Nunavut judge clarifies publication ban procedures, lifts ban on name of accused teacher

Iqaluit teacher Mark Caine, who faces three charges of sexual interference, is scheduled to appear at the Nunavut Court of Justice in Iqaluit June 3. (FILE PHOTO)

A publication ban on the name of an Iqaluit teacher who faces three charges of sexual interference was overturned in a judgment issued by Justice Earl Johnson May 15.

This past April 12 Justice Andrew Mahar granted a request from the Crown to impose a publication ban that prevents news organizations from reporting the identity of the Iqaluit teacher, who appeared in court that day.

On May 6, a lawyer representing the CBC submitted a notice of motion to overturn the publication ban.

Now, police or the Crown must serve notice to the media that a publication ban has been referred to the court, since the media may not always know about a first appearance, Johnson said.

When the first appearance occurred was the ambiguous issue in the case of the Iqaluit teacher, Mark Caine of Aqsarniit Middle School, because according to the Nunavut Court of Justice media policy, only after a first appearance may an accused person’s name be published.

“The court administration interpreted first appearance as being the first appearance in the courthouse, while CBC interpreted first appearance as being the first appearance before [the] Justice of the Peace,” Johnson said in his judgment.

In the judgment, Johnson defined a first appearance for a person charged with an offence as “when he or she comes under the jurisdiction and legal control of a justice or judge to answer the charges.”

In this case, the first appearance took place when Caine appeared outside court, but before a Justice of the Peace, on March 27.

“The police or Crown should have requested a non-publication ban at the appearance before Justice of the Peace Weeks or he could have inquired whether one was required given the nature of the charges,” Johnson said.

“He could have then issued the standard ban on the publication of the name of the complainant,” he said, which would still have allowed the media to publish the name of the accused.

In his view, “media people are certainly competent enough to determine which information is subject to the ban; if not, the judge… can clarify the matters which cannot be published.”

In the future, police, the Crown, or a JP dealing with an out-of-court appearance should make sure that the publication ban on the name of the complainant is made at the first appearance — then if they want to expand the ban to include the name of the accused they must do so at that time, Johnson said.

Johnson reserved his judgment May 10, when the Crown prosecutor said the ban was already “moot.”

It remains a criminal offence for news organizations to report the identities of complainants in cases involving sexual assault or sexual interference.

But the identities of accused persons in such cases may normally be reported, unless courts issue special publication bans.

Caine’s identity, as well the school he works for, have been widely circulated in recent radio reports, online news stories and the Nunatsiaq News April 12 print edition, printed two days before the ban came into effect.

The RCMP announced the laying of charges March 29.

The Crown says the three charges of sexual interference will be handled in a summary conviction process.

The crime of sexual interference, under section 151 of the Criminal Code, relates to the actions of a person who touches the body of any young person under the age of 16 or a sexual purpose, indirectly or directly, with a body part or an object.

Any person guilty of that offence on summary conviction is liable to imprisonment for up to 18 months and a mandatory minimum prison term of 90 days.

Caine is scheduled to appear at the Nunavut Court of Justice in Iqaluit June 3.