December 16, 2017
R v Millard and Smich 2015 ONSC 7561

This decision from 2015 was as a result of a pre-trial motion, where both defendants asked for a publication ban on all evidence adduced at the Bosma trial. The trial judge denied the request, but imposed a pub ban over all pre-trial motions under s. 648, until the end of the trial in the Laura Babcock murder case. Since the motion for a pub ban over the Bosma trial was part of the pre-trial motions, the judgment was subject to the pub ban on all pre-trial motions.

Justice Goodman granted the publication ban, pursuant to s. 648(1) on the pre-trial motions until the end of the Laura Babcock trial on the grounds that it was:

[66]…reasonable to suggest that there is a greater likelihood that a potential juror in the applicants’ subsequent trial on the charges related to Babcock’s death, may become aware of the evidence arising out of the pre-trial applications in this case (Bosma) if reported by the media following the sequestration of the jury. Indeed, there was much evidence advanced during the numerous pre-trial motions including records or information regarding post-offence conduct, the quashing of various search warrants at several locations with emphasis on cellular devices and computers seized from the applicants; examination of these electronic devices, as well as extensive evidence surrounding the Eliminator. A good deal of this evidence will not be heard by the jury in this case…

Goodman J. went on to state:

[67] There is a direct correlation to the evidence ruled inadmissible in this case with their surrounding details and its potential application to the Babcock matter.

[69] …a high degree of prejudice exists from the nature of the pretrial motions and a potential juror’s deleterious impression from this evidence will be substantial. In my view, it cannot be dispelled by other reasonable means as outlined in Dagenais. A narrowly circumscribed remedy over pre-trial motions will meet the salutary objectives as provided in the jurisprudence.

[75] With respect to the pre-trial applications (currently subject to a publication ban), I am satisfied that the applicants have demonstrated the necessity to extend such a ban, at least until the conclusion of the Babcock trial.