ONTARIO COURT OF JUSTICE DATE: 2022 03 08 COURT FILE No.: N/A Toronto Region – Old City Hall

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

CANADIAN BROADCAST CORPORATION

— AND —

TORONTO STAR NEWSPAPERS LTD.

Before Justice H. Pringle Heard on February 25, 2022 Reasons for Judgment released on March 8, 2022

Jennifer Gibson .................................................................................. counsel for the Crown Zachary Dubinsky ............................................................................................ agent for CBC Jim Rankin ............................................................ agent for Toronto Star Newspapers Ltd.

PRINGLE J.:

Overview of the Application

[1] On the strength of a sworn Information to Obtain (ITO), Toronto Police Service obtained a search warrant for the residence of Rodger Kotanko. They believed the search would produce evidence of illegal gun trafficking. Tragically, the execution of this search warrant ended in the death of Mr. Kotanko by police gunfire.

[2] The ITO was originally ordered sealed, by the issuing justice, so that the ongoing investigation would not be compromised. It remained so, until the circumstances surrounding Mr. Kotanko’s death attracted media attention.

[3] Early in 2022, I ordered a copy of this ITO unsealed subject to one redaction. I was not the issuing justice. But given no charges were laid, jurisdiction to unseal and to vary an unsealing order vests with any justice of this court: see Phillips v. Vancouver Sun, 2004 BCCA 14.

[4] Subsequently, the Crown learned that a person, named in the ITO, was concerned for his safety if his name were to become public. The Crown properly brought this concern to the court’s attention. A variation to seal this person’s identity, or in the alternative a five-year publication ban of it, was sought. Both media outlets resisted the Crown’s application in writing and in oral submissions.

[5] I have concluded the Crown’s application must fail. This is not meant to minimize the safety concerns the individual has. But the evidence falls short of dislodging the presumption of openness.

Factual Overview

[6] The ITO in this case provided an overview of an investigation into illicit gun trafficking. In short, police had seized two illicit firearms they believed linked back to Mr. Kotanko. Firearm analysis, including into scrubbed serial numbers, played a role in establishing the requisite grounds to search.

[7] As part of this investigation, a civilian Toronto Police Service (TPS) employee analyzed and tested one of the seized firearms. To be clear, this person was not the officer who shot Mr. Kotanko. As part of his job, he did routine investigative work on Mr. Kotanko’s case, and this work was summarized in the ITO.

[8] It is this civilian TPS employee who has safety concerns, were his identity to be made public. He was not and is not a confidential informant. His status as a TPS employee is no secret. Had the search warrant led to charges, his name, notes, and reports would have been disclosed in the ordinary Stinchcombe way. He may have been required to testify, as a Crown or defence witness, in open court had charges been laid.

[9] But instead, the investigation ended with Mr. Kotanko’s violent death. This caused media attention and internet speculation. An unchallenged affidavit, from the officer in charge of this case, established that “posts of a potentially hostile nature [were] posted on a variety of platforms… [which] caused the civilian employee to have concerns both [for] his well being and the well being of his family”.

[10] The affiant added that “[t]he majority of the posts are conspiracy based intent on spreading disinformation on social media platforms accusing the officers of committing an execution style murder and demanding accountability”. All were anonymous and posted in what are apparently gunowner forums. I was referred to three posts.

[11] The first expressed great anger about Mr. Kotanko’s death and asserted the officer/officers should not get away with his “murder”. I found nothing threatening about this post. Its author is entitled to have an opinion different than the police narrative.

[12] But the next two posts were, indeed, concerning. They called for the name, address, and work location of the officer who shot Mr. Kotanko. These posts made veiled death threats against the officer(s) responsible for his death.

[13] Not to minimize the seriousness of death threats against police, but these anonymous posts did not threaten officers involved in the investigation of Mr. Kotanko. They were clearly directed towards the officer or officers who caused Mr. Kotanko’s death.

[14] As stated above, the civilian TPS employee did not shoot Mr. Kotanko. But he is a lawful gun owner. He associates with other lawful gun owners and goes places other lawful gun owners go. The threats were made on gun owner forums. Because of this, he fears for his safety if publicly linked to the investigation.

Governing Legislation

[15] Section 487.3(1) of the Criminal Code permits a justice to prohibit access to, and the disclosure of, any information relating to a search warrant if:

(a) The ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

(b) The reason referred to in paragraph (a) outweighs in importance the access to the information.

(2) For the purposes of paragraph(1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

(a) if disclosure of the information would

(i) compromise the identity of a confidential informant;

(ii) compromise the nature and extent of an ongoing investigation;

(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

(iv) prejudice the interest of an innocent person; and

(b) For any other sufficient reason.

[16] Subsection (4) permits any party to apply for termination or variance of a sealing order’s conditions. While I was not the justice who issued the original sealing order, this court has jurisdiction over variation of its terms because no charges were laid: Phillips v. Vancouver Sun, supra.

The Dagenais/Mentuck Test

[17] The court must approach this issue from the presumption of openness. This is because, as per Sherman Estate v. Donovan, 2021 SCC 25 at para. 30:

Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-26). Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice. "In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so" (Khuja v. Times Newspapers Limited, [2017] UKSC 49, [2019] A.C. 161, at para. 16, citing Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1326-39, per Cory J.). Limits on openness in service of other public interests have been recognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed in public view (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 878; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at paras. 32-39; Sierra Club, at para. 56). The test for discretionary limits on court openness is directed at maintaining this presumption while offering sufficient flexibility for courts to protect these other public interests where they arise (Mentuck, at para. 33).

[18] The burden of proof rests upon the party seeking to withhold information from public view. The applicable test, as per Sherman Estate v. Donovan at para. 38:

…rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness -- for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order -- properly be ordered.

[19] Risk to a person’s safety has clearly been recognized as “an important public interest”: Sherman Estate, supra at paras. 86 and 96. But in order to justify withholding information from the public, that risk must be firmly grounded in evidence or in “objective circumstantial facts that reasonably allow the finding to be made inferentially”: para. 97. In the absence of either, it is speculative and transparency must be maintained.

[20] As per para. 102 of the Supreme Court’s decision in Sherman Estate:

Were the mere assertion of grave physical harm sufficient to show a serious risk to an important interest, there would be no meaningful threshold in the analysis. Instead, the test requires the serious risk asserted to be well grounded in the record or the circumstances of the particular case (Sierra Club, at para. 54; Bragg, at para. 15). This contributes to maintaining the strong presumption of openness.

Application to the Case at Bar

[21] I accept the civilian TPS employee has genuine concerns for his safety, if his name were to be released. But from an objective standpoint, the evidence did not dislodge the presumption of openness. I should add that, on my view of the evidence, revealing the employee’s name will not reveal his location in any way.

[22] With respect, I cannot justify redacting his name without relying on speculation and inferential leaps. To begin, the two posts are anonymous. I know nothing of their origin. I do not know if they came from within Ontario or even from within Canada.

[23] The employee’s concern is that his involvement in the gun community will lead to knowledge of his whereabouts. But I do not know if the author(s) connect whatsoever to the TPS employee’s gun-owning community. The poster could be a gunowner in British Columbia and have no connection to the employee’s gun-owning community.

[24] Indeed, I do not know whether a lawful gun owner even authored those posts. I do not know if those chat forum accounts are limited to lawful gun owners. I do not know whether accounts can be created by an illegal gun owner or even a ten-year old posting from his parents’ basement.

[25] It is speculative to conclude that those two posts were authored by a lawful gun owner. Presuming I could infer that the anonymous poster was a lawful gun owner, it is another logical leap to conclude that he/she must therefore know the civilian TPS employee or be able to track him down through that same community.

[26] It is speculative to conclude that the civilian’s lawful gun-owning community would want to kill him, if they found out he worked on the investigation. But if the civilian employee indeed believes this, then avoiding participation in his hobby is a reasonable alternate for him to take.

[27] Finally, and most saliently, the internet threats were entirely unconnected to the role the civilian employee had in this case. The anonymous threats were directed against the officer who shot Mr. Kotanko. That officer was not the civilian TPS employee.

[28] I have reviewed the ITO and the routine investigatory work the civilian employee did. I cannot discern how revealing this work, including his name, would link him to Mr. Kotanko’s subsequent death. The posts expressed vitriol at the fact of Mr. Kotanko’s death, not because police had been investigating Mr. Kotanko beforehand.

[29] I appreciate the threats were of a grave nature. But the gravity of potential harm to an innocent person is but part of the equation. Probability of harm is the other piece. As per Sherman Estate, at para. 98:

Where the feared harm is particularly serious, the probability that this harm materialize need not be shown to be likely, but must still be more than negligible, fanciful or speculative. The question is ultimately whether this record allowed the application judge to objectively discern a serious risk of physical harm.

[30] Here, the evidence did not establish a serious risk to an important public interest. An order sealing the civilian employee’s name is not necessary to prevent a serious risk to the proper administration of justice. Similarly, a publication ban on the civilian employee’s name is not necessary to prevent a serious risk to the proper administration of justice.

[31] Finally, it would be incorrect for me to approach this issue from the perspective of whether the civilian TPS employee’s name adds anything newsworthy to current media coverage. The presumption rests upon openness and for good reason. The public has a constitutionally protected right to scrutinize our courts, and the media is the public’s agent in that regard.

[32] The public has the right to know what is in the contents of that ITO, and it is not for me to determine what may be of public interest and redact the rest. Conspiracy theories breed best in darkness. Any limit – no matter how small – to public information must accordingly be grounded in evidence and carefully tailored to necessity.

[33] Here, it was not and, accordingly, the Crown’s variation application must be dismissed.

Released: March 8, 2022 Signed: Justice H. Pringle