COURT FILE NO.: CR-21-10000231-00BR
DATE: 20220121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
UMAR ZAMEER
Michael Cantlon and Karen Simone, for the Crown
Nader Hasan and Ryann Atkins, for Mr. Zameer
HEARD: December 2, 2021
Justice J. Copeland
REASONS FOR DECISION ON APPLICATION TO VARY PUBLICATION BAN
[1] On September 22, 2021, I released Umar Zameer on bail pending his trial. Pursuant to s. 517 of the Criminal Code, R.S.C., 1985, c. C-46, my reasons for releasing Mr. Zameer on bail, as well as the evidence, information, and submissions from the bail hearing are covered by a publication ban until the end of Mr. Zameer’s trial. This publication ban was mandatory, pursuant to s. 517 of the Criminal Code, because it was requested by Mr. Zameer at the outset of the bail hearing. Mr. Zameer now brings an application to vary the publication ban to allow partial publication of my written reasons for releasing him on bail. The Crown opposes the application.
[2] The position put forward on behalf of Mr. Zameer is that the pre-trial publicity in this case, in particular comments by public figures, is misleading and one-sided, and puts his right to a fair trial at risk. Mr. Zameer submits that the s. 517 publication ban on my reasons for granting him bail pending his trial should be partially lifted in order to counterbalance misinformation and to “restore equilibrium” to what is in the public record at this stage.
[3] Crown counsel submits that the Crown relied on the mandatory publication ban imposed at the request of Mr. Zameer, and that if the court is considering lifting the mandatory publication ban, the Crown should have the opportunity to seek a discretionary publication ban under s. 517. Crown counsel further submits that the record on this application is not sufficient to find that Mr. Zameer’s right to a fair trial is at risk, and that his right to a fair trial can be protected by other safeguards, such as the passage of time and challenge for cause. Crown counsel further submits that lifting the publication ban risks causing harm to the integrity of the trial process.
[4] As I explain below, I am not satisfied that the publication ban should be lifted or varied. I find that Mr. Zameer’s right to a fair trial will be adequately protected by existing safeguards in the jury selection and trial process. Further, I find that lifting the publication ban prior to Mr. Zameer’s trial, even partially, is likely to do more harm than good to the fairness and integrity of the trial process.
[5] My reasons for reaching this conclusion are structured as follows. First, I consider the court’s jurisdiction to lift or vary a s. 517 publication ban, including whether the court has jurisdiction to craft a partial publication ban. Second, I consider the purpose of the s. 517 publication ban in the context of the bail process, and in protecting fair trial rights and the integrity of the trial process. Third, I consider the nature and potential impact of pre-trial publicity to date in this case, and the impact of the ordinary remedies for such publicity – the passage of time, challenge for cause during jury selection, and jury instructions. Fourth, I consider the potential adverse impacts of lifting the publication ban on the trial process. Fifth, I summarize my conclusions in the context of balancing the fairness and integrity of the trial process and the public interest in reporting on criminal cases. Finally, I address the issue of judicial accountability for bail decisions, an issue which appears to lie behind some of the public commentary about the bail decision in this case.
[6] These reasons dismissing the application to lift or vary the publication ban are not subject to a publication ban.
1. Jurisdiction
[7] Both parties agree that the court has jurisdiction to lift the s. 517 publication ban pursuant to its inherent jurisdiction to vary or rescind previous orders: R. v. Adams, 1995 CanLII 56, [1995] 4 S.C.R. 707, at paras. 27-30; Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 at paras. 32-55. I note as well that concerns about a court being functus officio appear to have limited application in this context (as distinct from the trial context) because the Superior Court retains jurisdiction over Mr. Zameer’s bail in the event of a material change in circumstances: R. v. Ali, 2020 ONCA 566 at paras. 26-27; R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305, at para. 21.
[8] Both parties also agree that if I were to lift the mandatory s. 517 publication ban which was imposed at the request of the defence, it would be appropriate for the court to now consider the Crown’s request for a discretionary publication ban pursuant to s. 517, because the Crown relied on the mandatory ban imposed at the request of the defence at the time of the bail hearing.
[9] A more complicated question is whether I have the authority to impose a partial publication ban on my reasons for releasing Mr. Zameer on bail. Counsel for Mr. Zameer submits that s. 517 of the Criminal Code permits the imposition of a partial publication ban, or in the alternative, that the court’s inherent jurisdiction permits the imposition of a partial publication ban (after the lifting of, or in the place of, a s. 517 publication ban).
[10] I do not accept the defence submission that s. 517 permits a partial publication ban. I find that the wording of the text of s. 517 and its purpose, as explained in Toronto Star Newspapers v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, are clear that once a s. 517 ban is triggered (either mandatorily by a defence request, or discretionarily by a Crown request), it covers all of the information in the listed categories of evidence, information, submissions, and reasons from a bail hearing.
[11] In terms of the text of s. 517, the trigger for the publication ban is either a request from the defence (in which case the ban is mandatory), or from the prosecution (in which case the judge has a discretion whether or not to impose the ban). Once the ban is triggered, a judge or justice presiding over a bail hearing has no discretion as to the scope of the ban. The words of s. 517 are clear that the only order the presiding judge or justice may make is “an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as [the end of the trial or, if there is a discharge at the preliminary inquiry, the time of discharge]” (emphasis added). The text of s. 517 does not allow a discretion to choose among the listed categories, or to choose information within a listed category, and only apply the publication ban to some of the information.
[12] This reading of the text of s. 517 is supported by the purpose of the ban as set out in Toronto Star. The purpose of the s. 517 publication ban is to protect fair trial rights, and to do so in a manner that allows bail hearings to proceed expeditiously and efficiently, and without being bogged down in arguments about publication bans: Toronto Star at paras. 22-23, 27-33, 35-37. The Supreme Court held that the mandatory nature of the publication ban when requested by the defence serves the purpose of protecting fair trial rights without putting a burden on the defence to argue about entitlement to a publication ban and to divert resources from obtaining release to “deciding whether to compromise on liberty in order to avoid having evidence aired outside the courtroom”: Toronto Star at paras. 35-37.
[13] If s. 517 was read as permitting a partial publication ban, as the defence contends in this case, then the goal of preventing bail hearings from being bogged down by arguments about publication bans would be undermined. Although the ban would still be mandatory if requested by the defence, the scope of the ban would always be up for debate. If s. 517 were read this way, a defendant would be entitled to a mandatory ban if requested, but would still have to argue about the scope of the ban – potentially in every case. Such a reading of s. 517 is inconsistent with the reasoning in Toronto Star.
[14] However, I accept that it is within the court’s common law jurisdiction to control its own process to impose a partial publication ban (either where a s. 517 publication ban was never imposed, or where a s. 517 publication ban has been lifted for some reason): Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39, [1994] 3 S.C.R. 835; R. v. N.H., 2021 ONCA 636 at paras. 17-25.
[15] Thus, I accept that I have jurisdiction to lift the mandatory s. 517 publication ban requested by the defence, and to consider whether to impose a discretionary publication ban at the request of the Crown under s. 517, or a partial publication ban at the request of the defence using the court’s common law powers.
[16] However, for reasons I will explain, I am not satisfied that it is appropriate to lift the s. 517 publication ban in this case and replace it with a partial publication ban.
2. The purpose of the publication ban on bail proceedings under [s. 517](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[17] Before turning to the central arguments on this application, I want to address the purpose of the publication ban on bail proceedings under s. 517 of the Criminal Code. This requires a brief discussion of a judge’s or justice’s task at a bail hearing. I address these issues because of the public interest in this case, as I know counsel are familiar with these principles.
[18] A judge or justice presiding over a bail hearing must decide whether a person’s release or detention is justified pending trial. In most cases, the prosecution bears the onus to show why a person’s detention pending their trial is necessary: Criminal Code, s. 515(1). The prosecution usually bears this burden because of the presumption of innocence, and the importance we place on personal liberty. But in some situations, our law requires that a defendant justify why their detention pending trial is not necessary: Criminal Code, ss. 515(6) and 522(2). One circumstance where a defendant bears the burden to show that their detention pending trial is not necessary is where a person is charged with murder. For this reason, Mr. Zameer bore the onus to show why his detention in custody pending his trial was not necessary.
[19] In assessing whether detention is justified, the presiding judge or justice must consider a variety of factors, including the seriousness of the charges; the strength or weakness of the Crown case on the offence charged and any included offence that reasonably arises on the evidence; the strength or weakness of any anticipated defences; and the proposed plan of release. The ultimate standard against which the decision to detain or release is assessed is: (i) whether detention is necessary to ensure that the defendant will attend court; (ii) whether detention is necessary for the protection or safety of the public; and (iii) whether, considering all of the circumstances, detention is necessary to maintain confidence in the administration of justice in the eyes of reasonable and well-informed members of the public: Criminal Code, s. 515(10). A judge who presides over a bail hearing for a person charged with murder cannot release the person from custody unless they are satisfied that detention is not necessary to ensure that the defendant will attend court, that detention is not necessary for the protection or safety of the public, and that detention is not necessary to maintain confidence in the administration of justice in the eyes of reasonable and well-informed members of the public.
[20] In order for a judge to consider these factors, evidence and/or information will usually be led at a bail hearing which would not ordinarily be admissible at trial. In addition, evidence and/or information about the strength or weakness of the Crown’s case and any anticipated defences will be led. However, at a bail hearing, unlike at a trial, the anticipated witnesses for trial typically do not testify, and their evidence is not subject to cross-examination. Rather, either Crown counsel will read a summary of the anticipated evidence, or in more serious cases, a lead investigating officer will testify about the available evidence. The latter is what happened in Mr. Zameer’s bail hearing.
[21] Because of the seriousness of the charge Mr. Zameer is facing, the bail hearing was longer than is typically the case for less serious charges (three days). In addition, the merits of the anticipated trial evidence were led in more detail than is typically the case for less serious charges. But, as is usual for bail hearings, the lead investigator who testified provided a summary of his understanding of the available evidence – he was not a witness to the events at issue.
[22] The impact of these aspects of a bail hearing is that what the court hears regarding the anticipated trial evidence, although sufficient for purposes of considering the bail decision, is not tested to the same degree as will occur at trial, when the witnesses to events will testify in court and be cross-examined. Further, some of the evidence and/or information led at a bail hearing will not be admissible at trial, because although it has relevance for the bail decision it is not relevant to the trial issues. In addition, because a judge considering a bail application must engage in some assessment of the strength or weakness of the Crown case and any anticipated defences, there is a risk that any opinion expressed by the bail judge about the strengths or weaknesses of the Crown or defence case would be inappropriately given weight by jurors if that prior judicial opinion were known to them.
[23] These factors combine to create the reasons for the s. 517 publication ban. The purpose of the publication ban is to protect trial fairness and the integrity of the trial process. In the context of the current application, the interest in a fair trial includes preventing potential jurors from being influenced by information about a case that may not ultimately form part of the trial evidence, or which may take on a different character once tested by cross-examination at trial. Our system of jury trials requires that jurors decide cases based only on the evidence at trial. The risk of pre-trial publication of evidence, information, submissions, or a judge’s reasons from a bail hearing is that it may influence potential jurors with information that may not ultimately be part of the trial evidence: Toronto Star. The Supreme Court upheld the constitutionality of the s. 517 publication ban in Toronto Star.
[24] In the Toronto Star decision, the Supreme Court only discussed the trial fairness purpose of the publication ban in relation to a defendant’s interest in a fair trial. That is because that case involved media organizations seeking to lift a s. 517 publication ban over the objections of the defendants. In my view, it is clear that the fair trial concerns behind s. 517 apply on both sides of the courtroom. Section 517 of the Criminal Code is designed to protect both the defence and prosecution interest in an impartial jury. This is an important public interest for the whole community.
3. Existing jury selection and jury trial procedures are sufficient to protect Mr. Zameer’s fair trial rights
[25] I turn now to Mr. Zameer’s submissions in favour of partially lifting the s. 517 publication ban. Mr. Zameer argues that the nature of the pre-trial publicity in this case is such that, absent a partial lifting of the s. 517 publication ban to even the scales in terms of publicly available information, his right to a fair trial is put at risk.
[26] I am not satisfied that this is so. I accept that some of the pre-trial publicity in this case, particularly uninformed comments by public figures, is troubling. But I am not satisfied that it is likely to impair Mr. Zameer’s right to a fair trial, given the passage of time before the trial will happen, and remedies available at trial to ensure the selection of an impartial jury, in particular challenge for cause.
[27] The pre-trial publicity that Mr. Zameer relies on in bringing this application falls roughly into three categories: comments by the Chief of Police in a press conference held the morning after Mr. Zameer’s arrest; comments by the Premier and the Mayors of Toronto and Brampton following my decision to release Mr. Zameer on bail; and comments from members of the public on Twitter.
[28] I do not intend to summarize or repeat the content of this commentary.
[29] I consider first the comments by the Chief of Police to the media on the morning after Mr. Zameer’s arrest. Although the comments of the Chief of Police did not focus primarily on the substance of the investigation, to the extent that they did discuss the substance of the investigation, unfortunately, they did not paint a balanced picture when viewed in the context of what is now known of the anticipated trial evidence.[^1] Although it would have been better had some aspects of the comments not been made, I note that it was very early in the investigation, and the Chief of Police began his remarks by stating that they were based on “preliminary information”.
[30] With respect to the comments of politicians after Mr. Zameer was released on bail, and some of the commentary of the public on Twitter, again, I will not repeat the content of the commentary. What the comments by politicians and the Twitter comments of some members of the public share is that their effect is to denigrate the presumption of innocence and the fair operation of the criminal justice system. A fundamental pillar of our criminal justice system is that defendants are presumed innocent, unless and until their guilt is proven beyond a reasonable doubt in a trial. In this country, we do not try criminal cases in the media. We try them in the courts. Comments by public figures which suggest that a defendant is guilty before they have been tried, or suggest that it was unreasonable to grant bail without the speaker having informed themselves by reading the reasons for which bail was granted are irresponsible. Such comments show a disregard for the presumption of innocence and the administration of criminal justice. For this reason, the Supreme Court described comments of this nature as “reckless” in R. v. Vermette, 1988 CanLII 87, [1988] 1 S.C.R. 985, at p. 994.
[31] I pause to note that it is quite clear, from the timing and from the content of the comments, that the politicians who made inflammatory comments soon after Mr. Zameer was released did so without first reading my reasons for releasing Mr. Zameer on bail. As I discuss further below, those reasons are available in the public court file.
[32] In summary, I accept that based on the evidence and information at the bail hearing, the anticipated trial evidence as a whole, viewed objectively, paints a very different picture than the comments of the Chief of Police the morning after the arrest, and than the impression one would get from the uninformed comments of politicians made after Mr. Zameer was released on bail.
[33] The question I must grapple with is whether partially lifting the publication ban is the appropriate remedy to this issue, or whether other remedies are more appropriate.
[34] I am not persuaded that the publication ban should be varied or partially lifted. I reach this conclusion because I find that Mr. Zameer’s fair trial rights can be adequately protected by existing safeguards in our jury selection and trial process, and because I find that partially lifting the publication ban is likely to do more harm than good to the fairness and integrity of the trial process.
[35] I am not persuaded that it is necessary to partially lift the publication ban on my reasons for releasing Mr. Zameer on bail in order for an impartial jury to be selected. The comments of a few politicians and a subset of people on Twitter do not represent the views of the community as a whole. Fair-minded people understand that the facts of this case will be decided at the trial. Fair-minded people understand that the place for the evidence of all of the witnesses to be heard and weighed is not in the media before the trial takes place, but during the trial.
[36] Further, scouring the media and Twitter for comments about this case does not represent the state of knowledge of the community as a whole about the case. Although criminal trial judges and counsel may tend to focus on reporting about criminal cases, it is not the case that all members of the community who will potentially be called for jury duty do so.
[37] The first safeguard of Mr. Zameer’s fair trial rights, well-recognized in the caselaw, is the passage of time. Although I have no information on the schedule for the preliminary inquiry and trial in this matter, based on experience, one would expect that Mr. Zameer’s trial will likely take place approximately two years from now. That passage of time alone will allow the effect of pre-trial media coverage in relation to Mr. Zameer’s arrest and release on bail to fade.
[38] This brings me to the second safeguard, challenge for cause of potential jurors in relation to pre-trial publicity. Although this will ultimately be decided by the trial judge, one would expect that given the media attention to this matter at the time of arrest and the bail decision, challenge for cause on the basis of potential partiality due to pre-trial publicity would be granted if sought.[^2] I underline that the issue in such a challenge is not the fact that a potential juror has heard media reports, but whether the effect of the media reports is such that the juror cannot be impartial: Criminal Code, s. 638(1)(b); R. v. Sherratt, 1991 CanLII 86, [1991] 1 S.C.R. 509; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; Vermette at pp. 992-994. I find that availability of challenge for cause provides a significant safeguard for Mr. Zameer’s fair trial rights.
[39] The third safeguard of Mr. Zameer’s fair trial rights is instructions from the trial judge. The trial judge can provide strong jury instructions both during jury selection and, if they deem it appropriate, in final instructions to the jury to ensure that Mr. Zameer’s right to a fair trial is protected. I refer not only to an instruction that the case be decided based only on the trial evidence, and to disregard any information from outside the courtroom or in the media, but also to instructions on fundamental principles such as the presumption of innocence, and the Crown’s burden of proof beyond a reasonable doubt. Further, instructions by the trial judge are reinforced by the oath or affirmation taken by all jurors to try the case based on the evidence.
[40] Considering all of these safeguards together, I am not persuaded that the s. 517 publication ban should be lifted in order to protect Mr. Zameer’s right to a fair trial.
4. Lifting the publication ban would likely cause more harm than good to the fairness and integrity of the trial process
[41] In addition to being unpersuaded that it is necessary to lift the publication ban in order to protect Mr. Zameer’s right to a fair trial, I am concerned that even partially lifting the publication ban is likely to compound concerns about the integrity of the trial process, not remedy them. In particular, I find that lifting the publication ban, even partially, and causing more media attention to this case before the trial would create further difficulties in selecting an impartial jury, and run the risk of inadvertently tainting the evidence of potential witnesses at trial.
[42] I have addressed challenge for cause on the basis of partiality due to pre-trial publicity as a means to protect Mr. Zameer’s right to a fair trial. Whether or not I partially lift the publication ban on my reasons for granting bail, this is a case where challenge for cause on the basis of pre-trial publicity is likely to be granted. However, if the publication ban is lifted, even in part, that will lead to more media coverage of this case, which in my view will make it more difficult to select an impartial jury.
[43] It is important to consider the effect of partially lifting the publication ban from a real-world perspective. If the publication ban on my reasons for granting bail is partially lifted, it would be naïve to think that the media will simply report the paragraphs on which the ban is lifted, and that will end the matter. Rather, as has been the case in the reporting on this case thus far, it will lead to further public commentary and opinion, favourable to one side or the other. Some of this opinion will be informed, some uninformed. Some will be measured, some inflammatory.
[44] In saying this, I do not wish to denigrate the right of the public to express opinion about the justice system. But the difficulty in the pre-trial context is that this type of reporting and opinion is not based on the trial evidence. It exposes the jury pool to further information that may not be in evidence at trial, or may take on a different cast once subject to cross-examination at trial. The effect of such pre-trial publicity is to expose more potential jurors to information which risks tainting their impartiality, thus making it more difficult and time consuming to select 12 impartial jurors.
[45] I also accept Crown counsel’s submission that a further concern about partially lifting the publication ban is that it could lead to inadvertent tainting of the evidence of witnesses at trial. I should be clear that I am referring to all potential witnesses, and not singling out either Crown or defence witnesses.
[46] The Court of Appeal recently discussed the issue of the reliability of a witness’ account of events being inadvertently tainted by hearing another person’s account of the same events. Hearing another person’s account can colour a witness’ interpretation of events without the witness even realizing, and may impact on the reliability of the witness’ evidence: R. v. C.G., 2021 ONCA 809 at paras. 28-30, 32. In C.G., the Court of Appeal was addressing how a trial judge should consider such a situation in assessing the reliability of evidence after the situation potentially leading to tainting has already occurred. But ideally, our justice system strives to avoid creating the circumstances with the potential of inadvertent tainting in the first place.
[47] A common example of a measure taken to avoid inadvertent tainting of witnesses’ evidence is an order excluding witnesses from the courtroom prior to their giving evidence. Such an order is routinely made in any trial where the credibility and reliability of witnesses is at issue. In the context of bail, to the extent that a bail hearing involves consideration of anticipated trial evidence and the reasons in the bail decision address that evidence, allowing publication in advance of trial raises concerns about inadvertent tainting of the evidence of trial witnesses.
[48] Even on the limited portion of my reasons on the bail decision that the defence seeks to have exempted from the publication ban, I find that publication raises a real concern that it may inadvertently colour the evidence of trial witnesses. I note that the concern is not just that witnesses will have access to the anticipated accounts of other witnesses. In addition, given the significant media coverage that this case has generated to date, it is reasonable to anticipate that if I were to exempt from the publication ban any portion of my reasons for the bail decision, not only would the substance of those portions of the reasons be disseminated, but there would also be commentary and opinion on the credibility and reliability of any anticipated evidence summarized in the reasons. This would also create a risk of tainting witnesses who are exposed to a preview of either favourable or negative commentary about their anticipated evidence.
[49] I appreciate that counsel for Mr. Zameer has sought to limit the request for partial lifting of the publication ban to information that he describes as “non-controversial”. For example, counsel has tried not to include in the proposed paragraphs that the defence submits should be exempt from the publication ban detailed summaries of anticipated testimony of witnesses, or my assessment of the strength or weakness of the Crown’s case and anticipated defences (the latter out of concern that my judicial opinion on the merits of the case might be given undue weight if available to potential jurors).
[50] In my view, this proposed approach of only lifting the publication ban on “non-controversial” information is not workable, and does not address the concerns I have about the harm likely to be caused if the publication ban is partially lifted.
[51] First, I find that the exercise of assessing what is and is not controversial is less black and white than counsel’s submission suggests. This is a problem of both substance and of practicality.
[52] At the level of substance, the parties take different views of many aspects of the evidence. As a result, it is not black and white what is and is not controversial.
[53] At the level of practicality, the manner in which my reasons are written discusses anticipated evidence interspersed with my assessment of it. I have carefully reviewed the defence proposal for partially lifting the publication ban. I am not satisfied that I am able to partially lift the ban in a manner that leaves comprehensible information for the public, while removing my assessment and opinion about the evidence and the strength or weakness of the case.
[54] Second, we are still very early in this proceeding, and none of the evidence has yet been tested by cross-examination. Experienced counsel and judges know that things which at one point in a proceeding may seem uncontroversial may not stay that way.
[55] In sum, in addition to finding that existing jury selection and jury trial procedures will adequately protect Mr. Zameer’s right to a fair trial, I find that partially lifting the publication ban on the bail proceedings is likely to cause more harm than good to the fairness and integrity of the trial process.
5. Conclusion
[56] As I have outlined above, because of the nature of the charge he is facing, Mr. Zameer bore the onus at his bail hearing to show that his detention in custody pending his trial was not justified. As part of the bail process, I heard extensive evidence, information, and submissions about the anticipated trial evidence, both on behalf of the Crown and on behalf of the defence. I made findings about issues relevant to bail in our law, including the strength or weakness of the Crown’s case and any anticipated defences, whether Mr. Zameer is likely to attend court as required, and whether he poses a risk to public safety if released. I concluded that Mr. Zameer met his onus to show that he should be released from custody pending his trial.
[57] I agree with the submission of Crown counsel that, given the seriousness of the charge that Mr. Zameer is facing, the fact that the court was satisfied after a three-day hearing that he should be released on bail will lead fair-minded members of the public to understand that there is more to this case than the limited information provided by the Chief of Police on the morning after Constable Northrup’s death and the uninformed comments of public figures following Mr. Zameer’s release on bail. Indeed, the extensive media coverage of the hearing on the application to vary the publication ban, and the fact that it is Mr. Zameer who is seeking to have portions of my reasons made public in advance of trial, underlines that there is more to this case.
[58] Fair-minded people will also understand that the place for the evidence of all of the witnesses to be heard and weighed is not in the media before the trial takes place, but during the trial of this matter. During the trial, unlike in the media, all of the witnesses will testify under oath or affirmation, and their evidence will be tested by cross-examination.
[59] I understand and accept that the public would like to know more about the circumstances of this case. I accept that there is a legitimate public interest in the public having more information in order to understand the events that took place. It is not just idle curiosity by members of the public. But the public interest in knowing the circumstances that led to Constable Northrup’s death and that led to the charge against Mr. Zameer must be balanced with the need to protect the integrity of the trial process and trial fairness for all parties. In our system of justice, our experience is that the best way to balance these two concerns is by limiting pre-trial publication of anticipated evidence. When the trial takes place, it will take place in open court. At that time, the trial evidence can be reported on, in the context of the procedural standards applicable to a criminal trial.
[60] Bail is the start of the process, not the end. Ultimately, the factual issues in this case will be decided by a jury – members of this community who will be chosen for their impartiality, and who will take an oath to try the case fairly and based on the evidence they hear at trial. Those jurors will hear the testimony of all of the witnesses. They will hear that evidence tested by cross-examination. It will be for those jurors, not for the media, not for me, not for politicians, to decide the facts. Continuing the publication ban imposed at the bail hearing – the type of ban that is imposed in most bail hearings in this province, and certainly in any high-profile matters which will be tried by jury – protects the integrity of the trial process. I am not satisfied that it is appropriate to lift the s. 517 publication ban.
6. A final comment on judicial accountability in the bail process
[61] Before closing, I want to address one issue that appears to lie behind the criticism by some members of the public of the s. 517 publication ban that applies to my reasons for releasing Mr. Zameer on bail. Some members of the public, including public figures, appear to be under the impression that Mr. Zameer’s bail hearing was heard in secret, and that there is no accountability for a judge’s decision on bail. Neither of those things is true.
[62] Mr. Zameer’s bail hearing was heard in open court. Because of the pandemic, counsel, Mr. Zameer, the witnesses, and I appeared by Zoom videoconference. But a physical courtroom was open in the courthouse showing the Zoom video feed, and members of the public were entitled to attend and hear the evidence and submissions. Members of the media were entitled to attend and hear the evidence and submissions either in the courtroom or on the Zoom hearing, and some members of the media did so.
[63] Although my reasons for releasing Mr. Zameer on bail are subject to a publication ban at present, that ban is not permanent. It continues until the trial is finished (I should underline that the trial itself will, of course, be public). Further, although there is a ban on publication of the evidence, submissions, and my reasons for releasing Mr. Zameer on bail, my written reasons for judgment are available in the public court file at the courthouse. When I gave the decision releasing Mr. Zameer on bail, I made copies of the written reasons available for the media for pick-up in the courtroom and in the court office. A number of members of the media attended and were given a copy of my reasons. In addition, the conditions that I imposed in the order releasing Mr. Zameer on bail are not subject to the publication ban.
[64] Finally, if either the Crown or the defence believes there is some error in my decision to release Mr. Zameer on bail, or in the conditions I imposed on his release, they may request that the Chief Justice of the Court of Appeal direct a review of my decision by the Court of Appeal, pursuant to s. 680 of the Criminal Code.
[65] The application to vary the s. 517 publication ban is dismissed.
[66] I thank counsel for their assistance in the hearing of this matter.
Justice J. Copeland
Released: January 21, 2022
COURT FILE NO.: CR-21-10000231-00BR
DATE: 20220121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
UMAR ZAMEER
REASONS FOR DECISION ON
APPLICATION TO VARY PUBLICATION BAN
Justice J. Copeland
Released: January 21, 2022
[^1]: I refer only to the Chief of Police’s comments to the media on the morning after the arrest, which are included in Mr. Zameer’s motion record. I note that the Chief of Police’s comment on Twitter on September 22, 2021 after Mr. Zameer was released on bail was measured and unobjectionable, and does not raise the same concerns as the comments by politicians on that date.
[^2]: I focus here on challenge for cause on the basis of pre-trial publicity because of the subject-matter of this application. However, I note that this is a case where Parks challenge for cause may also be appropriate if sought by the defence.