Law Times

Law Times • December 9, 2013 Page 11 FOCUS Same arguments open to defence counsel: media lawyer Continued from page 10 'I think it's part of a broader trend towards the public interest,' says Edward Prutschi. sealing order in relation to the redactions in question with some exceptions. Later in the month, he also ruled in favour of releasing most of the rest of the information contained in the 500-page police document. The November rulings followed an earlier decision in The Globe and Mail v. HMQ that considered an Ontario Court of Justice decision in which the judge declined to provide media access to an information to obtain stemming from the Project Traveller investigation. That case considered whether s. 193 of the Criminal Code provides a complete prohibition on disclosing non-consensual police intercepts. Once again, he ruled in the media's favour. "In my view, s. 193 does not, and was not intended to, operate as a provision dealing with access to documents filed in court that happen to refer to non-consensual intercepted private communications," he wrote on Nov. 5. "The Criminal Code contains many express provisions dealing with access to, and non-publication of, evidence received by a court. Section 187 is itself such a provision as is s. 487.3." Nordheimer noted his findings on that issue didn't necessarily mean the media would ultimately get access to the materials but would provide for a consideration of disclosure by balancing the competing interests under s. 487.3 instead. "It may well be that after that balancing is undertaken the contents of the ITO will remain undisclosed," wrote Nordheimer in setting aside the Ontario Court of Justice order. "Nevertheless, that route to such a result would seem to be more compatible with the openness principle and the long line of authorities from the Supreme Court of Canada that have established that principle." For his part, Prutschi expects the decisions "will embolden the media going forward" in seeking access to warrant materials. While he doesn't think the trend will lead to a flurry of such disclosures given that most search warrants aren't of such intense public interest, he suggests it will affect the work of defence lawyers depending on the nature of the case. If their client is a public figure or the case involves people connected to someone of public interest, lawyers can expect the disclosure issue to arise, he says. But Ryder Gilliland, a partner at Blake Cassels & Graydon LLP who represented Toronto Star Newspapers Ltd. before Nordheimer, says he's not sure much has changed as a result of the rulings. When it came to Lisi's concerns, for example, Nordheimer "found that they didn't rise to the level of affecting a fair trial," says Gilliland, noting defence lawyers can still argue for publication bans. "In some cases, you have publication bans; in some cases, you don't," he says. "The same arguments are open to defence counsel that have always been open to them," he adds. But what distinguishes Nordheimer's most recent ruling on releasing the wiretap details in the Toronto police investigation was his consideration of the second branch of the test for a publication ban, according to Gilliland. While the judge found neither Lisi nor the Crown had met their onus under the first part of the test (establishing a serious risk to the administration of justice that would warrant a publication ban), he then went on to discuss the second component looking at the salutary effects of a ban versus the negative impacts on the interests of the parties and the public, including the right to free expression. "We are dealing with the actions of the duly elected mayor of the country's largest city and Happy Holidays This is the last print issue of Law Times for this year, as your favourite weekly legal newspaper will be on annual hiatus. the extensive investigation undertaken by the police into those actions," wrote Nordheimer on Nov. 27. "In terms of legal proceedings, it is hard to conceive of a matter that would be of more importance to public interest, at this particular point in time, than the one that is presented in this case in the context in which it had unfolded." "That is unusual," says Gilliland in acknowledging that it's rare for judges to consider the second part of the test. As a result, he suggests the latest ruling may be an exception due to "the extreme public interest" in the Ford matter. "It's a very significant ruling," he adds. LT Girones_LT_Dec9_13.indd 1 13-12-02 7:22 PM A complete guide to Quebec's lobbying legislAtion New PublicatioN lobbying in canada – quebec edition / le lobbyisme au canada – Édition quÉbÉcoise Pierre Meunier, André TurMel, Guy Giorno, And PeTer HyndMAn Comply with all the stringent requirements in lobbying all levels of government with lobbying in canada – quebec edition / le lobbyisme au canada – Édition québécoise. 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