CITATION : Postmedia Network Inc. v. R., 2022 ONSC 1544

COURT FILE NO.: CR-21-153 DATE: 2022/03/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Postmedia Network Inc. Applicant – and – Her Majesty The Queen Respondent – and – B.M. Intervenor

COUNSEL: Brendon Hughes, for the Applicant David Kirk, for the Respondent Self-represented (B.M.)

HEARD: February 23, 2022

REASONS FOR DECISION

Ellies R.S.J.

OVERVIEW

[1] In 2017, a North Bay newspaper reported on a sentencing hearing during which a mental health worker, B.M., testified on behalf of the accused. Ms. M. later sued the newspaper, claiming that it had breached a publication ban about the case that prohibited the newspaper from identifying her.

[2] Postmedia Network Inc. (“Postmedia”) owns the newspaper. It applies for a declaration that the publication ban does not apply to anyone other than the victim of the offence for which the accused was being sentenced. In the alternative, it seeks to quash the publication ban by way of certiorari on the basis that the court that made it had no jurisdiction to impose a mandatory publication ban relating to witnesses 18 years of age or older.

[3] The Crown opposes the application, characterizing it as a collateral attack on the publication ban with respect to which it argues Postmedia should not be granted standing. Ms. M. opposes the application on its merits. She submits that, on a proper interpretation of the legislation, the ban applies to witnesses of any age because it was made at the request of the prosecutor.

[4] For the following reasons, the application is allowed. A declaration will issue that the publication ban in question applied only to the victim in this case.

BACKGROUND

[5] The facts in this application are straightforward.

[6] Mitchell Madsen was charged with sexual assault contrary to s. 271 of the Criminal Code (“the Code”). At a bail hearing held on April 28, 2017, with respect to the charge, the Crown requested that the presiding justice of peace impose a publication ban under s. 486.4 of the Code “given the nature of the allegations”. Without being asked, the defence indicated it consented and the justice of peace made the order requested.

[7] Madsen later pleaded guilty to the charge and the matter proceeded to a sentencing hearing on November 6, 2018, before a judge of the Ontario Court of Justice. Madsen was assisted by duty counsel and Ms. M. was in attendance that day. She had assisted Madsen as a crisis intervention worker at the North Bay Regional Health Centre and later as a case worker at the Canadian Mental Health Association (the “CMHA”).

[8] At the outset of the hearing, both the Crown and duty counsel confirmed that a publication ban had been ordered earlier. Ms. M. was later called to the witness stand on behalf of Madsen and gave evidence regarding Madsen’s involvement with the CMHA.

[9] On November 14, 2018, the North Bay Nugget published an article reporting on the sentencing hearing, in which Ms. M. was identified and quoted. Ms. M. complained to the Nugget shortly after the article was published, as a result of which her name was removed from the online version.

[10] Nearly two years later, on October 1, 2020, Ms. M. commenced a civil action against Postmedia, the Nugget, and two Nugget employees. The lawsuit is still outstanding. Acting on her own behalf, Ms. M. alleges that she suffered significant harm to her mental health as a result of the Nugget’s breach of the publication ban. She claims damages of over $3.5 million.

[11] Postmedia commenced this application approximately a year later. It was issued only against the Crown, but Ms. M. was added as an intervenor informally before the matter was scheduled for argument and represented herself (competently, I might add) during the hearing.

ISSUES

[12] The application raises three issues:

(1) Should Postmedia be granted standing to challenge the publication ban?

(2) Is the application an improper collateral attack on the publication ban?

(3) Did the publication ban preclude publication of information that could identify Ms. M.?

ANALYSIS

Should Postmedia be granted standing to challenge the publication ban?

[13] Freedom of the press is a right enshrined in s. 2(b) of the Charter, which guarantees:

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

[14] The importance of this right to all Canadians has been recognized by the Supreme Court of Canada in a long line of cases that begins before the Charter itself came into force. The importance of the right was perhaps most eloquently expressed by Fish J., writing for the Supreme Court in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, at para. 1:

In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy.

[15] As Fish J. wrote in Toronto Star, at para. 4, “it is now well established that court proceedings are presumptively ‘open’ in Canada”. It is also well established that publication bans violate this principle: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 129. For that reason, as I will explain, the law generally permits the media to challenge publication bans, either at the time they are being made or afterwards.

[16] The Crown submits that in this case, however, the press seeks to use the s. 2(b) right “for an oblique motive”. It submits that Postmedia is not seeking to uphold the right to publish the news but, rather, to save itself from a lawsuit. For that reason, the Crown submits that Postmedia should be denied standing to assert the right here.

[17] In support of its submission, the Crown relies on the decision of the Supreme Court of Canada in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 (“CBC v. Manitoba”). Writing on behalf of the court in CBC v. Manitoba, Kasirer J. held that a party who seeks to challenge an existing order concerning court openness must meet two requirements.

[18] First, the challenging party must show that it is sufficiently affected by the ban. Kasirer J. held that, generally speaking, the press will satisfy this prong of the test. However, he also held that the court retains a residual discretion to deny standing even to an affected person “where hearing the motion would not be in the interests of justice”: para. 47.

[19] The Crown submits that the court should exercise this residual discretion in this case to deny Postmedia standing because the application is not being brought to defend the right to freedom of the press but, rather, to defend Postmedia from civil liability. The Crown submits that there is no evidence that Postmedia wants to publish anything further relating to this dated case.

[20] With respect to the second requirement, Kasirer J. held that a party wishing to challenge the order must do so “with due dispatch”: para. 45. He held that, even where the affected person prong of the test is met, courts may decline to hear a motion to challenge an order dealing with court openness “if the moving party was unreasonably slow in bringing the motion after becoming aware of the order, such that it is no longer in the interests of justice to hear it”: para. 48.

[21] The Crown submits that the court should also exercise its discretion to deny Postmedia standing on this basis. It submits that Postmedia has failed to move with appropriate dispatch since the publication ban was made in April 2017.

[22] I am unable to accept the Crown’s submissions for two main reasons.

[23] The first is that the principles in CBC v. Manitoba do not apply directly to this case.

[24] In CBC v. Manitoba, the CBC had applied to the Manitoba Court of Appeal, asking it to set aside orders that the Court of Appeal itself had made sealing evidence in a matter that had been argued before it. The CBC’s applications were dismissed. The issue before the Supreme Court related to the jurisdiction of the Court of Appeal to set aside its own orders. At para. 1 of the decision, Kasirer J. set out the issue as follows:

The principal issue in these appeals concerns a court’s jurisdiction to render, vary or vacate orders … that limit the open court principle. The question is whether a court retains jurisdiction over these ancillary matters after it has decided the merits of the case and has entered its formal judgment.

[25] Thus, the principles set out in CBC v. Manitoba apply where a challenge is being made before the court that made a publication ban. In that context, the principles make a lot of sense. As Kasirer J. pointed out, courts normally lose their jurisdiction over a matter once the final judgment is entered: para. 33. Revisiting an order is an exception to that rule and, for that reason, it makes sense to ensure that the process of revisiting the order be tightly constrained.

[26] But that is not the situation here. Instead, Postmedia seeks a declaration with respect to the scope of the ban or, alternatively, an order quashing it, not from the same court that made the order, but from a higher court. In my view, the question of standing to bring an application seeking these remedies is governed by the principles relating to declarations and the extraordinary remedy of certiorari, not by the principles in CBC v. Manitoba.

[27] However, even if the principles set out in CBC v. Manitoba do apply to this application, I would not exercise my discretion to deny standing to Postmedia. I do not agree with the Crown’s submission that self-interest should result in a loss of standing, nor do I agree that there has been undue delay.

[28] As to the Crown’s concern about Postmedia’s motives, I would point out that there is a certain degree of self-interest in every case in which the media challenges a publication ban. Newspapers make money by publishing the news. Publication bans limit the supply of that news, to put it perhaps too bluntly. As the cases cited by the parties show, although freedom of the press benefits all Canadians, it is a right most often defended on our behalf by the press itself. I doubt that in every case, or even in many of them, the media was spending money on legal fees simply for the sake of protecting the public’s right to a free press.

[29] My point about delay is related to my point about self-interest. While Postmedia might have brought this application as soon as it learned that Ms. M. took issue with her name being published, there was no justification at that time to incur such an expense. It was not until Ms. M. brought her action for damages that the issues in this application warranted the cost associated with bringing it. I do not view the time from October 6, 2020, when Ms. M.’s action was served, to October 5, 2021, when this application was commenced, to be inordinate, especially during a pandemic.

[30] Perhaps most importantly, answering the question in the context of this application is in the best interests of justice. As counsel for Postmedia points out, answering the question in these proceedings provides the Crown, who requested the publication ban, with an opportunity to participate. That would not be the case if this question was left to be answered at a civil trial, absent unusual circumstances.

[31] Finally, I agree with the submission by counsel for Postmedia that resolving the issue in the context of these proceedings, as opposed to the civil suit, puts Ms. M. at no disadvantage. This is not a case that requires elaborate and prolonged pre-trial discovery. All that is required are the transcripts of what occurred in the Ontario Court of Justice, the court documents, and Ms. M.’s evidence of her involvement in those proceedings. All of that has been filed as evidence here.

[32] I am aware that an unfavourable answer from Ms. M’s perspective is likely to do substantial damage to her civil suit. But that is no reason not to answer the question now. Indeed, given the cost of civil litigation, the sooner the question is answered, the better.

[33] I turn now to address the Crown’s concerns within the legal framework that I believe actually governs the relief sought in this application.

Standing to Seek a Declaration

[34] Undoubtedly, this court has the jurisdiction to make a declaratory judgment. That jurisdiction is given both by statute and by the common law: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97; R. v. M. (P.), 16 O.R. (3d) 576, at para. 20.

[35] However, declaratory relief is discretionary, in the sense that the court may, but not must, grant it. In determining whether to do so, a court must be sure that there is a “real question” to be answered. This requirement was discussed by the Supreme Court of Canada in Canada v. Solosky, [1980] 1 S.C.R. 821, at p. 830-831:

The principles which guide the court in exercising jurisdiction to grant declarations have been stated time and again. In the early case of Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., in which parties to a contract sought assistance in construing it, the [House of Lords] affirmed that declarations can be granted where real, rather than fictitious or academic, issues are raised. Lord Dunedin set out this test:

The question must be a real and not a theoretical question, the person raising it must have a real interest to raise it, he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.

[Citations omitted.]

[36] This requirement is satisfied here. While the Crown wishes to refrain from putting forward a position on the interpretation of the ban in this case, Ms. M. has a true interest in opposing the declaration sought. She argues for a different interpretation of the statute, and consequently of the scope of the ban, than that urged on behalf of the applicant.

[37] Further, as Postmedia correctly submits, the jurisprudence confirms that a request for declaratory relief is an appropriate means through which to seek clarification of a publication ban: Ontario v. Canadian Broadcasting Corp., 2019 ONSC 1079; R. v. Malik, 2002 BCSC 861; R. v. Bernardo, [1994] O.J. No. 4114.

Standing to Seek an Order Quashing the Ban

[38] Postmedia’s alternative request, an order quashing the publication ban, is an extraordinary remedy. As such, it is governed by the common law. The Supreme Court of Canada made it clear in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, that such a remedy is available to set aside a publication ban made without notice to the media. On behalf of the majority, Lamer C.J.C. wrote, at p. 864, under the heading “Extraordinary Remedies”:

Provincial Superior Courts have jurisdiction to hear applications for the extraordinary remedy of certiorari against Provincial Court judges for excesses of jurisdiction and for errors of law on the face of the record ... if a publication ban order is made by a Provincial Court judge, the media can apply to the Superior Court for certiorari and argue that the ban is not authorized by the common law rule.

[39] Although Dagenais involved a discretionary publication ban imposed under the common law, rather than a mandatory publication ban imposed by legislation, Lamer C.J.C. held that certiorari is available whenever a discretionary publication ban is imposed, regardless of the authority relied upon to impose it: p. 867.

[40] That is precisely the situation here. Postmedia submits that, if the justice of the peace intended to impose a ban on the identity of all witnesses, then it was not a mandatory, but rather, a discretionary ban. In that case, Dagenais also held that notice should be given to the press: pgs. 868-869. Where that has not been done, as in this case, the majority in Dagenais held that the media should make an application for certiorari, just as Postmedia has done: p. 872.

Is the application an improper collateral attack on the publication ban?

[41] Generally speaking, court orders can only be challenged in proceedings whose specific object is the reversal, variation, or nullification of the order. The order stands unless it is set aside on appeal or lawfully quashed: R. v. Wilson, [1983] 2 S.C.R. 594, at p. 599. This is known as the rule against collateral attack.

[42] The Crown submits that this application amounts to an improper collateral attack on the publication ban made in this case, again, because of Postmedia’s motives. With respect, this argument is no more persuasive in the context of a discussion about collateral attacks than it is in the context of a discussion about standing under CBC v. Manitoba.

[43] As I have already pointed out, this is not an attack on the publication ban. Postmedia seeks a declaration as to the scope of the order. The issue with respect to this requested relief is the interpretation of the legislation under which the order was made. Even if the application is successful, the order will remain intact, untouched. Section 2(b) of the Charter is not directly engaged. Rather, as I will explain, it serves only as a backdrop to the task. As I have already explained, self-interest is not a disqualifying factor in any challenge to a publication ban.

[44] On the other hand, the alternative remedy sought by Postmedia, an order in the nature of certiorari quashing the publication ban, does constitute an attack on the order. If successful, the order will not be left untouched. However, it is not a collateral attack. As the court made clear in Wilson, orders can be lawfully attacked in proceedings whose specific object is the reversal, variation, or nullification of the order. That is precisely the nature of these proceedings. As the Supreme Court explained in Dagenais, when the media is not given notice such that it can appear to oppose a publication ban in the first instance, it does not have the same remedy available to it as does the Crown and the accused, namely, an appeal. It must rely on the extraordinary remedy of certiorari. The attack here is not collateral; it is direct.

Did the publication ban preclude publication of information that could identify Ms. M.?

[45] I come now to the real issue in this application: whether the publication ban applied to the identity of Ms. M. To make this determination, I must first interpret the legislation under which the order was made and then make findings of fact as they relate to the intended scope of the order itself.

[46] At the time in question, the relevant portions of s. 486.4 read:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim 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 victim of the right to make an application for the order; and

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

[47] Ms. M. submits that these sections should be interpreted as requiring a judge or justice to impose a publication ban on the identity of the victim and all witnesses, regardless of age, whenever: (1) the case involves one of the enumerated offences and (2) it is requested by the prosecutor. She submits that s. 486.4(2)(a) is informational only. She argues that its purpose is to require the judge or justice to advise victims and underage witnesses of their right to request an order, but that the purpose of the section stops there. She submits that s. (2)(b) should be interpreted as making what would otherwise be a discretionary order under s. (1) (“the presiding judge may make…”) mandatory whenever asked for by the prosecutor, as it was in this case.

[48] I am unable to accept this interpretation. It runs contrary to the modern principle of statutory interpretation and the interpretation that has been given to the section in various other cases, including one relied upon by Ms. M. herself.

[49] The “modern” principle of statutory interpretation was first described by Elmer A. Driedger in his seminal text, The Construction of Statutes (Toronto: Butterworths, 1974), at p. 67:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[50] This principle of statutory interpretation was adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and has been applied by that court many times since: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 117-118. The principle requires a court to consider not only the text of the statutory provisions in issue, but also the context in which they appear, as well as the scheme and the object of the legislation in question.

[51] I will begin with the text of the legislation.

[52] Ms. M. relies on the decision in R. v. CBC, 2003 SKPC 87, in particular a quote at para. 37 of that decision from the decision in R. v. CBC, [1987] N.W.T.J. No. 83 (NWTSC). In the latter case, at para. 36, Vertes J. stated with respect to the predecessor to s.486.4(2):

The general power to issue such orders is contained in s.486(3). The presiding judge "may" make an order. Subsection (4) simply qualifies that general power by stipulating when the judge "shall" make the order. It does not limit the general power. I also do not read subparagraphs (a) and (b) of subsection (4) as imposing a two-step procedure. Subparagraph (4)(a) is an informational requirement but it is not a prerequisite to the issuance of the order pursuant to subparagraph (4)(b). Instead, subsection (4) sets out two distinct obligations: first, the obligation to inform the complainant at the first reasonable opportunity of the right to apply for an order; and, second, the obligation to make the order if requested to do so by the complainant or the prosecutor. [Emphasis added.]

[53] With respect, nothing in this excerpt is of assistance to Ms. M.

[54] The issue in the case before Vertes J. was whether a judge had the power to make an order under s. 486(3) (of the earlier legislation) at the request of the victim where the judge had not informed the victim of her right to make an application beforehand (see para. 34 of Vertes J.’s reasons). That is not the issue here. The issue here is whether the words “under the age of 18 years” in s. 486.4(2)(a) and “or any such witness” in s. 486.4(2)(b) restrict the scope of the publication ban that must be imposed at the request of the prosecutor. I believe they do.

[55] Clearly, the words “any such witness” in s. 486.4(2)(b) refer to the words “under the age of 18 years” in s. 486.4(2)(a). There are no other witnesses referred to in the subsection. Because this is true, it must also be true that s. 486.4(2)(a) performs a greater function than just an informational one. It is definitional, as well. In my view, it defines one of the two classes of justice system participants on behalf of whom the prosecutor may apply for a mandatory publication ban.

[56] It should become immediately obvious that something would be missing from the legislation if Ms. M.’s interpretation was correct. It makes no sense to require a judge or justice under s. 486.4(2)(a) to advise victims, including victims over the age of 17 years, that they may apply for a publication ban, but not to require the judge or justice to so advise witnesses over that age if this is the way the subsections were meant to be interpreted. There is no reason why, if s. 486.4(2)(a) was really just informational, the judge or justice should not provide the same information to all of those justice system participants that Ms. M. contends can be mandatorily protected simply by the Crown making the request.

[57] In my view, the words “the prosecutor” in s. 486.4(2)(b) were included to provide that a prosecutor may make an application for a mandatory publication ban on behalf of either a victim or a witness under the age of 18 years.

[58] This interpretation is supported by a consideration of the context, both legislative and constitutional.

[59] A review of the balance of s. 486.4 shows that Parliament intended in s. 486.4(2) only to provide that an application may be made either by the justice system participant with respect to whom a publication ban is mandatory, or by the prosecutor on behalf of that particular participant. Subsection (2.1) reads:

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

[60] Thus, s. 486.4(2.1) mirrors s. 486.4(1). It sets out the court’s general power to impose a publication ban relating to certain justice system participants (victims under the age of 18, in the case of this part of overall section). Section 486.4(2.2) is the equivalent to s. 486.4(2). It provides:

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

[61] The wording of these companion sections to ss. 486.4(1) and (2) make it clear that the scheme of the legislation is to allow the prosecutor to apply on behalf of the particular justice system participant whom the judge or justice must inform of the availability of a publication ban.

[62] With respect to the constitutional context, it must be remembered that the legislation in question has been held to violate the right to freedom of the press. In Canadian Newspapers, the Supreme Court held that the predecessor legislation to s. 486.4(2) violated s. 2(b) of the Charter, but was reasonably justified under s. 1 of the Charter, as it related to the identity of a complainant. Although the question of the constitutional validity of the legislation as it relates to witnesses is not before me, where possible, legislation should be interpreted in a way that makes it Charter-compliant: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078. The interpretation urged upon me by Ms. M. would restrict even further the open court principle, if accepted, and therefore make it less Charter-compliant.

[63] Finally, I come to the purpose of the legislation.

[64] The purpose of s. 486.4 is to encourage victims of sexual offences to come forward by protecting them from widespread publication that might result in embarrassment and humiliation: R. v. Adams, [1995] 4 S.C.R. 707, at para. 25; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 130. This same protection is provided to underage witnesses, who are often involved where the victim is also young. However, it is not obvious to me that the purpose of the section would be better served by banning the publication of identifying information for all witnesses, regardless of age, whenever requested by the prosecution.

[65] As the Supreme Court held in Canadian Newspapers, the mandatory nature of the publication ban is necessary to assure complainants that their identities will be protected and that such protection will not depend on a judge’s discretion: p. 132. I can see no reason why the same assurance is required when it comes to witnesses over the age of 17. Why, for example, would a mandatory publication ban be necessary with respect to a regular member of the police force called upon to testify about his or her investigation of a sexual offence?

[66] My interpretation of s. 486.4 accords with that given to the section by other judges. In Jane Doe v. London Free Press, 2015 ONSC 4239, the plaintiff sued the defendant for breaching a non-publication order that expressly applied to witnesses over the age of 18 years. At para. 30, my colleague, Grace J. wrote:

Pursuant to subsection (2), the order is mandatory if requested by the complainant, a witness under the age of eighteen years or the prosecutor on their behalf. However, Ms. Doe had attained the age of majority. In those circumstances, the granting of the order is discretionary.

[67] The same interpretation was accepted in the very case relied upon by Ms. M. in support of her submission that s. 486.4(2)(a) is only informational. At para. 37 of R. v. CBC (SKPC), Jackson J. held that:

The impugned sections, s. 486(3) and (4) [now s. 486.4(1) and (2)], have been the subject of previous constitutional challenges. These sections taken together provide a ban on publication of the identity of a complainant or witness under the age of 18 years in certain enumerated sexual offences. [Emphasis added.]

[68] For these reasons, I find that, as a matter of law, a publication ban can only be mandatory as it relates to a victim or a witness under the age of 18 years under s. 486.4(2) of the Code.

[69] Of course, there will be cases where it will be appropriate to protect the identity of witnesses over the age of 17. Ms. M. maintains that this is one of them. But where that is the case, the ban is discretionary and the court making the ban must comply with the law as set out by the Supreme Court in Dagenais and in the subsequent cases of R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76 and Sherman Estate v. Donovan, 2021 SCC 25, the latter of which held that a court may only limit the open court principle where it is established that (para. 38):

(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 reasonable alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[70] Section 486.5 of the Code governs the procedure to be followed where a discretionary ban is sought by a victim or witness with respect to whom a ban is not mandatory under s. 486.4. Among other things, it requires that notice be given to all affected parties, in accordance with the decision in Dagenais. That did not happen here, which brings me to Postmedia’s alternative request for an order quashing the publication ban.

[71] It will only be necessary to quash the publication ban if I find as a fact that the justice of the peace at the bail hearing intended the mandatory publication ban to apply to witnesses 18 years or older. This is because, as I have pointed out, such an order is not mandatory; it is discretionary. Where a lower court fails to comply with the requirements set out Dagenais, Mentuck, and Sherman Estate and, instead, purports to make a mandatory order banning publication outside of the scope of s. 486.4(2), it acts outside of its jurisdiction and the order may therefore be quashed. However, that is not necessary here.

[72] There is no reason to conclude that the justice of the peace intended to make a mandatory order banning publication of information that might identify a witness over the age of 17 years in this case. There was no request for such an order. There is no evidence that any such witness was involved in the case at the time the request was made. Ms. M. was not at the bail hearing and had never discussed the publication ban with the Crown before testifying at the sentencing hearing. Indeed, she did not even know she was going to be asked to take the witness stand at the sentencing hearing until she was called upon to do so.

[73] Thus, there is no evidence that the court intended to make an order that it could not make under s. 486.4 and, therefore, there is no need to quash the order.

CONCLUSION

[74] While I disagree with Ms. M.’s interpretation of ss. 486.4(1) and (2), I do agree with her that Parliament could have made the legislation clearer for lay people, including witnesses like Ms. M. It would seem to be a simple thing to do.

[75] Nonetheless, interpreted as they must be using the proper principles of statutory interpretation, the sections provide for a mandatory ban only as to the identities of victims (of all ages) and witnesses under the age of 18 years, regardless of whether the request for such a ban is made by those individuals themselves, or by the prosecutor on their behalf.

[76] Postmedia’s application is, therefore, allowed. As there were no witnesses under the age of 18 involved in this case, a declaration will issue that the publication ban made on April 28, 2017, applied only to the victim.

M.G. Ellies R.S.J. Released: March 10, 2022