DATE: 20010718 DOCKET: C36641
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent/Applicant on the Sealing Motion) v. K. S. Y. (Applicant/Appellant)
BEFORE:
DOHERTY, ROSENBERG and MOLDAVER JJ.A.
COUNSEL:
Gregory Lafontaine for the appellant
Beverly J. Wilton and Tom Lemon for the respondent, Attorney General Canada
Paul Lindsay for the respondent, Attorney General Ontario (on the application to seal only)
HEARD:
July 13, 2001
E N D O R S E M E N T
[1] This endorsement addresses Mr. Y.’s appeal from his conviction, and an application brought by the Attorney General for Canada, and supported by the Attorney General for Ontario, for an order that an affidavit filed by the Attorney General Canada on the appeal be sealed pending further order of this court.*
[2] It recently came to the attention of the federal Crown that Mr. Y.’s conviction occasioned a miscarriage of justice. The Crown was not aware of the circumstances giving rise to the miscarriage of justice when Mr. Y. entered his guilty plea and was convicted.
[3] When the federal Crown became aware of the circumstances giving rise to a miscarriage of justice, it notified counsel for Mr. Y. and invited counsel to launch an appeal. Crown counsel indicated that he was prepared to agree to an extension of time to commence the appeal and would agree that the appeal should be allowed. Counsel for the federal Crown also told counsel for Y. that the Crown would stay any further proceedings should this court allow the appeal and quash Mr. Y.’s conviction.
[4] An affidavit in support of the Crown’s position that the conviction of Mr. Y. was a miscarriage of justice was filed on July 11, 2001. On the same day, Osborne A.C.J.O. ordered the affidavit sealed pending this hearing. Pursuant to the terms of that order, no member of the public, including counsel for Mr. Y. was permitted access to the affidavit. The order made by Osborne A.C.J.O. was made with the consent of Mr. Y.
[5] We have examined the affidavit and received it as fresh evidence on this appeal. The contents of the affidavit fully justify the federal Crown’s position. An order will go granting Mr. Y. an extension of time to today’s date to commence an appeal from his conviction. An order will also go quashing the conviction and directing a new trial. The Crown has undertaken to stay any further proceedings on this charge.
The Application to Continue the Sealing Order
[6] Both the federal and provincial Crown seek a further sealing order. The affidavit which the Crown seeks sealed, sets out in detail the basis upon which the sealing order is requested. If a sealing order is granted, the public will not have access to the information on which the order allowing this appeal is based.
[7] The order requested is an extraordinary one and runs against the presumption that court proceedings are open and accessible to the public. There will, however, be rare circumstances in which an order like that sought here will be appropriate. The grounds set out in the affidavit offer strong support for the order requested. The court is concerned, however, about making a sealing order in the absence of submissions from any party who may have an interest in resisting the sealing order sought by the federal and provincial Crown. Mr. Y. has no interest in resisting that order.
[8] In Dagenais v. Canada Broadcasting Corp. (1994), 1994 39 (SCC), 94 C.C.C. (3d) 289 (S.C.C.), the court dealt with the procedures to be followed where applications are made for publication bans. While the order sought here is not in the nature of a publication ban, it does require a consideration of the same principles that were engaged in Dagenais.
[9] In Dagenais, Lamer C.J.C. discussed the practical problems associated with giving notice of non-publication motions to those who may have an interest in opposing them, but were not otherwise involved in the proceedings. The Chief Justice said, at p. 310:
The judge hearing the application [for a non-publication order] thus has the discretion to direct that third parties (e.g. the media) be given notice. Exactly who is to be given notice and how notice is to be given should remain in the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law.
[10] Just as with non-publication orders, the media may have an interest in challenging the order made here. While we are satisfied that a sealing order should be made, we also think that the media should receive notice of this proceeding and the sealing order.
[11] An order will go in the terms of the draft order attached to this endorsement.
“Doherty J.A.”
“M. Rosenberg J.A.”
“M.J. Moldaver J.A.”
- A non-publication order has been made prohibiting publication of the appellant’s identity.
Court File No. C36641
COURT OF APPEAL FOR ONTARIO
THE HONOURABLE JUSTICES
Friday, the 13th
DOHERTY, ROSENBERG and MOLDAVER
day of July 2001
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
K. S. Y.
Respondent/Appellant
D R A F T O R D E R
UPON READING THE APPLICATION FOR A SEALING ORDER in writing, dated the 10th day of July 2001, by counsel for the Attorney General of Canada, joined in by the Attorney General of Ontario, and upon reading the Affidavit of Toronto Police Detective Sergeant Randy Franks, dated July 5, 2001, and the endorsement of Osborne A.C.J.O., dated July 11, 2001, and hearing the submissions of counsel.
IT IS ORDERED THAT:
Publication of the Appellant’s name is prohibited pending further order by the court.
The affidavit of Toronto Police Detective Sergeant Randy Franks, dated July 5, 2001 be sealed and that the Respondent, his counsel or any other member of the public not be permitted access to the sealed envelope, subject to the further order of this court or subject to any disclosure made by the Attorney General for Canada or the Attorney General for Ontario. This order expires as of January 13, 2002 unless otherwise ordered by the court.
The Registrar of this court is directed to act as custodian of the sealed envelope and to ensure that the envelope is kept separate and in a secure and locked place subject to further order of this court.
The Registrar of this court is directed to affix a copy of this order on the sealed envelope.
Counsel for the crown will provide a copy of this order and the accompanying endorsement to one of the Toronto daily newspapers and to one of the radio/t.v. media outlets in the City of Toronto. That material shall be provided by July 20, 2001.
Notice to the media representatives referred to above will be given by the Crown on any subsequent motion to renew, vary or otherwise deal with this order.
___________________________ Court of Appeal for Ontario