R. v. J.A.

Ontario Reports

Court of Appeal of Ontario

Miller, Nordheimer and Thorburn JJ.A.

November 3, 2020

153 O.R. (3d) 588 | 2020 ONCA 695

Case Summary

Criminal law — Bail — Publication ban — Crown's s. 680 application for review of accused's release on bail allowed and reasons posted on court website with standard warning of possible publication ban under s. 517 — Crown and accused's counsel seeking to remove reasons from website or to have court issue edited reasons — Criminal Code did not stipulate that s. 517 applied to s. 680 review, and court had no inherent jurisdiction to withhold reasons — Bail judge's reasons were readily available for six months - would be misleading to withhold reasons for overturning decision from other judges and the Bar — Edited version of judgment proposed by parties was unintelligible and risked undesirable precedent — Reasons were to be posted.

Criminal law — Open court principle — Crown's s. 680 application for review of accused's release on bail allowed and reasons posted on court website with standard warning of possible publication ban under s. 517 — Crown and accused's counsel seeking to remove reasons from website or to have court issue edited reasons — Criminal Code did not stipulate that s. 517 applied to s. 680 review, and court had no inherent jurisdiction to withhold reasons — Bail judge's reasons were readily available for six months — Would be misleading to withhold reasons for overturning decision from other judges and the Bar — Edited version proposed by parties was unintelligible and risked undesirable precedent — Reasons were to be posted.

The accused was charged with two counts of first degree murder, one count of attempted murder, and one count of conspiracy to commit murder arising from two separate shootings. He was ultimately release on bail but that decision was reversed on a review under s. 680 of the Criminal Code. The Court of Appeal's review decision was posted on the court website with a standard warning stipulating that portions of the reasons might be covered by a publication ban under s. 517. Pursuant to that provision, both the Crown and counsel for the accused expressed concerns about the reasons being published before the trial ended or the accused was discharged. The panel directed a hearing to receive submissions.

Held, the reasons should be posted.

It was not clear that s. 517 applied to a review conducted under s. 680 as there was no express provision to that effect in the Criminal Code. The court had no inherent jurisdiction to withhold its reasons from the public or to otherwise direct that they remain secret. Also, the reasons given by the bail judge had been openly available on various legal publishers' websites for 6 months. It would be misleading to the Bar, to other members of the judiciary, and to the public to have the reasons of the bail judge available to them, but not to have the Court of Appeal reasons available, especially when the original decision was set aside. A suggestion to issue an edited version of the reasons was rejected on the grounds that to do so could establish an undesirable precedent and that the suggested edits proposed by the parties would have rendered the reasons essentially unintelligible.

Cases referred to

R. v. J.A., [2020] O.J. No. 4760, 2020 ONCA 660 (C.A.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 469 [as am.], 517 [as am.], 522(5), 680 [as am.]

Authorities referred to

Watt, David and Fuerst, Michelle, 2021 Annotated Tremeear's Criminal Code (Toronto: Carswell, 2020)

HEARING to determine whether to publish reasons for judgment on court website.

Eric W. Taylor, E. Nicole Rivers and David Friesen, for the applicant

Leora Shemesh, for the respondent

BY THE COURT: --

[1] On October 22, 2020, we released our decision on a s. 680 [of the Criminal Code, R.S.C. 1985, c. C-46] review in this matter. The majority determined that the review should be allowed, the order granting judicial interim release set aside, and a detention order granted.

[2] On that day, in accordance with this court's normal practice, our decision was posted on the court website along with the court's standard warning which stipulates that portions of the reasons might be covered by a publication ban under s. 517. Immediately thereafter, the Crown contacted the court and raised a concern about the reasons being posted on the court website. Counsel for the accused subsequently joined in expressing that concern.

[3] Given the nature of the issues raised, the panel directed that a hearing should be held to receive submissions regarding whether the reasons should, or should not, be publicly available. That is, of course, the reason for placing decisions of this court on the website.

[4] The main submission made by the parties is that an order was made under s. 517 and consequently, in the language of the section:

. . . the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way . . .

before the accused is either discharged or his/her trial has ended.

[5] Two problems arise regarding the parties' position that the court's reasons cannot be made publicly available because of the s. 517 order. One problem is that it is not clear that s. 517 applies to a review conducted under s. 680. There is no provision in the Criminal Code that makes s. 517 expressly applicable to a s. 680 review. This is of some significance since there are other provisions in the Criminal Code that do extend the reach of s. 517 to other proceedings, For example, s. 522(5) makes s. 517 applicable to the initial application for release when a person is charged with a s. 469 offence, which happens to be the case here. We would also note, on this point, the commentary made in 2021 Annotated Tremeear's Criminal Code, by David Watt and Michelle Fuerst (Toronto: Carswell, 2020), under s. 517, where the authors say:

Under s. 522(5), the section applies to judicial interim release hearings in respect of a s. 469 offences, but is not incorporated in the review provisions of s. 680.

(Emphasis in original)

[6] The other problem is that the reasons that were given by the bail judge, and whose decision was reviewed by us, are openly available on various legal publishers' websites, e.g., QuickLaw. Counsel say that they did not realize that this was the case until the issue arose in this hearing. They say that they are now seeking to have those reasons removed from those websites, although they did not specify what steps are actually being taken in that regard. We note that the reasons of the bail judge were released more than six months ago.

[7] Having considered this matter, we are not satisfied that, in the somewhat unique circumstances of this case, this court should withhold posting its reasons on the s. 680 review in this matter. We reach that conclusion for two reasons.

[8] First, there is no clear statutory authority requiring that result. Absent express statutory authority that requires this court's reasons not to be publicly available, the openness principle would direct that the reasons should be available to the public. Put another way, there is no inherent jurisdiction in this court to withhold its reasons from the public or to otherwise direct that they remain secret. Indeed, any such conclusion would be inimical to the openness principle.

[9] Second, it would be misleading to the Bar, to other members of the judiciary, and to the public, to have the reasons of the bail judge available to them, but not have the reasons of this court available, especially when this court has set aside the original decision. On that point, we note that, when last checked, the reasons of the bail judge had been cited 15 times in other decisions of the Superior Court of Justice, and twice in decisions in other provinces. Further, it is unknown how widely disseminated the reasons of the bail judge may have now become. We note, on this point, the commonly used expression that "once something is on the Internet, it is there forever".

[10] Partially in response to these concerns, the parties suggested that we could release an edited version of our reasons. Indeed, the parties provided us with a copy of our reasons, highlighting the portions that they said should be removed, such that the balance of the reasons could be released without offending the s. 517 publication ban. Somewhat paradoxically, the parties urged us to consider this route because they said that there were important issues addressed in the court's reasons that ought to be available to the Bar and to other courts.

[11] We decline to provide an edited copy of our reasons as suggested. Doing so would potentially establish a precedent that would inevitably lead to counsel in other cases also asking for edited reasons for publication purposes. Indeed, such requests would likely be made not just to this court, but even more frequently to the trial courts. That would impose a burden on those courts that is not desirable.

[12] Further, and more importantly, in reviewing the edits suggested by the parties, it became apparent to us that, if adopted, our edited reasons would be essentially unintelligible. Our reasons, so edited, would not allow the reader to properly understand the analysis that led to a reversal of the bail judge's decision or, for that matter, to understand the divergence in opinion between the majority and the dissent. Publishing edited reasons in that fashion would only cause confusion and misunderstanding. The same would be true of only publishing the "bottom line" of our decision or a summary of it. The fact is that the evidence is critical to a proper understanding of our reasoning and our resolution of the issues that were before us.

[13] The reality is that the circumstances here have undermined whatever purpose there may have been to the publication ban in the first place. It is not possible to now remedy that impact. Indeed, it has, in a very real sense, rendered the rationale for the order nugatory. At the same time, it creates a misleading image to have the bail judge's reasons available to the public but have our reasons hidden.

[14] In reaching our conclusion, we are mindful of the fact that an order under s. 517 is mandatory when it is requested by an accused person. That right is intended to protect the fair trial rights of the accused person. That protection, however, assumes compliance with the order and effective enforcement of it. That has not happened in this case, albeit through inadvertence. And it does not change the practical result. We would add that, to the degree that this situation creates any difficulties for the fair trial rights of the respondent, and none were raised before us, those difficulties can be remedied through the challenge for cause process.

[15] Consequently, the panel will direct the Registrar to immediately re-post the court's reasons in full on the court website.

Reasons to be posted.

End of Document