KING’S BENCH FOR SASKATCHEWAN
Citation: 2022 SKKB 260
Dae: 2021129
Docket CRMAYT-00011-2022
Judicial Cente: Yorkion
BETWEEN
ODELIA AND NERISSA QUEWEZANCE
ACCUSED
- and-
HIS MAJESTY THE KING IN RIGHT OF THE
MINISTER OF JUSTICE FOR SASKATCHEWAN
CROWN
Counsel:
Deanna Harris, James Lockyer, Jerome Kennedy, K.C. for the accused
Katherine Roy Ministry of Justice & Atiomey General
Kelly Kaip for the Crown
Robert Sokalski Aboriginal Peoples Television Network
Sean Sinclair Canadian Broadcasting Corporation
JUDGMENT LAYH
NOVEMBER 29.2022
Introduction
in The judicial proceedings concerning Odelia Quewezance and Nerissa
Quewezance will surely be writ large in the annals of Saskatchewan's prominent court
cases. This decision concerns a small, but important, aspeet of the Quewezance sisters’
involvement in the criminal justice system that began nearly 30 years ago. That


2
involvement. according to legal counsel for all parties, may continue for a considerable
time into the future.
21 “This decision answers the question of whether, at the request of the
Crown. the court should order a publication ban on proceedings coming before the court
on January 17 and 19. 2023. On that date, the Quewezance sisters will seek interim
release from custody pending the Minister of Justice's [Minister] review of their
application alleging they were wrongfully convicted for the second degree murder of
Joseph DolT on February 25. 1993
13] The following is the sequence of inquiries 1 have addressed in the
Crown's application for a publication ban of the proceedings in the interim release
application
February 25, 1993 — The Murder of Joseph Dolff
The Quewezance Sisters — What has Happened in the Last 30 Years?
What is a Ministerial Review Under Section 696.1 of the Criminal Code?
The Application for Release Pending Ministerial Review
Should the Court Impose a Publication Ban?
Participants in the Application
Basic Principles
A Preliminary Position: The Relevance of Section 517(1) of the Criminal Code


Is an Order Necessary 10 Prevent a Serious Risk 10 the Proper Administration of
Justice?
The Salutary and Deleterious Effects of a Publication Ban
Rv Assoun — Is it Applicable?
Has a Constitutional Question Been Raised?
Conclusion

February 25, 1993 ~ The Murder of Joseph Dolff
[41 Odelia. now 50 years old. was bom on January 18. 1972 on the
Keeseekoose First Nation near Kamsack, Saskatchewan. She was 21 years old on
February 25. 1993 when 70-year old Joseph DolfT was murdered in his home. Odelia
and her sister, Nerissa, now 48 years old. bom September 14, 1974, were convicted of
second degree murder on February 4. 1994 and sentenced to life in prison with a 10-
year parole eligibility period. The sisters” cousin, Jason Keshane, then 15 years old.
pleaded guilty to second degree murder and was sentenced to five years in prison. The
Quewezance sisters” appeal of their convictions to the Saskatchewan Court of Appeal
was dismissed on October 4. 1995. The Supreme Court of Canada dismissed their
application for leave to appeal on April 18, 1996,
51 Mr. Doli met a violent death. The R.C.MP. found his body the morning
of February 25. 1993 in the bedroom of his home near the First Nation. He was stabbed
11 times in the chest with wounds to the heart, lungs, diaphragm and fiver. He was
stabbed three times in the abdomen, with a knife still in one wound, twice in the back
and onc in his left arm. Mr. Doll also had head and facial blunt force injuries.


4
including a fracture near his right eye. A phone cord was wrapped loosely around his
neck.
[0] The RCMP. took the Quewezance sisters into custody that moming.
After a police caution. both Odelia and Nerissa gave a number of statements (0 the
police. No videos of the statements were taken. Current legal counsel for the
Quewezance sisters now challenges how those statements were taken from young
Indigenous women held in Kamsack cells. particularly in light of intervening case law
proseribing the limits of voluntariness of an accused's statement (as for example stated
in Rv Oickle. 2000 SCC 38. [2000] 2 SCR 3).
mn Odelia and Nerissa testified at their trial before a jury. Their statements
were ruled to be voluntary and were admitted into evidence. The jury rejected their
counsels’ position that a conviction of manslaughter was appropriate and. instead.
entered a guilty verdict to second degree murder for each of them
The Quewezance Sisters ~ What Has Happened in the Last 30 Years?
181 With a parole eligibility of 10 years. one might have expected that the
Quewezance sisters would have been released as carly as 2004 10 live under conditions
specified by the Parole Board. That has not happened.
Odelia
191 Odelia attended St. Philips Indian Residential School on the First Nation
before transferring to the Qu'Appelle Indian Residential School in Lebret.
Saskatchewan. Her mother and stepmother both died from drug overdoses. She states
that she has suffered an intergenerational loss of identity and culture. Family violence.
alcohol abuse and suicide have deep roots in her family


[10] Odelia was granted day parole in 2001 and. in June 2004, was granted
full parole. Over the next six years. her parole was suspended several times for drug.
violations and for failing to report to her parole officer. In 2010, Odelia’s parole was
revoked afier she left her home. which she then apparently shared with her partner and
three daughters. She told the Parole Board she left because. “she had let family issues
build up to the point where she felt she needed time off” Odelia was denied day and
full parole at her next hearing in May 2017. although the Parole Board was “impressed”
with her “open and honest presentation.” In September 2018, she was authorized to go
on Unescorted Temporary Absences (UTA) but these privileges were cancelled two
‘months later afier she tested positive for a drug used to treat opioid addiction.
ny Since September 2020, Odelia has lived at Eagle Women's Lodge in
Winnipeg. Manitoba. an Indigenous facility that. pursuant to an agreement with the
Minister of Public Safety and Emergency Preparedness provides correctional services
for Indigenous offenders. In April 2022, the Parole Board granted Odelia day parole.
Nerissa
12 Nerissa also attended St. Philips Residential School on the First Nation
and then Qu'Appelle Indian Residential School in Lebret. Prior to her conviction for
second degree murder. Nerissa experienced considerable involvement in the criminal
justice system. Nerissa was raised in physically and verbally abusive environments for
much of her early life.
ns In 2003. Nerissa was granted day parole. While on parole. she was
arrested in Saskatoon. Saskatchewan for being “under the influence of alcohol.” She
gave her sister's name and spat at one of the officers. She received a 30-day sentence
for assault and obstructing an officer. In 2011, Nerissa was granted a UTA from


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Edmonton Institution but failed to return. She was arrested the next day in Yorkton.
Saskatchewan. pleaded guilty to resisting arrest and was sentenced 10 60 days.
[141 In 2013, Nerissa was granted day parole tolive in a residential substance
abuse treatment program. She left the program and was arrested in February 2014. Her
day parole was revoked. In June 2018, Nerissa was again given day parole and released
10 Anderson Lodge Community Residential Facility in Vancouver, British Columbia
[Anderson Lodge]. On March 30. 2019, Nerissa signed out of the Anderson Lodge and
did not return, remaining at large for more than two years. Nerissa was apprehended on
July 10,2021 and charged with being unlawfully at large. On December 23, 2021. her
parole suspension was cancelled. and she was released on day parole for the holiday
season. She was apprehended in Vancouver a week later for being at large and her
parole was suspended. Her parole was revoked in May 2022. She is currently in custody
at the Fraser Valley Institution for Women in Abbotsford. British Columbia. with no
reasonable prospect of parole.
1s) Both Odelia and Nerissa attended the instant hearing in Yorkton on
November 24, 2022, the first time they had seen each other in 18 years.
What is a Ministerial Review Under Section 696.1 of the Criminal Code?

[16] Counsel for the Quewezance sisters. James Lockyer, senior counsel for
Innocence Canada with the law firm Lockyer Zaduk Zeeh (Toronto. Ontario). having
reviewed the pre-trial and trial circumstances of their conviction. turned to's. 696.1 of
the Criminal Code, RSC 1985. ¢ C-46. This unique provision reads as follows:

696.1 (1) An application for miniserial review on the grounds of

miscarriage of justice may be made 1 the Minister of Justice by or on

behalf of a person wh has been convicted of an offence under an Act


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of Parliament... and whose rights of judicial review or appeal with

respect tothe conviction or finding have been exhausted.
17 Section 696.1(1) gives the federal Minister of Justice power to review a
conviction. like the Quewezances” conviction, to determine whether there may have
been a miscarriage of justice, often called a “wrongful conviction.” With the assistance
of Mr. Lockyer, Odeia and Nerissa followed Regulations Respecting Applications for
Ministerial Review — Miscarriages of Justice, SOR/2002-416 [ Regulations) and applied
on December 21. 2021 for a ministerial review of their conviction. Section 2 of the
Regulations details the voluminous materials that must accompany such an application.
118] Once the Minister receives an application, lawyers with the Criminal
Conviction Review Group [CCRG] assess the application and provide advice to the
Minister whether a remedy is warranted. In what Mr. Lockyer describes as “lightning
speed” (given his previous experience with such applications) in five months, in
correspondence dated June 2. 2022, external counsel for the Minister provided Justice
Minister David Lametti's response to the Quewezances” application, writing:

On behalf of the Minister of Justice, | am writing fo advise you that it

has been determined there may be a reasonable basis to conclude that

amiscaringe of justice likely occurred in this mater.

In accordance with sections A(1)@) and (2) of the Regulations

Respecting Applications for Ministerial Review — Miscarriages of

Justice, this matter will not proceed to the investigation stage of the

conviction review process
119] The Minister is currently completing the investigation. Under the
Regulations he may request further information from Odelia and Nerissa. The Minister
has several investigative powers. He may exercise the powers of'a commissioner under
Part 1 of the Inquiries Act. RSC 1985. ¢ I-11. He may delegate to a member in good
standing of the bar, retired judge or any other individual who. in his opinion. has similar


8
background or experience. the powers of the Minister to ake evidence, issue subpoenas.
enforce the attendance of witnesses and compel them to give evidence. How long this
investigation may take is uncertain, but realistically it could be several months (as has
already transpired since June 2. 2022) or considerably longer.
120] At the end of his investigation. the Minister will provide a report of his
decision under s. 696.3(3) of the Criminal Code. 1f the Minister is satisfied that there is
a reasonable basis to conclude that a miscarriage of justice likely occurred, he can cither
directa new trial or refer the matter to the Saskatchewan Court of Appeal as though the
Quewezance sisters were appealing the conviction. Aliematively. if the Minister does
not. conclude that a miscarriage of justice likely occurred. he can dismiss the
Quewezance sisters” application.
21 Section 696.2(3) states:
696.3) On an application under this Part the Minister of Justice may
(a) ifthe Minister is satisfied tht there is a reasonable basis
to conclude that a miscarriage of justice likely occurred,
iy dine, by order in writing. a new tial before any
court that the Minister thinks proper..., or
Gi refer the matter at any time © the cout of appeal
for a hearing and determination by that cour a if i
were an appeal by the convicted person... or
dismiss the application
22] So. at this point, while the Quewezance sisters await the completion of
the Minister's investigation and report, they remain subject to the decisions of the
Parole Board.


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The Application for Release Pending Ministerial Review
1231 Shortly after the Minister's correspondence of June 2, 2022. on June 27.
2022. the Quewezance sisters filed a notice of application for release pending the
Minister's ultimate determination of their application under s. 696.1 of the Criminal
Code.
241 “The Criminal Code has detailed bail provisions respecting the release of
persons charged with a crime to seek release from incarceration pending their trial.
Furthermore. afler conviction. if they choose to appeal their conviction, they can seek
release from a court of appeal pending their appeal hearing. Both instances are covered
by provisions of the Criminal Code, the first under s. $17 and the second under
5.67901).
251 However. nothing in the Criminal Code specifies how a person awaiting
a Minister's report under s. 696.1 might seck release. In this stawtory lacuna. both the
Crown and the Quewezance sisters look to R v Phillion, [2003] OJ No 3422 (QL) (Ont
Sup Ct) and accept that Odelia and Nerissa have a Charter right [Canadian Charter of
Rights and Freedoms] to apply for release where a's. 696.1 application to the Minister
is pending and an evidentiary threshold has been met.
126] As the date of the Quewezances’ application for release neared
originally scheduled for November 24 and 25. 2022 — and as the parties were filing their
supporting material. the Local Registrar of the Court of King’s Bench received a request
from Aboriginal Peoples Television Network [APTN] to obtain copies of the materials
filed on the court file respecting the Quewezances” application for release.
1271 Upon receiving notice of APTN's request, the Crown, by notice of motion
dated November 9. 2022. sought a publication ban and sealing order respecting the


10
proceedings for interim release. That motion resulted in further filings at the court and
a hearing on November 24. 2022. At the end of the hearing. | placed a temporary
publication ban respecting all written materials filed on the court file respecting both
the interim release application and the publication ban application until I provided my
decision. However. I did not ban the reporting of the oral arguments presented in court
on November 24. 2022.
1281 Because the application for a publication ban was heard on November 24,
2022. the interim release hearing was postponed to January 17 and 18, 2023.
Should the Court Impose a Publication Ban?
Participants in the Application
129] Notice of the publication ban hearing was provided to news outlets
APTN, through its legal counsel. Robert Sokalski of Hill Sokalski Walsh LLP
(Winnipeg. Manitoba). filed a brief of law and made oral argument as has the Canadian
Broadcasting Corporation [CBC]. though ts legal counsel, Sean Sinclair of Robertson
Stromberg LLP (Saskatoon, Saskatchewan). Crown counsel, Kelly Kaip, also filed a
brief of law and made oral argument at the hearing, as did Mr. Lockyer, legal counsel
for Odelia and Nerissa.
130] Ata case management meeting between the court and legal counsel on
November 10, 2022. Crown counsel raised the issue of whether APTN's position
involved a Charter issue and would therefore require notice to the Attorney General
under The Constitutional Questions Act, 2012, $$ 2012, ¢ C-29.01. Mr. Sokalski,
counsel for APTN, stated his view that such notice was unnecessary. but that he would,
nonetheless. provide such notice to avoid any later objection. Having provided such
notice, Katherine Roy of the Constitutional Law Branch of the Saskatchewan Ministry


n
of Justice and Attorney General filed a brief of law and made brief oral argument,
although her standing was challenged by counsel for APTN and the CBC
311 The Quewezance sisters. APTN and CBC object to any publication ban.
The Crown. both the prosecution and the constitutional law branch. support a
publication ban.
Basic Principles

132] All parties essentially agree on the comect statement of the legal
principles, but they disagree on the application of those principles. My review of the
cases cited by counsel has led to one preliminary conclusion: the court must sensitively
read cach case and determine, among several matters, who seeks the publication ban,
who opposes the publication ban (the media invariably opposes a ban). the stage of
proceedings when the ban is sought, what is the subject matter of the ban (irial evidence.
third party publications. investigative techniques). the rightsand privacy of third parties.
and the length, the scope of the ban sought and the length of time of the ban.

133] The parties begin with Dagenais v Canadian Broadcasting Corp. [1994]
3 SCR 835 [Dagenaisl. In Dagenais. members of a Catholic religious order were
charged with physical and sexual abuse of young boys in their care in Ontario schools.
They applied for an injunction restraining the CBC from broadcasting the mini-series
“The Boys of St-Vincent™. a fictional account of child abuse ina Catholic institution in
Newfoundland. At the time of the hearing, the accuseds’ tials were being heard or were
scheduled to be heard. The Supreme Court reversed the publication ban imposed by
Tower courts. Chief Justice Lamer provided general guidelines that courts should follow
in an application for publication bans. In summarized form, he said that the media
should have standing at such applications. the party seeking the ban bears the burden


12
of justifying any limitation and that no reasonable alternative measure is available. there
must be proportionality between the salutary and deleterious effects of the ban. and the
judge must consider all possible ways to limit the ban as much as possible.
[341 Seven years later, the Supreme Court revisited Dagens in Rv Mentuck,
2001 SCC 76. [2001] 3 SCR 442 [Mentuck]. Mentuck illustrates how contextual the
court's analysis must be. For example, unlike Dagenais, the Crown, not the accused.
sought the ban. Indeed. as in this application. the accused opposed the ban. Notably.
100. the proposed ban was intended to protect not the rights of the accused to a fair rial,
but the interests of police officers who conducted the investigation. The police had
gathered evidence by way of a “Mr. Big” operation (a covert investigation procedure
using undercover officers to elicit confessions from suspects). The Crown sought a
publication ban respecting evidence that would identify the names and identities of the
undercover police officers and the operational methods they used. The Supreme Court
affirmed the trial judge’s decision to grant a one-year ban respecting the identity of the
undercover officers but refissed a ban respecting the operational methods used in the
investigation
1351 In reaching its decision. the court recognized that Chief Justice Lamer’s
instruction in Dagenais needed a “reformulation” to recognize that publication bans
may invoke more interests and rights than an accused's rights to tial faimess and
freedom of expression.” (para. 33). Justice lacobucci thought this reformulation was
necessary to accommodate a broadened analysis to fit differing circumstances when
necessary to protect different private and public interests of those seeking and those
opposing a publication ban. He then provided three specific elaborations on the
components of the Dagenais test


3
1361 First. the risk in question must “be a serious one.” a “real and substantial
risk.” It must “be a risk the reality of which is well-grounded in the evidence,” “a risk
that poses a serious threat to the proper administration ofjustice™ and “a serious danger
sought to be avoided. (para. 34).
1371 Second. respecting “the proper administration of justice.” Justice
Tacobucei stated that “judges should be cautious in deciding what can be regarded as
part of the administration of justice.” His concer was that judges might interpret the
phrase “so widely as to keep secret a vast amount of enforcement information the
disclosure of which would be compatible with the public interest.” (para. 33).
38] Third, respecting the weighing of the salutary and deleterious effects of a
publication ban. Justice Iacobucci stated that this task reflected the minimal impairment
branch of the Oakes test [R v Oakes. [1986] 1 SCR 103]: “the test for common law
publication bans requires the judge not only to consider whether reasonable alternative
are available, but also to restrict the order as far as possible without sacrificing the
prevention of the risk.” (para. 36),
1391 Justice lacobucei provided his reformulation of the appropriate test at
para. 32 as follows:
[32]. In assessing whether to issue common law publication
bans, therefore, in my opinion. a better way of stating the proper
analytical approach for cases of the kind involved herein would be:
A publication ban should only be ordered when:
(Such on order necessary in order 0 prevent a
Serious isk to the proper administration of justice
because reasonably altermative. measures will not
prevent the risk: and
(6) the salutary effects of the publication ban
outncigh the deleterious fleets 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 0 a aie and pubic ral, and the elicacy of
the administration of justice.
140] Three years afier Menmuck, the Supreme Court retumed to. the
Dagenais/Mentuck test. this time not respecting a publication ban, but the degree of
secrecy to attach to a highly unique, in camera, judicial investigative hearing under
5. 83.28 of the Criminal Code respecting a terrorism charge. In Vancouver Sun (Re).
2004 SCC 43, [2004] 2 SCR 332. (arising in the contest of the Air India bombing) the
court, relying upon the Dagenais/Mentuck test. found the existing order was 100
restrictive. The court emphasized the importance of the open court principle. stating. at
paras. 26 and 27:
26 The open court principle is inextricably linked to the freedom
of expression protected by s. 2(b) of the Charter and advances the core
values therein: Canadian Broadcasting Corp. v. New Brunswick
Cttorney General), supra [[1996] 3 S.CR. 480), a para. 17. The
freedom of the pres o report on judicial proceedings is a core vale.
Equally. th right of the public to receive information is also protected
by the consintional suarantee of freedom of expression: Ford 1
Ouchee (Attorney General), [1988] 2 S.C.R. 712: Edmonton Journal,
supra, [[1989] 2 SCR 1326] at pp. 1339-40. The press plays a vital
vole in being. the conduit through which the publi receives that
information regarding the operation of public insitutions: Ednonton
Journal, at pp. 1330-10. Consequently. the open cout principle, 10
put it mildly. is not to be lightly interfered with.
27 Furthermore, the principle of openness oficial proceedings
extends to he pretrial stage of judicial proceedings because the policy
considerations upon which openness is predicated ar the same as in
the tial stage: Mache, supra. [1982] 1 SCR. 175] at p.
183. Dickson J. found “it diffcul 10 aceept the view that a judicial
act performed during a ia is open to public scrutiny but a judicial act
performed at the pretrial stage remains shrouded in
Secrecy”: Machutyre, at p. 156,
[41] Recently. the Supreme Court retuned 10 the Dagenais/Mentuck test in
Sherman Estate v Donovan, 2021 SCC 25. 458 DLR (4) 361. a decision concerning


15

the estate of Barry and Honey Sherman. a prominent couple found dead in their home
in Toronto. The estate trustees wished to stem intense press scrutiny by seeking a
sealing order of the probate files. The application judge sealed the probate files.
concluding that the harmful effects of the order were substantially outweighed by the
salutary effects on privacy and physical safety interests. The Court of Appeal allowed
the appeal. which was upheld by the Supreme Court. At competing interests were the
privacy interests of individuals and the public interest in open courts. The Supreme
Court began with the premise that court proceedings are presumptively open to the
public. a premise protected by the constitutional guarantee of freedom of expression.
essential to the proper functioning of Canadian democracy. Open courts can be a source
of inconvenience and embarrassment, but this discomfort is not, as a general matter,
enough to overturn the strong presumption of openness.
[421 What is the summarized result of these Supreme Court decisions? The
Dagendis test continues. sensitized by Mentuck and the need to contextualize the
competing interests at stake. Overarching each of these decisions. is the importance of
the open court principle. the right of the public to sce the workings of the judicial
system.

A Preliminary Position: The Relevance of Section 517(1) of the Criminal

Code
[43] Before proceeding to the Dagenais/Mentuck tes. the Crown makes an
introductory observation by looking to's. 517(1) of the Criminal Code and stating that
publication bans are not extraordinary orders: they are quite commonplace. Because the
Minister may order a new trial. the Quewezances’ interim release application might be
seen in a light similar to a prefiminary hearing or bail hearing that proceed criminal


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trials. In those instances, publication bans are commonly granted pending a trial
determination. In the case of a bail hearing. s. 517(1) states:
$1701 If the prosecutor or the accused intends to show cause under
Section 515. he or she shall so stat to the justice ad the justice may
and shall on application by the accused. before or at any time during
he course of the proceedings. under that section. make an order
directing that the evidence taken, the information given or the
representations made and the reasons, if any. given orto be given by
the justice shall not be published in any document, or broadest or
ransmited in any way before such as
(a) ia preliminary inquiry is held. the accused in respect of
whom the proceedings are held is discharged o
(b) ifthe accused in respect of whom the proceedings ar held
is tied or ordered to stand al. the ial is ended
[44] Section 517 illustrates that publication bans can be automatic, mandatory
or discretionary. Section 517 makes a publication ban mandatory, if requested by the
accused: discretionary. if requested by the Crown.
[45] The constitutionality of a mandatory publication ban under s. 517 (when
requested by the aceused) was challenged by several media organizations in Toronto
Star Newspapers Lid. v Canada, 2010 SCC 21. [2010] 1 SCR 721 [Toronto Star. They
urged the court to find that s. 517 unjustifiably violated freedom of expression because
of the mandatory nature of a publication ban when requested by the accused. The
Supreme Court upheld the constitutionality of such bans at bail hearings. Again. the
court looked to the Dagenais/Mentuck test and found that requiring an accused to seek
a discretionary publication ban would place additional burdens on accuseds when they
are vulnerable and overwhelmed by the criminal process. Evidence and submissions at
bail hearings are often wide-ranging. and include matters inadmissible at trial such as
criminal records, speculations about the strength of the Crown's case. personal
information and character assessments. The court explained reasons why the right to a


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mandatory publication ban lies with an accused. reasons that do not apply if the Crown
were to seek a publication ban:

[51] ..A day in the life of an accused person may have a lifelong

impact. In addition to protecting this very important liberty interest,

the ban means that accused persons can focus ther enerey and

resources on their liberty interests rather than on their privacy

interests. It ensures that they will not renounce thei right to liberty in

onder 0 protect their reputations. It also ensures that the public will

ot be influenced by untested, one-sided and stzmatizing information

bearing on issues that are ofin irrelevant to ult. It cnsures

consistency with the objectives of other publication bans provided for

in the Criminal Code, such as the one under 5. 539 concerning

evidence produced ata preliminary inquiry

[521 Another relevant aspect of the bail hearing which is of

particular importance in the assessment of the effet ofthe ban is the

Fact that the information relevant to interim release ofien elas o the

character of the individual accused and not 0 the crime... Evidence

will bear not on whether the accused commited the crime, but on the

accused as an individual: what kind of person he or shes, and whether

he or she i likely o be a danger for society or to appear a ial,
[46] Relying on the commonplace publication bans invariably and
mandatorily given at a bail hearing under s. 517 does not adsance the Crown's position
in this application. The purpose of s. 517. as described in Toronto Star. bears no
similarity to the circumstances now facing the Quewezance sisters. What is a
commonplace publication ban when requested by the accused at a bail hearing is
unrelated to the Crown's request in this application. Furthermore, as counsel for CBC
points out. requests from the Crown for a publication banat a bail hearing. unsupported
by the accused. are “few.” The Crown has not cited any


8

Is an Order Necessary to Prevent a Serious Risk to the Proper

Administration of Justice?
[471 1 will now consider the Dagenais/Mentuck test in light of the various
points of argument that counsel for the Crown. counsel for APTN and CBC and counsel
for the Quewezance sisters have raised. For ease of reference the initial inquiry is
whether “an order is necessary in order to prevent a serious risk 10 the proper
administration of justice...”
148] Several concepts are entangled i this statement. What is a “serious risk”?
What is the “proper administration of justice™ And. what is “necessary™ As a
preliminary observation, if there is no risk to the proper administration of justice. then,
axiomatically. a publication ban order is unnecessary. 1 will begin by addressing
whether a “serious risk” exists.
149] The onus lies with the Crown to establish that a serious risk atiends the
publication of the proceedings at the Quewezances’ interim release application. In the
Crown's brief | have found the following identification of the risk it seeks to avert with
a publication ban:

20. tn the case a bar, a substantial amount of information has

een filed in support of, and in opposition 10. the. respondents”

application for judicial interim release. There are, as mentioned above,

three potential outcomes to the respondents” application to he Federal

Minister under section 696.1. One of those outcomes may be that a

new tial could be ordered. Not only does the mitral fied contain

personal and private information from several sources. but the

material fled also makes mention of the confessions of the

vespondents to the police and to various third partis at the time ofthe

offence. overall, in the interest of trial fairness, the materials nd

information relating to the judicial interim release hearing should be

scaled and publication ban ordered.

(Emphasis added]


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[50] Essentially. the Crown is concerned that trial faimess (if a new trial were
ordered) may be compromised without a publication ban. Opposing counsel suggests.
that the concern of tial faimess lies principally with the Quewezances and should be
their isk to raise. not the Crown's. However, the court accepts that the Crown, in its
role as prosecutor. is a public authority who, in the public interest. applies the criminal
law, but is always sensitive to both the rights of the accused and the overall
effectiveness and fairness of the criminal justice system. Trial faimess is not the
exclusive domain of the accused.

151 However. other than this common-sense truism, the Crown offers litle
evidence that publication of the interim release proceedings will raise a serious risk to
the administration of justice. Repeatedly, the courts have stated that the party secking a
publication ban must present an evidentiary basis. This requirement was apily stated by
the Manitoba Court of Appeal in CTV Television Inc. v R, 2006 MBCA 132. 208 Man
R (2d) 244 [CTV Television]. In that case, after the trial and conviction of an accused
for aggravated assault, CTV wanted access to the accused's videoed statement to the
police tendered as an exhibit at the prefiminary hearing. (A transcript of the statement
was available to CTV.) The Crown supported its release. The Court of Appeal reversed
the lower court’s decision to deny release of the video tape because the lower court
reached its decision without an evidentiary basis. Justice Monin wrote that a court
cannot rely “on common sense and logic or judicial experience... without the benefit of
real and substantial evidence.” (paras. 32 and 33).

12] CTV Television is a restatement of Justice Iacobucci’ earlier direction in
Mentuck that an alleged risk must be “well-grounded in the evidence” or. as stated in
Canadian Broadcasting Corp. v New Brunswick (Attorney General). [1996] 3 SCR 480
at para 72: “There must be a sufficient evidentiary basis from which the tial judge may


-20 -

assess the application and upon which he or she may exercise his or her discretion
judicially.” The Crown. in this instance, has linked no evidence to a real risk that would
pose a threat to the proper administration of justice.
1531 Although this heavy evidentiary burden is placed upon the person seeking
a publication ban. in counter distinction. in the absence of a party opposing a
publication ban, the court must begin from a strong presumption that free expression
and court openness are paramount. At para. 38. Justice lacobucci. in Mentuck,
considered such a situation and wrote:

38. cases where the right of the public to fee expression is

at stake, however, and no party comes forward to pres for that right.

he jude must consider no only the evidence before him, but also the

demands of that fundamental right. The absence of

evidence apposed 1 the granting ofa ban, that is, should not be taken

as mitigating the importance of the right o free expression in applying

thetest

[Emphasis in original
[541 The onerous evidentiary burden placed on the party seeking a publication
ban. contrasted against the unnecessity of evidence favouring the “fundamental right”
to free expression, illustrates the premise that open courts are the rule, publication bans.
are the exception.
[55] The Crown also asserts that the materials filed contain “personal and
private information from several sources.” This assertion seemingly is not a concern of
the 15 persons who have submitted affidavits in support of the Quewezance sisters”
interim release. One can observe from the nature of the affidavits that several affiants
have already spoken publicly and might well take offence at being muzzled by the
court's publication ban given their vocal support of Odelia and Nerissa. None of the


21
affiants. including Odelia and Nerissa. mention facts related to the murder of Mr. Dolf¥
They singularly focus on post-conviction facts.
561 The Crown also points out that the materials filed may make mention of
the Quewezances” confessions to the police. Although the affidavits filed in support of
their release are silent respecting trial matters, their counsel has prepared written
argument in which he liberally cited the trial transeript. However. the entirety of the
ial proceedings has been available to the public for nearly 29 years. As Crown counsel
has advised the court, testimony of confessions made by Odelia and Nerissa to (non
officer) third parties was led through Crown witnesses at trial and will be obvious from
the trial transcripts. A publication ban respecting the interim release proceedings will
not prevent the public from assessing and reading the entire trial transcript and the
evidence of the Crown witnesses at the trial. Legal counsel for Odelia and Nerissa states
atpara. 11 of his brief of law, “The evidence regarding the murder of Mr. Doll has not
changed from the evidence set out in the trial transcripts. Rather. it is a new and
informed understanding of how to assess the evidence that is before the Minister.”
1571 Trial fares — the risk that an untainted jury will not be available without
a publication ban (if the Minister orders a new trial) ~ does not pose a serious or
substantial risk for several reasons. There is no certainty that the Minister will order a
new tial. Even if a new trial is ordered. all parties spoke about the unlikelihood of a
trial before three or four years. a considerable temporal distance from any publication
of the proceedings arising during the interim release. a distance that will dim most
people’s memory
581 Furthermore. there exists no pre-condition that a juror must be completely
ignorant ofall the facts of the case to be heard. The caution invariably given to all jurors


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is 10 render a decision solely on the evidence led at trial, and to disregard any prior
knowledge of facts, whether heard through the media or otherwise.
[59] Although not mentioned by counsel (and not pivotal in my decision).
5. 473(1) of the Criminal Code allows that (in the event that the Minister ordered a new
murder trial) an accused and the Attorney General can agree 10 a trial without a jury
and by a judge of a superior court. I a new trial is ordered the Quewezances and the
Crown, if they agree, need not proceed by a jury trial.
160] In conclusion. I find that any risk to justify publication ban is scant and
speculative. As previously stated. if I find little or no risk to the proper administration
of justice. the necessity component of the Dagenais/Mentuick test becomes irrelevant
without risk there is no necessity of a publication ban. However, if one were to parse
“risk” from “necessity”, the obvious reality is that much of the Quewezance case has
long been accessible to the public. making a publication ban largely superfluous.
[61] The entirety of the Quewezance sisters criminal proceedings, both in this
Court and the Saskatchewan Court of Appeal. has lain open for public inspection and
reporting for nearly three decades. Furthermore, their quest for ministerial review
alleging their wrongful conviction has been a matter of significant media coverage
Kathleen Martens, a reporter with APTN, and Mark Blackburn, Social Media Producer
with APTN, have each provided affidavits in this application. APTN began covering
the Quewezance sisters” case in 2020. It produced a two-part documentary entitled “A
Life Sentence”, which is still available on the APTN News” YouTube channel. The
documentary was followed with an online report outlining the case on November 20.
2020. with the caption “Salteau woman says she was wrongfully convicted. trying to
clear her name after 25 years in prison.” On November 27, 2020. APTN reported on
Mr. Lockyer’s interest in the Quewezance sisters” case as part of his work for Innocence


23-

Canada. Ms. Martens then describes more than a dozen further reports she has authored
during 2021 and 2022 respecting the Quewezance sisters’ case.
162] Given this wide reporting and the long-esisting availability of the trial
and appeal proceedings. | intimated to counsel at the case management meeting on
November 10. 2022 that seeking a publication ban might be akin to closing the barn
door afier the horse escaped. Diligent research by counsel located the case of Rv RDF.
2016 SKPC 89, 362 CRR (2d) 316 where members of the media sought release of the
names of adult victims of the mass shooting in Lal oche, Saskatchewan. There, after an
extensive review of the law. Judge Martinez referred to a Facebook notice for a
fundraising event where the names of the victims appeared. He was also aware of an
article in the Cumberland News Now. a Nova Scotia newspaper which identified one
of the adult vietims. Another Facebook post by two of the underage victims and one by
an adult victim revealed their identity. Acknowledging that “much of the information
about the victims is widely known in their community,” (para. 68). he concluded that

the prosceutor’s application seeks to close the stable door after the horse has bolted.”
(para. 67). Such is the situation in this application.

[631 In summary. even if the court found a risk to the proper administration of
justice — which it does not — there would be litle use or necessity to impose a
publication ban in the face of the widely Known circumstances of the Quewezance
sisters” trial and their recent efforts to have their case reviewed and, ultimately, to gain
their release pending the Ministers review.

The Salutary and Deleterious Effects of a Publication Ban

[641 Having found no “serious risk” or “necessity” to impose a publication

ban, ttle need be said about Justice lacobucei’s instruction in Mennuck that a


2

publication ban of court proceedings must be measured against the salutary and
deleterious effects on the rights of the parties and the public. However. | will make a
brief comment. What. then. is salutary and what is deleterious if a publication ban is or
is not ordered in this instance?
165] First. what might be the effects of a publication ban upon Odelia and
Nerissa? Mr. Lockyer has had considerable experience working with Innocence Canada
and bringing applications for wrongful convictions before the Minister for review. |
accept his assertion that these cold conviction cases ofien rely upon media coverage to
ain sufficient public prominence to drive them forward. Mr. Lockyer candidly states
at para. 15 of his brief of law. “The Respondents have benefited from media coverage
and community concern over their convictions. Without i, its doubtful that their cases
would already be as far advanced as they are.”
[66] This frank comment accords with the statement in R v Driskell. [2003]
MI No 484 (QL) (Man QB) where Associate Chief Justice Oliphant, in denying a
sealing order on a report prepared by the Winnipeg Police Service. noted at paras. 4 and

4 There was considerable amount of attention paid o this case

by the media, even after Mr. Driskel’s conviction. The thrust of the

media attention following the conviction of Mr. Driskel was that he

may have been wrongfully convicted

5 In 1993, the Winnipeg Police Service conducted an internal

review of Mr. Driskells ase. There is ithe doubt in my mind that

pressure from the medin precipitated that review.

[Emphasis added]
[671 Second. having found only deleterious effects on a publication ban upon
the Quewezance sisters. what might be the effects ofa publication ban upon the public?
One might have (unrealistically) expected Mr. Lockyer o present evidence to the court


to support his assertion that without media coverage and public interest, wrongful
conviction cases such as David Milgaard. Donald Marshall Jr. and Steven Truscott
would not have sen the light of justice. However. the public interest in these
convictions. both before and afier they were overturmed, is both indisputable and
important to the functioning of the criminal justice system. Indeed. few criminal
proceedings will engage the public interest more than someone alleging they have been
wrongfully convicted. The public is entitled to know the workings of the criminal
justice system. including allegations of its frailties and fallibilities. In this light, the
comment by Justice Fish in Toronto Star Newspapers Lid. v Ontario, 2005 SCC 41,
[2005] 2 SCR 188, is apt and eloquent

In any constitutional climate, the admivistation of justice

hives on exposure to light and withers under a cloud of secrecy
[68] In summary. | see mainly deleterious effects if a publication ban were
ordered and salutary effects if not ordered.

Rv Assoun ~ Is it Applicable?
[691 The Crown's brief of law cites R v Assoun, 2014 NSSC 381. 351 NSR
(2d) 300 [Asso]. a publication ban issued in the midst of a ministerial review for
wrongful conviction when Mr. Assoun was about to seek interim judicial release. As
previously stated. applying the Dagenais/Mentuck test must be contextual, sensitive to
who brings and who opposes the publication ban and the interests that are affected.
Assoun. in my view. is readily distinguishable from the instant application.
[701 In 1999. Glen Eugene Assoun was convicted of second degree murder
and given a life sentence with no parole eligibility for 185 years. Like the Quewezance
sisters. his appeal was dismissed and leave to the Supreme Court of Canada was denied.


26

Fourteen years later. on April 18, 2013, he applied for ministerial review of his
conviction. In August 2014. the CCRG released a Preliminary Assessment to Mr.
Assoun and the Nova Scotia Public Prosecution Service. but on a strictly confidential
basis, evidenced by a signed undertaking that neither would divulge its contents to third
parties. The purpose of the initial report was to elicit further feedback from Mr. Assoun
and Public Prosecutions. On September 12.2014, Mr. Assoun sought a judicial interim
release pending the Minister's final determination.

[i] Notably. neither Mr. Assoun nor Public Prosecutions filed the notice of
application for a publication ban. The Attomey General for Canada. representing the
CCRG. applied for an order sealing the Preliminary Assessment and banning the
publication of any information emanating from the prospective judicial interim release
proceedings that would reveal the content of the Preliminary Assessment, CBC opposed
the application. Mr. Assoun and Public Prosecutions supported the application. Justice
Chipman received and read the Preliminary Assessment but refised CBC's request for
a redacted copy

72 Justice Chipman granted a publication ban respecting the interim release
proceedings. The main concern in Assoun was the contents of the Preliminary
Assessment. a concern primarily raised. not by Mr. Assoun or Public Prosceution. but
of the Atiomey General for Canada. Its concern was the integrity of the ministerial
review process. The Atiomey General argued that the CCRG had no statutory
obligation to provide a copy of the Preliminary Assessment to either Mr. Assoun or
Public Prosecution and would not have done so if it had thought the document would
be available to the public. The Preliminary Assessment was the Minister's initial step
taken to review Mr. Assouns application. The CCRG did not oppose Mr. Assoun’s use
ofthe Preliminary Assessment at his release application, so long as it was protected by


id
asealing order and publication ban. Justice Chipman enumerated the CCRGs concerns.
not only respecting Mr. Assoun’s application to the Minister, but of ministerial reviews
in general. The Preliminary Assessment contained a large amount of personal and
sensitive information regarding witness and potential witnesses relevant to Mr.
Assoun’s case. Justice Chipman identified the CCRG's concen that if the report and
its appendices became public. potential witnesses who may need to be interviewed or
re-interviewed as part of the investigative phase of the Minister's review might read
them or hear broadcasts about their content. thereby jeopardizing the integrity of the
entire ministerial review process. Justice Chipman, having read the Preliminary
Assessment, found it contained information:
56
I fom persons who are both vulnerable and
marginalized in society:
2. from persons who would have had no expectation that
their information sould find its way ino a public
forum:
5. that may be characterized as opinions of an implicit
and explicit ature which have not been verified:
1 which ulimately may be found 10 be imdmissible
opinion and/or hearsay evidence:
5. whichis prvilesed and protected by saute:
6 tha if released may jeopardize an ongoing
investigation: and
7. which is privileged and confidential (wed over to
CCRG fora purpose ther than being part ofa public
forum).
1731 After granting the scaling order and publication ban on October 23. 3014,
Mr. Assoun was granted bail. Afiera long delay. on March 1. 2019, the federal Minister


28

of Justice directed that Mr. Assoun should have a new tial and. on the same day. the
Crown offered no evidence. The charge against him was dismissed for want of
prosecution. On March 5, 2019, CBC brought an application to unseal the documents,
principally the Preliminary Assessment. Justice Chipman noted that the ministerial
review was complete and there would be no further criminal proceedings. He ordered
the Preliminary Assessment and appendices to be unsealed stating. at para. 45. “Mr.
Assoun must be able to tell his story.” and the media “must be able (© report why the
Minister made his decision and why the Crown had no new evidence on the new trial.”
1741 Assoun is markedly different than the case before the court In Asso the
main concern was the contents of the initial Preliminary Assessment authored by the
CCRG. The application was led by its counsel and supported by both the Crown and
Mr. Assoun. The integrity of the ministerial review process was in jeopardy. Justice
Chipman found several reasons why the contents of the Preliminary Assessment would
compromise the Minister's further investigation of the wrongful conviction review.
These facts are not present in the instant case.
1751 Justice Chipman’s concluding comments in Rv Assoun. 2019 NSSC 220.
echo my earlier conclusion that the interests of the proper administration of justice are
best served in the Quewezance case without a publication ban. He wrote:

162] The investization that had to be protected for a time is now

complete. Members of the gencral public must b able 0 appreciate

why relevant and reliable information was not disclosed to

Nir. Assoun when it should have been. The public should be able to

appreciate why bail was granted. They must be ble to see why the

Minister made his decision. The public has the ight to know wh the

Crown led no evidence at the new rial and why the second degree

murder charge was dismissed. 1 i in the interest of Mr. Assoun and

the general public that Mr. Assoun’s story be tol. The open court

principle compels me to lf the order and release the complete court

fie


Has a Constitutional Question Been Raised?
176] As earlier stated, counsel for APTN served notice under The
Constitutional Questions Act, 2012 largely because the issue was raised by Crown
counsel during a case management telephone conversation on November 10, 2022. 1
accept that Mr. Sokolski agreed to serve the notice, not because he thought APTN was
seeking a remedy that questioned Charter rights, but only to avoid an objection at the
hearing. Mr. Sokolski pointed out that APTN was not challenging any statutory
provision or the status of any law.
[wil 1 also accept the characterization of Charter issues engaged in this
hearing are to provide a framework for the development of the common law, in this
instance, the principles set out in the Dagenais/Mentuck test.
178] In any event, the brief of law and oral argument offered by the Attorney
General of Saskatchewan mirror the position taken by the Crown.
791 1 find that no party opposing the publication ban — the Quewezance
sisters, CBC or APTN — has sought a Charter remedy or raised a constitutional
Conclusion
180] The Crown's application for a publication ban and sealing order is denied.
Mdagl
DH. LAYH