R. v. Farrell and Marks

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November 27, 2001

Application for Publication Ban On Identity of Crown Witness Under s. 486(4.1) Dismissed

Justice Colin McKinnon of the Ontario Superior Court refused a s. 486(4.1) application for a publication ban on the identity of a Crown witness. The application arose in the context of a criminal trial in which an informant witness came from Jamaica to Canada to give testimony against the co-accused. The day before his testimony the informant witness advised the Crown that his house had been burned down in Jamaica. He connected this incident to his participation in the criminal trial and expressed fears for his safety. As such, the Crown sought an order banning the publication of the identity of the witness or any information that might tend to identify the witness under s. 486(4.1) of the Criminal Code of Canada.

The Crown's application for a publication ban was dismissed on the ground the evidentiary base of the application was "weak and speculative". Justice McKinnon applied the recent Supreme Court decisions in Mentuck and O.N.E. holding the Supreme Court rulings in these cases provide a publication ban should only issue where a "serious risk" . . . "the reality of which is well grounded in the evidence" can be demonstrated (See Volume I, p. 10).

Of interest is Volume II of the ruling wherein Justice McKinnon held that a trial judge is clothed with "the requirement to take a second step following a refusal to make an order under section 486". The "second step" entails the determination of whether the publication of the evidence taken on the application "may cause a real and substantial harm to the individual who is the subject of the application, or otherwise pose a serious risk to the administration of justice notwithstanding the initial failure of the main application" (pp. 2-3, Vol II). While Justice McKinnon noted "determinations such as this will be made on a case by case basis and there will be, no doubt, instances where the evidence heard on an application ban should be published" (p. 9, Vol II) he imposed a ban on the submissions made and evidence tendered in the Crown's application.

Justice McKinnon made it clear a trial judge must exercise discretion in fulfilling this requirement. Counsel arguing s.486(4.1) applications should be prepared to address this "second step" in the argument.

Incidently, several days following the application it came to light that the informant witness had lied about his house burning down and the publication ban on the submissions, argument, information, etc. made in the application was lifted (see Volume III).

See: Ruling on Motion to Ban Publication (re Identity)
See also: Ruling on Lifting the Ban of Publication

(summary by Scott Little)

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