R. v. Mack (D.R.), 2006 ABQB 324

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 01, 2006
• Citations: 2006 ABQB 324;(2006), 458 A.R. 43 (QB)

R. v. Mack (D.R.) (2006), 458 A.R. 43 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. SE.046

Her Majesty the Queen (Crown) v. Dax Richard Mack (defendant)

(040452138Q1; 2006 ABQB 324)

Indexed As: R. v. Mack (D.R.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

May 3, 2006.

Summary:

The accused was charged with murder. He sought disclosure of, inter alia, all police records relating to criminal investigations or occurrence reports respecting two Crown witnesses. One witness (Love) alleged that he had provided information respecting the offence to police on the express assurance that a "secret" police file relating to Love's alleged involvement in the importation of supplements and steroids during a period of time when he was an auxiliary officer. He sought, inter alia, a temporary ban upon all forms of publication of any testimony relating to allegations of importation by him of supplements or steroids and investigations relating thereto so as to allow him to pursue the matter in his civil action against the police.

The Alberta Court of Queen's Bench granted the temporary publication ban.

Editor's Note: this case was originally subject to a publication ban which has now expired.

Criminal Law - Topic 4490

Procedure - Trial - Publicity restrictions (incl. ban on publication of names) - The accused was charged with murder - He sought disclosure of, inter alia, all police records relating to criminal investigations or occurrence reports respecting two Crown witnesses - One witness (Love) alleged that he had provided information respecting the offence to police on the express assurance that a "secret" police file relating to Love's alleged involvement in the importation of supplements and steroids during a period of time when he was an auxiliary officer - He sought, inter alia, a temporary ban upon all forms of publication of any testimony relating to allegations of importation by him of supplements or steroids and investigations relating thereto so as to allow him to pursue the matter in his civil action against the police - He argued that use or publication of any aspect of the matter in the course of this trial would cause irreparable harm to his reputation and would jeopardize his employment - The Alberta Court of Queen's Bench granted the temporary publication ban - The open justice requirement was a vital component in ensuring public confidence in the integrity of the justice system - However, it was not absolute - There was evidence which raised the prospect of a serious risk to the administration of justice - The ability to raise the Charter arguments in relation to witness privacy, however novel, was a matter of importance to members of our community upon whom the police had to rely to provide information on a daily basis - Foreclosing the witness from pursuing an effective determination of the issues raised here would have a serious chilling effect on witnesses who might consider coming forward in other cases - Not only would they conclude that no assurance of privacy by police could be considered to be reliable, but also that there would be no real recourse if such assurances proved to be ineffective - There was no reasonably available alternative measure to prevent the risk - See paragraphs 22 to 45.

Evidence - Topic 16

General and definitions - Ban on publication - [See Criminal Law - Topic 4490 ].

Cases Noticed:

R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300; 71 C.C.C.(3d) 53 (C.A.), refd to. [para. 6, footnote 1].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 6, footnote 1].

R. v. Szczerba (K.M.) et al. (2002), 321 A.R. 102 (Q.B.), refd to. [para. 6, footnote 1].

R. v. Spurgeon (D.) (1994), 148 A.R. 73 (Q.B.), refd to. [para. 6, footnote 1].

R. v. Fudge (T.M.), [1999] O.T.C. Uned. 782 (Sup. Ct.), refd to. [para. 6, footnote 1].

Johnson v. McKay et al. (1999), 187 Sask.R. 294 (Q.B.), refd to. [para. 6, footnote 1].

Regina (City) Police Service v. McKay - see Johnson v. McKay et al.

R. v. O'Carroll, [2000] O.T.C. 548 (Sup. Ct.), refd to. [para. 6, footnote 1].

R. v. Toms, [2000] O.J. No. 5612 (Sup. Ct.), refd to. [para. 6, footnote 1].

R. v. Innocente (D.J.) et al. (2003), 217 N.S.R.(2d) 228; 683 A.P.R. 228 (S.C.), refd to. [para. 6, footnote 1].

R. v. R.L.F. (2003), 350 A.R. 310 (Prov. Ct.), refd to. [para. 6, footnote 1].

R. v. Prigotzke (T.K.), [2005] A.R. Uned. 696 (Q.B.), refd to. [para. 6, footnote 1].

R. v. Bottineau, [2005] O.J. No. 4034 (Sup. Ct.), refd to. [para. 6, footnote 1].

R. v. O'Connor (H.P.) (1993), 31 B.C.A.C. 173; 50 W.A.C. 173; 22 C.R.(4th) 273 (C.A.), refd to. [para. 13].

R. v. Bernardo, [1995] O.J. No. 246 (Gen. Div.), refd to. [para. 14].

R. v. Bernardo, [1995] O.J. No. 1472 (Gen. Div.), refd to. [para. 36].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 38].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1, refd to. [para. 38].

Counsel:

J. Steven Koval, Q.C. (Alberta Justice), for the applicants;

David H. Abbey and Larry Fleming (Abbey Hunter Davison Spencer), for the defendant;

Deborah C. Babiuk-Gibson (Justice Canada), for the R.C.M.P.;

Thomas M. Engel (Engel Brubaker), for Jay Love and Mike Argueta;

Matt Woodley (Reynolds Mirth), for the media.

This application was heard on April 26 and May 1, 2006, before Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on May 3, 2006.