Court File and Parties

Court File No.: CR-21-0174 (London) Date: 2023-09-07 Delivered orally and in writing – September 7, 2023

Ontario Superior Court of Justice

BETWEEN: HIS MAJESTY THE KING Applicant – and – Nathaniel Veltman Respondent CTV News, a Division of Bell Media Inc., Canadian Broadcasting Corporation, Toronto Star Newspapers Limited, Postmedia Network Inc., and The Globe and Mail Inc. Media Coalition/Intervenors

Counsel: Jennifer Moser, Fraser Ball, Counsel for the Provincial Crown Sarah Shaikh and Kim Johnson, Counsel for the Federal Crown Christopher Hicks and Peter Ketcheson, Counsel for the Respondent Iain A.C. MacKinnon, for the Media Coalition/Intervenors

Heard: July 26 and 28, 2023

Ruling on Application for Publication Ban

[1] This ruling deals with a Crown request for a publication ban on certain evidence to be adduced at the accused’s trial.

[2] Nathaniel Veltman is charged with four counts of first degree murder and one count of attempted murder. The charges arise out of an incident whereby the accused drove his vehicle into a family of five Muslim individuals walking on the sidewalk. Four of the family members died as a result of the event. One, a young boy, is the lone survivor.

[3] The Crown alleges that the accused deliberately drove into the victims because they were Muslims. It is alleged that the accused was engaged in a terrorist act, based on his ideological views rooted in right wing extremism. In aid of the prosecution, the Crown seeks to lead what it calls a “manifesto” found on the accused’s computer: a document entitled “A White Awakening”. In an earlier ruling, I held that this document is admissible as probative evidence, necessary to enable the Crown to establish the elements of a terrorist act. I ruled that the Crown was not entitled to simply file the entire document for the jury to peruse as it wishes. Rather, those portions relied upon by the Crown must be introduced in open court, and only those portions should be made available to the jury during its deliberations.

[4] As a result of my ruling, the Crown intends to read portions of “A White Awakening” into the record during the trial.

[5] The Crown now seeks a permanent publication ban as it relates to those portions of “A White Awakening” that will be introduced at the trial. It is said that the publication of the excerpts from the document will result in public harm, as the evidence could inspire other like-minded individuals to engage in copycat crimes. It is argued that the excerpts from the document could contribute to sites on the dark web, accessible to right wing extremist groups. The Crown seeks an order that would allow the media to describe the evidence, but not quote from it. The Crown seeks a permanent order, rather than one that will expire at the conclusion of the trial.

[6] The Crown also seeks a permanent publication ban on the unredacted version of “A White Awakening” that was filed as part of the pre-trial motions in this case. Those portions that were redacted will not be presented at trial. The media nonetheless argues that it should have access to the unredacted document, to ensure that the public can understand what was edited and why. The Crown argues that the document, not entered into evidence, should be permanently sealed.

[7] The Crown relies on the affidavit of Daniel Peel, an RCMP Senior Civilian Intelligence Analyst, in which he describes the role that manifestos play in “communicating public statements of intent, justifying violent crime, thereby inspiring future acts of terrorism.” Peel outlines the manner in which manifestos of terrorist actors are used to inspire future attacks, whereby “the baton” is passed from one actor to others. It is Peel’s opinion that the dissemination of further manifestos could mobilize or inspire future acts of terror.

[8] The Crown initially requested a publication ban on the manifesto entitled “The Great Replacement”. This document was authored by Brenton Tarrant, the man responsible for the Christchurch New Zealand Mosque shootings. Evidence would indicate that the accused opened the Tarrant manifesto on his computer just 20 minutes before leaving his apartment on the day of the incident. The Crown has since withdrawn its request regarding The Great Replacement, as this document is already very much in the public domain and has already been broadly disseminated.

[9] The Crown seeks a publication ban on video footage that depicts, from a distance, the accused’s truck driving into the victims. The media representatives before the court did not take issue with this request, indicating that they will not seek to broadcast the moment of impact. The media does, however, seek access to the video as it depicts the scene leading up to and immediately after the impact. The Crown and media disagree on precisely how much of the video should be redacted for purposes of media access.

[10] The media opposes the request for a publication ban, arguing that the Crown has failed to meet the test for a restriction on publication. For purposes of this application, I granted intervenor status to a coalition of media organizations consisting of CTV News, A Division of Bell Media Inc., Canadian Broadcasting Corporation, Toronto Star Newspapers Limited, Postmedia Network Inc., and The Globe and Mail Inc. I will refer to this group as “the media” for purposes of this decision.

[11] The media argues that context is critical. This is not a case about the exchange of hate speech amongst like minded individuals on extremist websites. Rather, this case is about credible mainstream media and journalists reporting on trial proceedings. The media argues that there is no evidence to suggest that responsible reporting on trial proceedings contributes to the risk of harm identified by the Crown. The media argues that the Crown has failed to demonstrate a credible risk of harm to an important public interest. Nor has the Crown satisfied the other limbs of the test governing restrictions on public access to court proceedings.

[12] I have determined that the open court principle – a foundational pillar of our justice system – militates against the requested ban on publication, as it relates to those portions of “A White Awakening” that will be introduced at the public trial proceedings. As for the unredacted copy of the document, it will remain sealed pending the conclusion of the trial, at which time media access may be revisited. The media may have access to the video of the event up until the point at which the accused’s vehicle jumps the curb.

[13] I will elaborate on these conclusions in the reasons that follow.

General Principles

[14] The analysis must begin by recognizing the importance of public access to court proceedings through media reporting. The Supreme Court of Canada has consistently recognized the constitutional rights of the media, and the public that it serves, as fundamental to democracy. As Thomas R.S.J. put it in his decision regarding access to a family law file in this same case, Veltman v. Veltman, 2021 ONSC 7183, at para. 13:

There is perhaps no more eloquent statement than the opening line of Justice Fish in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188: “In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.”

[15] The open court principle is deeply rooted in the Canadian justice system. It is one of the hallmarks of a democratic society and deserving of constitutional protection: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at para. 22. Curtailing public access can be justified only where there is a need to protect social values of superordinate importance: R. v. Canadian Broadcasting Corp., 2010 ONCA 726, 102 O.R. (3d) 673. Section 2(b) of the Charter enshrines not only the media’s right to publish information about court proceedings, but also the rights of listeners/readers to receive that information. The media is the mechanism by which most members of the public learn about what takes place in Canadian courtrooms. Public awareness and scrutiny of court proceedings is critical to a functioning democracy.

[16] The importance of open court proceedings has been the subject of much judicial commentary. Some examples include the following: see Windels v. Canadian Broadcasting Corp., 2022 SKCA 72, at para. 21:

…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 decisions of courts.

• Vancouver Sun (Re), 2004 SCC 43 at paras 24-26 …

22. The party seeking a publication ban or restriction on access must adduce evidence which establishes that a ban is necessary to prevent a serious risk to the important public interest. The inherent jurisdiction of the Court must only be exercised if the ban is supported by cogent evidence. Without an evidentiary basis setting out the clear and present risk to the important interest identified, the Court should refuse to exercise its discretion to continue the Publication Ban and Sealing Order. [Emphasis in original]

• Canadian Broadcasting Corp v New Brunswick (Attorney General), [1996] 2 SCR 480 at para 22 [CBC v New Brunswick] at paras 71-76…

23. The presumption is that courts are open and accessible to the public and media. This principle is fundamental to democratic society and acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law. The open court principle should only be curtailed “where there is present the need to protect social values of superordinate importance”.

• CBC v New Brunswick at para 22…
• AG (Nova Scotia) v. MacIntyre, [1982] 1 SCR 175 at 186 [MacIntyre]…

[17] Recently, the Supreme Court affirmed these principles in Sherman Estate v. Donovan, 2021 SCC 25 at para. 39:

The discretion is structured and controlled in this way to protect the open court principle, which is understood to be constitutionalized under the right to freedom of expression at s. 2 (b) of the Charter (New Brunswick, at para. 23). Sustained by freedom of expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental to newsgathering. This Court has often highlighted the importance of open judicial proceedings to maintaining the independence and impartiality of the courts, public confidence and understanding of their work and ultimately the legitimacy of the process (see, e.g., Vancouver Sun, at paras. 23‑26). In New Brunswick, La Forest J. explained the presumption in favour of court openness had become “‘one of the hallmarks of a democratic society’” (citing Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 113 (C.A.), at p. 119), that “acts as a guarantee that justice is administered in a non‑arbitrary manner, according to the rule of law . . . thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice” (para. 22). The centrality of this principle to the court system underlies the strong presumption — albeit one that is rebuttable — in favour of court openness (para. 40; Mentuck, at para. 39).

[18] In Sherman Estate at para. 38, the Supreme Court set out the test for restriction on publication. It is a strict and demanding test, given the importance of the open court principle:

The test for discretionary limits on presumptive court openness has been expressed as a two‑step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22).

Application to this Case: Excerpts to be Introduced at Trial

[19] I will now turn to the circumstances of this case, beginning with the excerpts of “A White Awakening” that will be introduced into evidence at trial.

[20] The first question is whether publication would pose a serious risk to an important public interest. The proponent of the ban must establish, through evidence, the existence of an important public interest, and a “serious risk” to that interest should publication be permitted. As it was put in Sherman Estate, at para. 42:

While there is no closed list of important public interests for the purposes of this test, I share Iacobucci J.’s sense, explained in Sierra Club, that courts must be “cautious” and “alive to the fundamental importance of the open court rule” even at the earliest stage when they are identifying important public interests (para. 56). Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute (para. 55). By contrast, whether that interest is at “serious risk” is a fact‑based finding that, for the judge considering the appropriateness of an order, is necessarily made in context. In this sense, the identification of, on the one hand, an important interest and, on the other, the seriousness of the risk to that interest are, theoretically at least, separate and qualitatively distinct operations. An order may therefore be refused simply because a valid important public interest is not at serious risk on the facts of a given case or, conversely, that the identified interests, regardless of whether they are at serious risk, do not have the requisite important public character as a matter of general principle.

[21] Here, the Crown argues that the publication of excerpts from “A White Awakening” will harm the public interest because it amounts to dissemination of hate speech; it may inspire others to engage in similar conduct. The Crown has filed evidence documenting the harms associated with dissemination of hate speech, including so called “manifestos” authored by mass killers. The Crown evidence establishes that manifestos are digitally passed on like a baton from one attacker to another, with each successive manifesto inspiring the next attacker. The Crown argues that publication of this evidence would create a substantial risk that some individuals will commit “copycat” acts of terror or violence.

[22] The evidence cited by the Crown would indicate that publication of manifestos by like-minded individuals on extremist websites causes public harm. However, that is not what is at issue in this case. The proposed publication is not aimed at disseminating hate speech or encouraging hate-motivated acts of violence. To the contrary, the publication is aimed at informing the public about a prosecution of violence allegedly motivated by hate speech.

[23] I agree with the media that “context is everything.” Responsible journalistic reporting on trial proceedings is necessary to allow the public to understand the charges and any verdicts reached by the jury. The reporting is not aimed at endorsing or legitimizing the messages contained in “A White Awakening”. Rather, it aims to explain why that document is at the heart of a significant criminal trial. The reporting is designed to educate the public on the very harms alleged by the Crown.

[24] The Crown has not led any evidence to indicate that media reporting on trial proceedings gives rise to harm. The Crown’s evidence deals with the sharing of manifestos on extremist networks. There is no basis for concluding that the risk of harm is the same in both contexts. Common sense would suggest that they cannot be equated. Hate speech causes harm. The prosecution of hate speech – or activity allegedly inspired by hate speech – if successful, seeks to deter and publicly denounce this type of conduct.

[25] Canadian criminal trials must be subject to public scrutiny. Trials must not be secret affairs. As Aharon Barak put it in his book, The Judge in a Democracy (Princeton, N.J.: Princeton University Press, 2006), at 315: “as [we] sit at trial, [we] stand on trial.” The accused has the right to a fair trial, and the public has a right to see that that promise is fulfilled. Whatever the ultimate verdicts, the public has a right to know the basis for those verdicts – the evidence that was before the jury for its consideration.

[26] The Crown argues that, despite the best efforts of responsible journalists to present the evidence properly, there is a risk that other individuals who share the ideologies expressed in “A White Awakening” will use the information in reports for nefarious purposes. It is said that persons who share those views will disseminate the information contained in “A White Awakening” on extremist websites, and that this hateful rhetoric may be used to incite or inspire other hate related killings.

[27] I accept that the manifesto evidence may be misused by some individuals. However, I do not see this as a basis for depriving the broader public of information about the proceedings.

[28] First, to the extent that exposure to the evidence can radicalize or inspire others to commit similar crimes, this evidence will be heard by those who attend the trial in person or observe the webinar in an overflow venue. In other words, the evidence will be in the public domain, whether or not publication is banned.

[29] Second, many of the sentiments contained in “A White Awakening” are expressed by the accused in his statement to police, which will also be evidence at the trial. In his statement, the accused spoke at some length about his views and how he came to hold them. He spoke about those who inspired him to act, and his wish to inspire others. The sentiments contained in “A White Awakening” are replicated in other evidence to be introduced at the trial. The Crown argues that it has struck a reasonable balance because it is not seeking to ban publication of the statements. It would be very difficult to justify a non-publication order on the accused’s statement to police. Yet, given the overlap in content, it seems arbitrary to allow some, but not all, of this evidence to be published. Content is more important than packaging. The medium is not always the message.

[30] Third, the evidence in question is a key part of the case for the prosecution. In ruling this evidence admissible, I accepted the Crown’s argument that the manifesto is evidence of ideological motivation and therefore critical to proof of the terrorism allegations. The proposed ban would keep from the public evidence that lies at the very heart of the prosecution.

[31] The Crown says that manifestos carry special significance among white supremacists. Does this mean there is a risk that some might misuse the information contained in media reports? Perhaps. There is always the possibility that some individuals might distort or misuse information in the public domain. However, those individuals are not the yardstick for measuring public interest. The potential actions of a few should not deprive the many of access to evidence led at a public trial. To hold otherwise is to have the tail wag the dog.

[32] Furthermore, to the extent that the evidence could encourage copycat offences, it will be heard in open court during the course of the trial. Those attending at the courthouse in Windsor, or in the broadcast rooms in London, will hear this evidence whether or not there is a publication ban. The mischief identified by the Crown could well manifest if those in attendance view evidence through an extremist lens.

[33] This leads to the fourth point, namely, that within the community of those who share extremist ideologies, the accused’s actions and words may be glorified whether or not the words of “A White Awakening” are published. This has already occurred to some extent. In its evidence, the Crown cited a website which has declared the accused to be “a saint.” If some are inclined to celebrate the actions or words of the accused, they will do so, whether or not the excerpts from the manifesto are published. Unfortunately, there is already much material in the public domain that can be used to this effect. I adopt the reasons of Molloy J. in R. v. Minassian, 2020 ONSC 7167 at para. 29, in which she rejected the notion that the accused’s video interviews might inspire copycat crimes and should not be filed as exhibits at the trial:

Dr. Westphal is concerned about “any possibility” that portions of these videos could wind up on the internet. He states that others might be inspired to commit similar crimes. I recognize that there is considerable evidence that Mr. Minassian looked at videos of other mass murderers on the internet and may have been influenced by them to kill and maim those people with the misfortune to be in the path of his rented van on April 23, 2018. I also recognize the scholarly research about the effect and implications of this “copycat” phenomenon. However, in this case, Mr. Minassian’s statement to the police is already in the public domain, as are many videos of his rampage down Yonge St. and his eventual arrest. The press coverage to date has been extensive, to say the least. It is unclear how pieces of video from his interview with a psychiatrist or psychologist would materially change the risk of others being influenced by his acts. I understand that these videos are closeups and of a better quality than the police interview. However, again, I do not see this as changing the risk substantially, particularly since I have not even seen the video.

[34] The final point is this. In essence, the Crown’s argument is that the public cannot responsibly receive the information to be introduced at the trial. While not framed in these terms, it is akin to saying that the public must be protected from itself because it might use the information for an improper and/or harmful purpose. The case law on publication bans usually considers harm to the fair trial interests of an accused, the protection of an informant, or the administration of justice more broadly. In this case, the Crown is concerned that the public cannot be trusted to responsibly receive this information. There is a paternalistic quality to this approach. It is not for the court to dictate what the public should and should not receive for its own good. It is not my role as a judge to curate the marketplace of ideas.

[35] This was made clear in R. v. CBC at paras. 49-50, in which a judge’s view that evidence was “too gruesome” for public consumption was not a proper basis on which to prohibit publication.

[36] As Canadian Broadcasting Corp. v. Toronto Police Service (Chief of Police), 2021 ONSC 6935, 158 O.R. (3d) 401 explained:

[42] Similarly, the fact that information in a court record might offend public sensibilities is not a basis for imposing a publication ban. In the case of R. v. Canadian Broadcasting Corporation, the Ontario Court of Appeal found that the mere fact that a video showing the circumstances of an individual’s death was “gruesome” and “disturbing” was not sufficient to warrant issuing a publication ban on the video. As Justice Sharpe stated for the Court, “absent any finding of potential harm or injury to a legally protected interest, there is nothing in the law that permits a judge to impose his or her opinion about what does not need to be broadcast to the general public”.

[37] For all these reasons, I find that the test for a non-publication order has not been met as it relates to the evidence introduced during the public trial. I am not satisfied that publication will cause harm to an important public interest. Rather, disallowing publication would harm the public interest, by preventing the community of interested individuals from being informed of the proceedings and understanding any resulting verdicts.

[38] In other words, the salutary effects of publication – the strong public interest in the open court principle – outweigh any deleterious effects. A ban on publication would not likely prevent glorification of the accused’s alleged actions by those so inclined. The proposed ban would, however, keep vital information from the public about a prosecution that has captured intense interest, engaging the public’s right to know. Information about this trial should not be the exclusive domain of those who happen to get a physical seat in the courthouse. The media plays a critical role by offering a portal through which the broader public can observe the administration of justice.

[39] For these reasons, I dismiss the request for a ban on publication of the portions of “A White Awakening” to be read into the record at the accused’s trial.

The Unredacted Document

[40] The interests at play are very different when it comes to the unredacted version of “A White Awakening”. The unredacted document will not be introduced into evidence at the trial. The document was edited to ensure the accused’s right to a fair trial. It is currently subject to a publication ban under s. 648(1) of the Code, until such time as the jury is sequestered. I am going to reserve judgment on media access to the unredacted version of the document until the conclusion of the trial. The factors weighing for and against public access may hinge on how the trial unfolds. Therefore, I will hear submissions on media access to the unredacted document at the conclusion of the trial, should the media request remain outstanding.

The Video

[41] I have reviewed the video of the event several times. I have determined that media access should extend up to the point just before the truck jumps the curb. That is, the media may have access to the video until timestamp 20:55:31. The remaining portions of the video will not be available for broadcast. As it relates to the video, the interests of the victims and their family members are very much engaged. The media organizations before me on this application agree that the point of impact, as depicted, should not be part of any public broadcast.

Original signed by “ Justice Renee M. Pomerance” Renee M. Pomerance Justice Released: Orally and in writing – September 7, 2023