ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 85069/13

DATE: 20131231

BETWEEN:

Vijay Ganesh Singh

Applicant

– and –

Her Majesty the Queen

Respondent

Nancy J. Tourgis and Cameron J. Wetmore, for the Applicant

Jinwon Kim and George Hendry, for the Respondent

HEARD: December 20, 2013

Ruling on publication ban

Boswell J.

Overview

[1] Vijay Singh is a convicted murderer. By his own admission he is also a drug trafficker, smuggler and gangster.

[2] It was earlier this month that he was convicted by an Oshawa jury of two counts of second degree murder in the deaths of two men found bound and shot in the trunk of an abandoned car in Pickering in May 2009. A police investigation that began when the bodies were discovered led to Mr. Singh. The execution of search warrants involving a number of locations associated with Mr. Singh led the authorities to substantial sums of cash – roughly $700,000 – that were seized as alleged proceeds of crime.

[3] Mr. Singh applied to the Court under section 462.34 of the Criminal Code for access to the seized funds for the purpose of paying reasonable legal fees. His application was heard November 18-20, 2013, just after the evidentiary portion of his double murder trial was completed, but before the case went to the jury. He sought funds to pay for his legal fees in the Oshawa murder trial as well as a second murder trial that awaits him in Toronto – scheduled to commence in late January 2014.

[4] I denied Mr. Singh’s application for reasons reported at 2013 ONSC 7406. I made negative findings about Mr. Singh’s credibility in the course of those reasons. His counsel now seeks a ban on the publication of the details of his application, including the evidence he gave and the findings I made, pending the completion of the murder trial in Toronto. The Crown does not oppose the issuance of such a ban.

The Information in Issue

[5] Mr. Singh filed three affidavits in the course of the application to access the seized funds. He was cross-examined by the Crown in relation to his assets and means. During that cross-examination, Mr. Singh candidly admitted that he made substantial sums of money smuggling chemical substances between India and Vietnam. He also admitted to importing drugs illegally into Canada. He described himself as a “gangster”, which I believe he took some considerable pride in.

[6] In my ruling on the application, I described Mr. Singh as an unsavory witness. I noted that he is an admitted liar whose life, prior to his arrest, had been based on deception and artifice. I ultimately found that it would be unsafe to rely upon his evidence in terms of his existing assets and means. That ruling was critical to the outcome of his application.

The Publication Ban Request

[7] Mr. Singh’s counsel seeks a ban on publication to prevent Mr. Singh’s evidence regarding his illegal business activities, as well as my negative findings about his credibility, from coming to the attention of any prospective jurors in any manner other than through admissible evidence tendered during his murder trial in Toronto. The expressed concern is to protect Mr. Singh’s constitutional right to a fair trial.

[8] There was no request for a publication ban when the s.462.34 application was argued. During the course of the hearing of the application, the Court raised the issue of a ban on publication, at least until the Oshawa jury had retired to consider its verdict. All counsel agreed that it would be appropriate to issue such a ban and accordingly I made an order under s. 648 banning publication of any part of the hearing until December 31, 2013.

[9] Following the release of my ruling on the application, Mr. Singh’s counsel wrote to the Court asking that the publication ban be extended until after Mr. Singh’s second murder trial. No formal application was brought. All counsel participated in a telephone conference call on December 20, 2013 when the matter was argued, though to be clear, the Crown has never opposed the granting of the ban.

The Issues

[10] Notwithstanding the unopposed nature of the application, the Court asked counsel to make submissions on two issues: (1) the jurisdiction to make the publication ban sought; and (2) what, if any, notice ought to be given to the media whose interests are affected by the ban?

Jurisdiction

[11] Mr. Singh’s counsel urged the Court to make a further order under s. 684(1). That section provides for an automatic publication ban in certain circumstances. It reads as follows:

648. (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

[12] Section 648(1) has been interpreted broadly to include information pertaining to any pre-trial motions, even where they have taken place prior to the selection of the jury: see R. v. Canadian Broadcasting Corp., 2008 83941 (ON SC), [2008] O.J. No. 5637 (S.C.J.).

[13] Provided s. 648(1) applies, then it is not necessary for me to make any specific order barring publication. It is debatable, however, in the Crown’s view, whether the section is applicable in the present circumstances. Briefly stated, the concern is that the s. 462.34 application was not a “portion of” the pending murder trial in Toronto. The application was obviously brought prior to the trial and was, in a temporal sense at least, a “pre-trial motion”. But it was not specific to that trial. Moreover, I am not the trial judge of that proceeding, nor have I been appointed a case management judge in relation to it. Under the circumstances, one may be hard pressed to make the point that the application was a portion of a murder trial to be heard by another judge in another jurisdiction.

[14] It is, strictly speaking, unnecessary for me to decide the point, as counsel all agree that the Court has a common law discretion to issue a publication ban in certain circumstances: see Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835, 1994 39, [1994] S.C.J. No. 104. Counsel are further agreed that this would be an appropriate case in which to exercise that common law discretion and to order a temporary ban.

The Common Law Test

[15] The common law discretion to issue a publication ban over part or all of a proceeding is not open-ended and must not be exercised arbitrarily. The Court must consider that there are competing Charter interests in play. On the one hand, as Mr. Singh’s counsel has pointed out, his right to a fair trial, as enshrined in ss. 7 and 11(d) is engaged where highly prejudicial information may come to the attention of potential jurors if not protected by a temporary ban. On the other, the s. 2(b) freedom of expression, including freedom of the press and other media is also engaged whenever a restriction on publication of the Court’s proceedings is contemplated.

[16] Charter rights are not static, nor determined in a vacuum. They demand different things at different times. They must be determined contextually and frequently require a balancing of competing interests: see R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C. J. No. 28, 174 D.L.R. (4th) 111, 135 C.C.C. (3d) 257. In keeping with the requirement of a contextual, balanced approach, the Supreme Court has developed the Dagenais/Mentuck test, to be applied when exercising the common law discretion to issue a publication ban. The name refers to two Supreme Court decisions, one of which – Dagenais – I have already cited above. The other is R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, 205 D.L.R. (4th) 512, 158 C.C.C. (3d) 449.

[17] According to the Dagenais/Mentuck test, the appropriate balancing of competing interests is achieved through the careful examination of the objectives of the ban, and its proportionality in relation to its effect on the freedom of expression. A ban should only be ordered if:

(a) It 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. (R. v Mentuck, para. 34)

Application of the Test

[18] Here, the issuance of the ban sought by Mr. Singh is not opposed by the Crown. Indeed, it was the Crown who urged the Court to apply the Dagenais/Mentuck test and to find that the facts and circumstances present here satisfy the test.

[19] Mr. Singh gave revealing testimony during his s. 462.34 application about some significantly disreputable behaviour he has been engaged in. It is agreed that publication of Mr. Singh’s evidence and, perhaps even more significantly, my findings about his credibility, may have a seriously prejudicial effect against him.

[20] It must be acknowledged, of course, that there is no publication ban in place with respect to the outcome of the double murder trial in Oshawa. The media has been free to report on Mr. Singh’s convictions for kidnapping and murder. That is some markedly disreputable behaviour as well.

[21] That said, while I do not have control over the dissemination of information surrounding the kidnapping and murder convictions, I do have some measure of control over the timing of the dissemination of information surround Mr. Singh’s smuggling and trafficking activities as well as my specific findings about his credibility as a witness. Mr. Singh did not testify at his double murder trial. He did testify in the s. 462.34 application and I made negative comments about the fulsomeness and credibility of his testimony. While I have no control over the impact of public information about the kidnapping and murder convictions, it is within my discretion to craft an order that avoids adding to the problem by delaying publication of information revealed during the s. 462.34 application and my ruling on it.

[22] I agree with the submissions of all counsel that the publication of evidence given by Mr. Singh at his s. 462.34 application poses a serious risk to the proper administration of justice, as does the publication of my reasons for dismissing his application. It is not yet known whether he will elect to testify in the Toronto murder trial. It would be unfair to Mr. Singh to have to proceed to trial before a jury not knowing to what extent, if any, they have been tainted by knowledge of his prior disreputable conduct and/or the Court’s expressed views on his credibility.

[23] A carefully worded challenge for cause may assist in weeding out prospective jurors who have been influenced by published accounts of Mr. Singh’s earlier trial. One can never, however, be certain that jurors do not surf the internet looking for information about the offence being tried and/or the people involved in them. Indeed, in this day and age, it would be reasonable to assume that jury panel members, and selected jurors, have information about the case obtained from other sources. They will, of course, be admonished to put that information out of their minds and I have every expectation most, if not all, will be capable of doing so. But there may remain subtle influences that individuals may not consciously recognize.

[24] In my view, there exists a serious risk to the administration of justice, should a publication ban not be put in place temporarily. There is no other way to address the risk posed by the release of the information in issue.

[25] Counsel were agreed that the salutary effects of the proposed ban outweigh its deleterious effects. I agree. The salutary effects are fairly obvious. The deleterious effects are minimized by virtue of the time-limited ban. The Toronto murder trial is scheduled to commence at the end of January 2014. I have not been provided with an estimate of its expected duration, but one might reasonably expect that a range of two to three months is likely.

[26] There are many details of the Oshawa murder trial that the media is free to publish. The details sought to be restricted are a small element and the ban only likely to last until late winter or early spring 2014. In my view, the balancing weighs out clearly in favour of the ban.

[27] In the result, there will be a ban on the publication of any information relating to Mr. Singh’s s. 462.34 application including, but not limited to, the fact that the application was made, any evidence given in the course of the application and the reasons for decision released on December 5, 2013 as 2013 ONSC 7406. The ban will continue until the completion of Mr. Singh’s impending murder trial in Toronto, scheduled to commence in late January 2014, but will not apply during any appeal process.

Notice of the Application

[28] Mr. Singh’s counsel did not bring a formal application for this further ban. Instead, the matter was discussed in a telephone conference call with counsel. Given the timing of the request, the time of year, and the impending expiration of the original ban, there wasn’t time to notify any media outlets. But the media certainly has an interest in the subject matter of this informal application. They should have had an opportunity to make submissions if they chose to. I am very mindful that their interests have not been represented here.

[29] As Justice Iacobucci observed at para. 38 of R. v. Mentuck, as above,

In some cases…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.

[30] I have attempted to take into account the interests of the public and of the press. But being mindful that they have not had an opportunity to make submissions, this decision ought to be considered as provisional. Mr. Singh’s counsel should provide a copy of this ruling to Toronto media outlets including the Globe and Mail, the National Post, the Toronto Star, the Toronto Sun, the Canadian Broadcasting Corp., and the Canadian Television Network. In addition, the local Durham Region Metroland newspaper should also be served with a copy of this ruling. Any interested party who wishes to make submissions to the Court may contact me through the local trial co-ordinators’ office in Newmarket – with notice to counsel for the Crown and for Mr. Singh - and a hearing date will be arranged.

Boswell J.

Released: December 31, 2013