of record such as courts martial had inherent jurisdiction to issue non-publication orders as part of their duty to ensure that justice was done. Finally, counsel agreed that neither the NDA nor the QR&O contain any provisions which specifically authorize non-publication orders or which provide for a continuation of the common law jurisdiction which justified such orders.

Against this background, the issue is whether the inherent jurisdiction to make non-publication orders, which a court martial would have had at common law, has somehow been lost. The CBC submits that the common law jurisdiction has been lost and that an express statutory provision, described as a “saving provision,” is now required to preserve the common law jurisdiction. It finds that requirement in the case of Ryan v. The Queen (1987), 4 C.M.A.R. 563 (C.M.A.C.), at page 567 (Ryan). In Ryan, Pratte J. held that “[a] court martial is an inferior court. The chief distinction between superior and inferior courts is that, unless the contrary is shown, no matter is presumed to be beyond the jurisdiction of a superior court whereas nothing is presumed to be within the jurisdiction of an inferior court.” Based on this decision, the CBC argues that, since publication orders are not specifically mentioned and since there is no saving provision for the common law jurisdiction, the jurisdiction to make non-publication orders has been lost because it cannot be presumed to exist.

In my view, the Ryan decision concerned the jurisdiction of a General Court Martial over a particular offence. The issue for determination was whether the required nexus to the military could be found in the circumstances in which the offence had been committed. Notably, the Court was not concerned with and did not address the continuing existence or otherwise of inherent common law jurisdiction in a court martial. In these circumstances, I am not prepared to adopt the language in Ryan as authority for the demise of a judge advocate’s common law jurisdiction to make non-publication orders.

On the question of a saving provision, the CBC also submits that subsection 8(2) of the Criminal Code contains a saving provision and that the enactment of that section suggests that, for inferior courts of record, an express statutory provision is needed to continue the inherent jurisdiction which was previously available at common law. In his decision in Church of Scientology of Toronto et al. and The Queen (No. 6), Re[1] (Scientology), Watt J. used subsection 8(2) as the basis for his conclusion that Ontario provincial courts have jurisdiction to make non-publication orders. However, he was not called upon to consider whether the common law jurisdiction to make such orders would have continued to exist in the absence of subsection 8(2).

Subsection 8(2) provides that:

8. …

(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.

The CBC says that the fact that a saving provision appears in one statute (the Criminal Code) and not in another (the NDA) indicates that Parliament intended to omit it from the NDA. On this issue, reference was made by the respondents to the decision of Tidman J. of the Nova Scotia Supreme Court in R. v. Wood (D.A.) (No. 2) (1993), 124 N.S.R. (2d) 128. That case involved the separate trials of three men accused of a murder committed in the course of an armed robbery at a McDonald’s restaurant on Cape Breton Island. The Crown moved under subsection 8(2) for a total ban on the publication of all the evidence at the first trial pending the completion of the third trial. Opposing counsel on behalf of the CBC argued in that case that, because Parliament has enacted sections of the Criminal Code which contain specific provisions banning the publication of evidence, (subsections 486(3) [as am. by R.S.C., 1985 (4th Supp.), c. 23, s. 1] and (4) [as am. idem], 276.3(1) [as enacted by S.C. 1992, c. 38, s. 2], 517(1) [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 101(E)], 539(1) [as am. idem, s. 97] and 648(1)), subsection 8(2) could no longer be interpreted as a continuation of the common law jurisdiction to make non-publication orders. In its consideration of this submission the Court said [at page 131]:

This court must have control over its proceedings to ensure fairness in the trial process. It would be impossible to expect Parliament to legislate specifically every instance which would permit the court to exercise control over its proceedings in order to ensure fairness and integrity in the trial process. I thus cannot accept that it was the intention of Parliament to prohibit the court from granting a ban on publication of evidence at trials simply by not granting to the court such specific power in the Criminal Code. [Underlining added.]

In reaching his conclusion, Tidman J. relied on the Supreme Court of Canada decision in R. v. Jobidon, [1991] 2 S.C.R. 714, at page 738 where the Court made it plain that the common law continues in force in the Criminal Code “provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.”

There is no requirement for a saving provision in the NDA. Accordingly, absent an express provision displacing the common law jurisdiction and absent authority to the contrary, I have concluded that the inherent common law jurisdiction to impose a ban on publication continues to exist because it has not been taken away by statute and because, in concert with Tidman J., I cannot accept that Parliament intended to remove this important jurisdiction simply by omitting a reference to it in the NDA.

On the basis of this finding, judge advocates have jurisdiction to make non-publication orders whether court martial proceedings are held in Canada or abroad. In addition, because in this case the Brown court martial was held in Petawawa, there is a second ground for a finding that jurisdiction exists. It is clear that, in Ontario, in matters of criminal law (and counsel agreed that the Brown court martial involved matters of criminal law), subsection 8(2) expressly continues the common law inherent jurisdiction of inferior courts of record. Accordingly, for both these reasons, the Judge Advocate had jurisdiction to order the evidence and exhibit bans in the Brown court martial.

The CBC also argued that, because section 302 of the NDA does not permit a court martial to punish for contempt, it can be inferred that a court martial is without jurisdiction to issue non-publication orders because they could only be enforced in contempt proceedings. In my view, this argument is defeated by section 118 of the NDA which clearly permits a court martial to punish the breach of a non-publication order.

In view of these conclusions, it is unnecessary to decide whether the “gap rule” found as article 101.07 of the QR&O confers jurisdiction to make non-publication orders although I should note that I would have been reluctant to base my decision on a rule of procedure. Further, it is unnecessary to decide whether jurisdiction exists, as the respondents suggest, because a court martial is a court of competent jurisdiction under subsection 24(1) of the Charter. However, I am bound to note that this argument would probably not have been successful in view of the Supreme Court’s decision in Mills v. The Queen, [1986] 1 S.C.R. 863. At pages 954-955 the Court appears to make it clear that, for inferior courts of record, jurisdiction pursuant to subsection 24(1) does not extend to the granting of prohibition orders such as the evidence and exhibit bans.

Issue II—Did the Judge Advocate Exceed his Jurisdiction?

The CBC has respected the terms of the evidence and exhibit bans but submits that, in law, they do not bind the civilian media. This is so, it is argued, because a court martial’s jurisdiction is limited by section 60 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60] of the NDA and covers only the enumerated military and civilian personnel who are subject to the Code. As the CBC is not listed in section 60, the argument is that a court martial is without jurisdiction to control the CBC’s conduct.

This submission must fail. On a plain reading, section 60 speaks only about who can be charged with an offence under the Code. It has no bearing, in my view, on the extent of a judge advocate’s jurisdiction. I am therefore not prepared to read section 60 as a limitation on a judge advocate’s inherent common law jurisdiction to make non-publication orders which would operate effectively to protect the integrity of the court martial process. It is trite to say that non-publication orders would be wholly ineffective, at least in Canada, if they did not bind the civilian media. Accordingly, in the absence of a contrary authority or statutory provision, I have concluded that the Judge Advocate at the Brown court martial had jurisdiction to make an effective non-publication order which bound the civilian media.

Issue III—Was the Order Justified?

In this context, it is appropriate to recall the scope of judicial review. In respect of the evidence and exhibit bans, subsection 18.1(4) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act requires a determination about whether the Judge Advocate erred in law in making the order or about whether he based his decision on an erroneous finding of fact made in a perverse or capricious manner without regard for the material before him.

This judicial review is based on the facts known to the Judge Advocate at the time the evidence and exhibit bans were made. In February of 1994, the Brown court martial had been reconvened and the Judge Advocate fairly recognized that the media coverage had been widespread and “unprecedented in terms of focusing attention on the Canadian military and its justice system.”[2] The media coverage was both understandable and desirable. The Canadian population had been deeply outraged and angered by the death of Arone at the hands of Canadian peacekeeping forces. The Judge Advocate recognized that Canadians, including those in the military, were intensely interested in the courts martial of those implicated in Arone’s death.

The Judge Advocate also believed in February 1994 that the Brown court martial was the first of seven related proceedings which would all be convened by May 1994. Although he was aware of the likelihood that Matchee might be found unfit to stand trial, that finding had not been made. The Judge Advocate knew, as well, that there would be a commonality of witnesses called by the prosecution to testify at the courts martial of the other accused and that three of the other accused would testify during the Brown court martial. The panel members for the courts martial of the other accused had not been identified when the evidence and exhibit bans were imposed. Finally, it appeared to the Judge Advocate that the exhibits from the Brown court martial, and, in particular the photographs, might not be entered in evidence in all the related proceedings.

In his reasons justifying the non-publication orders, the Judge Advocate acknowledged that he was faced with “a direct conflict in this case between a right and a freedom both guaranteed by the Charter.”[3] He recognized the importance of paragraph 2(b) of the Charter and also the paramount value of an accused’s right to a fair trial which is protected in section 7 and paragraph 11(d) of the Charter. He applied the test in R. v. Oakes, [1986] 1 S.C.R. 103 and rejected the total ban sought by the applicants in favour of the more limited terms found in the evidence and exhibit bans.

It is noteworthy that the CBC does not criticize the analysis undertaken by the Judge Advocate in crafting the exhibit and evidence bans. Rather, the CBC’s position is that the Judge Advocate erred in failing to give due consideration to the fact that the panel members are highly disciplined military officers of senior rank. Though not legally trained, panel members perform some of the functions, such as sentencing, normally reserved for judges in civilian criminal courts. For these reasons, the CBC submits that they can be expected to exercise self-censorship in respect of press reports of related proceedings. According to the CBC, senior military officers did not need the non-publication orders to ensure that they adhered to their oaths and discharged their duty to decide cases on the evidence before them.

These submissions are based on a recognition that, in normal circumstances, civilian juries can be trusted to honour their oaths and to respond to judicial admonitions to decide cases based only on the evidence before them.[4] Accordingly, the CBC argues that even more can be expected of a panel of officers. However, I cannot say that the Judge Advocate acted in a perverse or capricious manner in rejecting the CBC’s submissions. I recognize his concern that, given the intense interest in this case, even senior officers might find it impossible to ignore information in circulation outside the courtroom. Further, the CBC’s submissions did not address the Judge Advocate’s concern that witnesses of lesser rank could not be expected to disregard media publications.

In dealing with these submissions, the Judge Advocate rejected the CBC’s suggestion that prospective panel members and witnesses be “cut off” from all media by his order. This rejection was justified. Because panel members for the related proceedings had not yet been identified, the suggestion was impractical. In addition, to be effective, the order would have had to prohibit all senior officers who were prospective panel members from discussing any of the related proceedings. Such an order would have been unrealistic and unenforceable and, for these reasons, would not have provided meaningful protection for the fair trials of the other accused. The CBC also suggested deleting faces from the photographs as a means of avoiding the need for a non-publication order. I agree with the Judge Advocate that this would not have been a viable solution. It appears to me that faces are not the only means of identifying those portrayed in the photographs.

The CBC also alleges that the Judge Advocate erred in applying the wrong standard to justify the need for a non-publication order. In Scientology, Watt J. stated that the publication of accounts of related proceedings could be suspended at common law “where such publication may impair the actual or apparent fairness of the trials of such co-accused thereafter taking place”[emphasis added][5] (the Scientology standard). However, the CBC argues that the standard is now more stringent and has been set out by Dubin C.J.O. in Canadian Broadcasting Corp. v. Dagenais (1992), 12 O.R. (3d) 239 (C.A.) (Dagenais). That case did not concern related “real life” proceedings. Rather, at issue was whether an injunction should be issued to temporarily ban the airing of the CBC’s “The Boys of St. Vincent” program pending the completion of four criminal trials of accused charged with abuse of young boys in Catholic schools. The program was a fictionalized drama. In his decision, at page 246, Dubin C.J.O. articulated the following test “no injunction should be granted unless there is a real and substantial risk that a fair trial would be impossible” [emphasis added] (the Dagenais standard). The higher standard may have been imposed in Dagenais because that case dealt with the publication of a fictionalized television program.[6] It was rejected as imposing too high standard in a case involving related proceedings. However, the CBC’s position is that Dagenais is the applicable law and that the Judge Advocate failed to adopt that standard in his analysis. It is said that, had he done so, he would have been compelled to refuse the non-publication orders.

In my view, the Scientology standard is more appropriate when the issue concerns the publication of related proceedings. However, regardless of which standard is the appropriate standard, I have concluded from reading the Judge Advocate’s decisions of February 14 and 22, 1994 in their entirety that he believed that there was a real and substantial risk that a fair trial would be impossible without the non-publication orders. He clearly apprehended a risk which met the Dagenais standard and, for this reason, whichever standard applies, he committed no error in law.

Conclusion

For all these reasons, I am unable to conclude that the Judge Advocate committed a reviewable error under the Act in imposing the evidence and exhibit bans to protect the fundamental right of the other accused to a fair trial.

Part B

Section 648 of the Criminal Code

The section reads:

648. (1) Where permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published, after the permission is granted, in any newspaper or broadcast before the jury retires to consider its verdict.

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

(3) In this section, “newspaper” has the same meaning as in section 297.

Counsel for both parties agreed that, contrary to the Judge Advocate’s finding, section 648 of the Criminal Code does not apply in a court martial proceeding. I accept their submission and will therefore make a declaration to that effect. However, in view of my earlier findings on the issue of jurisdiction, I have concluded that it is within the jurisdiction of a judge advocate in a court martial to make an order which is similar to or identical to the non-publication order codified in subsection 648(1) of the Criminal Code.

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