R. v. McClenaghan (M.A.), 2008 ABCA 141

• Judge: Hunt, Costigan and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 03, 2008
• Citations: 2008 ABCA 141;(2008), 429 A.R. 76 (CA)

R. v. McClenaghan (M.A.) (2008), 429 A.R. 76 (CA);

      421 W.A.C. 76

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.081

Her Majesty the Queen (respondent/appellant) v. Murray Archibald McClenaghan (respondent/respondent) and Canadian Broadcasting Corporation and Edmonton Journal, a division of Canwest Publishing Inc. (applicant)

(0603-0054-A; 2008 ABCA 141)

Indexed As: R. v. McClenaghan (M.A.)

Alberta Court of Appeal

Hunt, Costigan and Watson, JJ.A.

March 3, 2008.

Summary:

Following a trial by judge and jury, the accused was acquitted of murder and found not criminally responsible by reason of mental disorder on the included offences of manslaughter and possession of a weapon in the death of his business partner. The Crown appealed.

The Alberta Court of Appeal, in a decision reported [2008] A.R. Uned. 2; 2008 ABCA 8, allowed the appeal, set aside the acquittal and ordered a new trial. As part of that decision, the court ordered a provisional publication ban pursuant to s. 686(8) of the Criminal Code on the unpublished written reasons for judgment pending an application to vary its terms. The judgment was provided to counsel for the media to facilitate their ability to make such an application. Thereafter, the media applicants applied to have the provisional publication ban lifted.

The Alberta Court of Appeal allowed the application and vacated the provisional ban.

Editor's Note: The formerly "unpublished written reasons for judgment" referred to above may be found at: 437 A.R. 247.

Criminal Law - Topic 4490

Procedure - Trial - Publicity restrictions - Following a trial by judge and jury, the accused was acquitted of murder and found not criminally responsible by reason of mental disorder on the included offences of manslaughter and possession of a weapon in the death of his business partner - The Crown appealed - The Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial - As part of that decision, the court ordered a provisional publication ban pursuant to s. 686(8) of the Criminal Code on the unpublished written reasons for judgment - Media applicants applied to have the provisional publication ban lifted - The Alberta Court of Appeal allowed the application and vacated the provisional ban - The court was not persuaded that a continuation of the publication ban was necessary - The court stated that "the jury selection process, including challenges for cause, should be effective to disqualify any prospective juror who may show bias as a result of any publicity in this case. Moreover, members of a jury - instructed that their oaths bind them to decide the case solely on the evidence before them and not on extraneous matters - should be a sufficient safeguard for a fair trial. Additionally, the evidence produced by the applicants establishes that much of the material that the provisional ban was intended to protect has already been in the public domain for some time. The salutary effects do not, therefore, outweigh the deleterious effects to the free expression of those affected by the ban".

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 120 D.L.R.(4th) 12; 25 C.R.R.(2d) 1, refd to. [para. 4].

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; 2001 SCC 76, refd to. [para. 4].

R. v. White (M.J.) (2005), 376 A.R. 63; 360 W.A.C. 63; 2005 ABCA 435, refd to. [para. 5].

R. v. White (M.J.) (2006), 380 A.R. 188; 363 W.A.C. 188; 2006 ABCA 65, refd to. [para. 5].

R. v. Brint (1979), 14 A.R. 183 (C.A.), refd to. [para. 5].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 185 N.B.R.(2d) 81; 463 A.P.R. 81; 39 C.R.R.(2d) 189; 110 C.C.C.(3d) 193, refd to. [para. 5].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(8) [para. 2].

Counsel:

F.S. Kozak, Q.C., and S. Ward, for the applicants;

J.C. Robb, Q.C., for the respondent;

M.T. Duckett, Q.C., for the respondent, Murray Archibald McClenaghan.

This application was heard on March 3, 2008, before Hunt, Costigan and Watson, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered orally from the bench, for the court, by Hunt, J.A., on March 3, 2008, and filed in Edmonton, Alberta, on April 14, 2008.