March 17, 2017
Postmedia Network Inc v Her Majesty the Queen 2017 ONSC 1433

This was an application under s. 487.3(4) of the Criminal Code for an order lifting the sealing order made by Justice Paull of the Ontario Court of Justice, with respect to an ITO that was filed in support of search warrants and production orders relating to a police investigation into Elizabeth Wettlaufer (“the accused”). She has been charged with eight counts of first-degree murder with respect to the deaths of eight nursing home residents in Woodstock and London, Ontario. She also faces four additional counts of attempted murder and two counts of aggravated assault.

On an application pursuant to s. 487.3(4) to unseal the ITO, the party seeking to uphold the sealing order (the Crown, in this case) has the onus of proving that this continued limitation on freedom of expression and freedom of the press is justified, in accordance with the Dagenais-Mentuck test.

Justice Heeney cites R. v. CTV, 2013 ONSC 5779 (which he refers to as Esseghaier) as the approach he would like to see taken in such applications.

Heeney J., states:

…The Crown must first prove that continuation of the order is necessary to prevent a serious risk to the proper administration of justice. If it does so, the court will then address the balancing exercise described in the second part of the test.

…The Crown argues that it is the ITO itself (which is in evidence as an exhibit to the affidavit) that provides the necessary evidence. The serious risk to the proper administration of justice – the fair trial rights of the accused, in this case – is self-evident from reading the redacted portions of the ITO.

…In Esseghaier, at para. 100, Durno J. provided the following summary as to the type of situations where serious risks to the fair trial rights of the accused were found to exist:

From the cases filed and submissions, the following non-exhaustive list contains some of the areas upon which serious risks have been found: Where the ITO contains:

(i) evidence that is presumptively inadmissible (i.e. confessions, other disreputable conduct, outstanding charges, criminal records, and hearsay (Flihoff))

(ii) evidence that appears to be inadmissible (whether some evidence was admissible was considered by Then J. in Eurocopter),

(iii) evidence the admissibility and quality of which are live issues (Hennessy) including evidence of witnesses who would require a Vetrovic warning (Flihoff), and

(iv) cases with sustained pre-trial publicity such that impressions may be created in the minds of jurors that will not easily be dispelled. (Dagenais)

On the first part of the Dagenais/Mentuck test, Heeney J. concludes:

I do conclude that redacting much of that information is necessary in order to prevent a serious risk to the proper administration of justice. Reasonable alternative measures will not alleviate that risk. It is conceded that this case has attracted, and will continue to attract, a great deal of media attention. Such attention is national in scope, so that a change of venue would not alleviate the risk because publication of this information would not be confined to the locality where the incidents allegedly occurred. While a challenge for cause is often offered as a viable alternative measure, the nature of the information in this case is such that a challenge for cause will not suffice to ensure that the fair trial rights of the accused are protected. To borrow the words of Durno J. quoted above, “the effect of publicity will be to leave potential jurors so irreparably prejudiced or to so impair the presumption of innocence that a fair trial is impossible.”

As to the second part of the test, Heeney J. states:

…sealing this information will protect the right of the accused to a trial by an impartial jury, based solely upon the evidence adduced at trial, uninfluenced by exposure to highly prejudicial information in advance of trial. While there is undoubtedly a deleterious impact on freedom of the press, and on the right of the public to be fully informed, the ITO will be sealed only on a temporary basis. I agree with the Crown that the order should be varied to provide for a complete, un-redacted version of the ITO to be filed in the court file immediately upon the conclusion of the trial or proceedings are otherwise complete. In the meantime, the redacted version, as amended by Schedule A, will be open to public scrutiny.