Court File No.: 370/06 and 388/06

Released: 20070129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Gregory Forestall et al. v. Toronto Police Services Board and Toronto Chief of Police, William Blair (Court File No. 370/06)

PC Steven Correia #1081 et al. v. Toronto Police Services Board and Toronto Chief of Police, William Blair (Court File No. 388/06)

Before: Swinton J.

Counsel: Joanne E. Mulcahy for Correia et al., Moving Parties (Applicants) Frank Addario for Forestall et al. (Applicants) Owen Rees for the Chief of Police, Responding Party (Respondent) Sharmila M. Clark for Toronto Police Services Board, Responding Party (Respondent) Tony Wong for Toronto Star, Sun Media, and Canadian Broadcasting Corporation (Intervenors)

Heard at Toronto: January 26, 2007

ENDORSEMENT

1The Correia applicants have brought a motion for a publication ban and a sealing order related to these applications for judicial review. The Toronto Star, Sun Media and the Canadian Broadcasting Corporation sought and were granted leave to intervene in this motion.

2The applicants seek a ban on the publication of a confidential report made by the Chief of Police William Blair dated March 7, 2006 until the completion of their criminal trials. This report was made in support of an application seeking leave of the Toronto Police Services Board pursuant to s. 69(18) of the Police Services Act, R.S.O. 1990, c. P.15 to serve notices of hearing more than six months after the facts on which they were based came to his attention. After an in camera hearing, the Board granted leave, which gave rise to these applications for judicial review.

3The applicants also seek an order sealing those parts of the Court files containing the Chief’s report and references to its content. In the alternative, they seek an order controlling access to that material.

4The Correia applicants have all been charged criminally, and they have a trial date in the Superior Court in January, 2008. A publication ban was ordered at the preliminary inquiry pursuant to s. 539 of the Criminal Code, and there have been orders in both the Ontario Court of Justice and the Superior Court of Justice controlling access to exhibits.

5Pursuant to ss. 135 and 137 of the Courts of Justice Act, R.S.O. 1990, c. C.43, court proceedings and court documents are presumptively open to the public. The Supreme Court of Canada has emphasized the principle of open courts is tied to the right to freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms (Canadian Broadcasting Corporation v. New Brunswick (Attorney General), 1996 184 (SCC), [1996] 3 S.C.R. 480 at 496; Vancouver Sun (Re), 2004 SCC 43, [2004] S.C.J. No. 41 at paras. 24-26). It, too, has stated that court proceedings are presumptively open in Canada (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 at para. 4).

6In determining whether a publication ban or sealing order should be granted, a party seeking such an order must satisfy a two-part test. First, on the basis of specific evidence, the party must show that an order is necessary in order to prevent a serious risk to the proper administration of justice, because reasonably alternative measures will not prevent the risk. Second, the party must show that the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice (R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at para. 32; Dagenais v. Canadian Broadcasting Corporation, 1994 39 (SCC), [1994] 3 S.C.R. 835 at p. 878).

7In this case, the applicants submit that there is a real risk to their right to a fair trial if the orders are not made. Specifically, they submit that a publication ban is necessary to prevent future jurors in the criminal trial from obtaining information that has been the subject of the publication ban at the preliminary inquiry or which would constitute inadmissible evidence of bad character. Included in the motion record was a collection of many news articles concerning the applicants as evidence of the extensive media coverage of the investigation and charges.

8With respect to the sealing order, the applicants submit that there is a real risk that witnesses will have access to the court files, and they will be able to tailor their evidence, thus rendering useless any order excluding witnesses at trial.

9In Mentuck, Iacobucci J. emphasized the importance of evidence to establish a “serous risk”, stating at para. 39:

It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing the ban.

10The applicants filed an affidavit from lawyer Vanessa Arsenault setting out the risks to the proper administration of justice if the orders sought were not made. After reading that affidavit as well as the report in issue, I have concluded that the applicants have not met the onus of showing a serious risk to the administration of justice if the orders sought are not granted.

11I start with the sealing order, which would either prevent access or control access to the content of Chief Blair’s report and references to its content in other material such as the facta until after the criminal trial. The applicants submit that there is a real risk that witnesses will tailor their evidence if permitted access to the information before trial.

12Having read the report, I reject the submission that there is a real risk that witnesses will tailor their evidence if they have access to the court file. The report describes the history of the investigations into the conduct which gave rise to the Notices of Hearing and seeks to explain the reasonableness of the delay in taking disciplinary action. It does not review in any significant detail specific acts of misconduct by particular officers, with the possible exception of Constable Maodus. Even with respect to him, similar information is actually found in a number of the newspaper articles in the applicants’ motion record. Therefore, I am not satisfied that there is a real risk of witness tainting if the report and related references are not sealed.

13The applicants also seek a publication ban of the contents of the report and references to it until the completion of the criminal trial. They submit that a publication ban relating to the report is necessary to ensure the effectiveness of the publication ban made at the preliminary inquiry and to ensure that their right to a fair trial in the criminal proceedings is not compromised.

14Again, having read the report, I am not satisfied that there is a real risk to the fair trial rights of the applicants if a publication ban is not ordered. While there is a publication ban in effect with respect to the evidence given at the preliminary inquiry, I am not satisfied that the material in the report will undermine that ban, given its general nature. Moreover, one of the major concerns in the Arensault affidavit seems to be the risk to a fair trial because of the extensive media attention to date. I am not satisfied that press access to the Chief’s report will aggravate the situation.

15In any event, in order to obtain a publication ban, the applicants must demonstrate that there are no reasonable alternative measures that will prevent the risk. Given the media attention to date, one would expect the defence to seek to challenge for cause on the basis of pre-trial publicity at the criminal trial. Such a challenge plus appropriate pre-trial instructions are, in my view sufficient alternatives to address any risk to a fair trial that might result from publication of the contents of the report.

16As the applicants have not satisfied the first part of the Dagenais/Mentuck test, the motion for a publication ban and sealing order is dismissed. Therefore, the publication ban in effect pending the return of this motion is spent.

17The Chief of Police and the Toronto Police Services Board do not seek costs, and none are awarded.

18The intervenors seek costs of $5,000.00. The applicants submit that there should be no costs, given that this motion follows a number of sealing order motions which they have been required to litigate through the course of the criminal proceedings at significant cost.

19However, costs normally follow the event in civil proceedings, and the applicants have failed to obtain an extraordinary remedy. As this was not a particularly complex motion, costs to the intervenors are fixed at $2,000.00 payable by the moving parties in 30 days.

Swinton J.