SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

MARK FARRELL

OMAR MARKS

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(excerpts from)

V O L U M E 1 1

RULING ON MOTION

(re Ban on Publication - Identity)

GIVEN ORALLY BY THE HONOURABLE MR. JUSTICE C. McKINNON

on the 27th day of November, 2001,

at OTTAWA, Ontario

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CHARGES: Sections 234, 465(1)(c), 87 - C.C.

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APPEARANCES:

Scott Little, Esq. counsel for the Ottawa Citizen

Mark Holmes Counsel for the Crown

JoAnne Meloche, Ms.

Mitch Chernovsky, Esq. Counsel for the accused,

Matt McGarvey, Esq. Mark Farrell

Robert Selkirk, Esq. Counsel for the accused,

Susan Morris, Ms. Omar Marks

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November 27, 2001

RULING ON MOTION TO BAN PUBLICATION (re Identity)

McKINNON, J. (orally):

This is an application by the Crown for an order of non‑publication of the name of Hugh Barrington Wilkins in a trial involving Omar Marks and Mark Farrell, who are charged with manslaughter. Mr. Wilkins is the main Crown witness. A voir dire has just been completed relating to the application.

Mr. Wilkins has previously testified at a trial with a jury held in the city of Ottawa in 1996. I take judicial notice of the fact that the trial was highly publicized. Mr. Wilkins' name was not subject to a publication ban at that time.

The accused were convicted of manslaughter; they appealed their conviction. In May of 2000, the Court of Appeal ordered that a new trial be held, and the new trial is now taking place before me alone.

Some months after Mr. Wilkins testified at the trial of Mr. Marks and Mr. Farrell in 1996, he was removed, pursuant to a deportation order, to the country of Jamaica, where he has lived until this past Friday, when he was permitted to return to Canada pursuant to a Minister's permit so that he could once again give evidence at the new trial of Mr. Marks and Mr. Farrell.

The fact that he would be attending to give testimony this morning has been published in the Ottawa Citizen this past Friday, November 23rd. I am informed by counsel that his name was mentioned in that story.

Apparently, over the weekend, following Mr. Wilkins' arrival in Canada and today's court proceedings, Mr. Wilkins learned through a girlfriend in Jamaica that the dwelling which he occupies in that country has been burned to the ground. It is his belief that the fire was deliberately set. Apparently, there is no electricity serving his dwelling, nor any internal plumbing; from the description it would seem to be more of a shelter than a dwelling house; nonetheless, it is Mr. Wilkins' home.

As a result of learning that his dwelling had been burned to the ground, Mr. Wilkins has connected that fact to the fact that he agreed to testify at this trial. He testified that he believed there to be a connection. Other than his testimony, there is no independent evidence that can be relied upon which relates his coming to Canada to give testimony to the fact that his dwelling has been burned to the ground, nor is there any independent evidence of the fact that his dwelling has been burned to the ground. The allegation is being related to the Court through hearsay, specifically a telephone call between Mr. Wilkins in Canada and his girlfriend, Natalie, in Jamaica, and another girlfriend, Sophia, in Toronto. The information was apparently imparted during this three-way telephone conversation.

Detective Richard has confirmed the allegation with Natalie; he telephoned Natalie, who informed him that Mr. Wilkins' dwelling was burned to the ground, she stated, between Friday night and Saturday morning, although in Mr. Wilkins' statement to Detective Richard, he stated that the fire occurred on Sunday rather than Friday.

Section 486 of the Criminal Code permits a judge, under subsection (4.1), to direct that:

"The identity of a victim or witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice."

Crown counsel, represented in this case by Mr. Holmes, I think quite properly, based upon the concerns raised with him by Mr. Wilkins, has brought the present application for a ban of publication of Mr. Wilkins' name or any information that could disclose the identity of Mr. Wilkins at this trial. Crown counsel has based the application upon section 486(4.1) of the Code, which I have just read.

Section 486(4.1) would appear to be a codification of the decision of the Supreme Court of Canada in R. v. Dagenais, reported, among other places, at (1994), 94 C.C.C. (3d) 289, and [1994] 3 S.C.R., 835.

Essentially, Dagenais ruled that it would be inappropriate for Courts to continue the common‑law rule that automatically favoured the right of an accused to a fair trial, which is protected by the Charter of Rights and Freedoms, in section 11(d), over the right of the media to report on what occurred in court, which is protected by section 2(b) of the Charter of Rights. The Supreme Court ruled that the hierarchical approach to rights must be avoided, both when interpreting the Charter and in developing the common law. If a ban on publicity is to be imposed, it must be proportional to the objective being sought. A publication ban should only be ordered where such a ban is necessary to prevent a real and substantial risk to the fairness of the trial, or because reasonable alternate measures would not prevent the risk that the salutary effects of the ban would outweigh the deleterious effects to this free expression of those affected by the ban.

At page 880 of the Supreme Court Report, Chief Justice Lamer stated:

"As the rule itself states, the objective of a publication ban authorized under the rule is to prevent real and substantial risks of trial unfairness. Publication bans are not available as protection against remote and speculative dangers."

In the recent twin decisions of the Supreme Court of Canada R. v. Mentuk, a judgment rendered November 15, 2001, bearing file no. 27738 and reported 2001 S.C.C. 76 and Vancouver Sun v. Her Majesty, O.N.E. and the Attorney General of Canada, a decision released upon the same date, namely November 15, 2001, bearing file no. 28190, 2001 S.C.C. 77, the Supreme Court of Canada in a decision penned by Justice Iacobucci restated and expanded the test formulated by Chief Justice Lamer in Dagenais, (found at page 890 of the Supreme Court Report), in the following terms, found at paragraph 32 of the Mentuk decision:

"A publication ban should only be ordered when (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably (sic) alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice."

Justice Iacobucci explained that:

"The reformulation of the Dagenais test aims not to disturb the essence of that test, but to restate it in terms that more plainly recognize, as Lamer C.J. himself did in that case, that publication bans may invoke more interests and rights than the rights to trial fairness and freedom of expression."

Going on, Justice Iacobucci wrote:

"The first branch of the test contains several important elements that can be collapsed in the concept of "necessity" but that are worth pausing to enumerate. One required element is that the risk in question be a serious one, or, as Lamer C.J. put it at page 878 in Dagenais, a "real and substantial" risk. That is, it must be a risk, the reality of which is well grounded in the evidence. It must also be a risk that poses a serious threat to the proper administration of justice. In other words, it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained." (Emphasis added)

As I read the decision, publication bans, albeit permitted by Dagenais, and by the common law, and specifically permitted by section 486 of the Criminal Code, which in subsection (4.7) to some extent sums up the considerations which were identified in the case of Dagenais, are not to be issued on speculation. They are to be issued in cases, to use the words of Justice Iacobucci, "where there is a risk, the reality of which is well grounded in the evidence".

In the present case, Mr. Wilkins has previously testified in an open trial and was the main Crown witness in that trial. The evidence establishes that no measures of revenge were taken against him at any time following his giving testimony at that trial. He has informed the Court that in his home country of Jamaica, he has had occasion to testify against hardened criminals, as a result of which he has never been the subject of retribution.

In the present circumstances it would seem the Crown is attempting to close the barn door after the horses have left, or to use the words of Mr. Selkirk, trying to put the toothpaste back into the toothpaste container. Both Mr. Selkirk, on behalf of Mr. Marks, and Mr. Chernovsky, on behalf of Mr. Farrell, oppose the imposition of a ban.

One of the expressed fears identified by Mr. Holmes in his submissions to the Court, was that the Ottawa Jamaican community might inform people in Jamaica to whom they may be related, either through kinship or friendship, of the testimony of Mr. Wilkins, thereby posing a danger to Mr. Wilkins.

Clearly, if there is any relationship between the burning of his dwelling and his giving of testimony, then that relationship, the fact of his giving testimony, if that in fact be the cause, has already become known to those individuals who might do him harm, because the fact has already been the subject of publication as recent as Friday last. Consequently, nothing this Court can do at this time can protect Mr. Wilkins.

The fact that there has been no retributive action taken against Mr. Wilkins following his testimony given in 1996 would seem to suggest that Mr. Wilkins is not at serious risk.

Furthermore, the evidentiary base upon which the so‑called "serious risk" is founded seems to me weak and speculative. Putting it at its highest, it is based on hearsay and cannot be said to comprise the "risk, the reality of which is well grounded in the evidence" that the Supreme Court of Canada mandates in Mentuk.

Because I am not persuaded that a serious risk is posed to Mr. Wilkins through his testimony, I decline to order, pursuant to section 486(4.1), that the identity of Mr. Wilkins or any information that could disclose his identity not be published in any document or broadcast in any way.

However, I do order that the evidence taken with respect to Mr. Wilkins' fears as disclosed in the voir dire before me not be published in any way.

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The Honourable Mr. Justice C. McKinnon