Ontario Court of Justice

Date: June 27, 2018

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: Justice Chapin

Heard on: June 21, 2018

Reasons for Judgment released on: June 27, 2018

Ruling No. 2

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

Reasons for Judgment

[1] This is the second 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 which has resulted in media interest in the 2003 proceedings.

[2] The transcript of the guilty plea and the sentencing hearing have already been released to the media. 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 however, true copies of the original exhibits were filed at the hearing of the application.

[3] Earlier today I ruled that redacted copies of the psychologist report and the pre-sentence report filed at the sentencing hearing in 2003 could be released to the Applicants and any other person requesting copies. That citation for that ruling is R. v. The Globe and Mail Inc., 2018 ONCJ 424, and reference should be made to it for the full background of the 2003 proceedings against Mr. McArthur.

[4] This ruling is in relation to the Applicants' request for access to photographs of the victim's injuries and a steel pipe that was used during the attack in 2001. A one page colour photocopy of what can be described as a contact sheet with numerous numbered photographs of the complainant'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.

[5] During the course of Mr. McArthur's guilty plea in 2003 the Crown filed a series of photographs showing the injuries of the victim and the metal pipe that was used by Bruce McArthur to inflict those injuries. The Crown indicated that Mr. McArthur was carrying the metal pipe because of concerns with safety and security as a result of the subculture involving street hustlers and was not alleging that Mr. McArthur went to the complainant's apartment with the specific intent to attack him. There was no request for a sealing order.

Position of the Applicants

[6] The Applicants rely on the open court principle and the rights conferred by s. 2(b) of the Charter in their submission that the copies of the exhibits filed should be released as in their view the Respondents have not satisfied 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. That 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.

[7] The Applicants point to a number of factors that support their position that the photographic exhibits should be released:

• the Crown and the trial judge referred to the photographs during the proceedings,
• The proceedings were open,
• There was no publication ban,
• the photographs were filed on consent of the parties, were not sealed and formed part of the court record,
• the victim's privacy rights concern could be addressed by pixelating the photographs showing his face,
• The photographs were referred to and are evidence of injuries and a weapon that were described and place the transcripts and reports in context,
• There is nothing in the photographs that is so inflammatory that he would not be able to get a fair trial, and
• Any claim by counsel for Mr. McArthur that his fair trial rights would be prejudiced would be pure speculation.

[8] Given all of the factors as listed above the Applicants take the position that the open court principle should apply and the Order for access to the photographs should be granted.

Position of the Respondents

Position of Crown

[9] With respect to the photographs the Crown submits that Mr. McArthur's fair trial rights would be seriously negatively impacted by allowing access of the photographs of the victim's injuries and the steel pipe and that the salutary effects of denying an Order for access outweigh the deleterious effects to the free expression of those affected by limiting access.

[10] Mr. Scutt notes that the images of the pipe, a bloody hand and a battered face are powerful images that the public would find difficult to disabuse their minds of and the publication of those images may well taint the jury pool given the unrelenting nature of the press coverage in this case. Given that the jury who will hear the case will likely never hear or see this evidence in the eventual trial it would be very dangerous to allow the photographs to be part of the public domain.

[11] Mr. Scutt also submitted that he has no issue with the media having access to images to view them for the purpose of describing them but submits that copying, photographing or broadcasting the images should not be allowed because they are highly inflammatory and prejudicial.

[12] The Crown was able to locate the victim who attended today and advised the Crown that his position is that he is vehemently opposed to an Order for release of or access to the photographs for the purpose of describing them as it would unduly infringe on his privacy rights.

Position of Bruce McArthur

[13] Counsel for Mr. McArthur, Mr. Miglin, submits that he agrees with the Crown submission that an Order for the release of the photographs would create a serious risk to Mr. McArthur's fair trial rights but he also takes the position that providing access to the photographs for the purpose of describing them would have the same result. Mr. Miglin echoes the Crown submission that the jury would likely never see the photographs as a trial judge would likely find photographs of injuries and a steel pipe to be too prejudicial and inflammatory in the context of a murder trial.

Position of the Toronto Police Service

[14] Counsel for the Toronto Police Service essentially adopts the submissions of the Crown and submits that the privacy rights of the complainant should be protected and this court should decline the application for release of the photographs.

Position of Mr. Herszkopf

[15] Counsel for Mr. Herszkopf takes no position on the Application.

Analysis

The Photographs

[16] Reference should be made to paragraphs 18 – 21 of my earlier ruling with respect to the general principles to be applied. As I indicated I have already allowed access to redacted versions of the psychological report and pre-sentence report filed at the sentencing hearing in 2003.

[17] The photographs, in my view, are in a different category than the psychological and pre-sentence reports. We have all heard the saying "a picture is worth a thousand words", which is an attempt to describe the very powerful impact images can have on the public. And now, with the internet, once a photograph is posted it is there forever. End of story. The complainant's bandaged, battered face with a large laceration and bloody hand would be exposed to the world given the international attention this case has garnered.

[18] I am also quite cognizant of the fact that there is a very small chance that a potential jury would see the photographs in the course of the trial. Images of the injuries being released would in my view, have a real and substantial risk to Mr. McArthur's fair trial rights and the protection of those fair trial rights outweighs any deleterious effects to free expression of the media and the public. This is because Mr. McArthur is facing 8 counts of murder – the most serious offence in the Criminal Code – and it would be extremely difficult for members of a potential jury pool to disabuse their minds of these images in the circumstances. I am also not allowing publication or broadcasting of the images as this would be a serious invasion of the complainant's privacy.

[19] Descriptions of the injuries were provided in the transcripts of the proceedings and in my view there would be nothing gained from allowing the Applicants access to view those photographs for the purpose of describing them, especially given the serious invasion of the victim's privacy. However, the photographs of the steel pipe can be viewed for the purpose of describing it as it appears that the pipe was not described in any detail in the transcript.

[20] In conclusion, the Applicants can view the photographs of the steel pipe for the purpose of describing it but nothing more.

[21] The clerk of the Ontario Court of Justice at Old City Hall shall provide access to the Applicants for the purpose of viewing the steel pipe photographs. A copy of these reasons is to be attached to the application materials.

Released: June 27, 2018