November 17, 2015
R v Clark 2015 ABQB 729

Sections 486.4(2.1) and (2.) are new provisions in the Criminal Code that came into effect in 2015. They expand the ability of the court to grant a publication ban on information that could identify the victim or a witness in certain designated sexual offences to banning information that could identify a victim who is under the age of 18 years, regardless of the nature of the offence.

Sections 486.4(2.1) and (2.2) state:

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

The media outlets, Global Television, Shaw Media, CTV Bell Media, the CBC and the Calgary Herald, argued that the preliminary inquiry Judge committed an error of jurisdiction in granting the ban on the following grounds:

– the application was purportedly brought to protect the siblings of the deceased child, which individuals do not fall within the definition of “victim” for the purpose of section 486.4(2.1);

– there wasn’t an appropriate exercise of discretion as there was no evidence before the Court nor did the Court perform the balancing of interests outlined in Dagenais; and

– Mr. Clark, as the accused, did not have standing to seek a publication ban under section 486.4 and it was not established that Mr. Clark’s counsel had standing to seek a ban on behalf of the deceased victim or the deceased victim’s siblings.

After citing the definition of victim as set out in section 2 the Criminal Code, Madam Justice Strekaf found:

…the siblings of the deceased child do not qualify as victims for the purposes of section 486.4 and, therefore, no application was properly before the Court on their behalf, nor was there jurisdiction to grant an order on their behalf.

Strekaf J. went on to find:

With respect to the deceased child, I am not satisfied that an application was properly brought before the preliminary inquiry Judge on his behalf. Mr. Fagan QC was identified at the outset of the preliminary inquiry as counsel for the Accused Jeromie Clark, who is charged with causing the death of John Clark. There is nothing on the record to indicate that he had any standing to represent the deceased child whose death his client was charged with causing.

Strekaf J. concludes:

Under section 486.4(2.1), the Judge had the jurisdiction on his own motion to make an order in respect of the deceased child directing that any information that could identify him not be published, broadcast or transmitted. However, in doing so, the Judge would have been required to perform a balancing exercise analogous to that contemplated in Dagenais.

I note that the Dagenais test would need to be modified as the interest potentially justifying the ban in Dagenais related to maintaining trial fairness…in the case of a publication ban under section 486.4(2.1), the rationale for the ban is not to maintain trial fairness but to protect the interests of a young victim under the age of 18 years.