Court File and Parties

COURT FILE NO.: CV-22-00685291-0000 DATE: 2022-09-19 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Zachary Simmonds, Aaron Simmonds, Norwill Simmonds, and Hollace Simmonds, Plaintiffs -and- Cst. Grayson Cappus, Cst. Nathan Vanderheyden, Detective Cst. James Cheong, Police Chief Mark Mitchell, His Majesty the King In Right Of Ontario, and John Doe OPP Members #1, #2 and #3, defendants

BEFORE: Robert Centa J.

COUNSEL: Ewa Krajewska, for the plaintiffs Michael Saad, for the Attorney General of Ontario, non-party moving party Jennifer Pagliaro, for the intervener Toronto Star Newspapers Limited and Jennifer Pagliaro

HEARD: September 15, 2022

Endorsement

[1] The Attorney General of Ontario brings this motion to seal the court file in this matter. The plaintiffs consent to the court file being sealed but seek additional terms in the order. The Toronto Star Newspaper Limited and its reporter, Jennifer Pagliaro, oppose the request.

[2] For the reasons that follow, I order that only one document in the court file be sealed at this time.

[3] On September 8, 2022, the plaintiffs issued a statement claim alleging that on February 18, 2020, Zachary and Aaron Simmonds were wrongfully stopped, unlawfully arrested, and wrongfully charged with the second degree murder of Alexander Tobin. This statement of claim has been filed. Zachary and Aaron were incarcerated for 17 days and then released on restrictive bails. At some point, the Crown provided initial disclosure to the counsel for Zachary and Aaron. On April 4, 2020, the Crown withdrew all charges against Zachary and Aaron.

[4] In May 2022, a new accused was arrested and charged with the murder of Alexander Tobin. This prosecution remains in an early stage.

[5] The plaintiffs wish to serve and file and amended statement of claim. The amended statement of claim draws heavily on the Stinchcombe disclosure that the Crown provided to Zachary and Aaron. The Stinchcombe disclosure referred to in the amended statement of claim is subject to an express or implied undertaking that prevents Zachary and Aaron from using it for any purpose other than their criminal matter, absent the Attorney General's consent.

[6] The Attorney General has reviewed the amended statement of claim and is only prepared to consent to the use of the Stinchcombe disclosure in the amended statement of claim if the pleading is sealed. The Attorney General states:

The criminal disclosure referred to in the Simmonds Family's Statement of Claim is part of the criminal disclosure in the ongoing homicide prosecution. It includes the contents of statements of six civilian witnesses including several eyewitnesses, the three defendant officers

[7] The Attorney General is of the view that a sealing order is necessary to protect the integrity of the ongoing criminal proceeding. The Attorney General proposes that a sealing order be placed on the entire court file and any document placed within it be treated as confidential.

[8] Ms. Pagliaro and the Toronto Star submit that the request for a sealing order is overly broad and does not pay sufficient regard to the open courts principle or freedom of expression, as protected by s. 2(b) of the Canadian Charter of Rights and Freedoms: Sherman Estate v. Donovan, 2021 SCC 25; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41.

[9] I agree. At the moment, I see no reason to seal the entire file. I accept the Attorney General’s submission that the integrity of the ongoing criminal process should be protected. However, counsel for the Attorney General confirmed at the hearing that there was nothing in the original statement of claim that jeopardized the integrity of the criminal proceeding. In such circumstances, sealing the entire file does not adequately respect the open court principle or freedom of expression.

[10] I order that the plaintiffs may serve and provide the unredacted amended statement of claim to the court clerk. The unredacted amended statement of claim shall be treated as confidential, sealed, and will not form part of the public record pursuant to s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. It shall be deposited for safekeeping with the Registrar and shall not be inspected by any person without leave pursuant to rule 30.11, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[11] A redacted copy of the amended statement of claim in a form acceptable to the Attorney General and the original statement of claim shall be contained in the public record and may be inspected.

[12] No other material is to be placed in the court file, by any party, until the Attorney General has had an opportunity to review that material and to bring a similar motion, on notice to the Toronto Star and other media outlets, if it deems necessary.

[13] The plaintiff is to bring its Wagg motion to determine whether public interest immunity applies to the documents the plaintiffs received as part of the Stinchcombe disclosure as soon as possible.

[14] If it would be of assistance to the parties and the Attorney General, they may arrange a case conference through my judicial assistant to discuss next steps. The Toronto Star may attend such a case conference if one is requested.

[15] There will be no costs of this motion. Counsel may send a draft order to my judicial assistant for my review and signature.

[16] I thank both counsel and Ms. Pagliaro for their helpful assistance.

Robert Centa J.

Date: September 19, 2022