ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13100007420000
DATE: 20131126
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
WILLIAM ARTHUR COOK
Respondent
Cidalia Faria, for the Crown
Janice R. Johnson, for the Respondent
HEARD: November 4, 2013
b. p. o’marra j.
ruling on an application pursuant to s. 486.5(1) of the criminal code to restrict publication of information that would identify the complainant
overview
[1] The complainant K.H. became involved in a personal relationship with the respondent. The Indictment includes allegations of criminal harassment and extortion arising from that relationship.
[2] The allegations included threats to make public their relationship. The complainant believed this could lead to termination of her employment. The complainant and the respondent were working for the same employer when the relationship began.
the application
[3] The Crown has applied for an order restricting publication of the full name of the complainant. The Court must be satisfied that the order is necessary for the proper administration of justice.
[4] The factors that must be considered on such an application include the following:
• the right to a fair and public hearing
• whether there is a real and substantial risk that the complainant would suffer significant harm if her identity were disclosed
• society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process
• the salutary and deleterious effects of the proposed order
Criminal Code, s. 486.5(7)(a), (b), (d) and (f).
position of the parties
[5] The Crown submits that the complainant would suffer further harm if her name were publicized in the context of the specific allegations. The anticipated evidence will include intimate details of the relationship. The Crown alleges that the accused used the threat of exposing their relationship in order to control the complainant.
[6] The respondent opposes the application but does not claim any infringement of his fair trial interests.
analysis
[7] The applicant bears the burden of displacing the presumption of openness and must establish a sufficient evidentiary basis to permit the Judge to make an informed order and provide a record for review.
R. v. Mentuck 2001 SCC 76, [2001] 3 S.C.R. 442 at para. 26.
[8] A publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and;
(b) 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 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.
R. v. Mentuck (supra) at para. 32.
[9] The essence of the alleged extortion in the present case was the threat to make public the intimate relationship. The complainant feared this could have very negative consequences on her employment. If her full name is published in the course of trial she will be potentially subjected to the very threat posed by the respondent.
[10] The Crown seeks a very limited ban on publication of trial information. The order sought is that the complainant be referred to by her initials. Such an order would not impact adversely on the right to free expression or the right of the respondent to a fair and public trial.
[11] There is a real and significant risk that the complainant would suffer significant and increased harm if her identity was disclosed.
[12] There is a significant societal interest in encouraging the reporting of offences and the participation of complainants in the criminal justice process. The very limited ban on publication in this case is consistent with that goal.
result
[13] Application granted.
[14] An order will go to ban publication of the full name of the complainant in this case and refer to her as K.H. only.
B. P. O’Marra J.
Released: November 26, 2013
COURT FILE NO.: CR13100007420000
DATE: 20131126
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
WILLIAM ARTHUR COOK
Respondent
ruling on an application pursuant to s. 486.5(1) of the criminal code to restrict publication of information that would identify the complainant
B. P. O’Marra J.
Released: November 26, 2013