Pub Bans and Sealing Orders

R. v. Haevischer 2013 BCSC 2014

The BC Supreme Court ruled that James Bacon, charged by separate indictment in the ongoing “Surrey Six” murder prosecutions, was not entitled to any publication ban in the trial of the other three accused, currently underway before a judge alone in Vancouver. The Court dismissed Bacon’s application notwithstanding his assertions that massive and sustained media coverage would, in respect of Bacon’s future trial, taint the jury pool and compromise the integrity of Crown witnesses.

Part of the Crown’s case on the Haevischer trial comprises a body of discreditable conduct evidence that was earlier ruled admissible. That evidence, which goes to motive in respect of the conspiracy charges, largely relates to the Red Scorpions gang, of which the Crown alleges the accused in the current trial along with Mr. Bacon were members, and the gang’s drug trafficking activities. The Crown will lead this evidence for narrative and context, as well as to advance the Crown’s theory of motive for the alleged offences.

In her ruling, Madam Justice Wedge states:

[17] The Media Respondents additionally contend that the publication ban, if granted, would render it impossible for them to meaningfully cover this trial. What would effectively amount to a blanket ban of a major criminal trial for a period of years is not the measured and proportionate response that Mr. Bacon maintains.

Madam Justice Wedge goes on to say:

[45] Although Mr. Bacon characterizes the ban as tailored, I do not agree that is the case.

[46] The discreditable conduct evidence that the Crown will elicit at trial is principally for the purpose of establishing motive on the part of the alleged co-conspirators — the Haevischer accused and Mr. Bacon alike — to commit the alleged murders. It is also advanced to prove that Mr. Bacon was one of the leaders of the Red Scorpions whose influence was such that his co-conspirators would commit murder at his behest. Mr. Bacon’s role in the conspiracy, as alleged by the Crown, is central to the proof of the motivation of the Haevischer accused and, thus, to the proof of their participation in the alleged murders. As I observed in the earlier publication ban ruling, it is simply not possible to unravel or isolate the evidence implicating Mr. Bacon from that implicating the Haevischer accused. As a result, were the ban to be ordered, the media would not be able to sensibly report the evidence without including the references to Mr. Bacon. The ban would also be of indeterminate duration, as a trial date has yet to be set for Mr. Bacon’s trial.

[47] In my view, the effect of the proposed ban on the public right to free expression would be substantial, and outweighs its salutary effects.