November 2, 2017
R v Wagner 2017 ONSC 6603

The decision also examines the inherent jurisdiction of a superior court to review a refusal to issue a pub ban on a witness after the provincial court judge was functus.

The Respondent, Mary Wagner is a pro-life activist. She was charged with two counts of breach of probation, mischief and interference with property. The charges relate to events that took place on December 12, 2016 at a medical facility that provides abortion services. Ms. Wagner was convicted of disrupting operations at a women’s healthcare clinic that provides abortion services.

The Applicant, Attorney General for Ontario, seeks an Order to quash the order of Libman J. of the Ontario Court of Justice (“the trial judge”). The trial judge refused to issue a publication ban to prevent disclosure of the identity of a doctor ordered to testify at Ms. Wagner’s trial but granted a publication ban in respect of two other witnesses who were clinic employees.

Thorburn J., states:

It is agreed that in deciding whether to order a publication ban, the trial judge invoked the common law test which is the wrong test to be applied in a criminal proceeding. The provisions of section 486.5 the Criminal Code are the operative provisions in this criminal proceeding.

The trial judge made an error of jurisdiction in applying the wrong test and in failing to consider and analyze all seven factors that must be considered as set out in section 486.5(7) of the Criminal Code.

On the issue of inherent jurisdiction, Thorburn J., states:

In this case, although the trial judge is functus, the power to issue a publication ban is a matter within the inherent jurisdiction of the Superior Court. …

…There is no legislative provision to prevent this and to do otherwise would leave the Applicant with no recourse where important safety and privacy rights are at stake.