Fight for publication ban in police trial

The ongoing prosecution of three Toronto police officers accused of sexual assault is the latest high-profile case where there is a dispute over whether details in an information to obtain should be subject to a publication ban until the end of the trial.

Lawyers representing the officers and various media outlets are scheduled to argue a defence request for a publication ban on May 3 in Ontario Superior Court. A number of rulings in recent years on this legal issue have highlighted differences of opinion among some of the most senior Superior Court judges in the province.

Toronto police officers Leslie Nyznik, Joshua Cabero, and Sameer Kara are all facing charges of sexual assault causing bodily harm as a result of an off-duty incident last year at a downtown hotel. The alleged victim is a civilian employee of the Toronto police and a member of the same union as the accused.

The officers are represented by Harry Black, Michael Lacy, and Peter Brauti, and a date has yet to be set for trial. They are seeking a publication ban on any details in the ITO that relate to specific allegations against their clients.

Some of these details are also included in a motion filed by Crown attorneys Philip Perlmutter and Susan Reid, seeking to have Lacy and Brauti removed for an alleged conflict of interest. The Crown is arguing the conflict arose when Lacy recently joined as a partner at the firm of Brauti Thorning Zibarras LLP.

The conflict motion has yet to be heard and a publication ban was imposed by Justice John Macdonald on certain details in the Crown’s notice of application. The “untested, one-sided, salacious information” in the documents would pose a “real and substantial risk to trial fairness” if made public before trial, wrote Macdonald in his April 26 ruling.

Iris Fischer, a partner at Blake Cassels & Graydon LLP, says an ITO can be distinguished from other types of pre-trial information.

“It is an affidavit that has resulted in a court order. Once executed, it is something that should be scrutinized by the public to ensure there has not been an abuse,” says Fischer, who frequently acts for the media.

More than three decades ago, the Supreme Court found that there is a presumption of public access to a search warrant once it has been executed. In 2005, it added that any restrictions to public access must satisfy the Dagenais/Mentuck test. What remains unsettled is the extent of the right to publish information in an ITO.

From the perspective of the defence, a judge needs to balance the right to access with legitimate concerns about fair trial rights, says Seth Weinstein, a partner at Greenspan Humphrey Lavine. “ITOs are now including incredibly detailed information. It may be the core of the Crown’s case. Or it may be potentially inadmissible evidence that is going to be challenged,” says Weinstein.

The Toronto defence lawyer represents Alexander Lisi, who is scheduled to be tried later this year on extortion charges stemming from alleged efforts involving the now notorious video of the late Rob Ford smoking crack cocaine.

Justice Ian Nordheimer ruled in 2013 that a nearly-500-page-long ITO that was part of a police investigation known as Project Traveller into the activities of Ford, Lisi and others would not be subject to a publication ban.

The fact that details of a criminal case may attract publicity before trial and that it may be online is not sufficient to ban publication, said Nordheimer.

“It is an argument that could be made nowadays regarding almost any case in which there has been any media attention at all,” wrote Nordheimer in CBC v. The Queen.

Lawyers for the Toronto police officers are pointing to a decision this spring by Justice Ian MacDonnell in R v. Vice Media Canada Inc. and the risk of “stigmatization” to the defendants if certain details in the ITO are made public.

MacDonnell upheld a production order against a reporter who had electronic communications with “homegrown” terror suspect Farah Mohamed Shirdon, who is at large and believed to be in Syria.

A publication ban was imposed on large portions of the ITO submitted by the RMCP for at least two years or until after a criminal trial has ended, if Shirdon is ever apprehended.

One of the cases that MacDonnell cited in his support of his ruling was a decision by Justice Bruce Durno in the so-called Via Rail terror case. Durno ordered ITOs to be unsealed, but he imposed publication bans on the information until after the trial and restricted how the public could access the documents.

Nordheimer, in his Project Traveller decision, concluded that access without the right to publish was not a reasonable alternative under Dagenais/Mentuck — a finding that MacDonnell said in Vice was wrong. “In my respectful view, the weight of authority is contrary to that conclusion,” he wrote.

The Superior Court judge added that he believes media unduly “fasten” on that notion that jurors will be able to follow instructions, as the Supreme Court stated in Dagenais.

Iain MacKinnon, who represents Vice, which is appealing MacDonnell’s ruling, says concerns that jurors will not fulfil their duties, in part because details are available online, is overstated.

“Jurors are not frail, little birds who are susceptible to any information outside the courtroom. They are more than capable of deciding cases on the evidence before them in court,” says MacKinnon, a partner at Chitiz Pathak LLP in Toronto.

He agrees with Fischer that often the focus of seeking to publish what is in the ITO is not about a potential defendant but to scrutinize state action.

The various decisions on ITOs and publication bans are likely to eventually make their way to the appellate court level. At that point, Fischer believes the analysis of Nordheimer will win out. “In my view, his rulings are the most consistent with the case law of the Supreme Court,” she says.

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