COURT FILE NO.: CR-174-21 DATE: 2022-03-07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CBC, CANADIAN PRESS ENTERPRISES INC., GLOBAL NEWS, a Division of Corus Television Limited, CTV NEWS, a Division of Bell Applicants Inc., POSTMEDIA NETWORK INC., AND TORONTO STAR NEWSPAPERS LIMITED Applicants – and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA Respondent

• and – NATHANIEL VELTMAN Respondent

Counsel: Sarah Shaikh and Tanit Gilliam, for the Crown Brendan Hughes, for the Applicants Christopher Hicks, Mitchell Huberman, and Rebecca Meredith, for the Respondent Nathaniel Veltman

HEARD: February 16, 2022

AMENDED ♦ AMENDED DECISION (APPENDICES ONLY)

thomas, rsj. :

The Application

[1] The applicants, (“Media Parties”) seek an order pursuant to s. 487.3(4) of the Criminal Code terminating or varying the sealing orders made by Justice Seneshen on June 12, 2021 and Justice M. Carnegie on June 30, 2021.

[2] The sealing orders relate to two separate informations to obtain, (“ITOs”), sworn by Detective Constable Stephen Robertson on June 12, 2021 and June 30, 2021.

[3] The ITOs were filed in support of various search warrants, assistance orders and general warrants that have been issued and executed as part of the police investigations into Nathaniel Veltman, (“Veltman”).

Background

[4] On June 6, 2021 four members of a Muslim family were struck by a pickup truck and killed on a cross-walk in northwest London. The youngest member of the family survived.

[5] Veltman was taken into custody shortly after the incident. He was charged with four counts of first degree murder, and one count of attempted murder, offences which are also alleged to constitute terrorism offences.

[6] There can be no dispute that the nature of the allegations facing Veltman are shocking, attracting public attention on a broad scale including extensive national and international media coverage. The police position that this was a premeditated attack motivated by hate has been widely reported. It has been reported that Prime Minister Trudeau addressed parliament describing the event as “… a terrorist attack motivated by hatred …”.

[7] In a prior application regarding the content of a Family Court file, (Veltman v. Veltman, 2021 ONSC 7183), I issued a sealing order in certain information which impacted Veltman’s s. 11 (d) Charter rights. That sealing order will expire at the conclusion of his trial on the charges (Veltman v. Veltman, 2021 ONSC 7183).

[8] On January 20, 2022 the Crown filed a direct indictment. A judicial pre-trial is scheduled for March 8, 2022. Veltman will presumptively be tried by a judge sitting with a jury.

[9] Prior to this argument, all parties have had the benefit of unredacted copies of the ITOs so that fully informed submissions could be received by the Court.

Positions of the Parties

The Media Parties

[10] The general thrust of the argument of the Media Parties is set out in paras. 4-8 of their factum, duplicated below:

4. The ITOs form the basis of judicial Orders authorizing state action against individuals. The Supreme Court of Canada has clearly stated that Informations to Obtain, where the resulting warrants or Orders have been executed, are presumptively open to the public. This is consistent with the open-court principle and the constitutionally-entrenched freedom of the press and allows the public to scrutinize the court process.
5. There are exceptions to the open court principle. However, the evidentiary burden to establish that an exception should be made is high, and the instances when such exceptions are made, as recently reaffirmed by the Supreme Court in the Sherman decision are “ limited ” and “ exceptional ”.
6. The Media Parties acknowledge that there is information in the ITOs that would appropriately be subject to a temporary publication ban to protect Veltman’s fair trial rights. However, consistent with the Supreme Court’s direction, those portions of the ITOs would be limited to that information that is so highly prejudicial as to irrevocably impair Veltman’s fair trial rights.
7. The Crown argues that it seeks the protection of “minimal information”. Despite this, the evidence it seeks to have made subject to a publication ban is overwhelming. The publication ban proposed by the Crown would effectively cover the entirety of ITOs but for a few pages that do not touch substantively on the underlying evidence. Of the 357 paragraphs in the June 12, 202 ITO, the Crown seeks that all but approximately 25 of those paragraphs be subject to a publication ban. The Crown seeks a similar ban with respect to the June 30, 2021 ITO.
8. The Media Parties submit that the ban sought by the Crown goes well beyond what is justified and supported by the evidence and would be inconsistent with the presumption, as enunciated by the Supreme Court that once executed, ITOs ought to be made public.

[11] In addition, the Media Parties have provided evidence that information regarding these deaths has already been widely disseminated in the press, and further, that the cycle of media coverage waxes and wanes as the criminal litigation moves forward. In that regard, they argue that if we are months, if not years, from trial it is premature on this evidentiary record to restrict access to the information now.

[12] Further that the information sought to be sealed does not go to the “biographical core” of those involved. (Sherman Estate v. Donovan, 2021 SCC 25).

The Crown

[13] The Crown argues that the sealed materials contain detailed evidence in support of the charges faced by Veltman.

[14] The Crown acknowledges that dissemination of some of the information in the ITOs can occur without significant risk to Veltman’s fair trial rights or to another important public interest. Therefore, the sealing orders attached to the warrants and the ITOs should be varied. Ultimately, the varied orders would accomplish the following:

(a) Allow access and publication to portions of the warrants, ITOs, and original sealing order; (b) Impose a publication ban on any reference to the evidence collected in support of the offences charged, to protect Veltman’s right to a fair trial; and (c) Impose a sealing order on information that affronts the dignity of the victims and privacy rights of certain witnesses.

[15] The Crown maintains that dissemination of the information it seeks to protect poses serious risks to important public interests. The orders sought are necessary and there is no less impairing alternative measure that would prevent those risks. The Crown does not seek a permanent publication ban and the requested sealing orders cover minimal information, it argues, have no public interest value and that positive effects of the orders sought outweigh any negative effect on the right to free press and the public’s right to access.

[16] Finally, the Crown supports the additional sealing requests proposed by counsel for Veltman.

The Respondent Veltman

[17] Counsel for Veltman supports the Crown’s position as to the publication ban and sealing order it seeks. However, they suggest a sealing order on additional personal and private information of Veltman contained in the ITOs. Information, they argue, in which Veltman has a privacy interest; information that is highly prejudicial and which has no probative value to the criminal proceedings.

[18] Counsel maintain that there is a continuous right to privacy in the information they seek to seal and that a publication ban is insufficient as it will expire at the end of the criminal trial.

Governing Legal Framework

[19] In my earlier discussion as referenced above and released on November 17, 2021, I considered the present prevailing legal framework at paras. 13-15, which I set out below:

[13] Courts in this country have expounded for decades on the importance of the open court principle. There is perhaps no more eloquent statement than the opening line of Justice Fish in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188: “In any constitutional climate, the administration of justice thrives on exposure to light - and withers under a cloud of secrecy.”

[14] For years, Courts have applied what became known as the Dagenais/Mentuck test. The significance of open courts was re-emphasized and the test for determining public access to a court file or proceeding recalibrated in Sherman Estate v. Donovan, 2021 SCC 25, (“Sherman”).

[1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.

[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.

(Sherman, paras. 1-3)

[15] Specifically, para. 38 of Sherman details the test as recast:

[38] The test for discretionary limits on presumptive court openness has been expressed as a two‑step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22).

[20] Specifically as it relates to the relief sought here, the Supreme Court in Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175, considered public access to search warrant material.

At every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law…

In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent.

[21] More recently, Justice Fish in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 at para. 4 emphasized the important access to warrants and ITOs:

4 Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.

Subject Material

[22] The information sought to be restricted by the Crown’s proposed publication ban includes a broad swath of the evidence collected by police, and includes the following:

1. Civilian witness statements regarding their observations of the incident including hearsay evidence of comments made by Veltman;
2. Police statements regarding observations and untested conclusions;
3. Police statements regarding spontaneous utterances made by Veltman;
4. Police statements regarding conversations between officers and Veltman amounting to questioning of the accused;
5. Still photos taken from security video at a nearby business location;
6. Electronic devices seized and partial results from the examination of those devices;
7. Witness statements from Veltman’s associates;

[23] In addition, the Crown seeks a sealing order on:

1. The graphic details of the aftermath of the collision;
2. The location and name of the business which supplied the video of the collision;
3. The identifying information regarding civilian witnesses (residential and email addresses);
4. Information supplied by Veltman and the search of electronic devices which reveal prior interests and personal concerns of the accused (admitted by Crown and defence to be inadmissible at trial).

[24] In addition to the above items sought to be sealed, counsel for Veltman has identified for me other information in the ITOs that allegedly reveal the beliefs and interests of the accused. They seek the sealing of this information and argue it amounts to personal private information going to the core identity of the accused. In addition, its prejudicial effect is significant, and its probative value is non-existent.

Analysis

(a) Serious Risk – Important Public Interest

[25] The following paragraphs draw in part on the structure of any analysis detailed in my earlier decision (Veltman v. Veltman, paras. 28-38).

[26] Firstly, does court openness regarding this information pose a serious risk to an important public interest? The proper administration of justice is an important public interest (R v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, para. 34).

[27] The charges faced by Veltman are s. 469 offences which are presumptively to be tried by a judge and jury. The proper administration of justice here is a fair jury trial considering the most serious charges available in Canadian criminal law, a right protected by s. 11(d) of the Canadian Charter of Rights and Freedoms, (“Charter”).

[28] In considering this first step, I am aware that there is equal status given by the Charter to s. 2(b) (freedom of expression/press) and s. 11(d). A hierarchical approach to rights is to be avoided and a balance struck when they come into conflict (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, para. 72; Mentuck, para. 23).

[29] Having identified the important public interest, the first step in the Sherman analysis requires that openness poses a serious risk. In Mentuck (para. 34) it is described as a “real and substantial risk … well-grounded in the evidence.” In Dagenais, it was observed “what must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered.” (Dagenais, para. 226). In Sherman Justice Kasirer described the serious risk as “a key threshold component of the analysis that must be preserved in order to protect the open court principle.” (Sherman, para. 56).

[30] It is recognized that direct evidence is not necessary to establish a serious risk to an important interest if strong inferential reasoning is available. Justice Kasirer noted at para. 97 of Sherman:

[97] At the outset, I note that direct evidence is not necessarily required to establish a serious risk to an important interest. This Court has held that it is possible to identify objectively discernable harm on the basis of logical inferences (Bragg, at paras. 15‑16). But this process of inferential reasoning is not a licence to engage in impermissible speculation. An inference must still be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation (R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121, at para. 45).

[31] Mr. Hughes cautions me against relying upon my own view of “simple common sense and logic when the effect of the decision is to limit a Charter right” (R. v. Hogg, 2006 MBCA 132, para. 36).

[32] In this matter, as previously stated, there has been widespread local, national, and international media attention. While there is an apparent lull in media activity as the case winds its way through the early disclosure phase, there is no doubt it will ramp up as events take place and a jury trial approaches. Beyond traditional media entities, the internet and social media allow for constant dissemination and republishing of every background detail related to these charges.

[33] The criminal litigation is moving forward. This application has been heard, a direct indictment is before this Court, a judicial pre-trial has been scheduled. This application and the lifting of restrictions on portions of the ITOs will prompt further extensive media attention. But in addition, bloggers and chat rooms will have a fresh body of information on which to expound. That activity is to be encouraged but within defined limits. Mr. Hughes has made the compelling argument that it is better to allow respected, responsible, and regulated media outlets to have access to information to counter the often erroneous and irresponsible social media misinformation.

[34] He argues that public scrutiny of police actions and investigations is important. (R. v. Minassian, 2019 ONSC 4455, para. 44).

[35] Pre-trial publicity was considered in Dagenais at para. 88:

These observations are particularly apt in a case, such as this, in which the publication ban relates to identifiable and finite sources of pre-trial publicity. More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial. In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

[36] As the Quebec Court of Appeal mentioned when it ordered a publication ban in R. v. Flahiff, [1998] J.Q. No. 2 (QC CA) at para. 42:

I would, respectfully, go somewhat further. The "fairness" of a trial is not limited to a fair outcome or verdict, although that, of course, is critically important. A fair trial also involves the fairness of the process in which it is to be conducted. No accused should have to face his trial in an ongoing torrent of unfair publicity. No judge or jury should have to strain to banish unfair and unsupported publicity from their minds so that they can reach an impartial verdict based on the evidence. Fairness in a trial involves, in some measure, the impartiality and serenity of the atmosphere in which the trial is conducted.

[37] In Esseghaier, Justice Durno was considering restrictions on the s. 2(b) right in the context highly publicized terrorism offences. Upon a review of cases which considered what might be seen as a serious risk, he offered the following at para. 100:

[100] From the cases filed and submissions, the following non-exhaustive list contains some of the areas upon which serious risks have been found:

Where the ITO contains:

(i) evidence that is presumptively inadmissible (i.e. confessions, other disreputable conduct, outstanding charges, criminal records, and hearsay (Flihoff)) [sic, Flahiff] (ii) evidence that appears to be inadmissible (whether some evidence was admissible was considered by Then J. in Eurocopter), (iii) evidence the admissibility and quality of which are live issues (Hennessy) including evidence of witnesses who would require a Vetrovic warning (Flihoff) [sic, Flahiff], and (iv) cases with sustained pre-trial publicity such that impressions may be created in the minds of jurors that will not easily be dispelled. (Dagenais)

[38] The considerations that Durno J. itemized in para. 100 (i) – (iv) of Esseghaier are all present in the information sought to be subject to further restrictions on openness. Statements alleged to be made by Veltman, which may well be subject to admissibility rulings, observations and conclusions by civilian witnesses that are untested, evidence of character that is clearly inadmissible, obvious hearsay. Much of this evidence needs to be restricted by a publication ban to protect Veltman’s fair trial rights as recognized by the common law and s. 11(d) of the Charter.

[39] In addition, there is a limited amount of information here that, beyond fair trial issues, brings into question the personal dignity of the accused. The privacy interests I have of the accused can also be an important public interest. I have below set out paras. 76 and 77 of Sherman where Justice Kasirer discusses the kind of sensitive information that might prompt restrictions on openness.

[76] The test for discretionary limits on court openness imposes on the applicant the burden to show that the important public interest is at serious risk. Recognizing that privacy, understood in reference to dignity, is only at serious risk where the information in the court file is sufficiently sensitive erects a threshold consistent with the presumption of openness. This threshold is fact specific. It addresses the concern, noted above, that personal information can frequently be found in court files and yet finding this sufficient to pass the serious risk threshold in every case would undermine the structure of the test. By requiring the applicant to demonstrate the sensitivity of the information as a necessary condition to the finding of a serious risk to this interest, the scope of the interest is limited to only those cases where the rationale for not revealing core aspects of a person’s private life, namely protecting individual dignity, is most actively engaged.

[77] There is no need here to provide an exhaustive catalogue of the range of sensitive personal information that, if exposed, could give rise to a serious risk. It is enough to say that courts have demonstrated a willingness to recognize the sensitivity of information related to stigmatized medical conditions (see, e.g., A. B., at para. 9), stigmatized work (see, e.g., Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100, at para. 28), sexual orientation (see, e.g., Paterson, at paras. 76, 78 and 87‑88), and subjection to sexual assault or harassment (see, e.g., Fedeli v. Brown, 2020 ONSC 994, at para. 9). I would also note the submission of the intervener the Income Security Advocacy Centre, that detailed information about family structure and work history could in some circumstances constitute sensitive information. The question in every case is whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences.

[40] Justice Kasirer goes on in Sherman to recognize that an examination of the seriousness of risk to an important public interest should include the extent to which information would be disseminated and recognizes that the modern information technology context increases the ease of communication and cross-referencing. (Sherman, para. 80).

[41] At paras. 81 and 82 of Sherman, set out below, the Court also considers the impact of information already in the public domain and the probability of dissemination on the calculation of serious risk. Beyond the protection of privacy, which was the focus in Sherman, these risk concerns are equally applicable to the protection of fair trial rights.

[81] It will be appropriate, of course, to consider the extent to which information is already in the public domain. If court openness will simply make available what is already broadly and easily accessible, it will be difficult to show that revealing the information in open court will actually result in a meaningful loss of that aspect of privacy relating to the dignity interest to which I refer here. However, just because information is already accessible to some segment of the public does not mean that making it available through the court process will not exacerbate the risk to privacy. Privacy is not a binary concept, that is, information is not simply either private or public, especially because, by reason of technology in particular, absolute confidentiality is best thought of as elusive (see generally R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 37; UFCW, at para. 27). The fact that certain information is already available somewhere in the public sphere does not preclude further harm to the privacy interest by additional dissemination, particularly if the feared dissemination of highly sensitive information is broader or more easily accessible (see generally Solove, at p. 1152; Ardia, at p. 1393‑94; E. Paton‑Simpson, “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 U.T.L.J. 305, at p. 346).

[82] Further, the seriousness of the risk is also affected by the probability that the dissemination the applicant suggests will occur actually occurs. I hasten to say that implicit in the notion of risk is that the applicant need not establish that the feared dissemination will certainly occur. However, the risk to the privacy interest related to the protection of dignity will be more serious the more likely it is that the information will be disseminated. While decided in a different context, this Court has held that the magnitude of risk is a product of both the gravity of the feared harm and its probability (R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 86).

[42] It is not speculation to conclude that there will be intensive and prolonged pre-trial publicity regarding the criminal proceedings of this accused. The record before me supports that conclusion. That record includes the affidavit material filed by the Media Parties. I find that there would be a serious risk to important public interests I have identified if I would grant the broad-based lifting of restrictions sought by the Media Parties.

[43] I have reviewed in detail the contents of the ITOs in an attempt to limit the information to which openness might be restricted, recognizing that the contemplated order must be assessed pursuant to the next two components of the Sherman test. (Sherman, para. 38).

(b) Is an order necessary?

[44] Is an order restricting public access to the ITOs necessary to prevent serious risk to the fair trial rights of Veltman because reasonably alternative measures will not suffice?

[45] I repeat below paras. 42-44 of my decision in Veltman v. Veltman:

[42] Media counsel draws to my attention the safeguards built into the jury trial process (change of venue, challenges for cause, directions from the trial judge, the swearing of a juror oath) when arguing both necessity and reasonable alternatives. Mr. Hughes points me to several decisions of Justice Nordheimer which emphasize the strengths of the jury trial process. (R. v. Kossyrine, 2011 ONSC 6081, [2011] O.J. No. 4495, paras. 10 and 20; Canadian Broadcasting Corporation v. Canada, 2013 ONSC 7309, [2013] O.J. No. 5422, paras. 41-50; Toronto Star v. Ontario, [2014] O.J. No. 1566, paras 15-20).

[43] While the safeguards imbedded in the jury trial process are laudable, there are simply some circumstances where they alone cannot satisfy the established risk.

[44] The prophetic comments of Chief Justice Lamer in Dagenais, released in 1994, capture my findings here at paras. 88-90:

These observations are particularly apt in a case, such as this, in which the publication ban relates to identifiable and finite sources of pre-trial publicity. More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial. In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

It should also be noted that recent technological advances have brought with them considerable difficulties for those who seek to enforce bans. The efficacy of bans has been reduced by the growth of interprovincial and international television and radio broadcasts available through cable television, satellite dishes, and shortwave radios. It has also been reduced by the advent of information exchanges available through computer networks. In this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult. Therefore, the actual effect of bans on jury impartiality is substantially diminishing.

These concerns about the efficacy of some publication bans fit into the analytical approach under the common law rule outlined previously at several stages, since it is necessary to consider how efficacious a publication ban will be before deciding whether a ban is necessary, whether alternative measures would be equally successful at controlling the risk of trial unfairness, and whether the salutary effects of the ban are outweighed by its negative impact on freedom of expression.

[46] Mr. Hughes brings to my attention the recent decision of R. v. Melvin, 2020 NSSC 356. In Melvin, Rosinski J. denied a publication ban on evidence about a recent allegation of assault where Melvin was alleged to attack a fellow inmate. The defence concern was that publication of that evidence in the sentencing context would negatively impact the ability of Melvin to have a fair trial in any subsequent proceeding regarding the assault allegation.

[47] Justice Rosinski was of the view that the jury safeguards in place would satisfy any concern in a subsequent proceeding and that the Open Court Principle was too important to be restricted in that case.

[48] Melvin is an important example of why all decisions on the struggle between s. 11 (d) and s. 2(b) rights must be viewed in context. In Melvin, the applicant had a long record and was the focus of a dangerous offender sentencing hearing (s. 753) with the potential of an indeterminate sentence. He apparently was a criminal of some notoriety in the Maritimes. As important was the fact that Melvin had not even been charged for the prison assault at the time of the application before the Nova Scotia Court. The circumstances in Melvin are far different than those that confront me in this case.

[49] In R. v. Chouhan, 2021 SCC 26, the Supreme Court considered the constitutionality of the abolition of jury peremptory challenges and whether that amendment operated retrospectively.

[50] The Court, in Chouhan, directed that prospective jurors must be cautioned about indirect or unconscious bias. In that way, jurors are asked to examine the personal context they bring to their decision making, to recognize that unconsciously they may be viewing the trial evidence through a biased lens. Clearly the Supreme Court was directing trial judges that they need to be concerned about more than the historic use of challenges to “unearth” biases.

[51] I would suggest that this direction in Chouhan should be considered in deciding if the traditional jury safeguards are enough to ensure impartiality, particularly with the kind of information I am considering here; highly incriminatory, likely to evoke an emotional or prejudicial response (Esseghaier, para. 124-125).

[124] However, if a challenge for cause was always the answer to publicity concerns there would never be publication bans in applications of this nature. As the cases relied upon by counsel illustrate, that is not what has occurred. There will be cases in which there is a serious risk if evidence is published for which a challenge for cause is not the answer. This is one of those cases.

[125] While judicial directions are helpful, as is the case with challenges for cause, there will be cases where directions will not suffice.

[52] I have concluded that a publication ban is necessary with regard to portions of the ITOs supporting the warrants in this highly publicized case. Only then can the fair trial rights and privacy interests discussed be insulated from the very real and substantial risks identified. Only very specific and extremely limited references will attract a sealing order to protect those same rights. I recognize that a sealing order restricts the principle of openness in the extreme and should only be used when nothing less will suffice.

Proportionality

[53] I must also consider whether the benefits of the orders I have discussed outweigh their harmful effects.

[54] There is no doubt my order will have a negative effect on freedom of expression as guaranteed by s. 2(b) of the Charter. As the Supreme Court noted in para. 10 of Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326:

10 There is another aspect to freedom of expression which was recognized by this Court in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712. There at p. 767 it was observed that freedom of expression “protects listeners as well as speakers”. That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.

[55] As against the negative effect, the publication ban proposed will attempt to ensure Veltman’s fair trial rights. It will enhance the administration of justice. It will promote the public’s interest in a fair trial, and it will facilitate jury selection. (Esseghaier, para. 129).

[56] The proposed publication ban, and the limited sealing order will also protect the privacy interests of involved individuals.

[57] In addition, the publication ban is time limited and will expire when the trial is concluded. The ban and sealing order will be as narrowly focussed as possible. The warrants and assistance orders and the affidavit material filed by the media parties and the Crown will not be subject to any restrictive order.

Conclusion

[58] A publication ban and sealing order of some portions of the two ITOs is necessary in this matter. Both the Crown and defence have provided me with summary schedules of the information they seek to restrict. In addition, the Crown has provided a highlighted version of the ITOs to identify those portions it believes should be subject to a publication ban and enclosed certain phrases in red boxes where a sealing order is sought.

[59] I have been provided with these ITOs by an encrypted USB drive. The USB drive, which contains the full ITOs, will be sealed and marked as an exhibit to allow for a full review of the record, if necessary.

[60] To provide the details of my orders, I have attached appendices [i] (Appendix A and B) to these reasons for each of the ITOs. As suggested in the argument before me, the parties can then work with the appendices to create a document which can be available to the media and the public, and which clearly indicates the redactions and banned portions. I decline to create a registry for those accessing the limited ITOs. I find that to be too restrictive and practically unworkable.

Regional Senior Justice B. G. Thomas Released: March 7, 2022.

APPENDIX A (AMENDED AMENDED)

ITO – JUNE 12, 2021

LOCATION IN ITO ORDER Table of Contents – (pages 2-4 of 101), page references 11-49 Publication ban Page 9 (paras. 18-19) Publication ban Pages 11-100 Paras. 24- 43 , 46-49, 52-56, 62-67, 69- 101 , 103-117, 119-125, 127-139, 143, 145, 149-217, 225-285 Publication ban Para. 156 Sealed Para. 185 Sealed Boxed portion identified in para. 249 Sealed Boxed portion identified in para. 271 Sealed Boxed portion identified in para. 282 Sealed Paras. 287 (d), 288 (b)-(g) (i), (i)-(i-ii) Publication ban Para. 289 (b), (c), (d) (viii)- (x) , (e) (i), (ii), (vii)-(ix) Publication ban Paras. 293-312 (page 58 of 101 – page 75 of 101) Publication ban Para. 297 Sealed Boxed portions of para. 305 Sealed Boxed portions of para. 311 (h) (ii) Sealed Boxed portions of para. 311(h) (ix) (10) Sealed Boxed portions of para. 312 (c) (ii) Sealed All of para. 312 (but not para. 312 (d), (x)- (x) (iii)(2)) Publication ban Para. 312 (c)(ix)(10) Sealed Para. 312 (d)(xiii)(9) Sealed Paras. 339-340 (pages 95 of 101) Publication ban Paras. 345-346 Publication ban Para. 348 (the last sentence and attached photo only) (page 97 of 101) Publication ban Paras. 355-356 (page 100 of 101) Publication ban Appendix to Warrant – RCMP “O” Division Intelligence Report (page 1-3 of 3) Publication ban Footnote 26 – page 45 of 101 Sealed Footnote 13 – page 31 of 101 Publication Ban

APPENDIX B (AMENDED AMENDED)

ITO – JUNE 30, 2021

LOCATION IN ITO ORDER Table of Contents – page references 13-68 (pages 2-4 of 101) Publication ban Boxed portions of page references 50, 61, 63 of Table of Contents Sealed Paras. 19-20 Publication ban Paras. 25-43 (pages 12-17 of 101) Publication ban Paras. 46-54 (page 20 of 101) Publication ban Paras. 59-79 (page 26 of 101) Publication ban Paras. 90-174 (pages 27-40 of 101) Publication ban Para. 128 Sealed Boxed portions of paras. 146 and 147 (pages 36 and 37 of 101) Sealed Paras. 178-240 (pages 41-51 of 101) Publication ban Boxed portions of paras. 199, para. 215, boxed portion of para. 224 Sealed Para. 244(c) Sealed Paras. 249-253 (pages 55 and 57 of 101) Publication ban Paras. 257-270 (pages 58-65 of 101) Publication ban Boxed portions of paras. 263 and 265 Sealed Para. 264 Sealed Paras. 272-275 (pages 66-69 of 101) Publication ban Boxed portions of para. 274 (c) and 275 (d) Sealed Paras. 292-296 (pages 73 and 74 of 101) Publication ban Boxed portions of paras. 293 and 295 Sealed Para. 301 (a) (i) – para. 301 (vi) (4) (pages 77-84 of 101) Publication ban Para. 301 (ii) (17) (page 81 of 101), (v) (2) (page 83 of 101) Sealed Paras. 308, 309, 310 (d), (e) (viii) - (e) (xii) (pages 86-89 of 101) Publication ban Boxed portions of para. 308 (page 86 of 101) Sealed Boxed portions of paras. 316 and 323 (pages 92 and 94 of 101) Publication ban Para. 338 (the last sentence in the paragraph and the attached photo only) Publication ban Paras. 345-346 Publication ban Appendix to s. 487 – search warrant of June 12, 2021 (page 4, para. 12), (pages 5-7, paras. 15 and 16) Publication ban Appendix “C” – sub-affidavit of D.C. Yacoub (paras. 12-19, pages 4-11) Publication ban Para. 129 (page 24 of 101 – last sentence only) Sealed Footnote 26 – page 41 of 101 Publication ban Para. 316 (page 92 of 101 – last sentence only) Publication ban Omnibus order of Justice Carnegie dated June 30, 2021 (para. 8(h) and (l) Publication ban

ONTARIO SUPERIOR COURT OF JUSTICE CBC, CANADIAN PRESS ENTERPRISES INC., GLOBAL NEWS, a Division of Corus Television Limited, CTV NEWS, a Division of Bell Applicants Inc., POSTMEDIA NETWORK INC., AND TORONTO STAR NEWSPAPERS LIMITED Applicants – and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA Respondent

• and – NATHANIEL VELTMAN Respondent AMENDED AMENDED DECISION (APPENDICES ONLY) REASONS FOR JUDGMENT THOMAS, RSJ.

Released: March 7, 2022.

♦ Further amendments noted as dash underlined in appendices on March 11, 2022

[i] Amendments noted as double underlined in appendices on March 9, 2022