Action No, 13078180001 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON ' BETWEEN: {oc HER MAJESTY THE QUEEN, ATTORNEY GENERAL OF CANADA AND TRAVIS VADER Respondents -and- CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC., GLOBAL NEWS, a ision of Corus Entertainment Inc., and CTV, a division of Bell Media Inc. Applicants WRITTEN SUBMISSIONS OF THE APPLICANTS Fred Kozak, Q.C. and Tess Layton Ashley Finlayson, Q.C. Reynolds Mirth Richards Farmer & LLP Alberta Justice and Solicitor General 3200-10180 101 Street Specialized Prosecutions Branch Edmonton, AB T5) 3W8 Suite 516, Brownlee Building Counsel for the Applicants 10365 - 97 Street Edmonton, AB TJ 3W7 Counsel for Her Majesty the Queen Brian Beresh, Beresh Alonei Millsap Barristers #300, 10110 ~ 107 Street Edmonton, AB T5J 114 Counsel for Travis Vader O'Neill Hurley O'KeeffePART I: INTRODUCTION {1] On September 13, 2016, this Court allowed the Applicants’ application to broadcast the oral synopsis of Justice D.R.G Thomas’ much anticipated decision in the high profile first degree murder case against Travis Vader (the “Broadcast Decision”). The Order of this Honourable Court permitted the Applicants to stream, share and transmit the trial decision on September 15, 2016 (the “Con n Decision”) live on the internet and through ra }, television and internet-based news services via one fixed but swiveling camera and one stationary microphone placed in the courtroom. The Broadcast Decision was the first of its kind in Alberta. [2] In oral reasons for the Broadcast Decision, your Lordship emphasized three important public policy considerations relevant to a decision of this nature in light of the overarching ‘openness principle applicable to all court proceedings. Firstly, that broadcast of the Court's final decision would provoke interest and raise public awareness in the R v Vader Convi nm Decision. Secondly, that supporting and strengthening the role of the accredited media in the justice system is in the public interest. Finally, that public awareness of the final resolution of this lengthy case will increase confidence in the justice system. [3] In light of the Application made by Mr. Vader for this Court to order a mistrial, the Applicants are of the view that a final resolution in this matter has not occurred. The public has a strong interest to once again witness a decision that may significantly impact the outcome of this case. [4] The Applicants apply for permission to broadcast, through live internet, television and radio feed, this Honourable Court's decision on Mr. Vader's mistrial application (the “Mistrial Decision”) scheduled to take place in open court on October 31, 2016. The Applicant's suggest that the same technical set up used by the Applicants during the Conviction Decision be used again, specifically, a single fixed but swiveling camera placed in the gallery accompanied by a single microphone placed on the bench in front of your Lordshiy [5] Mr. Vader takes no po: ion and the Crown is opposed to this application. The McCann family supports the application.PART Il: ARGUMENT [6] This Honourable Court confirmed that a Justice of the Court of Queen's Bench of Alberta has the discretion to grant the relief requested on this type of application as part of the Court's inherent jurisdiction. [7] This Court accepted the Applicant’s argument that its discretion with respect to the ial broadcast application should be exercised in accordance with Charter principles, and specifically, within the framework set out in R v Dagenais and R v Mentuck, often referred to as, the Dagenais/Mentuck test. Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835. Rv Mentuck, 2001 SCC 76 [Mentuck] [8] This decision is consistent with the Supreme Court of Canada’s reasoning in Re Vancouver Sun. 31] While the test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuk, supra); is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp v New Brunswick (Attorney General), supra, at para. 69); or under the roles of court, for example, a confidentiality order (Sierra Club of Canada v Canada (Minister of Finance), [2002] 2 ScR 522, 2002 SCC 41 (SCC)). The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp v New Brunswick (Attorney General), supra, at para 71. Re Vancouver Sun, 2004 SCC 43 at para 31. [9] Prohibiting the Applicants to broadcast the Mistrial Decision would be a restriction on the Applicant’s free expression, and would essentially constitute a public: n ban. The Dagenais/Mentuck test requires that a publication ban should be ordered only when: {a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and-3- (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. Mentuck, supra, at para 32. [10] The Applicant’s submit that the Dagenais/Mentuck test continues to be the appropriate analysis in determining this application to broadcast the Mistrial Decision. [11] The Crown opposes the within Application. Accordingly, the Crown bears the burden of displacing the general rule of openness. To successfully oppose this Application, the Crown. must first establish that broadcasting the Mistrial Decision would create a serious risk to the administration of Justice. If and only if the Crown satisfies this Court of the first branch of the test, the Crown must then prove that the salutary effects of preve ing broadcast outweigh the deleterious effects on free expression in this case. a. There is not a serious risk to the administration of justice [12] Although the Applicant's do not have the benefit of the Crown's arguments on this application, the Crown’s arguments on the last application for broadcasting the Conviction Decision were largely based on speculative harm. In the Court's reasons, your Lordship noted: | have considered the submission of Mr. Findlayson, Q.C., for the respondent Crown, but | am not convinced that allowing a fixed camera to record and then broadcast the proceeding will create a serious risk to the administration of justice. Most of the Crown’s argument in this case was to the effect that granting the application would cause a flood of such motions to descend upon the court. | am not convinced that this is a real risk. Certainly there is no evidence that convinced me that it will happen in the future. It isa purely speculative risk. [13] Canadian courts have consistently decided that speculative harm is not evidence of real risk, and cannot support an infringement on the right to free expression. [14] The Crown has not proffered any evidence that there is, or will be, a flood of similar applications to the courts. If the Crown points to this second application as evidence of the floodgates argument, a single subsequent application in the same matter does not constitute a “flood” of applications, especially where this type of relief was already granted, and where the circumstance involves facts and evidence consistent with the Court’s original reasoning.“4. [15] _ The British Columbia Supreme Court was faced with similar speculative risk in Reference re Criminal Code, s 293 on an application to broadcast proceedings in that matter. In considering the Dagenais/Mentuck test, the Court determined that lack of real, proven harm was fatal to the Attorney General's argument. Reference re Criminal Code, s. 293, 2010 BCSC 1351 at para 37. [16] Opponents of cameras in the courtroom often cite the following risks to the administration of justice: Disruption of courtroom proceedings; Negative effects on witnesses causing distraction, nerves and a reluctance to testify; Contamination of the jury; Potential for lawyers to grandstand; Negative impacts on the accused person; and, Increased pressure and burden on the judge. [17] _ As previously submitted, none of these risks are present in this case. There are no live witnesses, no jury, the lawyers will not be captured on camera so there is no potential for grandstanding, and Mr. Vader in support of our application. Finally, there is no increased Pressure or burden on your Lordship as this Court’s decision will be finalized in advance of the broadcast, and such decision will form part of the public record immediately upon its release. [18] Not only is there no real risk to the administration of justice, the evidence in fact supports a benefit to the administration of the justice. This is apparent in the evidence before the court in the sworn affidavit of Janice Johnston. [19] The sheer number of public viewers who watched the broadcast supports that this Court’s goal of raising public awareness of the decision in this case was achieved through broadcasting the Conviction Decision. The Facebook comments included in Ms. Johnston's affidavit are telling evidence that the Canadian public desires increased access to the justice system, supports transparency of court processes, and respects the open court principle. [20] _ Further, allowing broadcast is in line with the Court's ability to control its own process, and specifically, to control the narrative of its decision. There will likely be a number of-5- accredited media representatives in the courtroom who are authorized to live tweet the M ial Decision of this Court. The Applicants submit that a complete and accurate account of the Mistrial Decision in the voice of the Court broadcast to the public will create a stronger appearance of justice than a series of tweets captured in 140 characters or less. [21] In the Conviction Decision, your Lordship noted that broadcasting the Conviction Decision would educate the public of the workings of the justice system. A significant part of the justice system is the process by which criminal law is made, repealed or declared unconstitutional, and removed from the Criminal Code. As noted in the affidavit of Ms Johnston, the fact that unconstitutional law remains in the Criminal Code is likely an issue that unfamiliar to most Canadians. (22] Widespread public awareness of the Conviction Decision has already drawn significant public attention to this fatal flaw in our criminal justice system. The evidence supports that ed public dialogue on this issue has occurred in the press, and that this case has rec consistent extensive attention from journalists, academics, lawyers, politicians and laypersons since the Conviction Decision. The Applicants submit that public outcry relating to this very serious problem with the Criminal Code has the potential to cause positive change, a benefit that can at least partially br attributed to the Broadcast Decision, [23] _ This Court now has the opportunity to allow further beneficial public education of court process. Allowing the Applicants to broadcast the Mistrial Decision will shed light on how the justice system responds to ensure that justice is done. [24] Unfortunately, the Court's final goal of drawing attention to “the fact that a decision has finally been made in this matter” (as noted in the Broadcast Decision) has not yet fully been achieved. The Applicant submits that the Court clearly meant that the public has an interest in knowing first-hand the conclusion of this case. [25] The Mistrial Application has created public uncertainty and cast doubt upon whether Mr. Vader remains convicted of an offense. In the interests of continued openness and transparency, it is vital that the public have the opportunity to view what could be a pivotal-6- point in the R v Vader murder trial. in order to achieve the widest possible audience and ensure that all interested members of the public are informed, the decision should be broadcast. a. The salutary effects of preventing broadcast do not outweigh the deleterious effects on free expression [26] There are no benefits to preventing broadcast, however there are significant negative impacts on the Applicant in limiting the Applicant's right to free expression. The media is a conduit of information for the large population of the public that practically cannot attend the Mistrial Decision in person. Live broadcast represents the second best alternative to attendance in court. Preventing broadcast infringes our free expression to the extent that the majority of the population interested in the decision will not have the benefit of hearing and seeing the complete oral decision of this Court. [27] Secondly, your Lordship emphasized the role of the accredited media in effectively communicating court processes and relaying decisions made in varying levels of courts in Alberta to the public. This Honourable Court cited that “supporting and strengthening the role of the accredit id and professional journalistic community in the justice system is in the public rest”. (28] The public is undeniably a beneficiary of the Applicant's exercise of free expression, as recognized by this Honourable Court. This Court has confidence that the journalists in Alberta are skilled, professional, and capable of discharging their duty to inform the public of court process. Allowing the Applicant's to broadcast the Mistrial Decision upholds the public’s confidence that the media is accurately conveying court proceedings, and in particular, the conclusion of this highly scrutinized case. This process in turn strengthens confidence and respect for the justice system.PARTII: CONCLUSION [29] The Applicants submit that the Crown cannot meet the burden required to establish that there is a serious risk of harm to the administration of justice, nor can the Crown establish that the salutary effects of preventing broadcast outweigh the deleterious effects of limiting free expression. Accor igly, the Dagenais/Mentuck test fails, and the Applicants should be permitted to broadcast the Mistrial Decision of this Court. ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 19" DAY OF OCTOBER, 2016. REYNOLDS MIRTH RICHARDS & FARMER LLP Per: FRED KOZAK, at TESS LAYTGN Counsel for the Applicants 1708361 doe:October 19,2016