R. v. Stobbe (M.J.), (2011) 277 Man.R.(2d) 65 (QB)

• Judge: Martin, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 02, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 277 Man.R.(2d) 65 (QB);2011 MBQB 293

R. v. Stobbe (M.J.) (2011), 277 Man.R.(2d) 65 (QB)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. MY.009

Her Majesty The Queen (applicant) v. Mark Jacob Stobbe (accused/respondent)

(CR 08-01-28290; 2011 MBQB 293)

Indexed As: R. v. Stobbe (M.J.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Martin, J.

December 2, 2011.

Summary:

The accused was charged with second-degree murder of his wife. He brought a pre-trial motion to have the charges stayed citing a prosecutorial abuse of process in the manner in which the charges were laid (the s. 7 motion). The accused also brought a related disclosure motion. The Crown objected and sought a ban on publication of the accused's motions (the publication ban motion) and a publication ban respecting the publication motion itself (Criminal Code, ss. 648(1) and 645(5)). The media opposed the publication ban motion.

The Manitoba Court of Queen's Bench held that a publication ban under the Criminal Code provisions was not mandated. However, on the basis of a Dagenais/Mentuck analysis, the court issued a temporary ban on publication respecting the s. 7 motion and disclosure motions and all related materials until such time as the jury retired to deliberate. A ban with respect to the ban on publication motion was not warranted, except for any references therein to the accused's motions.

Editor's Note: This case was subject to the following restriction on publication: "Pursuant to an order of this court, as noted herein, there is a ban on the publication of portions of these reasons for judgment until such time as the accused in respect of whom the proceedings are held is tried and the trial is ended". By email dated May 4, 2012, the court advised that the trial had ended, thus the following decision could be published.

Civil Rights - Topic 1859.2

Freedom of speech or expression - Limitations on - Publication bans - [See first Criminal Law - Topic 4348 ].

Civil Rights - Topic 2444

Freedom of the press - Lawful abridgment of - Trial publicity - [See first Criminal Law - Topic 4348 ].

Civil Rights - Topic 2490.1

Freedom of the press - Limitations - Criminal matters - Publication ban - [See first Criminal Law - Topic 4348 ].

Courts - Topic 1404

Administration - Public access to judicial proceedings (incl. court records) - The Manitoba Court of Queen's Bench reviewed the recent Supreme Court of Canada jurisprudence on the open court principle - See paragraphs 3 and 4.

Criminal Law - Topic 4348

Procedure - Jury - Evidence - Prohibition against publication of information obtained in jury's absence - Section 648(1) of the Criminal Code restricted publication of rulings or proceedings conducted by the trial judge in the jury's absence until the jury retired to consider its verdict - Section 645(5), which was enacted after s. 648 was already in effect, allowed a judge, before the jury was selected, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it was sworn - The Manitoba Court of Queen's Bench discussed the meaning and application of ss. 648 and 645(5) - The court rejected the Crown's suggestion that ss. 648 and 645(5) effectively mandated an automatic blanket prohibition on the publication of any pre-trial motions until the jury was sequestered to deliberate - Rather, the court preferred the approach in R. v. Sandham (Ont. S.C.J. 2008), that ss. 645(5) and 648(1) combined together to create an automatic ban only where the matter before the court was one that would ordinarily or necessarily be dealt with by the trial judge in the absence of the jury after it was sworn (i.e., after the trial started) - Such matters would include disclosure motions; Corbett applications; motions dealing with admissibility of evidence whether statements, photographs, wiretap matters, search warrant, character, demeanour, similar fact, etc.; and some Charter issues - See paragraphs 12 to 52.

Criminal Law - Topic 4348

Procedure - Jury - Evidence - Prohibition against publication of information obtained in jury's absence - The accused brought a pre-trial disclosure motion and a s. 7 Charter motion seeking to have murder charges stayed citing prosecutorial abuse of process in laying the charge - The Crown objected and sought a ban on publication on the accused's motions and on the publication ban motion itself (Criminal Code, ss. 645(5) and 648(1)) - The media opposed the publication ban - The Manitoba Court of Queen's Bench held that the s. 7 Charter motion was not caught within the ambit of s. 645(5) as it was not a motion which would ordinarily or necessarily be dealt with in the absence of the jury after it had been sworn (i.e., after the trial started) and hence did not trigger the mandatory ban on publication under s. 648 - The ban on publication motion and the disclosure motions were of similar ilk and also did not trigger s. 648 - However, the court, applying a Dagenais/Mentuck analysis, held that a temporary ban on publication respecting the s. 7 motion and disclosure motions and all related materials was warranted until such time as the jury retired to deliberate - A ban with respect to the ban on publication motion was not warranted, except for any references therein to the accused's motions - See paragraphs 16 to 77.

Criminal Law - Topic 4490

Procedure - Trial - Publicity - Restrictions - [See both Criminal Law - Topic 4348 ].

Criminal Law - Topic 4492

Procedure - Trial - Restrictions on publications affecting fairness of trial - [See both Criminal Law - Topic 4348 ].

Cases Noticed:

Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 19; 411 N.R. 23; 2011 SCC 2, refd to. [para. 3].

R. v. Regan (G.A.) (1997), 174 N.S.R.(2d) 28; 532 A.P.R. 28 (S.C.), refd to. [para. 21].

R. v. Valentine (2009), C.C.C.(3d) 120 (Ont. S.C.J.), refd to. [para. 21].

R. v. Cheung (D.) et al. (2000), 279 A.R. 201; 2000 ABQB 905, refd to. [para. 23].

R. v. Trang (D.) et al. (2001), 295 A.R. 250; 2001 ABQB 437, refd to. [para. 23].

R. v. Ross, 1995 CarswellOnt 3173 (Ont. C.J.), refd to. [para. 25].

R. v. Curtis (1991), 66 C.C.C. (3d) 156 (Ont. Gen. Div.), refd to. [para. 25].

R. v. Sandham (2008), 248 C.C.C.(3d) 543; 2008 CarswellOnt 9319 (Ont. S.C.J.), refd to. [para. 25].

Toronto Star Newspapers Ltd. et al. v. Canada et al., [2010] 1 S.C.R. 721; 402 N.R. 206; 482 A.R. 66; 490 W.A.C. 66; 2010 SCC 21, refd to. [para. 30].

R. v. Durrani (A.) (2008), 247 O.A.C. 189; 94 O.R.(3d) 350; 2008 ONCA 856, refd to. [para. 44].

R. v. L.W.T. (2008), 307 Sask.R. 246; 417 W.A.C. 246; 2008 SKCA 17, refd to. [para. 45].

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. 53].

CTV Television Inc. et al. v. R. et al. (2006), 208 Man.R.(2d) 244; 383 W.A.C. 244; 214 C.C.C.(3d) 70; 2006 MBCA 132, dist. [para. 54].

R. v. Hogg - see CTV Television Inc. et al. v. R. et al.

Canadian Broadcasting Corp. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 65; 411 N.R. 75; 2011 SCC 3, refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 645(5), sect. 648(1) [para. 12].

Counsel:

Wendy Dawson, Q.C., and Autumn Netting, for the Crown;

Timothy Killeen and Shannon McNicol, for the accused/respondent;

Robert Sokalski, for CTV Inc., Canadian Broadcasting Corporation, FPCN General Inc. trading as Winnipeg Free Press ("media" herein).

These motions were heard before Martin, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on December 2, 2011.