Court File and Parties

Court File No.: CR-24-9000024-00MO Date: 2024-07-24 Superior Court of Justice - Ontario

Re: The Attorney General of Canada on behalf of the United States of America v. Ashley Ginette Keenan

Before: Justice S. Nakatsuru

Counsel: Milica Potrebic and Heather Graham, for the Crown Ashley Keenan, Self-represented Kevin Gray, as amicus curiae

Heard: July 24, 2024

Endorsement

[1] The United States of America wants Ashley Keenan back to face a murder charge. I have been appointed a case management judge in her extradition case. An issue with constitutional dimensions has come up. It is about whether the media should be allowed to attend and report on case management appearances.

[2] On July 5, 2024, a case management hearing was conducted with the parties, including Ms. Keenan, who is self-represented. The hearing was conducted by way of Zoom. At the commencement of the hearing, a member of the media, wished to attend. After hearing submissions, I allowed the member of the media to attend based upon inter alia the open court principle. The hearing was conducted. Then the case was remanded to July 24, 2024, to be spoken to. It was anticipated the progress of several matters related to Ms. Keenan’s extradition hearing would be canvassed.

[3] On today’s date, the applicant, the Attorney General of Canada, brings a motion for directions. The applicant submits that the July 5th hearing should have been closed to the public and that a publication ban should have been ordered. Similarly, this and future case management hearings should be subject to the same restrictions. The applicant relies upon Rules 28.05(2), 28.05(3), 29.06(2), and 29.06(3)(e) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). Rules 28.05(2) and 28.05(3) stipulate that judicial pretrial conferences shall be closed to the public and where an accused is self-represented, though a record is to be made of the pretrial conference, it cannot be published, broadcast, or transmitted unless by order of the pretrial conference judge. Rule 29.06(2) makes these Rules applicable to a case supervision conference conducted by a case supervision judge appointed under that Rule.

[4] I do not agree with the applicant’s position.

[5] In extradition cases, absent specific rules to the contrary contained in the Extradition Act, the provisions of the Criminal Code and other rules governing criminal procedure apply: Extradition Act, SC 1999, c 18, ss. 19, 20 and 24. As a result, the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) apply to these proceedings, subject to whatever modifications may be necessary in the circumstances.

[6] In resolving this issue, while I share responsibility for failing to fully delineate my role in this proceeding on the earlier date, care must be taken to define it accurately. I am not a judicial pretrial judge. Nor am I a case supervision judge appointed under Rule 29. I am a case management judge appointed under s. 555.1 of the Criminal Code. I exercise all the powers and jurisdiction of such a judge under Part XVIII.1 of the Criminal Code including the adjudication of any matter that can be decided before the hearing of evidence on its merits. Commonly, in criminal trials, this may involve issues relating to disclosure, admissibility of evidence, and the Charter of Rights and Freedoms.

[7] A case management judge is not by definition a case supervision judge, the latter having specific powers and duties under Rule 29.06(3) regarding the efficient and orderly conduct of the trial proceeding. Rule 29.06(3)(m) makes this clear by authorizing a case supervision judge to recommend the appointment of a case management judge under Rule 29(A) or Rule 29(B).

[8] Rules 29(A) and 29(B) under the Criminal Proceedings Rules relate to the appointment of a case management judge and are the only reference in the Rules to a case management judge. Importantly, nowhere in the Rules, makes the in camera or publication ban provisions governing judicial pretrials or case supervision conferences, applicable to proceedings before a case management judge. This makes sense given the nature of the proceedings conducted by a case management judge, which are in essence trial court hearings that are conducted before the presentation of trial evidence. Such matters are generally dealt with in public and are subject to only statutory [^1] or common law publication bans: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.

[9] The applicant relies upon public policy interests protecting discussions that normally are held during judicial pretrial conferences, especially when the discussions involve self-represented litigants. Such discussions should remain confidential for reasons of settlement privilege and its without prejudice basis. However, this does not apply to the case management conferences such as that which was conducted on July 5th. While issues of the management of the extradition hearing were discussed on July 5th, nothing about potential resolution was. Thus, reliance on cases like R. v. Delchev, 2015 ONCA 381 at paras. 22, 24-27 is misplaced. Indeed, as the case management judge who may be conducting a bail hearing for Ms. Keenan, a motion for production, and perhaps the extradition hearing itself, such discussions would have been inappropriate.

[10] While some of the duties of a case supervision judge under Rule 29.06(3) also track the powers set out in ss. 551.3(1), ss. 551.3(1) explicitly states that a case management judge “as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial [emphasis added].” So, on July 5th, I exercised what are properly characterized as trial management powers of a trial judge; for instance, ensuring Ms. Keenan understood the procedure to be followed, her right to be represented by counsel, and confirming her desire to represent herself. The only matters of substance conducted that day - powers properly exercised by a motions judge - were, after entertaining submissions, removing counsel of record and appointing amicus curiae.

[11] In these circumstances, I find nothing displaces the open court principle. Under the open court principle, every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content. Court openness supports an administration of justice that is impartial, fair and in accordance with the rule of law. It also helps the public gain a better understanding of the justice system and its participants, which can only enhance public confidence in their integrity. Because of the fundamental importance of court openness, confidentiality orders limiting it can be made by the courts only in rare circumstances. These exceptions are predicated on the idea that openness cannot prevail if the ends of justice, or the interests that openness is meant to protect, would be better served in some other way. See for a recent example where this principle was reaffirmed by the Supreme Court of Canada, Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21.

[12] More particularly regarding the media’s right to report on case management hearings, as Deschamps J. stated in Canadian Broadcasting Corp v Canada (Attorney General), 2011 SCC 2 at paras. 1-2, this right is central to a free and democratic society:

The open court principle is of crucial importance in a democratic society. It ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them. Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.

The right to freedom of expression is just as fundamental in our society as the open court principle. It fosters democratic discourse, truth finding and self-fulfilment. Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle.

[13] In conclusion, nothing further needs to be done about the July 5th hearing. I am led to understand that the media representative does not intend to report anything about it. He is only interested in covering the extradition hearing. Subject to any further court order, that is something he, or anyone else, is entitled to do.

Released: July 24, 2024. Justice S. Nakatsuru

Footnotes

[^1]: It should be noted that in a criminal trial, s. 648 of the Criminal Code bans publications of motions before jury selection: R. v. Sandham (2008), 248 C.C.C. (3d) 543 (Ont. S.C.J.); R. v. Valentine (2009), 251 C.C.C. (3D) 120 (Ont. S.C.J.).