Ontario Superior Court of Justice

Court File No.: CR 2023-10
Date: February 18, 2025

BETWEEN:

His Majesty the King, Respondent
– and –
Alain Bellefeuille, Applicant
– and –
CBC News, CTV News, Postmedia Network, and The Toronto Star, Intervenors
– and –
The Special Investigations Unit, Intervenor

Appearances:
Louise Tansey, for the Respondent
Biago Del Greco, for the Applicant
Ian MacKinnon, for the Intervenors
Ananthan Sinnadurai, for the Intervenor

Heard: February 7, 2025

Justice M. Flaherty

Reasons for Decision

Introduction

[1] This application involves a request for a publication ban.

[2] The applicant, Mr. Bellefeuille, is charged with first degree murder and attempted murder, following an exchange of gunfire with three Ontario Provincial Police officers. One officer was killed, two other officers were wounded.

[3] Mr. Bellefeuille seeks a temporary publication ban over information related to a Special Investigation Unit (“SIU”) investigation. He asks that the publication ban remain in place until the jury in his case has been empaneled or until otherwise directed by the trial judge. Mr. Bellefeuille will be tried by a judge and jury, beginning on March 24, 2025.

[4] The Crown opposed the request for a publication ban. CBC News, CTV News, Postmedia Network, and the Toronto Star (the “Media Coalition”) also opposed the application. The SIU was granted leave to intervene. It provided information about the context for the publication of the SIU report, but took no position on the outcome of the application.

[5] For the reasons that follow, the application is dismissed. Mr. Bellefeuille has not established that court openness poses a serious risk to his right to a fair and impartial trial in this case.

Overview

[6] The SIU investigated the incident involving Mr. Bellefeuille. The investigation was triggered under s. 15(1)(3) of the Special Investigations Unit Act, 2019, S.O. 2019, c. 1, because one of the officers discharged a firearm during the altercation.

[7] Following the investigation, the Director of the SIU found no basis to lay criminal charges against the officer.

[8] Section 34(1) of the SIU Act states that, where the investigation does not lead to charges against the officer, the Director “shall” publish a report on the SIU website. Among other things, this report shall include a detailed narrative of the events leading to the investigation, a summary of the evidence considered, and the reasons for not laying charges against the official in question.

[9] The SIU has published the following documents regarding this investigation:

a. A news release dated May 16, 2023, indicating that an investigation would take place.
b. A report, dated September 15, 2023.
c. A news release, dated September 15, 2023, indicating the investigation has concluded and providing a link to the full report.

[10] All SIU documents were published in English and French and have been accessible on the SIU website since 2023.

[11] The first news release includes the name of the officer who was killed. The report and the second news release are anonymized and do not refer to Mr. Bellefeuille, the officers, or any witnesses by name. This is in keeping with s. 34(3) of the SIU Act, which requires that certain information be excluded from the report.

[12] CBC News published a story on September 15, 2023, identifying Mr. Bellefeuille and discussing the SIU investigation. The court was not made aware of any other reporting about the SIU investigation or its findings.

Order Requested

[13] Mr. Bellefeuille seeks an order:

a. Preventing the SIU from publishing the findings of its investigation and directing that this information be removed from the SIU website; and
b. Preventing media reporting on the contents and findings of the SIU report.

[14] At the hearing, counsel for Mr. Bellefeuille indicated that he does not seek to have existing media reports removed or deleted. The requested order is limited to any future media coverage of the SIU report.

Analysis

[15] The application engages the open court principle as well as the right to freedom of expression under s. 2(b) of the Charter, both of which are hallmarks of a democratic society. Access to the courts is necessary to maintain the independence and impartiality of courts and it is integral to legitimacy of the judicial process and the public confidence in the justice system: R. v. Canadian Broadcasting Corp., 2010 ONCA 726, paras. 22 and 23. Moreover, the Charter right to freedom of expression concerns both the media’s right to broadcast information as well as the public’s right to receive information from the media about public institutions and the courts: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), para. 23 and R. v. Canadian Broadcasting Corp., 2010 ONCA 726, paras. 22-24.

[16] In seeking a publication ban, Mr. Bellefeuille has the onus of displacing the presumption of court openness. To do so, he must establish that:

a. court openness poses a serious risk to an important public interest;
b. the publication ban he seeks is necessary to prevent the identified risk because alternative measures to address the risk are not available; and
c. as a matter of proportionality, the benefits of the temporary order outweigh the negative impacts of such an order on the open court principle and freedom of expression.

[17] See Sherman Estate v. Donovan, 2021 SCC 25, para. 38 (“Sherman”).

[18] The applicant submits that a publication ban is necessary for Mr. Bellefeuille to be fairly tried by an impartial jury. Members or prospective members of the jury may search for information about him and find the SIU’s report or some reference to it. Mr. Bellefeuille submits that this poses a serious risk because it could influence the jury’s assessment of the case. According to the applicant, the SIU’s findings carry an air of authority and jurors could (consciously or subconsciously) be disinclined to make factual findings that are inconsistent with the SIU report.

[19] Importantly, the SIU report concerns the conduct of the officer, the legality of his actions, as well as his potential culpability. There is no dispute that these issues are different from those in Mr. Bellefeuille’s criminal proceedings.

[20] However, counsel for Mr. Bellefeuille submits that there are potentially overlapping factual issues. Specifically, the SIU report summarizes information based on footage from the body camera worn by the officers. In this summary, the SIU report indicates that the officers announced themselves as police officers before entering Mr. Bellefeuille’s home. Counsel submits that whether or not the officers identified themselves before entering the home will be a key issue at Mr. Bellefeuille’s criminal trial.

[21] Protecting Mr. Bellefeuille’s right to a fair trial is an important public interest. The more difficult question is whether publicly available information about the SIU’s report poses a serious risk to that right. Publication bans and other orders that infringe freedom of expression or the open court principle must not be made to protect against a risk that is remote or speculative, even if the risk relates to a fundamentally important right such as the right to a fair trial: Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835 at pp. 879 and 880. The risk must be real and it must be grounded in the evidence: R. v. Mentuck, 2001 SCC 76, para. 34.

[22] Public scrutiny of the court’s activities enhances public confidence in the administration of justice, and it is therefore critical that it not be impeded without a real and serious risk to the trial fairness rights of Mr. Bellefeuille. In this case, there is no serious risk to Mr. Bellefeuille’s right to a fair and impartial trial.

[23] The identified risk is speculative. It is based on the supposition that a juror or prospective juror will locate information about an SIU report, review the report’s summary of the body camera footage, and be influenced by that summary in making conclusions at Mr. Bellefeuille’s criminal trial. As counsel for the applicant noted, there is relatively extensive body camera footage, which is expected to be introduced at trial. It seems highly speculative to suggest that, rather than rely on the footage they will see for themselves, members of the jury will be influenced by how that footage was summarized in an SIU report in 2023.

[24] Counsel for Mr. Bellefeuille notes that the Criminal Code prevents the publication of materials from bail and preliminary hearings before trial. Based on this, he argues that the risk to a fair trial can be assumed from the pre-trial publication of certain materials, including the SIU report.

[25] A statutory publication ban does not apply to the SIU report. Nor do they create a presumption of prejudice in this case. To establish that a publication ban is appropriate, Mr. Bellefeuille must meet the test set out in Sherman, supra. This requires him to show a serious risk to his right to a fair and impartial trial. For the reasons provided, I find that he has not done so.

[26] In any event, to the extent there is any risk to the fairness of the trial, this can be mitigated by existing legal processes, which are designed to safeguard the rights of an accused to have a fair and impartial trial by jury. The challenge for cause process will identify any prospective juror who has already read about the SIU’s report and its summary of camera footage. Any risk that a prospective juror would be influenced by this information can be addressed during the jury selection process.

[27] Moreover, instructions to the sworn jury will make clear that their findings must be based only on the evidence presented in the courtroom, during the trial. Jury members will be instructed not to do their own research, that doing so could result in a mistrial, and that they are to report a fellow juror who engages in such practices. In my view, this is a sufficient safeguard to protect the integrity and fairness of Mr. Bellefeuille’s trial.

[28] The applicant submits that faith in the jury is not unequivocal and, therefore, does not fully mitigate the risks to a fair trial. Not only is this argument entirely speculative, but it runs contrary to decades of binding jurisprudence from the Court of Appeal and the Supreme Court of Canada to the effect that trial judges must trust jurors to honour their oath and to follow the instructions they are given: R. v. Bent, 2025 ONSC 640, para. 19. A speculative risk that jurors could access and consider the SIU report is not sufficient to displace the openness presumption.

[29] In sum, even had Mr. Bellefeuille established a serious risk to the right to a fair and impartial trial, I would not have exercised my discretion to order a publication ban. I am not convinced that the order Mr. Bellefeuille seeks is necessary to prevent any serious risk to a fair and impartial trial. Alternative measures such as for cause jury selection and appropriate instructions to the jury would address any such risk.

[30] Finally, the request for a publication ban would also fail at the third prong of the Sherman test. Any benefits to the requested publication ban are significantly outweighed by the negative impact on the open court principle and freedom of expression. This conclusion is reinforced by the statutory provisions requiring the publication of an SIU report in circumstances such as these, where no charges are laid. These reporting requirements are premised on the need for transparency and meaningful public scrutiny. In considering the open court principle and freedom of expression, weight must also be given to the importance of meaningful scrutiny not just of the courts, but of other public institutions such as the SIU.

Disposition

[31] The application is dismissed. The request for a publication ban fails on all three prongs of the Sherman test. In this case, court openness does not pose a serious risk to Mr. Bellefeuille’s right to a fair and impartial trial. In any event, a publication ban is not necessary because alternative measures are available to address any risk. Finally, the benefits of a temporary publication ban are significantly outweighed by the negative impacts on the open court principle and freedom of expression. In this case, these principles arise not only in relation to the courts, but also in the context of a need for transparency and meaningful public scrutiny of the SIU process.

[32] There was some discussion about the court’s jurisdiction and whether the obligation to ensure a fair and impartial trial means the court has jurisdiction to ban the publication of an SIU report. Given my conclusion that a publication ban is not warranted in the circumstances of this case, it is not necessary to determine this issue.

Justice M. Flaherty
Released: February 18, 2025