



WARNING

An order restricting publication in this proceeding was made under s. 517
    of the
Criminal Code
and continues to be in effect. This section of the
Criminal
    Code
provides:

517(1)          If the prosecutor or the
    accused intends to show cause under section 515, he or she shall so state to
    the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)      if a preliminary inquiry is
    held, the accused in respect of whom the proceedings are held is discharged; or

(b)      if the
    accused in respect of whom the proceedings are held is tried or ordered to
    stand trial, the trial is ended.

Failure to comply

(2)      Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)      [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985,
    c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.




COURT OF APPEAL FOR ONTARIO

CITATION: R v. J.A., 2020 ONCA 695

DATE: 20201103

DOCKET: M51556

Miller, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Applicant

and

J.A.

Respondent

Eric W. Taylor, E. Nicole Rivers and David Friesen, for the
    applicant

Leora Shemesh, for the respondent

Heard: October 29, 2020 by video conference

On appeal from the order of Justice Andrew J. Goodman of the
    Superior Court of Justice, dated April 16, 2020, granting the respondents s.
    522 application for bail pending trial, with reasons reported at 2020 ONSC 2312

REASONS FOR DECISION

[1]

On October 22, 2020, we released our decision on a s. 680 review in this
    matter. The majority determined that the review should be allowed, the order
    granting judicial interim release set aside, and a detention order granted.

[2]

On that day, in accordance with this courts normal practice, our
    decision was posted on the court website along with the courts standard
    warning which stipulates that portions of the reasons might be covered by a
    publication ban under s. 517. Immediately thereafter, the Crown contacted the
    court and raised a concern about the reasons being posted on the court website.
    Counsel for the accused subsequently joined in expressing that concern.

[3]

Given the nature of the issues raised, the panel directed that a hearing
    should be held to receive submissions regarding whether the reasons should, or
    should not, be publicly available. That is, of course, the reason for placing
    decisions of this court on the website.

[4]

The main submission made by the parties is that an order was made under
    s. 517 and consequently, in the language of the section:

the information given or the representations made and the
    reasons if any given or to be given by the justice shall not be published in
    any document, or broadcast or transmitted in any way

before the accused is either discharged or his/her
    trial has ended.

[5]

Two problems arise regarding the parties position that the courts reasons
    cannot be made publicly available because of the s. 517 order. One problem is
    that it is not clear that s. 517 applies to a review conducted under s. 680.
    There is no provision in the
Criminal Code
that makes s. 517 expressly
    applicable to a s. 680 review. This is of some significance since there are
    other provisions in the
Criminal

Code
that do extend
    the reach of s. 517 to other proceedings, For example, s. 522(5) makes s. 517
    applicable to the initial application for release when a person is charged with
    a s. 469 offence, which happens to be the case here. We would also note, on
    this point, the commentary made in
2021 Annotated Tremeear's Criminal Code
,
    by David Watt and Michelle Fuerst (Toronto: Carswell, 2020), under s. 517,
    where the authors say:

Under s. 522(5), the section applies to judicial interim
    release hearings in respect of a s. 469 offences, but is
not
incorporated in the review provisions of s. 680. [original emphasis].

[6]

The other problem is that the reasons that were given by the bail judge,
    and whose decision was reviewed by us, are openly available on various legal
    publishers websites, e.g., CanLII and QuickLaw. Counsel say that they did not
    realize that this was the case until the issue arose in this hearing. They say
    that they are now seeking to have those reasons removed from those websites,
    although they did not specify what steps are actually being taken in that
    regard. We note that the reasons of the bail judge were released more than six
    months ago.

[7]

Having considered this matter, we are not satisfied that, in the somewhat
    unique circumstances of this case, this court should withhold posting its
    reasons on the s. 680 review in this matter. We reach that conclusion for two
    reasons.

[8]

First, there is no clear statutory authority requiring that result.
    Absent express statutory authority that requires this courts reasons not to be
    publicly available, the openness principle would direct that the reasons should
    be available to the public. Put another way, there is no inherent jurisdiction
    in this court to withhold its reasons from the public or to otherwise direct
    that they remain secret. Indeed, any such conclusion would be inimical to the
    openness principle.

[9]

Second, it would be misleading to the Bar, to other members of the
    judiciary, and to the public, to have the reasons of the bail judge available
    to them, but not have the reasons of this court available, especially when this
    court has set aside the original decision. On that point, we note that, when
    last checked, the reasons of the bail judge had been cited 15 times in other
    decisions of the Superior Court of Justice, and twice in decisions in other
    provinces. Further, it is unknown how widely disseminated the reasons of the
    bail judge may have now become. We note, on this point, the commonly used
    expression that once something is on the Internet, it is there forever.

[10]

Partially in response to these concerns, the parties suggested that we
    could release an edited version of our reasons. Indeed, the parties provided us
    with a copy of our reasons, highlighting the portions that they said should be
    removed, such that the balance of the reasons could be released without offending
    the s. 517 publication ban. Somewhat paradoxically, the parties urged us to
    consider this route because they said that there were important issues
    addressed in the courts reasons that ought to be available to the Bar and to
    other courts.

[11]

We decline to provide an edited copy of our reasons as suggested. Doing
    so would potentially establish a precedent that would inevitably lead to
    counsel in other cases also asking for edited reasons for publication purposes.
    Indeed, such requests would likely be made not just to this court, but even
    more frequently to the trial courts. That would impose a burden on those courts
    that is not desirable.

[12]

Further, and more importantly, in reviewing the edits suggested by the
    parties, it became apparent to us that, if adopted, our edited reasons would be
    essentially unintelligible. Our reasons, so edited, would not allow the reader
    to properly understand the analysis that led to a reversal of the bail judges
    decision or, for that matter, to understand the divergence in opinion between
    the majority and the dissent. Publishing edited reasons in that fashion would
    only cause confusion and misunderstanding. The same would be true of only
    publishing the bottom line of our decision or a summary of it. The fact is
    that the evidence is critical to a proper understanding of our reasoning and
    our resolution of the issues that were before us.

[13]

The reality is that the circumstances here have undermined whatever
    purpose there may have been to the publication ban in the first place. It is
    not possible to now remedy that impact. Indeed, it has, in a very real sense,
    rendered the rationale for the order nugatory. At the same time, it creates a
    misleading image to have the bail judges reasons available to the public but
    have our reasons hidden.

[14]

In reaching our conclusion, we are mindful of the fact that an order
    under s. 517 is mandatory when it is requested by an accused person. That right
    is intended to protect the fair trial rights of the accused person. That
    protection, however, assumes compliance with the order and effective
    enforcement of it. That has not happened in this case, albeit through
    inadvertence. And it does not change the practical result. We would add that, to
    the degree that this situation creates any difficulties for the fair trial
    rights of the respondent, and none were raised before us, those difficulties
    can be remedied through the challenge for cause process.

[15]

Consequently, the panel will direct the Registrar to immediately re-post
    the courts reasons in full on the court website.

B.W. Miller J.A.
I.V.B. Nordheimer J.A.
J.A. Thorburn J.A.


