November 27, 2023
R. v. Riley, 2023 NSSC 377

The NSSC denied a request from the Federal Crown for a retroactive publication ban.

Randy Riley was acquitted by a jury of second-degree murder and unlawful
possession of a firearm on October 5, 2023. Kaitlin Fuller testified for the Crown,
was examined and cross-examined at length, and was the subject of a Vetrovec
caution. She was mentioned in reporting by the CBC, but her evidence was
reported in greater detail in two online articles by the Halifax Examiner, an online
publication. After the Halifax Examiner’s articles were posted, the Federal
Attorney General, representing the Witness Protection Program (WPP), applied for
a retroactive confidentiality order in relation to the details of Ms. Fuller’s evidence.

Justice Arnold states:

[42] I acknowledge that there was an obvious alternative measure that could have
prevented the present situation: the WPP, aware that a protected person was
testifying in a murder trial and that her evidence might touch upon information
pertinent to her WPP status, could have monitored the situation and raised its
concerns — through the PPS Crowns if necessary — before news organizations,
reasonably believing they were bound only by the existing publication ban,
published allegedly objectionable information.

[43] This leaves the final question: do the benefits of the proposed order
outweigh its negative effects? This issue requires some consideration of the
broader background to this application, and of the details of the remedy sought.

[51] To purport to make this order retroactive would result in potential
criminalization of reporting and publishing done in good faith reliance on an
existing publication ban. As counsel for the Attorney General conceded in the
hearing, the WPP could have monitored the trial, and specifically Ms. Fuller’s
evidence. They could have acted promptly. They were fully aware that Ms. Fuller
would be cross-examined and that the subject of her relationship with the WPP would arise in her evidence. I reject any suggestion that the WPP can claim to have
been taken by surprise. Having opted not to take what they now say are necessary
steps when they might have been effective, they now request draconian measures
after the horse has left the barn. In effect the Attorney General seeks an absolute
veto over public reporting before, during, and after a trial where a protected person
testifies, with no public disclosure of the specifics of what is being objected to, and
which can be invoked after the fact, when the impugned information has already
been published. Going further, they ask that the court act simply as a mouthpiece
for the WPP in imposing these ex post facto measures, without really undertaking
any balancing or exercising any discretion.

[53] The Attorney General concedes that they have no authority that would
support giving a publication ban retroactive effect — that is, to deem the new
order as having been in effect during the trial. There is no dispute that in some
contexts the court can order material removed from a website, such as defamatory
material, material published in contravention of a publication ban, or material that
violates a statue, such as the Youth Criminal Justice Act. I would not rule out the
possibility that section 11.5(4) might permit such an order in appropriate
circumstances, particularly where information has been disclosed in violation of an
existing order or publication ban. That is not the case here.

[55] I conclude that it would be disproportional to any good that would be
accomplished to make an order that would retroactively criminalize good faith
publication simply because the Attorney General and the WPP chose not to take
the necessary steps ahead of time, or because they later changed their minds. In
addition to the potential consequences for those who published the information, to
make such an order would have a chilling effect on freedom of speech in any
proceeding where a WPP-protected witness testifies.