Toronto Star Newspapers Ltd. et al. v. Canada et al., 2009 ONCA 59

• Judge: Laskin, Rosenberg, Feldman, Simmons and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 26, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 59;(2009), 245 O.A.C. 291 (CA)

Toronto Star v. Can. (2009), 245 O.A.C. 291 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JA.138

Toronto Star Newspapers Ltd., the Canadian Broadcasting Corporation, the Associated Press and CTV Television Inc. (appellants) v. Her Majesty the Queen in Right of Canada, Fahim Ahmad, Zakaria Amara, Asad Ansari, Shareef Abdelhaleen, Qayyum Abdul Jamal, Mohammed Dirie, Yasin Abdi Mohamed, Jahmaal James, Amin Mohamed Durrani, Steven Vikash Chand, Ahmad Mustafa Ghany, Saad Khalid (respondents) and N.Y. (being a young person within the meaning of the Youth Criminal Justice Act), Z.M. (being a young person within the meaning of the Youth Criminal Justice Act), N.S. (being a young person within the meaning of the Youth Criminal Justice Act), S.M. (being a young person within the meaning of the Youth Criminal Justice Act), and S.G. (being a young person within the meaning of the Youth Criminal Justice Act) (interested parties)

(C46864; C45923; 2009 ONCA 59)

Indexed As: Toronto Star Newspapers Ltd. et al. v. Canada et al.

Ontario Court of Appeal

Laskin, Rosenberg, Feldman, Simmons and Juriansz, JJ.A.

January 26, 2009.

Summary:

In early June 2006, the police arrested twelve adults and five young persons for terrorism-related offences. The arrests attracted world-wide media attention. Pursuant to a request by one of the accused under s. 517 of the Criminal Code, a justice of the peace imposed a publication ban respecting the bail hearings. Under s. 517, imposition of the ban was mandatory when requested by an accused. Some of the accused did not want the publication ban; however, the justice ruled that since the accused were jointly charged, the ban applied to the proceedings in relation to all of the accused. Four media organizations applied to quash the publication bans as they related to the accused who did not seek them.

The Ontario Superior Court, per Durno, J., in a decision reported [2006] O.T.C. Uned. F14, dismissed the application, holding that when one of several jointly charged accused sought the mandatory order under s. 517, it applied to the bail hearings of all accused. The media organizations then applied for a declaration that the mandatory publication ban violated s. 2(b) of the Charter (i.e., the freedom of the press) and should be declared of no force and effect.

The Ontario Superior Court, per Durno, J., in a decision reported (2007), 84 O.R.(3d) 766, dismissed the application, holding that it was bound by a 1984 Ontario Court of Appeal decision (Global Communications), which upheld the validity of s. 517. The media organizations appealed both Durno, J.'s, 2006 and 2007 decisions.

The Ontario Court of Appeal overruled the Global Communications decision and allowed the appeal from the 2007 decision. The majority, per Feldman, J.A. (Laskin and Simmons, JJ.A., concurring), held that the publication ban as currently drafted violated s. 2(b) of the Charter. The majority held that the mandatory publication ban was not saved by s. 1 of the Charter because it was over broad in that it applied to cases where a jury was not available and there was thus no risk of jurors learning of the evidence given at the bail hearing. However, rather than strike down s. 517, the court left the mandatory ban in place, but read down the legislation to make it applicable only to show cause hearings in respect of charges that procedurally might possibly be tried by a jury. Rosenberg, J.A., dissenting (Juriansz, J.A., concurring), agreed that the mandatory publication ban in s. 517 violated s. 2(b) of the Charter and could not be saved by s. 1, but on a different basis than the majority. The dissenters opined that the words in s. 517 which created the ban should be declared of no force and effect, but would have suspended the declaration for 12 months. All five members of the panel agreed that the appeal from the 2006 decision should be dismissed, holding that s. 517 was reasonably capable of Durno, J.'s, interpretation and any other interpretation would undermine the objectives of the legislation.

Civil Rights - Topic 2444

Freedom of the press - Lawful abridgement of - Trial publicity (incl. bail proceedings) - Section 517 of the Criminal Code required the judge or justice of the peace presiding at a bail hearing to impose a ban on publication of the proceedings where the prosecutor intended to show cause why the accused should not be released and the accused requested the publication ban - The Ontario Court of Appeal held that the mandatory publication ban in s. 517 violated s. 2(b) of the Charter (i.e., the freedom of the press) - The mandatory publication ban was not saved by s. 1 because it was overly broad in its scope, in that it even applied to cases where a jury was not available and there was thus no risk of jurors learning of the evidence given at the bail hearing - Section 517, therefore, to that extent, did not meet the rational connection or the minimal impairment tests under R. v. Oakes (SCC) - The court, per Feldman, J.A., for the majority, stated that "A publication ban is needed in jury cases to protect an accused's right to a fair trial under s. 11(d) and s. 7 of the Charter, by preventing potential jurors from learning of prejudicial information from bail hearings which may never be heard at trial. In my view, because it is also critically important that the rights of an accused under s. 11(e) and s. 7 of the Charter to reasonable bail following an expeditious bail hearing be protected in possible jury cases, the publication ban must be mandatory at the request of an accused and not merely available at the discretion of the justice following a hearing on that issue. I would therefore leave the mandatory ban in place, but read down the legislation to make it applicable only to show cause hearings in respect of charges that procedurally may possibly be tried by a jury" - See paragraphs 158 to 256.

Civil Rights - Topic 2482

Freedom of the press - Limitations - What constitutes infringement - [See Civil Rights - Topic 2444 ].

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings (incl. bail proceedings) - [See Civil Rights - Topic 2444 ].

Civil Rights - Topic 2490.1

Freedom of the press - Limitations - Criminal matters - Publication ban (incl. bail proceedings) - [See Civil Rights - Topic 2444 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 2444 and second Courts - Topic 83 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 2444 ].

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - Section 517 of the Criminal Code provided that "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 ... 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 ..." until the accused was discharged or the trial ended - The Ontario Court of Appeal held that the mandatory publication ban in s. 517 issued at the request of the accused violated s. 2(b) of the Charter (freedom of the press) - The ban was not saved by s. 1 because it was overly broad (i.e., it applied to cases that could not be tried by a jury and thus to cases where there was no risk that a jury would hear the evidence from the bail hearing) - As a remedy, the court read down the legislation to make it applicable only to show cause hearings in respect of charges that procedurally could possibly be tried by a jury (i.e., the court read down s. 517 by adding the underlined words: "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 where and for so long as the charge(s) may be tried by a jury , ..." - See paragraphs 249 to 256.

Civil Rights - Topic 8380.18

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading down - [See Civil Rights - Topic 8380.1 ].

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See second Courts - Topic 83 ].

Constitutional Law - Topic 25

General - Raising constitutional issues - Proof required - Legislative facts versus adjudicative facts - [See Practice - Topic 9031 ].

Constitutional Law - Topic 2507

Determination of validity of statutes or Acts - General principles - Reading down - [See Civil Rights - Topic 8380.1 ].

Constitutional Law - Topic 2507.1

Determination of validity of statutes or acts - General principles - Reading in - [See Civil Rights - Topic 8380.1 ].

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - The Ontario Court of Appeal referred to a discussion by Laskin, J.A., in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), concerning the circumstances in which the appeal court would overrule one of its own decisions - The court noted that Laskin, J.A., referred to the five factors that the Supreme Court of Canada had articulated that would allow it to overrule one of its previous cases as a useful checklist for appellate courts: "(a) a previous decision does not reflect the values of the Canadian Charter of Rights and Freedoms; (b) a previous decision is inconsistent with or 'attenuated' by a later decision of the court; (c) the social, political, or economic assumptions underlying a previous decision are no longer valid in contemporary society; (d) the previous state of the law was uncertain or a previous decision caused uncertainty; and, (e) in criminal cases, the result of overruling is to establish a rule favourable to the accused" - The court stated that the list, while useful, was not exhaustive, and quoting Laskin, J.A., stated that the court "will overrule our precedents in an appropriate case" - See paragraphs 113 and 114 and 161.

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - Section 517 of the Criminal Code (formerly 457.2) required the judge or justice of the peace presiding at a bail hearing to impose a ban on publication of the proceedings where the prosecutor intended to show cause why the accused should not be released and the accused requested the publication ban - In 1984, two years after the Charter came into force, the Ontario Court of Appeal upheld the constitutionality of the mandatory publication ban in then s. 457.2 (Global Communications case) - In 2007, four media organizations again raised the constitutionality of s. 517 - In 2009, the Ontario Court of Appeal held that this was an appropriate case to overrule Global Communications, principally because the decision had been overtaken by later decisions of the Supreme Court of Canada dealing with the relationship between freedom of expression and the right to a fair trial - Global Communications was premised on the theory that, in a contest between the accused's fair trial rights and the freedom of expression, the accused's fair trial rights were always paramount - However, that model was since rejected in favour of a model whereby when Charter rights conflicted, Charter principles required a balance to be achieved that fully respected the importance of both sets of rights - The Supreme Court had also rejected the theory that fair trial rights were so fragile that all possible measures must be taken to protect them - See paragraphs 113 to 117 and 161.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The police arrested 12 adults and five young persons for terrorism-related offences - Pursuant to a request by one of the accused under s. 517 of the Criminal Code, a justice of the peace imposed a publication ban respecting the bail hearings - Under s. 517 imposition of the ban was mandatory when requested by an accused - Some of the accused did not want the publication ban; however, the justice ruled that since the accused were jointly charged, the ban applied to the proceedings in relation to all of the accused - Four media organizations applied to quash the publication ban as it related to the accused who did not seek a ban and applied for a declaration that the mandatory publication ban in s. 517 was contrary to s. 2(b) of the Charter - An applications judge dismissed both applications - The media organizations appealed - The Crown (Ontario and Canada) claimed that the appeals were moot because the mandatory ban had been replaced by a discretionary publication ban covering all proceedings, including the bail proceedings - The Ontario Court of Appeal held that even if the appeal was moot, this was the type of case where the court ought to exercise its discretion to hear the case (i.e., an adversarial relationship still existed between the parties, judicial economies favoured hearing the case and this was not a case where the limits on the court's proper law-making function required the court not to hear the case) - See paragraphs 15 to 22 and 161.

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban - The police arrested 12 adults and five young persons for terrorism-related offences - Pursuant to a request by one of the accused under s. 517 of the Criminal Code, a justice of the peace imposed a publication ban respecting the bail hearings - Under s. 517 imposition of the ban was mandatory when requested by an accused - Some of the accused did not want a publication ban; however, the justice ruled that since the accused were jointly charged, the ban applied to the proceedings in relation to all of the accused - Four media organizations applied to quash the publication ban as it related to the accused who did not seek a ban - An applications judge dismissed the application, agreeing that the ban applied to all the accused - The media organizations appealed - The Ontario Court of Appeal dismissed the appeal, holding that s. 517 was reasonably capable of the application judge's interpretation and any other interpretation would undermine the objectives of the legislation - See paragraphs 27, 28 and 161.

Criminal Law - Topic 3314.6

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Hearing - Publication ban - [See Civil Rights - Topic 2444 , Civil Rights - Topic 8380.1 and second Courts - Topic 83 ].

Practice - Topic 5667

Judgments and orders - Declaratory judgments - Bars - Academic questions - [See Courts - Topic 2286 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - The police arrested 12 adults and five young persons for terrorism-related offences - Pursuant to a request by one of the accused under s. 517 of the Criminal Code, a justice of the peace imposed a publication ban respecting the bail hearings - Under s. 517 imposition of the ban was mandatory when requested by an accused - Some of the accused did not want a publication ban; however, the justice ruled that since the accused were jointly charged, the ban applied to the proceedings in relation to all of the accused - Four media organizations applied to quash the publication ban as it related to the accused who did not seek a ban and applied for a declaration that the mandatory publication ban in s. 517 was contrary to s. 2(b) of the Charter - An applications judge dismissed both applications - The media organizations appealed - The Crown (Ontario) sought to introduce fresh evidence of legislative facts to support the constitutionality of the legislation - The media organizations opposed admission on the basis that the evidence should have been adduced at the application stage and was of limited probative value - The Ontario Court of Appeal admitted the evidence, noting that in constitutional cases appellate courts had allowed considerable latitude for the admission of new materials related to legislative facts - See paragraphs 23 to 26 and 161.

Cases Noticed:

Global Communications Ltd. v. California (State) and Ontario (Attorney General) (1984), 2 O.A.C. 21; 44 O.R.(2d) 609 (C.A.), affing. (1983), 42 O.R.(2d) 13 (H.C.), overruled [paras. 1, 12, 161].

Global Communications Ltd. and Canada (Attorney General), Re - see Global Communications Ltd. v. California (State) and Ontario (Attorney General).

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [paras. 16, 165].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 17].

R. v. Adams (J.R.) (1995), 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161; 103 C.C.C.(3d) 262 (S.C.C.), refd to. [para. 21].

R. v. Powley (S.) et al. (2001), 141 O.A.C. 121; 152 C.C.C.(3d) 97 (C.A.), affd. (2003), 308 N.R. 201; 177 O.A.C. 201; 177 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 23].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 32].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1, refd to. [para. 34].

Vancouver, Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

R. v. Big M Drug Mart Ltd. (1985), 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 37].

R. v. Butler and McCord (1992), 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1; 70 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 38].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [paras. 43, 183].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201, refd to. [paras. 44, 227].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 45].

R. v. Bryan (P.C.) et al. (2007), 359 N.R. 1; 237 B.C.A.C. 33; 392 W.A.C. 33; 217 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 45].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 53].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

R. v. Daly (J.L.) et al., [2003] B.C.T.C. 1143; 178 C.C.C.(3d) 31 (S.C.), affd. (2005), 215 B.C.A.C. 107; 355 W.A.C. 107; 198 C.C.C.(3d) 185 (C.A.), refd to. [para. 54].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [paras. 55, 168].

R. v. Kenny (1991), 92 Nfld. & P.E.I.R. 318; 287 A.P.R. 318; 68 C.C.C.(3d) 36 (Nfld. T.D.), refd to. [para. 56].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 58].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [paras. 62, 211].

Canadian Newspapers Co. v. Canada, [1988] 2 S.C.R. 122; 87 N.R. 163; 32 O.A.C. 259, refd to. [paras. 64, 241].

R. v. White (M.J.) (2005), 376 A.R. 63; 360 W.A.C. 63 (C.A.), refd to. [para. 76].

R. v. Smith (A.), [2006] O.T.C. Uned. 915; 2006 CanLII 30593 (Sup. Ct.), refd to. [para. 77].

R. v. Hall (D.S.) (2002), 293 N.R. 239; 165 O.A.C. 319; 167 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 78].

R. v. White (M.J.) (2008), 437 A.R. 130; 433 W.A.C. 130; 93 Alta. L.R.(4th) 239 (C.A.), refd to. [para. 80].

R. v. Domm (G.) (1996), 95 O.A.C. 262; 111 C.C.C.(3d) 449 (C.A.), leave to appeal refused (1997), 215 N.R. 320; 102 O.A.C. 320 (S.C.C.), refd to. [para. 82].

R. v. Pearson (E.) (1992), 144 N.R. 243; 52 Q.A.C. 1; 77 C.C.C.(3d) 124 (S.C.C.), refd to. [para. 84, footnote 5].

R. v. Mentuck (C.G.) (2001), 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 158 C.C.C.(3d) 449 (S.C.C.), refd to. [paras. 84, 255].

R. v. White (M.J.) (2007), 420 A.R. 1; 221 C.C.C.(3d) 393 (Q.B.), refd to. [para. 91].

R. v. Lake, [1997] O.J. No. 5446 (Gen. Div.), refd to. [para. 92].

R. v. B., [2006] EWCA Crim 2692 (C.A. Crim. Div.), refd to. [para. 93].

Montgomery v. HM Advocate and another, [2003] 1 A.C. 641 (P.C.), refd to. [para. 93].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1, refd to. [para. 97].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348, refd to. [para. 100].

Toronto Star Newspapers Ltd. v. Ontario - see R. v. Toronto Star Newspapers Ltd. et al.

R. v. Brooks (L.), [2001] O.T.C. 306; 153 C.C.C.(3d) 533 (Sup. Ct.), refd to. [para. 102, footnote 8].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203, refd to. [para. 103].

R. v. Keegstra (1990), 117 N.R. 1; 114 A.R. 81; 61 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 104].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161 (C.A.), leave to appeal refused (2006), 350 N.R. 398; 216 O.A.C. 400 (S.C.C.), refd to. [para. 113].

R. v. White (M.J.) (2006), 380 A.R. 188; 363 W.A.C. 188 (C.A.), refd to. [para. 125].

Gay Alliance Toward Equality v. Vancouver Sun; B.C. Human Rights Commission v. Vancouver Sun, [1979] 2 S.C.R. 435; 27 N.R. 117, refd to. [para. 127].

R. v. Darrach (A.S.) (2000), 259 N.R. 336; 137 O.A.C. 91; 148 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 130].

Hollinger Inc. et al. v. Ravelston Corp. et al. (2008), 235 O.A.C. 136; 89 O.R.(3d) 721 (C.A.), leave to appeal refused (2008), 391 N.R. 384 (S.C.C.), refd to. [para. 131].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 136].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 136].

R. v. Seaboyer and Gayme (1991), 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 137].

Church of Scientology Toronto et al. and R. (No. 6), Re (1986), 27 C.C.C.(3d) 193 (Ont. H.C.), refd to. [para. 147].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 158].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), leave to appeal refused (1994), 175 N.R. 321; 72 O.A.C. 159; 87 C.C.C.(3d) vi (S.C.C.), refd to. [para. 165].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 168].

R. v. Vetrovec; R. v. Gaja (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 169].

R. v. Burke (H.P.) (2002), 290 N.R. 71; 160 O.A.C. 271; 164 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 175].

R. v. Jevons, [2008] O.J. No. 4397 (C.J.), refd to. [para. 198].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89, refd to. [para. 210].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 211].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Cochrane v. Ontario (Attorney General) (2008), 242 O.A.C. 192; 92 O.R.(3d) 321 (C.A.), refd to. [para. 227].

R. v. Banville (B.) (1983), 45 N.B.R.(2d) 134; 118 A.P.R. 134; 3 C.C.C.(3d) 312 (T.D.), refd to. [para. 232, footnote 12].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 250].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353, refd to. [para. 250].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 3]; sect. 2(b) [para. 29].

Criminal Code, R.S.C. 1985, c. C-46, sect. 517 [para. 9].

Authors and Works Noticed:

Anisman, Philip, and Linden, Allen M., The Media, the Courts and the Charter (1986), pp. 319 [para. 12, footnote 2]; 320 [para. 90].

Canada, Law Reform Commission, Public and Media Access to the Criminal Process, Working Paper No. 56 (1987), generally [para. 244]; p. 76 [para. 94].

Canada, Report of the Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections (Ouimet Report) (1969), generally [para. 10].

Dufraimont, Lisa, Evidence Law and the Jury: A Reassessment (2008), 53 McGill L.J. 199, pp. 209, 210 [para. 233, footnote 13]; 218 [para. 168, footnote 9].

Friedland, Martin L., Detention Before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates Courts (1965), p. 172 [para. 63].

Greene, Edith, and Dodge, Mary, The Influence of Prior Record Evidence on Juror Decision Making (1995), 19 Law & Hum. Behav. 67, generally [para. 87, footnote 6].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), ss. 38.9(a) [para. 39]; 38.11(b) [para. 67]; 38.12 [para. 72].

Kramer, Geoffrey P., Kerr, Norbert L., and Carroll, John S., Pretrial Publicity, Judicial Remedies and Jury Bias (1990), 14 Law & Hum. Behav. 409, pp. 414 [para. 88, footnote 7]; 431, 432 [para. 88].

Linden, Allen M., Limitations on Media Coverage of Legal Proceedings: A Critique and Some Proposals for Reform, in Anisman, Philip, and Linden, Allen M., The Media, the Courts and the Charter (1986), pp. 319 [para. 12, footnote 2]; 320 [para. 90].

McRuer Report - see Ontario, Royal Commission Inquiry into Civil Rights, Report No. 1 (McRuer Report) (1968)

Ontario Court of Justice, 2005 Annual Report, online: www.ontariocourts.on.ca/ ocj/en/annualreport/2005.pdf, generally [para. 80, footnote 4].

Ontario, Royal Commission Inquiry into Civil Rights, Report No. 1 (McRuer Report) (1968), vol. 2, p. 763 [paras. 89, 224].

Otto, Amy, Penrod, Steven D., and Dexter, Hedy R., The Biasing Impact of Pretrial Publicity on Juror Judgments (1994), 18 Law & Hum. Behav. 453, p. 464 [para. 87].

Ouimet Report - see Canada, Report of the Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections.

Pickel, Kerri L., Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help (1995), 19 Law & Hum. Behav. 407, generally [para. 87, footnote 6].

Trotter, Gary T., The Law of Bail in Canada (2nd Ed. 1999), generally [paras. 23, 87, 167]; c. 5 [para. 48]; p. 197 [para. 56].

Counsel:

Paul B. Schabas, Ryder L. Gilliland and Iris Fischer, for the appellant, Toronto Star Newspapers Ltd.;

John North, Steve A. Coroza and Marco Mendicino, for the respondent, Her Majesty the Queen in Right of Canada;

M. David Lepofsky and Daniel Guttman, for the intervenor, Her Majesty the Queen in Right of Ontario;

Christopher D. Hicks, for the respondents, Amin Mohamed Durrani, Yoga Krishnan and Suhaib Mohammed, and the interested party N.S.;

John Norris, for the respondent, Asad Ansari;

Raymond Motee, for the respondent, Ibrahim Aboud;

Rocco Galati, for the respondent, Ahmad Mustafa Ghany;

Royland (Jim) Moriah, for the respondent, Jahmaal James;

David Kolinsky, for the respondent, Zakaria Amara;

Peter Martin, for the respondent, Shareef Abdelhaleen;

Michael A. Moon, for the respondent, Steven Vikash Chand;

Ingrid Grant, for the respondent, Saad Khalid;

Dennis Edney, for the respondent, Fahim Ahmad.

These appeals were heard on March 4 and 5, 2008, before Laskin, Rosenberg, Feldman, Simmons and Juriansz, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on January 26, 2009, and the following opinions were filed:

Rosenberg, J.A., dissenting (Juriansz, J.A., concurring) - see paragraphs 1 to 157;

Feldman, J.A. (Laskin and Simmons, JJ.A., concurring) - see paragraphs 158 to 256.