Pub Bans and Sealing Orders

R. v. McClintic 2010 ONSC 2944

Ms. McClintic and the co-accused, Mr. Rafferty, were charged with first degree murder. Ms. McClintic’s trial took place prior to Mr. Rafferty’s preliminary hearing. Ms. McClintic pleaded guilty to and was convicted of the first-degree murder of Victoria Elizabeth Stafford, and based on an agreed Statement of Facts, was sentenced to life in prison. Mr. Rafferty was seeking the publication ban on the basis that his fair trial rights would be adversely affected.

A media coalition, represented by Iain MacKinnon was granted intervenor status and argued against the granting of a publication ban.

Justice McDermid applied the two-part Dagenais/Mentuck test and, with regards to the first part of the test, states at para. 27:

…with respect to the evidence about the circumstances giving rise to and surrounding the murder of Victoria Elizabeth Stafford, I believe a publication ban is necessary in order to prevent a real and substantial risk to the fairness of Mr. Rafferty’s trial.

McDermid J. then states, at para. 29, that “the mere fact of extensive pretrial coverage is not sufficient in and of itself to justify a ban”. However, he goes on to state at para. 35:

Some of the information that was adduced before me on April 30, 2010, namely the circumstances surrounding the murder of Victoria Elizabeth Stafford, will be the subject of evidence led at Mr. Rafferty’s preliminary inquiry and trial. I find that if that information were published in advance of his trial there would indeed be a substantial risk to the fairness of his trial and that there are no reasonably available alternative measures that would prevent the risk.

As to the second part of the test, whether the salutary effect of the publication ban outweigh the deleterious effects to the free expression of the media, McDermid J. finds, at para. 39:

…the salutary effects of the temporary publication ban I am about to impose outweigh the deleterious effect to the public’s right to know and the media’s right to free expression for the following reasons:

• The ban is temporary.

• It withholds from the public only matters that in my opinion are likely to create an indelible and prejudicial impression in the minds of members of the public that is unlikely to be dispelled by judicial instruction or alternative measures.

• The ban permits the publication and broadcasting of the huge majority of what was contained in the Agreed Statement of Facts upon which the guilty plea was founded.

• It preserves Mr. Rafferty’s constitutional right to a fair trial.