Court File and Parties

Court File No.: Toronto 05/40045174 Date: 2013-04-02 Ontario Court of Justice

Between: Her Majesty the Queen, Respondent

And: Canadian Broadcasting Corporation, CTV (a division of Bell Media Inc.), Canadian Press Enterprises Inc., The Globe and Mail and Shaw Television Limited Partnership, Applicants

Before: Justice Fergus O'Donnell

Heard: 28 March 2013

Reasons for judgment released: 2 April 2013

Counsel:

• Barry Stagg, for the Crown
• Peter Jacobsen, for the applicants
• Luc Leclair, for Eric Newman, a.k.a. Luka Magnotta

O'Donnell, J.

Overview

[1] What a difference a decade makes.

[2] In June 2005, a young man named Eric Newman pleaded guilty in this courthouse to four charges of fraud relating to a vulnerable young woman he had met on the internet. The proceedings seemingly were of no particular interest to anyone other than those directly involved: the victim, Mr. Newman, Mr. Newman's parents, Crown and defence counsel and the presiding judge. As Mr. Leclair accurately pointed out, for the longest time since, neither the public nor the media had much interest in Eric Newman's activities. For those not immediately affected, this was just one of many thousands of routine criminal cases in provincial court; it came and it went.

[3] Fast forward almost a decade and all's changed, changed utterly. The everyday defendant of 2005 is an object of intense and ongoing public interest in 2013, albeit under a new name.[1] This ascension from anonymity has been brought about by an allegation that Mr. Newman was responsible for a gruesome murder and related offences in Montreal in the summer of 2012. Much has been written and broadcast about Mr. Newman in the media since then. His preliminary inquiry on the 2012 allegations is presently underway in Montreal and there is a routine ban on the publication of evidence taken at that preliminary inquiry.

[4] The roots of the present application, however, lie back in 2005. In the course of a joint-submission on sentence, a letter concerning Mr. Newman's own mental health was presented to the court and considered by the judge. The precise status of that letter was ill-defined. It was not marked as a formal exhibit, but it was, beyond gainsaying, formally attached to the paperwork of the case. It was read by the judge, it was relied upon by the judge and it was to be relied upon by the conditional sentence and probation personnel administering Mr. Newman's sentence. The applicants, a coalition of print and electronic media, now apply for access to the letter filed at Mr. Newman's sentencing. Mr. Newman opposes release of the letter. The Crown takes no position on the application.

The Plea and Sentencing Hearing

[5] The following details arise from the transcript of Mr. Newman's plea and sentencing on 7 June 2005:

(a) His lawyer tendered a letter from a doctor at Rouge Valley Medical Centre, asking the court to read it and return it.

(b) The Crown expressed her satisfaction that the letter be filed, to which defence counsel said he was "not seeking to file it, but just…", trailing off on the sentence as Crown counsel cut in and suggested that it be taken into consideration for sentencing.

(c) The trial judge said that Mr. Newman's supervisor should be aware of the letter's contents (the joint submission included a conditional sentence and a probationary period).

(d) The Crown offered that her copy could be filed. Defence counsel did not object to that suggestion and took back his original copy from the judge.

(e) In the transcript, Crown counsel observes, "it is clear from the letter…that Your Honour is reading that Mr. Newman has some significant psychiatric issues that may have contributed to his lack of judgment in these offences", and then goes on to explain her position in light of the medical report and the other circumstances of the case.

(f) Crown counsel refers to the Rouge Valley letter as stating that Mr. Newman had, "difficulty complying with direction from his doctor with respect to medication."

(g) The terms of Mr. Newman's sentence included a requirement that he take treatment and/or counselling for mental health issues and that he perform fifty hours of community service for each of the conditional sentence and the probation order.

(h) The trial judge noted that she had been involved in pre-trials about Mr. Newman's case, that the Rouge Valley letter "puts a slightly different complexion on it" and that the letter "makes it a little more explicable, sort of."

(i) The trial judge reduced the joint submission of a total of one hundred hours of community service to a total of twenty hours, split between the conditional sentence and the probation period. I think it is a fair assessment of the transcript to say that in doing so she took into account Mr. Newman's mental health situation as reflected on the Rouge Valley letter.

(j) The trial judge ordered that a copy of the Rouge Valley letter be attached to both the conditional sentence order and the probation order.

(k) The transcript does not make reference to the particular medications or dosages Mr. Newman was prescribed, which are part of the letter.

[6] The transcript of the plea and sentencing was not the object of a publication ban. The media have had access to that transcript, which is reflected in a twenty-one paragraph article about Mr. Newman's plea that was published in the Globe and Mail on 28 July 2012. The author of that article, Globe reporter Renata D'Aliesio, recounts in an affidavit filed in support of the present application the unsuccessful attempts made by her and a colleague to obtain a copy of the Rouge Valley letter from the court file, ultimately resulting in the present application.

[7] Mr. Newman filed no affidavit or other material in response to the application for access to the letter.[2]

First Things First: What Is Not At Issue In This Application

[8] During the course of argument, reference was made to the Ministry of the Attorney General's ("MAG") policy with respect to access to court records. At various points that policy requires that persons seeking access to various documents must obtain the approval of a judge. That policy was applied to the present applicants, ultimately leading them to bring this application before me as the local administrative judge for this courthouse, on notice to Mr. Newman.

[9] There was no publication ban or sealing order placed on the letter presented to the court by Mr. Newman's counsel in 2005.[3] An argument might be made that a ministry policy that requires a judge's order to access a document in the court record that is not the object of a publication ban or sealing order is itself a violation of the open courts principle. Just as, in a different context, inflated access-to-information fees might serve as an indirect, but brutally effective, constraint on access to information that is, or ought to be, within the public's right to know, procedural constraints may also impair the exercise of constitutional rights. Even for organizations that, whether metaphorically or literally, buy ink by the barrel and paper by the tonne, retaining counsel is not cheap. That concern resonates even more profoundly for the individual seeking access to court records since the open courts principle is not limited to well-funded media organizations but applies to the public at large.

[10] On the other hand, while in an ideal world everyone would advert to every future possibility and deal with it in the moment, we do not live in an ideal world. Given Mr. Newman's current legal travails, he now expresses concerns about public release of the letter in circumstances that could presumably not have been within his imagining eight years ago. Against that backdrop, the counter-argument could well be made that the MAG access policy, or something like it, is essential in order to balance an untrammelled public right to access against serious harm that might arise from things falling through cracks and that there is a valid public interest in the court maintaining a gatekeeper role even for records that have not been sealed.

[11] It seems to me that there are arguments to be made both ways in relation to the MAG policy. The present application, however, did not challenge the MAG policy but rather sought to fit within it. That being so, no argument was made either for or against the legitimacy of the policy and nothing in the present judgment should be taken as either endorsing or undermining the policy. Those questions are best dealt with if and when the issue is directly raised by the parties.

The Open Courts Principle

[12] While governmental adherence to the principle can regrettably ebb and flow, it is a constant that transparency is the lifeblood of democratic states. With openness comes scrutiny, with scrutiny comes accountability and with accountability comes enhanced public confidence in the operation of state institutions. Thus, there is an expectation that judges provide reasons for their decisions. And thus there is an expectation that the courts will operate in an open and transparent way. Other than in extremely limited circumstances, secrecy is anathema to the operation of the courts in a democracy.

[13] These are not revolutionary precepts. The political philosophy underlying the value of an informed citizenry to a democratic state enjoys a centuries-old pedigree. For example, in the pre-Charter decision of the Supreme Court of Canada in A.G. Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, 183 Dickson, J. (as he then was) cited the eighteenth-century philosopher Jeremy Bentham on the virtues of openness, as follows:

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. [emphasis added]

[14] MacIntyre was a case in which a journalist sought access to the information-to-obtain that had been filed in support of a search warrant application. The Supreme Court decision stands for two propositions of general application:

(a) "At every stage the rule should be one of public accessibility and concomitant judicial accountability…"

(b) "…curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance."[4]

[15] The MacIntyre decision deals with a different type of court record than the present case, but its principles are principles of general application. Faced with litigant upon litigant seeking to keep the unruly principle of open access penned in to a narrow field, courts in the decades since MacIntyre have instead piled re-affirmation upon re-affirmation of the importance of open courts and public access. In CBC v. New Brunswick (A.G.), [1996] 3 S.C.R. 480, the Supreme Court of Canada described the open courts principle as "one of the hallmarks of a democratic society". The scope of the principle has been broadly defined as including the right of access to the court's proceedings, records and exhibits and the right to copy and disseminate that information to others.[5]

[16] Of course, just as it is a long road that has no turnings, few and far between are legal rules without exceptions. The broadly defined right of public access to the courts does not translate into an absolute right of access to everything, any time, no matter what the consequences. There must necessarily be some exceptions to public access to court proceedings and court records. Familiar examples of this are the routine bans on publication of the identities of sexual assault complainants and on the publication of evidence heard at a preliminary inquiry.

[17] Not all appropriate exceptions to the open courts principle will be defined by statute, however. As a result, the Supreme Court of Canada in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, 462 promulgated what has become known as the Dagenais-Mentuck test. While expressed in relation to a publication ban, the test is of broader application and governs the decision I have to make in the present case:

A publication ban should only be ordered when:

(a) such 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; and

(b) 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.

[18] The Supreme Court of Canada in Mentuck, supra, at p. 465 reaffirms that where a person seeks to displace the general rule of openness the burden lies on that party:

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 a ban.

The same principle had been expressed with similar force two decades earlier in MacIntyre, supra, at p. 189:

Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.

[19] It is clear that every case must be determined on its own particular facts. In this case, Mr. Newman stands already convicted of the fraud charges in 2005 but he is presumed innocent and facing trial on the Montreal charges from 2012. It seems to me that my principal focus must be on whether or not the release of the letter would impair Mr. Newman's fair trial interests in Montreal.

[20] It was argued before me that Mr. Newman's then counsel made a concerted effort to keep the letter from forming part of the court record in 2005, but as I noted during argument, the record is at best ambiguous on that point. In fact counsel's behaviour seems more consistent with him wanting simply to retain his original of the letter than with him wanting to keep the letter out of the public record. Even if that had been counsel's desire in 2005, the inescapable reality is that this was a letter consciously put before a sentencing judge by counsel for consideration with respect to the suitability of the joint submission, that it played a role in the judge's decision and, indeed, that quite apart from the judge's general acceptance of the joint submission in light of the letter, the letter led the sentencing judge significantly to reduce Mr. Newman's community service obligation. There was also no objection raised by Mr. Newman's then counsel to the letter being filed in the court file.

[21] My attention was also drawn by Mr. Newman's present counsel to ongoing proceedings before the Court of Quebec, namely Mr. Newman's preliminary inquiry on the murder and related charges. Mr. Leclair provided me with a copy of the reasons of Weitzman, J.C.Q. dated 12 March 2013, which rejected a defence application to exclude the public from the preliminary inquiry. In particular, Mr. Leclair pointed me to the fact that certain documents were filed on that application, which was in turn part of the preliminary inquiry, and that although the closed-court request was refused by Weitzman, J.C.Q., she reiterated her pre-existing ban on the publication of any evidence taken at the preliminary inquiry. One of the pieces of evidence referred to as having been filed on the closed-court application was "an unsigned copy of a diagnosis dated April 3, 2003 by Dr. Sooriabalan at the Rouge Valley Health System."

[22] No evidence was adduced as to any similarities or differences between the 2003 letter filed in Montreal this year and subject to the publication ban by Weitzman, J.C.Q. and the 2005 letter filed on Mr. Newman's plea in Toronto.[6] The two letters are dated twenty-five months apart. It is clear to me that the author of both letters is the same, but that is the limit of any comparison I can make in light of Mr. Newman's failure to provide any meaningful evidentiary record as to why the general principle of openness should yield to his private interests on the facts of this case. I asked whether or not the existence of the Toronto proceedings to grant access to the 2005 letter had been made known to Weitzman, J.C.Q. (the present Toronto application was already known to Mr. Newman's counsel by the time of the Montreal proceedings) and was told that Weitzman, J.C.Q. had not been told of the pending media application in relation to what might be similar records. Accordingly, I have no basis to conclude that granting the present application would conflict with the order of Weitzman, J.C.Q. According to her reasons, the letter before me is not the letter that was before her.

[23] I have read the 2005 Rouge Valley letter. Like any medical letter, in particular a psychiatrist's letter, it deals with inherently personal and sensitive matters including the type and dosage of various medications, but it is a letter that was consciously filed in a public court by Mr. Newman's counsel in support of a sentencing position that might very well not have been justified without it. To the extent that Mr. Newman would preserve his privacy, that privacy was foregone when the letter was filed in open court. The judge relied on the letter. Without access to the letter, the public is not in a position to engage in a meaningful assessment or debate over the appropriateness of what happened to Mr. Newman in 2005 in what is supposed to be an open and transparent court process.

[24] As Mr. Leclair fairly pointed out, nobody would be interested in Mr. Newman today if it were not for the charges he faces in Montreal. That brings us face on to the ultimate question here, namely whether or not it has been made out that releasing the 2005 Rouge Valley letter creates a serious risk that Mr. Newman's rights to a fair trial in Montreal will be impaired. The nature of any such risk must be considered in light of the fact that some of the letter's content is already in the public domain by virtue of the public transcript and the Globe and Mail article of July 2012, although the letter itself is substantially more precise than the transcript or the article. Assessment of the nature of the risk must also take into account the vast amounts of information by which potential jurors are barraged in an internet environment, the likelihood of their retention of any "prejudicial" data, the jury screening process, the ability of jurors to honour their oaths and the particular content of the letter, which strikes me as rather benign on the scale of prejudicial material. When I consider all of those factors in light of the material filed before me, I can only conclude that the spectre of any risk of harm to Mr. Newman's fair trial rights arising from the requested release of the 2005 Rouge Valley letter does not rise above mere speculation.

Conclusion

[25] The clerk of the Ontario Court of Justice at 1000 Finch Avenue West, Toronto, shall release to the applicants on their request a copy of the 30 May 2005 letter from the Rouge Valley Medical Centre that was filed on Eric Newman's sentencing hearing on 7 June 2005. A copy of the letter may also be provided to any other person requesting a copy.

[26] A copy of these reasons shall be attached to the application materials and to the information on which Mr. Newman pleaded guilty on 7 June 2005 for future guidance of the court clerk.

Released: 2 April 2013

Footnotes

[1] Mr. Newman is now known as Luka Magnotta. For consistency I shall refer to him throughout as Mr. Newman, his name at the time of the court appearance that is in issue in the present application.

[2] Other than a copy of the MAG policy on access to court files, exhibits, etc.

[3] Who was not Mr. Leclair.

[4] At pp. 186-187.

[5] See, for example, R. v. Canadian Broadcasting Corporation, 2010 ONCA 726 and Lac Amiante du Quebec Ltee v. 2858-0702 Quebec Inc., 2001 2 S.C.R. 743.

[6] Mr. Newman's current counsel had a copy of the letter that is the object of the present application.