R .v. Garcha, 2024 ONSC 1057

COURT FILE NO.: CR-17-495

DATE: 2024 02 20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

BALWINDER GARCHA

M. Thomaidis, For the Crown

HEARD ex parte: February 15, 2024

RULING RE RESCINDING PUBLICATION BAN PURSUANT TO S. 486.51 OF THE CRIMINAL CODE

DENNISON J.

Overview

1This is an application pursuant to s. 486.51 of the Criminal Code to revoke a publication ban brought by the Crown on behalf of the complainant.

Background facts

2At the preliminary inquiry on March 27, 2017, a publication ban was issued pursuant to s. 539 of the Criminal Code. This prohibited publication of the contents of the preliminary inquiry until the trial ended.

3The provincial court also issued a publication ban pursuant to s. 486.4 of the Criminal Code, which prevented the publication of any information that would identify the complainant.

4At the first trial in 2019, the Crown contemplated bringing an application to lift the stated 486.4 publication ban, but that application was not brought.

5During the first trial, the trial judge made a publication ban in relation to a voir dire in which evidentiary issues were discussed as a member of the media was present. This was in essence a publication ban pursuant to s. 648 of the Criminal Code, which precludes publication of any information that was not heard by the jury until the jury retires to consider its verdict.

6The accused was convicted and appealed. The appeal was successful. At the appeal, the Crown sought to revoke the s. 486.4 publication ban. The court declined to deal with that issue, stating that the s. 486.4 publication ban may overlap with “anything dealing with” the voir dire at the first trial and there was not a request to lift that publication ban. The Court of Appeal made no reference to s. 648 of the Criminal Code which states that once the jury has retired to consider its verdict the publication ban is no longer in effect.

7At the second trial, the trial judge stated that any bans from the first trial would continue to apply so the s. 486.4 publication ban and the s. 648 publication ban remained in effect. The second trial resulted in a mistrial before the court could address rescinding the s. 486.4 publication ban.

8The Crown now seeks to revoke the publication ban pursuant to s. 486.51 of the Criminal Code.

Analysis

9Parliament amended s. 486.51 of the Criminal Code on October 26, 2023. Parliament explained that the purpose of the publication ban was to allow victims and witnesses to participate in the criminal justice system without suffering negative consequences associated with having their identities made public. Parliament hoped that publication bans would encourage victims to report offences.

10The recent amendments were intended to respect the autonomy of complainants and recognize that some complainants do not wish to have their identity protected and wish to speak out about their experience. The amendments require the Crown to take reasonable steps to consult with complainants before the Crown applies for a publication ban. The amendments also clarify the process by which individuals could apply to have the ban lifted.

11Section 486.51(1) requires the Crown to bring an application to revoke the order when requested by the person who is subject to the 486.4 order.

12Section 486.51(2) gives the court the express jurisdiction to revoke an order without holding a hearing unless the court is of the opinion that to do so may affect the privacy interest of any person who is the subject of any order prohibiting publication.

13Subsection (5) and (6) do not require that the accused have notice of the application, nor does the accused have a right to make submissions.

14I am of the view that it is appropriate to grant the request to revoke the publication ban issued pursuant to s. 486.4 of the Criminal Code for the following reasons.

15First, the purpose of the s. 486.4 publication ban is to protect the privacy interest of the complainant or any other person who is named in the order. A s. 486.4 publication ban is not intended to protect the accused. The amendments to s. 486.51 recognize that some complainants wish to speak about their experiences, as does the complainant in this case.

16Second, the Court of Appeal did not say that the s. 486.4 publication ban could not be lifted. They simply declined to deal with it as there was no application to lift the trial judge’s other publication ban. I do not share the Court of Appeal’s concern that the s. 486.4 publication ban may overlap with the publication ban the trial judge issued with respect to the voir dire. A reading of the transcript of that trial makes it clear that the publication ban applied to the voir dire where the parties were discussing evidentiary issues. As the trial judge stated,

…none of what has been said so far by the Crown or anything else for the balance of this voir dire from either the Crown or the defence are to be published in any way until after the trial has been completed.

Although the trial judge did not specifically reference s. 648, that is clearly the intent of the publication ban. Once the jury retired at first trial, the s. 648 publication ban ended. Assuming the second trial judge made the same order, the publication ban ended when the mistrial was declared.

17Third, the accused in this case was put on notice that the complainant sought to revoke the s. 486.4 publication ban, even though notice to the accused to revoke a s. 486.4 order is not required pursuant to s. 486.51(5) of the Code. The accused was also given time to bring their own application to seek a publication ban should they have concerns that the matter should be subject to a publication ban in light of the upcoming trial. They did not do so.

18Fourth, it would be speculative for the court to assume that if a s. 486.4 publication ban is lifted that i) there would actually be publicity and ii) that it would result in an unfair trial. If there is a legitimate concern that the jury would not be impartial based on the publicity in the case, an accused may bring an application to challenge the proposed jurors regarding the publicity or even a change in venue: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721.

19For the above reasons, I am satisfied that the s. 486.4 publication should be revoked.

Dennison J.