HIS MAJESTY THE KING CROWN - v. -, 2023 SKKB 267

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 267 Date: 20 23 12 13 Docket: CRM-RG-00030-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING CROWN - and - ADAM HOOK ACCUSED PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.5(2) of the Criminal Code such that any information that could identify the justice system participant, J.T., shall not be published in any document or broadcast or transmitted in any way. This restriction does not prevent the reporting of the redacted version of the reasons.

Appearing: David Belanger and Arjun Shankur for the Crown Roch Dupont and Makenzie Bauer (student at law) for the accused Brandon Harder for Regina Leader Post FIAT ROBERTSON J.

December 13, 202 3 Table of Contents INTRODUCTION .......................................................................................................... [1] BACKGROUND ....................................................................................................... [2]-[6] Charge ....................................................................................................................... [2] Witnesses ................................................................................................................... [3] Application for Publication Ban .......................................................................... [4]-[6] ISSUES ........................................................................................................................... [7] LAW ....................................................................................................................... [8]-[17] Open Court Principle ........................................................................................ [9]-[10] Charter Guarantee of Freedom of the Press ............................................................ [11] Criminal Code .................................................................................................. [12]-[16] History of

Section 486.5................................................................................ [13]-[15] Current Provision................................................................................................. [16]

Courts Practice Directive ........................................................................................ [17] ANALYSIS ........................................................................................................... [18]-[65] Issue #1: What is the Proper Process to Make Application Under

Section 486.5 for a Publication Ban? .............................................................................................. [19]-[23] Issue #2: What Test Applies to an Application Under

Section 486.5? ............ [24]-[44] Statutory Test ....................................................................................................... [25] Common Law Test ........................................................................................ [26]-[27] Case Law ...................................................................................................... [28]-[41] Conclusion ................................................................................................... [42]-[44] Issue #3: Should a Publication Ban be Made? ................................................. [45]-[65] (

a) Right to a fair and public hearing ............................................................ [46]-[47] (

b) Whether there is a real and substantial risk that the witness would suffer harm if their identity was revealed ....................................................................... [48]-[53] (

c) Whether the witness needs the order for their security or to protect them from intimidation or retaliation....................................................................... [54]-[56] (

d) Society’s interest in encouraging the reporting of offences and the participation of witnesses in the criminal justice process .......................................................... [57] (

e) Whether effective alternatives are available to protect the identity of the witness............................................................................................................ [ 58] (

f) The salutary and deleterious effects of the proposed order ............................... [59] (

g) The impact of the proposed order on the freedom of expression of those affected by it ............................................................................................................. [60]-[62] (

h) Any other factor the judge considers relevant ................................................... [63] Conclusion ................................................................................................... [64]-[65] INTRODUCTION [ 1 ] The decision addresses an application by the Crown to ban publication of information which might reveal the identity of several witnesses who testified at a murder trial. For the reasons which follow, the application is granted, but only as to one witness. BACKGROUND Charge [ 2 ] The Accused is charged with second degree murder.

The indictment reads as follows: ADAM HOOK of Regina, Saskatchewan, stands charged: 1. THAT HE , the said Adam Hook on or about the 19 th day of January, A.D. 2021 at or near Regina, Saskatchewan, did unlawfully cause the death of Jeffrey Lehto and did thereby commit second degree murder, contrary to

section 235 of the Criminal Code . Witnesses [ 3 ] Twenty-two witnesses testified for the trial held in September 2023 ( voir dire with evidence later applied to

trial) and November 2023. Of those 22 witnesses, ten were police officers, one was a paramedic, two were pathologists, two were people who lived in houses neighbouring 1713 Quebec Street, Regina, Saskatchewan, one was a citizen who called 911 from his parked car, and six were people resident at or visiting 1713 Quebec Street around the time of the incident.

Application for Publication Ban [ 4 ] At the start of the trial on November 6, 2023, the Crown asked for “a s. 486.5(1) Publication Ban ( Criminal Code ) on all information disclosed during the court proceedings that could identify the witnesses listed below”, followed by a list of thirteen names. The thirteen names were all witnesses other than the police officers, paramedic, and pathologists.

I made an interim publication ban pending hearing of the application. [ 5 ] The application was argued on November 17, 2023, at which time the Crown withdrew its application with respect to four witnesses who did not testify.

The remaining names, who did testify, are listed below: • Dustin Schaeffer (neighbour) • Cynthia Martin (neighbour) • Ryan McCorriston (called 911) • Martina Stone (present at 1713 Quebec Street on January 19, 2021) • Jolene Musqua (also present) • J.T.(also present) • Daryl Riley (also present) • Patrick McArthur (also present) • Wayne Curle (also present) [ 6 ] The accused took no position on the Crown application. The application was opposed by the Regina Leader Post, which publishes a daily newspaper in Regina and reported on the trial. ISSUES [ 7 ] The application raises three issues: 1.

What is the proper process to make application under s. 486.5 of the Criminal Code, RSC 1985, c C-46 for a publication ban? 2. What test applies in an application under s. 486.5 of the Criminal Code ? and 3. Should a publication ban be made? LAW [ 8 ] The following part reviews the open court principle, Charter [ Canadian Charter of Rights and Freedoms ] guarantee of freedom of the press, the history and current provisions of s. 486.5 of the Criminal Code , and the court’s Practice Directive for applications for discretionary publication bans.

Open Court Principle [ 9 ] The open court principle is well established. While admitting of exception, the general rule is that court proceedings are open to the public. This principle was recognized by Chief Justice Popescul in R.W.J. v Canada (Attorney General) , 2022 SKQB 159 at para 10 , [2022] 12 WWR 277 : General “Open Court” Principles [10] The open court principle is well established in Canada.

In essence, the general rule is that court records and court proceedings are open to the public. [ 10 ] In Sherman Estate v Donovan , 2021 SCC 25 , 458 DLR (4th) 361 [ Sherman Estate ] , Kasirer J. writing for the court reaffirmed the open court principle and related it to the constitutional guarantee of freedom of expression: [1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally-entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy.

As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

. . . [3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally-protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts.

Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects. Charter Guarantee of Freedom of the Press [ 11 ] The Constitution Act, 1982 , being

Schedule B to the Canada Act, 1982, (UK), 1982, c 11 , enacted the Charter .

Section 2(

b) of the Charter guarantees “freedom of thought, belief, opinion and expressing, including freedom of the press and other media of communication”. Criminal Code [ 12 ] This history of s. 486.5 of the Criminal Code and its purpose is relevant to its

interpretation. History of

Section 486.5 [ 13 ] Parliament enacted s. 486.5 in 2005 by

An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act , SC 2005, c 32, s 15. The

preamble to the Canada Evidence Act , RSC 1985, c C-5 included the following explanation of its purpose: WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected; [ 14 ]

Section 486.5 of the Criminal Code was amended in 2015 by the Victims Bill of Rights Act , SC 2015, c 13, s 19. The wording of s. 486.5(7) (

b) of the Criminal Code was changed from the words “would suffer significant harm” to “would suffer harm” if their identity was disclosed. This reduced the threshold for proof of harm. [ 15 ] Parliament again amended s. 486.5 of the Criminal Code in 2023 by

An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, SC 2023, c 28, s 3. These amendments replaced ss. 486.5(3) of the Criminal Code and added s. 486.5(3.1) , (5.1) , (8.1) and (8.2) . The new provisions require that persons proposed to be named in a publication ban be asked if they wish to be the subject of the order and for persons named in a publication ban to apply to be removed. Current Provision [ 16 ]

Section 486.5 of the Criminal Code is reproduced below: Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Offences

(2.1) The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2) , 17(1) , 19(1) , 20(1) or 22(1) of the Security of Information Act [ RSC 1985, c O-5 ] ; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). Limitation

(3) An order made under this

section does not apply in either of the following circumstances:

(

a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (

b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. Limitation — victim, etc.

(3.1) An order made under this

section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim, or witness or justice system participant. Application and notice

(4) An applicant for an order shall (

a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (

b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Duties — judge or justice

(5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall (

a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order; (

b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and (

c) in any event, advise the prosecutor of their duty under subsection (8.2). Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. Factors to be considered

(7) 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 harm if their identity were disclosed; (

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

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the 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. Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit. Supplementary duty — judge or justice

(8.1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it. Duty to inform

(8.2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have (

a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence; (

b) determined whether they wish to be the subject of the order; and (

c) informed them of their right to apply to revoke or vary the order. Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (

a) the contents of an application; (

b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (

c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. Court’s Practice Directive [ 17 ] The court, in “General Application Practice Directive #3: Discretionary Orders Restricting Media Reporting or Public Access” [Court’s Practice Directive], requires an applicant for a discretionary order restricting media reporting to serve a notice of application, supporting affidavit and draft order at least three days before the proceeding to which the order is to apply.

The applicant must also complete the electronic form on www.sasklawcourts.ca [Electronic Form]. This is the mechanism by which the media are informed of the application. ANALYSIS [ 18 ] The three issues identified above are addressed in this part. Issue #1: What is the Proper Process to Make Application Under

Section 486.5 for a Publication Ban? [ 19 ]

Section 486.5(4) of the Criminal Code requires a written application.

Section 486.5(5) of the Criminal Code provides that “an applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.” The Crown did not satisfy these requirements in its application for a publication ban. [ 20 ] The Court’s Practice Directive in para. 1 requires the applicant to, “… at least three days before the proceeding to which the order is to apply, serve the parties to the proceeding with a Notice of Application, supporting affidavit and draft order.” Paragraph 2 specifies the content of the Notice of Application.

Paragraphs 3 and 4 provide for separate notice to the media by the Electronic Form available on and filed through the sasklawcourts website. Paragraph 6 of the Court’s Practice Directive allows for an interim order, with or without notice. [ 21 ] When asked on November 6, 2023, whether the Crown had filed a Notice of Application with supporting materials, the Crown filed the Electronic Form which gives notice to the media. As explained above, the Electronic Form is different from the Notice of Application, affidavit, and draft order required by the Court’s Practice Directive.

Although the application was then adjourned and not heard until November 17, 2023, the Crown never did file the Notice of Application with supporting materials required by the Court’s Practice Directive. [ 22 ] The application argued on November 17, 2023, relied upon the Crown’s oral argument, witness testimony, the Electronic Form, and cases filed by the Crown. The Regina Leader Post also made oral argument and filed written submissions and cases. [ 23 ] I note this omission less to criticize than to emphasize the importance of following the required process.

The completion of the required Notice of Application with supporting materials ensures everyone knows what order is sought and why. That information assists parties in deciding whether and how to respond, and assists the Court by framing the application in advance of its hearing. In this case, the grounds relied upon by the Crown, required by s. 486.5(5) of the Criminal Code , were never stated in writing, so remain uncertain. Issue #2: What Test Applies to an Application Under

Section 486.5? [ 24 ] The question here is whether the common law test or the statutory test applies to an application under s. 486.5 of the Criminal Code ? Statutory Test [ 25 ]

Section 486.5 of the Criminal Code places the onus on the applicant “to establish that the order is necessary for the proper administration of justice”. The standard of proof is on a balance of probabilities (see R v Wagner , 2017 ONSC 6603 at para 10 [ Wagner ]). In deciding this question, the court must consider the factors listed in s. 486.5(7) . I call this the statutory test.

Common Law Test [26] In Sherman Estate at paras 37-38, the Supreme Court re-formulated the test for discretionary limits onpresumptive court openness: A. The Test for Discretionary Limits on Court Openness [37] Court proceedings are presumptively open to the public (MacIntyre, [ (SCC), [1982] 1 SCR 175] at p. 189; A.B.v.

Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR 567, at para 11). [38] The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessityand proportionality of the proposed order (Sierra Club [Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, [2002] 2SCR 522] , at para 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit mustshow.

Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seekingan exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the opencourt presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will notprevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, apublication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to alldiscretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v Ontario, 2005 SCC41, [2005] 2 SCR 188, at paras 7 and 22). [27] The test that set out above in Sherman is the common law test.

The Sherman test modified the previous testderived from Dagenais v Canadian Broadcasting Corp., (SCC), [1994] 3 SCR 835 [Dagenais] and R v Mentuck, 2001SCC 76, [2001] 3 SCR 442 [Mentuck], which was referred to as the Dagenais/Mentuck test. [28] A bare reading of Sherman Estate at para 38 might lead the reader to conclude that this is the test for alldiscretionary orders limiting presumptive court openness.

That conclusion is supported by earlier judgments of the Supreme Court; See: Vancouver Sun (Re), 2004 SCC 43 at para 31, [2004] 2 SCR 332; Toronto Star Newspapers Ltd. v Ontario, 2005 SCC 41 at para 7,[2005] 2 SCR 188; Named Person v Vancouver Sun, 2007 SCC 43 at para 35, [2007] 3 SCR 253; and Canadian Broadcasting Corp. vThe Queen, 2011 SCC 3 at para 13, [2011] 1 SCR 65. Case Law [29] Which test to apply on an application under s. 486 of the Criminal Code has been considered in decisions oflower courts. [30] R v Pearson, 2011 ONSC 3118, involved a murder charge where threats had been made against a witness.

Thewitness, who had yet to testify, requested the publication ban. Glass J. at para. 8 considered the factors listed in s. 486.5(7) of theCriminal Code as well as the test stated in Mentuck in deciding to order a publication ban. [31] R v Sipes, 2011 BCSC 1329, involved a Crown application for a publication ban on the identity of witnesses.The witnesses were currently inmates who were scheduled to testify for the prosecution in a gang-related murder trial. Smart J. at paras.66 and 83 held that the correct approach is to apply the statutory test.

He ordered a publication ban. [32] R v Haevischer, 2013 BCSC 1085, involved witnesses who were serving prisoners scheduled to testify at a high-profile, gang-related murder trial. Wedge J. at paras. 104-107 and 110 held that the Dagenais/Mentuck test remained relevant, whileacknowledging that the factors set out in s. 486.5(7) of the Criminal Code had to be considered. A publication ban was ordered. [33] R v Nguyen, 2015 ABQB 676, involved a witness who was a former criminal associate of the accused. Theaccused was charged with conspiracy to commit murder.

The Crown theory was that the murder was gang-related, and the victim waskilled because he was believed to be a police informant. The witness was now in witness protection. Hughes J. at para. 32 concludedthat the statutory test applied, but that the Dagenais/Mentuck test and other decisions of the Supreme Court endorsing the open courtprinciple should inform her application of s. 486.5 of the Criminal Code. A publication ban was ordered. [34] R v Daviau, 2016 ABQB 511 [Daviau], involved a gang-related murder. The Crown filed an affidavit from apolice officer (Cst.

Paradis) expressing concern that there could be retribution against witnesses. Six of the seven witnesses had beencriminal associates of the accused. There was no evidence of any actual threats or witness intimidation. Wilson J. at para. 28 referred toDagenais and Mentuck as underscoring “the importance of open and public courtrooms and the constitutional support for the media to beable to fully and freely report”, but still went on at paras. 32 – 35 to apply the test in s. 486.5(5) and consider the factors in s. 486.5(7) ofthe Criminal Code.

Wilson J. dismissed the application, finding at para. 26 that “the risks identified by Constable Paradis are simply tooinsubstantial to logically support the position of the Crown.” [35] Wagner was an appeal against the trial judge’s refusal to order a publication ban of the identity of a doctor in amischief trial involving protests at an abortion clinic. There was evidence of previous harassment and threats. The trial judge had appliedthe common law test.

Thorburn J., at paras. 12-13, rejected the common law test to an application under s. 486.5 of the Criminal Code,noting key distinctions between the statutory and common law tests:

[12] The common law may supplement but cannot override statutory provisions in the Criminal Code : R. v. Sipes , 2011 BCSC 1329 , [2011] B.C.J. No. 2739 at para. 79 ; R. v. Nguyen , 2015 ABQB 676 , [2015] A.J. 1411 at paras. 31-33 . [13] Key distinctions between the test articulated at

section 486.5 of the Criminal Code and the common law Dagenais/ Mentuck test include the following:

a) the common law test is a two-step process while the Criminal Code provision is a one step process;

b) the common law considers only two factors while the Criminal Code provision requires consideration of seven factors to be looked at collectively;

c) the common law test requires the court to determine whether an order is necessary to prevent “serious risk to the administration of justice”. The Criminal Code provision requires that the Applicant establish there is a real and substantial risk that s/he would “suffer harm if a publication ban were not issued”.

Where an Applicant fails to provide evidence of a real and substantial risk to the administration of justice but the other six factors weigh in favour of a publication ban, a publication ban may nonetheless be ordered as long as the court is satisfied, after considering all seven factors, that it is in the interests of justice to issue a publication ban. [ 36 ] Thorburn J. allowed the appeal, finding at para. 37 that the trial judge had erred in law in applying the wrong test and in failing to consider all of the factors in s. 486.5(7) of the Criminal Code .

Since the trial judge was now functus , the appeal court ordered the publication ban. [ 37 ] In R v Dhami , 2019 ONCJ 10 at paras 18-21 [ Dhami ] , Caponecchia J. similarly noted differences between the common law and statutory tests in concluding that the statutory test applied to an application under s. 486.5 of the Criminal Code : [18] Subsequent to both Dagenais and Mentuck s. 486.5 was enacted. The burden of proof on the application at common law and pursuant to s. 486.5 is proof on a balance of probabilities. [19] In general, s. 486.5 codifies the Dagenais/ Mentuck test.

However there are some differences: (

i) The common law considers only two factors while the Criminal Code provision requires a collective consideration of seven factors set out in s. 486.5(7) ; (ii) Prior to July 20, 2015, s. 486.5(1) provided that a publication ban should be ordered only when it was necessary for the proper administration of justice. Necessity is the standard articulated by the Supreme Court of Canada in Dagenais and Mentuck . (iii) In 2015 s. 486.5 was amended and the test was changed to whether the ban is in the interest of the proper administration of justice. (iv) At common law, the courts are required to decide whether an order is necessary to prevent serious risk to the administration of justice . (

v) By contrast, one of the factors in s. 486.5(7) is whether there is a real and substantial risk the applicant would suffer harm if their identity was disclosed. What is more, if an Applicant fails to provide evidence of a real and substantial risk of harm but the other six factors weigh in favour of a publication ban, a publication ban may still be ordered if the court is satisfied, after considering all seven factors that it is in the interests of justice to issue a publication ban. [20] The common law may supplement but cannot override statutory provisions in the Criminal Code .

Where a specific provision in the Criminal Code deals explicitly with an order sought and directs me to the criteria that I am to apply, I should apply the Criminal Code . Therefore, while the Dagenais and Mentuck cases are instructive, I have determined that I am governed specifically by the provisions of

section s. 486.5. [21] Pursuant to s. 486.5(1) the test that I must apply is whether the publication ban of the victim’s identity is in the interest of the proper administration of justice . The balancing of multiple interests must occur. Fair trial interests and freedom of the press are one aspect of the administration of justice. There are other values comprising the proper administration of justice that I am statutorily obliged to consider pursuant to s. 486.5(7) . All of the criteria are meant to answer the same question: whether the ban is in the interest of the proper administration of justice.

A ban should not be imposed to avoid mere discomfort or to secure an advantage unrelated to the proper administration of justice. It is the avoidance of real harm, not speculative, that the ban seeks to achieve. [Emphasis in Original; Citations Omitted] [ 38 ] The victim had Asperger’s Syndrome, a form of autism, which he kept private. The concern was that publication of his name might cause psychological harm.

A publication ban was ordered for the name of the victim. [ 39 ] While still instructive, Dhami is distinguishable from this case in that in Dhami there was no trial, because the offender pled guilty to aggravated assault, and the publication ban was sought for the name of the victim, rather than a witness. [ 40 ] In R v Theodore , 2020 SKCA 131 , 399 CCC (3d) 125 [ Theodore ], the Court of Appeal considered an application discretion under s. 486.2 of the Criminal Code to allow a witness to testify outside the courtroom or behind a screen.

Section 486.2 is similar to s. 486.5 of the Criminal Code in that both provisions employ the test of “the proper administration of justice” (in s. 486.2(1) and (2) ) and in setting out a list of factors to consider (in s. 486.2(3) ). This similarity is not surprising, since both provisions were amended by the same 2015 Victims Bill of Rights Act, SC 2015, c 13. [ 41 ] Kalmakoff J.A. writing for the court, remarked at paras. 108-109 of Theodore upon Parliament’s intent in changing the standard to be met before judges exercise their discretion under s. 486.2 of the Criminal Code .

[108] Parliament must be taken to have acted with purpose when it enacted the Victims Bill of Rights amendment to s. 486.2(2). Thatamendment marks a notable change in the standard that must be met before a judge can exercise his or her discretion to make the order.As the Nova Scotia Court of Appeal observed in R v N.M., 2019 NSCA 4, 370 CCC (3d) 143 while orders under s. 486.2(2) should notbe granted perfunctorily, the amendment to s. 486.2(2) reflects a “newly lowered threshold” that properly permits an order for remote orscreen-protected testimony on either of the bases listed in the

section (at paras 65​70). I agree with this observation. [109] While the “necessary to obtain a full and candid account” standard required by s. 486.2(2) prior to the Victims Bill ofRights amendment was not met, for example, by the mere fact that a witness feared reprisal (see: R v D.(C.) (2010), (ON SC), 257 CCC (3d) 531 (Ont Sup Ct)), the new threshold under s. 486.2(2) does not require special circumstances for a judge toexercise his or her discretion in favour of making the order (R v Blake and Khabemba, 2019 ONSC 6026 at para 20).

A different sort ofanalysis is now required, with the operative inquiry being whether making a testimonial accommodation order will enhance, rather thanimpede, the truth-seeking function of the trial (R v A.E., 2017 ONSC 3464 at para 22). [Emphasis in Original] [42] In La Presse inc. v Quebec, 2023 SCC 22, the Supreme Court recently considered publication bans under s. 648(1) of the Criminal Code, which applies to jury trials.

Chief Justice Wagner, writing for the court, referred in obiter at para. 37 to thestatutory authority conferred by various provisions of the Criminal Code as distinct from “the inherent jurisdiction of a judge to impose adiscretionary ban under the Dagenais/Mentuck/Sherman framework”: [37] Section 648(1) operates alongside numerous other provisions establishing publication bans, particularly ss. 517(1), 539(1) and542(2), and the inherent jurisdiction of a judge to impose a discretionary ban under the Dagenais/Mentuck/Sherman framework. … Conclusion [43] There is a distinction between the court’s inherent jurisdiction and statutory authority to limit presumptive courtopenness.

When the court invokes its inherent jurisdiction, it applies the common law test. When the court invokes its statutoryauthority, it applies the prescribed statutory test. In either case, the court remains mindful of the importance of the open court’s principleand the Charter right to freedom of the press. [44] The statutory test remains flexible since s. 486.5(7)(

h) of the Criminal Code allows the court to consider “anyother factor that the judge or justice considers relevant”. So, the statutory test does not preclude consideration of the common law test orany aspect, as occurred in some of the cases reviewed above. But it is not required. [45] Since this application is brought under s. 486.5 of the Criminal Code, the statutory test will be applied to thisapplication. Issue #3: Should a Publication Ban be Made? [46] The test is whether an order “is necessary for the proper administration of justice.” To determine this, I must considerthe statutory factors set out in s. 486.5(7) of the Criminal Code. (

a) Right to a fair and public hearing [47] Of the cases reviewed above, Daviau is closest on the facts. In Daviau at para 36, Wilson J. spoke to the balancing ofinterests when considering this factor, cautioning that publication bans “must not be easily or routinely granted upon the mere asking forsame”: (

a) the right to a fair and public hearing [36] This certainly speaks to the accused’s right to a fair and public hearing. But it is also intertwined with society’s interests too.Justice must not only be done but appear to be done. Court Orders which have the effect of shrouding any part of a criminal trial indarkness must not be easily or routinely granted upon the mere asking for same.

Section 486.5(5) directs that the Order can only be givenin this case if it is necessary for the proper administration of justice. [Emphasis in Original] [48] All of the witnesses who appeared testified. Mr. Harder argued that their testimony did not appear affected by concernover possible publicity. I agree. (

b) Whether there is a real and substantial risk that the witness would suffer harm if their identity was revealed? [49] This factor requires evidence of “a real and substantial risk” of harm. [50] Both counsel referred to an unreported oral decision of Elson J. in R v Cyr on (23 May 2023) Regina, CRM-RG-00365-2020 (Sask KB) [Cyr], dismissing a Crown application under s. 486.5 of the Criminal Code with respect to a witness testifying in a gang-related murder trial. The witness had been a gang member and was then serving a penitentiary sentence. Elson J., in considering s.486.5(7)(

b) of the Criminal Code, distinguished between “could” and “would”, finding that a mere risk was insufficient. “Could”indicates a potential, not actual risk. Speaking to the affidavit of Sgt. Davis filed in support of that application, Elson J. said: “… whatever evidence is to be presented with respect to the presence of a real and substantial risk that a witness, victim or participantwould suffer harm must be something that is more than speculative. In my respectful view, the affidavit material from Troy Davis doesnot rise above speculation.

While one might think that it would be a reasonable conclusion that somebody could sustain risk, thereference to ‘could’ indicates a potential. It does not indicate an actual risk. … I’m satisfied that the test here requires more evidence than

was presented. There has to be more concrete evidence of a real and substantial risk. For that reason, as of today’s date, the publication ban earlier imposed mid-trial is lifted.” [ 51 ] This application also relied upon the evidence of the same Sgt. Davis, this time in testimony given in a voir dire . Sgt. Davis spoke to general concerns about the possibility of retribution against citizens who cooperate with police and who appear as Crown witnesses. As Mr.

Harder pointed out, these concerns were speculative and generic, rather than specific to the witnesses in this case, with the possible exception of J.T. as a serving prisoner. [ 52 ] J.T., who is incarcerated in the penitentiary, was asked by the Crown in direct examination if he was nervous about testifying and what could happen to him in prison if people found out. He said he could be beaten or stabbed, even murdered. [ 53 ] Wayne Curle was asked by the Crown in re-direct examination about what would happen if his home address and testimony were known.

He first said he was not sure and did not know, but added “probably something not good”. When asked if he was scared about that, he replied “not overly”. When asked about the description of a person as a “rat”, he replied that “For this, it’s not considered being a rat. It’s putting an ending to something bad that happened to somebody who, you know, should still be alive”. When asked to describe a “rat” he said, “someone who does a crime with someone and turns around and tells the cops this person did that”.

He did not view what he was doing in testifying as being a “rat”. [ 54 ] Similar to Justice Elson, I find the evidentiary support for this application lacking, except with respect to J.T. Even there, the evidence is tenuous. (

c) Whether the witness needs the order for their security or to protect them from intimidation or retaliation [ 55 ] There is no evidence of actual threats against or intimidation of any of the witnesses. There is no evidence that the homicide was gang related. However, there is evidence of related drug abuse and drug trafficking at the scene of the crime. The court takes judicial notice that organized crime is involved in the drug trade and that violence occurs within this criminal enterprise. [ 56 ] None of the witnesses requested a publication ban of their identity.

As discussed above, only two witnesses were asked whether they were concerned about testifying. Only one expressed concern. [ 57 ] The Crown emphasized that some of the witnesses for whom a publication ban is sought are vulnerable members of the community because of their drug addiction and transient lifestyles. While I agree that makes them more vulnerable to harm, that increased level of risk relates more to their lifestyles than their status as witnesses. Sgt. Davis testified that most crime involves drug or alcohol abuse. Marginalized people are more often victims of crime.

But if that is sufficient reason to justify a publication ban, then such orders would become routine in criminal trials. That would undermine and diminish the competing and vital opposing public interests of open courts and freedom of the press. (

d) Society’s interest in encouraging the reporting of offences and the participation of witnesses in the criminal justice process [ 58 ] Sgt. Davis testified to the special efforts made by police to get those witnesses suffering from drug addiction or who are transient to court, including in this trial. But that problem relates more to their unstable lives and living arrangements than the nature of the trial. (

e) Whether effective alternatives are available to protect the identity of the witness [ 59 ] Sgt. Davis testified that the police would intervene if they learned of any threat of harm to a current or past witness. The Crown argued that preventative measures, such as a publication ban, should be preferred to waiting for threat of harm or actual harm. (

f) The salutary and deleterious effects of the proposed order [ 60 ] The comments of Elson J. in Cyr , quoted above, and of Wilson J. in Daviau at paras 41-44 are pertinent to this factor: (

f) the salutary and deleterious effects of the proposed order [41] As I have repeatedly said, the difficulty for the Crown is the absence of any compelling information in this case about risks to witnesses, their friends, co-workers and family or to the public at large. Nor is there any compelling information about the risk of witness intimidation. There is insufficient information before the Court to allow it to conclude that there is a basis to find any objectively discernible threat of harm. Giving an Order absent an evidentiary basis on either a direct or objective basis is not permissible at law.

Bluntly stated, courts are not empowered to issue Orders which are based purely on speculation. [42] There is also another consideration. [43] The Crown’s concerns in this case can be equally expressed by other Crown prosecutors on every other case where serious criminals, organized or not, are on trial and where civilian witnesses will be called by the Crown.

If I grant this Order which would be rooted solely in speculation, the Crown might be mistakenly encouraged to bring similarly deficient Applications in the future. [44] In my respectful view the deleterious effect upon the media’s constitutional rights arising from the granting of such Orders in the absence of a compelling record cannot be overstated. (

g) The impact of the proposed order on the freedom of expression of those affected by it [ 61 ] The Supreme Court in Mentuck at paras 52-54 spoke to the public interest in media reporting of trials.

52 … Given the realities of modern life and the inconvenience of the open courtroom to members of the public, the right to a publictrial must include the right to have media access and report on the trial as well. 53 This public scrutiny is to the advantage of the accused in two senses. First, it ensures that the judicial system remains in thebusiness of conducting fair trials, not mere show trials or proceedings in which conviction is a foregone conclusion. The supervision ofthe public ensures that the state does not abuse the public’s right to be presumed innocent, and does not institute unfair procedures.

SeeDagenais, supra, at p. 883. 54 Second, it can vindicate an accused person who is acquitted, particularly when the acquittal is surprising and perhaps shocking tothe public. In many cases, it is not clear to the public, without the advantage of a full explanation, why an accused person is acquitteddespite what a reasonable person might consider compelling evidence. Where a publication ban is in place, the accused has little publicanswer. In the present appeal, the public was aware that a confession was in evidence.

One might expect public confusion and even angerat such a seemingly nonsensical verdict, as in fact occurred in response to the acquittal underlying the companion to this appeal, O.N.E.[2001 SCC 77 , [2001] 3 SCR 478], supra. If the facts of the police operation were available to the public, the public couldmake an informed judgment about the reasonableness of the accused’s acquittal. The accused could feel vindicated to some extent.

Onthis basis, the publication ban sought would have a deleterious effect on the accused’s right to a public trial. [Emphasis in Original] [62] The Crown pointed to articles published in the Regina Leader Post as proof that freedom of the press had not beenunduly limited by the interim publication ban. Mr. Harder argued in response that he had self-edited to respect the publication ban,withholding information that might be of public interest. [63] I again express my agreement with the words of Wilson J. from Daviau at para 45: (

g) the impact of the proposed order on the freedom of expression of those affected by it [45] Little further comment need be made here. Any restriction on the media’s general right to identify trial witnesses without a basisto impose such a restriction must be carefully guarded against. To repeat, such Orders can only be granted upon a clear or compellingshowing that it would be, in the words of s. 486.5(5) – “necessary for the proper administration of justice”.

It is difficult to conceive howthis requirement could be met simply on the basis of the witnesses requesting such an Order, whether they bring their applicationpersonally or, as occurred here, request that the Crown do so on their behalf. (

h) Any other factor the judge considers relevant [64] I do consider as a general principle that the courts should trust to the responsible judgment of a free press, unless anduntil proved wrong. The established press, such as the Regina Leader Post, has built-in safeguards through the editorial process to ensurethat reporting is both accurate and responsible. Conclusion [65] Having regard to the above analysis, I conclude that the Crown’s application should be dismissed except as to J.T.; J.T.is in a special category of risk, primarily because he is a serving prisoner. Sgt.

Davis’ evidence about the penitentiary is relevant in thisregard. While there are other measures available to protect him while in custody, such as transfer to protective custody, that segregationwould likely impose hardship upon J.T. and might reduce his opportunity to take advantage of programming while in prison that mayhelp with his rehabilitation. [66] Only to that extent do I find that an order is necessary for the proper administration of justice. I therefore order thatthere be no publication of any information that might identify J.T. as a witness in this trial.

The interim publication ban is otherwiseremoved. J. D.N. ROBERTSON