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COURT FILE NO.: YC-07 -1587
DATE: 20080401
ONTARIO
SUPERIOR COURT OF JUSTICE
(silting as a Youth Justice Court)
BE TW E E N:
HER MAJESTY THE QUEEN
Applicant
~and N.Y.
Respondent
- and TORONTO STAR NEWSPAPERS
LTD., THE CANADIAN
BROADCASTING CORPORATION~
. THE ASSOCIATED PRESS and CTV
TELEVISION INC.
Third Party Respondents
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
John Neander Marco Mendicino and
Melissa Ragsdale for the Applicant
r
Mitchell
Chernovsky,
Respondent
Paul schabes,
Respondents
for
the
for the Third Party
)
)
)
)
)
)
)
)
)
)
)
)
)
Also
appearing
Parties:
for
Interested
Michael A. Moon, for Steven Chand
Michael A. Moon, as agent, for
Dennis Edney, for Fahim Ahmad
Ingrid Grant, for Saad Khalid
Ingrid Grant, as agent, for Breese
Davies, for Asad Ansari
Raymond Motee, for Ibrahim Aboud
Paul Siansky, for Saad Gaya
Paul Siansky, as agent, for David
Kolinsky, for Zakaria Amara
)
)
)
)
)
) HEARD:
March 25 and 26, 2008
- 2-
[Section 110 of the Youth Criminal Justice Act prohibits the publication of
the name of the Respondent N.Y. or any other information related to N.Y.
that would identify N.Y. as a young person dealt with under this Act.]
RULING NUMBER ONE - CROWN APPLICATION
PUBLICATION BAN
-,:
FOR LIMITED
SPROAT J.
INTRODUCTION
[1]
NY.) a young person within the meaning of the Youth Criminal Justice Act
(Y.C.J.A.),
is charged with one count of participating in a terrorist activity contrary
to s. 83.18 of the Criminal Code. His trial has started.
[2]
Fourteen adults are charged, in a nine count indictment, with terrorist
offences,
They are currently before the Superior Court of Justice by virtue of a
preferred indictment on September 24, 2007. No trial date has been set for the
trial and counsel were not able to advise when this trial was likely to be held.
[3]
By way of background, as described by Justice Dumo in Toronto
Newspapers
Ltd. v. Canada [2006] O.J. No. 3062 (S.C.J.):
On June 2, 2006, 12 adults and 5 young persons were arrested and charged with
offences contrary to Part ILl of the Criminal Code - terrorism offences. The
arrests resulted in unprecedented media coverage locany, nationally and
internationally. The police conducted a press conference on the date of tile first
court appearance.
The published and broadcast reports included comments
attributed to "unnamed police sources", "police sources", politicians, public
Star
- 4-
(f)
constructing a radio frequency remote control detonator
(g)
expressing complete indifference to causing death in the course of
these attacks
(h)
attacking on a much great scale than the London subway bombings
(i)
planning to build truck bombs, acquiring ammonium nitrate to charge
the bombs and a bomb detonator
[6]
The Crown seeks a partial publication ban on the proceedings at the trial
of N.Y. to protect the fair trial interests of the adult accused. The Crown position
is that the media should be able to report fully on the proceedings at trial except
that in reportIng the evidence and argument the adult accused should not be
referred to by name nor should other evidence be published that would identify
them such as by the use of their initials, addresses, telephone numbers, or their
images or by broadcasting audio recordings of their voices.
[7]
Mr. Schabas made the point that with the information already in the public
domain an observer of this trial could, at least in certain respects, attempt to
correlate the public information with the trial evidence and draw inferences as to
which
adult
accused
was
being
referenced.
He sought,
and
received,
confirmation from the Crown that the publication ban sought applied to names
and clear personal identifiers and was not intended to encompass other evidence
that, coupled with research and outside information, might tend to identify a
particular adult accused.
- 5-
POSITION OF THE RESPONDENTS AND INTERESTED PARTIES
[8]
On behalf of N.Y., Mr. Chernovsky
took no position on the Crown
application.
[9]
Counsel on behalf of Messrs. Ahmad, Khalid Ansari, Zakarla and Aboud,
j
being 5 of the adults charged with terrorist offences and referred to as Interested
Parties, support the Crown position.
[10]
Counsel for Mr. Gaya supports the Crown application subject to the
understanding that the Crown does not intend to adduce at the trial of N.Y.
particulars of what was characterized as a controlled delivery on June 2, 2006;
certain intercepted communications
leading to the delivery; and a post arrest
statement made by Mr. Gaya.
[11]
Counsel for Mr. Gaya's further position was that the publication ban
should extend to evidence as to alleged targets to be bombed and certain
activities in that regard.
[12]
The position of. Mr. Schabas on behalf of his media clients was that no
form of publication ban, however limited, was justified.
[13]
In light of my interim order, discussed below, Mr. Chand's position was
that no publication ban should be imposed.
- 6-
THE INTERIM ORDER
[14]
This Crown application was heard on March .25 and 26 and judgment was
reserved. It was, therefore, necessary to make an interim order so that reporting
on the application, which could involve identifying the roles allegedly played by
the adult accused, did not render nugatory the limited publication ban being
sought. The interim order sought by the Crown (which I granted and which is the
same as the final order sought by the Crown), is as follows:
The names Fahim Ahmad, Zakaria Amara, Asad Ansari, Shareef Abdelhaieem, Qayyum
Abdul Jamal, Ali Mohammad Dirie, Yasln Abdi Mohamed, Jahmaal James, Amin
Mohamed Durrani, Steven Vikash Chand, Ahmad Mustafa Ghany, Saad Khalid, Saad
Gaya and Ibrahim Aboud, or any other evidence which would identify the aforementioned
named persons during the Respondent's trial, shall not be published in any document, or
broadcast or transmitted in any way, until such time as the trial in respect of the
aforementioned named persons is ended.
For greater clarity, evidence which would identify the named persons includes, but is not
limited to, names, initials actually corresponding to the initials of the named persons,
addresses, telephone numbers, visual images and audio recordings.
[15]
While Mr. Schabas' position was that no publication ban was justified he,
quite reasonably, did not take exception to the interim order sought by the Crown
pending argument and delivery of my ruling.
[16]
Out of an abundance of caution, on an interim basis, I extended the
publication ban initially sought by the Crown to address the concerns raised by
Mr. Siansky on behalf of Mr. Gaya as discussed above.
- 7-
[17]
Counsel on behalf of Mr. Chand initially took the position that publication
was already limited pursuant to an order made under s. 517 of the Criminal Code
at Mr. Chand's bail hearing. Alternatively, Mr. Chand's position was that I should
make a publication ban along the same lines as the s. 517 order. The" evidence
on Mr. Chand's bail hearing was not before me (although counsel advised it
could be filed in short order) so that the practical scope of the s. 517 order was
unclear.
[18]
Mr. Mendicino directed me to Toronto Star v. The Queen, [2006] O.J. No.
362 (S.C.J.).
There Justice Durno indicated that he was inclined to the view that
s. 517 does not! in effect, follow the evidence from the bail hearing (in this case
of Mr. Chand) and prevent its publication at the trial of a different party (in this
case N.Y.).
[19]
I decided that on the material before me, and having regard to the
reasons of Justice Durna, I was not prepared to make a more extensive interim
order as requested by Mr. Chand.
[20]
Counsel for Mr. Chand then advised that) the Court having declined to
make a more axtenslve 'order, his position was that no publication ban should be
imposed. I will not, therefore, address the s. 517 point further.
-8~
LEGAL PRINCIPLES
Open Court Principle and Freedom of Expression
[21]
The Charier of Rights and Freedoms provides that everyone has freedom
of thought, belief, opinion and expression, including freedom of the press and
other media of communication.
[221
In Edmonton Journal v. Alberta} [1989] 2 S.C.R. 1326, Justice Cory
stated:
There can be no doubt that the courts play an important role in any democratic
society. They are the forum not only for the resolution of disputes between
citizens, but for the resolution of disputes between the citizens and the state in all
its manifestations. The more complex society becomes, the more important
becomes the function of the courts. As a result of their significance, the courts
must be open to public scrutiny and to public criticism of their operation by the
public, (para. 5)
[23]
Justice Cory also discussed freedom of expression as follows:
It can be seen that freedom of expression is of fundamental importance to a
democratic society. It is also essential to a democracy and crucial to the rule of
law that the courts are seen to function openly. The press must be free to
comment upon court proceedings to ensure that the courts are, in fact, seen by
all to operate openly in the penetrating light of public scrutiny.
There is another aspect to freedom of expression which was recognized by this
Court in Ford Vi Quebec (Attorney General), [1998] 2 S,C.R. 712, There at p.
767 it was observed that freedom of expression "protects listeners as well as
speakers". That is to say as listeners and readers, members of the public have a
right to information pertaining to public institutions and particularly the courts.
Here the press plays a fundamentally important role. It is exceedingly difficult for
many, if not most, people to attend a court trial. Neither working couples nor
mothers or fathers house-bound with young children, would find it possible to
'attend court. Those who cannot attend rely in large measure upon the press to
inform them about court proceedings - the nature of the evidence that was
called, the arguments presented, the comments made by the trial judge - in
order to know not only what rights they may have, but how their problems might
be dealt with in court. It is only through the press that most lndlvlduals can really
- 9-
learn of what is transpiring in the courts. They as "listeners" or readers have a
right to receive this information. Only then can they make an assessment of the
institution,
Discussion of court cases and constructive criticism of court
proceedings is dependent upon the receipt by the public of information as to what
transpired in court. Practically speaking, this information can only be obtained
from the newspapers or other media. (para. 9-10)
Right to a Fair Trial
[241
The Charter of R;ghts and Freedoms also provides that a person charged
with an offence has the right to a fair and public hearing before an impartial
tribunal.
[25]
In R. v. Darrach, [2000] 2 S.C.R. 443, Justice Gonthier observed:
The accused's right to a fair trial is, of course, of fundamental
administration of justice. (at para..43)
concern to the
Faith in Juries
[26]
In R v. Dagenais, [1994] 3 S,C.R. 835, the
esc
planned to broadcast, on
December 6 and 7, 1992, "The. Boys of 5t. Vincent" which was described as "a
fictional
account
institution".
of sexual
and physical
abuse of children
in a Catholic
Dagenais was a former or present member of the Christian Brothers,
a Catholic religious order, charged with sex offences.
[27]
Dagenais; trial before judge and jury was underway and the jury charge
was scheduled for December 7, 1992. Three other present or former Christian
Brothers were scheduled for trial on similar charges between February - July,
- 10-
1993.
The Ontario
Court of Appeal
upheld an Injunction
restraining
the
broadcast until completion of the last trial.
[28}
The Supreme Court of Canada, however, set aside the publication ban.
Chief Justice Lamer addressed the efficacy of publication bans stating:
To begin, I doubt that jurors are always adversely influenced by publications.
There is no data available on this issue. However, common sense dictates that
in some cases jurors may be adversely affected. Assuming this, I nevertheless
balieve that jurors are capable of following instructions from' trial judges and
ignoring information not presented to them in the course of the criminal
proceedings. As Lord Taylor C.J. wrote in Ex parte Telegraph PIc" {1993] 2 All
E.R. 971 (CA), at p. 978:
In determining whether publication of matter would cause a
substantial risk of prejudice to a future trial, a court should credit
the jury with the will and ability to abide by the judge's direction
to decide the case only on the evidence before them,
This Court has also made some strong statements about the reliability of
juries. In R. v, Corbett, [1988] 1 S.C.R. 670, Dickson C,J. wrote (at pp.
672-93):
The very strength of the jury is that the ultimate issue of guilt or
innocence is determined by a group of ordinary citizens who are
not legal specialists and who bring to the legal process a healthy
measure of common sense. The jury is, of course, bound to
follow the law as it is explained by the trial judge. Jury directions
are often long and difficult, but the experience of trial judqes is
that juries do perform their duty according to the law..,.
It is of course, entirely possible to construct an argument
disputing the theory of trial by jury, Juries are capable of
egregious mistakes and they may at times seem to be ill-adapted
to the exigencies of an increasingly complicated and refined
criminal law, But until the paradigm is altered by Parliament, the
Court should not be heard to call into question the capacity of
juries to do the job assigned to them. The ramifications of any
such statement could be enormous. Moreover, the fundamental
right to a jury trial has recently been underscored by s, 11(f) of
the Charter If that right is so important, it is logically incoherent
to hold that juries are incapable of following the explicit
instructions of a judge. [Emphasis in original.] (para. 87-88)
- 11 -
[29]
Having discussed the faith we place in a jury to follow the explicit
instructions of a judge to "disabuse itself of information that it is not entitled to
consider" (La Forest J. in R. v. Vermette, [1988] 1 S.C.R. 985 at 993-4), Chief
Justice Lamer continued:
These observations are particularly apt in a case such as this, in which the publication
ban relates to identifiable and finite sources of pre-trial pubticlty. More problematic is the
situation in which there is a period of sustained pre-trial publicity concerning matters that
will be the subject of the trial. In such circumstances, the effect of instructions is
considerably lessened. Impressions may be created in the minds of the jury that cannot
be consciously dispelled. The jury may at the end of the day be unable to separate the
evidence in court from information that was implanted by a steady stream of publicity.
(para.Sa)
The Dagenais/Mentuck
[30]
Test
In Dagenais, Chief Justice Lamer explained that the right to a fair trial
was not preferred to other Charier rights.
Applications
for publication bans
should not be approached as a "clash" of rights resulting in one right prevailing.
Rather the Court should strive to strike a balance that respects the importance of
both the right to a fair trial and to freedom of expression
[31]
In R. v. Mentuck [2001] 3 S.C.R. 442, the Supreme Court broadened the
j
language of the Dagenais test so that it was applicable to protect not only fair trial
interests but extend generally to protect the proper administration of justice. The
re-formulated DagenaisiMentuck test is as follows:
A publication ban should only be ordered when:
- 12-
a) such an order is necessary in order to prevent a serious risk to the
administration
of justice, because reasonably
available alternative
measures will not prevent the risk; and
b) the salutary effects of the publication ban outweigh the deleterious
effects on the rights and interests of the parties and the public; including
the effects on the right of free expression, the right of an accused to a fair
and public trial and the efficacy of the administration of justice, (para. 32)
[32]
The presumption is in favour of openness and the onus is on the party
seeking the publication ban to satisfy the court that the DagenaisiMentuck
test is
met
ANALYSIS
Role of the Crown in Seeking Publication Ban
[33]
It was suggested that the Crown application is simply self-serving and
tactical. The argument is that the police were able to generate sensational media
coverage prejudicial to the adult accused at the time charges were laid while the
Crown now seeks to suppress information that may be unfavourable.
[34]
This simply does not make logical sense given the very limited publication
ban sought.
Put simply 1 if there is any evidence at trial that casts the pollee,
Crown or their witnesses in a poor light the public will be fully informed.
This
suggestion is also belied by the fact that six of the adult accused support the
- 13-
Crown and so take the position that the publication ban will protect their client's
fair trial interests.
[35]
Further, in R. v. Brown (1998), 126 C.G.C. (3d) 187 (Ont, Gen. Div.);
Justice Trafford discussed the fact that the Crown has an obligation to defend all
of the constitutionally
recognized interests in a properly conducted trial.
This
includes the right of the accused to a fair trial which requires an impartial jury. As
such, Justice
Trafford
held, and
I agree, that
it is compatible
with the
responsibility of the Crown to seek a publication ban in appropriate cases.
Nature and Extent of Media Coverage
[36]
Justice Duma described the scope of the media coverage of this case as
massive and unprecedented.
It stands to reason that radio and television
coverage of the trial of NY. would be on the same scale.
[37]
Simply put this case must be near the top of the list in terms of cases in
which massive and sustained media coverage raises a concern that fair trial
rights may be compromised.
[38]
The allegations
could not be more sensational
polltlclans and on public buildings.
involVing attacks on
The allegations are also of a type likely to
evoke an emotional or prejudicial response given that the terrorist threat alleged
would pose a general threat to members of the public going about their ordinary
- 14-
lives. There would be few people in Peel Region who would not themselves, or
have family or friends who, ride the Toronto subway and frequent public
buildings.
[39]
Prospectivejurors would recognize themselves as possible targets of the
conduct alleged. For a multitude of reasons this is an emotionally charged case.
It stands to reason that strong emotions may cause or contribute to) and I
paraphrase Chief Justice Lamer, impressions that cannot be consciously
dispelled.
[40]
The media record of the trial of N.Y. will also be readily available to the
public, which of course includes prospective jurors, by means of electronic and
other sources.
[41]
Certain information has already been published linking named adults to
particular activities. This reporting, insofar as it is in evidence before me, is
rather cryptic. It would pale in comparison) in terms of potential prejudice, to
detailed reporting concerning hours and perhaps days of testimony as to the
precise words and conduct of identified adult accused.
[42]
I take little comfort from the fact that the adult trial may not take place for
a considerable length of time. I think it is only reasonable to expect that the .
-15-
massive publicity this trial will attract will be recycled and repeated in the weeks
leading up to the adult trial.
The Concern of "A Steady Stream of Publicity"
[43]
In Dagenais the Court was dealing with a discrete concern, being a
. particular fictional broadcast, that might be perceived as based on or similar to
the cases pending. Given the faith we place in juries I can well understand why a
judge could be confident, through a challenge for cause procedure and/or by
means of a clear instruction, that the jury would base its decision on the evidence
heard in court and not be influenced by a fictional show on television.
[44]
The case before me, however, falls squarely into the "more problematic"
category identified by Chief Justice Lamer in Dagenais. Such cases do not relate
to "identifiable and finite sources of pre-trial publicity" but rather are characterized
by "a period of sustained pre-trial publicity concerning matters that will be the
subject of trial."
[45]
In these types of cases Chief Justice Lamer recognized:
[ ... 1 the
affect of instructions is considerably lessened. Impressions may be
created in the minds of jury that cannot be consciously dispelled, The jury may
at the end of the day be unable to separate the evidence in court from
information that was implanted by a steady stream of publicity. (para. 88)
- 16 -
The Practical Effect of the Proposed Publication
[46]
Ban
It bears emphasis, that the Crown is seeking an extremely
limited
publication ban. The Crown position is that the media should be able to report
everything that occurs at the trial save and except the names of the adult
accused and personal details that would identify them such as their addresses,
telephone numbers, or their images and voices as captured on videotape"
[47]
The Crown is not seeking to prevent the public from having a full
appreciation of the evidence.
The Crown is seeking an order which will to a
considerable
any visceral,
extent
prevent
emotional
public
reaction
from
fastening on named adults prior to the commencement of their own trials.
[48]
There are obviously a small number of people who have some personal
knowledge of the adult accused, their families or friends and to whom their
names, and the acts they in particular are alleged to have committed, would have
some significance.
To the rest of the population the names are meaningless.
The public undoubtedly want to hear the evidence as to who did what and when.
Most would be oblivious and uninterested as to whether the adult accused were
identified by name.
[49]
The many cases cited by counsel identified particular beneficial aspects
of the fundamental right of freedom of expression.
When I review the list I have
- 17 -
difficulty in seeing that the limited publication ban sought by the Crown will
significantly
affect
considerations
freedom
of expression.
Specifically, and I advert
to
raised in the caselaw and by counsel, the media will have the
right to report and comment on the evidence and proceedings at trial including:
[50]
(a)
generally speaking, the strength of the evidence relied upon by the
Crown to bring this case to trial;
(b)
the investigation and actions taken by the Integrated National
Security Enforcement Team of the Royal Canadian Mounted Police;
(c)
the activities of Mubin Shaikh who is described as an undercover
police agent;
(d)
to quote Justice Cory in Edmonton Sun, "The nature of the evidence
that was called, the arguments presented, the comments made by
the trial judge.". ";
(e)
the extent to which any evidence appears illogical or inconsistent;
(f)
the extent to which any evidence may be qualified or contradicted in
cross-examination; and
(g)
to paraphrase Justice Trafford in Brown, the performance of the
Crown Attorneys, the police officer and the trial judge.
There are some cases in which a benefit of naming all participants in the
trial is that members of the community are alerted to the fact that a particular
person or matter is before the courts. As such, if individuals have evidence they
are afforded an opportunity to come forward.
There is no suggestion that this is
- 18-
.a relevant consideration given the extensive coverage of the matters in issue and
the fact that the names of the adult accused are in the public domain.
Efficacy of the Ban Sought
[51]
In the 1994 Dagenais decision Chief Justice Lamer made the point that
recent technological
advances
made it increasingly
difficult to meaningfully
restrict the flow of information. This difficulty has markedly increased since 1994.
The starting point, therefore, is that In 2008 no publication ban is likely to be
completely effective.
[52]
The efficacy of the proposed ban is reduced by the fact that certain of the
information subject to the ban has already been published, To a considerable
extent publication to date appears to be based primarily on police statements
outlining the allegations at the time the charges were laid.
[531
The actual evidence heard to date has, however, been subject to broad
publication bans which, with two exceptions, were all mandatory publication bans
required by the Criminal Code.
Obviously the level of detail that will be put on
the public record at the trial of N.Y., with witnesses providing detailed accounts of
events, and video and audiotapes
being played, will be quantitatively
qualitatively much different than publications to date.
and
- 19-
[54]
Counsel for Mr. Chand also pointed out that the efficacy of the ban will be
reduced to the extent that the jurors at the adult trial, hearing the opening Crown
statement, are able to cast their minds back to the pre-trial publicity and thereby
attach names to the various adults about whom evidence was heard at the trial of
N.Y.
[55]
The force of this argument is, however, lessened by the fact that by the
time of the opening statement at the adult trial the jurors may well have been
screened through a challenge for cause procedure and certainly will have
received preliminary instructlons from the trial judges that they are to focus solely
on the evidence at trial and ignore anything else.
[56]
The limited publication ban sought by the Crown will, in
my
opinion, have
the salutary effect of preventing the names of particular adult accused, identified
with their conduct, from being seared into the public consciousness at this trial.
[57]
Publication
bans are seldom, if ever, completely
effective.
For the
reasons noted this one will not be. To my mind! that is certainly not a reason to
deny this application.
I am satisfied that the ban sought will for the most part
achieve its objective.
[58]
Counsel for Mr. Gaya suggested that the publication ban should provide
that in reporting no differentiation
should be made among any of the adult
- 20-
accused.
In other words, anything done by any of the adults would simply be
attributed to "an adult accused".
This would, however, severely impinge on the
interest of the public in understanding the case. For example, and hypothetically,
if the Crown adduced evidence of ten incriminating statements and actions the
public would have no understanding of whether the evidence related to one, two
or ten of the adult accused. I do not, therefore, accept this submission.
The Media Position
[59]
Mr. Schabas' submissions were comprehensive and helpful. He provided
a thorough review of the law.
[60]
Mr. Schabas came close to taking an absolute position. He said he found
it difficult to identify a hypothetical fact situation in which a publication ban would
ever be necessary given the availability of a challenge for cause procedure and
the jurisprudence
that reflects the faith we place in juries to follow a judge's
instructions.
[61]
As set out above, Chief Justice Lamer in Dagenais and Chief Justice
Dickson in Corbett speak to the strength of the jury system and the faith we put in
juries to discharge their duties. I agree with their observations and, in any event,
am certainly bound by them.
- 21 [62]
It remains that jurors are only human. It should also be remembered that
in Corbett the Supreme Court of Canada decided that in certain circumstances
"
evidence as to the criminal record of an accused should not be admitted on the
basis that, while relevant to an assessment of credibility, the potential prejudice
outweighed the probative value.
In other words, Corbett is founded on the
premise that jurors, being human, may find it impossible to honour their oath and
follow the instructions
information.
of the trial judge if presented with highly prejudicial
There are many other examples in our criminal law in which
probative evidence may be excluded due to its potential prejudicial effect on the
minds of jurors.
[63]
Mr. Schabas noted that the Crown has not presented any survey, social
science or other expert evidence to support the proposition that the publicity in
question will pose a risk that jurors will be tainted. In his words "the fact that they
say it is so does not make it so."
[64]
In Dagenais, however, Chief Justice Lamer stated:
To begin, I doubt that jurors are always adversely influenced by publications,
There is no data available on this issue, However, common sense dictates that
in some cases jurors may be adversely affected, (para,87)
(65]
In Phillips v. N.S. (Westray Mine
Cory stated:
Inqu;ryl
[1995] 2 S.C.R. 97, Justice
- 22Some of the ideas expressed recently in Dagenais v. Canadian Broadcasting
Corp" supra, concerning the nature of the risks posed by pre-trial publicity to the
fair trial rights of individual accused should be repeated, . The influence which
publicity will have upon jurors must be assessed in light of the circumstances
presented by each case. Despite the helpful studies of social scientists in this
area, identifying the lasting effects of publicity on jurors remains an inexact
science. Recent increases in the number of studies which have been done on
juror prejudice are encouraging and promise better guidance for the future. I do
not think it possible yet, however, to disregard the warning given in 1952 by
FrankfurterJ. dissenting in Stroble v. California, 343 U.S. 181 (1952), at p. 201:
Science with all its advances has not given us instruments for
determining when the impact of such newspaper exploitation has
spent itself or whether the powerful impression bound to be
made by such inflaming articles as here preceded the trial can
be dissipated in the mind of the average juror by the tame and
often pedestrian proceedings in court.
Perhaps science will one day be able to prove that in certain situations juror
prejudice is inescapable, Until that time, common sense must provide guidance
in these decisions. (at p. 165)
[66]
This indicates to me that expert evidence is not required.
In many cases
publication bans have been ordered without reference to expert evidence in
support. (For example, see R. v. $andham, [2007] Q,J. No. 5310 (S.C.J.); R. v,
Mason, [20051 Q,J. No. 5294 (S.C.J.); R, v, Brown (1998)] 126 C.C.C. (3d) 187
(Ont.
[67]
Gem.
Div.); and
R,
v. Lake, [1997] Q,J. No. 5446 (Gen. Div.)
In Men tuck, Justice Iacobucci made the point that the requisite real and
substantial risk to fair trial interests, ,•. ,. must be a risk the reality of which is wellgrounded in the evidence" (para, 34). I agree with the Crown that the "evidence"
referred to is not necessarily expert evidence and does include the. evidence to
be adduced at trial.
- 23-
[68]
Applying the "common sense" suggested by Chief Justice Dicksonl the
likelihood of jurors being adversely affected would be greatest in a high profile
case, with intense media coverage, involving evidence that the public may
understandably find alarming and threatening.
[69]
ML Schabas also submitted that in Peel Region, with a population of over
one million people, it will be possible to find 12 jurors who, through a challenge
for cause procedure, will be found to be impartial.
He noted that there has never
been a case in Canadian history in which a jury could not be selected.
[70]
While this is correct it is by no means a complete answer.
. prospective jurors might respond appropriately
The fact that
and so be selected does not
address the concern in Dagenais that impressions may be created which cannot
be dispelled despite the best efforts of a juror.
[71]
Mr. Schabas also made the point that identifying the adults by name
would avoid unfairness to those adults having lesser involvement.
I agree that it
is relevant to consider that if the· adults are not identified and differentiated they
may all be viewed in the worst possible light
[72]
While this is a consideration, I note that of the 14 adults, 6 support the
publication ban sought by the Crown and 7 have taken no position.
Only Mr.
Chand, who initially favoured a broader publication ban,' argued in favour of no
- 24-
publication
ban.
As such, counsel representing
the adults having lesser
involvement do not appear to share the concern raised.
[73]
In summary, the near absolute position advanced by Mr. Schabas comes
close to a call to simply abolish the DagenaisiMentuck
test
This I have no
authority to do nor am I entitled to interpret and apply the test in such a manner
that it is effectively written out of existence.
If there are arguments to be
advanced that, by reason of technological advances or new and better expert
evidence, publication bans are no longer efficacious or necessary that will be up
to a higher court to decide.
APPLICATION OF THE DAGENAIS/MENTUCK
[74]
TEST
With the forgoing reasoning and considerations
in mind I turn to the
application of the DagenaisiMentuck test.
[75]
It is difficult to conceive of a case in which there is a greater risk of
sustained and prejudicial pre-trial publicity.
It is also difficult to conceive of a
more limited publication ban than that sought in this case.
[76]
In my opinion the limited publication ban sought by the Crown and six of
the adult accused, is necessary to prevent a real and substantial risk to the
fairness of their trial. This risk remains despite the availability of a challenge for
- 25-
cause jury selection process given the recognized concern that sustained and
inflammatory pre-trial publicity may improperly influence and prejudice the minds
of jury members despite their best efforts to set aside any bias and focus solely
on the evidence heard in court.
[77]
There are no reasonably available alternatives to avoid this real and
substantial risk- Adjourning the trial of N.Y. to after the adult trial is not an option.
N.Y. wishes to proceed with his trial and has a Charier right to be tried within a
reasonable time.
For the reasons given I do not believe that the challenge for
cause procedure coupled with the instructions of the trial judge will be sufficient
to safeguard the fair trial interests at stake.
[78]
The positive effect of the ban is that it will significantly enhance the fair
trial interests of the adult accused.
As discussed in my opinion the negative
effect of the ban is a minimal intrusion on freedom of expression.
The positive
effects of the ban outweigh any negative effects on the rights and interests of the
parties and the public.
[791
I, therefore, grant the limited publication ban sought by the Crown as
follows:
The names Fahim Ahmad, Zakaria Amara, Asad Ansari, Shareef Abdelhaleern, Qayyunl
Abdul Jamal, Ali. Mohammed Dirie, Yasin Abdi Mohamed, Jahmaal James, Amin
Mohamed Durrani, Steven Vikash Chand, Ahmad Mustafa Ghany, Saad Khalid, Saad
Gaya and Ibrahim Aboud, or any other evidence which would identify the aforementioned
named persons during the Respondent's trial, shall not be published in any document, or
- 26-
broadcast
or transmitted
aforementioned
in any way, until such time as the trial in respect
of the
named persons is ended.
For greater clarity, evidence which would identify the named persons includes, but is not
limited to, names, initials actually corresponding to the initials of the named persons,
addresses, telephone numbers, visual images and audio recordings.
ARGUMENT ON BEHALF OF MR. GAYA TO EXTEND PUBLICATION
TO CERTAIN ASPECTS OF BOMB PLOT ALLEGATIONS
[80]
BAN
As stated on the interim order, out of an abundance of caution and
pending full argument, I extended the publication ban at the request of counsel
for Mr. Gaya to include a portion of the Crown allegations concerning what has
been referred to as the "bomb plat".
[81]
The argument on behalf of Mr. Gaya was -that the bomb plot was not
relevant to the trial of N.Y. so that having the Crown allegations on the record,
when such allegations would not be presented in evidence and tested at trial,
would ..be unfair.
In contrast the other Crown allegations
j
which a number of
counsel characterized as having a "spin", would be tested at trial and whatever
media coverage the allegations received would be overtaken by greater publicity
of the evidence of witnesses subject to cross-examination.
[82]
Leaving aside the point that there was no actual application before me for
a more extensive ban there are a number of reasons why I would not grant such
relief.
- 27-
[83]
First, and foremost, the Crown takes the position that the bomb plot is
part of its case.
Mr. Chernovsky has filed a Notice of Application "to exclude
evidence of a bomb plot that the Crown intends to tender at trial." I will have to
decide that application
and the media will have an interest in reporting the
evidence referred to and the ruling given.
The bomb plot either in terms of
evidence, or argument resulting in an order to exclude evidence, is part of this
trial.
[84]
SecondlYj the references to the bomb plot to which counsel for Mr. Gaya
takes exception are largely, if not totally) already in the public record.
[85]
Thirdly, the proposed edits do not appear to have much practical
significance.
No objection is taken to the media reporting on a plan to acquire
the materials to build a truck bomb for the purpose of a terrorist attack and
researching how to build a cellular telephone triggering device with unlimited
range. Objection is taken, however, to identifying the alleged targets for the truck
bombs and the fact that a warehouse was rented and a shipment of ammonium
nitrate delivered to the warehouse.
[861
Applying the DagenaisiMentuck
test I do not believe that the extended
publication ban sought by counsel for Mr. Gaya is necessary in order to prevent a
- 28-
real and substantial risk to the fairness of Mr. Gaya's trial, particularly given that
he will not be identified at the trial of N.Y.
[87]
Further, the positive effects of the ban, which I view as of little or no utility,
do not outweigh the negative effects of the proposed ban.
[88]
On the first day of the hearing, counsel for Mr. Gaya also advised that he
might seek a publication ban if the Crown sought to introduce certain wiretap
evidence concerning Mr. Gaya. It was, therefore, agreed that Mr. S!anksy would
forthwith write to the Crown, with a copy to counsel for N.Y., advising as to the
specific wiretap evidence to which he objects.
The Crown shall as soon as
possible advise Mr. Siansky whether it intends to introduce this evidence at trial.
Counsel for N.Y. shall similarly advise Mr. Sianksy if they intend to introduce this
evidence or elicit it in cross-examination.
[89]
On the second day of the hearing there was further discussion and Mr.
Siansky stated that his concern related to wiretap evidence that made certain
reference to the bomb plot.
At this time I do not have any particulars of this
evidence and so cannot indicate whether the rationale of my reasons on this
application would also apply to that evidence.
- 29-
RELEASE OF EXHIBITS TO MEDIA - YOUTH CRIMINAL JUSTICE ACT
[90]
A request by the media for access to exhibits filed on the application was
dealt with late on the final day of the hearing,
The exhibits consisted of the
Crown Notice of Application, the CroWn Summary of Anticipated Evidence, the
Crown factum, the Record of the Third Party Respondents and the factum of
Steven Chand.
[91]
It was common ground among counsel that the exhibits filed on the
Crown application
were records within the meaning of the Y.G.JA.
and I
proceeded on that basis.
[92]
Section 119(1)(S) of the Y.C.J.A. provides that "any person or member of
a class of persons that a youth court judge considers has a valid interest in the
record" may be given access if the judge is satisfied that "access to the record is
[ .,. ] desirable in the interest of the proper administration of justice."
[93]
It was also common ground that the media representatives were persons
with a valid interest in the exhibits.
The authorities previously cited make clear
the importance of freedom of expression and media scrutiny of the administration
of justice.
[94]
Mr" Schabas provided a list of media representatives who were seeking
access to the exhibits.
- 30-
[95]
It made practical sense, and I ordered, that the media representatives
have access to the these exhibits.
Fair and accurate reporting is facilitated by
such access.
7/~-
?
Released:
April 1) 2008
SPROAT J.
- 31 COURT FILE NO.: YC-07-1587
DATE: 20080401
ONTARIO
SUPERIOR COURT OF JUSTICE
(sitting as a Youth Justice Court)
BE TW E E N:
HER MAJESTY THE QUEEN
Applicant
-
and-
N.Y.
Respondent
-
and-
TORONTO STAR NEWSPAPERS LTD.,
THE CANANDIAN BROADCASTING
CORPORATION, THE ASSOCIATED
PRESS and CTV TELEVISION INC.
Third Party Respondents
RULING NUMBER ONE - CROWN
APPLICATION FOR LIMITED
PUBLICATION BAN
SPROAT J.
Released:
April 1,2008