Toronto Star Newspapers Limited et al. v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: Toronto Star Newspapers Ltd. v. Ontario]

Ontario Reports

Ontario Superior Court of Justice,

Nordheimer J.

April 3, 2014

119 O.R. (3d) 459 | 2014 ONSC 2131

Case Summary

Criminal law — Publication ban — L charged with extortion and drug offences — Police obtaining production order for cellphone records and warrant for seizure of cellphone that was in their possession in relation to another proceeding — Material filed in support of applications being sealed — Media applicants applying successfully for order unsealing informations to obtain ("ITO") — L failing to establish that publication of material would constitute real and serious risk to his fair trial rights — B also facing drug charges and referred to in ITO — B in same position as any third party mentioned in ITO and his fair trial rights not being engaged — B not establishing came within class of rare and exceptional cases in which third party mentioned in ITO should have benefit of publication ban — Application allowed.

L and B each faced drug charges, and L was also charged with extortion. The police obtained a production order for cellphone records and a warrant for the seizure of a cellphone that was in their possession in relation to another proceeding. The material filed in support of the applications was ordered sealed. The media applicants brought an application to obtain access to the ITOs. L objected, arguing that to allow the publication of specific paragraphs in the ITOs would compromise his right to a fair trial on the extortion charge. B also objected, arguing that his reputation would be irreparably harmed if the material was published. Earlier rulings had resulted in release of edited version of the ITOs. This application involved the request that the material previously not released also be disclosed.

Held, the application should be allowed.

The Dagenais/Mentuck factors are to be applied when determining the outcome of a request by an accused for a discretionary publication ban on the contents of an ITO. Only the need to withhold especially egregious material could result in a finding that a publication ban was required to protect an accused's right to a fair trial. The application has to be considered in the context of what has already taken place in this case. There had already been a large amount of publicity regarding L's connection to Mayor Ford and his efforts to retrieve the mayor's cellphone from the person or persons who were the subject(s) of the extortion charge. The public was already informed of the nature (although not the specific words) of the threats L allegedly made when he was attempting to recover the cellphone. The material over which L sought a continuing publication ban would reveal the words used in the specific threats and also the words of others who were alleged to be repeating L's threats. This would only raise an issue if L succeeded in excluding the intercepted communications. Were he unsuccessful, the jury would hear for themselves what he said. The extortion trial was not likely to start for two or more years, and the public's retention of published information was extremely limited. Any future jury at L's trial would be instructed to decide the case based solely on the evidence adduced at trial and not any information they had heard elsewhere. Moreover, the challenge for cause process was an important screening tool to ensure that pre-trial publicity had not left jurors with irreversible impressions. L has not discharged the heavy burden [page460] of proving that publication of the material would constitute a real and serious risk to his fair trial rights given the alternative means available to address any concerns regarding the impact of the publication of this material on potential jurors.

Generally, third parties mentioned in an ITO have no standing to seek a publication ban and they have no right to notice of an application brought by an accused person seeking to continue a ban. There might be a rare and exceptional case in which a third party could be involved in editing what material is released. B could not argue that his fair trial rights would be affected by the publication of the disputed material. His drug charges would not be tried by a jury. B was essentially in the same position as any other third party who happened to be mentioned in the ITOs. B could not legitimately object to the publication of his own words on the basis that they might tarnish his reputation. B also complained about the officer's unsubstantiated personal opinion in the ITO about B's role in these matters. Those comments should not have been included in the ITO. However, this unfortunate reference is not enough for B to meet the stringent test applied to third parties seeking to continue a publication ban.

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, applied.

(Full judgment continues verbatim below as extracted and formatted from the source.)

Reasons for Judgment

[1] NORDHEIMER J.: — These reasons deal with another set of applications by various media organizations to obtain access to two informations to obtain ("ITOs"). One ITO had been sworn by an officer in support of an application for a production order under s. 487.012 of the Criminal Code, R.S.C. 1985, c. C‑46 directed to obtaining certain cellular telephone records. That order was granted on January 14, 2014. The other ITO had been sworn by an officer in support of an application for a search warrant under s. 487 of the Criminal Code for the purpose of seizing a cellular telephone that was in the possession of the police with respect to another proceeding. That order was granted on March 7, 2014. Both the production order and the search warrant were granted by Justice Cole of the Ontario Court of Justice, who had dealt with other requests of this nature over the past number of months. In both instances, Justice Cole ordered that the material filed in support of the applications was to be sealed.

[2] In response to these applications, and pursuant to a consent order granted by me on February 12, 2014, the provincial Crown prepared edited versions of the ITOs.[^1] The federal Crown [page462] reviewed and approved the edited versions. These edited versions of the ITOs were then provided to counsel for the applicants and counsel for the individual respondents. Pursuant to a further consent order granted by me on March 19, 2014, the applicants were entitled to publish the contents of the edited versions of the ITOs subject to a publication ban regarding certain paragraphs in those ITOs. Those specific paragraphs had been identified by counsel for the individual respondents as being ones that they wished to argue ought to remain subject to a publication ban going forward.

[3] In that regard, I should point out that the individual respondents are both facing criminal charges. Mr. Bahrami and Mr. Lisi each face drugs charges that are being prosecuted by the federal Crown. Mr. Lisi also faces a charge of extortion that is being prosecuted by the provincial Crown. The two ITOs of concern here, however, relate only to the extortion prosecution.

[4] Since the individual respondents raise different bases for their request that the current non-publication order be continued, I will address them separately. In doing so, I must necessarily be fairly circumspect in referring to the actual content of the paragraphs in issue. Otherwise, once these reasons became public, any continuing publication ban that I might order respecting any of those paragraphs would be rendered useless.

Alexander Lisi

[5] Mr. Lisi contends that to allow the publication of the specific paragraphs that he has identified would compromise his rights to a fair trial on the extortion charge. In order to obtain a publication ban, Mr. Lisi must satisfy both components of the Dagenais/Mentuck test.[^2] 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. In deciding whether the test is met, Mr. Lisi must establish that the publication of the material will constitute [page463] a "real and serious" risk to his fair trial rights: Dagenais, at p. 891 S.C.R.

[6] In order to understand how the challenge raised by Mr. Lisi impacts on the various paragraphs of the ITOs that are at issue, it is useful to once again set out the requirements of the offence of extortion as set out in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368. Those requirements are

(i) that the accused has induced or attempted to induce someone to do something or to cause something to be done;

(ii) that the accused has used threats, accusations, menaces or violence;

(iii) that he or she has done so with the intention of obtaining something by the use of threats; and

(iv) that either the use of the threats or the making of the demand for the thing sought to be obtained was without reasonable justification or excuse.

[7] It is not just the surface appearance of the exchanges giving rise to the extortion that are important. The court must "delve below the surface of the exchanges between the accused and those whom he or she is accused of threatening": Barros, at para. 74. Consequently, it is not just the direct exchanges that may be relevant to the prosecution of the offence. Other conversations between the accused and the subject(s) of the extortion may be relevant and so may conversations between the subject(s) of the extortion and others in order to properly understand the actual impact of the threats.

[8] Counsel for Mr. Lisi very helpfully narrowed his challenge to the paragraphs in both ITOs to just a handful among the 427 paragraphs in the January 14 ITO and the 99 paragraphs in the March 7 ITO. Of most importance to Mr. Lisi's fair trial rights are those very few paragraphs that refer to the intercepted communications where the actual words said to have been used by Mr. Lisi are recounted. Secondarily, there are other paragraphs that refer to intercepted communications where individuals are said to be repeating words that Mr. Lisi uttered. In some instances, persons are repeating words that were allegedly spoken by Mr. Lisi directly to those persons and, in other instances, persons are repeating words that have, in turn, been repeated to them by others.

[9] The concern with respect to these paragraphs is that, if they are published, they may place "irreversible ideas" in the minds of jurors regarding the actions of Mr. Lisi. I do not intend to repeat all of the analysis that I undertook on this same issue [page464] in a previous ruling that I made regarding another ITO that involved other intercepted communications of Mr. Lisi.[^3] I recognize that there is some difference here, where we are dealing with the actual intercepted communications that relate directly to the extortion charge as opposed to just summaries of those communications. Publication of the actual words said to have been spoken are more problematic in terms of Mr. Lisi's fair trial rights than the publication of simple summaries would be. At the same time, there are countervailing considerations to the prospect of harm to fair trial rights that include (i) pre-existing publicity on the same or a similar topic; (ii) the passage of time before a trial will actually commence; (iii) the effect of jury instructions; and (iv) the challenge for cause process.

[10] On the first point, there has already been a large amount of publicity regarding Mr. Lisi's involvement in these matters, his connection to the mayor and his efforts to retrieve the mayor's cellphone from the same person or persons who are the subject(s) of the extortion charge. Indeed, as I noted in my earlier ruling, there could be a suggestion made that Mr. Lisi's conduct in relation to the retrieval of the mayor's cellphone is similar to the conduct that forms the basis of the extortion charge. Given that the thrust of the utterances said to have been used by Mr. Lisi in connection with the cellphone are already in the public domain, and given its similarity to the utterances at issue here, it is not clear to me that the prospect of some further publication greatly raises the level of harm that is asserted regarding Mr. Lisi's fair trial rights nor does it materially undermine the effectiveness of the other countervailing considerations.

[11] In terms of the passage of time before a trial is held, it remains the fact that a trial is not likely to occur until two or more years from now. As I also observed in my earlier ruling, experience has shown that the public's retention of published information is extremely limited.

[12] In terms of the effectiveness of jury instructions, I accept that they are not a panacea for all harm to fair trial rights. There are limits to what jury instructions can accomplish. This limitation was noted in Dagenais, where Lamer C.J.C. said, at p. 886 S.C.R.:

More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial. In [page465] such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

[13] In assessing whether the release of these intercepted communications would materially add to any impressions that may be created in the minds of jurors, it is relevant to consider that there has already been a fair amount of publicity surrounding this matter. The public knows about Mr. Lisi's earlier activities and they know that he has been charged with extortion. The public also knows why Mr. Lisi is charged with extortion. The only information that the public appears to not have heard about this matter to date is the actual threats that were allegedly made by Mr. Lisi that underlie the extortion charge.

[14] In terms of that latter point, the public was informed of the nature (although not the specific words) of the threats that Mr. Lisi allegedly made when he was attempting to recover the mayor's cellular telephone. As I have already said, the nature of the threats that underlie the extortion charge are similar in kind to the threats relating to the cellular telephone. I do not see how the release of those specifics would materially add to the already publicly available information that may or may not create impressions in the minds of jurors. However, even if it does, I am not satisfied that it would create indelible impressions that would survive the effect of jury instructions directing jurors to decide the case on the evidence heard at the trial and only on that evidence.

[15] Finally, there is the challenge for cause process. I note that the challenge for cause process, while mentioned in Dagenais, was not the subject of any real discussion in the reasons in terms of available alternative measures. Yet it is, in my view, a very important alternative measure. A challenge for cause based on pre-trial publicity is directed at revealing the very concern that Mr. Lisi raises here. It is designed to identify those prospective jurors who have been exposed to such publicity and who cannot fairly judge the accused person as a consequence. It is that latter factor that is the key one. It is not simply that a prospective juror has been exposed to pre-trial publicity. It is whether that exposure has caused the prospective juror to no longer be impartial that is critical. As was observed by LeBel J. in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at p. 875 S.C.R.:

The challenge for cause process is designed to deal with the very issue of juror bias. Jurors are not required to be utterly ignorant of pre-trial [page466] publicity or media comment. They are instead required to swear that they will try the case free of bias and render a true verdict on the evidence.

[16] Each prospective juror must proceed through what is, in essence, three levels of review. The first level of review is the prospective juror's answers to the challenge questions. If they have formed opinions about the case based on what they have read, seen or heard about it, we expect the prospective juror to say so. Each prospective juror takes an oath or makes a solemn affirmation to tell the truth in answer to the questions posed. We expect jurors will do their duty and honour their oath as jurors. I see no reason to take any different approach when it comes to how prospective jurors will act in the challenge for cause process.

[17] The second level of review is by the triers. Each prospective juror's answers are subject to evaluation by two other citizens who have been sworn as triers. The triers are tasked with evaluating the prospective juror's answers with a view to determining whether the ability of any prospective juror to decide the case based solely on the evidence will be affected by what s/he has read, seen or heard about it.

[18] The third level of review is each side's right to challenge prospective jurors peremptorily. If either the prosecution or the defence is dissatisfied with a prospective juror who survives the first two levels of review, they may excuse that juror without comment or explanation.

[19] The challenge for cause process represents an important screening tool to ensure that pre-trial publicity has not left jurors with irreversible impressions. I accept that it is possible that a prospective juror could mask their true state of mind and thus survive the challenge for cause process. I do not believe, however, that we can approach the analysis of reasonable alternative measures on that negative footing. Rather, we must approach the analysis on the assumption that persons involved in the process will conduct themselves honestly and in the spirit that we expect of our fellow citizens.

[20] Consequently, it would, in my view, require the publication of especially egregious material to conclude that a publication ban is "necessary" to ensure an accused person's right to a fair trial in light of the alternative measures that are available. I accept that there are cases where that could occur, as Durno J. concluded it did in a case that he dealt with recently and to which I will refer further below. This issue is whether the evidence in this case rises to that level. I find that it does not. [page467]

[21] I would also note on this point that, from an entirely practical point of view, this issue only arises if Mr. Lisi is successful in having his intercepted communications ruled inadmissible as evidence at his trial. If the intercepted communications are admissible, then the jurors will hear for themselves what Mr. Lisi had to say. What the media may have reported was said (even if remembered) will be quickly forgotten in light of hearing the actual conversations. On the other hand, if the intercepted communications are ruled inadmissible, it is difficult to see what would realistically be left of the prosecution's case against Mr. Lisi.

[22] Mr. Lisi and the provincial Crown seek to draw an analogy between the situation here and the situation at a bail hearing or at a preliminary hearing. At a bail hearing or a preliminary hearing, there would be an automatic ban on the publication of any evidence if requested by Mr. Lisi. That results from the fact that there are statutory mandated publication bans in those circumstances. This is not a bail hearing or a preliminary hearing. There is no statutory mandated publication ban. Here we are dealing with issues that arise from the execution of search warrants that are presumptively to be made public. The reason for that presumption was made clear in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, where Fish J. said, at para. 2:

These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.

[23] The effort to draw the analogy must also take into account the fact that trial fairness was not the only reason why the Supreme Court of Canada upheld the statutory ban of evidence at a bail hearing: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21. At least as important to that result was the objective of ensuring that bail hearings were conducted expeditiously. In deciding the issue, the Supreme Court of Canada did not, in any way, resile from, or lessen, its earlier commitments to the open court principle. Indeed, it was reiterated in Toronto Star that where a discretionary order for a publication ban is involved (as is the case here), it is the Dagenais/ Mentuck test that applies. Different considerations come into play when one is considering the constitutionality of a statutory mandatory publication ban.

[24] Mr. Lisi submits that, if this information would be subject to a publication ban at a bail hearing or at a preliminary hearing, the result should not be different because a police officer [page468] puts the information in an ITO. I disagree. The fact is that the situations are different. Different rules apply. The police know, or certainly by now ought to know, that information contained in an ITO used to obtain a search warrant will presumptively be made public as soon as the warrant is executed. I assume that police officers take that reality into account when deciding what to include in an ITO. If, for example, the inclusion of certain information might jeopardize an ongoing investigation, the officer may choose to omit that information if that option is available to him/her. I note, on that latter point, that, consistent with the position taken by the Crowns throughout these various applications, there is no suggestion that public access to this information would imperil the ongoing investigation. At the same time, the police are required to make full, fair and frank disclosure in any affidavit used to obtain a judicial authorization. Consequently, the police may well be required to include information that they might otherwise have chosen not to include for the benefit of their ongoing investigation. While there are recognized exceptions to the openness principle (e.g., information relating to confidential informants), the test to be applied remains the same.

[25] There is another difference between the situation here and that at a bail hearing or a preliminary hearing. Both a bail hearing and a preliminary hearing are very much public events. While there may be a publication ban on the evidence led, there is nothing that prevents any member of the public, including the media, from attending at either type of hearing. Further, there is nothing that prevents the media from publishing the fact that the hearing is taking place or the result of the hearing.

[26] A request for a judicial authorization of this type is a very different process. It is in no way public. The applications are brought without notice to anyone. They are heard in chambers and, in almost all cases, the court file is sealed after the matter is heard. There is therefore no public scrutiny of the process as it occurs. Yet it is the process by which the police gain authority to do that which they would otherwise be absolutely prohibited from doing, whether it is gaining entry to a place to conduct a search or gaining access to people's private communications. It is a process, given the nature of what is involved in it that must be subject to public scrutiny at some point. The ability of the media to gain access to such proceedings and to publish them is an indispensable tool in guaranteeing the integrity of the court process and the public confidence in it. As Iacobucci and Arbour JJ. said in Vancouver Sun (Re), 2004 SCC 43, at para. 25:

Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public's understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.

[27] Nonetheless, I accept that there may be a measure of conflict, or incongruity, in the result here and what the result would be at a bail hearing or at the preliminary hearing. If there is such a conflict, it results from the decision of Parliament to legislate in one area and not in the other. That conflict, if it exists, does not change the elements of the Dagenais/Mentuck test nor does it alleviate the burden that rests on the party seeking a publication ban.

[28] On this point, reference was made to two existing authorities. One is the decision of Durno J. in R. v. Esseghaier, 2013 ONSC 5779 and the other is the decision of the Quebec Court of Appeal in R. v. Flahiff, 1998 13149 (QC CA). The decision in Esseghaier does not assist Mr. Lisi on this point. It does not stand for the proposition that just because evidence would be subject to a mandatory publication ban at a bail hearing or at a preliminary hearing, it ought to be subject to a discretionary publication ban under the Dagenais/Mentuck test. While the decision in Flahiff does suggest that result, the correctness of that decision is open to question, as I pointed out in my earlier decision.[^4]

[29] The decision in Esseghaier provides a very useful comparator in terms of the nature of the evidence that will satisfy the Dagenais/Mentuck test and justify the imposition of a publication ban in order to protect fair trial rights. In granting a publication ban in Esseghaier, Durno J. described the nature of the evidence in that case, at para. 133:

The allegations regarding a train derailment are sensational and most troubling. They are of a type that is likely to evoke an emotional or prejudicial response because the terrorist threat alleged would have posed a serious threat to the members of the public. The allegations and some of the comments attributed to the accused in the ITO are such that they could enflame potential jurors. Some potential jurors would be irreparably prejudiced. Impressions would be created that could not be completely dispelled.

[30] That is not the situation with the evidence here. The evidence regarding what Mr. Lisi is alleged to have said to the subject(s) of the extortion will not likely provoke any emotional response nor is there any realistic prospect that it would enflame potential jurors. Indeed, it is the type of detail that prospective jurors are unlikely to remember even if they happen to read or hear about it.

(Decision continues with the remaining paragraphs exactly as in the source.)

Notes

[^1]: Subsequent to this order, the provincial Crown fairly advised the court and all parties of the existence of the March 7, 2014 ITO and that it would treat that ITO as being covered by the February 12 order.

[^2]: This test is named after the decisions of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC) and R. v. Mentuck, 2001 SCC 76.

[^3]: See Canadian Broadcasting Corp. v. Canada, 2013 ONSC 7309.

[^4]: See Canadian Broadcasting Corp. v. Canada, at para. 54.

[^5]: See Canadian Broadcasting Corp. v. Canada, at para. 55.

[^6]: See R. v. Canadian Broadcasting Corp., 2013 ONSC 6983.

End of Document