SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CRIMJ(P) 161/13
DATE: 2014-12-03

RE: Her Majesty the Queen v. S.H. and M.H. and Toronto Star Newspapers Limited

BEFORE: Sproat, J.

COUNSEL:
Scott Latimer, for the Crown
Daniel Stern, for Toronto Star Newspapers Limited
Stephen Proudlove, for S.H.
Margaret Osadet, for M.H.

HEARD: December 1, 2014

APPLICATION TO VARY S. 486.5 CRIMINAL CODE PUBLICATION BAN APPLICATION TO APPOINT AMICUS CURIAE

[1] S.H. and M.H. were convicted of manslaughter by failing to provide the necessaries of life to their daughter. During the trial the Crown sought, the defence supported and I granted an order under s. 486.5 of the Criminal Code prohibiting the publication of the names of the surviving siblings or other information that would tend to identify them. This would include the surname of S.H. and M.H.

[2] In seeking the partial publication ban, the stated concern of the Crown was that the stigma of the parent’s conviction would otherwise follow the children for the rest of their lives given the permanence of, and ability to search, electronic records. This was a particular concern given that the parents have an uncommon surname.

[3] The Toronto Star initially applied to change, vary or set aside the publication ban. The Crown and the Toronto Star now both take the position that the publication ban should be narrowed and prohibit only the publication of the names of the surviving siblings. In that event the names of S.H. and M.H. could be published.

[4] Upon learning of the changed position of the Crown, Ms. Osadet and Mr. Proudlove filed an application requesting the court to appoint Justice for Children and Youth (“JFCY”) as amicus curiae.

[5] JFCY is a specialty legal clinic funded by Legal Aid Ontario. It provides legal representation to youth ages 17 and under in relation to matters including youth justice, human rights, privacy, and constitutional and mental health law. Emily McKernan, a staff lawyer at JFCY indicated that it is prepared to act as amicus curiae. My understanding from Ms. Osadet is that JFCY can be prepared and available to make submissions next month.

[6] Mr. Latimer takes no position on behalf of the Crown as to the appointment of amicus curiae.

[7] Mr. Stern submits I should not appoint amicus curiae and that this application, served last Friday, constitutes an abuse of process in that it simply seeks to delay publication by means of litigation.

[8] In my opinion there is no evidence of abuse of process. From various scheduling discussions I know that Mr. Proudlove and Ms. Osadet are busy sole practitioners. They represent S.H. and M.H. and not the children. If this is a legal aid retainer then they may have no ability to bill legal aid for work unrelated to the defence of the criminal charges. The evidence at trial indicated that S.H. and M.H. were of relatively modest means so a private retainer of counsel to represent their children’s interest is probably not realistic.

[9] I made the point that only the Crown can seek a publication ban under s. 486.5. As such I asked counsel on what basis the parents, or anyone on behalf of the children, could have taken issue if the Crown had not sought a publication ban or sought a more limited publication ban. Put differently, if the Crown alone determines whether to seek a publication ban, and on what terms, why should other parties have the right to be heard.

[10] Mr. Proudlove advised that the subject of a publication ban was discussed in judicial pre-trials. It was agreed that the Crown would seek a ban under s. 486.5 on agreed terms. But for this agreement, he and Ms. Osadet would have pursued other options such as the appointment of amicus curiae or a request for a common law publication ban.

[11] In my opinion it would not, therefore, be fair to dismiss the application for amicus curiae simply on the basis that the order was made under s. 486.5.

[12] Mr. Stern argues that his client’s rights are being infringed and further delay amounts to further infringement. While I accept that if there is infringement it is compounded by delay, I do note that the next step in this proceeding is the sentencing which will take place after the proper scope of the publication ban has been determined.

[13] Set against the risk of continuing infringement is the reality that as of today there is no one to advance any arguments that may exist to support the existing publication ban. My alternatives are to amend and narrow the publication ban immediately as submitted by Mr. Stern or to appoint amicus curiae and determine the proper scope of the publication ban a month from now with the benefit of whatever assistance JFCY can provide.

[14] In my view the balance of competing interests favours appointing JFCY as amicus curiae, so that the court has the benefit of its specialized expertise, and I so order.

[15] Another important interest is in completing the sentencing hearing without undue delay. I understand that Mr. Taylor, Mr. Proudlove and Ms. Osadet are all available on January 30, 2015, at 10:00 a.m. so the sentencing will proceed at that time.

[16] The only other dates in January when all counsel are available are January 8 and 26, 2015. Leaving further submissions on the publication ban to January 26 presents the risk that it will not be possible to render a decision prior to January 30. As such, the further submissions on the publication ban will be heard January 8, 2015. If this date is unavailable to JFCY or other issues arise that could affect the date set for sentencing, counsel should write to me immediately and arrange an attendance if required. JFCY shall file any materials and a factum by December 22, 2014. The other parties, if so advised, shall file any responding materials by January 5, 2015.

Sproat, J.

DATE: December 3, 2014

COURT FILE NO.: CRIMJ(P) 161/13
DATE: 2014-12-03

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen and S.H. and M.H. and Toronto Star Newspapers Limited

BEFORE: Sproat, J.

COUNSEL: Scott Latimer, for the Crown
Daniel Stern, for Toronto Star Newspapers Limited
Stephen Proudlove, for S.H.
Margaret Osadet, for M.H.

APPLICATION TO VARY S. 486.5 CRIMINAL CODE PUBLICATION BAN APPLICATION TO APPOINT AMICUS CURIAE

Sproat, J.

DATE: December 3, 2014