Court File and Parties

Court File No.: 16-33/MO Date: 2016-04-26 Superior Court of Justice (Toronto Region)

Between: Her Majesty the Queen, Respondent – and – Leslie Nyznik, Sameer Kara and Joshua Cabero, Applicants Postmedia Network Inc. and Toronto Star Newspapers Ltd., Respondents

Counsel: Philip Perlmutter and Susan Reid, for Her Majesty the Queen Frank Addario, for Sameer Kara and Leslie Nyznik Anita Nathan, for Joshua Cabero Brendan Hughes, for Postmedia Network Inc. L. Dougan, for Toronto Star Newspapers Ltd.

Heard: April 21, 2016

Reasons for Decision

J. MACDONALD J.

[1] Three officers of the Toronto Police Service (“the applicants”) are charged with sexually assaulting a female on January 17, 2015 while off duty. The Crown has brought an Application to remove counsel for two of them, Messers Kara and Cabero, due to a conflict of interest.

[2] The Crown’s Application Record contains detailed particulars of the evidence including a transcript of the complainant’s video statement to police, a transcript of a witness’s video statement, reports from the Centre of Forensic Sciences and summaries of the evidence. The applicants seek an order prohibiting publication of “the information, evidence or summaries thereof” [1] which have been gathered during the police investigation and have been filed by the Crown in its Application to remove counsel, to be in effect until the evidence or summaries are tendered at trial, a jury retires to deliberate, the outstanding criminal matter otherwise comes to an end or upon further order of the Court.

[3] These Applications came on for hearing on April 21, 2016. On April 18, 2016, counsel for the applicants gave notice to numerous media organizations of the request for the publication ban, and advised of an interim ban granted by Code J. on April 18, 2016 which expired on April 21, 2016. At the hearing, counsel appeared for Postmedia. Following the hearing, counsel for Toronto Star Newspapers Ltd. appeared and made additional submissions. A reporter present in the body of the court also made submissions. I am satisfied that reasonable notice was provided to media representatives.

[4] Later on April 21, during argument of the Application to remove counsel, Crown counsel asked me to expand the scope of any publication ban to include the contents of an Information to Obtain a warrant for the taking of DNA samples from the applicants. In response to my question, Crown counsel advised that the informational content of the ITO is different from the information contained in the Crown’s Application Record. I refused to expand the scope of any publication ban for that reason and directed that fresh notice must be given to the media in respect of that request. Subsequently, I was told that the application for a publication ban in respect of the ITO contents had been made returnable in Practice Court on April 26, 2016. Counsel requested that I deliver my reasons for decision then, in order to synchronize the timing of any publication bans which are granted, for the following reasons. I granted two interim publication bans, the first extending Code J.’s interim ban in respect of the contents of the Application Record and the second in respect of the ITO contents, both to remain in effect until the release of my decision in respect of a publication ban on the contents of the Application Record. None of Code J.’s interim order or my two interim orders barred media access to the documents and information in issue. However, Cole J. of the Ontario Court of Justice has made a Sealing Order in respect of the ITO contents but provided an edited summary thereof.

[5] At the request of the Crown, I also made an order pursuant to s. 486.4(2) of the Code banning publication of: (a) the name of the complainant in the charge against the applicants, and (b) any information which is capable of identifying her.

[6] The test to be applied is as follows. A publication ban 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. See R. v. Mentuck, 2001 SCC 76, [2001] 3 SCR 442 at paragraph 23. This is referred to as the “Dagenais/Mentuck test”.

[7] The Canadian Charter of Rights and Freedoms (“the Charter”) in s. 2(b) provides that “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” are “fundamental freedoms”. The “open court” principle is inextricably tied to s. 2(b) rights. Media outlets are free to gather and disseminate information about the operations of the courts, the public has the right to obtain that information and also has the freedom to form and express opinions and ideas about how the courts are functioning. See Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1996] 3 SCR 480.

[8] At the same time, persons accused of criminal conduct and awaiting trial have Charter protected rights. Section 7 states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) states: 11. Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[9] Distilled to the essence, the competing values herein may be stated as follows. On the one hand, when three Toronto police officers are charged with criminal conduct, their case is proceeding through the courts in Toronto and the prosecution is being handled by local Crown Attorneys, reasonable and responsible members of the public will recognize that public scrutiny of how such a case is handled is in the public interest. The ways in which allegations of sexual assault in particular are investigated, prosecuted and tried are matters of public interest and concern. To that end, public scrutiny of the investigative materials in issue prior to trial may assist the public in determining whether the investigation has been thorough and all reasonable investigative leads have been pursued in a diligent and professional manner, whether the prosecution is being conducted appropriately and whether the courts are acting independently and impartially. In this application, counsel on behalf of the Ministry of the Attorney General, Crown Law Office – Criminal appeared on behalf of the Crown, which helps to address any concerns about the potential for working relationships between Toronto police officers and Toronto Crown Attorneys affecting the way in which this case is being prosecuted.

[10] On the other hand, full publication and public scrutiny of allegations, particularly of a salacious or sensational nature may jeopardize the fair trial rights of persons accused of criminal conduct. In a jury trial, which the applicants state they intend to require, they may be stigmatized in the eyes of the potential jurors by untested, one-sided allegations. Further, if potential witnesses are able to access the statements of other witnesses because these investigative materials have been made public, their versions of events may be tainted. In addition, since challenge for cause procedures limit the scope of inquiry into the preconceptions held by potential jurors, a publication ban, particularly in respect of salacious or sensational allegations against persons in a position of public responsibility such as police officers, may be more necessary than in other cases, in order to ensure a fair trial.

[11] In this case, counsel on behalf of Postmedia took no position in respect of the proposed ban. Counsel on behalf of Toronto Star Newspapers Ltd. opposed it. Mr. S. Kari, the reporter present in the body of the court also opposed it.

[12] My conclusions are as follows. Three police officers are accused of a serious criminal offence. The offence alleged is sexual assault. The ways in which sexual offences generally are investigated, prosecuted and tried are the subject of widespread interest, concerns about whether the complaints of women are accepted and taken seriously, and questions about how the courts deal with such charges. When there is added to such heedfulness the fact that here, police officers have investigated the conduct of police officers, the possibility that relationships may exist between police officers and prosecutors which could affect the way in which the case is prosecuted, and the incorrect perception of many people that the “justice system” is a single entity when in fact it is the dynamic interaction of separate police, prosecutorial and judicial entities, it is very much in the public interest for there to be public scrutiny of how this case has been investigated, is being prosecuted and will be tried.

[13] I am also of the opinion that, in a case like this, it is very much in the interests of police, prosecutors and the courts to satisfy the public that the allegations against the accused persons have been investigated thoroughly, are being prosecuted appropriately and will be tried openly, independently and impartially.

[14] Are the concerns voiced by the applicants about their fair trial rights real and substantial? In my view, they are. There is a serious risk that full public disclosure of the details of the conduct in issue will imperil the process of empanelling an impartial jury. I appreciate that venue changes, jury sequestration and the challenge for cause process all address this difficulty. However, in my opinion, none is a sufficient answer here.

[15] In the digital age, information is preserved online and available from afar. Venue changes become less capable of addressing juror impartiality concerns as the long term preservation of, and widespread access to digital information increases. Jury sequestration is effective against contemporaneous contamination, but the risk in issue is widespread public awareness of the issues and with it, preconceptions or prejudgment which potential jurors may bring with them to the jury panel. Lastly, as the applicants’ counsel submit, the limited questioning of prospective jurors in respect of pre-trial publicity which is part of a challenge for cause leaves open the risk of preconceptions or prejudgment affecting jurors and their deliberations. As Feldman J.A. pointed out in Toronto Star Newspapers v. Canada (2009), 2009 ONCA 59, 239 C.C.C. (3d) 437 (O.C.A.) (reversed on other grounds), the potential for jurors to be affected by prejudicial information they have heard outside the trial has been accepted by the courts as something that must be guarded against in order to protect both the accused’s right to a fair trial and the public’s right to be confident that justice has been done. Some jurors may not be able to disabuse themselves of such information. Others may not realize that they have been affected by it. Depending on the nature of the information, it may be impossible for even the most conscientious jurors to disabuse themselves of that information.

[16] In my opinion, police officers who are charged with criminal conduct are more likely to be stigmatized in the eyes of members of the public, including prospective jurors, who are exposed to the untested, one-sided contents of the Crown’s case. In general, police officers are respected for the often difficult, sometimes dangerous work they do on behalf of the public. They are seen as guardians of the public interest by many pepole. When police officers are accused of criminal conduct, that may engender disrespect which, if present in the minds of jurors, is capable of diminishing the presumption of innocence and also of eroding the requirement of proof beyond a reasonable doubt.

[17] Witnesses in sexual assault trials generally testify about surrounding circumstances because the acts in issue commonly take place in private. That does not diminish the importance of the evidence of such surrounding circumstances. For example, in cases which involve alcohol consumption, witnesses from a bar may have important information about the amount of alcohol consumed by a complainant which may be highly relevant to the issue of consent, including whether the complainant had the capacity to consent. A bar witness with small but critical details of the complainant’s alcohol consumption, if given access online to the rest of the Crown’s case including the complainant’s version of events, could have his or her version of events coloured by that information.

[18] In my opinion all of these are real and substantial risks to trial fairness herein because of the salacious subject matter of a serious criminal charge against three police officers.

[19] I am also of the view that there are no reasonable alternative measures which are capable of preventing this risk. It is widespread public knowledge of untested, one-sided, salacious information which creates that risk. A ban on publication of the information in issue is essential in these circumstances. However, I do not prohibit full media access to the contents of the Crown’s Application Record. I will deal with the effects of that under the second criterion of the Dagenais/Mentuck test.

[20] The second criterion requires a weighing of the salutary effects of a publication ban against its deleterious effects on free expression. Here, it is both the media’s rights and the public’s rights which are in issue.

[21] The media is not just a conduit of information which is in the public domain. Media activities properly include the views and opinions of commentators in respect of matters of public interest. In this case, I am of the view that banning publication of the information in issue has substantial benefits, protecting as it does the applicants’ fair trial rights and the public’s right to be confident that justice is being done. The downside of that is the interference with full public scrutiny of the investigation, prosecution and judicial handling of this case which will result from non-publication of the Crown’s allegations of fact against three accused persons. Non-publication of these factual allegations will impair for example, robust consideration of whether other investigative steps could have been taken or whether other prosecutorial decisions should have been made.

[22] However, allowing the media access to the information in issue provides substantial protection to the public interest in scrutinizing these factors. While the media cannot publish the information they may access, they can express their views, concerns or opinions on how each of the police who have investigated, the prosecutors who are prosecuting and the judges who will hear preliminary matters and preside at trial deal with these allegations against these accused persons.

[23] The media is free to engage, for example, the services of criminal counsel, retired police officers, former prosecutors, forensic specialists or retired judges to evaluate the sufficiency or propriety of investigative, prosecutorial or judicial steps herein, based upon a full review of the information in issue. If insufficiency or impropriety on the part of any police, prosecutors or judges is perceived, the media is not constrained by the aforesaid publication ban from expressing its concerns or conclusions. Doing so without reference to the information in issue may blunt any criticism to a degree, but that is necessary for the reasons stated. However, I have no doubt that an expression of criticism supported by the opinion of experts in how police, prosecutorial or judicial responsibilities should be conducted will have substantial antiseptic effect. That is a substantial substitute for public scrutiny through full public disclosure. Given the potential involvement of independent and informed experts, I believe that many members of the public who accept the need to protect the fair trial rights of all accused persons will agree.

[24] I therefore conclude that the salutary effects of this publication ban, limited as aforesaid, outweigh its deleterious effects on the free expression rights of both the media and the public.

[25] This court has concurrent jurisdiction in respect of this publication ban with the Ontario Court (before which this charge awaits a Preliminary Inquiry) because of the application to remove counsel, the contents of which are the subject of this publication ban.

[26] An order will issue prohibiting publication of the information in issue, regardless of whether it is tendered at trial, until the jury retires to deliberate or the criminal charge in issue is withdrawn or dismissed, subject to further order of a court of competent jurisdiction.

Dated in Toronto this 26th day of April, 2016 Mr. Justice John Macdonald

Released: April 26, 2016

Footnote

[1] This is the Order sought at the hearing. The Notice of Application is broader.