COURT FILE NO.: 1009/06
DATE: 20070301
B E T W E E N: )
)
) Paul Schabas and Ryder Gilliland, for
) the Applicants
)
)
Applicants )
)
– and – )
and
) John North and Steve Coroza, for the Crown
and
) Dennis Edney, for Fahim Ahmad; David Kolinsky, for Zakaria Amara; Peter Martin, for Shareef Abdelhaleen; Michael A. Moon, for Steven Vikash Chand; Rocco Galati, for Mustafa Ahmad Ghany; and, Paul Burstein and Ingrid Grant, for Saad Khalid
for the Respondents
Respondents
and
N.Y. (Young Person), Z.M. (Young Person), N.S. (Young Person), S.M. (Young Person), and S.G. (Young Person)
Interested Parties
Christopher Hicks, for N.S., an
Interested Party
) HEARD: January 8, 9, and 10, 2007
Since 1976, if an accused person requests a publication ban1 at his or her bail hearing, the judge or justice of the peace is obliged to make the order. If the Crown applies, the judge or justice of the peace has a discretion whether to grant the order. In 1984, the Court of Appeal for Ontario found the mandatory publication ban at the request of an accused person offended s. 2(b) of the Charter of Rights and Freedoms, but that it was saved by s. 1 of the Charter, as the breach was demonstrably justified in a free and democratic society.
On June 2, 2006, 13 adults and 4 Young Persons were arrested and charged with terrorism offences. Shortly after their arrests a justice of the peace, at the request of one accused and the Crown, granted a publication ban pursuant to s. 517 of the Criminal Code, prohibiting the publication of the evidence taken, representations made, and reasons given at the bail hearings of all accused persons, including those who opposed the making of the order.
The applicants seek a declaration that the mandatory publication ban violates s. 2(b) of the Charter, and that the breach cannot be saved by s. 1 of the Charter as it is not justified in a free and democratic society. The applicants submit the law has changed since 1984, and that I have jurisdiction to reconsider the Court of Appeal ruling.
In addition, one accused, Ahmad Mustafa Ghany, who did not seek a publication ban at his bail hearing, argues his Charter rights were violated by the order obtained by his co-accused.
1 All publication bans under s. 517 of the Criminal Code are time-limited.
The application requires the determination of the following issues:
Does the principle of stare decisis preclude this court from considering whether s. 517 infringes s. 2(b) of the Charter?
If it does not, does s. 517 infringe s. 2(b) of the Charter?
If it does, is the infringement saved by s. 1 of the Charter?
Have the issues raised by Ghany already been determined by this court?
If not, does the mandatory nature of s. 517, when sought by one accused, breach the Charter rights of a co-accused who opposed the order?
Should costs be awarded against the applicants?
The Toronto Star Newspaper Ltd., The Canadian Broadcasting Corporation, the Associated Press, and CTV Television Inc. seek a declaration that the mandatory publication ban in s. 517 of the Criminal Code, in particular the words “and shall on application by the accused”, infringes s. 2(b) of the Canadian Charter of Rights and Freedoms in a manner that cannot be justified in a free and democratic society, and is of no force and effect.
If I were to find that the impugned portion of s. 517 is unconstitutional, the applicants submit I should determine if a discretionary publication ban should be imposed in these proceedings after hearing further submissions.
All counsel in the adult prosecution were served with the Notice of the Application and supporting material, and given an opportunity to participate in the hearing. In addition, counsel on behalf of the four Young Persons separately charged
under the Youth Criminal Justice Act (YCJA), were served and permitted to participate in the application as “Interested Parties”.2
Two of the accused persons, Ahmad Mustafa Ghany and Ibrahim Alkhalel Mohammed Aboud, support the applicants’ position.3
In addition, Ahmad Mustafa Ghany seeks a declaration that insofar as s. 517 of the Criminal Code purports to impose a mandatory time-limited publication ban in regard to his bail hearing, when he did not seek such an order, the section is of no force and effect, because the section removed the requirement for a judge or justice of the peace to exercise judicial discretion to determine whether an order should issue. It is submitted it is contrary to Mr. Ghany’s rights to an independent judiciary under the preamble to the Constitution Act, 1867, as well as ss. 2, 7, 11(e) and 15 of the Charter. Ghany abandoned his applications for severance of his preliminary inquiry and trial, as well as his application for costs. While his Notice of Application sought a declaration that s. 517, as opposed to the portion impugned by the applicants, was unconstitutional, that argument was not pursued by Mr. Galati. Ibrahim Alkhalel Mohammed Aboud supports Ghany’s applications, upon which oral submissions were made.
The Crown opposes the application, submitting I am bound by a Court of Appeal judgment which can only be reversed by a five-judge panel of that Court. In the alternative, they submit that while s. 517 infringes s. 2 (b) of the Charter, the infringement is justified pursuant to s. 1 of the Charter.
2 Since s. 110 of the YCJA precludes the publication of the name of a young person, or any other information related to a young person, if it would identify the young person as young person dealt with under the Act, no issue is taken in this proceeding, and none was taken in the previous application, regarding publication bans at the bail hearings of Young Persons.
3 All reference to the applicants in the judgment includes the accused who support the application, unless otherwise indicated.
As regards the Ghany application, the Crown submits he has not provided the mandatory notices of constitutional issues. Further, they submit he is attempting to re- litigate issues determined against him in a judgment of this Court released on July 27, 2006, and reported at 211 C.C.C.(3d) 234.
Counsel of behalf of Zakaria Amara, Fahim Ahmad, Saad Kalid, and Steven Vikash Chand, as well as N.S., an Interested Party, support the Crown’s opposition to the application. Saad Khalid, Steven Vikash Chand and N.S. seek costs against the applicants.
Criminal Code
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 (emphasis added)
if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
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) Every one 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.
The Charter
Guarantee of Rights and Freedoms
Rights and freedoms in Canada
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Fundamental Freedoms
Fundamental freedoms
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Before 1972, there was no legislative authority to impose a publication ban at a bail hearing. Two reports had addressed the issue of publication bans before the 1972 amendments. First, the Ontario Royal Commission Inquiry into Civil Rights (The McRuer Report) noted that at preliminary inquiries there were publication bans on confessions and admissions, and recommended no further restrictions on reporting at preliminary inquiries. This recommendation was not followed by Parliament in s. 539 of the Criminal Code, which prohibits the publication of all of the evidence taken at a preliminary inquiry. The ban is mandatory on application by any of the accused, and discretionary where the prosecutor applies.
Second, the 1969 Report of the Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections (the “Ouimet Report”), recommended that there should be a mandatory publication ban at bail hearings in the following wording:
On application by the accused or his counsel, the judge, magistrate or justice of the peace shall make an order prohibiting the publication of the proceeding. If the accused is not represented by counsel, the judge, magistrate or justice of the peace shall inform the accused that he is entitled to apply for an order prohibiting the publication of the proceeding.
However, in 1972, the Bail Reform Act was enacted, with a discretionary ban, regardless of who sought the ban at the bail hearing. In 1976, the section was amended to provide for the current wording, a mandatory ban upon application of the accused, and discretionary if sought by the prosecution. Counsel were unable to provide any reference in Hansard or other documentation to explain why the Ouimet Report recommendation was not enacted in 1972, or why it was in 1976.
In 1983, the State of California sought the extradition of Catherine Evelyn Smith in connection with the death of John Belushi. At her bail hearing in the District Court, the presiding judge issued a publication ban in the words of the current s. 517 of the Criminal Code, following a joint motion by counsel for the Attorney-General of Canada who was also acting as agent for the State of California, and by Ms. Smith’s counsel. Global Communications (Global) applied to the Ontario High Court of Justice by way of an originating notice of motion, pursuant to s. 24(1) of the Charter, submitting the bail hearing judge had no jurisdiction to make the order, and that the order infringed the applicant’s right to freedom of the press.
As reported at 3 C.C.C.(3d) 346 (Ont. H.C.), Linden J. held the bail hearing judge had jurisdiction to make the order, that the order prima face conflicted with s. 2(b) of the Charter, but the limit on the freedom of the press contained in s. 517 was demonstrably justified in a free and democratic society.
Global appealed the decision to the Court of Appeal for Ontario on three grounds. The second is relevant to this proceeding:
2) If s. 457.2 (now s. 517) of the Criminal Code does apply to extradition proceedings, is that section of no force and effect because it infringes s. 2 of the Charter insofar as it makes a non-publication Order mandatory if requested by the fugitive?
That is essentially the same issue the applicants seek addressed in this application.
The Court of Appeal agreed that a time-limited publication ban under s. 457.2 prima face conflicted with Global’s s. 2 (b) Charter rights: Re Global Communications Ltd. and the Attorney-General for Canada (1984), 10 C.C.C. (3d) 97. Thorson J.A., on behalf of the Court, concluded that “the one issue on which the outcome of this appeal must turn is whether s. 457.2 (1) constitutes a reasonable limit, within the meaning of s. 1 of the Charter, on the freedoms which the Charter guarantees to the appellant”. He concluded the section was a reasonable limit. No application for leave to appeal in the Supreme Court of Canada was brought.
From 1984 to 2006, there were no Charter challenges to s. 517. In 2006, a similar challenge was brought in Alberta. That decision is under reserve.
After the arrests in this case and the YCJA prosecution, three of the current applicants, and others, applied for certiorari and prohibition in relation to the orders made under s. 517 in the Ontario Court of Justice.4 The constitutionality of the mandatory ban at the request of the accused was not raised in those applications. The findings on those applications which are relevant to these applications are: 1) where one or more persons are charged in the same information, and one accused seeks a s. 517 publication ban, it applies to evidence, information, representations and reasons at the s.
515 bail hearings of all accused; and 2) an order under s. 517 which applies to an accused who does not seek a publication ban does not offend that accused’s s. 2(b), 7, 15 and 11(e) Charter rights.
4 On the first application, the media applicants were the Toronto Star, the Canadian Broadcasting Corporation, the Associated Press and the New York Times. On this application, CTV is an additional applicant and the New York Times is not an applicant.
The applicants in those applications relied on the affidavit of Bryn Gray, sworn September 27, 2006. On this application essentially the same affidavit, sworn June 21, 2006 is relied upon by the applicants.
While the constitutionality of s. 517 in regard to s. 2(b) of the Charter, and if s. 2(b) rights were violated, whether it was saved by s. 1 of the Charter, were not issues in regard to the media applicant’s first application, many of the submissions on this application, including those related to the practical impact of a finding of constitutional invalidity, were similar to the submissions on the first application. On this application, the focus was s. 1 of the Charter. On the previous application, the media submitted it was essential that the public have immediate access to the information from the bail hearings, and that much of the information was already in the public domain, although there was no evidence filed on either application regarding the bail hearing evidence, submissions or reasons. As an alternative submission, the media suggested the publication ban issue could be dealt with at the end of the hearing.
On this application, the media submitted that if the impugned portion of s. 517 was unconstitutional, one approach would be for the accused to apply at the bail hearing for the order. At that time, the accused would be required to satisfy a Kutynec-like threshold5 that the order could be obtained, applying the Dagenais-Mentuck test. If the judge or justice of the peace decided the threshold had been met, notice would be given to the media, although Mr. Schabas submitted notice was not mandatory. If the threshold was met, there could be a time-limited publication ban, pending a hearing to determine if
a ban should issue. That hearing could be held later in the day or at a later date, but would have to be heard by the same justice of the peace or judge. If the threshold had not
5 In R. v. Kutynec (1992), 70 C.C.C.(3d) 289, the Court of Appeal for Ontario held that a party with the burden of proof on a Charter application should be required to orally provide the basis upon which the order sought could be obtained. If the facts provided no basis upon which it could succeed, the trial judge did not have to hear the application.
been met, there would be no hearing to determine if an order should issue, and there would be no publication ban. The applicants concede that the suggested procedure would not result in immediate dissemination of the information in the cases where the accused met the threshold, unless the publication ban hearing was held the same day.
Mr. Schabas submits that if giving notice to the media delayed a bail hearing and the determination of the accused’s liberty interests a few hours, it would not result in delayed bail hearings. If there was a delay of days in the determination of bail, he conceded it would delay bail hearings.
As regards the argument that adding another issue to be determined by already over-extended bail courts would be administratively unfeasible, while a court cannot ignore the practical implications of having all bans discretionary, the applicants’ position is that it would be ‘too bad’, and additional resources would have to be provided by governments. In this regard, the applicants rely on the Supreme Court of Canada judgment in Singh v. Canada (Minister of Employment and Immigration) [1985] 1 S.C.R. 177, where the Court ordered hearings to be held to determine refugee status claims when none were being conducted.
Stare Decisis
The Position of the Parties
The respondents submit that I cannot reconsider Global, because the issues I am being asked to determine have already been decided by a higher court. They contend that until there is a decision by a five-judge panel of the Ontario Court of Appeal, I am bound by the decision in Global. As Mr. Hicks phrased it, there is no legal principle of “decrepitude” which would permit me to determine issues decided by higher courts many years earlier.
The applicants argue the rule of stare decisis is not a rigid rule. They contend the respondents’ submission reflects an “extraordinarily technical application of the doctrine”. The applicants argue “the world has changed since 1984”, and that Global applied “outdated” Charter principles. They contend that Global is no longer ‘good law’ because it was decided before R. v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.), where s. 1 of the Charter was examined, and Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C.(3d) 289, where the Supreme Court of Canada examined common law publication bans. While Global referred to the right to a fair trial being a fragile right, the applicants contend that right is as ‘hard as a rock’, noting there have never been problems selecting a jury, even in the most sensational trials. They argue I have jurisdiction to reconsider Global, and that I should exercise that jurisdiction.
Mr. Schabas argues an inferior court can decline to follow the judgment of a superior court, where the previous judgment is distinguishable, where there is doubt regarding the correctness of the decision, where the per incuriam exception to stare decisis applies6, or where to do so, would avoid an injustice.
In David Polowin Real Estate Ltd., v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (Ont. C.A.), Laskin J.A. quoted Lord Denning in regard to stare decisis, “The doctrine of precedent does not compel your Lordships to follow the wrong path until you fall over the edge of the cliff”. Laskin J.A. suggested that Justice Brandeis might have replied: “It is usually more important that a rule of law be settled, than that it be settled right”. Mr. Schabas submits that if I were to decline to determine the issue on the basis of stare decisis, I would “fall off the cliff”.
6 The per incuriam exception to the stare decisis rule permits a court to overturn one of its previous decisions provided two conditions are met: 1) the panel deciding the earlier case did not advert to judicial or statutory authority binding on it; and 2) had the panel considered this authority, it would have decided the case differently. It appears this exception relates to appellate courts exclusively and to the panel not adverting to previously decided cases, not cases decided after the judgment.
In the alternative, the applicants submit that were I to find stare decisis applies, I should nevertheless provide my analysis of the s. 1 issue, for the benefit of the Court of Appeal.
In Polowin, Laskin J.A. examined the principle of stare decisis as follows:
The values underlying the principle of stare decisis are well known: consistency, certainty, predictability and sound judicial administration. Adherence to precedent promotes these values. The more willing a court is to abandon its own previous judgments, the greater the prospect for confusion and uncertainty. “Consistency”, wrote Lord Scarman, “is necessary to certainty — one of the great objectives of law”: see Farrell v. Alexander, [1976] 1 All E.R. 129, [1977] A.C. 59 (H.L.), at p. 147 All E.R. People should be able to know the law so that they can conduct themselves in accordance with it. (emphasis added)
Adherence to precedent also enhances the legitimacy and acceptability of judge-made law, and by so doing enhances the appearance of justice. Moreover, courts could not function if established principles of law could be reconsidered in every subsequent case. Justice Cardozo put it this way in his brilliant lectures on The Nature of the Judicial Process (New Haven: Yale University Press, 1960) at p. 149:
[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.
But there is, of course, a price to be paid for rigid adherence to precedent: injustices in individual cases, continued application of legal principles long since outdated as society has changed, and uncertainty bred by judges who draw overly fine distinctions to avoid stare decisis.
Most modern judges disavow both a rigid adherence to precedent and an unrestrained right to depart from their court’s previous authority. Instead, they apply stare decisis flexibly, seeking a reasonable point on the spectrum Chancellor Megarry describes so well: (emphasis added)
Much has been written and spoken on the doctrine of judicial precedent, and doubtless much more is still to come. At one extreme lies the goal of such certainty in the law as to obviate all litigation save on disputed questions of fact, and the price to be paid is that of injustice in unforeseen cases. At the other extreme there is the goal of perfect hand- tailored justice in every case, at the price of great uncertainty in the law, and a flood of litigation. Each price is too great; and inevitably the greatest of
judges have differed in their views as to the point between the extremes at which the line is to be drawn. Those who feel most assured that they are wiser than their fathers are the most bold.
(R.E. Megarry, A Second Miscellany-at-Law (London: Stevens & Sons Ltd., 1973 at p. 134)
Where along the spectrum have we drawn the line? In R. v. Bernard, [1988] 2 S.C.R. 833, [1988] S.C.J. No. 96, at p. 849 S.C.R., in a dissenting judgment, Dickson C.J.C. wrote, “There must be compelling circumstances to justify departure from a prior decision.” See also R. v. Chaulk, [1990] 3 S.C.R. 1303, [1990] S.C.J. No. 139, at p. 1352 S.C.R. per Lamer C.J.C., where Dickson C.J.C.’s dissent on this point was adopted by the court; and R. v. Salituro, [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97. In other words, for the Supreme Court, acceptance is the rule; departure, the exception.
In Bernard, Chaulk, Salituro, and other cases, the Supreme Court has articulated five factors that would allow it to overrule one of its previous decisions: where a previous decision does not reflect the values of the Canadian Charter of Rights and Freedoms; where a previous decision is inconsistent with or “attenuated” by a later decision of the court; where the social, political, or economic assumptions underlying a previous decision are no longer valid in contemporary society; where the previous state of the law was uncertain or where a previous decision caused uncertainty; and, in criminal cases, where the result of overruling is to establish a rule favourable to the accused. (emphasis added)
These five factors were not meant to be a comprehensive list, nor need they all be present to justify overruling a previous decision. Instead, as Lamer C.J.C. said in Chaulk at p. 1353 S.C.R., “They are . . . guidelines to assist this Court in exercising its discretion.” But overruling a previous decision based on one or more of these five factors promotes the interests of justice and the court’s own sense of justice by bringing judge-made law into line with constitutional, legislative, or social changes, by removing conflicts and uncertainties in the law, or by protecting individual liberty. (emphasis added)
Our court has never itemized a similar list of factors to justify overturning one of our decisions. The Supreme Court’s factors likely provide a useful, though not exhaustive, checklist for provincial appellate courts in Canada ……. (emphasis added)
In Polowin, a five member panel of the Court of Appeal, reconsidered its interpretation in McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2001), 54 O.R. (3d) 704 of a statutory condition passed as a regulation under the Insurance Act. The Court held that where a car was damaged beyond repair and the
insurer elected to take title to the salvage, the insurer was not entitled to reduce its payment to its insured by the amount of the deductible in the policy. Eight insured persons commenced a class proceeding, alleging a breach of the statutory condition. The insurers moved to dismiss the actions, contending McNaughten was wrongly decided.
The motions judge, Haines J., was sympathetic to the insurer’s submission, but concluded that the principles of stare decisis required him to follow McNaughton and precluded him from reconsidering McNaughton. The insurers appealed to the Court of Appeal, submitting that stare decisis should not apply and that the motions judge had authority to depart from McNaughton, and ought to have done so. The Chief Justice ordered a panel of five judges to hear the appeal, “reflecting the court’s practice when … asked to overrule one of [their] previous decisions”: Polowin, para 5
Here, the parties both rely on the Court of Appeal judgment in Polowin. The applicants submit Polowin provides the roadmap whereby I have the authority to re- consider Global. The respondents submit that Polowin is a roadblock to my re- considering Global. I agree with the respondents.
As regards the appellant’s submission that I have the authority to reconsider Global, the same issue was raised in Polowin. The Court of Appeal found the argument had no merit, concluding the motions judge’s ruling was “entirely appropriate”. The judgment continued:
A fair reading of his reasons suggests that he would have decided the motions differently had he been free to do so. But he properly considered himself bound to follow McNaughton. If the error in McNaughton is to be corrected, if falls to this court, not to the motions judge, to do so.
The most telling aspects of Polowin for this case are the underlined portions in par 34 above. Those underlined portions establish that the applicant’s reliance on
Polowin is misplaced. Rather than providing the roadmap for a reconsideration of Global, Polowin precludes my reconsidering the case. The judgment examines the criteria under which the Court of Appeal has the ability to, and should reconsider one of its decisions. It does not provide criteria upon which a superior court of criminal jurisdiction has the authority to reconsider a judgment of the Court of Appeal. Indeed, it is authority that a superior court cannot reconsider a Court of Appeal judgment.
In addition, I agree with the comments of Ewaschuk J. in R. v. Hummell (1987), 36 C.C.C.(3d) 8 (Ont. H.C.) at p. 11:
… but the doctrine of precedent whereby the decision of a higher court binds a lower court also applies to Charter issues. To permit individual judges to make separate rulings on Charter issues without regard to rulings of higher courts would result in palm-tree justice and would displace the rule of law.
I am in the same position the Court of Appeal faced in R. v. DiGuiseppe (2002), 161 C.C.C.(3d) 424, and R. v. B.(K.G.) (1991), 5 C.R. (4th) 370 (Ont. C.A.) In the first appeal, two trial judges found that keeping a common bawdy house under s. 211 of the Criminal Code was unconstitutionally vague, contrary to s. 7 of the Charter. Both judges held that “acts of indecency” and “prostitution”, defining elements of keeping a common bawdy house, were so vague and ill-defined that the definition of the conduct prohibited in s. 210 of the Criminal Code failed to meet the standard required by s. 7 of the Charter.
The Crown appealed.
Finding that the Supreme Court of Canada had dealt with both issues against the respondents, Sharpe J.A. wrote in regard to the “indecency” issue:
[W]e are foreclosed by the rule of stare decisis from entertaining the submission that these charges should be stayed on the ground that “act of indecency”, as defined by the community standard of tolerance test, is unconstitutionally vague as a defining element of the offence of keeping a common bawdy-house.
As regards the “prostitution” element, Sharpe J.A wrote:
In view of these unequivocal statements from the Supreme Court, the rule of stare decisis precludes us from entertaining the submission that these charges should be stayed on the ground that “prostitution” is unconstitutionally vague as a defining element of the offence of keeping a common bawdy-house.
In B. (K.G.), the Crown unsuccessfully invited the Court of Appeal for Ontario to reconsider whether a recanting witness’s original statement could be used for the truth of its contents, acknowledging that the trial judge had applied the law from the Supreme Court of Canada that the original statements could not be used as contended by the Crown. The Court of Appeal rejected the submission, finding “We are bound by the judgments of the Supreme Court of Canada cited above, and our duty is to follow those judgments”.
The applicants also rely on the Court of Appeal judgment in R. v. H. (C.N.) (2002), 170 C.C.C. (3d) 253 in supporting their position that a judge of a lower court can re-consider rulings of higher courts. I disagree. R. v. H. (C.N.) was a sentencing case, not one where the constitutional validity of a Criminal Code was at issue, and the trial judge reconsidered and reversed a judgment of the Court of Appeal. Nor, was it a case where legislation was interpreted. It was a case where the trial judge felt sentencing amendments to the Criminal Code, and cases decided by appellate courts after Court of Appeal judgments setting guidelines for sentencing couriers who import cocaine, R. v. Cunningham (1996), 104 C.C.C. (3d) 542 (Ont. C.A.); R. v. Madden (1996), 104 C.C.C.(3d) 640 (Ont. C.A.), permitted him to deviate from those guidelines.
The Court of Appeal found the trial judge had attached too much importance to the changes, and that he was not free to depart from Court of Appeal decisions. Here, there has been no change in the legislation since Global. While it is not necessary for me
to determine the issue given my finding on the stare decisis issue, it is arguable that post- Global decisions dealing with common law publication bans have interpreted s. 2(b) of the Charter differently. However, I am not persuaded that H. (C.N.) supports the applicants’ position that I can reconsider binding appellate authority, given the clear statements on the issue in the cases already referred to which dealt directly with the issue.
In addition to the criteria already noted, the applicants also suggest Global can be distinguished from this case. I disagree. The question put to the Court of Appeal in Global is indistinguishable from the one I am asked to consider.
I find I have no authority to reconsider Global. Until such time as the Court of Appeal or the Supreme Court of Canada finds that Global was wrongly decided, it remains the law in Ontario.
The media applicants suggested that I should provide my analysis of the s. 1 issues, so that there is a record of how I would have determined the issues if I had the authority to consider it. While in cases where an alleged Charter breach is not established, there is an appropriate practice of providing the s. 24(2) analysis if the analysis concluding there was no breach is in error, I am not persuaded that approach is proper, where I am declining to conduct the analysis requested because I lack authority to do so. The issues to be determined and the potential implications of a finding of constitutional invalidity are of immense interest to trial courts that conduct bail hearings and reviews. However, since I have no authority to hear the application, it would be inappropriate to provide my s. 1 analysis.
The main application is dismissed.
When the media applied for certiorari to challenge the rulings made at the bail hearings, Mr. Galati, on behalf of Ahmad Mustafa Ghany, argued that if s. 517 was interpreted in a manner that permitted one accused to obtain a publication ban at his or her bail hearing that applied to all bail hearings of all co-accused, whether or not they sought a publication ban, the s. 2(b), 7, 11(d) and 15 Charter rights of those who opposed the ban were violated. The Crown argues that Mr. Galati is re-arguing an issue determined against his client in the last application. I agree. I have already ruled on the application, and found there was no violation of Ghany’s ss. 7, 11(d), 11(e) or 15 Charter rights at (2006), 211 C.C.C.(3d) 234, para 117 – 124.
Mr. Galati argues there was no s. 1 analysis in the first ruling. Having found no Charter breach in regard to Ghany or an accused in his position, there was no need to conduct a s. 1 analysis: R. v. Suberu [2007] O.J. No. 317 (Ont. C.A.) at para 65. As regards the oral submission that if my ruling relied on Global, it was wrong, since neither the ruling in Global nor the constitutionality of the impugned portion of s. 517, were litigated in the previous judgment, I am unable to determine any basis upon which a judgment of the Court of Appeal for Ontario could not be relied upon for the findings made by that court. Indeed, on this application, Mr. Schabas conceded it was proper to rely on findings regarding bail hearings in previous judgments.
Mr. Galati once again referred to Parliament not being able to bind the hands of judges, that accused persons were entitled to have independent judges. In effect, he argues that judges must always have a discretion to exercise where two co-accused take different positions. In itself, that does not establish a breach. The issue of one accused binding others was dealt with in par 134 of the previous judgment. There are other sections of the Criminal Code which permit one accused to obtain an order which others do not seek, such as Criminal Code, s 567. In the sections noted in par 134 of the
previous judgment, sections are noted which permit one accused to determine issues regarding others, sections in which a judge does not have the authority to make an independent assessment for each accused. There are other sections in which an accused person does not have a right to present arguments on issues. For example, a judge is required to impose a publication ban in regard to the name of the complainant upon request, regardless of the position of the accused, pursuant to s. 486(3)(4), a section that has been held to be constitutionally valid: Canadian Newspapers Co. v. Canada (Attorney General), (1988), 43 C.C.C.(3d) 24 (S.C.C.)
Mr. Ghany’s application is again dismissed.
Three of the respondents seek costs against the corporate applicants. They submit this application should have been brought at the same time as the applications challenging the orders made in the Spring of 2006. Instead, the applicants chose to bi- furcate their challenges to the orders made at the bail hearing. Those seeking costs submit that if there had been one application, defence counsel could have devoted time to preparing for the preliminary inquiries and trials, rather than having to respond twice to media applications. Given the ruling as to my jurisdiction to reconsider binding authority, it could also be argued that the applicants chose to challenge legislation in a court that had no authority to grant the relief sought. In that regard, it would have been far more efficient to raise the constitutionality of the impugned portion of s. 517 in the first applications and indicate that, since the Court of Appeal had already determined the issue, it was being raised to permit the media to appeal the ruling and challenge the constitutionality of the section in the proper court.
The applicants argue there should be no costs awarded. In all of the cases in which the media have been involved, no costs have ever been awarded against the media, to the best of Mr. Schabas’s memory. Given his experience, and the absence of any authorities from any party where costs have been awarded against the media on publication issues, I accept this would be ‘a first’. While a factor to consider, that in itself is not determinative.
The applicants argue they have a right to determine what issues to raise, the order in which the issues are raised, and when those issues should be raised. In support of their position that it was appropriate to not proceed with the constitutional challenge in the first application, they submit higher courts have held that courts should not determine the validity of legislation applying the Charter, if that determination is not required to decide the case.
There is authority that a court should not answer a constitutional question if it is not required for the determination of an application or appeal: Moyers v. Alberta (Labour Relations Board) [1989] 1 S.C.R. 1572; R. v. K. (R.) (2005), 198 C.C.C. (3d) 232 (Ont.C.A.) Recently, in R. v. Bank, [2007] O.J. No. 99 (Ont. C.A.), the Court held that “making unnecessary pronouncements about the constitutionality of legislative provisions is an unwarranted exercise of judicial power”.
However, those cases apply where the court is asked to determine a constitutional issue as well as other issues in the case. Here, it would be as though all issues raised in the two applications were raised in one. The Court of Appeal statement in Banks, that the “Supreme Court of Canada has repeatedly stated that a court should refrain from deciding constitutional issues which are unnecessary to the disposition of the case before it”, citing Moyers, is consistent with the view that the caution applies where the constitutional issue has been raised in the proceeding. The respondents’ position is
that it should have been raised in the first application. Since the media applicants submissions regarding the scope of the original publication ban were rejected on the first application, the respondents seeking costs submitted they should have challenged the legislation in one application.
The awarding of costs in criminal litigation is a rare event, although the scope and frequency of the awards have been expanded as a result of the Charter. R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.), at para. 97; R. v. Ciarniello (2006), 211 C.C.C.(3d) 540 (Ont. C.A.), at para. 35. There is no general statutory authority for a trial judge to make an award of costs in indictable matters: R. v. Chapman (2006), 211 C.C.C.(3d) 540 (Ont. C.A.)
The criminal cases where costs have been considered have identified factors such as “fault”, “conduct requiring censure” or a “marked and unacceptable standard departure from the reasonable standard expected of the prosecution” to justify the awarding of costs: R. v. Chapman (2006), 204 C.C.C.(3d) 457 (Ont. C.A.); Ciariello, supra. Our Court of Appeal has also found that costs are not usually awarded in criminal law cases to influence the conduct of litigation: Ciarniello, at para 33. One of the difficulties in applying the authorities where costs have been considered in criminal proceedings is that the issue generally arises between the parties to the litigation, the prosecution and the accused, or between the accused and a “non-party” that is required by the Criminal Code to participate, such as occurred in Chapman, not between a “non- party” seeking to have their Charter rights determined and accused persons.
Applying those criteria with appropriate modifications for this application, in all of the circumstances, I am not persuaded this is an appropriate case in which to award costs. First, while three of the applicants are the same as in the first application, one is
not. It is difficult to see how the additional applicant (CTV) should have to pay costs, when they did not participate in the first application.
Second, I am inclined to agree that all of the issues raised in the two applications should have been dealt with in one application. Having one hearing would have been more efficient for counsel and the court. It would have permitted the court to address all of the issues and arguments presented in both applications. For the prosecutors and defence counsel, having one hearing would have been far more efficient and permitted the time available to be used for trial and preliminary inquiry preparation. Particularly where the cases involve 18 accused persons and Young Persons, having two hearings meant a large number of defence lawyers were potentially involved twice. In terms of the operation of a court facing pressing concerns for delay to trial, motion and conference times, one hearing would have been a benefit to the administration of justice.
However, notwithstanding these conclusions, I cannot find that the media applicant’s tactical or procedural decisions, or their conduct, involved a fault component as described in the case law, or that the conduct required censure. Their first application raised issues which had not previously been addressed. I cannot conclude that their intention from the start of the litigation was to challenge the constitutionality of the section. It could be argued that had their first applications been granted, the authorities noted above may have dictated that this constitutional argument not be addressed.
Third, while not in itself determinative, that those seeking costs are on retainers funded by Legal Aid Ontario, and there is no obligation on counsel to seek costs in a criminal case, it is a factor to consider. Indeed, there will be cases where it would be prudent for Legal Aid to attempt to recover some of their fees and/or disbursements, if costs are appropriate. Here, there was no indication that Legal Aid Ontario had requested those retained under the plan to request costs.
In all the circumstances, I am not prepared to award costs against the corporate applicants.
The applications are dismissed.
Durno J.
Released: March 1, 2007
COURT FILE NO.: 1009/06
DATE: 20070301
B E T W E E N:
TORONTO STAR NEWSPAPERS LTD, THE CANADIAN BROADCASTING CORPORATION, THE ASSOCIATED PRESS and CTV TELEVISION INC.
Applicants
and –
FAHIM AHMAD, ZAKARIA AMARA, ASAD ANSARI, SHAREEF ABDELHALEEN, QAYYUM ABDUL JAMAL, MOHAMMED DIRIE, YASIN ABDI MOHAMED, JAHMAAL JAMES, AMIN MOHAMED DURRANI, STEVEN VIKASH CHAND, AHMAD MUSTAFA GHANY and SAAD KHALID
Respondents
and
N.Y. (Young Person), Z.M. (Young Person),
N.S. (Young Person), S.M. (Young Person), and S.G. (Young Person)
Interested Parties
DURNO J.
– 2 –
Released: March 1, 2007