) ) Her Majesty The Queen Crown/Respondent – v. –, 2010 ONSC 2610

CITATION : Queen v. Cantelon,Ma&Shi, 2010, ONSC 2610 COURT FILE NO.: 07-07003 DATE: 20100503 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty The Queen Crown/Respondent – and – Andrew Cantelon, Zi Hang Ma, Pei Jian Shi Defendants/Applicants ) ) ) ) ) ) ) ) ))))) L. McCallum & N. Courville, for the Crown A.G. Bryant for Defendant Cantelon, N.J. Calvinho for the Defendant Ma D. Steinberg for the Defendant Shi ) ) ) HEARD: May 3, 2010 Justice B.

Glass THIS ORDER IS SUBJECT TO A PUBLICATION BAN UNTIL THE JURY HAS COMMENCED THEIR DELIBERATIONS Jury Commenced Deliberations June 30, 2010 [ 1 ] The Defence has brought an application for a publication ban of information at the Salman Qteifan guilty plea on April 1, 2010 and at the sentence hearing scheduled before Justice E. Minden on May 25, 2010 because this information might have an adverse effect on the three Defendants who are in the process of their trial. [ 2 ] Notice of this application was provided to: (

i) Christian Angelini, counsel for Salman Qteifan; (ii) Tony S.K. Wong, counsel for York Region Media Group; (iii) Rogers TV; (iv) Today Daily News: (

v) Ming Pao Daily News; (vi) Canadian Broadcasting Corporation; (vii) Sun Media (Toronto) Corporation; (viii) CTV Globemedia Publishing Inc.; (ix) Toronto Star; (

x) National Post (xi) Joe Fantauzzi of York Media Group. [ 3 ] Mr. Qteifan were originally a Co-Defendant of the Applicants. Andrew Cantelon is charged with second degree murder and Zi Hang Ma and Pei Jian Shi are charged with first degree murder. [ 4 ] All of the Defendants were in custody from the time of their arrest in June 2007.

[5] Mr. Qteifan, during jury selection for his murder trial, entered a guilty plea to manslaughter before Justice Minden. [6] From the commencement of the trial of the Applicants, the court has cautioned anyone in court that there is a ban onpublication of any information elicited in the absence of the jury. [7] Mr. Bryant brought to the court’s attention that a search on the Internet disclosed two articles that referred to Mr. Qteifan.There was reference to the death of Long Owen Sha. That was an

article published on March 24, 2010. The second

article was publishedon April 8, 2010. The second

article referred to the death of the mother of Pei Jian Shi as the result of personal injuries sustained in a caraccident. The

article then reported on the guilty plea of Salman Qteifan and that an agreed statement of facts contained information thatif there was a plan to kill Mr. Sha, that Mr. Qteifan did not know about it. Mr. Qteifan pled guilty to manslaughter, having been chargedwith second degree murder initially. He too has been in custody since June 2007. [8] The Defence express concern that publication of information about the guilty plea of Mr. Qteifan creates a prejudice to theirposition.

In other words, there is a worry that the jurors are likely to move to the conclusion that if two of five Defendants pleaded guilty,the whole group must be guilty. [9] The Crown has pointed out the question of whether this court has jurisdiction to make an order that affects what will occur in another court before another judge on May 25th, 2010. Also, Ms. McCallum asks that consideration be given to whether this court can make a retroactive order to the guilty plea proceedings of Salman Qteifan on March 25th and April 1st , 2010.

The Guilty Plea of Salman Qteifan [10] There was no publication ban when Salman Qteifan’s guilty plea was entered. I am advised by Crown counsel that the judgerefused to make an publication ban because the media had not been given notice of such a request. [11] The Salman Qteifan sentence hearing is not complete. Issues [12] Does disclosure of the Qteifan plea of guilty and agreed statement of facts carry any prejudice to the Applicants? [13] If there is an order restricting publication of any of this information, does it contravene

section 2 of the Charter of Rights andFreedoms in Canada? [14] Can there be a restriction on publishing information about the Qteifan guilty plea proceedings to protect the opportunity forthe three Defendants to have a fair trial? [15] Does this court have jurisdiction to make a retroactive order banning publication of proceedings already conducted in public? [16] Does this court have jurisdiction to issue a publication ban of proceedings that are scheduled to proceed on May 25th, 2010?

Analysis [17] The first decision should be whether I have jurisdiction to make the order requesting because such an order would be dealingwith proceedings before another judge. I accept that on March 25 and April 1 of this year, Salman Qteifan was before Justice E. Mindenwho declined to make an order banning publication because there had not been any notice to the media requesting such an order. Thereis an agreed statement of facts that was entered as an exhibit in that proceeding. That agreed statement of facts has been filed as Exhibit 3at this application before me.

Publication of some of the contents of the agreed statement of facts has been published previously on April 8th by York Region Media Group. [18] Making an order banning further publication of the Salman Qteifan guilty plea proceedings retroactively to March 25, 2010 ineffect seals those proceedings for whatever time limit might be imposed.

Doing so while that matter is still before another judge addsanother dimension; however, if the Applicants today were to attend before Justice Minden, he may very well face the same questionabout having jurisdiction to make an order that applies to another trial not before him. [19] Making an order as requested does not interfere with another court proceeding with the guilty plea and sentence hearing ofSalman Qteifan.

An order from me limiting publication of information from those proceedings in reality is not causing a hardship toSalman Qteifan. [20] I conclude that I do have jurisdiction to entertain the application of Andrew Cantelon, Zi Hang (Justin) Ma, and Pei Jian(Steven) Shi. [21] Necessity calls for the court to prevent the development of a serious risk to the proper administration of justice if furtherpublication occurs while at the same time weighing the positive effects of a ban on publication against the negative effects upon therights and interests of the Defendants proportionately. [22] Guidance to trial courts has been provided in very understandable terms by the Supreme Court of Canada in Dagenais et al. v.Canadian Broadcasting Corp. (1994), (SCC), 94 C.C.C. (3d) 289.

If there is a real and substantial risk to a fair trialwithout a ban on publication, then an alternative measure will not be of assistance. If the beneficial effects of a publication ban outweighthe harmful implications upon the freedom of expression of those affected by a publication ban, then a ban on publication might be

implemented. [ 23 ] I accept the premise that the right to a fair trial and the freedom of expression of the media must operate together. One way for both to exist is a restriction that there be no reporting of the two guilty pleas until the jury in this trial is sequestered during their deliberations. See Attorney General for Manitoba v. Groupe Quebecor Inc. [1987] M.J. No. 306 (Man. C.A.) in the reasons of Twaddle J.A. at pages 11-14. [ 24 ] Salman Qteifan has pled guilty to manslaughter.

He had been charged with second degree murder as has Andrew Cantelon been charged. [ 25 ] If the jury in the trial before me were to read or hear about the Qteifan guilty plea and the sentence imposed, there is a reasonable chance that they might be influenced when they decide on the allegations faced by Mr. Cantelon, Mr. Ma and Mr. Shi. If there is more reporting on the sentence hearing of Mr.

Qteifan at his May 25 th hearing date, that information might cause jurors to begin deliberating improperly before the evidence is complete, closing submissions have been made and instructions on the law from the trial judge have been placed before them. [ 26 ] The time limit for the order requested is short. This trial is scheduled to proceed until July 31 st ; however, counsel have advised me that the evidence will be completed by June 18 th . Within days, the jury will be at their deliberations. [ 27 ] I conclude that an order slowing the reporting of the guilty plea hearing of Mr.

Qteifan until the jury in this trial has commenced their deliberations is the most appropriate way to handle the situation. That enables the men on trial to have a fair trial. The media also have the opportunity to report on the two guilty pleas at that time. [ 28 ] I take into account that extensive service of this application has been made to the media. Only one was in attendance today, but not to oppose the application. [ 29 ] There will be an order that there be no publication of information about the guilty plea hearing of Mr. Qteifan until the jury in this trial has commenced their deliberations.

Prior publications are not affected. [ 30 ] Previously, there had been an order banning publication of the addresses of the Applicants as well as the fact that they are in custody. That order is continued until the jury commences their deliberations. Justice B. Glass Released: May 3, 2010