Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021-02-11 COURT FILE No.: 4011-998-21-401000098-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Ex Parte

Reasons for Decision

[1] On February 10, 2021 a written application was brought before me in Intake Court for a publication ban under section 486.4(2.2) of the Criminal Code of Canada. The Application was attached to an information alleging a sexual assault. The information was received in E Intake on February 10, 2021 by HW T. A Hodgins.

[2] The Application is signed by Cst. Tammy Jetty-Bedard of the Greater Sudbury Police Service.

[3] The Application was delivered by Cst. Jason Freimanis of the Greater Sudbury Police Service. It is my understanding this process results from a memo the police force received from the Ministry of the Attorney General Crown Law Division. The police will seek publication bans via Intake Court when an accused person is charged with offences enumerated in section 486.4(1)(a)(i). The rational for this is explained in the application itself.

[4] I accepted the Application however advised Cst. Freimanis that the Court did not have jurisdiction to make a publication ban ex parte at the intake stage. Since jurisdiction was a condition precedent to considering the application, I advised Cst. Freimanis that I would provide written reasons. The following are my reasons.

[5] The application is firstly signed and made by a police officer. It is trite to say that the police and crown offices are two distinct entities. The application is not signed by a crown attorney and therefore the application is not made by a crown attorney. This is fatal to the application and therefore the application must be dismissed.

[6] Had the application been signed and submitted by a crown attorney or even simply signed and delivered to Intake Court as a courtesy from the police, the application would still be dismissed for lack of jurisdiction.

[7] Section 486.4 provides that a “presiding” judge or justice may make a publication ban and in some cases shall if requested by the Crown. However, Criminal Code proceedings before a justice in Intake Court do not equal open court proceedings when thereafter the case moves forward in the criminal justice system. Intake Court proceedings are unique in that the public is not granted a right to attend and witness proceedings in court. The question therefore presents itself as to when and where a request for a publication ban can be made.

[8] Canada has a strong public policy in favour of "openness" regarding judicial acts. There is a presumption that Courts are open. For those who attend or for the accused compelled to attend, this is where post intake judicial determinations are made. One such determination is publication bans. The Court recognizes that with sexual offence under 486.4 an individual’s privacy and a person’s safety are more important than the public’s right to access the details in a court proceeding. However, that an order under section 486.4(2.2) is mandatory when applied for by the Crown in open court does not detract from our strong public policy in favour of openness in the process itself. When such an order is made in open court it is presumptively known to the world. It serves "public accessibility and a concomitant judicial accountability". A.G. (Nova Scotia) v MacIntyre, [1982] 1 SCR 175 (Dickson CJ). The publication ban order therefore cannot be made in Intake Court where essentially no public notice to the accused and the world can be given. That this take place in open court is important for everyone.

[9] Some ex parte applications are allowed under the Criminal Code of Canada. However, I can find no authority for an ex parte application at the intake/ swearing of the information stage. The Court is highly sympathetic regarding the reasons the publication ban application process has been initiated. However, sitting as a Justice of Peace, the Court has no inherent jurisdiction to do anything other than what is strictly provided by statute. Since I cannot find this authority in the language of section 486.4 or anywhere else in the Criminal Code, I would decline to grant the application at this stage. The proper forum is open court with the accused person present and anyone else who may want to be in court or otherwise is present. Having an open court allows the community to know what is happening and thus have confidence that the justice system is working fairly.

[10] It is worthy to be noted that under s. 486.5(6), an order can be made to direct that the application for a publication ban under s. 486.5 be heard in private. Even in those cases, the Criminal Code does not provide that it can be done ex-parte. This section does not apply to section 486.4 publication ban requests. However, it demonstrates that the legislative intent in section 486, when read in its entirety, is that publication ban processes made in private would be an exception and not the rule. Had Parliament intended otherwise regarding 486.4 it would have provided so in the language of the section.

[11] I would be remiss if I did not mention that the Court is of the view there are alternatives to the process initiated that resulted in the application before me. For example, on arrest and release of a person regarding offences enumerated in section 486.4(1)(a)(i), the police can make the first appearance date the next First Appearance day. An Information can be sworn in time for the first appearance date and the Crown can apply on that day. Any administrative hardships caused by any alternative approaches are justified in assuring the sanctity of the open court process.

J. Andre Guitard Justice of the Peace