August 22, 2019
R v BS and KJ 2019 OCJ Ruling on Pub Ban
The two young offenders in this matter were originally charged with first degree murder in the homicide of Shaun Yorke. Two adult offenders were also charged in relation to the same offence. It is the theory of the Crown that all four males acted in concert to affect a home invasion robbery, which ultimately resulted in the victim’s death.
On May 16, 2019, the two youths appeared before the court and entered guilty pleas to the lesser-included offence of manslaughter in relation to their roles in the death of Mr. Yorke. No facts were presented to the court at the time of the plea, as the Crown indicated that they would likely be seeking a publication ban relating to any facts that referenced the adult accused or specific details relating to the homicide.
The two young offenders were scheduled to complete their sentencing on September 6th, 2019. The preliminary hearing for the two adult accused is set to commence in November 2019, with further dates into December and then January 2020. No dates have been set therefore in relation to a trial in that matter.
The Crown was seeking a publication ban covering the majority of the facts to be referenced during the sentencing of B.S. and K.J. Counsel for both B.S. and K.J. took no position on the matter and did not elect to attend or participate in the hearing. Counsel for the two adult accused supported the application.
Katzsch J. states:
…a publication ban is not necessary in order to protect the fair trial rights of the two adult accused. The degree to which the fair trial rights of the adult accused may be affected is very much open to debate at this stage and I have difficulty concluding that the risk meets the test of being a real and substantial one.
Given the passage of time between this proceeding and any potential trial for the co-accused, it seems highly likely that other events will capture the public’s attention and affect the public’s recollection of these proceedings. This conclusion is also supported by the relatively small amount of media attention attracted by this case at this stage.
Katzsch J. goes on to say:
I further find the deleterious effects of the publication ban outweigh any salutary effects. The public has a right to know the facts in relation to these proceedings and a right to fairly evaluate whether justice has been done. Open courts are found at the core of democratic societies and imposing a publication ban in this matter would result in an infringement of constitutional rights that is simply not justified in the circumstances.