Court Information
Ontario Court of Justice
Date: June 27, 2018
Parties
Between:
The Globe and Mail Inc., The Canadian Broadcasting Corporation, CTV News, a division of Bell Media Inc., Postmedia Network Inc., Toronto Star Newspapers Limited (Applicants)
— And —
Her Majesty the Queen
Before the Court
Justice: Chapin
Heard: June 21, 2018
Reasons for Judgment Released: June 27, 2018
Counsel
Ms. T. Park — counsel for the Applicants
Mr. J. Scutt and Mr. C. Harper — counsel for the Crown
Mr. J. Miglin — counsel for Bruce McArthur
Mr. I. Kasper — counsel for Jerry Herszkopf
Ms. S. Khow — counsel for the Chief of the Toronto Police Service
Judgment
Chapin, J.:
Introduction
[1] This is the first of two rulings on an Application brought by the Globe and Mail, Canadian Broadcasting Corporation, CTV News and the Toronto Star Newspapers Limited for an Order granting them access to copies of exhibits filed in the proceedings in January and April of 2003 wherein Mr. Bruce McArthur pleaded guilty to assault causing bodily harm and assault with a weapon. Mr. McArthur is currently facing 8 counts of first degree murder involving 8 male victims who were associated with the Gay Village in Toronto. This case has garnered international media attention hence the interest in Mr. McArthur's past convictions.
[2] The transcript of the guilty plea and the sentencing hearing have already been released to the media. However, it appears that the original exhibits as well as the exhibit list filed during those proceedings were destroyed 7 years after the conclusion of the proceedings in accordance with the Toronto Police Service Retention Policy.
[3] Copies of the Pre-sentence Report and the Psychological Report were obtained by the Crown from Probation Services. The Toronto Police Service provided the court with black and white photocopies of photographs from the investigative file; however, it was determined that they were not true copies of the original exhibits filed at the 2003 proceedings and were returned to counsel for the Toronto Police Service. A one page colour photocopy of what can be described as a contact sheet with numerous numbered photographs of the victim's injuries and the steel pipe was produced to the court from counsel for Mr. Herszkopf. After the parties compared the description of the photographs filed in the transcript of the guilty plea on January 29, 2003 in the courtroom all agreed that the colour photocopy of the contact sheet was a true copy of the original exhibit filed. The copies were marked as lettered exhibits on this proceeding and were sealed. This ruling will address the pre-sentence report and the psychological report. The photographs will be addressed in a subsequent ruling.
[4] The guilty plea was entered on January 29, 2003 before Justice Bassel at Old City Hall in Toronto. The male victim and Mr. McArthur were familiar with one another but to a limited extent. On October 31, of 2001 Mr. McArthur went to the victim's apartment and struck him from behind with a metal pipe several times causing injuries to the victim's hands which required six weeks of physiotherapy, bruising to his body, and a 5 inch cut to the back of his head that required stitches.
[5] Mr. McArthur's position during the guilty plea proceedings was that he did not recall what had happened during the attack because he had blacked out. The complainant recalled letting Mr. McArthur into his residence but beyond that had no recall of the event upon regaining consciousness because of the blows to his head and other parts of his body. When the victim woke up he called 911 and police attended. Mr. McArthur turned himself in at police headquarters saying that he thought he had hurt someone and the police were able to determine who the complainant was through the 9-1-1 call. Mr. McArthur said he didn't know why he committed the offences but admitted to consuming amyl nitrate (known colloquially as "poppers") on that evening.
[6] Justice Bassel ordered a pre-sentence report and counsel for Mr. McArthur advised the court that he was going to have his client assessed by a psychiatrist. The case went over to April 11, 2003 for sentencing submissions and judgment on sentence. On that date the pre-sentence report was entered as an exhibit as was a psychological report. The Crown advised the court that initially he was of the view that a sentence involving real jail time was required; however, after reading the pre-sentence report and the psychologist's report he was prepared to join counsel for Mr. McArthur, Mr. Herszkopf, in recommending a conditional sentence of two years less a day to be followed by three years of probation.
[7] Justice Bassel indicated that he was influenced by the positive pre-sentence report and by the report of Dr. Dionne that indicated that there was a low risk that Mr. McArthur would reoffend. Justice Bassel acceded to the joint recommendation and sentenced Mr. McArthur accordingly. There was no request for a publication ban or an order sealing any of the exhibits in either proceeding.
Position of the Applicants
[8] The Applicants rely on the open court principle and the rights conferred by s. 2(b) of the Charter in their submission that copies of the exhibits filed should be released unless a party who is opposed to the release can satisfy the requirements of the two part test set out in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. The test is that:
A publication ban should only be ordered when:
(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.
[9] The Applicants further submit that the case law that has developed highlights the important policy considerations behind the open court principle and rely on the decision of the Supreme Court of Canada in Vancouver Sun (Re), 2004 SCC 43, [2004] 2 SCR 332 at paragraph 25 where the court said:
Public access to the courts guarantees the integrity of judicial processes by demonstrating "that justice is administered in a non-arbitrary manner, according to the rule of law": Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22. Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public's understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.
[10] The Applicants point to a number of factors that support their position that the exhibits should be released:
the Crown and the trial judge referred to all of the exhibits during the course of the proceedings,
the pre-sentence report and psychological report played a significant role in the Crown's decision to agree to recommend a joint position of a conditional sentence of two years less a day to be followed by 3 years of probation rather than a sentence involving real jail time and the public are entitled to scrutinize the reports that the crown and trial judge relied on in reaching their decisions,
many details of Mr. McArthur's life are part of the public record and the transcripts are in the public domain as media have already reported on the 2003 proceedings after the transcripts were obtained by the Toronto Star,
The proceedings were open,
There was no publication ban,
the exhibits were filed on consent of both of the parties,
The exhibits were not sealed and formed part of the court record,
There is nothing in the exhibits that is so inflammatory that would prevent Mr. McArthur from getting a fair trial, and
Any claim by counsel for Mr. McArthur that his fair trial rights would be prejudiced would be pure speculation.
Given all of the factors listed above the Applicants take the position that the open court principle should apply and the Order for access should be granted.
Position of the Respondents
Position of Crown
[11] Mr. Scutt, on behalf of the Crown, submits that there is nothing in the psychological report or the pre-sentence report that is so prejudicial such that the presumption of openness would be rebutted. The Crown relies on the decision in R. v. Bartholomew, [2017] O.J. No. 2567 (ONSC), where a psychiatric report of the complainant from an unrelated criminal proceeding against him was disclosed to the accused based on the open court principle. Mr. Scutt submits that the reports should be released given that they can be characterized as generally positive, were discussed in open court and were not sealed.
[12] However, the Crown submits that it would be appropriate to redact the information with respect to Mr. McArthur's family members as none of them were source material for the report and they were not referred to in the transcript. Further, he points to the fact that there is nothing that arises from Mr. McArthur's family members that had any impact in the reasoning of the judge in sentencing Mr. McArthur. Mr. Scutt submits that their names should be redacted or a publication ban should be ordered with respect to their names.
Position of Bruce McArthur
[13] Counsel for Mr. McArthur, Mr. Miglin, submits that the release of the pre-sentence report and psychological report to the media would create a serious risk Mr. MacArthur's fair trial rights and the administration of justice. Further he submits that this serious risk is grounded in the evidence provided to the court in this proceeding.
[14] Mr. Miglin submits that the reports are very detailed and provide a lot of information about Mr. McArthur's family members who were not source material. He also argues that the nature of the psychological report that Justice O'Donnell granted access to in R. v. CBC et al, 2013 ONCJ 164, was quite different as it appeared to be a brief letter as compared the full psychological report filed as an exhibit in the 2003 proceedings which included negative findings about his client. He further submits that the description of the offence in the psychological report is not in Mr. McArthur's words and publication of the reports would be highly prejudicial.
[15] If I was to consider releasing the pre-sentence report and psychological report Mr. Miglin submits that I should redact information relating to Mr. McArthur's description of what had occurred on the offence date and either redact the names of family members or impose a publication ban on the names of the family members to protect their privacy interests given that there is little public interest in that information.
Position of the Toronto Police Service
[16] Counsel for the Toronto Police Service essentially adopts the submissions of the Crown and submits that the privacy rights of the complainant and the family members of Mr. McArthur should be protected by either redaction or the imposition of a publication ban of the relevant portions of the reports.
Position of Mr. Herszkopf
[17] Counsel for Mr. Herszkopf takes no position on the Application.
Analysis
[18] The case law has been very clear since the decision of the Supreme Court of Canada in Nova Scotia v. MacIntyre, [1982] 1 S.C.R., that the entire court process should be accessible to the public subject to very limited circumstances. This open court principle is an important public policy as it provides transparency in court proceedings and ensures that the judiciary are accountable to the public. The open court principle also extends to access to search warrants and court exhibits. See Re. Vancouver Sun, supra. The right of the freedom of expression including the freedom of the press and other forms of media communications is firmly entrenched in s. 2(b) of the Canadian Charter of Rights and Freedoms.
[19] The court has jurisdiction over its own exhibits and that jurisdiction applies to copies of exhibits where the original exhibits cannot be found, provided that the court can be confident that the copies are true copies of the original exhibits. The right of the public to access these exhibits is presumptive and will only be curtailed in very limited circumstances. See: CTV Television Inc. v. Ontario Superior Court of Justice, 59 O.R. (3d) 18 ONCA. Again I note that all parties are in agreement that the documents that have been marked as lettered exhibits on the Application are true copies of the original court exhibits. The right of the media extends not only to access to exhibits but also to copying, publishing and broadcasting the contents of exhibits. See: Canadian Broadcasting Corporation v. R., 2010 ONCA 726, 102 O.R. (3d) 673 ONCA.
[20] The party seeking to limit access to court exhibits must satisfy the two part test in Dagenais/Mentuck. Therefore, in this case access to the exhibits should only be restricted if the Respondents can satisfy the court, on a balance of probabilities, that denial of access or restricted access is necessary to prevent a real and substantial risk to the fairness of the trial because reasonably available alternative measures will not prevent the risk. And, that the salutary effects of denying access or restricting access of the exhibits outweighs the deleterious effects to the free expression of those affected by such an Order.
[21] When applying this test there are a number of factors to consider including, as noted above, the fair trial rights of an accused, whether exhibits were sealed, whether or not there was a publication ban on the proceedings, the extent to which information contained in the exhibits is already in the public domain and the privacy rights of individuals.
The Psychological Report of Dr. Marie-France Dionne dated March 19, 2003 and the Pre-Sentence Report of Julia Palladino dated April 4, 2003
[22] In my view these two reports can be considered together given that their purpose was to provide background information including a risk assessment of Mr. McArthur. The fact that these documents were provided on consent of both parties and were referred to by the Crown and the judge at the sentencing hearing militates strongly for the position that access should be granted. Other factors that support access to these reports include the fact that there was no publication ban, no sealing order and anyone could have attended the proceedings, obtained copies of the exhibits and published or broadcast the contents of the exhibits. See: R. v. Bartholomew supra. These factors weigh heavily against any Mr. McArthur's claim that the release of these reports would pose a serious risk to his fair trial rights.
[23] I have reviewed the decision of my colleague Justice O'Donnell in R. v. CBC et al., 2013 ONCJ 164, where he found that it was appropriate to allow an Order seeking access to a psychiatric letter filed in open court in support of a particular sentencing position for Mr. Newman (aka Luka Magnotta) after pleading guilty to four counts of fraud ten years earlier. The media were seeking access to the psychiatric letter because of the murder charge that Mr. Magnotta was facing. The letter had not been marked as a formal exhibit but it was attached to the paperwork and the judge hearing the guilty plea relied on it in determining the appropriate sentence to be imposed.
[24] In coming to the conclusion that the psychiatric letter was to be released to the applicants and to any other person requesting a copy Justice O'Donnell also considered that the letter was relatively benign and that aspects of the letter were already in the public domain because of publication of the transcript in the Globe and Mail. He also considered that it was unlikely that potential jury members would retain any memory of the contents of the report in this age of the internet with the overwhelming volume of material available on any given day.
[25] Although counsel for Mr. McArthur argues that the psychological report is likely lengthier than the report in the aforementioned case, that is not clear on the evidence I have before me. Mr. Miglin argued that there were some negative aspects in the reports; however in my view those comments are minor and are substantially outweighed by the positive findings in both reports. I have considered Mr. Miglin's submission that Mr. McArthur's account of what had occurred on the offence date in the psychological report should be redacted and I decline to do so. Mr. McArthur's explanation in the report is essentially the same version of events that was read into the record and agreed to by Mr. McArthur as being correct.
[26] The overall character of the reports is positive – which is no doubt why his counsel at the time consented to have them filed as exhibits. Therefore, counsel for Mr. McArthur has not met the first branch of the Dagenais/Mentuck test that there would be a serious risk to his fair trial rights if the reports are released to the Applicants.
[27] However, I do take the Crown's point and that of counsel for the Toronto Police Service that the family members referred to in both reports should not be named as they were not source material for either report. Therefore I will allow the media to obtain copies of the two reports with the names of the family members redacted as well as any information as to where the family members reside.
[28] The clerk of the Ontario Court of Justice at Old City Hall shall release the reports with the redactions I have ordered to the Applicants and any other person requesting copies.
[29] A copy of these reasons will be attached to the application materials.
Released: June 27, 2018