Court File and Parties
Court File No.: CR-18-400000612-0000 Date: 2020-11-23 Ontario Superior Court of Justice
Between:
Her Majesty the Queen Applicant
– and –
Alek Minassian Defendant/Respondent
– and –
Postmedia Network Inc., The Canadian Broadcasting Corporation, Toronto Star Newspapers Limited, Corus Entertainment Inc., CTV News, a division of Bell Media Inc., The Globe and Mail Inc., Canadian Press Enterprises Inc. and CHCH-TV Third Parties
Counsel: J. Callaghan, J. Rinaldi, and C. Valarezo, for the Crown/Applicant B. Bytensky and B. Smith, for the Defendant/Respondent B. Hughes, for Media Third Parties
Heard: November 20, 2020
Reasons for Decision
(Defence Application for Sealing Exhibit and In Camera Proceeding)
Molloy J.
A. INTRODUCTION
[1] Alek Minassian is charged with 10 counts of first-degree murder and 16 counts of attempted murder, all arising from an attack on April 23, 2018 in which he drove a rented van along the sidewalk of Yonge Street, Toronto, mowing down pedestrians in his path. His attack was planned and deliberate. The sole issue to be determined at trial will be his state of mind at the time of the attack. Mr. Minassian has been diagnosed as having Autism Spectrum Disorder ("ASD"). Central to the defence is whether ASD caused Mr. Minassian to be unable to appreciate that his actions in killing and attempting to kill those people were morally wrong.
[2] Well in advance of trial, the parties exchanged expert reports and copies of the materials those experts considered in coming to their opinions, as well as their notes of the interviews they conducted. One of the reports provided by the defence to the Crown was authored by three experts from the Yale University Division of Law and Psychiatry: Dr. Alexander Westphal, a psychiatrist; Dr. Viviana Alvarez-Toro, a forensic psychiatry fellow; and Dr. Rachel Loftin, a clinical psychologist (hereafter referred to collectively as "the Yale Group"). The defence disclosed that report to the Crown in August 2020. In September, the defence disclosed handwritten and typed notes made by the Yale Group during their interviews of Mr. Minassian and his family. Their report discloses that they met with Mr. Minassian for 15 hours and with his family members for 7.75 hours. In late October 2020 the Crown learned for the first time that the Yale Group had also video-recorded some of the interviews of Mr. Minassian and audio-recorded the interviews with his parents. The Crown immediately requested disclosure of the recordings. After a series of discussions and correspondence, counsel advised on November 8, 2020 (with the trial to start on November 10) that the defence would not be voluntarily disclosing the recordings and that a motion would be required.
[3] I heard argument on the Crown's motion in court on November 12, 2020 and ruled as follows:
(a) the recordings are protected by litigation privilege and the defence is not obliged to disclose them if the experts who conducted the interviews do not testify;
(b) although the defence has indicated their intention to call both Dr. Westphal and Dr. Loftin as witnesses, they have not undertaken to do so;
(c) if either Dr. Loftin or Dr. Westphal is called to testify, the recordings they made of their interviews must be disclosed;
(d) if that disclosure is not made until the last moment, the Crown will be afforded a reasonable time to review the recordings, and to have their experts review the recordings, before being required to cross-examine the witness;
(e) the Crown is not restricted in its use of the recordings once disclosed, and in particular is not restricted in using them only to cross-examine the experts who prepared them;
(f) the testimony of Mr. Minassian's father (the first witness for the defence) will proceed as scheduled on November 16, and the Crown will be required to cross-examine without having seen or heard the recordings;
(g) if the recording of the interview with Mr. Minassian Sr. is provided to him in advance of his testimony for the purpose of allowing him to refresh his memory, that recording must be immediately disclosed to the Crown;
(h) if the recordings are ultimately disclosed to the Crown and evidence has already been taken from a witness the Crown would reasonably seek to cross-examine based on the recordings, that witness may be recalled for further cross-examination.
[4] I advised at the time of this ruling that written reasons would follow. Those reasons were released on November 19, 2020.[^1]
[5] Subsequent to my ruling, but prior to the release of my written reasons, Dr. Westphal sent a letter to defence counsel advising that he would not be prepared to testify if there was "any chance" that his recordings could be accessed by or surreptitiously recorded by members of the public. Dr. Westphal cited three reasons for his decision:
(a) that the recordings could serve as a catalyst for further violence on the basis that other vulnerable persons might be inspired or incited by the recordings just as the Applicant was inspired by persons that he watched online, specifically Elliot Rodger;
(b) that the recordings, if published, would serve to validate and advance one of the Applicant's stated objectives/motivations, namely his attempt to become notorious, and, implicitly could serve as further inspiration for some other person who may be motivated to commit an act of mass violence for notoriety or infamy; and
(c) that the recordings could negatively impact vulnerable persons with ASD specifically and the ASD community more generally by perpetuating the negative stereotypes that are illustrated in the recordings.
[6] The defence case, being entirely dependent on whether Mr. Minassian's ASD rendered him incapable of appreciating the moral wrongfulness of his acts, is heavily reliant on the testimony of Dr. Westphal. If a doctor living in Canada issued these kinds of ultimatums as a precondition to his testimony, I could compel him to either testify or face contempt proceedings. However, Dr. Westphal is in the United States of America, which presents more of a procedural hurdle.
[7] Clearly the assurances and court orders Dr. Westphal has requested constitute an infringement of the media's free expression Charter rights and the open court principle. As such, I required defence counsel to bring the appropriate motion on notice to the press. The media interests were very capably represented before me by their counsel, Brendan Hughes.
B. THE POSITION TAKEN BY DR. WESTPHAL
[8] The letter sent by Dr. Westphal was attached as an exhibit to materials filed by the defence in support of this motion. Given these unusual circumstances, it is relevant to set out the terms the doctor proposes in some detail.
[9] Dr. Westphal wrote:
Now I understand that members of the public and the media may be able to watch and/or hear some of the recordings by zoom, and perhaps even get access to them. For me this is a line that cannot be crossed. I will not testify if there is any possibility that the tapes will be surreptitiously recorded via zoom, or released for publication or distribution. There are multiple reasons for this, but I think at least a few of these extend well beyond the case, and I wanted to alert you to them.
[10] Dr. Westphal then set out three reasons, as I have referred to above, essentially that: (i) if made public, the footage could be a catalyst for further violence; (ii) public dissemination would give Mr. Minassian more notoriety; and (iii) concerns about the stigmatization of persons diagnosed with ASD and their families.
[11] Dr. Westphal stated, "While I understand that it is essential for the court to understand autism and the role it played in Mr. Minassian's actions, my duty to the many people I know with autism surpasses that." He then proceeded to state the conditions upon which he would be prepared to testify as follows:
(i) if the trial is adjourned until the CODID-19 pandemic restrictions are lifted sufficiently for him to travel to Toronto to testify in person, and the recordings are ordered sealed from the press and public; or,
(ii) if the trial is conducted by Zoom, the tapes can only be played to the lawyers, other experts, and the court (in other words, heard in camera), and the recordings are ordered sealed from the press and public.
[12] He then reiterated his unwillingness to testify as follows (although this time phrasing it as a request):
However, I must respectfully request to withdraw from the trial before any of the footage is entered into evidence if any part of the proceedings during which the tapes may be played (during my testimony or any other part of the trial) are broadcast by zoom to members of the public or press, because the risk of surreptitious recording over zoom is one that I do not believe can be adequately addressed.
C. GOVERNING LEGAL PRINCIPLES
[13] It is well established, through decades of Supreme Court of Canada jurisprudence that court proceedings are presumptively "open" in Canada:
That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2 (b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. 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.[^2]
[14] Full and free public access to court proceedings can sometimes be restricted, in the discretion of the trial judge. Those restrictions can include sealing court exhibits and, in extreme circumstances, barring the public (and the media) from the courtroom when evidence is being heard. However, before limiting the open courts principle in this manner, the court must apply what has become known as the Dagenais/Mentuck test.
[15] In a previous motion earlier in this case (heard in July 2019), I considered whether Mr. Minassian's statement to the police following his arrest should be sealed and made unavailable to the public or media until trial. For reasons dated August 16, 2019, I ruled that the temporary publication bans and sealing orders would be lifted. In that decision, I summarized the test to be applied as follows:[^3]
Based on what is often referred to as the Dagenais/Mentuck test (an amalgam of the two leading Supreme Court of Canada cases on this issue),[^4] I must apply the following principles:
(1) Court proceedings, including any materials filed in such proceedings, are presumptively "open" to the public.
(2) The party seeking to impose any limit on the public's access to court proceedings bears the burden of establishing that the test for limiting access has been met.[^5]
(3) Full public access can only be barred where the judge, in the exercise of her discretion, "concludes that disclosure would subvert the ends of justice or unduly impair its proper administration."[^6]
(4) A non-publication or sealing order can only be made when two conditions are satisfied:
(i) such an order is necessary to prevent a serious risk to the administration of justice because reasonable alternative measures will not prevent the risk; and
(ii) the salutary effects of the order 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.[^7]
(5) The "risk" in the first prong of the test must be "real, substantial, and well-grounded in the evidence." It is a "serious danger sought to be avoided, not a substantial benefit or advantage to the administration of justice sought to be obtained."[^8]
(6) The balancing of interests involved in the second part of the test only arises if the first part of the test has been met.[^9]
[16] In the motion before me, Mr. Bytensky, for the defence, argues that the conflicting interests in this case are the fair trial rights of the accused on the one hand and the open court principle/freedom of the press on the other hand. He submits that in these circumstances it is the Dagenais test that governs rather than Dagenais/Mentuck formulation, citing Mentuck, as follows:
This reformulation of the Dagenais test aims not to disturb the essence of that test, but to restate it in terms that more plainly recognize, as Lamer C.J. himself did in that case, that publication bans may invoke more interests and rights than the rights to trial fairness and freedom of expression. This version encompasses the analysis conducted in Dagenais, and Lamer C.J.'s discussion of the relative merits of publication bans remains relevant. Indeed, in those common law publication ban cases where only freedom of expression and trial fairness issues are raised, the test should be applied precisely as it was in Dagenais. For cases where concerns about the proper administration of justice other than those two Charter rights are raised, the present, broader approach, will allow these concerns to be weighed as well. There may also be other cases which raise interests other than the administration of justice, for which a similar approach would be used, depending of course on the particular danger at issue and rights and interests at stake.[^10]
[emphasis added]
[17] I am not aware of, nor have counsel been able to refer me to, any case post-Mentuck where this distinction was drawn and a decision made as to which of the two tests should apply. As a practical matter, I am not sure there would be a real difference in the outcome whichever route I take. However, I do note that in Canadian Broadcasting Corp. v. The Queen and Dufour [Dufour], the Supreme Court of Canada considered a situation in which the trial judge denied a request by CBC for access to a video of the accused's statement to police, which was an exhibit at trial. Although the competing principles at play were the fair trial rights of the accused and freedom of the press, the Supreme Court was clear that it is the Dagenais/Mentuck test that applies, stating:
The analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect the openness of proceedings. In Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, Iacobucci and Arbour JJ. wrote the following:
While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuck, supra); is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002 SCC 41). The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), at para. 71. [para. 31]
(See also Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 7; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 35; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at paras. 15‑16; R. v. Canadian Broadcasting Corporation, at para. 21.)
Thus, there is no need to determine whether the facts in the case at bar are analogous to those in Dagenais or Mentuck. The findings that the activity in issue is protected by s. 2 (b) of the Charter and that the order was within the discretion of Lévesque J. will suffice. The issue must accordingly be resolved by applying the test from Dagenais and Mentuck. Requiring the judge to apply this test does not mean that it is necessary to conduct a lengthy or elaborate review of the evidence, although all the relevant facts must be considered. Nor is there anything new about trial judges being responsible for establishing conditions for access to exhibits. Judges have always been required, in exercising their discretion, to balance factors that might seem to point in opposite directions. With this in mind, the factors listed in Vickery remain relevant, but they must be considered in light of the framework developed in Dagenais and Mentuck.[^11]
[emphasis added]
[18] By the time this case reached the Supreme Court of Canada, the trial had concluded, as had the appeal from Dufour's acquittal at trial. Although the circumstances had altered fundamentally, the Supreme Court held that important issues were raised that should nevertheless be determined. In particular, the Court noted that the weighing involved in the Dagenais/Mentuck analysis must always be based on "considerations that include the specific context of the case before the trial judge."[^12] In that case, the accused (now acquitted) Dufour argued that broadcasting the statement would be particularly harmful to him personally because of his intellectual disability. The Court noted this as a situation in which "the protection of social values must prevail over openness."[^13]
[19] While I accept that the Dagenais/Mentuck test applies in this case, and that I am required to weigh in the balance the various competing and constitutionally protected rights, the context in which these issues arise before me are unique. This is not merely a situation where the fair trial rights of the accused would be affected if I do not grant the relief sought; his only defence would be effectively removed. This is a dire consequence for a young man facing 10 mandatory life sentences if convicted, in addition to sentences for 16 attempted murders.
D. NATURE OF THIS TRIAL PROCEEDING
[20] The events giving rise to the charges in this case occurred on April 23, 2018. There were delays necessitated by the multiple medical assessments required to mount, and respond to, the s. 16 defence relied upon by the accused. Then the COVID-19 pandemic hit, resulting in court closures and causing a further seven-month delay. As the November trial date approached, it was apparent to everybody that this trial could not be conducted safely in a conventional courtroom setting during the pandemic. All counsel have been commendably cooperative in finding ways to facilitate getting this trial done without further delays, while still protecting the fair trial rights of the accused and the importance of the open court principle. In addition to ensuring access for the public and media, I have put procedures in place to guard against anybody attempting to record the proceedings for the purpose of later broadcasting them.
[21] The trial itself is being conducted on Zoom. Admission to this main Zoom is restricted to the main participants and only with my consent. In addition to myself, the regular participants are the Registrar, the Court Reporter, the accused, the lawyers, and the witness. Also, any expert witness is permitted to be present while other experts are testifying.
[22] This "main Zoom" is broadcast to a large Zoom webinar platform with space for 500 participants. Participants have no ability to interject, and they do not have any visible presence. They are merely spectators, but they do so in private. Because of the concern that individuals attending the webinar could tape things on their cellphones or other devices, eligibility to attend the trial in this format has been tightly controlled. Access to this Webinar is only granted upon application to the court. Applicants are provided with a link to the application form. They are required to identify themselves and indicate whether they are professional journalists, lawyers, or articling students. Space is also reserved for victims of these assaults and their family members. The application form reminds each participant of the requirements of s. 136 of the Courts of Justice Act which prohibits recording or broadcasting any of the proceedings. That Act provides:
136 (1) Subject to subsections (2) and (3), no person shall,
(a) take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise,
(i) at a court hearing,
(ii) of any person entering or leaving the room in which a court hearing is to be or has been convened, or
(iii) of any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing;
(b) publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record taken in contravention of clause (a); or
(c) broadcast or reproduce an audio recording made as described in clause (2) (b).
Exceptions
(2) Nothing in subsection (1),
(a) prohibits a person from unobtrusively making handwritten notes or sketches at a court hearing; or
(b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes.
[23] Each applicant for admission to the webinar is required to electronically check a box indicating their undertaking that they will abide by these terms and that they will not share their individualized link to the webinar with anybody else. If the application is approved, the applicant is sent an email with a unique code allowing their device to enter the webinar. That code cannot be used at the same time by any other device. I have limited access to the webinar to professional journalists who are resident in Canada, lawyers, articling students, and individuals verified by the Crown as having a direct connection to the offences (e.g. victims, families, first responders).
[24] In addition to the webinar, there are two physical locations where the trial proceedings may be watched. First, two rooms with large viewing screens have been set aside at the 361 University Avenue Courthouse for the use of victims and their families who wish to view the proceedings with the support of others, rather than alone at home on a Zoom screen. Victim Witness Assistance personnel are present to assist. Second, larger space has been provided offsite for members of the public and/or press to attend to watch the proceedings on large screens. The chairs in these rooms are spread apart in accordance with COVID-19 protocols. Signage on the site advises visitors of the requirements of s. 136 of the Courts of Justice Act. Court staff are present in the room. There is also a police security presence. Everyone is wanded before entry and both the police and court staff are instructed to watch for any persons who might be trying to surreptitiously record the proceedings.
[25] To date, there have been no breaches of these conditions in any of the locations, virtual or real.
E. THE CONCERNS RAISED BY DR. WESTPHAL
[26] Before turning to the Dagenais/Mentuck analysis, I propose to address the concerns raised by Dr. Westphal. I should state at the outset that none of these concerns would cause me to make the order sought: i.e. excluding the public from parts of the trial and agreeing in advance to seal exhibits, the contents of which I have not yet seen.
[27] I should state at the outset that one of the "remedies" suggested by Dr. Westphal to address his concerns is that I adjourn this trial until such time as it can be heard in an open courtroom, at which point he will travel to Toronto to testify. That is a complete non-starter. This trial is now well underway. The Crown has closed its case and the defence evidence has begun. An adjournment in the middle of the trial to an unknown and currently unknowable date is too disruptive to everyone. Even when the courts here might be able to do the trial in a real courtroom, there is no way of knowing whether cross-border travel from the United States to here would be permitted. In any event, even for a live trial, Dr. Westphal would require a sealing order, so not much would be accomplished by adjourning.
[28] I turn then to the three areas raised by Dr. Westphal
Copycats
[29] Dr. Westphal is concerned about "any possibility" that portions of these videos could wind up on the internet. He states that others might be inspired to commit similar crimes. I recognize that there is considerable evidence that Mr. Minassian looked at videos of other mass murderers on the internet and may have been influenced by them to kill and maim those people with the misfortune to be in the path of his rented van on April 23, 2018. I also recognize the scholarly research about the effect and implications of this "copycat" phenomenon. However, in this case, Mr. Minassian's statement to the police is already in the public domain, as are many videos of his rampage down Yonge St. and his eventual arrest. The press coverage to date has been extensive, to say the least. It is unclear how pieces of video from his interview with a psychiatrist or psychologist would materially change the risk of others being influenced by his acts. I understand that these videos are closeups and of a better quality than the police interview. However, again, I do not see this as changing the risk substantially, particularly since I have not even seen the video.
[30] It is by no means certain that any of the video will be introduced as an exhibit at trial. As I noted in my previous reasons on the disclosure of the video:
The defence also sought a ruling that the recordings would not be marked as exhibits at trial. I cannot give such an assurance. In most cases, I would think that cross‑examination could easily be done by using transcripts of the recordings, and I would certainly be open to requiring that when possible. However, I can think of situations in which a transcript would not suffice, and I can posit situations where portions of the interviews would have to be shown and therefore should be marked as an exhibit to preserve the record for appeal. I would expect those situations to be rare, but I cannot say at this point that it will never happen. These issues will have to be dealt with as they arise.[^14]
[31] In the normal course at this trial, once an exhibit is entered, I give immediate consideration to whether it can be released to anyone who seeks it. No exhibits are released without my approval. However, this analysis is best addressed in the context of each clip introduced, rather than as a blanket ruling. Before any video is introduced in the course of the examination of a witness at trial, counsel would be required to satisfy me that the nature of the examination requires actual video, as opposed to a transcript of what was said. If the video itself is relevant, it may be used. As I have noted, I would not expect that to arise very often. There might well be portions of the video that are innocuous, or there might be portions that are hateful, or that incite violence. While there may be a basis for sealing video that falls into the latter category, there is no basis for preventing normal access to material that is not offensive. On my current state of knowledge, particularly in light of the fact that I have not seen any of the video, I am not able to say that there is a substantial risk that any video introduced at trial would likely incite others to violent acts.
Notoriety
[32] I have some sympathy with Dr. Westphal's concern that Mr. Minassian committed these acts in pursuit of notoriety, and that further broadcasting his image boosts that notoriety. So does using his name in the trial proceeding, and conducting the trial in public. That said, the principle of our courts being open to all is a fundamental principle in our system of criminal justice. Although the unfortunate offshoot is that Mr. Minassian's name and image have become known, and that his acts have been widely broadcast, that result does not justify a secret trial and hiding the details from the public. I, for one, would welcome a consensus amongst responsible journalists to refuse to publish the names or images of individuals seeking fame by inflicting carnage upon innocent people. But that does not mean that court proceedings should be conducted in private. It is essential in a democracy for its citizens to see firsthand that justice is being fairly administered.
[33] I would therefore not find the concerns about enhancing Mr. Minassian's notoriety to be a basis for sealing these videos, particularly given the notoriety that already exists.
Autism Stigmatization
[34] The defence introduced substantial material from social media and press reports in which much consternation has been expressed about autism being a defence to murder, or about portraying persons with autism as being violent and without any moral compass. This is a free country and people are free to express their views, even though ignorant. That does not mean I should seal court exhibits and bar the public from trial proceedings so as to avoid further inflaming these uneducated views. Just because people may consider themselves well informed about autism, and just because they, or people they know, may have that diagnosis, does not make them educated on how that diagnosis might intersect with aspects of the criminal justice system.
[35] People diagnosed with Autism Spectrum Disorder are not on trial here; Alek Minassian is on trial here. He happens to be a person with that diagnosis. It may or may not amount to a defence in this trial. That is yet to be determined. The question will not be if Mr. Minassian has ASD, but whether as a result of that disability he was unable to appreciate the moral wrongfulness of his acts at the time of these events. The use of this particular disability as a grounding for a s. 16 defence in this particular case does not mean that individuals on the spectrum are prone to violence or that they do not know right from wrong. I am confident that there will be no such evidence in this trial. Further, the fact of Mr. Minassian's diagnosis is merely the first step in establishing the s. 16 defence; there is a long distance between that and not criminally responsible for killing people. Most importantly, this will be an individualistic analysis based solely on Mr. Minassian's disability and its particular effect on him, nobody else. As one autism organization has stated, "If you know one person with autism, you know one person with autism." Exactly my point.
[36] In any event, I do not agree that showing video of Mr. Minassian would result in the stigmatization of the autism community generally. To the extent that there has been a backlash in the autism community as a result of the press coverage of this trial, it is because of the expert opinions expressed in various reports that Mr. Minassian's disability may have played a role in his commission of these offences. This is unrelated to any videos of Mr. Minassian. It has been argued that there are videos in which Mr. Minassian claims that other mass murderers also identified as being autistic. I do not know if those views are true or untrue, and I do not know if those clips will become exhibits at trial. However, I do not find it appropriate to censor the evidence at trial because uninformed people might jump to incorrect conclusions about persons with ASD generally.
Analysis Based Solely on Dr. Westphal's Concerns
[37] Accordingly, if my analysis were based entirely on the concerns expressed by Dr. Westphal I would not order the sealing of any exhibits at this stage, nor would I prohibit any member of the public or media from being present at this trial or any aspect of it. I might consider requiring counsel to vet with me any portion of video they might seek to introduce in a voir dire, and I might order some portions of video to be sealed. I do not know, and cannot know, without seeing each piece of video tendered. At this juncture, the evidence does not establish a "substantial risk" to the administration of justice, thereby justifying the consideration of the blanket order sought.
[38] However, that is not the situation before me. Dr. Westphal has not merely raised concerns and left it to the Court to make a reasoned decision as and if those concerns arise; he has issued an ultimatum that unless I make the orders he considers appropriate, he will withdraw from the case, leaving Mr. Minassian without a defence.
[39] If Dr. Westphal was in Canada, I could simply compel his presence. Should he defy a direct order of the court and refuse to testify, he would be subject to the usual sanctions, including possible imprisonment. However, he makes his demands from a foreign country. While there are legal recourses open to me to compel his testimony, it is a lengthy and tortuous process and one which is not a practical option in the middle of this trial.
[40] Ironically, to the extent I have concerns about substantial risks to the administration of justice in this case, it is caused by Dr. Westphal's demands. Having been retained to conduct an assessment of Mr. Minassian, while knowing he was in Canada, and having provided an extensive written opinion in support of Mr. Minassian's defence, Dr. Westphal has unilaterally withdrawn his support because he favours his own views, over this Court's, as to how the constitutional rights enshrined in the Canadian Charter of Rights and Freedoms should be weighed and balanced in the course of a trial in Canada. I find his position to be antithetical to the appropriate role of an expert witness in our courts. That said, I have little choice but to consider the implications of failing to accede to his demands.
F. BALANCING COMPETING INTERESTS
[41] Mr. Hughes, for the media, argues quite compellingly that this application fails at the first stage of the Dagenais/Mentuck test because there is no evidence to support a finding that any of the concerns raised by Dr. Westphal amount to a "real and substantial risk" to the proper administration of justice. I do not disagree with that point. While there is some merit to the points about copycat killers and increased notoriety for Mr. Minassian, there is no little foundation to support them, nor can it be said that these concerns amount to a real and substantial risk to the administration of justice, as contemplated by the test.
[42] However, this misses the point. The threat to the administration of justice raised here is not the concerns advanced by Dr. Westphal, but rather his ultimatum to withdraw from this trial. The concerns raised by Dr. Westphal to not affect the fair trial rights of the accused; it is his conduct in threatening not to testify that does that. The problem is not Dr. Westphal's stated reasons for this conduct, it is the conduct itself. It leaves Mr. Minassian without a viable defence. Dr. Westphal is an eminent psychiatrist with expertise not only in forensic psychiatry but also in ASD, a rare combination. He and his colleagues have presented an extensive report supportive of Mr. Minassian's defence. All of Mr. Minassian's eggs are in this particular basket, and quite understandably so, given the overwhelming evidence mounted by the Crown with respect to the factual aspects of these charges and Mr. Minassian's own confession to the police upon his arrest.
[43] As Mr. Bytensky pointed out, the measure of a justice system is how it treats its worst offenders. The devastation wrought by Mr. Minassian cannot be overstated. However, he is entitled to a fair trial in our courts, and to call a defence supported by evidence. That evidence exists, but is in the control of Dr. Westphal. For reasons he deems appropriate, Dr. Westphal has clearly stated that he will withdraw his services unless I meet his demands by sealing these recordings if they become exhibits and preventing the public from watching them on Zoom. If I do not make these orders, there is a real and substantial risk that Mr. Minassian will not have a fair trial. In essence, his only defence will have been taken away from him. In my view this represents a substantial risk to the administration of justice, a fundamental tenet of which is the right of every accused to have a fair trial.
[44] I recognize that there is a clear and countervailing threat to the administration of justice in permitting an outsider to the litigation to dictate the terms upon which he will participate. This is a concern not just in this case, but for the precedent it may set for others. However, the circumstances of this situation are unique. Typically, crucial witnesses are not in foreign countries beyond the reach of the court. Had this situation arisen with a Canadian witness, I would have practical options available to compel his or her attendance at trial. Further, this problem is not likely to arise often. I would like to think that the vast majority of professional experts would not withdraw from a case in which they had committed to testify in the middle of the case and within days of their scheduled testimony. With enough notice, and in most cases, the witness could be replaced by someone else equally well-qualified. Thus, although I am aware that making sealing orders I might not otherwise make to accommodate a witness is an unusual step and one that is not in keeping with the proper principles of the administration of justice, when balanced against the fair trial rights of Mr. Minassian, I find making the orders to be the lesser harm.
[45] Whether this aspect is considered at the first step on the test (risk to the administration of justice) or at the second balancing stage, the result would be the same.
[46] At the balancing stage other interests must also be taken into account, primary among them the constitutionally protected right of freedom of the press and the open court principle. I recognize the fundamental importance of these principles to our democracy. I also accept that there are strong deleterious effects of making the orders sought, both with respect to public access to crucial evidence in this trial and to the administration of justice by essentially caving in to the demands of a foreign expert witness. However, I find that on the particular facts of this case, the salutary effect of preserving Mr. Minassian's right to a fair trial outweighs those admittedly strong deleterious effects.
[47] In part, my reasoning is based on the relatively minimal impact these orders will have on public and media access to this trial. In particular, I point out the following:
- Great efforts have been made to enable the public and media to have full access to this trial, notwithstanding the pandemic that has required us to conduct it remotely by Zoom. All of those platforms will remain operative throughout the trial, including during the testimony of Dr. Westphal.
- The video recordings of Mr. Minassian are not central evidence in this trial. They might not become evidence at all.
- The recordings are only relevant to support or contradict the testimony of the experts. To the extent transcripts can be used to make these points, I will direct that this be done. Those portions of the evidence will be available to everyone who watches the trial, which will include any members of the press or public who choose to do so, whether by Zoom or in person.
- The Zoom webinar where most of the media have tended to watch the trial will continue to provide trial access. The only difference will be that when (and if) any snippet of video is being shown to a witness, the webinar will be removed to a waiting room and then brought back in at the conclusion of the clip. Any evidence about the clip will be heard in their presence. A transcript of the audio portion of the clip will be available to anyone who requests it.
- While the press will be prevented from obtaining a copy of any snippets of the videos that are shown to the witnesses, they will have the option of watching all the evidence, including the video recordings, by attending in person at the public viewing rooms set up for that purpose. The only thing they will have lost will be the convenience of watching it on the Zoom webinar, something that is typically unavailable in a trial.
- In addition, each of the clients represented by Mr. Hughes, shall be entitled to have one representative present on the main Zoom platform where the trial is being conducted. Mr. Hughes is also welcome to attend if he chooses.
[48] I do not mean to minimize the impact of this order. If any portion of these recordings do find their way into evidence, they will be sealed and public access will be denied. Further, if the recordings are played in court, participants on the webinar platform will not be able to see them, although participants in other locations will. I recognize this constitutes an infringement of important constitutional rights and that this is a balancing exercise, not a situation in which one right is paramount to other rights. Notwithstanding this, I find that with the appropriate limitations I have discussed above, the interests of justice favour making the orders necessary to preserve the fair trial rights of the accused.
G. CONCLUSIONS
[49] For the foregoing reasons, I order as follows:
(i) any counsel intending to put any portion of the videotape of Mr. Minassian to any witness must first obtain approval of the court;
(ii) approval to use the videotape will not be granted if use of a transcript would suffice;
(iii) any portion of the video shown to a witness shall be recorded on a USB stick and filed in evidence, and that exhibit shall be sealed in the court record and shall not be made available to the public or media;
(iv) where a portion of video is marked as a sealed exhibit, counsel shall also provide the transcript of that portion of the video, which shall be filed as a regular exhibit, not sealed;
(v) while any portion of the videotape is being shown in evidence, the webinar platform will be removed from the main trial Zoom platform and placed in a waiting room;
(vi) the full trial proceedings, including when any clip of the video is shown, will continue to be available to the public and the media through viewing rooms at the Courthouse (only for victims and their families) and at 315 Front Street (for any members of the public who wish to attend, including media);
(vii) one representative of each media group who were the third parties in this application, along with their lawyer, shall be granted access to the main Zoom platform, although they will be muted and will not have a visual presence;
(viii) at any time the video is being shown, I will remind all observers of the terms of s. 136(1) of the Courts of Justice Act, and also make a specific order prohibiting any person from recording any portion of the video, including for the purpose of taking notes;
(ix) a transcript of that portion of the trial proceeding when the video was shown shall be made available to anyone requesting it, on the usual terms.
[50] As the trial judge in this case it is my responsibility to ensure that the trial is fair. As stated by the Supreme Court of Canada in R. v. Rose:[^15]
The obligation of a trial judge to ensure that an accused's right to a fair trial is preserved has been enshrined in s. 11(d) of the Charter. However, the inherent jurisdiction of superior court judges to remedy procedural unfairness during the trial has always existed at common law. In R. v. Osborn (1968), 1968 CanLII 384 (ON CA), [1969] 1 O.R. 152 (Ont. C.A.), the Ontario Court of Appeal correctly observed that courts have from the earliest times invoked an inherent jurisdiction to prevent the abuse of trial process resulting from oppressive or vexatious proceedings. In Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497 (U.K. H.L.) at p. 520, Lord Guest referred to the overriding duty of the trial judge to ensure that a trial is fair. He wrote that this duty: "springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused".
[51] I am satisfied that my overriding duty to protect the fairness of this trial requires the order that I have made. I realize that this order will not be palatable to members of the media, and likely not to some members of the public. Frankly, I find it unpalatable myself. In oral argument I likened this to paying ransom to a kidnapper. Paying up is arguably the "wrong" thing to do as it runs the risk of encouraging others to resort to the same behaviour. However, in individual cases sometimes the ransom must simply be paid, because the consequences of not doing so cannot be tolerated.
[52] I would be remiss if I did not thank counsel for their assistance on this motion and throughout this trial. In particular, as I have already stated in the course of argument, I do not fault defence counsel in any way for the necessity of this application. On this application and throughout this trial, Mr. Bytensky and Ms. Smith have been skillful, professional, and cooperative, while carrying out their duties in the best interests of their client. Their conduct throughout exemplifies the highest standards of the Bar.
Released: November 23, 2020
[^1]: R. v. Minassian, 2020 ONSC 7130. [^2]: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, at para. 2 [Toronto Star Newspapers]. [^3]: R. v. Minassian, 2019 ONSC 4455, at para. 26. [^4]: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 [Mentuck]. [^5]: Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 189 [^6]: Toronto Star Newspapers, at para. 4. [^7]: Ibid., at para. 26. [^8]: Ibid, at para. 27; Mentuck, at para. 34. [^9]: Mentuck, at para. 48. [^10]: Ibid, at para. 33. [^11]: Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65, at paras. 13 – 14. [^12]: Ibid., at para. 16. [^13]: Ibid., at para. 19. [^14]: R. v. Minassian, supra, Note 3 at para. 25. [^15]: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, 166 D.L.R. (4th) 385, at para. 130.