Supreme Court

Germany v. Ebke, 2000 NWTSC 69
Date:
Docket:

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

THE FEDERAL REPUBLIC OF GERMANY

Respondent
-and-

WALTER LOTHAR EBKE
Applicant

-and-

CANADIAN BROADCASTING CORPORATION

Intervenor


Application for an order banning broadcast or publication of evidence to be given at an extradition hearing.


REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE J.Z. VERTES

Heard at Yellowknife, Northwest Territories on October 26, 2000.

Reasons Filed: November 20, 2000

Counsel for the Attorney General of Canada
   (on behalf of the Respondent):   Bernadette E. Schmaltz

Counsel for the Applicant (Ebke):   Adrian C. Wright

Counsel for the Intervenor (CBC):   James D. Brydon


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

THE FEDERAL REPUBLIC OF GERMANY

Respondent

-and-

WALTER LOTHAR EBKE

Applicant

-and-

CANADIAN BROADCASTING CORPORATION

Intervenor

REASONS FOR JUDGMENT


[1] At issue on this application is a request by Walter Lothar Ebke ( Ebke ) for a ban on the publication or broadcast of the evidence and submissions to be given at his upcoming extradition hearing.  The Canadian Broadcasting Corporation ( CBC ) has intervened and brought its own application seeking permission to broadcast or otherwise publish the proceedings.  These applications require an analysis of the applicability of the common law rule that gives judges the discretionary power to order publication bans.

Proceedings to Date:

[2] Ebke was arrested on May 17, 2000, pursuant to a provisional arrest warrant issued under  the Extradition Act, S.C. 1999, c.18.  He is a citizen of the Federal Republic of Germany, the state requesting his extradition.  Ebke has been resident in Yellowknife since 1996 when he obtained landed immigrant status in Canada.  The arrest warrant identified the extradition crimes for which Ebke is wanted in Germany:

From the beginning of 1985 to 1993 in Berlin and at other locations in the Federal Republic of Germany

By the same act

a) been a member of an association whose aim and activities are directed toward committing criminal acts causing public danger pursuant to sections 306 to 308 and section 311 of the German Penal Code,

b) jointly caused an explosion using explosives on the night of February 5/6, 1987 in Berlin, thus endangering third party s property of considerable value,

c) jointly attempted to cause an explosion using explosives, and thus to endanger third party s property of considerable value on January 15, 1991 in Berlin.

Crimes punishable under section 129(a) subsection 1 number 3 of the German Penal Code, section 311 subsection 1 of the German Penal Code (as formerly amended), sections 23, 25, 52 subsection 1 and 2 of the German Penal Code.

The charges arise from Ebke s alleged involvement in a German terrorist organization.

[3] Ebke made his first appearance in this court on May 19, 2000.  At that time, counsel for the Attorney General of Canada, representing the requesting state, sought an order banning publication of evidence pursuant to s.517 of the Criminal Code.  That section authorizes the issuance of a publication ban respecting bail hearings.  Counsel for Ebke consented to the order issuing.

[4] On June 5, 2000, Ebke appeared once again for purposes of a bail hearing.  Counsel for the Attorney General and counsel for Ebke repeated their requests for  a publication ban.  The intervenor CBC appeared by counsel to argue against the ban.  The presiding judge held that, even though Ebke was in custody pursuant to the Extradition Act, in the context of a bail hearing the provisions of s.517 of the Code apply.  The order banning publication, for purposes of the bail hearing, was continued.  Eventually Ebke was released on bail.  No one has claimed that the s.517 order continues to apply to the extradition hearing.

[5] On June 15, 2000, Ebke was charged with two offences contrary to the Immigration Act, R.S.C. 1985, c.I-2: (i) unlawfully entering Canada by reason of fraudulent or improper means or misrepresentation of material fact pertaining to his admission; and (ii) unlawfully and knowingly aiding another person to enter Canada by fraudulent or improper means or misrepresentation of material fact. Ebke appeared in Territorial Court in Yellowknife in answer to those charges.  The Crown chose to proceed by way of indictment and Ebke elected trial by judge and jury.  The preliminary inquiry into those charges is scheduled to proceed on January 10, 2001.  Three other individuals have also been charged with offences under the Immigration Act relating to Ebke s, and his partner s, entry into Canada.

[6] There has been significant media interest in these developments.  Counsel filed copies of numerous press reports from radio, television and local print media, national newspapers and wire services, and foreign media (including Reuters news service and German internet sources).  Much information relating to these charges has already been disseminated.  Much of it has come from state officials.  Attached as Appendix  A  to these reasons are excerpts from press releases issued by the Royal Canadian Mounted Police and the office of the German Federal Public Prosecutor General.  There is also widespread public knowledge in Yellowknife of Ebke s situation as evidenced by the numerous affidavits filed by Yellowknife residents in support of his bail application.

[7] The extradition hearing is set to commence in this court on December 14th.

Submissions of the Applicant:

[8] As noted above, the issue on this application is the common law power to order a ban on publication.  This is significant because the Extradition Act contains a statutory power to order a ban at the hearing.  Section 26 of that Act provides:

26.  Before beginning a hearing in respect of a judicial interim release or an extradition hearing, a judge may, on application by the person or the Attorney General and on being satisfied that the publication or broadcasting of the evidence would constitute a risk to the holding of a fair trial by the extradition partner, make an order directing that the evidence taken not be published or broadcast before the time that the person is discharged or, if surrendered, the trial by the extradition partner has concluded.



[9] Ebke s counsel conceded that there are no grounds to support the issuance of a publication ban under this section.  There is no evidence that the publication or broadcast of evidence from this hearing would constitute a risk to Ebke receiving a fair trial in Germany.  I was told by counsel that a trial in Germany would not be conducted before a jury as we know it but before a panel of judges instead.

[10] This application invokes the court s common law jurisdiction to ban publication of proceedings before it.  Ebke s concern is not over his having a fair trial in Germany should he be extradited on the charges brought against him there; his concern is over his right to a fair trial before a Yellowknife jury on the pending Immigration Act charges brought against him here.  As his counsel put it, there is a connection between the Immigration Act charges and the extradition matters since inevitably the Crown will allege that  Ebke s motivation for coming to Canada was to avoid detection and apprehension in Germany.  The allegations of terrorist activity, counsel argued, are so inflammatory as to prejudice Ebke s right to a fair trial on the Canadian charges.  The extensive publicity that can be reasonably expected to accompany the extradition hearing poses a substantial risk to the impartiality of any jury on the subsequent trial.

Submissions of the Respondent:

[11] The requesting state, represented by the Attorney General of Canada, took no position on this application and made no submissions.  Counsel for the Attorney General evidently felt no need to reveal whether there was some realistic basis to Ebke s concern that the extradition charges may be referred to on his trial under the Immigration Act.  I assume this is something within the knowledge of the Attorney General since it is the Attorney General who conducts all prosecutions in this jurisdiction.

[12] I find this stance of disinterest on the part of the Attorney General somewhat curious.  It was counsel for the Attorney General who, at the bail hearing on June 5th, in justifying the request for a publication ban, referred to how there will be allegations at the bail hearing as to the means whereby an  alleged terrorist  (to use the words of counsel at the time) came into Canada and thus there are concerns as to the impact such allegations may have on the ability of Ebke and the three other individuals who have been charged under the Immigration Act to receive fair trials on those charges.  Counsel at the time stated that there were some common allegations as between the extradition charges and the Immigration Act charges.

[13] Among the submissions made at the time was the following contained in an exchange between the presiding judge and counsel for the Attorney General right after counsel s comment about common allegations:

THE COURT: So this is a basis on which you ask that the publication ban already given continue?

MS. CREAGH: For the purpose of the bail hearing.  Clearly when we get to the extradition hearing, those allegations may or may not form a part of the Crown case at that particular time so we are only looking to the bail hearing and what we will be alleging in that context and our concern is the fair trial of those other individuals.

THE COURT: Yes.

MS. CREAGH: I might add because those are going to be -- I am advised by my colleagues that the Crown will be electing to proceed by Indictment on those matters.  Of course, again those individuals have the option of electing to be tried by a Judge and jury, having a preliminary hearing in which case, particularly with respect to the preliminary inquiry, a well recognized publicity ban would be in effect.  One is in the anomalous situation that if the press are banned from publishing what is at the preliminary inquiry but can publish the allegations made today, it really undermines the publicity ban at the preliminary inquiry.  Thank you.

[14] Granted counsel at the time made clear that this submission was solely for the purpose of the bail hearing.  Also, she stated that  these allegations , meaning the allegations in common, may or may not form part of the case at the extradition hearing.  But, without knowing whether they will or not, and without the benefit of counsel s advice on this point, it makes it much more difficult to properly analyze the grounds put forth in support of the publication ban.  It is noteworthy, nevertheless, that counsel s concerns, back on June 5th, encompassed not just Ebke s right to a fair trial on the Immigration Act charges but also the rights of the three other individuals charged under that Act, individuals who presumably will have no role in the extradition hearing.

[15] There is nothing before me to suggest that the Crown will not proceed with the trial on the Immigration Act charges even if Ebke is committed for extradition.

Submissions of the Intervenor:

[16] The intervenor CBC, in addition to invoking the fundamental right of freedom of the press and the public policy favouring complete openness of court proceedings, relied specifically on the lack of evidence to support the concern that the evidence to be submitted at the extradition hearing would be in any way material to the Immigration Act charges.  Counsel argued that the concern is speculative whereas a publication ban can only be justified in the face of real and substantial risks.  In counsel s submission, Ebke has failed to demonstrate that disclosure of evidence from the extradition hearing could or would likely prejudice the trial of Ebke or the others on those charges.

[17] In support of its position, the intervenor filed the affidavit of its local manager exhibiting copies of press releases (three of which are excerpted in Appendix  A ) and numerous news stories relating to Ebke s arrest, the extradition charges and the subsequent Immigration Act charges.  The affiant also makes certain statements regarding the issue of the public interest in these matters:

9. That the information provided to the Intervenor to date indicates that the Respondent was admitted to Canada as an immigrant and suggests that the Respondent secured his admission through a marriage of convenience, although that has never been formally stated.

10. That, as an apparent landed immigrant to this country, the Intervenor, like any other citizen or immigrant is entitled to have his status within the country determined by a court of law in public.  It is of great importance to me as a citizen and to my employer as a news organization that all citizens in the country be made well aware of the evidentiary basis for any determination made in respect of the Respondent s status in this country.

...

16. That it is the intention of the Intervenor to stress in its news broadcasts that the purpose of the extradition hearing is to determine whether there is any basis for the Intervenor to be returned to Germany to face trial and is not determinant of his guilt or innocence, whether in respect of these or any other charges.

17. That, to date, the Intervenor has carefully reported only those facts which were made public by various authorities...

18. That I am aware that many people in the Yellowknife region and throughout Canada are immigrants and, as such, may well have a particular interest in these proceedings.

[18] It seems that the concerns reflected in paragraphs 9, 10 and 18 (quoted above) may relate more to the subject matter of the Immigration Act charges than they do to the substance of the extradition charges.  The risk that Ebke points to on this application is not that evidence regarding his status in Canada, or how he obtained that status, may impinge on his rights in the context of the extradition hearing; indeed I cannot imagine how evidence relating to how Ebke obtained his Canadian landed immigrant status could be material on the extradition hearing.  Ebke s concern is that evidence from the extradition hearing, if published, may impinge on his fair trial right on the Immigration Act charges.  The intervenor, of course, says that they are distinct matters and there is no substantial risk of any deleterious influence from media reporting.  Even if there was such a risk, counsel submitted, there are protective measures (such as challenges for cause, voir dires on jury selection, and strong judicial directions) which would adequately meet the risk.

Analysis:

[19] The leading case on the common law discretionary power to order a publication ban is Re Dagenais et al and Canadian Broadcasting Corp. et al (1994), 94 C.C.C.(3d) 289 (S.C.C.).  Five judges wrote opinions in that case.  The judges disagreed on some points (particularly points of jurisdiction which have no bearing on this application).  But, on the main points as to the interplay of freedom of the press and an individual s right to a fair trial, there was substantial agreement with the principles set out in the majority judgment authored by Lamer C.J.C.

[20] The common law test for ordering a publication ban hinged on whether there was a real and substantial risk that a fair trial would be jeopardized if publication were not restrained.  As Lamer C.J.C. noted the pre-Charter common law rule emphasized the right to a fair trial over the free expression interests of those affected by the ban.  This hierarchical approach, however, was held to be inconsistent with the principles of the Charter of Rights and Freedoms.  Those principles require a balancing of constitutional interests that are seemingly in conflict so that the importance of each interest is fully respected: Re Dagenais (at 316).  The constitutional significance of the interests at stake here are well known.

[21] The right to a fair trial is a principle of fundamental justice protected by s.7 of the Charter.  Also, s.11(d) of the Charter expressly guarantees the right of every accused to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.  But, the fairness of a trial is an interest that goes beyond merely the accused in a criminal case.  The prosecution has an interest in a fair trial (fair to it as well as to the accused).  More significantly society as a whole has an interest in trial fairness.  This was a point made by Gontier J. in his separate opinion in Re Dagenais (at 349):

The fairness of a trial, however, is also of general public interest.  The fairness and integrity of the criminal process is a cornerstone of the legal system.  In protecting the fairness of the trial, both under the Charter and at common law, courts have frequently recognized that the potential for prejudice relates not only to the accused, but to society in general.

[22] Freedom of the press, both before and since the enactment of the Charter, has been recognized as a fundamental feature of democratic society.  It is a constitutionally protected right by virtue of s.2(b) of the Charter.  Lamer C.J.C. wrote in Re Dagenais (at 315-316) as follows:

Like the right of an accused to a fair trial, a fundamental principle of our justice system which is now expressly protected by s. 11(d) of the Charter, freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society, as demonstrated by its enshrinement as a constitutionally protected right in s.2(b) of the Charter.  Section 2(b) guarantees the rights of all Canadians to  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication .  The importance of the s.2(b) freedoms has been recognized by this court on numerous occasions ...

As I said, for the court, in Canadian Newspapers Co. v. Canada (Attorney-General) (1988), 43 C.C.C. (3d) 24 at p.29, 52 D.L.R. (4th) 690 at p. 695 [1988] 2 S.C.R. 122:

 Freedom of the press is, indeed, an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom.

Similarly, in Edmonton Journal v. Alberta (Attorney-General) (1989), 64 D.L.R. (4th) 577 at pp. 607-8, [1989] 2 S.C.R. 1326, 41 C.P.C. (2d) 109, Cory J. remarked:

 It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.  Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.  The concept of free and uninhibited speech permeates all truly democratic societies and institutions.  The vital importance of the concept cannot be over-emphasized.

The Supreme Court has consistently held that s.2(b) rights should be restricted only in the clearest of circumstances.

[23] Concomitant with freedom of the press is the concept of open justice.  In Southam Inc. v. Dir. of Investigation & Research, [1984] 2 S.C.R. 145, it was held that, even though free access is not specifically enumerated under the heading of a fundamental freedom, given the history of access to the courts it is an implicit and integral part of the protection given to freedom of the press.  In Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326, the Court identified the aims underlying our commitment to the principle of open justice.  The first is tied to the belief that open proceedings foster the search for truth in civil and criminal cases.  The second is the importance of public scrutiny, and at times public criticism, of the courts.  Accordingly, since freedom of the press is of fundamental significance to a democratic society, the press  must be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny  (per Cory J. at 1339).  The concept of open justice is also tied to the fair trial guarantee since s.11(d) speaks of a  fair and public hearing  before an independent tribunal.

[24] To this constellation of rights we must add a third one.  That is the right to privacy.  In this case we must keep in mind that Ebke is presumed innocent of the Immigration Act charges until proven guilty; so are the three other individuals charged under that Act.  We must also keep in mind that the extradition charges are just that, charges, and he is presumed innocent of those even if he is extradited.  I note that Article 6 of the European Convention on Human Rights, to which Germany is a signatory, guarantees the presumption of innocence in terms very similar to s.11(d) of our Charter.  Thus an accused person, even if he or she can be labelled only as  presumed innocent , has an interest in maintaining his or her privacy.  This was a point made in the well-known case of A.-G. Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, where Dickson J. (on behalf of the majority) wrote, in holding that public access to search warrants prior to their execution was properly prohibited but not thereafter, that in deciding whether or not to grant press access the court must consider several broad policy issues, including the privacy interests of the individual involved, protection of the administration of justice, and the strong public policy in favour of openness in respect of judicial acts.  Similar sentiments were expressed by both the majority and the minority in the subsequent case of Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671.

[25] So these are all factors to take into account in the balancing of constitutional interests.  And this leads to what Lamer C.J.C. termed as the  modified  common law rule governing the issuance of publication bans (at 317):

A publication ban should only be ordered when:

(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and

(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.

Lamer C.J.C. elaborated on this in a summary guideline (at 326-327):

The party seeking to justify the limitation of a right (in the case of a publication ban, the party seeking to limit freedom of expression) bears the burden of justifying the limitation.  The party claiming under the common-law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial is seeking to use the  power of the state to achieve this objective.  A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society.  Therefore, the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited (in scope, time, content, etc.) As possible, and there is a proportionality between the salutary and deleterious effects of the ban.  At the same time, the fact that the party seeking the ban may be attempting to safeguard a constitutional right must be borne in mind when determining whether the proportionality test has been satisfied.

[26] Therefore, within this framework, I must consider (a) the objective of the proposed publication ban (including whether there is a real and substantial risk to which the objective is directed); (b) the necessity of the ban (whether reasonable alternative measures are available); and (c) whether the salutary effects of imposing the ban outweigh the deleterious impact of the ban.

(a) Objectives of the Ban:

[27] In a broad sense one can say that the objective of a publication ban is always the same: to diminish the risk that the trial of an accused person might be rendered unfair by adverse pre-trial publicity.  This objective reflects the right of the accused to a fair trial as guaranteed by sections 7 and 11(d) of the Charter.  It also reflects the interest of the public and the courts in ensuring that every trial is a fair one.  The courts have an interest, indeed a duty, to ensure that justice is done and seen to be done: see Re Dagenais at 317-318.


[28] The real question to ask, however, is whether there is a real and substantial risk in the specific case to warrant the objective.  As Lamer C.J.C. said in Re Dagenais (at 318):

As the rule itself states, the objective of a publication ban authorized under the rule is to prevent real and substantial risks of trial unfairness -- publication bans are not available as protection against remote and speculative dangers.

[29] I have not been told what evidence will be presented at the extradition hearing.  I do not know what evidence may be presented by affidavits or depositions and what may be brought forward through the testimony of witnesses.  But I do know from the media reports that have already been disseminated that the allegations will relate to bombings and other alleged terrorist activities in Germany.  This raises the very concern that Ebke s counsel pointed to, that is, that Ebke will be tried on the Immigration Act offences not solely on the evidence before the court in that trial but on potentially inflammatory information emanating from outside of that trial.

[30] The intervenor s counsel argued that any analysis of the risk factor is speculative because we do not know what evidence will be presented at the extradition hearing. To some extent, this exercise will always require a certain degree of educated guessing, or, perhaps to put it in a more refined manner, judicial inference short of speculation.  But the focus of the analysis is on risk, not certainty.  There need not be evidence that a fair trial will be impossible.

[31] It is not for me to say what evidence from the extradition hearing could be relevant on the Immigration Act charges.  If, as can be expected, the evidence will outline details of the alleged terrorist activities, then that would come generally under the rubric of bad character evidence.  The general rule of course is that evidence of discreditable conduct, that is to say conduct which is outside of the indictment before the court and capable of reflecting badly on the accused s character, is inadmissible unless its probative value to a fact in issue outweighs its potential prejudicial effect:   R. v. Arp, [1998] 3 S.C.R. 339.  The fact that Ebke is charged in Germany and the nature of those charges may be probative on his Immigration Act trial to the issue of Ebke s intent or motive.  I make no decision on that point.  But it seems to me that the underlying evidence to support those charges, if there is any, may not be relevant.  That, if it becomes an issue, will be for the judge on that trial to decide.

[32] Extensive pre-trial publication of the evidence from the extradition hearing, however, may increase the risk of inciting the jury to resort to propensity reasoning.  Generally speaking, bad character evidence is thought to be highly prejudicial.  It reveals the accused to be a bad person, capable of doing things that may be both legally and morally wrong.  This undermines the presumption of innocence and other legal protections since it can plant the desire in a juror, either consciously or unconsciously, to punish the accused for those other bad acts and his bad character generally.  It can lead the jury to think that the accused has a propensity to commit crimes.  The potential adverse impact of  propensity reasoning on trial fairness was recently noted by Doherty J.A. in R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at 480:

Propensity reasoning also imperils the overall fairness of the criminal trial process.  It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct.  If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life.  An accused must be tried for what he or she did and not for who he or she is.  The criminal law s reluctance to permit inferences based on propensity reasoning reflects its commitment to this fundamental tenet: McCormick on Evidence, 5th ed., p.658; R. Lempert, S. Saltzburg, A Modern Approach to Evidence (1982) at p.219.

The wisdom of excluding evidence which relies entirely for its cogency on propensity reasoning is beyond doubt.  In most situations, the evidence will provide little or no assistance in determining how an accused acted on the occasion in issue.  It may, however, leave the jury with the clear sense that this accused is a bad person who merits punishment or at least does not merit the benefit of any reasonable doubt.

[33] Bad character evidence can also distract the jury s attention from the real issues in the case before them.  They may focus on resolving whether the accused did those other acts as opposed to whether he or she did the crime for which he or she is on trial.

[34] So, the question about risk, as I see it, comes down to this: does it make sense to allow extensive pre-trial publicity of matters that may be ruled inadmissible and highly prejudicial at the eventual trial on the Immigration Act charges?  I think not.  In my opinion, the risk to the fairness of that trial is real and substantial.

[35] This analysis has centred on the risk to Ebke s right to a fair trial on the Immigration Act charges.  But, I do not ignore the fact that three other individuals are also charged under that Act.  Their right to a fair trial may also be adversely affected by extensive pre-trial publicity ( bad character by association  so to speak).  I note that this was also the concern articulated by counsel for the Attorney General at Ebke s bail hearing.  In my opinion the objective of the proposed publication ban is demonstrated.

(b) Necessity of the Ban:

[36] This category calls for a consideration as to whether reasonable alternative measures are available so as to obviate the need for a publication ban.  The alternative measures identified in Re Dagenais (at 319) are (a) adjourning the trial, (b) changing its venue, (c) sequestering jurors, (d) allowing challenges for cause and voir dires during jury selection, and (e) providing strong judicial direction to the jury.  This list is not exhaustive.

[37] An adjournment of the trial or sequestering jurors are not realistic alternatives since the trial will not be held until well into the future.  The publicity will spread long before any trial.  As noted in R. v. Bernardo, [1993] O.J. No. 2047  (Gen. Div.), this would normally minimize the influence of such publicity on the trial.  However, courts have noted the tendency of the media to refresh the public s mind just before an interesting or sensational trial.  Furthermore, the relatively small population not only of Yellowknife but of the Northwest Territories and the notoriety of these charges would result in any pre-trial publicity being avidly followed, widely disseminated, and remembered.  This also rules out the efficacy of a change of venue.  Much of the same concern applies to the use of challenges for cause and voir dires in jury selection.

[38] The intervenor places great faith, however, on the common sense and intelligence of the jurors and their ability to follow directions.  I too have great faith in jurors  ability and willingness to do their duty.  The concern, however, is that the jury in the future trial may be unable to set aside information and impressions formed from media accounts despite directions to disregard what is not in evidence before them.  This could be particularly prejudicial where the subject-matter of the publicity is in essence nothing more than allegations.  The evidence to be placed before the court in the extradition hearing will consist not of proven facts but alleged facts.  The truth or falsity of those facts will ultimately have to be decided in a German court if Ebke is extradited.

[39] Lamer C.J.C., in Re Dagenais, also recognized the limited utility of judicial direction where there is extensive pre-trial publicity (at 323):

More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial.  In such circumstances, the effect of instructions is considerably lessened.  Impressions may be created in the minds of the jury that cannot be consciously dispelled.  The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

[40] Accordingly, I am not satisfied that effective and reasonable alternative measures are available to offset what I find to be a real and substantial risk to the fairness of the Immigration Act trial.

(c) Salutary and Deleterious Effects:

[41] The deleterious effect of the proposed publication ban is the restriction on the freedom of the press to report fully and accurately on court proceedings.  This, in my opinion, is tempered somewhat by the very nature of the extradition hearing itself.  I touched on this above in my statement that the evidence at the hearing will consist of allegations, not proven facts.  I will explain.


[42] The Extradition Act provides that, in the case of a person such as Ebke who is sought for prosecution in another country, the test for ordering committal of the person to await extradition is whether the evidence presented at the hearing would justify committal for trial in Canada if it were a Canadian criminal proceeding: s. 29(1)(a).  In other words, the extradition hearing is not a trial.  The sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed: see United States v. Dynar (1997), 115 C.C.C. (3d) 481 (S.C.C.), at 521.  Thus it is like a preliminary inquiry under Part XVIII of the Criminal Code.  The test for committal at a preliminary inquiry is whether there is any admissible evidence on the basis of which a reasonable jury, properly instructed, could convict.  The extradition judge comes to no decisions as to guilt or innocence or the truth of the allegations.  Thus the potential prejudice of publishing mere allegations is greater than the deleterious effect of restricting publication of what are merely allegations.  I note as well the fact that if this were a preliminary inquiry under Canadian law, a publication ban would be mandatory upon the request of the accused person: see  s. 539(1)(b), Criminal Code.

[43] The deleterious effects of a restriction on the immediate dissemination of information from the extradition proceedings can also be mitigated by limiting the ban temporally.  It need not be a permanent ban; merely one that operates so long as the risk of tainting the jury for the Immigration Act trial exists.  Also, while publication may be restricted, the proceedings will nonetheless still be open to the public and the press.  These will not be secret proceedings in any sense of that term.

[44] The salutary benefits of a publication ban are that it would (a) protect trial fairness for the Immigration Act trial; (b) preserve Ebke s privacy from the dissemination of what would be merely allegations; and, (c) avoid delays in the Immigration Act trials should there be a perceived need to allow more time to pass to allow the influence of pre-trial publicity to dissipate among the members of the potential jury pool for those trials.  As noted by Lamer C.J.C. in his examples of salutary benefits that may arise from ordering a publication ban ( Re Dagenais at 321), a ban may  save the financial and/or emotional costs to the state, the accused... and witnesses of the alternatives to publication bans (for example, delaying trials, changing venues, and challenging jurors for cause) .



[45] In my opinion, in the circumstances of this case, there is a balance struck, a proportionality, between the salutary and deleterious effects of a publication ban as requested by Ebke.  There is a rational connection between such a ban and the objective of preventing the jury in the eventual Immigration Act trial from being adversely influenced by information other than that presented in evidence at that trial.

Conclusions:

[46] Ebke s application is allowed subject to the terms outlined herein.  The intervenor s application is dismissed.

[47] There will be a ban on the broadcast or publication of the evidence and submissions to be given at the extradition hearing into the outstanding charges against Ebke in Germany.  To be clear on this, and as conceded by Ebke s counsel, the ban does not apply to describing the actual charges or the nature of the charges.  That information is already in the public domain.  The ban does not apply to the results of the extradition hearing.  The ban applies to the substance of the evidence and submissions to be presented in support of those charges.  There may be modifications of this ban as the evidence unfolds at the hearing but that should be addressed on a point-by-point basis.

[48] Should the Attorney General decide to stay proceedings or withdraw the Immigration Act charges, or if Ebke is discharged at the preliminary inquiry into those charges, then this ban is automatically set aside.  Otherwise the ban will expire on the sequestration of the jury to commence their deliberations on the Immigration Act charges against Ebke.  I make no order extending this ban to any time-frame that includes the prosecution of the other individuals on the Immigration Act charges.  No information has been put before me about a potential time-frame nor have those individuals made application for a ban.

[49] I will also direct that the ban be automatically lifted for any evidence from the extradition hearing that is ultimately admitted into evidence before the jury at the Immigration Act trial.  If there is to be a ban on anything presented at the Immigration Act trial then that is something for the judge on that trial to decide.  Finally, if Ebke re-elects to be tried by a judge without a jury on the Immigration Act charges, then again this ban is set aside.

[50] I have not limited this ban simply until Ebke is committed for extradition (if that is what eventually occurs).  I recognize that there are appeal proceedings that may be taken as well as the fact that the ultimate decision to extradite is that of the Minister of Justice.  Thus the Immigration Act trial may take place well before the end of those steps.  Hence I have decided to tie the temporal limits on the ban to the Immigration Act prosecution.

[51] In conclusion, and for the sale of clarity, the ban does not apply to these reasons for judgment.





J. Z. Vertes
                    J.S.C.



Dated at Yellowknife, Northwest Territories
this 20th day of November, 2000.

Counsel for the Attorney General of Canada
   (on behalf of the Respondent):    Bernadette E. Schmaltz

Counsel for the Applicant (Ebke):    Adrian C. Wright

Counsel for the Intervenor (CBC):    James D. Brydon


















APPENDIX  A

1. Excerpt from press release issued by the Royal Canadian Mounted Police on May 18, 2000:

ASSISTANCE TO GERMAN FEDERAL POLICE-PROVISIONAL ARREST WARRANT
YELLOWKNIFE, NORTHWEST TERRITORIES - MAY 18, 2000

The Federal Enforcement Section of the  G  Division Royal Canadian Mounted Police (RCMP) today announce the execution of a provisional arrest warrant on behalf of the German Federal Attorney General (Bundeskriminalamt Meckenhelm or BKA).  Arrested yesterday was Yellowknife, Northwest Territories resident, Mr. Walter Lothar EBKE, age 46 (Born October 30, 1953).  While currently a resident of Canada, EBKE is a citizen of the Federal Republic of Germany.

EBKE is wanted in Germany in connection with an investigation being conducted by the German Federal States Attorney.  He was arrested on a Provisional Warrant pending an Extradition request from Germany.  The Federal German Court of Justice holds the arrest warrant which was issued on March 9, 2000.  The Office of the German Federal Attorney General have provided their own news release in respect to the allegations EBKE is facing in Germany.  Germany will now be seeking the extradition of EBKE back to Germany to answer to these offences.

2. Excerpt from press release issued by the office of the German Federal Public Prosecutor General on May 18, 2000:


Assumed member of the  Revolutionary Cells  arrested in Canada
The Canadian Police arrested yesterday in Yellowknife/Canada on behalf of the German Federal Public Prosecutor General the

German Citizen Lothar E., age 46.

Lothar E. has been resident in Northwest Territories/Canada.  He was arrested on a Provisional Arrest Warrant pending an Extradition Request from Germany.  The German Federal Court of Justice holds the arrest warrant which was issued on March 9, 2000.  The German Government will request the extradition.

Lothar E. is urgently suspected of having from 1985 to 1993 been a member of the terrorist organization  Revolutionary Cells (RZ)  in Berlin.  In wilful co-operation with other namely known members of this organization, in the night from 5 to 6 February 1987 he is suspected of having committed an attack by explosives on the building of the  Central Social Relief Office for Asylum Seekers  in Berlin as well as on 15 January 1991 to have tried to destroy the monument  Siegessaule  (a victory column) in Berlin-Tiergarten by the application of blasting charges.  However, due to a misfire of the charges this attack failed.


-2-

Since late autumn of 1973 there exists in the Federal Republic of Germany a terrorist organization, which called itself since 1978  Revolutionary Cells .  Objective of the terrorist organization is the forceful change of the social order in the Federal Republic of Germany by committing severe crimes, like attacks by fire weapons, arson and explosives.  In pursuit of the above mentioned objectives since its foundation this organization has by self-incrimination letters admitted at least 186 attacks.  The so far last explosives attack occurred in the night to 24 July 1995 at a production hall of a dockyard in Lemwerder near Bremen.

As of approximately 1985 the scope of the actions of the  RZ  focused on the Federal Republic of Germany s policy concerning foreigners and asylum seekers.  In order to cause a change of views in society and a change in policy its members committed, particularly in Berlin, numerous attacks using firearms, arson and explosives.
3. Excerpt from press release issued by the Royal Canadian Mounted Police on June 15, 2000:

YELLOWKNIFE RESIDENT FACING IMMIGRATION CHARGES
YELLOWKNIFE, NT 2000-06-15

One Yellowknife resident has been charged with two offences under the Immigration Act as the result of investigations carried out by the  G  Division Federal Enforcement Section.  Charged is Walter Lothar EBKE (DOB: 1953-10-30).

EBKE has been charged with unlawfully and knowingly aid Regina PFEIFER to enter and remain in Canada contrary to Section 94(1)(m) of the Immigration Act.

EBKE has also been charged with unlawfully coming to Canada by reason of fraudulent or improper means or misrepresentation of material fact, contrary to Section 94(1)(b) of the Immigration Act.

EBKE is presently in custody pending extradition request for the Federal Republic of Germany for alleged offences in that country.