ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 13-50000091/AP
Date: 20131022
BETWEEN:
HER MAJESTY THE QUEEN
– and -
ALEXANDER LISI
-and-
TORONTO STAR NEWSPAPERS LTD.
L. Hamilton, for the Crown
D. Basile, for Mr. Lisi
I. Fischer, for Toronto Star Newspapers Ltd.
Heard: October 22, 2013
KELLY J.:
Ruling Re: Disclosure of Exhibits
[1] This is an application brought by the Toronto Star Newspapers Ltd. (“The Toronto Star”). It seeks to have the exhibits filed at the trial and sentencing hearing of Mr. Alexander Lisi produced to it and copied.
[2] Counsel for Mr. Lisi takes no issue with production of the exhibits save and except for any personal information contained in the pre-sentence report that would identify those persons other than Mr. Lisi. Crown Counsel agrees.
[3] Counsel from The Toronto Star submits that the entire content of the pre-sentence report should be produced. It submits that it is “not interested in publishing information like addresses, phone numbers and financial information”. The Toronto Star would accept a publication ban over those sorts of identifiers, if required.[^1]
[4] It is my view that the materials filed at trial and at the sentencing hearing of Mr. Lisi should be produced with the following exception. A copy of the pre-sentence report redacting the identifying information of those persons mentioned (other than Mr. Lisi) shall be produced immediately. Those persons whose names are redacted shall be given notice of the application, together with a copy of these reasons and a copy of the redacted pre-sentence report. They will be given an opportunity to respond to the suggestion that their names and other identifying personal information be disclosed. What follows are my reasons.
The Facts
[5] Mr. Lisi was found guilty of knowingly uttering a threat following a trial. He came before the court for the purpose of sentencing on June 14, 2013. At that hearing, Crown Counsel filed a pre-sentence report and Counsel for Mr. Lisi filed a “Book of Materials Submitted on Behalf of the Defendantfor Sentencing”. The documents were listed as Exhibits 1 and 2 respectively.
[6] Mr. Lisi has appealed his conviction to this court. He submits that the decision of the trial judge was “unreasonable based upon the evidence in court”. It was thereafter that The Toronto Star brought its application for access to and copies of all exhibits filed at the trial and sentencing hearing of Mr. Lisi. Both Crown Counsel and Counsel for Mr. Lisi were served with the application.
[7] The other persons mentioned in the pre-sentence report were not served with the application for disclosure of the exhibits nor could they have been. To date, Counsel for The Toronto Star is unaware of their identities or other personal information. Crown Counsel and Counsel for Mr. Lisi have indicated that they will facilitate service of the application to those persons in the circumstances.
Analysis
[8] In coming to the conclusion that the exhibits (save and except the redactions in the pre-sentence report) should be produced to The Toronto Star and other media outlets[^2], I am guided by the principles set out by the Supreme Court of Canada[^3] and the Ontario Court of Appeal. In particular, I find the reasons of Sharpe J.A. in the case of R. v. Canadian Broadcasting Corporation, 2010 ONCA 726 to be instructive:
The open court principle and the rights conferred by s. 2(b) of the Charter embrace not only the media’s right to publish or broadcast information about court proceedings, but also the media’s right to gather that information, and the rights of listeners to receive the information. ‘[T]he press must be guaranteed access to the courts to gather information’ and ‘measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press.’: CBC v. New Brunswick at paras. 23-26. In Vancouver Sun (Re) at para. 25, the Supreme Court of Canada described the openness of the courts and judicial processes as being ‘necessary to maintain the independence and impartiality of courts’, ‘integral to public confidence in the justice system’ and ‘a principal component of the legitimacy of the judicial process’.
[9] Restrictions to the open court principle and the right of the press to access information in relation to judicial proceedings can be ordered in limited circumstances such as where the party seeking such a restriction establishes that:
a. An order restricting access is necessary to prevent a serious risk to the proper administration of justice; and
b. The salutary effects of the order sought outweigh the deleterious effects on the rights and interests of the parties and the public, including: the effects on the right to freedom of expression, the right of an accused to a fair trial and the efficacy of the administration of justice.[^5]
[10] The exhibits in this matter were filed during the trial and sentencing hearing involving Mr. Lisi. To the Court’s knowledge, there were no restrictions regarding their use at the time of the hearing. They were marked as exhibits as they formed part of the record. Many of the exhibits were referred to by the trial judge in his reasons.
[11] There has been no evidence produced by Mr. Lisi (or anybody else) to demonstrate that an order preventing access to the exhibits is necessary to prevent a serious risk to the proper administration of justice and that the salutary effects of the order sought outweigh the deleterious effects on the rights and interests of the parties and the public. Mr. Lisi has been convicted of a criminal offence, he has been sentenced and his matter is now before the summary conviction appeal court. As such, there will be no prejudice to Mr. Lisi’s right to a fair trial if the exhibits are disclosed.
[12] However, those who contributed information to the author of the pre-sentence report and others named have not been given an opportunity to address any restrictions regarding their name or other personal identifiers. It is my view that they should be given the opportunity to do so.
[13] Accordingly, all exhibits shall be produced to the media including the pre-sentence report as redacted. The issue of whether an unredacted pre-sentence report should be produced will be adjourned to hear from those persons affected, if necessary.
[14] The matter shall return to the Superior Court of Justice on October 31, 2013 at 2:00 p.m. to be spoken to at that time.
Kelly J.
Released: October 22, 2013
COURT FILE NO.: 13-50000091/AP
DATE: 20131022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and -
ALEXANDER LISI
-and-
TORONTO STAR NEWSPAPERS LTD. and JAMIE POISSION
Ruling Re: Disclosure of Exhibits
Kelly J.
Released: October 22, 2013
[^1]: This paragraph was amended on October 31, 2013 to accurately reflect the position of The Toronto Star.
[^2]: This application was brought by The Toronto Star. However, it was agreed that the exhibits would be provided to all media outlets to prevent the necessity of each media outlet bringing a similar application before the Court.
[^3]: See: Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3
[^4]: 2010 ONCA 726 at para. 24
[^5]: See: R. v. Canadian Broadcasting Corporation, supra, at para. 20; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, 3 S.C.R. 442