WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: January 8, 2019

Court File No.: Brampton 18-8901

Between:

Her Majesty the Queen

— and —

Ranjot Singh Dhami

Before: Justice S. Caponecchia

Heard on: November 23, 2018

Reasons for Judgment released on: January 8, 2019

Counsel:

• Keeley Holmes, counsel for the Crown
• Glen Henderson, counsel for the accused Ranjot Singh Dhami

CAPONECCHIA J.:

INTRODUCTION

[1] The accused is one of three defendants charged with attacking an innocent and defenceless stranger at the bus terminal at Square One Shopping Centre on March 13, 2018.

[2] There is no dispute that this case has been the subject matter of media attention. The attack took place at one of the largest shopping malls in the province. The attack was captured by video surveillance. Police released the video to various media outlets and on their website in an effort to obtain the public's assistance identifying the culprits. The victim's mental disability was widely publicized. He is a 29-year-old male with Asperger Syndrome, a form of autism. To date his name has never been reported because of publication bans imposed at each defendant's bail hearing and at their preliminary hearing (pursuant to s. 517 and s. 539, respectively). These publication bans do not prohibit the publication of the victim's name once the trials are completed. A publication ban pursuant to s. 486.5 would protect the identity of the victim after the cases are done.

[3] The Crown requested a publication ban of the victim's name pursuant to section 486.5 of the Criminal Code when the accused came before the court on November 23, 2018 to plead guilty to aggravated assault. There was at least one media representative in the courtroom and multiple students observing court when the Crown made the application. The Crown's position is that publicizing the victim's name will cause him harm.

[4] Counsel on behalf of the accused neither opposed nor joined the application. The defence indicated they have no interest in having the proceedings cause any further harm to the victim.

NOTICE

[5] Section 486.5(4) requires the Crown to give written notice to the court, the defence and any other affected parties the court specifies. The section states the Applicant shall:

(a) Apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) Provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

[6] I dispensed with the mandatory requirement for a written application and notice to the defence because counsel for the accused had no objection to the motion being heard. In these circumstances this court is of the view that s. 486.5(4) allows for the use of discretion to hear the matter even though a formal written application and notice was not filed.

[7] Section 486.5(4) contemplates notice be provided to the media because they are "any another person affected by the order." I did not exercise my discretion to require the Crown to give notice to the media for the following reasons:

i. When the application was made the accused was in custody and I had a joint submission before me for time served. It was in the accused's best interest not to delay the proceedings.

ii. The nature of the order requested was limited to the identity of the victim only. I note that mandatory publication bans covered by s. 486.4 do not require any notice.

iii. There was a representative of the media present in court to hear the Crown make their oral application and submissions.

EVIDENCE ON THE VOIR DIRE

[8] A voir dire was held pursuant to s. 486.5(5). The Crown relied on the evidence of the victim's step-mother and a portion of the victim's impact statement.

[9] The victim's step-mother explained that the victim keeps his diagnosis private. She explained the harmful emotional toll and destabilizing effect the attack has had on her adult son, who lives with her and his father. The victim suffers from social anxiety. He is most comfortable speaking with children and the elderly. After the attack the victim became even more withdrawn than usual for several months. The victim had a daily routine which he adhered to strictly prior to being attacked. The attack destabilized his life. The victim became terrified to leave his house and when he did so, he wore sunglasses and a hoody. The victim only started to resume his regular daily activities in August 2018.

[10] An important part of the victim's life is a job that he has proudly held for three years. He did not disclose his disability to his employer and does not want his co-workers to know. It is important to the victim that he be treated the same as his co-workers. He fears that he will be treated differently at work if his identity is revealed and his diagnosis becomes public.

[11] The victim prides himself on never having missed a day of work – until the day he was attacked. He is concerned that he may not get another job if a prospective employer searches his name on the internet and learns he was the individual with a disability who was assaulted at Square One.

[12] The victim's step mom explained that following the attack the media contacted elderly members of their family who reside on the East Coast. The media attempted to ascertain information from them about the victim. Subsequently a member of the media attended their home in Peel Region and was turned away by her husband. A media representative also attended the victim's work place and was turned away.

[13] The victim's step mom testified that the victim was too scared to come to court to read his victim impact statement. At the defendant's preliminary hearing the Crown relied on the video footage of the attack and did not call the victim to testify. His step mother expressed genuine and realistic concerns about the harmful effects having her son's name published in the media and on the internet would have on his ability to function in the community. She was a careful, credible and balanced witness. I have no hesitation accepting her evidence in its entirety.

THE LAW

[14] There is authority to impose the publication ban sought by the Crown both at common law and pursuant to section 486.5 of the Criminal Code. Numerous societal values are engaged in this case that must be balanced. Namely, the privacy of a vulnerable member of the community, freedom of expression and freedom of the press. Importantly, the fair trial interests of the accused are not engaged in this case.

[15] The Dagenais/Mentuck common law test provides that a publication ban will be ordered only when the following preconditions have been met:

i. The order is necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and,

ii. The court considers whether 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.

[16] At common law, the purpose sought to be achieved by the ban drives the analysis. The purpose of the ban must be to achieve an objective considered necessary to the proper administration of justice. In Dagenais an order was sought by four accused persons prohibiting the broadcast of a fictional television mini-series depicting factual circumstances extremely similar to the facts in issue at each of their trials, namely, physical and sexual abuse of young boys at religious training institutions. The specific rationale for the publication ban in that case, unlike in the instant case, was the need to guard the fair trial interests of accused persons.

[17] In Mentuck, it was not the fair trial interests that motivated the request for a publication ban, but the state's right to protect the identity of the undercover officers and their investigative techniques. Given the purpose of the ban sought in Mentuck, the Supreme Court stated that the test in Dagenais had to be "reconfigured to account for the different purpose for which the order is sought and the different effects it will have."

[18] Subsequent to both Dagenais and Mentuck s. 486.5 was enacted. The burden of proof on the application at common law and pursuant to s. 486.5 is proof on a balance of probabilities.

[19] In general, s. 486.5 codifies the Dagenais/Mentuck test. However there are some differences:

(i) The common law considers only two factors while the Criminal Code provision requires a collective consideration of seven factors set out in s. 486.5(7);

(ii) Prior to July 20, 2015, s. 486.5(1) provided that a publication ban should be ordered only when it was necessary for the proper administration of justice. Necessity is the standard articulated by the Supreme Court of Canada in Dagenais and Mentuck.

(iii) In 2015 s. 486.5 was amended and the test was changed to whether the ban is in the interest of the proper administration of justice.

(iv) At common law, the courts are required to decide whether an order is necessary to prevent serious risk to the administration of justice.

(v) By contrast, one of the factors in s. 486.5(7) is whether there is a real and substantial risk the applicant would suffer harm if their identity was disclosed. What is more, if an Applicant fails to provide evidence of a real and substantial risk of harm but the other six factors weigh in favour of a publication ban, a publication ban may still be ordered if the court is satisfied, after considering all seven factors that it is in the interests of justice to issue a publication ban.

[20] The common law may supplement but cannot override statutory provisions in the Criminal Code. Where a specific provision in the Criminal Code deals explicitly with an order sought and directs me to the criteria that I am to apply, I should apply the Criminal Code. Therefore, while the Dagenais and Mentuck cases are instructive, I have determined that I am governed specifically by the provisions of section s. 486.5.

[21] Pursuant to s. 486.5(1) the test that I must apply is whether the publication ban of the victim's identity is in the interest of the proper administration of justice. The balancing of multiple interests must occur. Fair trial interests and freedom of the press are one aspect of the administration of justice. There are other values comprising the proper administration of justice that I am statutorily obliged to consider pursuant to s. 486.5(7). All of the criteria are meant to answer the same question: whether the ban is in the interest of the proper administration of justice. A ban should not be imposed to avoid mere discomfort or to secure an advantage unrelated to the proper administration of justice. It is the avoidance of real harm, not speculative, that the ban seeks to achieve.

[22] In R. v. Wagner, [2017] O.J. No. 5758 (S.C.), the factors in s. 486.5(7) weighed in favour of ban to protect the identity and safety of doctors and nurses who provided abortion services in a case where the defendant was a pro-life activist charged with numerous offences committed at a women's healthcare clinic that provided abortion services.

[23] In R. v. Cook, 2013 ONSC 7291, [2013] O.J. No. 5414 (S.C.), s. 486.5 was relied upon to ban the publication of the complainant's name in a case in which the defendant was charged with criminal harassment and extortion arising from his threat to expose their relationship to their mutual employer after the complainant ended the relationship. If the victim's name was publicized it would lead to the termination of her employment. The ban would have no impact on the defendant's right to a fair trial and did not prevent an otherwise public hearing.

[24] In R. v. Pearson, [2011] O.J. No. 5542 (S.C.), an order banning the publication of a witness's name was granted pursuant to s. 486.5 in a homicide case where the witness was found to have a legitimate fear for his/her safety if they testified.

[25] In R. v. Sandham, [2009] O.J. No. 4549 (S.C.), the publication of the identity of a former motorcycle gang member turned informer and witness to a homicide was granted based on the risk to the witness's safety.

[26] By contrast, an order banning the publication of a witness's identity has been denied in a number of cases that were decided prior to the 2015 amendments. In R. v. Hankey, [2008] O.J. No. 4590 (S.C.), a witness in a homicide case was a former gang member and requested a ban. The Crown submitted that the publication of his evidence with respect to his past life would cause him difficulty. There was no evidence led on the application with respect to any risk.

[27] In R. v. Badakhshan (2014), 118 O.R. 706 (S.C.), the Crown requested a ban on the identity of the victim in a homicide on compassionate grounds. The Crown's application was with respect to the name of the deceased who was an only child and partially raised by her elderly grandmother. Her grandmother had never been told the circumstances in which her granddaughter died. The family was concerned about the effect that it would have on the grandmother if she were to learn the full circumstances of the victim's death from media reports. The family of the victim had moved out of the GTA as a way of dealing with the tragedy. The application was denied in the absence of any evidence of serious risk of harm to the grandmother of the deceased.

[28] In R. v. Carswell [2008] O.J. 4242 (O.C.J.) a request was made by the defendant's wife for an order banning the publication of her name pursuant to s. 486.5. The witness's husband was charged with possession of child pornography. She took the position that she had been the subject of harassment and intimidation and had to leave her job as an elementary school teacher. If the order was granted, it would have had the effect of also banning the defendant's name. The Crown did not support the application and the trial judge found the evidence on the application lacking in substance and credibility. The application was dismissed.

ANALYSIS IN THIS CASE

[29] The issue before me is whether I should ban the publication of any information that would identify the complainant. I am not being asked to order a publication ban on the accused's name or any of the facts. The purpose behind the requested ban is to protect the victim from any further harm from his name being publicized along with confirmation of his private medical diagnosis.

[30] As a society, we recognize the vulnerability of persons with a disability and the need to remove barriers that impede them from leading productive, meaningful lives and discourage them from engaging in the court system. These values are not insignificant. Nor is the risk for harm to be downplayed. The importance of protecting vulnerable members of society, their right to privacy, encouraging witness participation and promoting a sense of fairness within the criminal justice system is of considerable importance in our society. Multiple provisions in the Criminal Code endeavour to minimize harm and protect the privacy of victims and witnesses. See for example ss. 486.4, 486.1, 486.2, s. 278, s. 276.

[31] The Canadian Victims Bill of Rights, SC 2015, c. 13, s. 2 also contains the following relevant provisions:

(a) s.11: Every victim has the right to have their privacy considered by the appropriate authorities in the criminal justice system.

(b) s.12: Every victim has the right to request that their identity be protected if they are a complainant to the offence or a witness in proceedings related to the offence.

(c) s. 19(1): The rights of victims under this Act are to be exercised through the mechanisms provided by law.

(d) s. 21: To the extent that it is possible to do so, every Act of Parliament enacted – and every order, rule or regulation made under such an Act – before, on or after the day on which this Act comes into force must be construed and applied in a manner that is compatible with the rights under this Act.

[32] With that said, I turn to a consideration of the criteria set out in s. 486.5(7) and make the following findings.

S. 486.5(7)(a): The right to a fair and public hearing and the impact of the proposed order on the freedom of expression of those affected by it.

[33] This factor weighs against the granting of the order being sought.

[34] The right to a fair and public hearing in open court, the right to freedom of expression and freedom of the press are values that strike at the very core of our justice system. Justice must not be private. It must not only be done, but also seen to be done. Transparency enhances respect for the criminal justice system. Limitations on public access to court proceedings are very much the exception.

[35] These considerations apply in any case where a publication ban is sought and I see nothing in this particular case that increases the importance of this factor beyond any other case where a publication ban is mandatory pursuant to s. 486.4. This suggests the impact of such a restriction is limited because s. 486.4 is presumed to be constitutional.

[36] I also take into consideration the order sought is limited to the publication of the victim's identity only. The court is otherwise open and the proceedings are transparent. Members of the public, including the press, can scrutinize the proceedings and report the details of the offence, circumstances of the offender, impact on the victim and the sentence.

S. 486.5(7)(b): Whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed.

[37] This factor weighs in favour of the order being made on the facts of this case.

[38] The victim is blameless in this case. He was going about the ordinary routine of his day when he was set upon by three strangers without warning. He did not ask to be entangled in the criminal justice system, he never invited the media attention or commentary on the internet, nor did he do anything to encourage it. Just the opposite. Individuals have a right to privacy which does not necessarily evaporate simply because they are victimized through no fault of their own.

[39] I also accept that due to the victim's medical condition he has limited capacity and resilience to deal with unwanted media and internet attention that would flow as a result of his name being publicized and his medical diagnosis shared with strangers. I acknowledge that it is difficult in this case to separate the harm the victim has suffered as a result of the offence, from the harm he would suffer from unwanted media and internet attention if his name became public. I am nevertheless satisfied that the harm he would experience is genuine, realistic and constitutes a risk to his overall well-being.

[40] There are different types of harm that may occur in any case. The harm could be physical, psychological or both. Not every embarrassment, discomfort or inconvenience, no matter how unfortunate, will give rise to the protection afforded by this factor. In this case I find the risk of harm to the victim is real and substantial, not speculative and is neither trifling nor temporary.

S. 486.5(7)(c): Whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation.

[41] This factor does not apply to this case.

S. 486.5(7)(d): Society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process.

[42] This factor weighs in favour of the order being made.

[43] It stands to reason that the more harm caused to a victim with a disability as a result of their engagement with the justice system, the less inclined other vulnerable members of the community will be to report similar allegations and participate in the criminal justice system.

[44] The privacy interests of vulnerable victims of crime is a value that both Parliament and the courts continue to protect and is of crucial importance to the administration of justice. The more sensitive the allegations and vulnerable the individual, the more a person's privacy may need to be protected. This recognizes their vulnerable state and their need to live in the community unimpeded as much as reasonably possible by unwanted media attention flowing from their involvement in the criminal justice system.

S. 486.5(7)(e): Whether effective alternatives are available to protect the identity of the victim, witness or justice system participant.

[45] I have not had submitted to me alternatives that are less restrictive than an order banning the publication of the victim's name.

S. 486.5(7)(f) & (g): The salutary and deleterious effects of the proposed order. The impact of the proposed order on the freedom of expression of those affected by it.

[46] This consideration is broad and weighs both in favour and against the order being made.

[47] Any order limiting freedom of the press sheds less light on court proceedings, limits a constitutional right and has inherent deleterious effects on the freedom of the press. The public is limited in the ability to know the whole story. These considerations militate against ordering a ban.

[48] On the other hand, the publication ban sought in this case is limited to the identity of the victim only. The order requested aims to protect a vulnerable member of the community from further harm to allow him to move forward with his life. That militates in favour of the ban.

S. 486.5(7)(h): Any other factor that the judge or justice considers relevant.

[49] It is worth noting that media and internet attention today does not exact the same toll on an individual's privacy that it did 25 years ago.

[50] Today, searching through traditionally printed newspaper articles for information is not possible without a great deal of effort and time. By contrast, information about an individual is immediately available with only a few strokes on a key board on a smartphone held in the palm of anyone's hand.

[51] Previously, a newspaper article may have sparked an editorial comment or two or several, from passionate readers. Opinions would be filtered before being published, subject to editorial scrutiny and may or may not see the light of day in print. Today, individuals can weigh in and comment on the news on-line, anonymously, in real time, with very few restrictions.

[52] All to say, in coming to a decision in this case I have factored in the impact of indefinitely memorializing the victim's name and mental health information on the internet to his dignity, privacy and well-being. The ease with which anyone can search the internet for information about an individual, or this incident and learn the victim's diagnosis (when one would not otherwise be entitled to this private medical information) weighs in favour of granting the order.

CONCLUSION

[53] Bearing in mind the competing principles at stake in this case, on balance, it is my view that it is in the interest of the proper administration of justice to impose the publication ban on the identity of the victim.

[54] After considering all of the factors in s. 486.5(7), I am satisfied that there be no further avoidable harm to the victim. While harm is only one factor that I am obliged to consider, it is an important factor in this case given the victim is a vulnerable member of the community. The order does not impact the fair trial rights of the defendant and the facts of this case and the proceedings are otherwise entirely available for public scrutiny.

Released: January 8, 2019

Signed: Justice S. Caponecchia