Court File and Parties

COURT FILE NO.: CR-18-104-00 (Kingston) DATE: 20200228 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Faye Ibbitson

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Holly Chiavetti, for the Crown Michael S. Mandelcorn, for the Defendant

HEARD: 3 January 2020

Endorsement

[1] On 20 December 2019, Faye Ibbitson was acquitted on two counts of sexual assault, one count of sexual assault with a weapon, and one count of unlawfully entering a dwelling house.

[2] As is usually the case in proceedings involving sexual offences, an order had previously been made pursuant to section 486.4(1) of the Criminal Code, at the request of the Crown, restricting the publication of any information that could identify the complainant.

[3] At the conclusion of the evidentiary portion of the trial, and before I had delivered a verdict, the Crown, on behalf of the complainant, applied for the publication restriction order to be lifted. The defendant, Faye Ibbitson, opposed the application. I adjourned the application to 3 January 2020 to provide counsel and the court an opportunity to consider any applicable authorities.

[4] The issue to be determined is whether it is open to the court to deny a request by the Crown on behalf of a complainant to lift a publication restriction order because the accused is opposed to such request.

[5] For the reasons that follow, I conclude that it is not open to the court to deny an application to lift a publication restriction order made by the person for whose benefit such order was made. It matters not that the accused person opposes the lifting of the publication restriction order, even where the accused has been acquitted. Nor does the possibility that the accused may have been falsely accused, or that disclosure of information concerning the charges and the evidence adduced may cause embarrassment or discomfort, confer upon the court a discretion to deny such request.

[6] The relevant provisions of the Criminal Code are as follows:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph ( a ).

(2) In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

[7] Section 486.4(2) deals with the mandatory consequences of an application made by the complainant, the prosecutor, or any witness under the age of eighteen. There is nothing in s. 486.4 provisions which expressly allows an accused to apply for a publication restriction: the present and past iterations of the Criminal Code make reference to the “complainant,” “victim,” “witness,” “prosecutor,” “judge,” and “justice” as persons who are able to apply for an order of or, in the case of a judge or justice, themselves order a publication restriction.

[8] In Webster v. Thomson Newspapers Co (1991), 96 Nfld. & P.E.I.R. 243, 305 A.P.R. 243 (PEI CA), it was held that, although an accused who testifies might technically be a witness because they are a witness at trial, an accused is not a “witness” for the purpose of the restriction. In interpreting s. 486(3) of the Criminal Code as it was then [now s. 486.4(1)], the court said, at para 3:

… the appellant claims that [the judge from the lower court] erred in law by failing to recognize him as a witness within the meaning of that term in s. 486(3) [now s. 486.4(1)] of the Criminal Code. I have concluded that she did not so err. Parliament must have intended “witness” to refer to a person other than either the accused or the complainant otherwise it would not have used all three terms in s. 486(3). The purpose of s. 486(3) is not to protect the identity of accused persons.

I would observe that s. 486(3) in the earlier iteration of the Criminal Code referred to in Webster included the term “accused,” albeit in a different context, in addition to the terms “complainant” and “witness.” I do not regard the slightly different configuration of the present section as undermining the conclusion that the purpose of the section is not to protect the identity of accused persons. [1]

[9] Nor do superior courts have inherent jurisdiction to make or maintain a publication restriction requested by an accused person. In R. v. Dalzell (1991), 2 O.R. (3d) 498, 63 C.C.C. (3d) 134 (C.A.), leave to appeal to the S.C.C. refused (1991), 3 OR xiii (note), 64 C.C.C. (3d) vi (note) (S.C.C.), a Presbyterian minister was charged with sexually assaulting a teenage boy. Media reports of the charges included the defendant’s name, his occupation as a minister, and the name and address of his church. As a result, the defendant was subjected to public harassment and was forced to resign from his ministry by the presbytery of his church. The day after his trial began, the trial judge ordered a publication restriction pending final disposition of the matter and, thereafter, if the accused was acquitted. The accused was eventually acquitted, and, in his reasons, the trial judge made it clear that he did not believe the evidence of the complainant that he had been sexually assaulted by the accused. The trial judge ordered a continuance on the publication restriction.

[10] An appeal instituted by the media was heard by the Court of Appeal, which found that the trial judge had no jurisdiction to order a publication restriction to protect the accused. Rejecting the contention that superior court judges have an inherent jurisdiction to restrict the publication of a criminal proceeding, Finlayson J.A. wrote, at para. 29:

It makes little sense to me to acknowledge an unfettered discretion in a trial Judge to alleviate, on an ad hoc basis, the distress to the accused which is an unavoidable consequence of our open system justice. This would reverse an historical process which has resulted in a modern trial judge having very little discretion to exercise in a criminal trial. The criminal trial process has evolved over centuries, and the system we have in place today is the product of an experience that should not be lightly cast aside. The limitations on the jurisdiction of the trial judge in the Code and the manner in which he or she is permitted to exercise his or her authority, reflect the accumulated wisdom of judges and parliamentarians who since feudal times have fought to protect the citizen against the tyranny of the monarch exercised through state-controlled courts. The Code itself has been the subject of judicial interpretation, and our courts have built up a substantial body of judicial precedent which, in its most basic propositions, has withstood the test of time. To permit the introduction of a fresh concept of inherent jurisdiction to replace one that has been rejected by our courts (R. v. Unnamed Person (1985), 10 O.A.C. 305, 22 C.C.C. (3d) 284 (C.A.)) is contrary to our judicial history, which has consistently fettered discretion in a trial judge by the imposition of detailed rules for the conduct of criminal trials. This is particularly true where the exercise of the trial Judge's discretion is not directed towards protecting the integrity of the trial process itself, but has the collateral object of protecting the privacy of the accused.

[11] Finlayson J.A. continued, at para. 40:

While one is tempted to strive to accommodate the respondent in his wish that there be no further publicity one way or another with respect to the matter of which he was falsely accused, that is not a reason for upholding an order made without jurisdiction ….

[12] Nonetheless, in R. v. Adams, [1995] 4 SCR 707, at paragraph 32, the Court stated that if “both the Crown and the complainant consent, then the circumstances which make the publication ban mandatory are no longer present and, subject to any rights that the accused may have under s. 486(3), the trial judge can revoke the order” (emphasis added). This passage implies that an accused does have rights under what is now s. 486.4(1).

[13] The foregoing comment by the Supreme Court notwithstanding, there is nothing else in either the text of the legislation or the jurisprudence to support the existence of such rights. The general discretion that a judge has under s. 486.4(1) of the Criminal Code to make an order restricting publication of any information that could identify the complainant or a witness would not preclude such an order being made following a request by an accused person, But the only reason to make an order in such circumstances would be to protect the identity of the complainant: see R. v. London Free Press Printing Co. (1990), 75 O.R. (2d) 161. In that case, the Crown successfully applied under s. 486 for an order restricting the publication on information that could identify the complainant, at which time the accused also sought an order restricting the publication of his name on the basis that he was the foster parent of the complainant (and, presumably, publishing his name would help identify the complainant). The accused's application was allowed by the Provincial Court judge on the sole basis that it was necessary to protect the identity of the complainant. The High Court upholding that decision, found that the judge was entitled to make such an order on his own apart from an application by the prosecutor, complainant or witness, if he felt it was necessary to protect the identity of the complainant.

[14] Furthermore, there are a number of authorities which expressly or implicitly stand for the proposition that an accused has no standing in circumstances where a request is made to lift publication restrictions which had previously been ordered because of a request made by or on behalf of a victim or a witness.

[15] In R. v R. (D.A.) (1991), 287 A.P.R. 356, 92 Nfld. & P.E.I.R. 356 (PEI TD), the accused had pleaded guilty to committing indecent acts and sexual assault. Publication restrictions had been imposed following a request by the complainant. On behalf of the complainant, the Crown then asked that the publication restrictions be lifted. The accused objected, arguing that his children would be harmed if it became known that their father was guilty of sexual assaults. At para. 4, Macdonald C.J.T.D. concluded that, while the Criminal Code makes no provision for the lifting of a publication restriction, there is no reason a superior court should not have inherent jurisdiction to lift a publication restriction on the application of the person who first asked to have it imposed. Accordingly, despite having concerns about the effect that lifting the restriction would have on the children of the accused, it was held there was no legal justification for not lifting the restriction.

[16] In R. v. Klasges, 2010 ONSC 3419, the accused pleaded guilty to sexual exploitation of his foster daughter, who, between the ages of eleven and fourteen, had been placed at the accused’s home. At the beginning of the sentencing hearing, the victim, by then sixteen years old, asked the court to partially lift the publication restrictions to disclose the accused’s name and the foster relationship, knowing that, as a result, her own identity might be discovered. The Crown consented and the defence did not object. However, Children’s Aid Society objected on the basis that the victim and other foster children would be negatively impacted by the lifting of the publication restriction. Hennessy J. nevertheless agreed to the victim’s request, commenting, at para. 38:

[The victim] made a considered and thoughtful request for a partial lifting of the publication ban. I was satisfied that J.R. made an informed and balanced request, which should in all the circumstances, be respected. There is no further public interest in or necessity to ban the publication of the one fact that might identify her. J.R. fully appreciates the risk and the benefits of this decision and the least the court can do now is to respect that decision.

[17] Other cases have emphasised that the provision in s. 486.4 exists for the benefit of complainants and witnesses rather than the accused. In Thomson Newspapers Co v. Archibald (1989), 91 N.S.R. (2d) 90, 233 A.P.R. 90, 43 C.R.R. 113 (SC (TD)), the accused was charged with two counts of sexual assault. He requested, and was granted, an order prohibiting publication of his name. Local media applied for an order by way of certiorari quashing that decision. In allowing the application, Glube C.J.T.D. said, at para. 48:

In my opinion, s.486(3) of the Criminal Code [now s. 486.4] was never intended to apply to accused persons, nor should it be. It is intended to protect the complainant or witnesses under a certain age for the reasons previously outlined. An accused person does not stand on the same footing as a complainant or a witness. A complainant or a witness is never found guilty or not guilty. They are not on trial. They have not been charged with an offence.

[18] In conclusion, while an accused may ask a judge to make an order pursuant to s. 486.4(1) restricting publication of any information that could identify the complainant or a witness, any order made under s. 486.4(1) exists for the protection of the complainant or a witness. No order can be made under s. 486.4(1) for the benefit of an accused. An accused person, even an accused person who has been acquitted, has no standing to oppose a request made to lift a publication restriction order by, or on behalf of, the person or party who requested the order in the first place. Nor does the court have inherent jurisdiction to preserve a publication restriction order in such circumstances.

[19] The application made by the Crown on behalf of the complainant to lift the previous publication restriction order is therefore granted. For the avoidance of doubt, the effect of this order is to permit the publication of all information pertaining to this court proceeding, notwithstanding that it could identify the complainant.

Graeme Mew J.

Date: 28 February 2020

Corrected, 11 March 2020: Paragraph 18 Second sentence changed from “Nor order” to “No order”.

Footnote

[1] Section 486 of the Criminal Code, R.S.C., 1985, c. C-46, provided:

(3) Subject to subsection (4), where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 346 or 347, the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(4) The presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant to proceedings in respect of an offence mentioned in subsection (3) of the right to make an application for an order under subsection (3); and

( b ) on application made by the complainant, the prosecutor or any such witness, make an order under that subsection.