September 17, 2019
R v Sagmoen 2019 BCSC 1720

The accused, Curtis Sagmoen, was before the court on a four-count indictment, alleging that on August 27 and 28, 2017, he masked his face with intention to commit an indictable offence, intentionally discharged a firearm, being reckless as to the life or safety of another person, used a firearm while threatening the complainant or during flight after threatening the complainant, and uttered threats. 

Before the trial commenced, Crown sought an order banning the publication of the identity, or any information that might tend to identify Witness A, who was the complainant in this matter. The application was made on notice to the media, and not opposed by the media or by defence. That publication ban was granted and it remains in place indefinitely. 

The defence then sought a ban on the publication of any of the evidence or submissions on a voir dire, and any subsequent voir dires, which are expected to be heard later this year and which relate to alleged breaches of the s. 8 and s. 9 Charter rights of the accused. Notice had not been given to the media of that application and members of the media sought to respond to that application.

During the statement voir dire, two members of the media applied for access to exhibits. Those applications were put over to be heard with the application for the publication ban.

Madam Justice Beames gave her oral reasons for judgment:

The evidence before me on this application is limited to the evidence I heard in the voir dire, an affidavit filed last week detailing the extensive media coverage of this case up to the commencement of the voir dire, and an affidavit filed yesterday affirmed to by Corporal Kilborn of the RCMP South East District Major Crime Unit. In addition, I have some indication from submissions by Crown counsel with regard to the statement or statements made by the complainant concerning her description of the person who she says threatened her and some words that person spoke.

…there is evidence, in the affidavit of Corporal Kilborn, of risk of serious harm to other witnesses and subjects on other investigations, and a risk to ongoing investigations, if the names, or pseudonyms, for those people, who are named in the warned statements given by the accused, were to be published at this time. Crown, defence, and counsel for the media parties agree that those names should be the subject of a publication ban.

…I am not satisfied a publication ban on the statement voir dire is necessary to prevent a serious risk to the proper administration of justice. Consequently, the application for the ban on publication of the evidence and the submissions on the statement voir dire, and on this application, including my reasons, is dismissed, except that there will be a ban on the publication of the names BB, CC, DD, EE, FF, GG, HH, and II.

…I am prepared to grant the media access to many of the exhibits filed on the statement voir dire. However, in this case, the main issue at trial will be identification. There is a very real risk, in my view, of allowing release of the video and audiotapes which record the voice of the accused and photographs of articles of clothing seized from his residence and marked as Exhibit AA on the voir dire, due to the risk of witness tainting if those visual and audio exhibits are published.

Balancing the interests at stake in this case, I will order that the media is entitled to obtain copies of all of the exhibits on the voir dire, except Exhibit O, which is covered by the ban imposed last week concerning the identity of Witness A, and Exhibit AA, which is the package of photographs of articles of clothing.

With respect to the audio and video recordings, their release to the media is on the condition that the audio recordings and video recordings may only be broadcast and/or published if the voice of Mr. Sagmoen is distorted so as to be unrecognizable. I do not find it necessary, given the photographs already in the public domain and the nature of the expected identification evidence to be led at trial, to impose any condition with respect to pixilation of Mr. Sagmoen’s image.