RULING ON PUBLICATION OF UNREDACTED PORTIONS OF THE MAY 31, 2013 INFORMATION TO OBTAIN

ONTARIO COURT OF JUSTICE

IN THE MATTER OF an application for an order terminating or varying the order of Justice S.E. Marin dated May 31, 2013 sealing documents relating to search warrants and any related orders executed at various locations and addresses in the City of Toronto between May 31, 2013 and June 14, 2013.

TORONTO STAR NEWSPAPERS LIMITED, THE GLOBE AND MAIL INC., CTV, A DIVISION OF BELL MEDIA INC., CANADIAN BROADCASTING CORPORATION, SHAW TELEVISION LIMITED PARTNERSHIP, POSTMEDIA NETWORK INC., SUN MEDIA CORPORATION and CANADIAN PRESS ENTERPRISES INC.

Applicants

and

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Respondent

Before: Justice P. Downes

Counsel:

• Ryder Gilliland, for the applicant Toronto Star Newspapers Ltd.
• Peter Jacobsen, for the applicants The Globe And Mail Inc., CTV, a Division of Bell Media Inc., Canadian Broadcasting Corporation, Shaw Television Limited Partnership, Postmedia Network Inc., Sun Media Corporation and Canadian Press Enterprises Inc.
• Jeffrey A. Levy, for the Crown
• Ashley Audet, for the accused Brett Kersey
• Anthony Bryant, for the accused Abdullahi Harun
• Ariel Herscovitch, for the accused Daoud Hussein
• Franklin Lyons, agent for Edward H. Royle & Associates, counsel for the accused Curtis Elliot and Cory Peterson
• John Navarrete, for the accused Mohammed Dirie
• Robert Richardson, for the accused Monir Kasim
• Daniel Sheppard, agent for Adam Boni, counsel for the accused Ayanle Omar and agent for John Rosen, counsel for the accused Brent Abrams
• and in writing on behalf of 19 accused persons

DOWNES J.:

1.0 Introduction

[1] This is a further ruling in response to the media's application under s. 487.3(4) of the Code to unseal what has to date been referred to as the May 31 ITO in the Project Traveller proceedings.

[2] In my ruling of September 23, 2013 I ordered the unsealing of a heavily redacted version of the May 31 ITO. Incidental to that order, I ruled that the contents of the May 31, 2013 ITO could not be published, but I invited all parties to make brief written submissions on whether that publication ban should continue.

[3] On October 11, 2013, in accordance with the schedule outlined in my September 23 ruling, 19 individual accused in the Project Traveller prosecutions filed written submissions. No other party filed submissions on the issue and no party has sought to make oral submissions.

[4] The accused seek to continue the publication restriction but only in relation to three areas: evidence adduced at bail hearings, references to criminal antecedents, and references to a previously executed search warrant.

[5] I decline to rule on the first of those areas at this time. The publication ban is continued with respect to the second area but is lifted with respect to the third except with respect to the name of the individual who was the target of the search.

2.0 Jurisdiction

[6] On a previous occasion during this application, counsel raised the issue of my jurisdiction to restrict publication at all. I adverted to the issue in paragraph 20 of my September 23 ruling.

[7] In my view, it is open to a court to consider imposing a restriction on publication as an alternative to a wholesale sealing order in the context of s. 487.3. In Dagenais v. C.B.C., [1994] 3 S.C.R. 835 at para. 187, the Chief Justice held that the availability of alternative measures was one of the factors a trial judge should take into account in considering whether to impose a discretionary publication ban: see also Ottawa Citizen Group Inc. v. Canada (Attorney General), [2005] O.J. No. 2209 (C.A.) at paras. 42 & 48; Toronto Star v. Canada, [2006] O.J. No. 5448 (C.J.) at para. 5.

3.0 The Position of the Individual Accused

3.1 Bail Hearing Evidence

[8] In my September 16, 2013 ruling on the application of s.193 of the Code I ordered that those portions of the May 31 ITO adduced in evidence at any of the accused's bail hearings were not protected from disclosure under s. 193(3), but that they could not be used in a manner that would subvert any publication ban ordered at the accused's bail hearings.

[9] On September 23, 2013 I ordered the Crown to provide counsel for the applicants with a further copy of the May 31 ITO edited to take into account the evidence tendered at bail hearings for the various accused no later than 30 days after it fulfills its Stinchcombe disclosure of the ITOs to the accused. I also said that the Crown should indicate whether it seeks an order pursuant to s. 487.3(4) banning publication of those excerpts.

[10] The individual accused now submit that the current publication ban should be lifted, but say that when the Crown provides the further unredacted version the publication ban should continue to cover those portions that were adduced in evidence at the bail hearings.

3.2 Criminal Antecedents

[11] The individual accused submit that the unsealing order should also include a continuing ban on the publication of nine unredacted paragraphs of the ITO which refer to the criminal records and outstanding charges of some of the accused.

[12] As I have said, neither the applicant media organizations nor the Crown has filed submissions in response to the position of the accused. That does not obviate the need to ensure that any order I make is consistent with the test in s. 487.3 and with the Dagenais/Mentuck principles, but it informs my assessment of the merits of the accused's submissions on this issue.

[13] The so-called Dagenais/Mentuck test applies to all discretionary judicial orders limiting the openness of judicial proceedings including the granting of an order sealing an Information used to obtain a search warrant. The Dagenais/Mentuck test provides that access to court proceedings should only be denied when:

(a) Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable 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.

[14] S. 487.3 provides that access to the ITO can be restricted on the ground that the ends of justice would be subverted by the disclosure if disclosure of the information would "prejudice the interests of an innocent person." The targets of the search and the prosecution are clearly "innocent persons" as that term is employed in s. 487.3: Ottawa Citizen Group Inc. v. Canada (Attorney General), supra, at para. 38.

[15] The justification for any continued restriction on publication must be clearly made out and must arise out of, "a risk that poses a serious threat to the proper administration of justice. In other words, it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained": R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at para. 34.

[16] What is required is a balancing of various factors to determine whether the proposed restriction is a "necessary and reasonable response to the facts of any given case" considering, "the nature of the threat to the fairness of the trial, including the susceptibility of juries to being influenced, the extent of the restriction on freedom of expression and the availability of alternative measures": Dagenais, supra, at para. 187.

[17] In assessing necessity, I bear in mind the observations made by McLachlin J. in Dagenais that, "what must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered."

[18] The accused in their factum submit that publication of their criminal records, "would undermine the fair trial rights of the accused by tainting potential jurors with information that, pursuant to the rules of evidence, is presumptively inadmissible." They say that since the evidence of prior criminality may never be heard by a jury, permitting its publication at this stage would, "subvert the exclusionary rule over bad character evidence, and expose potential jurors to highly prejudicial information."

[19] Even if admitted at trial, the accused say, their criminal records would be accompanied by a clear and forceful limiting instruction to the jury, a cautionary measure which is not available at this stage. Thus, the accused submit, "absent a publication ban on the paragraphs listing the defendants' criminal records, potential jurors will be left with the knowledge of the criminal antecedents of particular accused for months, but will not be cautioned against propensity reasoning by a judicial officer."

[20] The accused analogize the current situation to the application of s. 517 of the Code at a bail hearing. There, evidence of this nature would invariably be prohibited from publication. Why, the accused asked, should the same evidence not be subject to the same precautionary measures just because it has been tendered in a different forum? The accused point to examples of similar publication bans with respect to criminal records in other cases: R. v. Fok, [2001] ABQB 85; R. v. Valentine, [2009] O.J. No. 5954 (S.C.J.); R. v. Smith, [2003] ABQB 714.

3.3 Prior Warrants

[21] The individual accused also submit that the unsealing order should include a continuing ban on the publication of two paragraphs of the ITO which refer to an earlier search warrant executed in the course of the Project Traveller. The accused submit that since the validity of that warrant will likely be challenged at any future trial, it is possible that the evidence could be excluded and the jury would never hear about it. As the accused acknowledge, it is impossible to evaluate the likelihood of success of these arguments. The best that can be said at this stage is, as the accused put it in their factum, "the prospect of a successful challenge to the general warrant cannot be dismissed as fanciful."

[22] The accused acknowledge that the charges faced by the one accused as a result of the execution of this warrant are matters of public record. They submit that the paragraphs referring to this warrant in the May 31 ITO would, however, "inevitably take on a special quality and weight in the minds of the public, it being the singular piece of real and direct evidence in relation to those charges." It would, they submit, irreparably taint the mind of any prospective juror.

4.0 Analysis

[23] As I indicated, I have only the benefit of submissions on one side of this issue. That said, it is worth noting that the publication restrictions sought by the accused are relatively minor and of course in light of the wider picture, that of a vastly redacted ITO in any event, the significance of what is at stake in this particular issue is somewhat diminished.

4.1 The Bail Hearings

[24] The Crown has not responded to the accused's submission on this presumably at least in part because it has yet to satisfy the disclosure obligation referred to above. Until such time as it does so I need not decide the issue. I will, at the appropriate time, have the accused's submissions in hand.

4.2 The Criminal Antecedents

[25] Given the particular circumstances of this application, and in light of the unopposed position of the accused, I am prepared to order that the current restrictions on publication on the already unsealed but redacted May 31 ITO be lifted with the exception of the paragraphs relating to the accused's criminal antecedents, specifically paragraphs 276, 282-84, 290, 292-93, 296 and 337.

[26] I accept the accused's position that the withholding of this information, for now, is necessary to prevent a serious risk to the proper administration of justice that cannot, until such time as a jury is selected and properly cautioned, be prevented by any alternative measure. The evidentiary framework at a search warrant application is not dissimilar to that at a bail hearing and engages the same concerns: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] S.C.J. No. 21 at paras. 28, 33, 40.

[27] I see no difficulty in the media reporting the general assertion that some accused arrested in Project Traveller have a criminal record, but there is a risk that reporting the details of the particular charges at this stage will prejudice the right of the accused to a fair and public trial. In my view the salutary effects of this limited restriction outweigh what I see as a fairly minimal intrusion on the right to free expression.

[28] I accept that there has in the past been force to the argument that the effect of the publication of any prejudicial information at this early stage, months or even perhaps years before a jury is ever selected, is minimal. But as Feldman J.A. held for the majority in Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59, [2009] O.J. No. 288 (C.A.) at para. 177, "It is also, in my view, no longer appropriate or realistic to rely on jurors' faded memories of any pre-trial publicity by the time of the trial as the basis for confidence that they will not remember what they read or heard. Once something has been published, any juror need only "Google" the accused on the Internet to retrieve and review the entire story": See also R. v. Valentine, [2009] O.J. No. 5966 (S.C.J.) at para. 7.

4.3 The Prior Warrant

[29] I take a slightly different view with respect to the reference to the execution of prior warrants in paragraphs 242 and 323. In my view there should be a restriction on publication but only with respect to the name of the individual whose residence was searched.

[30] In my view no reasonable member of the public would be surprised or prejudiced by the knowledge that in the course of this investigation the police executed a warrant, even covertly, and seized a firearm.

[31] The public is entitled to know as far as is possible at this stage that the police had a basis to seek and obtain further authorizations and to lay the kind of charges they did. Knowing in a general sense about the warrant described in these two paragraphs but without tying it to a particular accused achieves a measure of balance between the public's right to know and the preservation of the accused's fair trial interest.

5.0 Conclusion

[32] In summary, the restriction on publication of the redacted version of the May 31 ITO contained in my September 23 ruling is lifted with the following exceptions:

(a) The contents of paragraphs 276, 282-84, 290, 292-93, 296 and 337 shall not be published in any document or publicly broadcast or transmitted in any way;

(b) The name of the individual in paragraphs 242 and 323 shall not be published in any document or publicly broadcast or transmitted in any way.

Released: October 29, 2013

Signed: "Justice Downes"