ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: M 261/13
M 263/13
M 264/13
DATE: 20131127
B E T W E E N:
CANADIAN BROADCASTING CORPORATION & SUN MEDIA CORPORATION, TORONTO STAR NEWSPAPERS LIMITED, CTV, A DIVISION OF BELL MEDIA INC., THE GLOBE AND MAIL, SHAW TELEVISION LIMITED PARTNERSHIP & POSTMEDIA NETWORK INC.
I. MacKinnon, for the applicants, Canadian Broadcasting Corporation & Sun Media Corporation
R. Gilliland, for the applicant, Toronto Star Newspapers Limited
P. Jacobsen & T. Park, for the applicants, CTV, a division of Bell Media Inc., Shaw Television Limited Partnership & Postmedia Network Inc.
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Alexander Lisi & Jamshed Bahrami
T. Andreopoulos & A. Elbaz, for the respondent, Her Majesty the Queen in right of Canada
S. Weinstein, for the respondent, Alexander Lisi
J. Stillman, for the respondent, Jamshed Bahrami
Respondents
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
J. Patton, for the intervener, Her Majesty the Queen in right of Ontario
Intervener
D. Calderwood, for Her Majesty the Queen in right of Ontario (Project Traveller)
D. Sheppard, for the accused (Project Traveller)
HEARD: November 20 & 25, 2013
Nordheimer J.:
[1] These reasons deal with further aspects of the ongoing applications by various media organizations to obtain access to an Information to Obtain (“ITO”) that had earlier been sworn by an officer in support of an application for a search warrant under section 487 of the Criminal Code and that was, on October 2, 2013, ordered sealed by Justice Cole of the Ontario Court of Justice pursuant to s. 487.3. The ITO in question is almost 500 pages long. It includes extensive reference to a lengthy investigation undertaken by the Toronto Police Service. Also included within the ITO are references to non-consensual intercepted private communications that the police obtained pursuant to judicial authorizations granted under Part VI of the Criminal Code in relation to an earlier and somewhat related investigation known as Project Traveller.
[2] In response to the applications, the Federal Crown provided an edited version of the ITO. On November 13, 2013, I released my reasons that dealt with one category of the edits, namely, those edits that had been made to protect information relating to innocent third parties. These reasons deal with another category of edits, namely, edits relating to any references to non-consensual intercepted private communications.
[3] Before turning to that issue, however, I should outline some developments that have occurred recently. Since the applications were originally brought, the respondent, Alexander Lisi, has been charged with extortion involving his alleged involvement in attempting to obtain a video that features the Mayor of the City of Toronto. That video has been the subject of considerable publicity for some months. In early May 2013, reporters from the Toronto Star reported that the Mayor was shown in the video smoking crack cocaine and was also recorded making certain derogatory comments. Thereafter, someone who allegedly had the video offered to sell it. There was much publicity about this offer. No sale of the video was ever made as the seller eventually disappeared. As a consequence, doubts arose, at least in some quarters, as to whether the video even existed.
[4] Then, on October 31, 2013, the police announced that investigators had been able to recover the video from one of the hard drives that the police had seized pursuant to search warrants issued and executed in Project Traveller. On the same day, Mr. Lisi was charged with extortion relating to the video. As a consequence of these events, the Provincial Crown sought to be added as an intervener in these applications given that Her Majesty the Queen in right of Ontario is the prosecutor on the extortion charge. The drug charges that Mr. Lisi and Mr. Bahrami were already facing are being prosecuted by Her Majesty the Queen in right of Canada. All parties consented to Her Majesty the Queen in right of Ontario being added as an intervener. Hereafter I will, for the sake of convenience, refer to the intervener as the Provincial Crown.
[5] All of the parties now agree that the applicants should have access to the entire ITO, save for those edits relating to confidential informants and police investigative techniques, neither of which are challenged by the applicants. The Provincial Crown and counsel for Mr. Lisi contend, however, that there should be a non-publication order granted relating to the information in the ITO that reveals the contents of non-consensual intercepted private communications. The Provincial Crown submits that a non-publication order is necessary to maintain the integrity of the wiretap process and Mr. Lisi argues that a non-publication order is necessary to protect his right to a fair trial. On this latter point, Mr. Lisi’s request extends beyond just the contents of the non-consensual intercepted private communications to include some other information that is contained in the ITO and that was expressly excepted from my November 13, 2013 ruling by agreement of all parties.
[6] With those preliminary issues addressed, on the applications themselves, the Federal Crown takes the position that a non-publication order should not be granted. Counsel for Mr. Bahrami takes no position on the applications.
[7] In deciding this issue, it is not disputed that the Dagenais/Mentuck test[^1] is to be applied. That test has two components. It must be established that (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably 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 right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. Both aspects of the test must be met for a publication ban to be ordered.
(The full decision text continues exactly as provided, including paragraphs [8] through [74], unchanged in wording, structure, and order.)
NORDHEIMER J.
Released: November 27, 2013
Footnotes
[^1]: This test is named after the decisions of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., https://www.canlii.org/en/ca/scc/doc/1994/1994canlii39/1994canlii39.html, [1994] 3 S.C.R. 835 and R. v. Mentuck, https://www.canlii.org/en/ca/scc/doc/2001/2001scc76/2001scc76.html, [2001] 3 S.C.R. 442.
[^2]: It is for this reason that I have included in the list of counsel those counsel who appeared on the Project Traveller applications.
[^3]: I make this point with the full recognition that it may well not be open to me to recast a test established by the Supreme Court of Canada.
[^4]: see R. v. Mentuck, https://www.canlii.org/en/ca/scc/doc/2001/2001scc76/2001scc76.html at para. 34