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Digest of the Week — the Rob Ford ITO


Canadian Broadcasting Corp. v. Canada | 
2013 CarswellOnt 16586 |  
Ontario Superior Court of Justice


Criminal law | Victims’ rights and third party remedies | Publication bans


Court was to determine ongoing applications by various media organizations to obtain access to ITO that had earlier been sworn by officer in support of application for search warrant and that was ordered sealed — ITO in question was almost 500 pages long and included extensive reference to lengthy investigation undertaken by police — Also included within ITO were references to non-consensual intercepted private communications that police obtained pursuant to judicial authorizations in relation to earlier and somewhat related investigation — Since applications were originally brought, accused had been charged with extortion involving his alleged involvement in attempting to obtain video that featured Mayor of City of Toronto — All parties now agreed that applicants should have access to entire ITO, save for those edits relating to confidential informants and police investigative techniques, neither of which were challenged by applicants — Concern was that there were intercepted private communications referenced in ITO that discussed another situation where accused was engaged in attempting to recover item wherein it could be suggested that accused’s conduct in relation to that item was similar to conduct that formed basis of extortion charge — No non-publication order made; applicants entitled to have access to and publish contents of ITO edited solely for categories of confidential informant privilege and agreed upon aspects of investigative techniques — Non-consensual intercepted communications were not presumptively subject to non-publication order: secrecy is exception and openness is rule — Court found generalized statements of concern offered up by Provincial Crown to be insufficient to warrant imposition of publication ban regarding references in ITO to non-consensual intercepted private communications — Court found that trial on extortion was not likely to be before it for two or three years resulting in diminishment of any prejudice to accused’s fair trial rights — There had already been fair amount of publicity in this matter that did not reflect well on accused as his counsel fairly acknowledged — It was not therefore clear that this additional material would significantly affect any impressions that may have already formed in minds of public — If current publicity was sustained, it was open to accused to bring application, some time prior to trial, for publication ban at that time — Accused was not focus of ongoing publicity: that focus was on mayor.
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