Her Majesty the Queen v. Badakhshan

[Indexed as: R. v. Badakhshan]

Ontario Reports

Ontario Superior Court of Justice,

Dambrot J.

January 21, 2014

118 O.R. (3d) 706

Case Summary

Criminal law — Publication ban — Crown applying for publication ban pursuant to s. 486.5 of Criminal Code in order to protect victim's grandmother from exposure to horrific details of victim's death — Application dismissed — Dagenais/ Mentuck test applying where Crown seeks statutory publication ban — Crown failing to establish that publication ban was necessary to prevent serious risk to proper administration of justice — No serious risk of harm to victim's grandmother established — Criminal Code, R.S.C. 1985, c. C-46, s. 486.5.

The Crown applied for a publication ban pursuant to s. 486.5 of the Criminal Code at a first degree murder trial in order to protect the victim's grandmother from exposure to the horrific details of the victim's death.

Held, the application should be dismissed.

The Crown is not relieved from the requirement that it meet the first limb of the Dagenais/Mentuck test where the application for a publication ban is made under a statutory provision as opposed to the common law. The Crown failed to establish that a publication ban was necessary to prevent a serious risk to the proper administration of justice. In any event, there was no real showing of a serious risk of harm to the victim's grandmother.

Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76, 205 D.L.R. (4th) 512, 277 N.R. 160, [2002] 2 W.W.R. 409, J.E. 2001-2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d) 349, apld

H. (M.E.) v. Williams (2012), 108 O.R. (3d) 321, [2012] O.J. No. 525, 2012 ONCA 35, 287 O.A.C. 133, 346 D.L.R. (4th) 668, 15 R.F.L. (7th) 37, 212 A.C.W.S. (3d) 735; R. v. Cook, [2013] O.J. No. 5414, 2013 ONSC 7291 (S.C.J.); R. v. Pantalone, [2007] O.J. No. 2078, 2007 ONCJ 138, consd

Other cases referred to

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 184 (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, 139 D.L.R. (4th) 385, 203 N.R. 169, 182 N.B.R. (2d) 81, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1, 39 C.R.R. (2d) 189, 66 A.C.W.S. (3d) 444, 32 W.C.B. (2d) 273; Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, 132 D.L.R. (3d) 385, 40 N.R. 181, 49 N.S.R. (2d) 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193, 7 W.C.B. 154, EYB 1982-149378

Statutes referred to

Canadian Charter of Rights and Freedoms

Criminal Code, R.S.C. 1985, c. C-46, ss. 486, 486.4 [as am.], 486.5 [as am.], (1), (7), (b), (c), (d), (f), (h)

APPLICATION by the Crown for a publication ban.

J. Lofft and J. Stanton, for Crown. [page707]

P. Burstein and V. Rivers, for accused.

P.B. Schabas, for The Toronto Star.

DAMBROT J.: —

[1] Farshad Badakhshan is charged with the first degree murder of his girlfriend, Carina Petrache, on July 2, 2010. He does not dispute the Crown's allegations that he stabbed her about her body, slit her throat from ear to ear and set her on fire in his room in a rooming house, and that he caused her death. He contends that he was not criminally responsible for her death by reason of mental disorder. In the alternative, he contends that if he was responsible for her death, he did not have the intent required for first degree murder.

[2] In the morning of January 20, 2014, immediately before calling the Crown's first witness, Crown counsel asked me to make an order pursuant to s. 486.5 of the Criminal Code, R.S.C. 1985, c. C-46 directing that any information that could identify the victim, Ms. Petrache, shall not be published in any document or broadcast or transmitted in any way. This would preclude the publication of her name, as well as the publication of the names of two of the Crown witnesses. I made the order on an interim basis at that time as a matter of expedience, but notified the journalists present in court that I would be prepared to revisit my decision and hear full argument if any member of the media wanted to oppose the order. Later in the day, I was advised that the Toronto Star wished to oppose the order. As a result, I heard argument from Crown counsel and counsel for the Star at the end of the day. I then reserved my decision overnight.

[3] The basis for the Crown's application is that the deceased, who is an only child and was raised by her mother and two stepfathers, was also partially raised by her grandmother, with whom she is close. Her grandmother is elderly, and has never been told the circumstances in which her granddaughter died, other than that she died in a fire. The family of the deceased has moved out of the Greater Toronto Area as their way of dealing with this tragedy. The family is concerned about the effect that it would have on the grandmother if she were now to learn the full circumstances of her granddaughter's death as a result of media reports, and has raised this concern through Crown counsel.

[4] While it is obvious that learning the full details of the death of her granddaughter, particularly at this late date, would be a horrifying experience for the grandmother, the Crown has not tendered, nor suggested that it could tender any medical [page708] evidence to establish that any specific effect on the grandmother is foreseeable or likely.

[5] Section 486.5(1) provides that an order of this nature may be made if the judge is satisfied that the order is necessary for the proper administration of justice. Subsection (7) contains a list of eight matters that a judge must consider in determining whether or not such an order should be made, as follows:

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's encouraging the interest reporting in of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

[6] As can be seen, the test for banning publication is an onerous one. A publication ban can only be ordered if it is made to advance the proper interests of justice, and not merely to advance an individual interest, and further that it is necessary for that purpose. In addition, while they are not the exclusive circumstances in which an order can be made, the only specific circumstances contemplated by Parliament that would justify an order are found in items (b), (c) and (d). None of these are applicable here. Instead, the Crown relies on para. (f), the salutary effects of an order, and (h), any other factor that I consider relevant.

[7] Counsel for the Star reminds me of three leading decisions of the Supreme Court of Canada that bear on this application, specifically:

(1) Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, in which the court emphasized the strong public policy in favour of "openness" in respect of judicial acts;

(2) Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, in which the court held that the common law rule governing the issuance of publication bans [page709] must reflect the principles of the Canadian Charter of Rights and Freedoms, and should only be ordered when (a) such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban; and

(3) R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, in which the court reformulated the test for cases where concerns are raised about the proper administration of justice other than the right to a fair trial and freedom of expression, and stated that publication bans 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 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.

[8] Counsel for the Star argued that in order to obtain an order pursuant to s. 486.5, the Crown has the onus of establishing that the considerations in Mentuck are met. In this case, the Crown fails on the first limb, the so-called necessity requirement of the first branch of the test. The basis for the order sought is unrelated to the prevention of a serious risk to the proper administration of justice. However sympathetic, it relates only to the interest of the grandmother of the deceased.

[9] There can be no doubt that if the Crown is required to meet the first limb of the test in Mentuck, it fails. As Crown counsel fairly put it, her request is "a plea for a compassionate ban" that, according to her, doesn't affect the fair hearing of the trial and has a minimal effect on freedom of expression. However, Crown counsel argues that the Crown does not need to meet the test in Mentuck because here the application is made under a statutory provision, and not under the common law as was the case in Dagenais and Mentuck. In support of this position, she relies on two trial rulings, the decision of B. O'Marra J. in R. v. Cook, [2013] O.J. No. 5414, 2013 ONSC 7291 (S.C.J.) and of Borenstein J. in R. v. Pantalone, [2007] O.J. No. 2078, 2007 ONCJ 138.

[10] In my view, the fact that this case involves the exercise of a statutory power does not exempt the court from compliance [page710] with the Charter values developed in Dagenais and Mentuck. First, it seems to me that there is nothing in s. 486.5 that is inconsistent with the test in Mentuck. In fact, the test that must be met in s. 486.5 before a publication ban can be made, that "the order must be necessary for the proper administration of justice", is a close parallel to the core of the first branch of the Mentuck test: that the ban must be "necessary in order to prevent a serious risk to the proper administration of justice".

[11] Second, as Doherty J.A. confirmed in H. (M.E.) v. Williams (2012), 2012 ONCA 35, 108 O.R. (3d) 321, [2012] O.J. No. 525 (C.A.), at para. 35, "any discretionary order banning publication must be consistent with Charter principles and that, if the order goes beyond the scope tolerated by the proper application of Charter principles, the making of the order constitutes an error of law". As the Supreme Court noted in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 184 (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, at para. 52, in applying a statutory provision authorizing a publication ban, "a court must exercise its discretion in conformity with the Charter". As a result, when considering whether to order a ban on publicity pursuant to s. 486 in that case, the court was of the view that the Dagenais test still had application. The court held, at para. 71:

The burden of displacing the general rule of openness lies on the party making the application. As in Dagenais, supra, the applicant bears the burden of proving: that the particular order is necessary, in terms of relating to the proper administration of justice; that the order is as limited as possible; and, that the salutary effects of the order are proportionate to its deleterious effects.

[12] In addition, at para. 42, the court noted that while the right to privacy is beginning to be seen as more significant by the courts, "[i]n this area of the law, however, privacy interests are more likely to be protected where it affects some other social interest or where failure to protect it will cause significant harm to the victim or to witnesses".

[13] As a result, it is clear to me that the Crown cannot escape the Mentuck test on the basis that it is relying on a statutory rule rather than a common law rule. What is more, it seems to me that s. 486.5 appears to be carefully tailored to encompass the considerations endorsed by the Supreme Court in Dagenais, Mentuck and Canadian Broadcasting Corp. v. New Brunswick. Indeed, much of the language in s. 486.4 is borrowed directly from these cases. In addition, the specific circumstances that might justify an order under s. 486.5 set out in s. 486.5(7) (b), (c) and (d) each relate to fundamental concerns of the administration of justice, and not merely private interests. [page711]

[14] With respect to the two trial rulings relied on by Crown counsel, in my view they lend little support for her position. In Cook, in considering whether or not an order should be made under s. 486.5, B. O'Marra J. applied the Mentuck test. He stated, at para. 8, that a publication ban should only be ordered when the two considerations in Mentuck have been met. In that case, he made an order, having regard to the fact that the Crown had established that the complainant would suffer significant harm if her name was released, and noted that the order he proposed to make was consistent with the significant societal interest in encouraging the reporting of offences and the participation of complainants in the criminal justice process. That is very far from this case.

[15] In Pantalone, Borenstein J. was of the view that because he was considering an application under s. 486.5 of the Criminal Code, he did not have to follow the procedure outlined in Dagenais and Mentuck. Nonetheless, he stated, at para. 27, "Given the similarity of the test in section 486.5 and the common law test enunciated by the Supreme Court in Dagenais and Mentuck, there is considerable guidance that can be obtained from those cases when applying the criteria in section 486.5." While Borenstein J. did grant the order sought, he did so on the basis of a significant societal interest, and not just on the basis of a private interest.

[16] In considering whether or not the order sought in this case is necessary for the proper administration of justice, which, as I have said, closely parallels the necessity branch of the Mentuck test, I find guidance in the decision of Doherty J.A. in Williams. In that case, the publication ban was sought in divorce proceedings commenced by the applicant on the basis of psychiatric evidence that disclosure would result in a real and substantial risk to her mental well-being. In concluding that a ban should not have been ordered, Doherty J.A. stated, at para. 32:

As there is no balancing of competing interests at the first stage, it is wrong at that stage to consider the extent to which the societal interests underlying and furthered by freedom of expression and the open court principle are engaged in that particular case. Even if those values are only marginally engaged (the respondent's submission in this case), restriction on media access to and publication in respect of court proceedings cannot be justified unless it is necessary to prevent a serious risk to a public interest. A court faced with a case like this one where decency suggests some kind of protection for the respondent must avoid the temptation to begin by asking: where is the harm in allowing the respondent to proceed with some degree of anonymity and without her personal information being available to the media? Rather, the court must ask: has the respondent shown that without the protective orders she seeks there is a serious risk to the proper administration of justice? [page712]

[17] He further stated, at para. 25:

Mentuck describes non-publication and sealing orders as potentially justifiable if "necessary in order to prevent a serious risk to the proper administration of justice". A serious risk to public interests other than those that fall under the broad rubric of the "proper administration of justice" can also meet the necessity requirement under the first branch of the Dagenais/Mentuck test: Sierra Club of Canada, at paras. 46-51, 55. The interest jeopardized must, however, have a public component. Purely personal interests cannot justify non-publication or sealing orders. Thus, the personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test: A.G. (Nova Scotia) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [[1982] S.C.J. No. 1,] at p. 185 [S.C.R.]; Sierra Club of Canada, at para. 55; A.B. v. Bragg Communications Inc., [ 2011 NSCA 26, [2011] N.S.J. No. 113,] 2011 NSCA 26, 301 N.S.R. (2d) 34, at paras. 73-75.

(Emphasis added)

[18] Doherty J.A. went on to say, at para. 30, that while personal emotional stress cannot justify limiting publication, serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court could. Even then, he found the psychiatric evidence to be inadequate to the task. Here, there is no medical evidence to establish the extent of the potential harm to the grandmother of the deceased, and in any event the harm is unrelated to access to the court or any other public, as opposed to private interest.

[19] Finally, I take into account the fact that the name of the deceased has already appeared in media accounts regarding this killing, including at least one article in the Toronto Sun. While far from dispositive, it is some indication that harm to the grandmother is far from inevitable.

[20] In the end, after considering those paragraphs of s. 486.5(7) that have application here, and balancing the competing interests on the assumption that the watertight compartments of the two branches of the Mentuck test are blended as a result of the language of s. 486.5(7), I conclude that I must dismiss the Crown's application and set aside my interim order banning publication of evidence tending to disclose the identity of the deceased, first, because the Crown has not established that the order sought is necessary to prevent a serious risk to the proper administration of justice, and in any event because there has been no real showing of a serious risk of harm to the grandmother of the deceased. I confess to having great sympathy for the position the family of the deceased finds itself in. Nonetheless, the law does not permit the making of the order sought.

Application dismissed.

End of Document