R. v. Toronto Star Newspapers Ltd., 2006 CanLII 25418 (ON SC)

Toronto Star Newspapers Ltd. et al. v. Her Majesty the
Queen et al.
[Indexed as: Toronto Star Newspapers Ltd. v. Canada]

98 O.R. (3d) 339

Criminal law — Bail — Publication ban — Publication ban of proceedings at bail hearing under s. 517 of Code applying to all co-accused named in information where one co-accused requests it — Justice of the peace having jurisdiction to issue publication ban under s. 517 at set date appearance and not required to wait until bail hearing itself — Publication ban under s. 517 not infringing Charter of Rights and Freedoms — Canadian Charter of Rights and Freedoms, ss. 2(b), 7, 11(d), 11(e), 15 — Criminal Code, R.S.C. 1985, c. C-46, s. 517.

Seventeen accused were charged with terrorism offences. One of the accused sought a publication ban on bail proceedings pursuant to s. 517 of the Criminal Code. The order was granted. Media organizations and an accused who had not requested the publication ban brought an application for an order in the nature of certiorari quashing the publication ban. That accused also sought a declaration that the imposition of a mandatory publication ban in respect of a resisting accused at the simple request of a co-accused, without the exercise of judicial discretion after submissions, violates the Canadian Charter of Rights and Freedoms.

Held, the application should be dismissed.

The applicants had standing to apply for certiorari on the basis of an error of law on the face of the record or on the basis that the order was made without jurisdiction. The justice of the peace had jurisdiction to issue the order on a set date appearance rather than at the bail hearing itself. Where there are multiple co-accused named in an information and one seeks a mandatory order under s. 517, the order automatically applies to all accused, even if they opposed the making of the order. This interpretation was not contrary to the Charter. An accused does not have a Charter right to have the evidence, information, representations or reasons at his or her bail hearing published. There was no violation of s. 2(b) of the Charter. The presumption of innocence in s. 11(d) of the Charter does not apply at [page340] a bail hearing. The s. 7 or s. 11(e) rights of the accused who did not seek the order were not infringed. Nor were the s. 15 Charter rights of those opposing the ban violated. While those opposed to a ban would be treated differently, there was no evidence that the different treatment was on the basis of an enumerated or analogous ground. The order of the justice went too far to the extent that it applied to evidence, information or representations that happened to be made at the bail hearing that were not related to the bail hearing.

APPLICATION for certiorari quashing a publication ban.

Cases referred to Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; R. v. Mason, [2005] O.J. No. 5294, [2005] O.T.C. 1060, 138 C.R.R. (2d) 210 (S.C.J.); R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76 (CanLII), 205 D.L.R. (4th) 512, 277 N.R. 160, [2002] 2 W.W.R. 409, J.E. 2001-2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d) 349; R. v. Parent, [2003] O.J. No. 2038, 57 W.C.B. (2d) 504 (S.C.J.); R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, 144 N.R. 243, J.E. 92-1760, 52 Q.A.C. 1, 77 C.C.C. (3d) 124, 17 C.R. (4th) 1, 12 C.R.R. (2d) 1, 17 W.C.B. (2d) 576; R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2 (CanLII), 194 D.L.R. (4th) 1, 264 N.R. 201, [2001] 6 W.W.R. 1, J.E. 2001-294, 146 B.C.A.C. 161, 88 B.C.L.R. (3d) 1 , 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 86 C.R.R. (2d) 1, 48 W.C.B. (2d) 287; R. v. White, [2006] A.J. No. 179, 2006 ABCA 65 (CanLII), 380 A.R. 188, 69 W.C.B. (2d) 103, consd Other cases referred to Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, 139 D.L.R. (4th) 385, 203 N.R. 169, 182 N.B.R. (2d) 81, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1, 39 C.R.R. (2d) 189, 66 A.C.W.S. (3d) 444, 32 W.C.B. (2d) 273; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, [1989] S.C.J. No. 124, 64 D.L.R. (4th) 577, 102 N.R. 321, [1990] 1 W.W.R. 577, J.E. 90-47, 71 Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 45 C.R.R. 1, 18 A.C.W.S. (3d) 894; Global Communications Ltd. v. Canada (Attorney General) (1984), 1984 CanLII 2153 (ON CA), 44 O.R. (2d) 609, [1984] O.J. No. 3066, 5 D.L.R. (4th) 634, 2 O.A.C. 21, 10 C.C.C. (3d) 97, 38 C.R. (3d) 209, 7 C.R.R. 22, 11 W.C.B. 276 (C.A.); Lovelace v. Ontario, [2000] 1 S.C.R. 950, [2000] S.C.J. No. 36, 2000 SCC 37 (CanLII), 188 D.L.R. (4th) 193, 255 N.R. 1, J.E. 2000-1451, 134 O.A.C. 201, [2000] 4 C.N.L.R. 145, 75 C.R.R. (2d) 189, 98 A.C.W.S. (3d) 1; R. v. Brooks, 2001 CanLII 28401 (ON SC), [2001] O.J. No. 1563, [2001] O.T.C. 306, 153 C.C.C. (3d) 533, 49 W.C.B. (2d) 533 (S.C.J.); R. v. Daly, [2005] B.C.J. No. 1697, 2005 BCCA 389 (CanLII), 256 D.L.R. (4th) 372, 215 B.C.A.C. 107, 198 C.C.C. (3d) 185, 66 W.C.B. (2d) 171; R. v. Dawson, 1997 CanLII 12348 (ON SC), [1997] O.J. No. 2188, 32 O.T.C. 257, 44 C.R.R. (2d) 359, 35 W.C.B. (2d) 33 (Gen. Div.); R. v. Forget (1982), 1982 CanLII 1937 (ON CA), 35 O.R. (2d) 238, [1982] O.J. No. 3708, 65 C.C.C. (2d) 373 (C.A.); R. v. Hall, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64(CanLII), 217 D.L.R. (4th) 536, 293 N.R. 239, J.E. 2002-1881, 165 O.A.C. 319, 167 C.C.C. (3d) 449, 4 C.R. (6th) 197, 97 C.R.R. (2d) 189, 54 W.C.B. (2d) 599; R. v. John, [2001] O.J. No. 3396, [2001] O.T.C. 647, 51 W.C.B. (2d) 24 (S.C.J.); R. v. LePore, [1998] O.J. No. 5824 (Gen. Div.); R. v. Papadopolous, 2005 CanLII 8662 (ON CA), [2005] O.J. No. 1121, 196 O.A.C. 335, 201 C.C.C. (3d) 363, 64 W.C.B. (2d) 576 (C.A.) [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 314]; R. v. Romagnuolo (January 27, 1999) (Ont. Gen. Div.); R. v. Russell, [2001] 2 S.C.R. 804, [2001] S.C.J. No. 53, 2001 SCC 53(CanLII), 203 D.L.R. (4th) 1, 274 N.R. 247, J.E. 2001-1732, 150 O.A.C. 99, 157 C.C.C. (3d) 1, 44 C.R. (5th) 231, 50 W.C.B. (2d) 509, affg 1999 CanLII 3812 (ON CA), [1999] O.J. No. 4862, 128 O.A.C. 220, 141 C.C.C. (3d) 556, 44 W.C.B. (2d) 432 (C.A.); R. v. Saikaly, [1978] O.J. No. 1077, 43 C.C.C. (2d) 275 (H.C.J.); R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, [1984] S.C.J. No. 32, 11 D.L.R. (4th) 161, 54 N.R. 34, [1984] 5 W.W.R. 52, J.E. 84-607, 9 Admin. L.R. 153, 13 C.C.C. (3d) 161, 41 C.R. (3d) 1, 12 W.C.B. 349; [page341] R. v. Thomas, [1995] O.J. No. 2363, 29 W.C.B. (2d) 440 (C.A.); R. v. Tutin, [2004] N.W.T.J. No. 40, 2004 NWTSC 46 (CanLII), 78 W.C.B. (2d) 289; R. v. V. (J.), 2002 CanLII 49650 (ON SC), [2002] O.J. No. 1027, [2002] O.T.C. 350, 163 C.C.C. (3d) 507, 3 C.R. (6th) 342, 53 W.C.B. (2d) 143 (S.C.J.); R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583, [2006] O.J. No. 2628, 212 O.A.C. 23, 211 C.C.C. (3d) 199, 71 W.C.B. (2d) 134 (C.A.); To ronto Star Newspapers Ltd. v. Ontario, [2000] O.J. No. 2398, [2000] O.T.C. 474, 97 A.C.W.S. (3d) 914 (S.C.J.) Statutes referred to Bail Reform Act, S.C. 1970-71-72, c. 37 [in R.S.C. 1970, 2nd Supp., c. 2] Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7–14, 11(d), (e), (f), 15, (1), 24(1) Constitution Act, 1982, being Sch. B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52 Criminal Code, R.S.C. 1985, c. C-46, Parts II.1, XVI, ss. 469 [as am.], 486(3) [as am.], 515 [as am.], (5), (6) [as am.], (10) [as am.], (11), 516 [as am.], (2) [as am.] 517 [as am.], (1) [as am.], (a) [as am.], (b) [as am.], 518 [as am.], (1) [as am.], 519, 521 [as am.], 522 [as am.], (4), (5), 539 [as am.], 542(2) [as am.], 651(4), 680 Interpretation Act, R.S.C. 1985, c. I-21, s. 12 Authorities referred to Ontario, Report of the Attorney General’s Advisory Committee on Charge, Screening, Disclosure, and Resolution Discussions (Toronto: Queen’s Printer for Ontario, 1993) Ouimet, Roger, Report of the Canadian Committee on Corrections — Towards Unity: Criminal Justice and Corrections (Ottawa: Queen’s Printer, 1969) Trotter J., Gary, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999)

Tony Wong and Ryder Gilliland, for applicants.

James Leising and Geoff Roy, for respondent/Crown.

James Silver and Dennis Edney, for Fahim Ahmad and Jahmaal
James.

David Kolinsky, for Zakaria Amara.

Anser Farooq, for Asad Ansari, Qayyum Abdul Jamal and S.G.

Peter Martin, for Sharref Abdelhaleen.

Patrick Metzler, for Amin Mohamed Durrani.

Michael Moon, for Steven Vikash Chand, respondents.

Rocco Galati, for Ahmad Mustafa Ghany, applicant.

Karen Unger, for Saad Khalid, respondents.

Christopher Hicks, for N.S., interested person.

[1] DURNO J.: — On June 2, 2006, 12 adults and five young persons were arrested and charged with offences contrary to Part II.1 of the Criminal Code, R.S.C. 1985, c. C-46 — terrorism offences. The arrests resulted in unprecedented media coverage locally, nationally and internationally. The police conducted a press conference on the date of the first court appearance. The published and broadcast reports included comments attributed to “unnamed police sources”, “police sources”, politicians, public officials and some defence counsel. Between June 3 and 12, 2006, there were at least 4,710 articles reporting on the arrests by news organizations [page342] around the world, including CNN, BBC News, The Los Angeles Times, Al-Jazeera, The Bangkok Post, The Sydney Morning Herald, The New York Times and the Wall Street Journal.

[2] At the third appearance of some of the adults, at the request of one accused with the agreement of the prosecutor, and over the opposition of four accused and counsel on behalf of the Toronto Star, the justice of the peace imposed a publication ban pursuant to s. 517 of the Criminal Code on all bail hearings and on the proceedings on the date the order was issued. A publication ban regarding the young persons was issued on an earlier date, and is not the subject of these applications.

[3] This application, by the Toronto Star, the Canadian Broadcasting Corporation, The Associated Press and The New York Times Company (the applicants), as well as an application by Ahmad Gustafa Ghany, seeks to quash that publication deferral order in regard to the adult accused only. While counsel on behalf of the young persons, charged in a separate information, were given standing to make submissions on the application, the application did not address the order regarding the young persons.

[4] The applicants seek:
(a) An order in the nature of certiorari, quashing the order of Justice of the Peace Currie banning publication in show cause hearings in respect of 17 different accused persons pursuant to s. 517 of the Criminal Code. [See Note 1 below] (b) A declaration that the issue of whether a publication ban should be imposed should be made in respect of the show cause hearing of each accused so that it is clear whether a ban is being requested by the accused or the Crown. (c) A declaration that unless an accused requests a publication ban in respect of his show cause hearing, a publication ban can only be imposed on a show cause hearing through the exercise of judicial discretion, on notice to the applicants, and in accordance with the Dagenais [See Note 2 below] principles.

[5] The applicants seek only a hearing before a justice of the peace and ruling to determine if the discretionary ban should be imposed. They do not ask this court to make the ruling. They submit that the [page343] application is about bail hearings and letting the public understand, so that they can have faith and confidence in the justice system. They argue that there is already a substantial amount of information about the case in the public domain, including comments attributed to police officers that the accused were “homegrown terrorists” who posed “a real threat”, as well as many other statements by “police sources” and other public officials.

[6] The application on behalf of Ahmad Mustafa Ghany seeks to quash the publication ban and a declaration that “insofar as s. 517 purports to impose a mandatory publication ban as against the Applicant, who resists one, at the simple request of another co-accused, without the exercise of judicial discretion after submissions, that the section is of no force and effect as being contrary to the Applicant’s ss. 2, 7, 11(e) and 15 Charter rights”.

[7] The applications require the following questions to be answered:
(1) Do the applicants have standing to seek to quash the ban? This issue involves an examination of the scope of certiorari. (2) Did the justice of the peace have jurisdiction to grant an order under s. 517 of the Criminal Code at a “set date” proceeding? (3) Where one or more persons charged in a single information seeks a s. 517 publication deferral and others do not, must the order issue in regard to all accused, regardless of their opposition to the ban? (4) If the order must issue, does s. 517 violate the Canadian Charter of Rights and Freedoms rights of the accused who did not seek an order? (5) Did the justice of the peace consider the criteria for a discretionary order, if his order was not a mandatory order? (6) If the justice of the peace had jurisdiction to grant the order for all accused, was the order banning publication of “the proceedings” on June 12, 2006 too broad? (7) If the justice of the peace erred in issuing the order, should I determine if the order should issue, applying the Dagenais/Mentuck [See Note 3 below] test, and conclude that any [error] by the justice of the peace occasioned “no substantial wrong or miscarriage of justice”? [page344] The Positions of the Parties and Interested Persons

[8] Counsel on behalf of Ahmad Mustafa Ghany and Shareef Abdelhaleen support the applicants’ submissions. The Crown opposes the applications, contending where a s. 517 order is made in regard to one co-accused, it must apply to all of the accused. In the alternative, Mr. Leising submits that the justice of the peace did apply the Dagenais/Mentuck analysis, since submissions were made before him, and that if the justice of the peace erred in issuing the order as a mandatory s. 517 order, I should apply the Dagenais/Mentuck analysis, which would lead me to conclude that the imposition of a ban was inevitable, so that the error occasioned no substantial wrong or miscarriage of justice.

[9] When the order was issued, four accused opposed the imposition of the order. During the submissions on these applications, counsel on behalf of Fahim Ahmad, Zakaria Amara, Asad Ansari, Qayyum Abdul Jamal, Amin Mohamed Durrani, Steven Vikash Chand, Saad Khalid and young persons, N.S. and S.G., opposed the application. Counsel for the other accused took no position on the application. Two of the four who opposed the order now support its imposition. Shareef Abdelhaleen supported the application to quash the order but was undecided whether to seek a s. 517 order at his bail hearing, pending the receipt of further disclosure. Only Ahmad Mustafa Ghany opposed a publication ban at his bail hearing. [See Note 4 below]

[10] Before examining the issues raised on the applications, I will set out the relevant legislation, including s. 539, which is applicable to preliminary inquiries, but has been relied upon in submissions. Legislation

Order of release

515(1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice. [page345]

Release on undertaking with conditions, etc.

(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs. . . . . .

Order of detention

(6) Notwithstanding any provision of this section, where an accused is charged
(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,
(ii) that is an offence under section 467.11, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,
(iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence,
(iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act, or
(v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to on offence referred to in subparagraph (iv), [page346]

under this or any other Act of Parliament alleged to have been committed for the benefit of, at the direction of or in association with a criminal organization for which the maximum punishment is imprisonment for five years or more,
(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,
(c) with an offence under any of subsections 145(2) to
(5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or
(d) with having committed an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence,

the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified, but where the justice orders that the accused be released, he shall include in the record a statement of his reasons for making the order.

Orders restricting publication of evidence taken at preliminary inquiry

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.

Accused to be informed of right to apply for order

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

Failure to comply with order

(3) Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Order directing matters not to be published for specified period

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 [page347]
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) 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 Publication Deferral Order

[11] The accused appeared in court on June 3, and were remanded to June 6, 2006. It is unclear whether there was a deferral order issued on either date regarding the adults. Counsel do not agree, and the June 3, 2006 transcript was not filed on this application. However, at the conclusion of the appearance on June 6, 2006, Mr. Leising indicated that Justice of the Peace Farnum had issued an order banning publication of any of the information at these bail hearings (on June 2, 2006). Mr. Leising presumed everybody was operating under the assumption that order continued through the June 6th proceedings. Justice of the Peace Hudson said, “Those orders have not been rescinded, so they’re still in force.” It is unclear how many accused or counsel were present at that time. The transcript lists six defence counsel as having appeared that date, although accused were not dealt with at the same time.

[12] On June 12, 2006, several of the accused appeared before Justice of the Peace Currie to set dates for their bail hearings, as the Crown had indicated the intention to show cause why all accused should be detained before trial. [See Note 5 below] Pursuant to s. 515(6), the onus would be on the accused at the bail hearings to show cause why they should be released.

[13] Counsel on behalf of the Toronto Star, Mr. Gilliland, sought clarification regarding any publication deferral orders. Mr. Farooq indicated that the order was made in regard to the young persons. Mr. Silver said he had asked and obtained an order in regard to an adult. Mr. Galati said that no “ban” was requested by any of the adults, that his client would resist any such application and “demand motion materials”. He suggested that it was too late in the day for a publication ban, given “all the circus that was already published”. Mr. Batasar indicated he did not believe there was a publication deferral and noted that [page348] the only information with one indicated was the information relating to the young persons.

[14] Mr. Leising then asked the justice of the peace to impose an order if one was not already in place, which had been his understanding. He told His Worship that there had already been intense media interest, and his concern was that the matter be tried in court and not in the media. Mr. Galati resisted the order. Mr. Silver on behalf of Ahmad stated it was his understanding that an order had been made. Mr. Batasar said that Chand vehemently resisted the publication ban. Mr. Kolinsky stated that Zakaria Amara was not requesting a ban and would resist one being issued.

[15] Mr. Gilliland submitted, “It’s patently obvious that not all defence counsel have requested a ban. Therefore, there just can’t be a mandatory ban with respect to any of, any of them.” He submitted that the court was not “involved in proceedings” covered by s. 517. When an accused did not seek a mandatory order, he argued the court was required to conduct a hearing at which the party seeking a ban had to demonstrate, by leading evidence [See Note 6 below] why a ban was necessary, and that notice must be given to the applicants that such a ban is sought. He referred the justice of the peace to Dagenais.

[16] Mr. Leising argued that once Mr. James sought an order, the order should be made for all adult accused.

[17] His Worship recessed, and upon returning ruled:

. . . in regards to the adult there seems to be ambiguity in regards to what occurred on the initial appearance. However, Mr. Silver [See Note 7 below] has spoken in regards to his client, Mr. James, in which a request for a publication ban was granted and that occurred on Tuesday, and a defendant at any time during proceedings can request a publication ban. Since individuals are jointly charged, that ban will be in force and effect for all individuals and we will make it specifically clear today that a publication ban is in order under s. 517(1).

And I hereby make an order directing the evidence taken, the information given and the reasons given by the justice shall not be published in any newspaper or broadcast before such time as the accused is discharged, if a preliminary inquiry is held, or if he is ordered to stand trial, until the trial is ended. [page349]

[18] Mr. Gilliland sought further clarification of the non- publication order and was told that it included “the proceedings” on June 12, 2006. The Charges

[19] The accused are charged in a six-count information. All are charged with knowingly participating in or contributing to, directly or indirectly, activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity. Three accused are charged with importing a firearm and prohibited ammunition for the benefit of, or at the direction of, or in association with a terrorist group, and with directly or indirectly collecting, providing or inviting a person to provide and make available three prohibited weapons and 182 rounds of ammunition, knowing or intending they would be used for the purpose of facilitating or carrying out terrorist activity. Ten accused are charged with receiving training, knowingly participating in or contributing to the activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity. Three accused are charged with providing training or recrui ting persons to receive training. Finally, seven accused are charged with doing anything with intent to cause harm or death to persons or that was likely to cause serious damage to property, for the benefit of, at the direction of, or in association with a terrorist group.

[20] This prosecution is far from the norm in criminal proceedings in Canada in several regards. First, it is only the second or third prosecution under the terrorism sections. Second, it is a most unusual situation where an accused person does not seek a publication ban at his or her bail hearing. No case has been cited where co-accused took inconsistent positions regarding s. 517 orders.

[21] Indeed, in the voluminous material filed on this application, only one case was cited where the accused’s counsel did not seek an order and opposed the Crown’s request: R. v. Romagnuolo, an unreported judgment of Weekes J., (Ont. Gen. Div.), dated January 27, 1999). [See Note 8 below] That case did not involve more than one accused.

[22] In Romagnuolo, an order had been made late on the first day of a bail hearing, after much of the evidence had been heard [page350] and already reported in the media. The media certiorari application to quash the publication ban that the Crown had requested succeeded, in part, because the applicants had already published and broadcast significant portions of the evidence before the ban was imposed. Weekes J. concluded:

Much of the proceedings was legitimately in the public domain by the time the order was made. All that took place after the granting of the order was the calling of evidence from the proposed sureties, submissions from counsel and the decision of Judge Rogers. Assuming, for the sake or argument, that it could have been said at the commencement of the hearing that the ban was necessary to ensure a fair trial, it is difficult to understand how that could be achieved at such a late stage in the proceedings. The evidence of the sureties could have no effect on the fairness of the trial, nor could the submission of counsel and the decision of the judge, given that the meat and potatoes of the hearing had already gone to press.

[23] While there has been massive publicity here, it cannot be said that the evidence from the bail hearings is already in the public domain. No doubt some of it is. However, since no party submitted that the “evidence taken, the information given, or the representations made and the reasons, if any, given by the justice” are already in the public domain, that aspect of the rationale in Romagnuolo does not apply.

[24] Weekes J., in examining the efficacy of that ban, noted that there had been continuing press coverage with respect to the case since the bail hearing. Much of the press information was “logically attributed to police sources”. Some was directly attributable to lawyers representing various police officers. His Honour questioned the efficacy of suppressing the bail hearing evidence, when information about the case was “leaking from other sources”.

[25] With respect, I am unable to agree with portions of the reasons. First, what s. 517 protects is not all information regarding the case. It protects the evidence, information, representations and reasons at the bail hearing. It is only if that material is being leaked that the efficacy issue arises. In addition, I am not persuaded that the conduct of “police sources” should be able to trump the fair trial concerns identified by the Supreme Court of Canada and the Court of Appeal for Ontario.

[26] Here, as a result of the number of accused, the bail hearings have been held or will be held over several days. Each hearing is taking one to two days. On some occasions, where two or more persons are charged in one information, there is one bail hearing where the release or detention orders are determined for all accused. That this case is proceeding, for understandable reasons, in a different manner, should not lead to interpretations of ss. 515 and 517 based on this fact situation in a vacuum, divorced from the manner in which other cases are dealt with on a daily basis. [page351] Bail Hearings

[27] Bail hearings are not meant to be trials, nor should the “summary proceeding assume the complexities of trials”. The show cause hearing is meant to be expeditious, with a degree of flexibility and procedural informality sufficient to protect the liberty interests and security of the public: R. v. John, [2001] O.J. No. 3396, [2001] O.T.C. 647 (S.C.J.).

[28] Consistent with the intent of the Bail Reform Act, S.C. 1970-71-72, c. 37, the procedures established for bail hearings are aimed at ensuring that bail hearings are held in a timely manner. In The Law of Bail in Canada, 2nd ed. (Toronto:
Carswell, 1999), Trotter J. notes that time is a “monumental concern when it comes to bail”, as it is essential that the hearing be conducted as soon as possible. This need for “swift justice” requires a “certain level of informality”, which translates into the relaxation of certain rules of evidence at bail hearings and an expansive approach to relevance. Sections 516 and 522, in permitting the hearing to be adjourned for no more than three clear days without the consent of the accused, are also consistent with the intention that issues of bail be determined in an expeditious manner.

[29] Hill J. noted in R. v. V. (J.), 2002 CanLII 49650 (ON SC), [2002] O.J. No. 1027, [2002] O.T.C. 350 (S.C.J.): “The statutory regime was designed to ensure early pre-trial release with a speedy or quick determination of the bail issue” (at para. 65). “Where a person, arrested and detained for a bail hearing, is taken before the court within twenty-four hours of arrest (Code s. 503(1)), and the prosecution and the accused are prepared for a show cause hearing, a hearing should forthwith be held whenever possible” (at para. 66).

[30] The nature of evidence permitted at bail hearings is distinct from that permitted at trials or preliminary inquiries. The evidence to be relied on at a bail hearing is set out in s. 518, which states that the justice may make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable, and may consider any relevant matter agreed upon by the accused and prosecutor. The prosecutor may, in addition to any other relevant evidence, lead evidence to prove that the accused has previously been convicted of a criminal offence, to prove the accused has been charged with and is awaiting trial for another criminal offence, to prove that the accused has previously failed to attend court and to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction.

[31] In addition, the justice may receive evidence obtained as a result of an intercepted communication without the notice which [page352] would have to be filed before the communications would be admissible at trial. In reaching the decision, the justice must take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence. Finally, the justice may base the decision on evidence “considered credible and trustworthy”.

[32] The justice is directed to consider three grounds for detention in determining if the accused should be released (s. 515(10)). Reasons are required where the accused is detained in custody (s. 515(5)), and where the accused is released, if the onus was on the accused (s. 515(6)). Those reasons must address the grounds in a meaningful way: R. v. Brooks, 2001 CanLII 28401 (ON SC), [2001] O.J. No. 1563, 153 C.C.C. (3d) 533 (S.C.J.). In doing so, the justice should generally address the nature and strength of the Crown’s case in regard to the secondary and tertiary grounds at least.

[33] As is readily apparent from the foregoing, much of the evidence heard at a bail hearing would never be heard by a jury at the accused’s trial. For example, a statement by the accused to police is presumptively inadmissible, unless proven by the Crown to have been voluntarily given. The accused’s criminal record is almost invariably introduced as well as any outstanding charges the accused faces and the forms of release on those charges. Evidence can be lead regarding the need to ensure the safety or security of victims. References may be made to wiretap evidence, which may never be ruled admissible. Not infrequently, Crown counsel introduces evidence of a statement of a co-accused whether charged in the same indictment or not, which implicates the accused. On a joint trial, that statement would be admissible only against the maker of the statement if proven to have been voluntarily given. Crown counsel may also lead evidence of risk assessments conducted by police services regarding the likelihood of t he accused committing further offences: see R. v. LePore [1998] O.J. No. 5824 (Gen. Div.). Finally, the potential for a lengthy term of imprisonment if convicted as an element of the tertiary ground must be addressed. Jurors are routinely instructed that they should not speculate on the penalties to be imposed upon a conviction, an issue that is of no concern to them.

[34] Since the accused will rarely have obtained complete disclosure before the bail hearing, the Crown’s allegations and “evidence” at a bail hearing are often not challenged. What frequently emerges is a one-sided account of the allegations and the circumstances of the accused.

[35] Here, the Crown will introduce the same evidence at all of the bail hearings. An officer will testify and elaborate on the eight-page synopsis which has been disclosed to all adult accused and [page353] young persons. It is a common document for both prosecutions. Each accused and young person has also received a separate page outlining in point form the allegations against them. While bail hearings have been held for adults and young persons at which this procedure was followed, the applicants were not aware if there was any information given or evidence called at the hearings which is different from that already published in the media. While the Crown’s evidence on the hearings is common to all accused and young persons, evidence with regards to proposed sureties, the strength of the Crown’s case and the reasons for release or detention, of necessity will be different at the various hearings. Section 517

[36] Section 517 gives the justice jurisdiction [to] defer the publication of proceedings under s. 515 until the accused is discharged at a preliminary inquiry or until the trial is ended. Where the accused requests the order, the justice must impose the ban. Where the Crown seeks or the justice on his or her own initiative considers imposing a ban, whether to impose the ban is within the discretion of the justice.

[37] While the timing of a s. 517 order and whether the order applies to all accused charged in the same information are contested, the section is clear as to what is subject to the ban and what is not at a proceeding under s. 515. A s. 517 publication ban prohibits more than just the “evidence taken” at the proceeding. In addition, it prohibits the publication of “the information given or the representations made and the reasons, if any, given or to be given by the justice”. The order includes all information covered by the section and not just information prejudicial to the accused: R. v. Daly, [2005] B.C.J. No. 1697, 2005 BCCA 389 (CanLII). However, the ban does not extend to the actual decision on the issue of release or detention: R. v. Forget (1982), 1982 CanLII 1937 (ON CA), 35 O.R. (2d) 238, [1982] O.J. No. 3708, 65 C.C.C. (2d) 373 (C.A.).

[38] When an accused is “taken before a justice” pursuant to s. 515, there are a number of possible scenarios. First, if the accused is charged with a s. 469 offence, the justice must detain the accused in custody “until he is dealt with according to law”: s. 515(11). Unless the accused applies for release pursuant to s. 522 before a judge of the Superior Court of Justice, he or she remains in custody until the conclusion of the case. Second, the accused, if appearing before a judge of the Ontario Court of Justice, can plead guilty. Third, if the onus under s. 515 is on the Crown to “show cause”, the Crown can decline to do so and the justice must release the accused from custody on an undertaking without conditions. Fourth, if the onus under s. 515 is on the [page354] accused, and the accused or counsel on his or behalf say that they do not intend to “show cause”, the justice must detain the accused in custody: s. 515(6). Fifth, the Crown or accused could seek an adjournment without any reference to the onus and either party “intending to show cause”. Under all of these scenarios, there is no jurisdiction to issue a s. 517 order.

[39] In the following scenarios, a s. 517 order must issue if the accused seeks it, and may if the Crown seeks the order. First, where the onus is on the Crown and the Crown agrees to the release of the accused on a form of release other than an undertaking with conditions. Second, where the onus is on the accused and there is a consent release on a form of release other than an undertaking with conditions. Third, where the party without the onus agrees that the accused should be released and a contested hearing is held regarding the form of release and/or conditions to be imposed. Fourth, where the Crown seeks the detention of the accused, whether the onus is on the Crown or accused and the accused seeks release. In all of these situations, if an order is granted, the only information that can be published is that there was a bail hearing and the result: Forget, supra. For example, even on “consent” releases the fact it was a consent and the reasons of the justice would be encompassed b y “the representations made” and “the reasons, if any” and cannot be published. In summary, a publication ban can issue if there is a release order on any form of release other than an undertaking without conditions imposed because the Crown did not seek to “show cause”. There can also be a publication ban where there is a detention order unless the onus was on the accused and he or she did not seek to show cause.

[40] In 1984, the Court of Appeal for Ontario examined whether the mandatory order under s. 517, when an accused seeks the ban, infringed the fundamental freedom of expression in s. 2(b) of the Charter. The court concluded that while s. 517 violated s. 2(b), it was a reasonable limit on such expression and constitutionally valid: Global Communications Ltd. v. Canada (Attorney General) (1984), 1984 CanLII 2153 (ON CA), 44 O.R. (2d) 609, [1984] O.J. No. 3066, 10 C.C.C. (3d) 97 (C.A.). While Global Communications pre-dates Dagenais, which deals with discretionary, not mandatory bans, it is the law in Ontario, absent a further challenge to the section.

[41] While Global Communications did not deal with the discretionary element of s. 517, the comments of the Court of Appeal as to the purpose of the legislation are instructive. The section was enacted in 1972 as a result of the recommendations contained in the 1969 Report of the Canadian Committee on Corrections — Towards Unity: Criminal Justice and Corrections (the “Ouimet Report”). When first enacted, the provision was discretionary, [page355] regardless of who sought the ban. That was amended in 1976 to provide for the current wording, the order “shall” issue where “the accused” requests and “may” where the Crown requests.

[42] In Global Communications, Thorson J.A., writing for the court, noted [at paras. 26-27]:

One of the problems I have with regard to this submission as to what the procedure under s. 457.2(1) [now s. 517] “should be” is that it seemingly ignores, or brushes aside as being of little relevance, the fact that in 1976 when the law was amended to read as it now reads, Parliament was faced with exactly this very issue, that is to say, the choice between the discretion which the law then allowed the justice and the mandatory order which the law now requires, and when faced with the need to choose between them decided that the right of an accused person to receive a fair trial, following his or her bail hearing and in the afterglow of the publicity that could attend that hearing, was not adequately safeguarded under the law as it then was. Implicit in this decision was Parliament’s acceptance that the public interest in allowing full media publication and broadcasting of the evidence that may be given at a bail hearing must yield to the public interest in ensuring the right of the accused to a fair trial , and that the latter may be jeopardized if the accused has no assured means of preventing the dissemination of that evidence in advance of his or her trial.

In reaching this decision Parliament can be presumed to have been aware that the evidence given at a bail hearing may, and often does, include references to other outstanding charges against the accused, as well as past offences not charged, unchallenged statements as to reputation, untested allegations of fact and other hearsay evidence, much of which may prove to be inadmissible at trial but which, if published or broadcast as given at the hearing, could be grossly prejudicial to any expectation of a later fair trial. By the same token it would also have been appreciated that at the outset of such a hearing the accused cannot be expected to know what kind of evidence may be later presented, so that it would be quite impractical that he or she should then have the burden of convincing the court, by reference to that evidence, that its publication or broadcasting ought to be restricted.

[43] Further, it was implicit that Parliament was “prepared to see some loss or curtailment of the media’s freedom of expression, in the interest of avoiding what it saw to be the larger evil which could follow from the immediate publication or broadcasting of this particular kind of news”.

[44] The judgment concluded with the following analysis of the right to a fair trial [at para. 41]:

The right to a fair trial is a fragile right. It is quite capable of being shattered by the kind of publicity that can attend a bail hearing, and once shattered, it may, like Humpty Dumpty, be quite impossible to put back together again. Often the proceedings at a bail hearing do not attract any particular media notice, but when they do, as they have in this case, the risk of prejudice to the accused in the matter of his or her subsequent trial can be severe in the absence of a mechanism such as that provided in s. [517] for minimizing that prejudice by means of a time-limited restraint on what can be published or broadcast about the hearing. [page356]

[45] In Dagenais, former Chief Justice Lamer addressed the efficacy of publication bans, such as s. 517 orders, aimed at preventing the jury from being influenced by information gathered outside the trial, at pp. 883-84 S.C.R., p. 321 C.C.C. Not surprisingly, the parties relied on different aspects of the following comments in this proceeding [at paras. 87-88]:

To begin, I doubt that jurors are always adversely influenced by publications. There is no data available on this issue. However, common sense dictates that in some cases jurors may be adversely affected. Assuming this, I nevertheless believe that jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of the criminal proceedings. . . . What matters is that this court has strongly endorsed the ability of a jury to follow the explicit instructions of a judge. This endorsement surely applies as much to the instructions to ignore all information not presented in the course of the criminal proceedings as it applies to the instructions to use evidence of prior convictions for one purpose only and not another. I am comforted in my extension of Corbett to the case at bar by R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985, at pp. 993-94, in which La Forest J. wrote in the context of the impact of publicity that “[t]his court has recently ha d occasion to underline the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider: see R. v. Corbett”.

These observations are particularly apt in a case such as this, in which the publication ban relates to identifiable and finite sources of pre-trial publicity. More problematic is the situation in which there is a period of sustained pre- trial publicity concerning matters that will be the subject of trial. In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

[46] As regards the former Chief Justice’s comment that there is no data available on whether jurors were adversely affected by publication, in his text, relying on five articles noted, at p. 197, Trotter J. writes:

. . . social science research suggests that our assumptions about how jurors are affected by adverse information relating to the accused person may be misplaced. A growing body of empirical literature supports the view that jurors are easily biased by learning of prejudicial information about the accused person. Moreover, instructions to disregard this prejudicial information are shown to be largely inefficacious. It may be necessary to reconsider the current orthodoxy relating to jury instructions. Do the Applicants have Standing to Bring the Application?

(The scope of certiorari)

[47] The first issue for determination is whether the applicants or Ghany have standing to apply for certiorari. Mr. Moon submits they have no standing because at its highest Justice of the Peace Currie committed an error in law that is not reviewable under certiorari. He contends, supported by the Crown and [page357] several respondents, that if His Worship, in interpreting s. 517 as making the deferral order mandatory for all accused if sought by one, erred, he made an error in law. Acting within his jurisdiction, he was entitled to be wrong. The decision is not subject to certiorari. If the justice of the peace was correct, the only remedy for the applicants would be to seek an order under s. 52 of the Constitution Act, 1982 that s. 517 is invalid.

[48] Mr. Moon relies on the following judgments in support of his position: R. v. Russell, 1999 CanLII 3812 (ON CA), [1999] O.J. No. 4862, 141 C.C.C. (3d) 556 (C.A.); R. v. Thomas, [1995] O.J. No. 2363, 29 W.C.B. (2d) 440 (C.A.); R. v. Saikaly, [1978] O.J. No. 1077, 43 C.C.C. (2d) 275 (H.C.J.); and R. v. Dawson, 1997 CanLII 12348 (ON SC), [1997] O.J. No. 2188, 32 O.T.C. 257 (Gen. Div.). All dealt with committals for trial after preliminary inquiries.

[49] In Russell, the accused challenged his committal for trial on constructive first-degree murder, murder committed while committing unlawful confinement. The person killed and the person confined were different people. On appeal to the Supreme Court of Canada [2001 SCC 53 (CanLII), [2001] 2 S.C.R. 804, [2001] S.C.J. No. 53], the court held [at para. 19]:

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”:
R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93 at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268).

[50] The Supreme Court held, relying on Skogman [R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, [1984] S.C.J. No. 32], that if the applicant was correct that for a committal for trial the deceased and the person confined had to be the same person, the preliminary inquiry justice had committed a jurisdictional error. A committal for trial in the absence of evidence on an element of the offence, or of a sentence classification criteria, amounted to a jurisdictional error. When viewed in that way, while there would be an error of law, it became a jurisdictional error and, accordingly, subject to review on certiorari. [See Note 9 below] [page358]

[51] If the justice of the peace’s decision is viewed as a determination of a point of law, applying the certiorari cases dealing with preliminary inquiries, I agree with Mr. Moon’s submission. However, the Supreme Court of Canada has addressed the scope of certiorari in challenges to publication bans and determined that it includes an error law on the face of the record or a decision made without jurisdiction.

[52] In Dagenais, former Chief Justice Lamer held that provincial superior courts had the jurisdiction to hear applications for the extraordinary remedy of certiorari against provincial court judges for excesses of jurisdiction, and for errors of law on the face of the record: pp. 864-65 S.C.R., p. 307 C.C.C.

[53] The judgment continued [at para. 38],

. . . the common-law rule governing the issuance of orders banning publication must be consistent with the principles of the Charter. Since the common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error on the face of the record. Therefore, if a publication ban order is made by a provincial court judge, the applicants can apply to the superior court for certiorari and argue that the ban is not authorized by the common law rule. If this is the case, the ban will then constitute an error of law on the face of the record.

[54] Lamer C.J.C. held it was open to the Supreme Court to enlarge the remedial powers of certiorari, and did so in the limited circumstances of media applications regarding publication bans, to avoid the traditional limited remedial powers of certiorari, to simply quash the order without the authority to grant additional or alternative remedies. The remedies available where a judge errs in granting a publication ban that is inconsistent with Charter principles were expanded to include remedies available under s. 24(1) of the Charter. Where there is a discretion whether to impose a publication ban, either at common law or by statute, the discretion must be exercised within the boundaries set by the principles in the Charter. Exceeding the boundaries set by the Charter is a reversible error of law.

[55] I am persuaded that when dealing with publication bans on certiorari applications, if the judge or justice of the peace issued an order which he or she had no jurisdiction to make, or made an order in contravention of Charter principles, certiorari is available to quash the order and for other remedial relief. Here, the applicants argue the justice of the peace had no jurisdiction to issue the order at a “set date” appearance. If they are correct, the order was made without jurisdiction. As regards the scope of a s. 517 order, provided this ban was a legislated discretionary ban, the applicants have standing to challenge it as offending against Charter principles. If the ban was a legislated [page359] mandatory ban that had to be applied to all accused in the same information, there would be no basis upon which the applicants could seek to quash the order. Rather, in those circumstances, the applicants would have to frame their application as a Charter challenge to the legislation, which has not been done.

[56] I am persuaded the applicants have standing to apply for certiorari on the basis of an error of law on the face of the record, or on the basis that the order was made without jurisdiction. Applicable Principles of Statutory Interpretation

[57] When interpreting legislation, the starting point is the applicable principles of statutory interpretation found in the Interpretation Act, R.S.C. 1985, c. I-21, texts and judgments. Section 12 of the Interpretation Act provides:

12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best to ensure the attainment of its objects.

[58] In R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 39 C.R. (5th) 72, at para. 33, the Supreme Court of Canada provided the following approach to statutory interpretation:

Much has been written about the interpretation of legislation (see, e.g., R. Sullivan, Statutory Interpretation (1997); R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994); P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, E. A. Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be [p. 75] founded on the wording of the legislation alone. At p. 87, Driedger states: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Recent cases which have cited the above passage with approval include:
Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Hydro-Québec, 1997 CanLII 318 (SCC), [1997] 3 S.C.R. 213, at para. 144; Royal Bank of Canada v. Sparrow Electric Corp., 1997 CanLII 377 (SCC), [1997] 1 S.C.R. 411, at para. 30; Verdun v. Toronto-Dominion Bank, 1996 CanLII 186 (SCC), [1996] 3 S.C.R. 550, at para. 22; Friesen v. Canada, 1995 CanLII 62 (SCC), [1995] 3 S.C.R. 103, at para. 10. Supplementing this approach is the presumption that Parliament intended to enact legislation in conformity with the Charter: see Sullivan, Driedger on the Construction of Statutes, supra, at pp. 322-27. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted: see Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 1010; R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at p. 660; R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, at para. 66.

[59] Accordingly, while the legislation under consideration was enacted before the Charter, if the legislation can be read in a way that is constitutional and in a way that it not, the former reading should be adopted. In this regard, the comments of the [page360] Supreme Court of Canada in Dagenais and Mentuck must be kept [in] mind in examining the sections. In this context as well, cases dealing with discretionary publication bans decided before Dagenais have to be read with a view to determining if the subsequent decisions have affected the rationale of the case relied upon.

[60] Dagenais determined that where legislation confers a discretion on a justice, that discretion must be exercised within the boundaries set by the principles of the Charter. Former Chief Justice Lamer wrote, at p. 877 S.C.R., p. 316 C.C.C.:

The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charterto ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favoured the rights protected by s. 11(d) over those protected by s. 2(b). A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.

[61] The former Chief Justice also wrote that the validity of publication bans should not always be seen as a clash between two titans — freedom of expression for the applicants versus the right to a fair trial for the accused, at pp. 880-83 S.C.R., pp. 319-20 C.C.C. Three reasons for rejecting the “clash model” were provided. First, it was more suited to American than Canadian jurisprudence, because the American Constitution has no equivalent of s. 1 of the Charter, a fundamental source of the fundamental principles informing the common law in Canada. Second, freedom of expression and the accused’s right to a fair trial are not always in conflict. Lamer C.J.C. noted that sometimes publicity serves important interests in the fair trial process, noting, for example, the accused’s interest in public scrutiny of the court process, and all of the participants in the court process. Finally, the judgment notes 14 reasons for and against publication bans, at pp. 881-84 S.C.R., pp. 320-21 C.C.C., as illustrative of the breadth of issues that deserve to be analyzed in examining the justification for a particular publication ban.

[62] The Supreme Court also acknowledged the importance of s. 2(b) of the Charter, at pp. 876-77 S.C.R., pp. 315-16 C.C.C., of Dagenais as follows:

Like the right of an accused to a fair trial, a fundamental principle of our justice system which is now expressly protected by s. 11(d) of the Charter, freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society, as demonstrated by its enshrinement as a constitutionally protected right in s. 2(b) of the Charter. Section 2(b) guarantees [page361] the rights of all Canadians to “freedom of thought, belief, opinion and expression, including freedom of the press and other applicants of communication”. The importance of the s. 2(b) freedoms has been recognized by this Court on numerous occasions: see, for example, RWDSU, Local 580 v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney- General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec
(Attorney-General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232; R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697 and R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731.

As I said, for the Court, in Canadian Newspapers Co. v. Canada (Attorney General), 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122, at p. 129:

Freedom of the press is, indeed, an important and essential attribute of a free and democratic society, and measures which prohibit the applicants from publishing information deemed of interest obviously restrict that freedom.

Similarly, in Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, Cory J. remarked (at pp. 1336-37):

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.

The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy.

In Zundel, supra, at p. 752, McLachlin J. distilled the commentary and case law on the subject of freedom of expression, and declared that the interests protected by s. 2(b) are “truth, political or social participation, and self- fulfillment”.

[63] While courtrooms in which bail hearings are conducted are open to the press and public, the Supreme Court has recognized the importance of the press in reporting court proceedings in Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, [1989] S.C.J. No. 124, at pp. 1339-40 S.C.R.:

There is another aspect to freedom of expression which was recognized by this Court in Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712. There at p. 767 it was observed that freedom of expression “protects listeners as well as speakers”. That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house- bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings — the nature of the evidence that was called, the arguments presented, the comments made by the trial judge — in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that mo st individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the [page362] institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other applicants.

[64] Similarly, in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, 139 D.L.R. (4th) 385, at p. 496 S.C.R., pp. 395-96 D.L.R., La Forest J. stated:

The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place.

[65] I turn next to an examination of the interpretation of s. 517. Did the justice of the peace have jurisdiction to issue the order he did on a “set date” appearance?

[66] Section 517 provides that “where the prosecutor or the accused intends to show cause under section 515, he 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 . . .” (emphasis added).

[67] The applicants contend the justice of the peace had no jurisdiction to make the order, since it was made on a “set date” appearance and not at the bail hearing. Counsel for Ghany, Abdelhaleen and Mohamed support this position. The Crown and counsel for Ahmad, Amara, Ansari, Jamal, Durrani, Chand, Khalid, as well as counsel for N.S. and S.G., young persons, contend His Worship had the jurisdiction to do so, because the order was made after the Crown had indicated an intention to “show cause”, in the court where the bail hearing was to be held, and it was “before” the bail hearing.

[68] The issuance of an order requires at least two events to occur after the accused is/are brought before a justice under s. 515. First, the prosecutor or accused has to indicate an intention to “show cause”. Second, there has to be either a request by the accused, a request by the Crown or the issue can be raised by the justice since the section is permissive. Here, it is conceded that the prosecutor had indicated an intention to “show cause” at least at the June 12, 2006 appearance, if not at an earlier appearance. While the accused bore the onus at a s. 515 hearing because of the nature of the charges, either the Crown or [page363] accused can indicate an intention to “show cause” under s. 515. There is also no dispute that counsel on behalf of Jamal James sought a s. 517 order on June 12, 2006.

[69] The point of contention is whether s. 517 gave His Worship the jurisdiction to make the order on June 12, 2006 when the bail hearing was to be held on a later date — whether “before” means immediately before the start of the hearing on the day it will proceed, or “before” means any time the accused is “taken before a justice” and the other precondition to issuing the order is met.

[70] I am persuaded that applying the principles of statutory interpretation referred to above and considering Part XVI of the Criminal Code, the justice of the peace had jurisdiction to make the order on June 12, 2006. That interpretation ensures the attainment of the objects of the legislation and is consistent with the other applicable provisions. Indeed, I am unable to find any rational basis upon which the restrictive interpretation advanced by the applicants could prevail.

[71] The object of s. 517 is to protect the accused’s fair trial rights, by ensuring that information that could prejudice those rights is not put into the public domain: Global Communications. It is with that objective in place that the section should be given “such fair, large and liberal construction and interpretation as best ensures the attainment of that object”.

[72] First, the triggering event for jurisdiction to make the order, the indication of an intention to show cause, does not have to occur on the date of the hearing. I do not understand the applicants to argue otherwise. The “indication” on June 12, 2006 was sufficient.

[73] Second, the section does not say “the justice conducting the hearing may . . . make an order . . .”. It says “the justice”, which includes the justice to whom the indication is made, who is not necessarily the justice conducting the hearing. By way of comparison, s. 539 provides that the publication ban at the preliminary inquiry can only be ordered by “the justice holding the inquiry”.

[74] Third, on any fair, large and liberal interpretation of “before”, this order was made before the show cause hearing. Section 517 does not specify, immediately before or at the start of the hearing.

[75] Fourth, an examination of other provision of the Criminal Code supports the interpretation urged by the respondents. Section 516, also in Part XVI of the Criminal Code, provides that the justice “may, before or at any time during the course of any proceeding under section 515 adjourn the proceeding and remand the accused in custody . . .”. This is virtually the same wording used in s. 517 — “before or at any time during the course of the [page364] proceeding under that section”. It is not suggested by the applicants that a justice has no jurisdiction to adjourn the proceeding “before” it starts under s. 516. That is the section which provides the justice with authority to adjourn the hearing, and it clearly can be done on a day before the start of the show cause hearing.

[76] Pursuant to s. 516(2), when the proceeding is adjourned and the accused remanded in custody, the justice “may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary”. If the interpretation contended by the applicants and some counsel is correct, a s. 516(2) order cannot be made until the day the hearing starts. That would frustrate the clear intention of Parliament to ensure that some accused persons refrain from contacting specified persons from the time of their first court appearance, not the day their bail hearing starts.

[77] Fifth, pursuant to s. 486(3) where an accused is charged with certain offences, the presiding judge or justice “may make an order directing that the identity of the complainant or of a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way”. The purpose of the section is to protect vulnerable complainants and young witnesses in sexual offences. The order is mandatory if requested by the complainant, witness or prosecutor, and prohibits publication of the information addressed in the section, regardless of its source. These orders are available at bail proceedings: The Law of Bail in Canada, at p. 198. If the applicants are correct, this order could not be made until the date of the bail hearing commences and the identity of complainants and witnesses could be published before the start of the bail hearing.

[78] Sixth, there are negative practical implications from the applicants’ position. While not determinative in themselves, as the Court of Appeal recently noted [at para. 82], “common sense and the law need not be strangers”: R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583, [2006] O.J. No. 2628 (C.A.). As with the other issues raised on these applications, the practical implications of the positions advanced cannot be swept aside in assessing whether an interpretation meets the objective of reading the words of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of Act and the intention of Parliament: Sharpe, supra.

[79] The applicants submit that s. 517 is to protect the fair trial interests of an accused in proceedings where the prosecution intends to “show cause” as to why the accused should [page365] remain in custody. They argue that the prospects of prejudicial evidence and information being led do not exist on a set date hearing. I disagree. At the initial attendance, it would not be uncommon for the Crown to advise the justice of the peace that the accused is already on a release order, and the nature of that allegation, thereby invoking the “reverse onus” provisions where the accused has to show cause why he or she should be released.

[80] Often when a bail hearing is not held on the first or subsequent appearance, there are discussions regarding agreeable dates, the evidence to be introduced and witnesses to be called: see R. v. John, supra. If there are going to be discussions relating to witnesses, and perhaps the relevance of the witnesses, the submission may deal with the nature of the allegations, one of the main features regarding which the accused has a right to have a non-publication order.

[81] Here, on the June 6, 2006 appearance, Mr. Batasar sought details of the synopsis, requested “allegations that are more thorough in nature” from the Crown before his client’s bail hearing. While the statements were made by counsel for Chand, it is difficult to conceive how the comments were not prejudicial to him and the other accused. Accordingly, to suggest that the prospect of prejudicial evidence or information being led on a set date does not exist, ignores the reality of bail courts in general and the record in this case.

[82] Finally, if the applicants are correct and no order can be made under s. 517 until the day of the hearing, if anything was said, or was about to be said, such as the comments of counsel on June 6, on a “set date” appearance and a publication deferral was sought, it would invoke the Dagenais/Mentuck approach, entailing notice to the applicants and a hearing to determine if a ban should be imposed. It is difficult to see how that approach would be consistent with the intention to have bail issues determined expeditiously.

[83] I am satisfied that the justice of the peace had the jurisdiction pursuant to s. 517 to make the order he did at a “set date” proceeding. When There are Multiple Co-accused Named in an Information, and One Seeks a Mandatory Order Under s. 517, Does it Automatically Apply to all Accused Regardless of Whether They Seek an Order? The positions of the parties

[84] The applicants contend that the language of s. 517 permits only one interpretation, that the mandatory ban is only imposed if [page366] “the accused”, not “an accused” seeks the order. Accordingly, the ban applies only to the person who seeks the mandatory order. Those who do not wish an order are not, and cannot automatically, be bound by the request of the other accused.

[85] The applicants submit that the justice of the peace’s interpretation is inconsistent with the Charter. They argue that ss. 7–11 of the Charter refer to individual rights, that it is for each accused and his or her counsel, and not the courts, to decide which course of action would be in their best interest. The decision under review “deprives” those accused who do not seek the ban of “the right not to request a ban” and to have their hearing conducted in “the penetrating light of public scrutiny”. They submit there was no jurisdiction to impose a “blanket mandatory publication ban on multiple show cause hearings at the request of a single accused”.

[86] It is submitted that the justice of the peace was required to determine on an accused-by-accused basis for those who did not seek an order, through the exercise of judicial discretion, whether a ban should be imposed, applying the Dagenais/Mentuck principles. Under that test, the onus is on the party seeking a ban to show:
(a) such a ban is necessary in order to prevent a serious or real and substantial risk to the fairness of the trial, because reasonable alternative measures will not prevent the risk; and (b) the salutary effect of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.

[87] The applicants also contend that by comparing s. 517 to s. 539, which deals with publication bans at preliminary inquiries, it is clear that Parliament intended to permit one accused to bind all his or her co-accused at their preliminary inquiry, and not at bail hearings. As noted earlier, s. 539 states, prior to the taking of evidence at a preliminary inquiry the justice may, if the prosecutor applies, and shall if any of the accused applies, order that the evidence taken may not be published before such time as, in respect of each accused, he or she is discharged or, if he or she is ordered to stand trial, the trial is ended. Where an accused is not represented by counsel at the preliminary inquiry, the justice shall inform the accused of his right to make the application before commencing to take evidence.

[88] While not seeking a ruling as to whether a ban should issue applying the Dagenais/Mentuck analysis, the applicants have presented written and oral submission as to why such a ban should not issue on the facts of this case. In effect, they argue that much of the information that would be introduced at [page367] a bail hearing has already been reported, so that a ban would be ineffective and/or of no value. The applicants concede that they do not know what evidence has or will be lead at the bail hearings. Accordingly, they cannot say that all of the evidence led and information given at the bail hearing has already been published. Indeed, from the above analysis of bail hearings, it is inconceivable that all of the “evidence, information, representations and reasons” that would be given at a bail hearing is in the public domain.

[89] Mr. Galati, on behalf of Ghany, further submits that the justice of the peace erred by failing to give any or adequate reasons for his decision.

[90] The Crown submits that the interpretation of s. 517 advanced by the applicants “undermines the purpose of the section, and would result in unfairness to the accused seeking to shelter under the protection afforded by s. 517”. The justice of the peace not only had the power to order a global publication ban, but was required to do so when one accused requested it. Further, given the purpose of s. 517 is to ensure that jurors at any later trial not be prejudiced by the publication of evidence, information, representations and reasons given at bail hearings, it is necessary that that prejudice be prevented in regard to any of the co-accused who seek to shelter under the section, rather than allow one or more accused to subject the others to the very prejudice s. 517 is designed to prevent.

[91] Parliament, it is submitted, could not have intended that the mandatory s. 517 order could be “undermined and made meaningless simply because one co-accused scheduled his bail hearing on a different day”, or chose not to seek a ban. Similarly, Parliament could not have intended that each accused will have to attend the bail hearing of every other accused who does not seek an order, to make submissions that a discretionary ban be imposed. In the words of the prosecution, “such an absurd and ineffective interpretation of s. 517 should not be countenanced”.

[92] It is the Crown’s position that the publication ban “attaches to the common evidence, and not to any individual accused’s hearing”. In this regard, the Crown relies on the judgment in R. v. Parent, [2003] O.J. No. 2038, 57 W.C.B. (2d) 504 (S.C.J.), where Ratushny J. held that a s. 539 preliminary inquiry publication ban continued in place with regard to the evidence common to the preliminary inquiry and an Agreed Statement of Fact introduced at a guilty plea of a co-accused, when other accused were still awaiting trial.

[93] In summary, the Crown submits that, given the extensive pre-trial publicity, the only thing that can preserve all of the accused’s fair trial rights in the repeated media reports is that [page368] the actual evidence in the case is subject to a publication ban. Given the reporting to date of highly prejudicial information regarding the accused, this case represents the very situation former Chief Justice Lamer referred to in Dagenais, where extensive and continued pre- trial publicity creates the very real risk the jury will not be able to separate the evidence from the news reports, despite the trial judge’s instructions. Given the accused are jointly charged, the Crown argues that a joint jury trial will most likely occur in the near future which distinguishes this case from those relied upon by the applicants where one case was a non-jury trial, in others the persons seeking the bans were not identified or where the trials were some time away and the publicity expected to diminish.

[94] Mr. Kolinsky, on behalf of Zakaria Amara, argues that while s. 517 addresses individual accused, and not the situation where there are multiple accused taking inconsistent positions on the mandatory publication ban, applying the basic principles of statutory interpretation, there is jurisdiction to impose a ban on all bail hearings. He now supports the ban on publication.

[95] He also argues that the Crown is introducing at each bail hearing evidence that implicates all accused persons through the common synopsis, in an effort to link all of them to the various offences. In this situation, if the Crown chose to lead evidence at all bail hearings regarding Amara, if another accused did not seek a publication ban, and the Crown was unsuccessful in obtaining an order, Amara, whose counsel would not even be at the hearing, would have prejudicial information revealed about him that jeopardizes his fair trial rights, when at his own hearing he would have the right to a publication ban. Analysis

[96] While “statutory interpretation cannot be founded on the wording of the legislation alone”, Sharpe, supra, a convenient starting point is the wording of s. 517 since one of the components of statutory interpretation identified in Sharpe was the grammatical and ordinary sense of the words. For convenience, I will reproduce s. 517(1), with the words upon which counsel rely emphasized:

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 [page369]
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended. (Emphasis added)

[97] The applicants argue that the plain wording of the section supports the interpretation that it can only refer to one accused, noting the section reads, “the accused” and not “an accused”. The Crown argues that “the accused” could mean one or more than one accused and submits the balance of the section supports the interpretation that it refers to all accused, noting the use of “representations”, “reasons” and “proceedings”, all denoting the plural.

[98] The use of the term “the accused” is neutral in this analysis; it could refer to one or more than one person. I agree with the applicants that the use of “representations” and “reasons” is of no assistance. At a single hearing, the Crown and defence would make representations. The same phrase could be used to describe the submissions at several bail hearings. Similarly, when a judge gives a decision, it is referred to as his or her “reasons for judgment”, etc., not as his or her “reason for judgment”. The one phrase in the section that is potentially inconsistent with the applicant’s position is the jurisdiction to make the order “. . . at any time during the course of the proceedings under that section”. If the section can only refer to one accused person, as the applicant’s contend, it is difficult to see why the section would not say, “. . . at any time during the course of the proceeding”. “Proceedings” is only consistent with multiple events, not just one bail hearing.

[99] Were it not for s. 517(1)(a) and (b), I might have been inclined to conclude the wording of the section indicated that the order applied to all bail hearings if one accused sought the order. However, those sections provide that if there is a preliminary inquiry or trial, and the accused “in respect of whom the proceedings are held is [discharged or the trial ends] . . .”, indicating it refers to one accused despite the use of proceedings.

[100] While there are potential indications that the section applies to one person, statutory interpretation cannot be based on the wording alone: Sharpe, supra. Nor can the interpretation by premised on the assumption that the determinations that are required to be made for persons charged in the same information are always determined at separate hearings. That assumption is incorrect. While entitlement for judicial interim release is determined for each accused separately, those determinations do not have to be made at separate hearings. Pursuant to Sharpe, s. 517 must be interpreted reading the words in the entire [page370] context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

[101] Applying that approach, I am persuaded that when persons are charged in the same information, and one seeks a mandatory order under s. 517, the order applies to all accused. Any other interpretation makes no practical sense. I agree with the Crown that such an interpretation should not be countenanced. I reach that conclusion for the following reasons.

[102] First, applying s. 12 of the Interpretation Act, the section must be deemed to be remedial and shall be given such “fair, large and liberal [construction and] interpretation [of the Act] best ensuring the attainment of its objects” [Global, at para. 12]. The objects of s. 517 have been established by the Court of Appeal in Global Communications, supra. An accused person has the right to have a publication ban imposed on his or her s. 515 hearing. Neither the prosecution, the other accused who do not seek an order, nor the applicants have an absolute right pursuant to s. 517 to a hearing at which there is no publication ban. The prosecution has the right to seek an order. The other accused have a right to oppose an order requested by the prosecution or suggested by the justice. The applicants have the right to oppose an order sought by the prosecution or suggested by the justice. None of those positions equates with a right to have the evidence, information, repr esentations and reasons published.

[103] Second, I am not persuaded by the applicants that Parliament addressed its mind to the situation of multiple accused on one information when enacting s. 517. Nor am I persuaded that Parliament determined, having regard to s. 539, that a s. 517 order would only apply to one accused on a multi- accused information. Had the sections been enacted or amended in one bill, I might have been inclined to conclude Parliament must have considered that different provisions should apply for bail hearings and preliminary inquiries. However, the preliminary inquiry section was enacted with the current wording in August of 1969. The initial version of the current s. 517 was enacted with the other Bail Reform Act amendments in 1972. It amended a different Part of the Criminal Code. At that time, the section was discretionary, with no distinctions between which party asked for the publication ban.

[104] In April of 1976, the bail hearing section was amended to provide that where “the accused” applied for the ban, it was mandatory. As noted in Global Communications, Parliament, being aware of the options available, decided the accused should have the right to obtain a publication ban on the evidence, [page371] information, representations and reasons at the bail hearing. That decision was an acknowledgment of his or her interest in a fair trial before a jury, unaffected by the information presented at the bail hearing. Had Parliament addressed its mind to s. 539, and intended to have s. 517 apply to each individual accused at each bail hearing, it would have made it clear that was the intention. That did not occur.

[105] In examining ss. 517 and 539, it is difficult to see why Parliament would have intended that accused persons would have greater protection of their fair trial rights at a preliminary inquiry, where for the most part the rules of evidence apply, than at a bail hearing, where much of the “evidence” heard would not be admissible at trial. There is a compelling argument that the sections should afford the same protection to individuals charged in the same information.

[106] I note as well that s. 542(2) provides that apparently regardless of whether there is a s. 539 order, that it is a criminal offence to publish “a report that any admission or confession was tendered in evidence at a preliminary inquiry or a report of the nature of such admission or confession so tendered in evidence”, until the accused is discharged or, if ordered to stand trial, the trial has ended.

[107] Third, the implications of the applicants’ interpretation lead to results which are inconsistent with the attainment of the legislation’s objective. It is also inconsistent with the intention of Parliament in enacting s. 517. For example, all of the adult accused are charged in one information. The bail hearings are all held on the basis of that information, not separate informations. While co-accused can have one hearing, in this case, for understandable and appropriate reasons, each accused is having their entitlement for bail determined on different days. While not determinative, if the order is made in regard to the “evidence, information, representations and reasons”, for one accused, if the applicants are correct there would have to be up to 12 separate orders on the same information, depending on who, if anyone, sought the order.

[108] If the applicant’s are correct, and s. 517 “attaches” to each accused on a multi-accused information where not all accused seek a s. 517 order, if no order could be made or was made before the first hearing, and the first accused to attend for his or her bail hearing did not seek an order and the Crown did not ask for an order, the rights of the remaining accused to ask for a mandatory ban would be vitiated, without their having an opportunity to make submissions. On the applicants’ interpretation, the decision of the first accused not to seek a publication ban at his or her bail [page372] hearing would place the other accused, who would not be present or represented at that hearing, in the hands of the prosecution or the court to protect their interests by seeking an order.

[109] If the Crown sought an order, on the applicants’ position, a hearing would have to be conducted on notice to the media to determine whether a discretionary ban should be imposed. With the notice requirements, the bail hearing would not be held on the day upon which it would be scheduled. The resulting delay would be inconsistent with the clear intention of Parliament that bail issues be determined expeditiously.

[110] In addition, to conduct a hearing as contemplated by the applicants would require the attendance of counsel for the other accused on the same information, or instructed counsel, to protect the interests of their clients. The reality of the practice of criminal law is that counsel cannot be expected to devote their practices to one case.

[111] While it is clear that this case would not involve 11 applications by the Crown for discretionary bans, since most of the accused seek mandatory bans, the implications of multiple hearings where discretionary bans are sought cannot be ignored. In a rather surprising submission, the applicants argued that the issue of whether there should be a discretionary ban could be determined at one hearing, with the result applicable to all accused who did not seek a mandatory order. On the applicant’s position that s. 517 is only available to one accused, in the absence of consent, and the agreement of all parties to having the ruling on one bail hearing apply to the others (or perhaps assigning one justice of the peace or judge to all of the bail hearings), that ruling would not apply at the other bail hearings.

[112] Even assuming such a procedure could be used, as is clear from the fact that in this case two accused who opposed a ban on June 12 now support it and the wording of s. 517 that the order can be made “at any time during the course of the proceeding under [s. 515]”, that counsel does not seek an order before the s. 515 proceeding, does not preclude them from changing their position. Such a “group application” has the potential to be an academic exercise.

[113] While I agree with the applicants that the determination whether there is a mandatory publication ban for all accused on the same information if one accused seeks the order is not a “winner take all”, since there would remain the Crown’s right to apply for a discretionary ban applying the Dagenais/Mentuck principles, the potential implications for the accused who seek a mandatory publication ban remain severe. As noted earlier, if an accused does not seek a ban, the Crown does not seek a ban and [page373] the justice does not raise the issue, the “evidence, information, representations and reasons” can be published. The applicant’s position would lead to one order that “the evidence, information, representations and reasons” of one accused were subject to a publication ban and the same “evidence and information” at the very least were not subject to a non-publication order. It is difficult to see how that interpretation of s. 517 is reading the section harmoniously with the scheme of the A ct, the object of the Act and the intention of Parliament.

[114] The difficulties with the applicants’ interpretation apply whether there are two or 12 co-accused. For example, if two persons charged in the same information appeared “before a justice” pursuant to s. 515 both prepared for their bail hearings and the Crown indicated an intention to “show cause” why they should either be detained or released on a form of release other than an undertaking without conditions, if A sought a s. 517 order and B did not, what would occur? According, to the applicants’ position, the order would issue for A and not for B, despite the fact that the evidence, usually a synopsis read in by the Crown, would apply to both accused. If the Crown then sought an order in regards to B, notice would have to be given to the media that a discretionary order was sought and, presumably, the proceeding adjourned to permit the media to determine if they wished to intervene or the s. 515 hearing would proceed subject to a temporary s. 517 order and the determination made at a later date, when all parties including the justice were available. The latter alternative was suggested by counsel for the applicants in submissions, while acknowledging that it was inconsistent with the applicants’ desire for contemporaneous reporting.

[115] Applying the applicants’ position, the following would be a potential report of A’s bail hearing or a joint hearing for both accused, where A and B were charged in the same information if B sought a s. 517 order and A did not and either a discretionary ban was not requested or was denied: The Crown introduced evidence that B confessed to committing the crime in a two-hour videotaped statement, [See Note 10 below] took the police to the location of relevant evidence and was awaiting trial on drug importation and aggravated assault charges (note:
all of this information is subject to a publication ban imposed at B’s bail hearing to protect his fair trial interests). Such a report flies in the face of Parliament’s intention in enacting s. 517. [page374]

[116] An examination of another scenario shows the significant risks associated with the applicant’s interpretation of s. 517. If the applicants are correct, where there are several accused and there are antagonistic or “cut throat” defences, or one or more accused decide they will “point the finger” at another accused, whether or not the “target” points back, several accused could conduct their bail hearings with a view to painting the target as the “bad guy”, seriously infringing his fair trial rights if the Crown failed to satisfy the Dagenais/Mentuck test.

[117] While I also have to take into consideration the Charter rights of other accused persons, including those who do not seek an order, and the rights protected by s. 2(b), I am not persuaded the alleged Charter rights of the accused who do not seek the order apply or that this interpretation of the s. 517infringes their Charter rights. I am not persuaded an accused has a Charter right to have the “evidence, information, representations or reasons” at his or her bail hearing published. Neither am I persuaded that having regard to the earlier references to s. 2(b), that the applicants’ interpretation is correct.

[118] While it was argued that an accused has a right to have the bail hearing published or broadcast pursuant to s. 11(d), “the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”, I am not persuaded s. 11(d) provides a right to a bail hearing with the evidence, information, representations and reasons published.

[119] In R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, 77 C.C.C. (3d) 124, at pp. 682-83 S.C.R., p. 135 C.C.C., the presumption of innocence was examined in the context of bail hearings. While Lamer C.J.C., as he then was, held that ss. 7, 9, 11(d) and 11(e) of the Charter were linked by a single concept, the presumption of innocence, he did not suggest that s. 11(d) applied at a bail hearing. A bail hearing does not determine whether the accused is guilty of the offence(s) charged.

[120] Section 11(d) refers to being “proven guilty according to law in a fair and public hearing . . .”. In Pearson, Lamer C.J.C. held [at p. 683 S.C.R.] that ss. 8 through 14 of the Charter were illustrative of the meaning of the “principles of fundamental justice” contained in s. 7 of the Charter. While the presumption of innocence was only referred to in s. 11(d) of the Charter, it was “referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter“. The judgment continued [at p. 683 S.C.R.]: [page375]

Section 11(d) of the Charter sets out the presumption of innocence in the context of its operation at the trial of an accused person. As I stated in Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, at p. 357:

Section 11(d) imposes upon the Crown the burden of proving the accused’s guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence.

This operation of the presumption of innocence at trial, where the accused’s guilt of an offence is in issue, does not, in my opinion, exhaust the operation in the criminal process of the presumption of innocence as a principle of fundamental justice. The presumption of innocence, as a substantive principle of fundamental justice “protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct”: Oakes, supra, at p. 119. In my view, the presumption of innocence is an animating principle throughout the criminal justice process. The fact that it comes to be applied in its strict evidentiary sense at trial pursuant to s. 11(d) of the Charter, in no way diminishes the broader principle of fundamental justice that the starting point for any deprivation of life, liberty or security of the person of anyone charged with or suspected of an offence must be that the person is innocent. (Emphasis added)

[121] I am not persuaded that s. 11(d) supports the position of those suggesting an accused has a right to a public bail hearing. At its highest, they have a right not to seek the order and to oppose any order sought by the Crown or considered by the justice.

[122] Having regard to the above, I am also not persuaded that the ss. 7 or 11(e) (the right not to be denied reasonable bail without just cause) Charter rights of those accused who do not seek the order are infringed by this interpretation. The Supreme Court of Canada has established the rights of accused that apply at bail hearings in Pearson, supra, and further explained those rights in Hall [infra]. There is nothing in this interpretation that infringes either right.

[123] Similarly, it was argued that the s. 15 rights of those opposing bans would be violated by this interpretation. Mr. Galati argues that all accused have a right to be treated equally at their bail hearings pursuant to s. 15. I disagree. First, where the application deals with the same evidence to be lead for each accused, it is impossible for each accused to have their preferences govern. It is the same evidence.

[124] Second, in order to establish a s. 15 violation, it would have to be established that the accused who opposed the ban were subject to (i) differential treatment, (ii) on the basis of an enumerated or analogous ground, and (iii) which conflicts with the purpose of s. 15(1) and thus amounts to substantive discrimination: [page376] Lovelace v. Ontario, 2000 SCC 37 (CanLII), [2000] 1 S.C.R. 950, [2000] S.C.J. No. 36. The enumerated grounds are discrimination based on race, national or ethnic origin, colour, religion, sex age or mental or physical disability. While those opposed to a ban would be treated differently, there is no evidence demonstrating that this different treatment was on the basis of an enumerated or analogous ground.

[125] One respondent has presented an alternative rationale for seeking to quash the publication ban. Mr. Martin supports quashing the ban because he must be able to “counter” the misinformation in the press conferences and press leaks, to preserve his client’s fair trial interests. He submits that the public cannot be “reasonably informed” about the case unless he is permitted to correct the misinformation in the press. He is “forced” by the misinformation to respond to the media and act. He argues some of the public impressions created as a result of the information given at the police press conference, through leaks and information attributed to unnamed police sources, as well as conflicting information on other issues, must be addressed. Implicit in the submission that it is his right, obligation and/or duty to do so in his client’s interest at this stage of the prosecution. With respect, I disagree.

[126] The clear indication from this submission is that counsel will make public statements about the evidence in the case or information already in the public domain. Defence counsel in Canada generally do not, and should not, try cases in the media. Counsel make their representations on behalf of their clients in the courtroom, not outside on the courthouse steps. Counsel should not conduct press conferences for their clients to counter the allegations in the media or misinformation. While it may be frustrating for counsel, the accused, their families and friends, when allegedly groundless or inconsistent allegations are made in the press, or allegations are taken out of context, [See Note 11 below] engaging in a defence media campaign is neither appropriate nor in keeping with the role of counsel as officers of the court.

[127] In addition, one could question the wisdom or feasibility of embarking on a media campaign for an accused person, whether or not it is to correct misinformation that has been disseminated through the press. Given the massive publicity in this case, defence counsel could be facing a daunting challenge at a time when the focus of the retainer should be preparing for the [page377] bail hearing, preliminary inquiry if one is to be held and trial — all heard in a courtroom based on the actual evidence.

[128] I also question whether the effort to “set the record straight” advances the interests of an accused at the first important event in the prosecution, the bail hearing. As noted in an earlier ruling in this case, to an extent, the desire to “level the playing field” in the early stages of prosecutions is premised on a misunderstanding of the tertiary ground for detention under s. 515. While that section refers to “where detention is necessary in order to maintain confidence in the administration of justice”, the justice presiding at the bail hearing does not take into consideration media reports from “reliable sources”, “unnamed police sources”, “police officers who speak on condition of anonymity”, information or opinions supplied by public figures, or talk radio surveys. The scope of the sections was set out in the Supreme Court of Canada judgment in R. v. Hall, 2002 SCC 64 (CanLII), [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 167 C.C.C. (3d) 449, at para. 41:

The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), 1997 CanLII 10835 (BC CA), 119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about “the philosophy of the legislative provisions, Charter values and the actual circumstances of the case” (p. 274). For these reasons, the provision does not authorize a “standardless sweep” nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad. [Emphasis in original]

[129] When the Chief Justice, as she now is, referred to “the actual circumstances of the case”, the reasonable member of the community should not concern themselves with the information referred to above. Rather, it is the actual circumstances.

[130] Further, a bail hearing is not and should not become a “press conference” for the defence to counter misinformation in the media. As Hill J. noted [at para. 66] in R. v. John, supra, at a bail hearing the court is “tasked with control of its own process — prohibiting the abuse of meandering discovery, while maintaining the focus of the s. 515(1) test”. The focus of the s. 515 test is not levelling the playing field. [page378]

[131] In light of the submission regarding levelling the playing field, and references to at least one defence counsel making the contents of disclosure public in and outside of court, the following conclusion of the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (the “Martin Committee”), 1993, is important. The committee concluded that “it was inappropriate for any counsel to give disclosure material to the public. Counsel would not be acting responsibly as an officer of the court if he or she did so.” That recommendation is an accurate description of the duties imposed on counsel receiving disclosure. All counsel are well advised to follow it.

[132] I have also considered the applicant’s submission that there must be a hearing for each accused who do not seek a s. 517 order, or one hearing for all who oppose such an order, from the perspective of their submission that the efficacy of such a discretionary ban would be problematic, given the massive publicity to date. In submissions, counsel for the applicants argued that given it is virtually impossible at the outset of a bail hearing to determine all of the evidence, information, representations or the details of the reasons which will emerge at the bail hearing, it might be preferable to impose a temporary deferral of publication at the outset of all hearings, with the justice making the determination at the end, when it is ascertained what information is disclosed at the hearing.

[133] The difficulty with that approach is that it flies in the face of the earlier suggestion that there be one hearing which would determine if there would be a discretionary ban for all accused and in the face of their argument for “contemporaneous reporting”. The greater practical implication of this suggestion is that someone, presumably the justice of the peace with submission from counsel, in this case would have to determine whether the information, etc., disclosed at the bail hearing, had already been disclosed in the press. Presumably, if it had been, the applicants would argue there would be no purpose served in the ban. The practical implications of anyone reviewing what must now be well over 5,000 articles to determine what has been published is not only mind-boggling, it is impractical. In addition, all of the evidence, information, representations and reasons could not already be in the press.

[134] I have also considered the fundamental freedom of expression including the freedom of the press and other media of commutations protected by s. 2of the Charter, as explained in Dagenais, supra. There are important public interests in “open courts” and in the public understanding the criminal justice [page379] system, including bail hearings. There is also a public interest in fairness and fair trials. What is presented at a bail hearing often bears little resemblance to the evidence at trial. At a bail hearing, the Crown’s allegations are largely unchallenged. The evidence and information presented can be inadmissible at trial and highly prejudicial. Of greatest significance, Parliament has created the right of the accused to have the hearing subject to a publication ban. In the circumstances, a deferral of the public dissemination of that information does not run the same potential for harm to the public’s right to know about criminal proceedings, as the risk of harm to fair trial interests of the accused who seek an order.

[135] Finally, the respondents also point out that there are other Criminal Code provisions where the wishes of one accused take precedence over that of the others in support of their interpretation of s. 517. I agree that having the position of one accused govern positions for all accused in other sections helps to inform the analysis in issue on these applications. In s. 567, where co-accused are put to their election, if one accused elects to be tried before a judge and jury, all accused are tried before a jury, regardless of their individual elections. Pursuant to s. 11(f) of the Charter, an accused facing a maximum penalty of five years has the right to a jury trial. A co-accused who elects to be tried by a judge without a jury does not have an absolute right to a non-jury trial. Similarly, in s. 651(4), if one of several co-accused call evidence, all accused must address the jury before the Crown, notwithstanding the other accused have not called evidence and would be ent itled to address the jury last.

[136] I have also considered the judgment in Parent, supra, relied upon by the respondents. Counsel presented widely divergent views regarding the judgment. The applicants argue it is wrong, untenable and impractical. The respondents argue, by implication, the judgment is persuasive, tenable and practical. If relied upon, even if the justice of the peace could not impose one order for all accused, or separate orders for each accused, the publication ban issued in regard to James would cover the “information” from his bail hearing and apply until he was discharged at the preliminary inquiry or his trial ended.

[137] In Parent, several accused were charged with murder. During the preliminary inquiry, Parent was discharged on the charge of murder and ordered committed for trial on a charge of manslaughter. The preliminary inquiry for the remaining accused had not been completed. He appeared in the Superior Court and entered a guilty plea to manslaughter. The guilty plea was based on an Agreed Statement of Fact that was prepared on [page380] the basis of the preliminary inquiry evidence. That evidence was subject to a publication ban pursuant to s. 539. The Crown sought a publication ban on the guilty plea. Counsel for the other accused supported the application. Representatives of the media were opposed.

[138] While the case was argued on the basis that the applicable test was the Dagenais/Mentuck test, with the Crown relying on the existing s. 539 order in support of their submission that they had met the test, the application judge found that since the Agreed Statement of Fact was based on the preliminary inquiry evidence which was subject to a publication ban, there was no need for the Crown to apply for an order. The s. 539 order remained in effect.

[139] Her Honour wrote [at paras. 17-19]:

For evidence that comes from the evidence at the preliminary inquiry, the Crown requests that this Court exercise its discretion and order a publication ban so as to protect the rights of accused persons who are not before this Court and whose rights are already protected by the section 539 order placing a time limitation on publication of the preliminary inquiry evidence.

I state the issue in this manner because of my concern regarding the potential effect a publication ban ruling from this Court could have on the existing section 539 order. That section 539 order is mandatory if sought by an accused and it is legislatively authorized to continue to the end of trial. It continues at the present time. If the Crown is not able to discharge its onus on this application according to the Dagenais test and a publication ban is not ordered, there is potential confusion created between this sentencing proceeding and what can be published and the co-accuseds’ proceedings. A ruling from this Court that based on the Dagenais criteria there can be no publication ban or only a limited publication ban with respect to the accused’s sentencing hearing, would serve to “undercut” the operation of the existing section 539 order. The integrity of that order would not be preserved.

The existing section 539 order prohibits the publication of “the evidence taken at the inquiry” in respect of each accused before each of the accused is discharged or, if ordered to stand trial, before his trial is ended. For the co-accused, I understand this order operates by following the evidence taken at the preliminary inquiry rather than simply following the co-accused and their court proceedings. It seems to me it would render the section 539 order ineffectual to interpret it as applying only in court proceedings against the co-accused and not to the very same evidence, taken at the preliminary inquiry, when submitted in other proceedings. The essence of a section 539 order is the restriction on publication of preliminary inquiry evidence and I interpret this to mean the publication restriction applies wherever that evidence may be used before each of the accused is either discharged or his trial is ended. The section 539 order follows the preliminary inquiry evidence so as to pro tect the rights of each of the accused until the trial is ended. (Emphasis added) [page381]

[140] While Parent was approved of in R. v. Tutin, [2004] N.W.T.J. No. 40, 2004 NWTSC 46 (CanLII), Tutin was not followed in R. v. Mason, [2005] O.J. No. 5294, [2005] O.T.C. 1060 (S.C.J.), where the application judge was asked to impose a publication ban on a guilty plea where the jury trial of another person charged with the same homicide was to be held in two months. Graham J. imposed the publication ban but found, after referring to Tutin [at para. 48]:

The Court also agrees, with respect, that it is not bound by the statutory non-publication order in relation to D.W.’s preliminary hearing. Regardless whether the same information was heard at D.W.’s preliminary hearing, any evidence led in relation to Mr. Mason’s plea and sentencing is just that. It falls to this court to regulate the conduct of this trial, including publication. It is for that very reason that the Crown’s application is necessary if it wishes to restrict publication in relation to this proceeding.

[141] The applicants argue Parent is wrongly decided, noting that if the s. 517 order followed the evidence to the end of the preliminary inquiry or trial, there would be no need for Parliament to specify that s. 517 applied to bail reviews pursuant to s. 521. The difficulty with this analysis is that it assumes the “evidence, information, submissions and reasons” on s. 515 and s. 521 applications are the same. That premise is wrong. The most common ground upon which bail reviews are brought to the Superior Court is that there has been a material change in circumstances. The information is not the same.

[142] The applicants next argue that if Parent is correct, there is no need for s. 539 orders at preliminary inquiries, since the s. 517 order follows the evidence from the bail hearing. I disagree. As noted earlier there is a significant difference between the evidence, information, representations and reasons given at a bail hearing and the evidence introduced at a preliminary inquiry. Section 518 provides the type of evidence that can be relied upon at bail hearings. Those criteria do not equate with the evidence admissible at preliminary inquiries. Even considering the recent amendments regarding bail hearings, evidence which is admissible at a bail hearing is not the same as at a preliminary inquiry.

[143] It is not necessary to determine if Parent or Mason is correct, given my findings above. However, while the Parent approach is attractive from a practical perspective, I am inclined to the view that the determination should be made at the time of the guilty plea, and that the order does not attach to the preliminary inquiry evidence. In attempting to apply the Parent approach to this case, if an order were granted for James’ bail hearing and Ghany, who did not seek an order, had his bail hearing [page382] first, it would be impossible to know to what evidence, information, representations and reasons the order applied since James’ hearing had not been held.

[144] The s. 539 order would be an important, albeit not a determinative factor in the Dagenais/Mentuck analysis as it appears the Crown argued in Parent. That approach is more consistent with the Charter principles referred to earlier. It would permit the judge hearing the plea to determine whether a ban is appropriate at that time. In these circumstances, I have not relied on Parent in support of my conclusion.

[145] I have also considered the Alberta Court of Appeal decision in R. v. White, [2006] A.J. No. 179, 2006 ABCA 65 (CanLII), relied upon by the applicants. In White, the accused, charged with the second degree murder of his wife, a s. 469 offence, was released after a hearing pursuant to s. 522. The Crown sought to review that order in the Court of Appeal pursuant to s. 680. Section 522(5) provides that the provisions of ss. 517, 518(1) and 519 apply with such modifications as the circumstances require on applications for release to a Superior Court judge. Pursuant to s. 522(4), an order made under s. 522 was not subject to review except as provided in s. 680. Section 680 does not include any reference to s. 517 applying to the application for leave or the review in the Court of Appeal.

[146] The Memorandum of Judgment concluded that it was remarkable that there was no similar provision for s. 680 reviews and described it as a legislative omission since it was unreasonable to think Parliament intended publication bans to be “there for the asking” in the courts below, but had to be justified at the appeal level. However, the court concluded that they were required to take the law as they found it, the accused had no right to a mandatory ban on a s. 680 application, applied the Dagenais/Mentuck test and declined to impose a publication ban. Neither the Crown nor defence counsel had attempted to justify the ban. The court noted that the admissibility of the Crown evidence did not appear to be in issue.

[147] White is distinguishable from these applications. Here, the issue is the interpretation of s. 517 — whether the interpretation of s. 517 advanced by the applicants or the respondents accords with the approach outlined in Sharpe.

[148] I am persuaded that when one accused on an information charging more than one person seeks an order under s. 517, the order applies to all bail hearings conducted pursuant to that information. [page383] Does the order breach the respondent Ghany’s Charter rights?

[149] For the reasons indicated above, the mandatory order as against all accused persons on the same information does not offend the Charter rights of accused persons who do not seek and oppose a publication ban. Did the reasons of the justice of the peace provide a sufficient basis for meaningful review?

[150] Mr. Galati argued that the reasons of the justice of the peace were deficient. I am not persuaded they were. His Worship concluded that if one accused seeks an order, there must be the same order for all accused. While the basis of the decision was not elaborated upon, consideration must be given to the time and place when the decision had to be made. A reserved decision did not appear to be a viable option.

[151] Even if the reasons were not as fulsome as the applicant Ghany contends, I find in the circumstances that that error occasioned no substantial wrong or miscarriage of justice and that the decision would inevitably have been the same. Given the volumes of material filed and length of the submissions on this application, it can hardly be said that the absence of reasons deprived Mr. Ghany or anyone else of a meaningful review of the decision. Did the order of June 12, 2006 go too far?

[152] While I have found the justice of the peace had the jurisdiction to make the order at the time he did, and that the order could apply to all accused, re-reading the transcripts of the court appearances in the course of preparing these reasons additional issues arose. Given the findings above regarding the scope of s. 517 orders, Justice of the Peace Currie’s elaboration to Mr. Gilliland, that the ban included the “proceedings” on June 12, raised an additional issue — whether a s. 517 ban can prohibit publication of information that does not relate to a s. 515 hearing. Put another way, if “evidence, information, or representations” are made regarding issues that are not related to a bail hearing, can they be subject to a s. 517 ban?

[153] I have concluded that they cannot. To the extent that the June 12 order appears to have prohibited publication of everything said in court on that date, the order was too broad and exceeded the ambit of s. 517, the only basis upon which the order was issued. To the extent that some have interpreted the order as including all attendances by all accused, if that was the intention, the order went too far. [page384]

[154] An order pursuant to s. 517 is aimed at protecting the accused person’s fair trial rights, by prohibiting publication of the “evidence, information, representations and reasons”. The information upon which the ban issues must, however, relate to the objectives of the legislation and to the identified areas. In addition, as noted earlier, a s. 517 ban cannot apply to every attendance under s. 517. For example, if the Crown does not indicate an intention to “show cause”, the accused must be released on an undertaking without conditions and no s. 517 order could apply.

[155] At the appearance on June 12, 2006, one counsel made lengthy submissions regarding the security in the courtroom, conditions under which his and other clients were being kept at the Maplehurst Detention Centre and his client’s physical condition. These representations appear to have been advising the court of the conditions with references to potential Charter breaches and breaches of other legislation. Counsel asked “what steps [were] being taken to normalize this situation for [his] client”.

[156] Crown Counsel appropriately suggested that the issues should initially be raised with the superintendent of the jail and if dissatisfied with the response or the problem continued, counsel should bring an application to a court with jurisdiction to grant the relief sought. Mr. Leising submitted that the court had no jurisdiction to make orders relating to institutional security and no jurisdiction to grant a Charter remedy.

[157] These issues did not relate to the s. 515 hearing. Virtually all of the submissions could have been made in regards to an accused before a bail hearing or after a detention order was issued. They dealt with appearances in court and the conditions of detention at the jail. They were issues that could be the subject of an application for Charter relief in the Superior Court of Justice. For the reasons indicated in the ruling released July 20, 2006 on applications by Ghany, applications for Charter relief involve a separate application from the bail hearing and should not be heard at the same time.

[158] To the extent that submissions are made regarding issues that are not related to s. 515, I am unable to see how that information could be the subject of a s. 517 order. To interpret the section as permitting a publication ban on all information presented when the parties appear before a justice after the indication that the Crown or defence seeks to show cause, regardless if it relates to the bail hearing, is to permit a ban beyond the scope of s. 517 having regard to the authorities cited earlier. Counsel had just been retained and was understandably not prepared for a bail hearing. While he alluded to the conditions at the jail making it difficult to prepare for a bail hearing [page385] and get instructions, issues that could arguably be raised in regards to the grounds for detention at the bail hearing, I am not persuaded that when they were raised, they were related to a s. 515 hearing or could be seen as offending the objectives a s. 517 order seeks to protect. Even if they were, issues such as the conditions under which family members were permitted jail visits, courtroom security and the physical condition of the accused are not related to s. 515.

[159] While I appreciate that a ban on everything said at a proceeding has the advantage of clarity for the court, media, counsel and others involved, the ban should not be permitted to cover representations that are not within the areas specified in s. 517, nor within the objectives sought to be protected by the section. For example, if there was a ban on the proceedings of June 12, 2006, it could be argued that the media could not publish the dates scheduled for the bail hearings.

[160] What is covered by a s. 517 publication ban before the actual hearing commences would include references to the onus when based on an allegation the accused is awaiting trial on another indictable offence, the nature of the allegations and the evidence and witnesses to be called at the hearing. This list is not intended to be exhaustive. If any member of the media or counsel are uncertain whether something is covered by the order, an application should be brought for clarification. If counsel seeks to address issues outside the scope of a s. 515 hearing, they should keep in mind that a s. 517 order cannot cover those submissions. In the alternative, if the publication ban could only have been ordered pursuant to the discretionary power, should this court make the order?

[161] If I am in error in my interpretation of s. 517, the respondents argued that either I should infer the justice of the peace considered the Dagenais/Mentuck test, and concluded he was satisfied that the test was met, or, if he did not, that I could apply the test myself and conclude that the error in failing to decide whether the Crown had met the test occasioned no substantial wrong or miscarriage of justice, because a discretionary ban would have been imposed in any event. In doing so, the respondents rely on the Court of Appeal judgment in R. v. Papadopolous, 2005 CanLII 8662 (ON CA), [2005] O.J. No. 1121, 201 C.C.C. (3d) 363 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 314.

[162] The applicants argue it is inconceivable the justice of the peace applied the Dagenais/Mentuck test, given the words of the judgment. They next argue that their application does not seek [page386] an order whether a discretionary ban was appropriate. Rather, they seek an opportunity to have a hearing on the issue.

[163] I agree with the applicants that the justice of the peace did not consider the issuance of a discretionary publication ban. The wording of the ruling is clear that it was based on his interpretation that if one accused asks for the ban, it applies to all accused.

[164] I also agree with the applicants that it would not be appropriate to make the finding on the record before me. While I have reviewed the voluminous material filed, and heard substantial submissions on behalf of all parties on the issue, I will not conduct the analysis to determine whether the test is met. I reach this conclusion because I am not persuaded all parties who might be affected by such an order were heard. Those who did not participate in the application would have done so on the basis that this issue was not before me. All that was being requested was the quashing of the order. In addition, since the one accused who was not going to seek a s. 517 order has been released, the positions of the remaining parties would have to be determined. Finally, it is implicit in the position of the applicants that they have not presented full arguments on the issue. The Exhibits Filed on this Application

[165] At the outset of the hearings on these applications, and the “Ghany applications” regarding the venue of his bail hearing, an issue was raised by Mr. Leising regarding the inclusion in the materials filed on behalf of two accused of the synopsis filed at the bail hearings. It was agreed that they would be temporarily sealed, with the issue to be revisited at the end of submissions. The issue was not addressed again.

[166] While I would be prepared to receive further written or oral submissions on the issue, subject to further argument, I am inclined to the view that the sealing order should continue. The copies of the synopsis were filed on applications relating to the bail hearings as documents that had been disclosed to the defence. The document as disclosure is not a public document. It is subject to a series of publication bans at the bail hearings that have been held. Its release would create the problems with conflicting orders identified earlier. Subject to further submissions, the documents will remain sealed. Conclusions

[167] Returning to the questions posed at the outset, (1) the applicants have standing to challenge the s. 517 order made by Justice of the Peace Currie; [page387] (2) His Worship had the jurisdiction to issue the order on a “set date” appearance; (3) 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 hearings of all accused; (4) an order under s. 517 which applies to an accused who does not seek a publication ban, does not offend that accused’sCharter rights; (5) the order of the justice of the peace was made on the basis of s. 517 only, as a mandatory order; (6) the order made in regard to “the proceedings” on June 12, 2006 was overly broad, in that it included information that could not be the subject of a s. 517 order; [and] (7) if I am wrong in those determinations, I decline to determine if a discretionary order would inevitably have issued.

[168] The applications are dismissed.

Application dismissed.

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