Judge to decide on publication ban of sentencing details in murder trial by Friday

Arguing for a ban on details of an alleged murder in Yellowknife, a Crown prosecutor said that publication bans are sometimes more necessary in smaller populations such as the North than they are in large southern centres.

Blair MacPherson said in Northwest Territories Supreme Court on Wednesday thatthe CBC had made "powerful and persuasive arguments," against the ban, but added they were "arguments for a southern jurisdiction ... we're asking for a decision that takes into account the context here."

In its initial application, the prosecutor called for a publication ban on the entire sentencing of Jordan Nande and Lisa Brul, two people who admitted to being accessories after the fact in the death of Breanna Menacho, a 22-year-old woman, in Yellowknife last May.

The Crown argued the ban was necessary to protect the trial rights of Devon Larabie, a man charged with murder in connection with the death. It said a ban is necessary to avoid influencing potential jurors and witnesses in the trial, and said it should remain in effect until "Mr. Larabie's proceedings have run their course," according to the application.

If that ban had been ordered, the public would likely have had to wait more than a year to find out that Nande and Brul had pleaded guilty to being accessories after the fact to murder and sentenced to 10 months in jail each. The two were sentenced last Wednesday.

'Unprecedented and unjustified'

After CBC notified the prosecutor of its intention to challenge the ban, the request was narrowed to "the facts of the case" as spelled out in an agreed statement of facts that was read aloud in court during the sentencing.

The ban was only to remain in effect until a jury was selected for Larabie's trial. The Crown also withdrew its assertion that the ban is necessary to avoid influencing the testimony of witnesses who may testify in Larabie's trial.

At the hearing, CBC's lawyer, appearing by phone from Edmonton, described the ban the Crown was seeking as "unprecedented and unjustified."

Tess Layton noted that Larabie's preliminary inquiry is not scheduled to be held for another seven months. His trial, if there is one, is at least a year away.

Layton argued that the ban on the statement of agreed facts amounts to "a prohibition on any meaningful reporting on the matter. The facts of this case are central to this case."

'Striking facts'

MacPherson said the nature of those facts is why the publication ban is required. He said he did not wish to minimize the gravity of any murder"but this isn't a simple punch outside a bar where somebody gets killed. These are very striking facts."

He said, if published, the facts would be as memorable in the minds of the public as those of the murder committed by Denecho King.

King attacked two men with a sword, killing one of them. While awaiting trial, he escaped from the North Slave Correctional Centre. The prosecutor said that, even today, more than two years after King's conviction for murder and aggravated assault, and his escape from jail, when people hear his name they remember the sword attack and the escape.

MacPherson cited another case in Yellowknife 16 years ago in which CBC challenged a publication ban and lost. In that case, the ban applied to the details of the murder that came out during the sentencingof Richard Tutin and Dale Courtoreille, two accessories to the murder and robbery of drug dealer Justin Hai Van Vo.

Van Vo was beaten, stabbed and then strangled by rival drug dealers. They then transported his body to an area near the Yellowknife River Bridge, where they tried to burn it. A city worker discovered his smoldering remains and reported it to police.

At the time, N.W.T. Supreme Court Justice Virginia Schuler said the publication ban was necessary to ensure two others accused of the murder in connection with Van Vo's death, Gerald Delorme and Francis Yukon,got fair trials.

MacPherson said that case is "exactly the same situation we're in here today."

"Justice Schuler didn't need expert testimony [on how publicity might affect the potential jurors]," said MacPherson. "She'd been living in this jurisdiction for a long time. She understood how things operate in this jurisdiction and this city."

Layton noted that Delorme and Yukon's trials were scheduled to be held just four months after the sentencing of Courtoreille and Tutin.

Risk to fair trial must be 'real and substantial'

Layton pointed to a decision that went the other way in a 2012 trial for a Whitehorse murder.

The lawyer for Norman Larue had asked for a ban on the entire trial of Larue's girlfriend and co-accused, Christina Asp.

Asp and Larue were charged with murder in the 2008 death of 63-year-old Gordon Seybold. His remains were found in his burned house. He had been beaten to death and the house set on fire to cover up the crime.

The RCMP charged the two after an undercover sting operation in which police posed as big time gang members to get Asp and Larue to confess to the killings.

Larue's trial was scheduled to take place eight months after Asp's. In dismissing the request for a ban, the late Justice Leigh Gower said Larue's lawyer had failed to show that the trial would create "a real and substantial" risk to a fair trial. The judge also said Larue's lawyer had failed to consider alternatives to a publication ban, such as the questioning of jurors about their knowledge of a case and biases during jury selection.

In citing the case in her arguments against the publication ban on the sentencing of Brul and Nande, the lawyer for CBC said requests for such bans demonstrate a "paternalistic" attitude toward jurors.

Layton said lawyers and judges should not assume that potential jurors who know something about a case are incapable of rendering a verdict based only on the evidence submitted during a trial.

"An accused has a right to an impartial jury, but not an uninformed jury," said Layton.

The same details the prosecutor is asking to be banned from publication will likely be among the first things a jury in Larabie's trial would hear in the Crown's opening statement.

Justice Karan Shaner said she will issue a written decision by Dec. 18. In the meantime, a temporary ban remains in effect.