ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000008-0000

DATE: 20130222

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

LAVARE WILLIAMS

Applicant

– and –

CHAEL MILLS

Respondent

Patrick Clement and Mary Misener, for the Crown

R. Roots Gadhia, for the Accused, Lavare Williams

Talman Rodocker, for the Accused, Chael Mills

HEARD: January 31, 2013

APPLICATION # 9

PUBLICATION BAN

REASONS FOR DECISION

Clark J.:

INTRODUCTION

[1] On May 3, 2010, Mitchell Celise was shot to death in broad daylight on a Toronto street. The accused are charged with his murder.

[2] According to the Crown, the accused belong to a street gang known as “M.O.B. Klick” and the victim belonged to a gang known as the Eglinton West Crips (“EWC”). The Crown alleges that the accused killed the deceased to avenge the death of a fellow gang member at the hand of a member of the EWC.

[3] Approximately 75 videos depicting M.O.B. Klick and people associated with it can readily be found on YouTube. In the course of a separate pre-trial application,[^1] I ruled that the Crown could introduce six of the videos in order to prove that: (i) M.O.B. Klick exists; (ii) it is a street gang (i.e., a criminal organization); (iii) members of the gang had the aforesaid motive; and (iv) both accused are members of the gang. Further to those ends, I ruled that a Crown witness, whom I have qualified as an expert on the subject of street gangs, could also refer to the content of certain videos that would not be played and, where necessary to demonstrate something the witness was discussing, introduce particular screen captures from them.

[4] The videos celebrate the illegal drug trade and violence, particularly violence involving handguns, and, thus, have a potential to be prejudicial to the fair trial interests for the accused. The applicant, Lavare Williams, seeks an order that YouTube take all M.O.B. Klick videos off its website forthwith and keep them off until such time as the trial is complete.

[5] Since the applicant did not give proper notice, as required by the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, counsel was obliged to seek leave to bring the application. On January 31, 2013, after hearing Ms. Gadhia’s submissions, in a brief oral pronouncement, I refused leave and summarily dismissed the application. I indicated that I would provide further reasons as time permitted. These are those reasons.

POSITIONS OF THE PARTIES

[6] The applicant contends that the order sought is necessary to permit him to have a fair trial because, if the order is not made, once the jury realizes that videos exist that they are not being shown, the temptation for them to go on the Internet to look for those videos will be irresistible. No instruction to the jury panel and/or the jury once it is selected, no matter how forceful, is apt to be effective, counsel maintains, in preventing the jurors from going to YouTube to satisfy their curiosity.

[7] Counsel for the co-accused, Mills, takes no position on the matter.

[8] Counsel for the Crown argues that the court should not grant leave to the applicant until such time as the applicant properly serves those persons entitled to notice and until counsel puts forward a proper evidentiary foundation establishing (i) that the danger asserted exists and (ii) that the order sought can be enforced.

DISCUSSION

Should Leave Be Granted?

[9] I begin this discussion by noting that much of counsel’s oral argument on the leave application touched upon the merits of the application proper. Indeed, counsel acknowledged during oral argument that, were I to grant leave, she would have little to add to the submissions she had already made.

[10] Rule 6.04(2) of the Criminal Proceedings Rules requires no less than 30 days’ notice of an application. No such notice was given here. Instead, on January 29, 2013, Ms. Gadhia raised the issue for the first time[^2] in this trial, indicating that she wished to argue the matter forthwith. I insisted that she file an application record. When she did so the following day, the application record was devoid of any evidence. When I indicated to her that I could not rely on her submissions as the basis upon which to decide a contested application, she asked that the matter be stood down further in order that she might file affidavit evidence. The following day, Ms. Gadhia filed a two page affidavit sworn by her law clerk.[^3]

[11] Rule 3.02(1) provides that the court may, subject to r. 2.01, abridge any time prescribed by the Rules on such terms as are just, but r. 2.01 provides that “[a] judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.” In this case, I am firmly of the view that the interests of justice do not require that I dispense with compliance. I say that for the following reasons.

[12] To begin, counsel acknowledges that she has known for many months that the Crown would seek to introduce video evidence depicting M.O.B. Klick, thereby raising the spectre, at least in her mind, so it would appear, that the jury in this case would be inclined to seek out information from electronic sources despite any instruction, no matter how forceful, not to do so. Indeed, Ms. Gadhia indicated that the issue was discussed at the pre-trial conference in this matter. Moreover, irrespective of whether the Crown were to succeed in having the proposed video evidence ruled admissible, counsel knew these videos were on the Internet. Thus, even without the Crown being permitted to adduce video evidence (while not so tempting, perhaps, as the situation where the jurors would know that they are seeing some, but not all, of the videos pertaining to M.O.B. Klick), it must have been obvious to Ms. Gadhia that the jurors might still be tempted to go to the Internet to research the subject matter of this trial. If the compulsion for jurors to do so is as strong as Ms. Gadhia now asserts, then, either way, I see no good reason why she waited until as late as she did to raise this issue.

[13] Rule 34.03 provides that, where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave. Before granting leave, the judge must take into account all the circumstances of the case, including the factors enumerated in the rule, to some of which I will refer below.

[14] The rules are designed to promote the fair hearing and just disposition of matters before the court. That said, it was incumbent upon counsel to bring this application in a timely fashion, giving the Crown and other parties, whose interests would be affected by the order sought, the required notice and, thus, a fair opportunity to respond. One of the r. 34.03 factors is “(a) the nature of the applicant’s non-compliance with these rules”. A further factor is “(j) any explanation advanced for failure to comply with these rules”.

[15] Ms. Gadhia says that she did not bring this application in a more timely fashion because she simply did not think to do so. It was not until the subject of jurors making their own investigation on the Internet was recently raised in the press,[^4] Ms. Gadhia says, that she realized that this application should be brought. But this was not just simple oversight. As noted above, however, she acknowledges that she considered the matter at least as long ago as the pre-trial conference. Therefore, the explanation offered is unsatisfactory.

[16] I note, parenthetically, that, in relation to Charter and other related applications, the Rules are frequently honoured more in the breach than the observance. The reason for that, in my view, speaking generally for the moment, is that some counsel seem to have the attitude that compliance with the Rules is not required because judges will be reluctant in criminal matters to disadvantage an accused for the shortcomings of his counsel, if the result of refusing to permit an application to proceed is to deprive the accused of a potential defence or possible Charter relief.

[17] Rule 34.03(c) obliges the court to consider “the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant”. Rule 34.03(d) speaks of “the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings”. Counsel’s failure to give timely notice of this application makes a full and proper hearing impossible without adjourning the trial. That is so because, were I to order YouTube to remove the videos in question, that would curtail the freedom of expression of those persons who posted the videos on YouTube. As such, these persons would be entitled to notice of this application. As noted above, there are approximately 75 videos on YouTube. There is no evidence before me to show how many persons contributed the material that is now on YouTube. Ms. Gadhia acknowledges that no one whose rights would be affected has been given notice.

[18] Jury selection in this matter is scheduled to start on February 14, 2013. Even finding out who would be entitled to notice by that time could be a difficult task. The need to give those persons whose rights might be affected proper notice and allow them time to seek representation if they so desired would make it impossible to have a proper hearing on this matter before the trial is scheduled to begin. The accused have been in custody awaiting trial for nearly three years, such that, unless absolutely necessary, adjourning the trial is not an acceptable option.

Discretion To Decline To Hear Applications

[19] Rule 34.02 provides that “[t]he presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.”

[20] In addition to r. 34.02, a wealth of case law supports the proposition that a trial judge has the discretion to decline to proceed with an application where it is apparent that it is without merit. In R. v. Kutynec (1992), 1992 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), for example, the court cited R. v. Hamill (1984), 1984 39 (BC CA), 14 C.C.C. (3d) 338, aff’d, 1987 86 (SCC), [1987] 1 S.C.R. 301, where, speaking for the court, Esson J.A. stated at pp. 366-67:

It is not in every case in which an accused applies to exclude evidence under s. 24(2) that it will be necessary to conduct an inquiry as to the reasonableness of the search, or that it will be necessary to hear evidence at all.

While that was said in relation to s. 24(2) of the Charter, it applies equally to the relief sought here.

[21] Kutynec was cited with approval in R. v. Lambert, 2011 ONSC 3689, [2011] O.J. No. 3521, where, at paragraph 14, Kelly J. held:

14 In R. v. Kutynec, the Ontario Court of Appeal endorsed a streamlined approach for dealing with Applications of dubious merit. The Court proposed that the defence could be called upon to summarize the basis of its application and, if on that basis, the Application is devoid of merit, the application could be dismissed without the hearing of any further evidence:

Armed with this information, the trial judge can weed out the applications which have no basis in fact or law, and can decide how and when those with potential merit should be resolved.

[22] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, the Supreme Court of Canada reaffirmed the proposition that trial judges have a discretion to weed out unmeritorious applications. At paragraph 35, speaking for the court, Charron J. stated:

35 The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

[23] In R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493, at para. 31, the court held that the trial judge was not required to proceed with a motion based on a legal argument that was doomed to fail. See also R. v. Iannotta, 2011 ONSC 1458, [2011] O.J. No. 995, at para. 50; R. v. Riley, [2008] O.J. No. 4015 (S.C.J.), at para. 13; and R. v. Fazekas, 2010 ONSC 6649, [2010] O.J. No. 5263, at para. 6.

Likelihood of the Application Succeeding

[24] For the following reasons, I am firmly of the view that the application has no hope of success.

[25] First, counsel has pleaded the wrong section. In her materials, Ms. Gadhia seeks to have the court make an order pursuant to s. 486.5(2).[^5] It is not clear to me, however, that the section provides for the relief Ms. Gadhia seeks. It seems clear enough that what s. 486.5(2) is directed toward preventing is the publication of information divulged during the course of proceedings within the courtroom that might tend to identify “the justice system participant” cum applicant. What is sought in this case, however, is not an order that would prevent the publication of the identity of a justice system participant. Nor does the applicant seek a publication ban in the traditional sense, but, rather, an order that would curtail the rights of third parties to continue to promulgate material already in the public domain prior to the commencement of trial. I do not read the section as conferring upon the court the authority to make such an order.

[26] If the court has the power to do what Ms. Gadhia seeks (which, for the reasons set out below, is not clear to me), I would have thought it more appropriate to seek relief by relying on the court’s common law power to ban publication, either standing alone or in combination with s. 24(1) of the Charter: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, at pp. 874-75.

[27] Second, as noted above, there has been no proper notice to persons whose rights under s. 2(b) of the Charter may be affected. In that regard, I note Lamer C.J.’s remarks in Dagenais, at p. 880:

It is also important to note the extent to which a publication ban trenches upon the rights of individuals to freedom of expression. In the case of the publication ban at issue here, the specific freedom of expression interests engaged by the ban included: the film director's interest in expressing himself; the CBC's interest in broadcasting the film; the public's interest in viewing the film; and society's interest in having the important issue of child abuse presented to the public. All of these interests were limited by the publication ban ordered in the case at bar. [Emphasis added.]

Likewise in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 38, Iacobucci J. stated:

In some cases, however, most notably when there is no party or intervener present to argue the interests of the press and the public to free expression, the trial judge must take account of these interests without the benefit of argument. The consideration of unrepresented interests must not be taken lightly, especially where Charter-protected rights such as freedom of expression are at stake.

I take from the above quoted remarks that, before an order of the sort sought here can properly be made, the parties who would be affected by the proposed order are, where at all possible, entitled to be heard.

[28] There is no evidence before me that any effort whatsoever was made to ascertain who posted the videos in question, much less make inquiries of such persons as to their position in relation to the order sought, and, by obvious extension, no evidence that it was not possible to serve them.

[29] Third, there is no evidentiary foundation before me capable of establishing either the danger Ms. Gadhia postulates or the effectiveness of the remedy she proposes. In this regard, I note that the affiant indicates the material has been disseminated to other websites. While she goes on to indicate that some of those entities have agreed to take the videos off their respective sites, it is unclear just how many other websites may presently have this material available to the public.

[30] In Dagenais, the court held that a publication ban should only be ordered when it is necessary to prevent “a real and substantial risk of interference with the right to a fair trial” (p. 875), where no other reasonable alternative will allay the risk, and where the benefits of the ban outweigh the deleterious effects to the free expression of those affected by the ban: p. 878.

[31] In Mentuck, speaking for the court, at paragraph 34, Iacobucci J. held

that the risk in question [must] be a serious one, or, as Lamer C.J. put it at p. 878 in Dagenais, a “real and substantial” risk. That is, it must be a risk the reality of which is well-grounded in the evidence. It must also be 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.

[32] In R. v. J.R., [2007] A.J. No. 1567 (Q.B.), Brooker J. declined to exclude the media and the public from certain voir dires where it was argued that, despite a publication ban, the evidence would wind up on the Internet. The court stated, at paragraph 15, that “[i]t is nothing more than speculation that the media would not comply with [the] publication ban.” More importantly, for purposes of this application, Brooker J. held that there was no evidence either that potential jurors would go on the Internet and look at material that had been posted or that, once sworn, jurors would disobey instructions in that behalf.

[33] That said, the applicant in this case has laid no evidentiary foundation before me to establish that the danger Ms. Gadhia argues is present here – that jurors will be irresistibly drawn to YouTube and are not just apt, but, indeed, bound to disobey any instructions I might give that they abstain from consulting electronic media – actually exists.

[34] In Dagenais, at p. 884, Lamer C.J. held that “jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of the criminal proceedings.” In J.R., at paragraph 16, Brooker J. stated, “[T]he courts have the greatest respect for the jury system and, in particular, have confidence in jurors obeying instructions and honouring their oath to decide the case solely on the evidence.” I share those views. That said, in the absence of any evidence, I do not accept the hypothesis underlying the application, namely, that the jury will be incapable of obeying judicial instruction, no matter how forceful, not to explore electronic media.

[35] Fourth, before ordering a publication ban, the court must consider “whether reasonable alternative measures [are] available that would [guard] against the risk of the trial being unfair without circumscribing the expressive rights of third parties”: Dagenais, at p. 880. No suggestion of alternative relief has been advanced in the case at bar.

[36] Fifth, YouTube, as I understand, is a subsidiary of Google Inc. with corporate headquarters in California. Thus, the order sought would seem to me to offend the principle of territoriality.

[37] In their majority opinion in R. v. Cook, 1998 802 (SCC), [1998] 2 S.C.R. 597, at paragraph 26, Cory and Iacobucci JJ. stated:

In essence, the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state's territorial limits would constitute an interference under international law with the exclusive jurisdiction of another state.

[38] This principle was also discussed by Bastarache J. in his concurring judgment in Cook, where, at paragraph 131, he stated:

Attempts to enforce domestic law directly in the territory of a foreign state are prohibited in all but the most exceptional circumstances. In the words of Professor Brownlie, discussing "Extra-territorial Enforcement Measures":

The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.

[39] As noted above, the only evidence before me on this application is the affidavit of Ms. Gadhia’s law clerk. The affiant attests to having spoken to someone at YouTube[^6] who indicated that YouTube would comply with any order the court might make requiring the company to remove material in order to protect the fair trial interests of the accused in this trial. In oral argument, when I raised the jurisdictional issue with Ms. Gadhia, she first insisted that, because the Internet is available in Canada, it matters not that the persons who control it are in California, suggesting, instead, that the court has jurisdiction to make the order sought.

[40] Ms. Gadhia then appeared to resile from the position that the court had jurisdiction to make the order, but maintained, nonetheless, that, since YouTube was prepared to comply with any order the court might make, it was appropriate to make the order sought, in any event.

[41] Dealing with Ms. Gadhia’s first point, it is clear that Canadian criminal law can sometimes apply extraterritorially (Re Chapman, 1970 254 (ON CA), [1970] 3 O.R. 344 (C.A.), leave to appeal ref’d, [1970] S.C.R. viii; and Libman v. The Queen, 1985 51 (SCC), [1985] 2 S.C.R. 178) provided there is “a real and substantial connection” between Canada and the act or activity in the foreign state: Cook, at paras. 136 and 141.

[42] Turning specifically to the Internet, in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, at paragraph 59, Binnie J., speaking for the majority, stated that “a telecommunication from a foreign state to Canada, or a telecommunication from Canada to a foreign state, ‘is both here and there’. Receipt may be no less ‘significant’ a connecting factor than the point of origin (not to mention the physical location of the host server, which may be in a third country).”

[43] At paragraph 61 ff., Binnie J. described the ambit of the jurisdiction of Canadian law as it relates to telecommunications:

61 In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute.

62 Canada clearly has a significant interest in the flow of information in and out of the country. Canada regulates the reception of broadcasting signals in Canada wherever originated; see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42. Our courts and tribunals regularly take jurisdiction in matters of civil liability arising out of foreign transmissions which are received and have their impact here; see WIC Premium Television Ltd. v. General Instrument Corp. (2000), 2000 ABCA 233, 8 C.P.R. (4th) 1 (Alta. C.A.); Re World Stock Exchange (2000), 9 A.S.C.S. 658.

63 Generally speaking, this Court has recognized, as a sufficient "connection" for taking jurisdiction, situations where Canada is the country of transmission (Libman, supra) or the country of reception (Liberty Net, supra). This jurisdictional posture is consistent with international copyright practice.

[44] Earlier in the judgment, however, at paragraphs 54 and 55, Binnie J. made clear that for a statute to have extraterritorial effect it must appear, either expressly or by necessary implication, that Parliament intended the law in question to have such effect:

54 While the Parliament of Canada, unlike the legislatures of the Provinces, has the legislative competence to enact laws having extraterritorial effect, it is presumed not to intend to do so, in the absence of clear words or necessary implication to the contrary. …

55 While the notion of comity among independent nation States lacks the constitutional status it enjoys among the provinces of the Canadian federation (Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, at p. 1098), and does not operate as a limitation on Parliament's legislative competence, the courts nevertheless presume, in the absence of clear words to the contrary, that Parliament did not intend its legislation to receive extraterritorial application.

[45] Turning, then, to this case, there is nothing before me to support the proposition that the section of the Code upon which the applicant seeks to rely (even assuming it applied, which I do not accept), or for that matter s. 24(1) of the Charter, was intended by Parliament to apply extraterritorially in such circumstances.

[46] As noted above, counsel’s second response to the jurisdictional issue was to suggest that the court should make the order she seeks because, even if it would not be binding, YouTube had indicated, according to her law clerk’s affidavit, that it would obey any order it received in that behalf. It is trite to observe, however, that consent cannot confer jurisdiction: R. v. Brown, 1962 48 (SCC), [1962] S.C.R. 371; R. v. Leduc (2003), 2003 52161 (ON CA), 66 O.R. (3d) 1.

[47] It, of course, goes without saying that the court has a duty to protect, so far as reasonably possible, the fair trial interests of the accused. As noted above, however, the accused’s interests are not the only interests engaged by the present application. It is equally clear that there is no hierarchy of Charter rights and, the s. 7 rights of an accused do not necessarily take precedence over competing Charter rights of third parties: Dagenais, at para. 72.

[48] In summary on this point, I can think of few things more likely to put the administration of justice into disrepute than for the court:

(i) to ignore the applicant’s failure to comply with the rules pertaining to the bringing of such an application;

(ii) to ignore the applicant’s failure to give third parties proper notice of an application for an order, the effect of which would be to curtail the Charter rights of those parties;

(iii) to compound the applicant’s failure to give notice by denying those parties whose rights would be affected the opportunity to be heard;

(iv) to purport to make the “order” sought, while being of the view that it is of no force and effect; and

(v) to permit counsel, as an officer of the court, to then serve the “order” on a party in a foreign jurisdiction, thereby misleading that party into believing that it is bound to comply with the dictates of the court.

With respect, the mere suggestion by an officer of the court that the court should follow such a course of action is itself an affront to the administration of justice.

CONCLUSION

[49] For the foregoing reasons, I concluded that the application was without merit, such that, even had I granted leave, it would have had no chance of success. I would refuse leave on that basis alone. However, when one adds to the hopeless nature of the application the fact that the applicant failed to comply with the Rules, despite ample opportunity to do so, it simply reinforces my view that this was not an appropriate case in which to grant leave. Therefore, as noted, I denied leave and summarily dismissed the application.

[50] Having said that, as I indicated to counsel during the course of oral argument, I am prepared to instruct the jury panel and, in turn, the jury in very strong terms that they are not to seek out any information concerning the parties, the subject matter of the indictment or anything else connected to this case from any source whatsoever, including all electronic media. I am satisfied that that will be an effective antidote to any temptation on the part of jurors to explore the Internet for information concerning this case. I am prepared, as well, to reiterate that instruction at such time as the videos are played for the jury.

Clark J.

Released: February 22, 2013

Footnotes

[^1]: Application #7.
[^2]: Pre-trial applications in this matter commenced on January 7, 2013.
[^3]: Now Exhibit 1 on this application.
[^4]: As one example, see Betsy Powell, “Googling, tweeting, emailing: Fair trials threatened by court jurors who do it”, The Toronto Star (29 January 2013), online: TheStar.com.
[^5]: In the written application, counsel actually pleads s. 486.2(5) of the Criminal Code, but that section deals with orders that witnesses be permitted to testify from a location outside the courtroom and, as such, has no application to the relief sought here. I can only assume that this was a transpositional error and that Ms. Gadhia meant to rely upon s. 486.5(2) of the Code, which deals with publication bans.
[^6]: The affiant did not name the YouTube employee to whom she spoke; nor did she articulate the position that person holds within the corporate structure. Accordingly, I have no way of knowing whether the person had the authority to speak for the corporation and whether it is in fact the case that YouTube would see fit to obey the order of a foreign court.