COURT FILE NO.: CR-21-024-0000

DATE: June 22, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARSHALL ROSS

Respondent

Monica Heine, for the Applicant

Peter Zaduk, for the Respondent

REASONS FOR DECISION

ABRAMS, J

Introduction

[1] The Crown brings this Application for an enhanced ban on publication pursuant to s. 486.31 of the Criminal Code of Canada, R.S.C., 1985, c. C-46, to protect the identity of a witness, “Joe”, a federal inmate.

[2] “Joe” is a pseudonym used to protect the witness’s identity.

Brief Background

[3] In 2011, the Respondent pleaded guilty to the first-degree murder of his godfather, Glen Davis (“Davis”), of N.M. Davis Corp.

[4] There is no quarrel that Davis was the victim of a contract murder, ordered by the Respondent.

[5] At the time of Davis’s murder, the Respondent owed N. M. Davis Corp. over two million dollars. The Respondent believed that by killing Davis, his debt would be eliminated.

[6] At the time of the current allegations, the Respondent was serving a life sentence at Bath Institution.

[7] The Crown alleges that the Respondent attempted to solicit “Joe’s” assistance to, once again, engage the services of a hit man to murder four individuals, specifically: Mary Alice Davis (Davis’s widow), Peter Quinn, Thomas Whealy, and Keith Jones (business associates of Davis).

[8] The Crown asks the Court to order safeguards that would prevent the Respondent from publicly “outing” the identity of “Joe”.

[9] Earlier in the proceeding, the Crown brought Applications in both the Ontario Court of Justice and in this Court, in which it sought orders: (1) that witnesses and counsel use a pseudonym while litigating (pursuant to s.486.31); (2) that publication be limited in relation to witness identifiers (pursuant to s. 486.5); and (3) that public access to certain identifying recordings/exhibits be limited. The Defence consented to the earlier orders.

[10] Thereafter, by correspondence dated May 13 and 17, 2022, the Defence informed the Crown that it wished to investigate “Joe’s” motives for becoming a Crown witness against the Respondent and that to do so, it would be necessary to interview various inmate witnesses in Bath Institution who knew “Joe”. Further, the Defence asserts that “Joe’s” identity as a witness in this proceeding would have to be revealed in order to explore the issue of his motivation.

[11] In support of its position, the Defence contends that nothing in the Criminal Code, the law or the orders made at the preliminary hearing prevents the Defence from making these inquiries.

[12] Within this context, the Crown was invited to bring an Application in the event it took a different position.

Issues

[13] The Respondent seeks to have the Court interpret “in the course of the proceedings” as limited to times when Court is, in fact, in session, not outside of court. The Applicant contends that this is not the spirit nor the intent of the legislation or the previous orders.

[14] What is the interpretation of s. 468.31? Is it as narrow as the Defence argues, or broader, as the Crown asserts?

[15] Alternatively, does the Court’s common law power provide broader authority to prohibit the connection of “Joe” to the proceedings as a witness?

Law

Section 468.31

[16] Cases pertaining to the interpretation of s. 468.31 are limited. Its application often appears to focus on restricting the disclosure of a witness’s identity in court. For example, s. 486.31 has been used to make the following orders:

• Allowing the use of a pseudonym while testifying: R. v. Wentworth, 2022 ONSC 1660.

• Restricting parties from stating any information that would identify the witness during oral or written submissions or questioning: Wentworth.

[17] Courts have also made orders that are less specific to the court context:

• Restricting anyone from asking questions to other witnesses that would elicit personal identifying information of the witness: Wentworth.

• Generally restricting the disclosure of the witness’s identity and likeness: R. v. Jennings, 2018 ABQB 103.

• Restricting the disclosure of the witness’s name to defence counsel: R. v. Shivak, 2020 ABQB 639, at para. 75.

• Generally restricting the disclosure of any information in the course of the proceedings that could identify the witnesses who are anticipated to testify at the preliminary inquiry: R. v. Seien, 2021 ABPC 115.

[18] The court in Jennings noted the similarities between the principles in s. 486.31(3) and R. v. Mentuck, 2001 SCC 76 , [2001] 3 S.C.R. 442 and suggested that s. 486.31 codified the common law principles.

[19] The court in Shivak noted that three questions are to be asked in the analysis: (1) Does the proposed order promote a compelling aspect of the administration of justice? (2) Is the order “needed”? Are there effective alternatives to making the order? (3) Is the order in the interest of the proper administration of justice? Do the salutary effects of the proposed order outweigh its deleterious effects?

Common Law

[20] Additionally, the Court has the ability to protect witnesses through its common law power, if no such power is available through statute: R. v. Sipes, 2011 BCSC 1329. Although most cases involving inmate witnesses with concerns for their safety rely on a statutory provision from the Criminal Code (see R. v. McArthur (1984), 13 C.C.C. 220, (Ont. H.C.); Sipes; R. v. Malik, 2004 BCSC 520), the common law power was invoked in R. v. Mousseau, 2002 ABQB 210, 350 A.R. 90.

[21] To apply the common law power, the court must meet the test established Mentuck /Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and most recently Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361:

(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.

Analysis and Conclusions

[22] In my view, when taken all together, the Court must enquire whether: (1) there is a serious risk to the witness’s safety; (2) the ban is necessary to prevent this risk: and (3) the salutary effects of the ban outweigh the deleterious effects on the accused’s rights to a fair trial and the efficacy of the administration of justice.

[23] The competing positions are not mutually exclusive. Rather, they are capable of mutually coexisting. I say this for the following reasons.

[24] I am inclined to agree with the Defence that the interpretation of s. 468.31 is narrower than the Crown proposes. Exactly how narrow is a question that is unnecessary to answer to resolve the issue before the Court.

[25] The inherent jurisdiction of a Superior Court is derived from the very nature of the Court as a Superior Court. This power is used to maintain the Court’s authority and prevent its processes from being obstructed or abused: Re Regina and Unnamed Person (1985), 1985 CanLII 3501 (ON CA), 22 C.C.C. (3d) 284 (Ont. C.A.) at p. 286.

[26] While I am inclined to agree with the Defence that the interpretation of s. 468.31 is narrower than what the Crown proposes, identifying “Joe” as a witness in this proceeding to other federal inmates in order to explore the issue of his motivation would effectively “gut” the earlier orders made in the Ontario Court of Justice and in this Court. Put simply, allowing “Joe” to be “outed” in the manner proposed by the Defence would be contrary to the Court’s inherent jurisdiction to protect its own process.

[27] The risk to the witness must be substantial, rather than speculative, and must be well grounded in the evidence: Malik, at para. 5.

[28] Detective Constable D. Asselstine (“D/C Asselstine”) filed a sworn affidavit in support of the Application. Further, she took the stand to give evidence in chief and was subjected to cross-examination.

[29] For many years, D/C Asselstine was a member of the Joint Forces Penitentiary Squad (“Pen Squad”), which is comprised of officers from the RCMP, the OPP and the Kingston Police. For the reasons set out in her affidavit and later confirmed during her in-court testimony, she is of the view that “Joe’s” life will be placed in jeopardy if a private investigator identifies him as a witness in this proceeding, because it will effectively label him as a “rat”. I accept her evidence unreservedly.

[30] In my view, the evidence establishes that inmate witnesses are perceived as “rats” and that if “Joe’s” identity as a cooperating Crown witness becomes known within the federal institutional system, he faces a real and substantial risk of harm: Sipes, at paras. 149-150.

[31] The Defence argues that it has been more than two years since the Respondent was charged and there is no indication of any threat or safety concern for “Joe”, despite his identity being known by the Respondent for most of that time.

[32] Granted, “Joe’s” identity has been known to the Respondent; however, “Joe’s” current location within the federal institutional system is unknown. “Joe” has been secured in an undisclosed location.

[33] In my view, if “Joe’s” identity as a witness against the Respondent in this proceeding is disclosed to other inmates during the course of interviews, as the Defence intends, there is a greater likelihood of “Joe’s” location being uncovered.

[34] One must consider that there is a finite number of inmates within the federal intuitional system who are housed in relatively few penitentiaries. With every inmate who is told that “Joe” is a cooperating witness for the Crown, the chances of said inmates identifying his whereabouts increase. Conversely, if no inmate other than the Respondent knows that “Joe” is expected to testify for the Crown, it is less likely that his whereabouts will be identified.

[35] Thus, the evidence establishes that there is a serious risk to “Joe’s” safety, and that the proposed ban against identifying him as a witness in this proceeding, during inmate interviews, is necessary to prevent this risk. However, do the salutary effects of the ban outweigh the deleterious effects on the Respondent’s rights to a fair trial and the efficacy of the administration of justice?

[36] The Defence submits that it is completely legitimate for the Defence to be able to investigate Joe’s motivations, whether they are to avoid the consequences of debt or something else. I agree.

[37] The witnesses who might know about “Joe’s motivations” are of course inmates. Again, I agree.

[38] It will be impossible to interview meaningfully such witnesses without revealing to them “Joe’s” decision to become both a police agent and witness against the Respondent. I do not see it that way.

[39] First, I reject the argument that “Joe” became a police agent in that the police directed him to gather evidence against the Respondent. That is not the evidence. To the contrary, the police attempted to dissuade “Joe” from doing what he did.

[40] Second, I see no utility in setting up questions to potential inmate witnesses with the preamble: “Inmate (insert “Joe’s” real name) is expected to testify as a Crown witness against inmate Ross. What can you tell me about his gambling debts or other nefarious conduct during your time together at Collins Bay Institution?” Query, how does “outing” “Joe” as a witness in this proceeding make questions about his gambling debts more probative of his motivation to testify against the Respondent? Quite simply, it does not.

[41] That said, it is completely legitimate for the Defence to be able to investigate “Joe’s” motivations, using his real name, of course, and in doing so “dig up any dirt” to show that his motivations to testify are something other than what he said at the preliminary inquiry. It is forbidden, however, for the Defence to disclose to potential inmate witnesses, or anyone else for that matter, either directly or indirectly through a private investigator or some other third party, that “Joe” is expected to be a witness in this proceeding. Nor shall the Defence, a private investigator or any other third party retained by the Defence, disclose to potential inmate witnesses who their client is. My concern is that the mere mention of the Respondent’s name in the context of using “Joe’s” real name could have the unintended consequence of connecting “Joe” to this proceeding.

[42] In the result, the Crown’s Application is granted in part.

The Honourable Mr. Justice B. W. Abrams

Released: June 22, 2022