A publication ban on an upcoming hearing to determine whether a pair of Indigenous sisters convicted of murder will be released on conditions would be "largely superfluous," according to the judge who denied the Crown's application for a publication ban on the proceeding.
Odelia and Nerissa Quewezance, sisters from Keeseekoose First Nation, were convicted in 1994 of second-degree murder in the death of Anthony Joseph Dolff, a farmer from Kamsack, Sask.
The sisters have maintained their innocence since the conviction. Their case is now undergoing a federal review for a potential miscarriage of justice.
The sisters' defence team hopes to get them out on conditional release during the months-long review. That release was originally going to be argued on Nov. 24, but instead the court heard arguments on whether media could report on the women's release hearing, after the Crown requested the ban.
Justice Donaly Layh denied the Crown's application on Tuesday.
Crown counsel Kelly Kaip had argued that publication bans are not extraordinary orders. She said bans are often given during bail hearings that precede criminal trials, and the federal review could lead to a new trial. Kaip argued a publication ban would reduce the risk of a future trial being unfair or biased.
A federal review could lead to an appeal trial, an entirely new trial, or a question of law being referred to the provincial Court of Appeal.
The defence suggested the question of trial fairness should fall to the sisters, who were strongly opposed to the publication ban.
The Crown also referenced to a case of Glen Eugene Assoun, whose second-degree murder charge underwent a review similar to the Quewezance sisters. A publication ban was issued during Assoun's interim release review.
In that case, the Attorney General of Canada applied for a publication ban because it was concerned that the preliminary assessment in their ministerial review would be published and compromise the review, according to Layh's decision.
Layh said that case didn't have standing in the Quewezance sisters' case.
He also considered whether a publication ban was necessary to prevent a serious risk to the result of the hearing, but found any risk is "scant and speculative," noting the Quewezance sisters' case information has been available for nearly three decades and has been widely reported by media.
Layh conveyed to counsel during a meeting before the hearing that a publication ban "might be akin to closing the barn door after the horse escaped," he recounted in his decision.
CBC and APTN opposed the publication ban in court.
LISTEN | Odelia talks about her hopes for exoneration and Lockyer discusses the case: Sisters Odelia and Nerissa Quewezance were convicted of second-degree murder almost 30 years ago, for a crime they say they didn’t commit. Now, federal Justice Minister David Lametti has ordered a review of the convictions to determine if the Indigenous women suffered a miscarriage of justice. Matt Galloway talks to Odelia about her hopes for exoneration; and their lawyer James Lockyer, a director with Innocence Canada.
Media coverage has 'benefited' sisters, defence argues
James Lockyer, founder of Innocence Canada and a member of the sisters' defence team, argued the sisters "benefited from media coverage and community concern over their convictions."
"Without it, it is doubtful that their cases would already be as far advanced as they are."
Lockyer pointed to wrongful conviction cases like those of David Milgaard, Steven Truscott and Donald Marshall Jr.
Layh said in his decision that there are few criminal proceedings that would engage the public like cases of wrongful conviction and that the public ought to know of the criminal justice system's "frailties and fallibilities."
Before the hearing, advocates for the sisters decried the publication ban request. Congress of Aboriginal Peoples vice-chief Kim Beaudin suggested the publication ban was an attempt to "muzzle the media."
Crown counsel disputed that comment, but did note that the media has been favourable of the sisters.
Read Justice Donaly Layh's ruling on the publication ban here:
