R. v. Squires, 2011 ONCJ 438

COURT FILE NO.: 998 11 01290 DATE: 07-09-2011 Citation: R. v. Squires , 2011 ONCJ 438 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) Ms B. Green ) ) ) - and - ) ) ) Metroland Media Group Ltd, c.o.b. as Oshawa This Week Adam Squires Christopher Dwyer Channelle Motschenbacher ) ) ) Mr. R. Gilliland Mr. A. Richter Mr. D. Embry Mr. S.

Proudlove ) ) ) ) ) HEARD: August 2, 2011 De Filippis, J [ 1 ] On 2 August 2011, I issued the following Order: “There is a publication ban in this matter until the trial of the two co-accused, Chanelle Motschenbacher and Chris Dwyer, is completed or a court of competent jurisdiction orders otherwise. The ban applies to all evidence and submissions heard at this guilty plea and sentence hearing as well as evidence and submissions heard at the applications for a publication ban.

It also applies to any information that would identity Chantal Wallage and Anthony Hunt, both of whom are potential witnesses at the trial of the co-accused. The publication ban does not apply to these reasons for sentence, except for any information that would identify the three co-accused Chanelle Motschenbacher and Chris Dwyer and Santos Pocasangre.” These are the reasons for this

Order. [2] Adam Squires was charged with the second degree murder of Derrick Brooks, the aggravated assault of Trevor Brown and acharge of robbery. There are three co-defendants: Christopher Dwyer faces the same charges as Mr. Squires. Chanelle Motschenbacheris charged with being an accessory after the fact. There is a warrant outstanding for the arrest of Santos Pocasangre. [3] Mr. Squires pled guilty before me to the charge of manslaughter and was sentenced to nine years in jail (see written reasons forsentence dated 18 July 2011). The sentence reflects the fact that Mr.

Squires is expected to testify for the Crown at the trial of the co-defendants. [4] The Crown seeks a publication ban with respect to the evidence, submissions and rulings at the guilty pleas and sentencing ofMr. Squires in order to preserve the fair trial rights of the co-defendants. The Crown also seeks s. 486.5 orders banning publication ofidentity of Mr. Squires as a cooperating witness as well as the identities of two other justice system participants (Mr. Hunt and MsWallage).

In the alternative, the Crown seeks an order under s. 486.5 banning publication of the names of the justice system participantsand a ban on any information disclosed at the guilty plea and sentence proceedings involving Mr. Squires that could be ruledinadmissible at the trial of the co-defendants. [5] Mr. Squires advised the court, through Crown counsel, that he supported the position taken by the Crown. Mr. Dwyer and MsChannell expressed concern about the publication of any information that would compromise their fair trial rights and generally agreedwith the Crown application.

Metroland Media Group objected to any ban on publication. [6]

Section 486.5 authorizes a judge to make an order directing that any information that could identify the victim or witness shallnot be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary forthe proper administration of justice. Subsection (7) provides as follows: In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if theiridentity were disclosed; (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation orretaliation; (

d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants inthe criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. [7] In addition to the preceding and other statutory powers to ban publication (i.e. sections 517 and 539), the court has a commonlaw jurisdiction to order publication bans. A common law publication ban should only be imposed when: 1. it is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonable availablealternative measures will not prevent the risk; 2. the salutary effects of the publication ban outweigh the deleterious.

The burden of displacing the presumption of openness rests upon the party applying for the publication ban. Re Dageneais and Canadian Broadcasting Corp. (1994), (SCC), 94 C.C.C. (3d) 289 (S.C.C.) at p. 316-317

R. v. Mentuck (2001), 2001 SCC 76 , 158 C.C.C. (3d) 449 (S.C.C. ) at p 463-4 Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (1996), (SCC), 110 C.C.C. (3d) 193 (S.C.C.) [8] The issue under

section 486.5 is whether the ban is necessary for proper administration of justice. Considerations include realand substantial risk that witnesses or justice system participants would suffer harm and/or needed to protect them from intimidation orretaliation. The identity and Mr. Squires, Ms Wallage, and Mr. Hunt and the information they provided to police is known to Dwyer andMotschenbacher because of Crown disclosure to them. The question, therefore, is whether public dissemination of these facts should beprohibited.

The Crown is concerned about retribution from those who do not condone cooperation with authorities. In this regard, thethree potential witnesses expressed fear for their safety (although Mr. Squires declined the ffer of protective custody). As Mr. Squires isin custody, the court can expect correctional officials to take necessary and reasonable steps to protect him. A publication ban withrespect to him is not warranted. In the case of Mr. Hunt and Ms Wallage, different considerations apply.

They continue to reside in thelocal community and publication of their past and future roles in this prosecution could result in intimidation or retaliation by thirdparties. [9] The common law publication ban should only be granted if it is necessary to prevent real and substantial risks to the fairness ofthe trial of the co-defendants because other reasonable measures will not prevent the risk and the salutary effects of the ban outweigh thedeleterious effects to the free expression of those affected it.

This test means that the Crown’s principal application must fail; there is nojustification for a publication ban with respect to all evidence, submissions, and rulings with respect to the proceedings involving Mr.Squires. However, the concerns expressed for the fair trial rights of the co-defendants are valid. In my view, there is a middle groundthat addresses the competing interests implicit in

section 486.5 and discussed in Dageneais. [10] In preparing my written reasons for sentence, I was aware of this publication ban application. I drafted those reasons with thatissue in mind. Those reasons describe the home invasion and the actions of Mr. Squires that resulted in bodily harm of one occupant andthe death of another. They also set out Mr. Squires’ cooperation with the authorities and my reasons for reducing his sentenceaccordingly. The reasons do not identify the co-defendants or describe the role allegedly played by them. Moreover, they do not identityMr.

Hunt and Ms Wallage or refer to certain evidence, the admissibility of which may be an issue at trial. [11] My order banning publication ban of all evidence and submissions in the proceedings involving Mr. Squires, except for thewritten reasons for sentence, is intended to promote a fair trial for the co-defendants and the safety of witnesses and, at the same time,provide a transparent and public accounting of proceedings involving a man who has admitted to manslaughter. [12] I thank counsel for their assistance in this case. ___________________________ Signed: “Justice J. De Filippis” Released: September 7, 2011