COURT FILE NO.: 021/09 DATE: 20170413

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN Applicant – and – RICHARD SHERIDAN and CHAD NOUREDDINE Respondents

Counsel: Darren Hogan and Cara Sweeny for Her Majesty the Queen Sam Scratch and Alana Page for the Respondent Richard Sheridan Victor Giourgas and Mario Sciarra for the Respondent Chad Noureddine

HEARD: April 3, 2017

RULING ON THE CROWN’S APPPLICATION PURSUANT TO s.486.5 OF THE CRIMINAL CODE TO RESTRICT PUBLICATION OF INFORMATION THAT WOULD IDENTIFY J.D., M.S. AND B.S. WHO ARE TO BE WITNESSES IN THE TRIAL

THEN J. :

Overview

[1] The co-accused as well as the three witnesses J.D., M.S. and B.S. were all initially charged with first degree murder in connection with the killing of Andre Pellicione on August 22, 2008.

[2] The three witnesses all pled guilty to manslaughter and all testified for the Crown at the first trial of the co-accused in 2010. All three witnesses have now served the sentences imposed upon their conviction for manslaughter.

[3] The co-accused Sheridan and Noureddine were convicted of second degree murder; however a new trial was ordered by the Court of Appeal in November 2015.

[4] The Crown has issued a subpoena to all three witnesses as it intends to adduce their evidence at the new trial. The Crown has brought an application pursuant to s.486.5(1) of the Criminal Code for an order restricting publication of the identities of the three witnesses. The media have been duly informed of this application but have not attended to participate in the resolution of this matter.

The Application

[5] The Crown seeks an order pursuant to s.486.5(1) of the Criminal Code restricting the publication of the full names of the prospective witnesses J.D. and M.S. and the postponement of the publication of the name of the witness B.S. until after he has testified. Section 486.5(1) of the Code mandates that the court must be satisfied that the order requested is necessary for the proper administration of justice. The factors to be considered are outlined in s.4865(7) as follows:

(7) Factors to be considered -- In determining whether to make an order, the judge or justice shall consider

(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 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 interest in encouraging the reporting 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.

The Position of the Parties

[6] The Crown submits that with respect to the witness J.D. publishing the witness’s initials would satisfy the proper administration of justice as the publishing of the identity of the witness is not required to secure the right to a fair and public hearing for the co-accused nor would the impact of the order sought affect the freedom of expression of members of the media who apparently have shown no interest in what is essentially old news. Further, there is no concern with respect to security or retaliation from the co-accused.

[7] On the other hand, the Crown submits that in the seven years since the first trial this witness has taken positive steps at rehabilitation, is employed and has a family. She has changed her name and her participation in the matter before the court is unknown to neighbours and friends. Accordingly, the Crown submits that there is real and substantial risk that the witness will suffer harm if her identity is disclosed as in in addition to the stress of having to testify with respect to her participation in this matter, the witness is greatly concerned about the risk to her reputation which she has rebuilt over seven years with respect to her family (including a young child), friends, neighbours and employers. The Crown submits that it is not in the interest of justice to re-stigmatize this witness by identifying her and thus undermining her positive accomplishments with respect to rehabilitation in circumstances where she bears no responsibility for the need for a new trial.

[8] The Crown submits that it is in the interest of justice to encourage the participation of witnesses in the administration of justice but that re-stigmatizing her subverts that goal. The Crown accordingly seeks an order that a proper balancing of the factors in s.486.5(1) in the proper interest of the administration of justice can be achieved by identifying this witness by her initials.

[9] With respect to the witness M.S., who has not changed her name, the Crown submits that she too is employed, has a family including a child, and is concerned with respect to the damage to her reputation with respect to her employer, family and friends that would occur if her identity is revealed. The Crown submits that her situation is similar to that of the witness J.D. and that in the interest of the proper administration of justice a proper balancing of the factors outlined in s.486.5(7) should result in an order restricting publication of her identity to the use of initials.

[10] Finally, with respect to the witness B.S. the Crown does not submit that his identity should not be revealed. The witness has candidly informed the Crown that he is not concerned with any harm to his reputation or that his accomplishments to rehabilitate himself will be undermined or with respect to any risk of intimidation from the co-accused. The witness however has informed the Crown that while he is willing to be identified by name, he seeks an order that the publishing of his identity be postponed until after he has completed his evidence and not revealed during his testimony as he is concerned for his safety and with retaliation with respect to his participation as a witness in a recent unrelated matter.

[11] Counsel for Sheridan is opposed to the granting of a non-publication order with respect to any of the prospective witnesses. Counsel’s essential submission is that given the paramountcy of the open court principle there is a burden on the witness in seeking a non-publication order to demonstrate that such an order is in the proper interest in the administration of justice by means of an evidentiary record which can be subject to cross-examination and to review by a higher court. Counsel relies on R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at paragraph 26; R. v. Pantalone, [2007] No. 2078 at paragraph 36; R. v. Badakhshan (2014), 2014 ONSC 150114, 118 O.R. (3d) 706 at para. 4.

[12] Counsel submits the statements of the Crown conveying information from the witnesses do not constitute an evidentiary record and that accordingly it is unavailable to this court to properly assess the relevant factors, nor is it therefore available for a higher court to review the decision of this court.

[13] In any event, the names of all three witnesses were in the public domain and subject to publication during the first trial and all three were identified by name in the decision of the Court of Appeal in 2015, albeit the witness J.D. was identified by her former name. Counsel contends that the lack of an evidentiary record must result in the dismissal of the application.

[14] The position of counsel for the co-accused Noureddine is essentially the same as that of Sheridan.

Analysis

[15] In R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 the Supreme Court held at paragraph 32 that a non-publication order 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.

[16] At paragraph 26 the court also makes clear that with respect to such applications:

26 … the burden of displacing the presumption of openness rested on the party applying for the exclusion of the media and public. Furthermore, he found that there must be a sufficient evidentiary basis on the record from which a trial judge could properly assess the application (which may be presented in a voir dire), and which would allow a higher court to review the exercise of discretion: New Brunswick, at para. 69.

[17] In addition in H. (M.E.) v. Williams (2012), 2012 ONCA 35, 108 O.R. (3d) 321 where protection from publication was sought in a divorce proceeding with respect to personal information, Doherty J.A. stated at paragraph 32:

… 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?

[18] In addressing what constitutes a serious risk to the proper administration of justice Doherty J.A. further stated at paragraph 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 v. Canada (Minister of Finance), 2002 SCC 41, 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 SCC 14, [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)

[19] In my view it is clear from these authorities that given the paramountcy of the open court principle, there is a significant burden on the applicant to demonstrate that a non-publication order is in the interest of justice and to do so by adducing an evidentiary record upon which the discretion of the issuing court can be exercised and reviewed if necessary by a higher court.

[20] While I am prepared to accept the statements of the Crown, who is an officer of the court, as an accurate reflection of the unsworn statements made to her by the witnesses, such hearsay statements do not, in my view, constitute an adequate evidentiary record. In view of the criminal antecedents of all three witnesses there is a legitimate concern as to the credibility of the assertions made to the Crown and it would not be appropriate for this court to accept those assertions unless given viva voce or by way of affidavit subject to cross-examination if necessary.

[21] Moreover, emotional distress and embarrassment, as Doherty J.A. has pointed out, will not satisfy the necessity branch of the test.

[22] I recognize that because this is a re-trial seven years after the first trial and after their sentences have been served that the witnesses through no fault of their own may, if their identities are published, once again be stigmatized and subject to public opprobrium and personal embarrassment, loss of reputation or even loss of employment, notwithstanding genuine efforts at rehabilitation, if their assertions to the Crown are true. In my view, it is in the interest of justice to encourage and not to thwart rehabilitation, to encourage and not to deter the participation of witnesses in the justice system and to avoid the harm caused by re-stigmatization of those who have served their sentences and presumably paid their debt to society. However, given the preeminent value placed on the openness of court the presumption of openness can only be displaced by an adequate evidentiary record which is not the case here.

[23] The witness B.S. has not sought a non-publication order as such, but rather the postponement of the publication of his identity for reasons of his safety and security stemming from an unrelated matter. However, it is not available to this court to order non-publication of his evidence during his testimony because he has not produced an adequate evidentiary record. However, out of an abundance of caution because of a possible threat to his safety, I propose to request the media to refrain from publishing his identity until he has completed his evidence, rather than ordering the media to do so.

[24] Accordingly, for the reasons outlined above the application of the Crown that the identity of the witnesses not be published is dismissed.

THEN J.

RELEASED: April 13, 2017

COURT FILE NO.: 021/09 DATE: 20170413

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN Applicant – and – RICHARD SHERIDAN and CHAD NOUREDDINE Respondents

RULING ON THE CROWN’S APPPLICATION PURSUANT TO s.486.5 OF THE CRIMINAL CODE TO RESTRICT PUBLICATION OF INFORMATION THAT WOULD IDENTIFY J.D., M.S. AND B.S. WHO ARE TO BE WITNESSES IN THE TRIAL

THEN J.

RELEASED: April 13, 2017