COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Vice Media Canada Inc., 2017 ONCA 231

DATE: 20170322

DOCKET: C62054

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Vice Media Canada Inc. and Ben Makuch

Applicants (Appellants)

and

The Attorney General of
    Ontario, the British Columbia Civil Liberties Association, the Canadian Civil
    Liberties Association, Canadian Journalists for Free Expression, Canadian
    Broadcasting Corporation, Ad Idem/Canadian Media Lawyers Association, Canadian
    Association of Journalists, Canadian Media Guild/Communication Workers of
    America (Canada), Reporters Without Borders/Reporters Sans Frontières,
    Aboriginal Peoples Television Network, Centre for Free Expression

Interveners

Iain A.C. MacKinnon, for the appellants

Brian G. Puddington and Sarah Shaikh, for the respondent

Susan Magotiaux, for the intervener, the Attorney
    General of Ontario

Andrew W. MacDonald, for the intervener, the British
    Columbia Civil Liberties Association

Brian N. Radnoff and Christopher T. Shorey, for the
    intervener, the Canadian Civil Liberties Association

Justin Safayeni, for the intervener, Coalition of media
    and journalist organizations

Heard:  February 6, 2017

On appeal from the order of Justice Ian A. MacDonnell of
    the Superior Court of Justice, dated March 29, 2016, with reasons reported at
    2016 ONSC 1961.

Doherty J.A.:

I

overview

[1]

A free and vigorous press is essential to the proper functioning of a
    democracy.  The protection of society from serious criminal activity is equally
    important to the maintenance of a functioning democracy.  Those fundamental
    societal concerns can come into conflict.  When they do, it falls to the court
    to resolve those conflicts.  In this case, claims based on the freedom of the
    press and those based on effective law enforcement collide at two points.

[2]

The first collision occurred when the police obtained an
ex parte
production order requiring the appellants, Vice Media Canada Inc. (Vice) and
    an employee, Mr. Ben Makuch (Mr. Makuch), to produce to the police material created
    or used in the course of searching out and reporting on the news.  The
    appellants argue that the production order undermines their role as the eyes
    and ears of the community by effectively conscripting them into the ranks of
    law enforcement.  The police respond that they need the information referred to
    in the production order to effectively investigate serious crimes.

[3]

The second collision occurred when the appellants attempted to gain
    access to the information on which the police relied to obtain the production
    order.  Once again, the appellants argue that, to properly perform their
    function within our democracy, the press must have access to information on
    which the police rely to obtain coercive court orders.  Once again, the police
    respond that for the press to access that information would compromise the
    proper and effective investigation of serious crimes.

[4]

The application judge rejected the appellants application to quash the
    production order.  He largely accepted the appellants submission that the order
    sealing the material on which the police relied to obtain the production order
    should be set aside, directing that most of the material should be unsealed and
    available to the press for examination.  However, the application judge also
    made some of the unredacted information subject to a temporary non-publication order,
    thereby preventing the press from disseminating that information to the public.

[5]

The appellants appeal all three aspects of the application judges
    order.  They are supported in some of their submissions by three interveners.
[1]
The respondent supports all aspects of the order made by the application
    judge.  The Attorney General for Ontario intervenes to make submissions on the
    law governing production orders.

[6]

For the reasons that follow, I would: dismiss the appeal from the refusal
    to quash the production order; allow the appeal as it relates to the sealing
    order, in part; and, subject to the parties agreeing on modifications to the
    non-publication order, dismiss the appeal from that order.

II

factual background

[7]

Between June and October 2014, Mr. Makuch wrote and Vice published three
    articles about the involvement of Farah Shirdon (Shirdon) with the terrorist
    group, the Islamic State of Iraq and Syria (ISIS), in the Middle East.  The
    articles were based in large measure on communications between Mr. Makuch and
    Shirdon through Kik Messenger, a text messaging service.

[8]

Shirdon, who had lived in Calgary and was believed to have left Canada
    in March 2014 to join ISIS, was under investigation for several
    terrorism-related offences.  He was subsequently charged with six offences, but
    remains at large.

[9]

In the articles written by Mr. Makuch, Shirdon purported to confirm that
    he was a combatant with ISIS.  He made specific threats against Canada.

[10]

On February 13, 2015, the police sought a production order under s.
    487.014 of the
Criminal Code
, R.S.C., 1985, c. C-46, directing Vice
    Media and Mr. Makuch to produce documents and data relating to their
    communications with Shirdon.
[2]
An order issued directing production among other things of:

Paper printouts, screen captures or any other computer records
    of all communications between Makuch or any employee of Vice Media Canada Inc.,
    Vice Studio Canada Inc., and Shirdon, aka Abu Usamah over Kik [M]essenger.

[11]

The issuing judge also directed that all information relating to the
    application for the production order, including the affidavit sworn in support
    of the application, should be held under seal pending further court order.

[12]

After receiving the production order, Vice examined its records and
    advised the police that the only materials in its possession covered by the
    production order were some instant messenger chats between Mr. Makuch and
    Shirdon, and screen captures of the Kik Messenger chats.  As I understand it, the
    screen captures are digital photograph files of certain conversations between Mr.
    Makuch and Shirdon.  Vice and Mr. Makuch did not produce the material covered
    by the production order, but instead brought an application to quash or set
    aside that order and an application to unseal the record relied on to obtain
    the order.

III

the appeal

A:  Jurisdiction

[13]

Before the application judge, the appellants sought prerogative writ
    relief in the nature of
certiorari
, quashing the production order and
    directing the unsealing of the material that was before the issuing judge.  The
    appellants also sought orders under the
Criminal Code

setting aside the sealing order (s.
    487.3(4)) and revoking or varying the production order (s. 487.0193(4)).

[14]

An order granting or refusing prerogative writ relief by way of
mandamus
,
certiorari
or prohibition is appealable to this court under s.
    784(1).  The
Criminal Code
does not provide for appeals from orders
    under s. 487.3(4) or s. 487.0193(4).

[15]

None of the parties raised this courts jurisdiction.  At the outset of
    oral argument, the court inquired as to its jurisdiction to entertain appeals
    from the orders made pursuant to the
Criminal Code
provisions.

[16]

Mr. MacKinnon, counsel for the appellants, referred the court to
R.
    v. Ciarniello
(2006), 81 O.R. (3d) 561 (C.A.), leave to appeal refused,
    [2006] S.C.C.A. No. 424.  In that case, the court observed that s. 784(1)
    provides for an appeal from a decision granting or refusing the relief sought
    in proceedings by way of
mandamus
,
certiorari
or
    prohibition.  In holding that the right of appeal extended to the refusal of inextricably
    linked relief sought in the proceeding (at para. 25), even relief broader than
    that available by way of prerogative writ, Sharpe J.A. observed, at para. 24:

We must respect the principle relied upon by the Crown that
    this court has no jurisdiction to entertain an appeal that is not authorized by
    statute.  However, that principle does not require us to interpret the appeal
    rights that Parliament has given in an unduly restrictive or technical manner.
    It is in the interests of the fair and efficient administration of justice that
    all appeals relating to the same issue and arising out of the same proceeding
    be brought before the same court at the same time.

[17]

I would apply
Ciarniello
here.  The language of s. 784(1) is
    broad enough to encompass appeals from all of the orders made by the
    application judge.

B:  The Standard of Review

[18]

The appellants and interveners make submissions, with respect to the
    standards of review applicable both on the application and in this court.

[19]

The application judge was asked to quash or revoke the production order,
    either in the exercise of his supervisory prerogative writ powers, or under his
    statutory powers granted by s. 487.0193.  Under the statute, the application
    judge could revoke the production order only if the order was unreasonable in
    the circumstances (s. 487.0193(4)(a)), or if it sought the production of a
    document that was privileged or otherwise protected from disclosure by law (s.
    487.0193(4)(b)).  The application judge had no authority under the statute to
    make his own assessment of the merits of the initial request.  Apart from the
    power to set aside orders that called for production of privileged or other
    protected documents, the review allowed by the statute contemplates a deferential
    reasonableness standard of review.

[20]

The scope of review contemplated by prerogative writ review of search
    warrants and similar investigative tools is well-settled.  The reviewing court
    will quash the order only if, having regard to the record before the issuing
    judge, as augmented by evidence before the reviewing judge, no judge acting
    reasonably could have concluded that the order should be made:
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452;
R. v. Morelli
, 2010
    SCC 8, [2010] 1 S.C.R. 253, at para. 40;
R. v. Sadikov
, 2014 ONCA 72, 305
    C.C.C. (3d) 421, at paras. 83-84; and
R. v. Nero,
2016 ONCA 160, 334
    C.C.C. (3d) 148, at para. 71.  The
Garofoli
 standard of review has
    been applied on motions brought by the media to quash a search warrant:  see
R.
    v. National Post
, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 80.

[21]

The appellants and the interveners argue for a more interventionist
    standard of review by the application judge in cases in which the media is the
    target of the warrant or the production order.  In support of this contention,
    they point to the added complexities in assessing whether the order directed at
    the media should issue, the important constitutional rights at stake, and the
ex
    parte
nature of the initial application.

[22]

None of these arguments is persuasive.  While no doubt additional
    considerations come into play with a media target, I do not see how they make a
    reasonableness assessment more difficult, or less appropriate.  I agree, if the
    media is the subject of an order, important constitutional rights are at stake
    and negative effects may flow from improvidently granting the order.  The
    rights at stake when the warrant targets the media cannot, however, be
    characterized as more worthy of judicial protection than the s. 8 rights routinely
    engaged on motions to quash search warrants executed at homes and other
    locations where privacy interests are extremely high.

[23]

Finally, the
ex parte
nature of the initial proceeding is
    common to all applications for warrants and production orders.  The negative
    impact of the
ex parte
proceeding is countered by the medias right to
    move to revoke the warrant or production order before they turn the material
    over to the police:  s. 487.0193(1).  The media is entitled to place additional
    material before the reviewing judge to be considered in determining whether the
    warrant or production order should have issued.  Practically speaking, the more
    significant the material placed before the reviewing judge, the more the review
    will take on the appearance of a
de novo
assessment of the merits.
    Under the established procedures, the media has a full opportunity to put
    forward its case against the production order before the police access the
    material.

[24]

There are at least three good reasons for applying the
Garofoli
standard to all motions to quash warrants and similar documents.  First, the
    warrant or production order is a presumptively valid court order.  A review of
    that order, proceeding as a
de novo
examination of the orders merits,
    would be inconsistent with the existence of a valid order.  Second, the
Garofoli
standard of review is consistent with the standard of review selected by
    Parliament in providing a statutory road to review production orders under s.
    487.0193(4).  If the
Garofoli
standard were rejected in favour of a more
    interventionist standard, as proposed, the statutory reasonableness standard
    would become irrelevant except in those rare cases where the initial order was
    made by a Superior Court, thereby rendering prerogative writ relief
    unavailable.

[25]

Third, and most important, the nature of the decision made by the
    issuing justice invites a deferential standard of review.  The issuing justice
    must weigh the evidence offered in the supporting material, consider what
    inferences should be drawn from that material and, if satisfied that the
    preconditions to the warrant or production order exist, decide whether, in all
    of the circumstances, he or she should exercise a discretion in favour of
    granting the warrant or production order.

[26]

Appellate courts have long recognized that decisions which rest on the
    weighing of evidence and the exercise of discretion are not readily amenable to
    a correctness standard of review.  Realistically speaking, there is often no
    right or wrong answer to such questions.  Appellate review under the guise
    of the correctness standard simply becomes a redoing of the function performed
    at first instance.  That redo adds time and expense, but little else to the
    process.

[27]

The standard of review applicable in this court needs little comment.
    To the extent that the appellant challenges the standard of review used by the
    application judge or argues that the application judge misapplied or failed to
    apply applicable legal principles, this court reviews on a correctness
    standard:  see
Canadian Broadcasting Corp. v. Manitoba (Attorney General)
,
    2009 MBCA 122, 250 C.C.C. (3d) 61, at paras. 21-23.  However, when the
    appellant quarrels with factual determinations made by the application judge,
    or the application of the correct legal test to the circumstances before the
    application judge, the appellant must demonstrate clear and palpable error, or
    an unreasonable assessment.

C: Should the Production Order
    Have Been Set Aside?

[28]

A production order under s. 487.014 of the
Criminal Code
is a
    means by which the police can obtain documents, including electronic documents,
    from individuals who are not under investigation.  The section empowers the
    justice or judge to make a production order if satisfied, by the information
    placed before her, that there are reasonable grounds to believe that: (i) an
    offence has been or will be committed; (ii) the document or data is in the
    persons possession or control; and (iii) it will afford evidence of the
    commission of the named offence.  If those three conditions exist, the justice
    or judge can exercise her discretion in favour of granting the production
    order.  She may, however, decline to make the order even if those conditions exist.
    In deciding whether to exercise her discretion in favour of making the
    production order, she will have regard to the impact of that order on the
    constitutionally protected rights of the target of the order and the public.  The
    more significant the negative impact, the more cogent must be the grounds for
    seeking the order:  see
Canadian Broadcasting Corp. v. Lessard
, [1991]
    3 S.C.R. 421, at p. 444.

[29]

In light of
Lessard
and its companion case,
Canadian
    Broadcasting Corp. v. New Brunswick (Attorney General)
, [1991] 3 S.C.R.
    459 (
CBC v. New Brunswick
), when a proposed production order targets
    the media, the court must exercise its discretion with care, to avoid
    compromising  if the police were to compel the medias information too easily
     the unique and important role the media plays in society.  In
CBC v. New
    Brunswick
, Cory J., for the majority, said, at pp. 475-76:

The constitutional protection of freedom of expression afforded
    by s. 2(b) of the
Charter
does not, however, import any new or
    additional requirements for the issuance of search warrants.  What it does is
    provide a backdrop against which the reasonableness of the search may be
    evaluated.  It requires that careful consideration be given not only to whether
    a warrant should issue but also to the conditions which might properly be
    imposed upon any search of media premises.

[30]

Cory J. proceeded to list several factors to be considered in assessing
    the reasonableness of a search targeting information in the possession of the
    media.  His approach and those factors were referred to with approval in
R.
    v. National Post
, at paras. 31-33, 79.

[31]

Much of the argument on the appeal focused on the factors outlined in
Lessard
,
CBC v. New Brunswick
, and
R. v. National Post
.  The appellants
    argue that the application judge failed to properly consider and weigh the
    respective factors. Those interveners supporting the appellants argue that the factors
    should be restructured, to more properly reflect the importance of freedom of
    the press in contemporary society, by more strictly limiting the states ability
    to compel production of information from the media.

[32]

I am not convinced that there is any need to restructure the factors
    identified in the controlling case law. When the state exercises its powers to
    search and seize, reasonableness is the constitutional litmus test.  The place
    to be searched and the nature of the material to be seized are important
    considerations in that reasonableness assessment.  The
Lessard
factors
    recognize the significance of those considerations.  They also recognize that
    the ultimate assessment is of necessity a fact-specific one.  Any attempt to
    exhaustively enumerate all relevant factors, or to define them narrowly, is
    doomed to fail.  In my view, the present approach provides adequate room for a
    proper balancing of the important competing interests which must be considered
    in a case in which the state seeks to compel production of material from the
    media.

[33]

The application judge correctly identified his function in reviewing the
    production order (at paras. 11-13).  He expressly recognized that special
    considerations arose when a media outlet was the target of the production order
    (at para. 13).  He considered at length, at paras. 27-54, the factors
    identified in
Lessard
and
CBC v. New Brunswick
.  He
    identified and addressed the following considerations:

·

the
    material sought (screen captures of the conversations between Mr. Makuch and
    Shirdon) provided the best and most reliable evidence of what Shirdon said.  These
    statements could provide direct evidence against Shirdon on the outstanding
    charges;

·

the
    same quality of evidence was not available from any other source, including Mr.
    Makuchs testimony or the records kept by the service provider (Kik Messenger);

·

Shirdon
    was not a confidential source of Mr. Makuchs.  In speaking with Mr. Makuch, Shirdon
    was anxious to broadcast his views to the world.  He wanted those views
    disseminated;

·

the
    substance of much of the information sought had already been placed in the
    public domain by Mr. Makuchs articles; and

·

the
    material could provide important and highly reliable evidence to support very
    serious criminal charges.

[34]

After a careful consideration of the entirety of the record before him,
    the application judge concluded, at para. 47:

I am satisfied that the ITO set forth a basis upon which, after
    taking into account the special position of the media, the authorizing justice
could
have determined that the balance between the interests of law enforcement and
    the medias right to freedom of expression favoured making the production
    order. [Emphasis in original.]

[35]

The reasons of the application judge reveal no misapprehension of the
    evidence, no failure to consider factors relevant to his assessment, or any
    other form of extractable legal error.  It was reasonable, on this record, to find
    the balancing of the competing interests favoured making the production order.

[36]

I will specifically refer to two arguments made by the appellants.
    First, they submitted that any production order targeting the media necessarily
    has a chilling effect on the medias ability to perform its role.  The
    appellants argue that potential sources who know that the government can and
    will seize records of their communications with journalists will necessarily be
    more reluctant to provide information to journalists.  Inevitably, that
    reluctance will result in less information of public importance being available
    through the media.  The appellants maintain that this chilling effect exists
    even if a specific production order seeks information that is largely in the
    public domain and was not provided to the media under any promise, implied or
    otherwise, of confidentiality.  They argue that the application judge ignored
    the inevitable chilling effect of the production order on the medias ability
    to inform the public on matters of public importance.

[37]

The application judge did not specifically use the phrase chilling
    effect.  He did, however, refer to the specific factors which, in the
    circumstances of this case, impacted significantly on any chilling effect.
    He referred to the absence of any requests for confidentiality from the
    sources, noting that the source was anxious to tell the world about his beliefs
    and conduct.  The application judge also referred to Mr. Makuch having
    published much of the material sought in three articles predating the request
    for the production order.

[38]

The application judge was clearly alive to the concerns about the
    negative impact of requiring the media to produce material for the police.  I
    have no doubt the application judge appreciated, as part of that concern, the
    potential chilling effect.  He implicitly addressed that concern as it
    existed on the facts of this case by identifying factors that tended to significantly
    reduce the potential chilling effect.

[39]

The appellants second argument relates to the potential probative value
    of the material sought by the production order.  As I understand this argument,
    the appellants argue that the reviewing judge must consider whether the
    prosecution actually needs the evidence sought to support the prosecution or,
    alternatively, whether the Crown has enough evidence to make its case without
    that material.  This necessity requirement is distinct from considerations of
    whether the information is available from sources other than the media.  The alternative
    source factor is well-recognized in
Lessard
and its companion case:
Lessard
,
    at p. 445; and
CBC v. New Brunswick
, at p. 481.

[40]

I would reject the argument that the Crown must show that the material
    sought is essential to the prosecution.  As the Attorney General of Ontario points
    out, when production orders or search warrants are issued, often there is no
    prosecution underway and the investigation is very much in its formative
    stage.  No one could accurately assess what the Crown does or does not need to
    prove its case at trial.

[41]

More significantly, in my mind, this submission improperly blurs the
    line between judge and prosecutor by assigning judges the job of deciding
    whether the prosecution has sufficient evidence to prove its case without
    access to the information in the hands of the media.  To suggest that a judge
    can foreclose police access to relevant evidence otherwise producible in law,
    because the judge thinks the prosecution does not need the evidence to prove its
    case, is to seriously confuse the role of those who investigate and prosecute
    crime with the role of those who adjudicate the cases brought by the prosecution
    against individuals.

IV

the sealing and non-publication orders

A:  The Sealing Order

[42]

The judge who granted the production order made a sealing order under s.
    487.3(1) in respect of all material related to the application for the
    production order, including the affidavit filed by the police officer in
    support of the application.  Before the application judge, the Crown conceded
    that parts of the affidavit could be made public, but argued that other parts
    of the affidavit should be redacted before the affidavit was made available to
    the public.  The Crown justified some of the redactions on grounds of national
    security.  The appellants did not challenge the redactions made on that
    ground.

[43]

The Crown attempted to justify other redactions under the terms of ss. 487.3(2)(a)(ii)
    and (iv).  Section 487.3(2)(a)(ii) allows for a sealing order if disclosure of
    the information would subvert the ends of justice by compromising the nature
    and extent of an ongoing investigation.  Section 487.3(2)(a)(iv) provides for a
    sealing order if disclosure of information would subvert the ends of justice by
    prejudicing the interests of an innocent person.

[44]

The application judge correctly identified the applicable legal
    principles.  To obtain a sealing order, a party must satisfy the two-part
Dagenais-Mentuck
test.  First, the party must show that the sealing order is necessary to
    prevent a serious risk to the proper administration of justice because
    alternative, less intrusive, measures cannot prevent that risk.  Second, the
    party must demonstrate that the benefits of the sealing order outweigh its
    negative impact on the rights and interests of the parties and the public, including
    the effects on the right to free expression, the right of the accused to a fair
    and public trial, and the efficacy of the administration of justice:  see
Toronto
    Star Newspapers Ltd. v. Ontario
, 2005 SCC 41, [2005] 2 S.C.R. 188, at
    para. 26.

[45]

In addition to national security redactions, the application judge
    concluded that the Crown could justify only two relatively minor redactions.
    One, a partial redaction of para. 34 of the affidavit, was warranted to
    preserve the anonymity of an individual who had provided information to the
    affiant.  The other, a redaction of paras. 63(b) and 63(c), was justified on
    the ground that disclosing future investigative steps would compromise the police
    investigation.

[46]

In my view, the application judges reasons, at para. 74, for redacting
    the identity of the person referred to in para. 34 of the affidavit provide a
    reasonable basis upon which the application judge could determine that, on an
    application of the legal principles he identified, the redaction was appropriate.
    There is no basis upon which this court can interfere with that assessment.

[47]

I reach a different conclusion in relation to paras. 63(b) and (c), under
    the heading Investigative Plan.  They set out the steps which the affiant
    indicates the police may take to follow up on any information generated by the
    production order sought.

[48]

The steps described in paras. 63(b) and (c) are obvious.  They come down
    to the assertion that the police will follow up on any leads generated by the
    information they obtain through the production order.  For example, the affiant
    indicates that the police will interview individuals who are identified in that
    material.

[49]

I would think that anyone aware of the execution of the production
    order, a public fact, would assume that the police would follow up on any
    pertinent information revealed to them using normal investigative tools such as
    interviews with identified persons.  It cannot be said that public exposure of a
    self-evident planned course of investigation presents a serious risk to the
    proper administration of justice necessitating the redaction of that
    information from the affidavit.

[50]

There was no basis in the evidence before the application judge for the redaction
    of paras. 63(b) and (c).  The contents of those paragraphs should be available
    for public perusal.

B: The Non-Publication Order

[51]

After holding that only very limited redactions from the affidavit
    should be made, the application judge turned to whether he should make a
    non-publication order in respect of any of the unredacted portions of the
    material.  The application judge recognized that any non-publication order must
    be justified under the two-part
Dagenais-Mentuck
test, summarized
    above at para. 44, referred to in
Toronto Star Newspapers Ltd. v. Ontario
.
    He accepted that a non-publication order could, in some circumstances, provide a
    less intrusive alternative to a sealing order, while still preventing the
    potential risk to the proper administration of justice posed by dissemination
    of the material in issue.  In short, the application judge understood that a
    non-publication order was a viable alternative, in some circumstances, to a
    full sealing order or an order closing a courtroom to the public (at paras.
    99-120):  see
Ottawa Citizen Group Inc. v. R.
(2005), 75 O.R. (3d) 590
    (C.A.), addendum (2005), 75 O.R. (3d) 607 (C.A.); and
R. v. Flahiff
(1998), 123 C.C.C. (3d) 79 (Que. C.A.).

[52]

I agree with the application judges analysis and, in particular, his
    rejection of
Canadian Broadcasting Corp.

v. Canada
, 2013 ONSC
    7309, at paras. 58-65.  To the extent that
Canadian Broadcasting Corp. v.
    Canada
holds that a properly tailored non-publication order cannot provide
    a reasonable alternative measure to a sealing order, the case is wrongly
    decided.  An order that limits publication of certain information for a fixed
    time period, while permitting full access to the material or the relevant
    proceeding, has a less deleterious effect on the open court principle, and associated
    individual rights, than does an order that effectively locks the courtroom door
    to the media and the public.  The application judge explained the significant
    difference, at para. 126:

Second, what is contemplated is not an absolute ban on the
    publication of the search warrant materials.  The media can still publish the
    identity of the target of the investigation, the nature of the materials sought
    by the production order, the date on which the application was made and the
    order was issued, the nature of the materials sought, and some portions of the
    ITO.

I would add that the media are also free to comment on
    and, if deemed appropriate, criticize the nature and scope of any
    non-publication order made.

[53]

In accepting that a non-publication order can provide an effective and
    constitutional alternative to a sealing order or an order excluding the public
    from a courtroom, I do not mean to suggest that a non-publication order should
    merely be available for the asking.  A non-publication order involves a
    significant intrusion upon the open court principle and must be justified by
    the party seeking it.  The application judge indicated, at para. 120:

That is not to say that it [a non-publication order] will be a
    reasonable alternative in every case  whether it will be so will be a
    case-specific determination that will require consideration of the second
    branch of the
Dagenais
/
Mentuck
test.

[54]

Applying the
Dagenais/Mentuck
test, the application judge
    concluded that the fair trial rights of Shirdon outweighed the negative impact
    on the open court principle and the medias right to access court proceedings occasioned
    by a temporary publication ban on some of the contents of the affidavit.  The
    application judge listed, by way of a schedule to his reasons, the various
    parts of the affidavit which were subject to the non-publication ban.  He
    directed that the ban would remain in place until the proceedings against
    Shirdon were terminated.  He further ordered that if Shirdon had not been arrested
    within two years, the continued need for the ban should be reassessed.

[55]

I accept the application judges description of Shirdons fair trial
    rights and the negative impact that publishing some of the information in the
    affidavit, before trial, could have on those rights (at paras. 75-98).
    However, the application judge did not specifically indicate how publication of
    each part of the affidavit subject to the non-publication order would negatively
    impact on Shirdons fair trial rights.

[56]

Some parts of the affidavit that are subject to the non-publication ban
    refer to potential evidence, or what the affiant alleges is evidence, against
    Shirdon on the charges outstanding against him.  Other parts of the affidavit
    contain the affiants opinion as to what inferences or conclusions could be
    drawn from certain evidence.  The potential negative impact of these parts of
    the affidavit on Shirdons fair trial rights is clear without further
    articulation.  There are, however, parts of the affidavit subject to the
    non-publication order that do not fit into these categories.

[57]

On my review of the affidavit, several of the sections subject to the
    non-publication order appear to refer to background information that is readily
    available to and known to the public, or to information that is revealed in
    parts of the affidavit that are not subject to a non-publication order.  For
    example, see the Investigators Comments after paras. 27(k), 28(c), 30(e),
    32(k), 35, 35(e), 35(i)(iv), 35(i)(vi), 60(k) of the affidavit.
[3]

[58]

Other parts of the affidavit refer to the contents of Mr. Makuchs
    articles, published on June 23, October 1, and October 7, and a Skype interview
    with Shirdon on September 23 (at paras. 44-52 of the affidavit).  It is not
    clear to me why the affiants summary of those articles found in paras. 60(i)
    and (j) is subject to a non-publication order.

[59]

The parties did not make submissions directed at specific parts of the
    affidavit subject to the non-publication order.  The submissions were put on
    the broad basis that there should or should not have been a non-publication
    order made.  I would not vary the application judges order without submissions
    addressing the specific parts of the affidavit which may, on the principles as
    enunciated by the application judge, not be properly the subject of a
    non-publication order.

[60]

I see two possibilities.  It may be that the respondent and the
    appellants can agree on what parts of the affidavit should no longer be subject
    to a non-publication order.  If so, the parties could prepare a proposed order
    for this court reflecting that agreement.  Alternatively, if the parties cannot
    reach a consensus, the appellants could bring an application under s. 487.3(4) in
    the Superior Court to vary the non-publication order made by the application
    judge.

V

conclusion

[61]

I would dismiss the appeal as it relates to the production order made by
    the application judge.  I would vary the sealing/redaction order made by the
    application judge in the manner set out above.  With respect to the non-publication
    order, and subject to the parties agreeing on a variation of that order, I
    would dismiss the appeal, but direct that the appellants, if so advised, may
    seek a variation of the non-publication order in the Superior Court.

Released: AH  MAR 22 2017

Doherty J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree B.W. Miller
    J.A.

[1]

The interveners, the British Columbia Civil Liberties
    Association (BCCLA) and the Coalition of media and journalist organizations
    made submissions relating to the production order.  The intervener, the
    Canadian Civil Liberties Association (CCLA) made submissions relating to the
    sealing order and the non-publication order.

[2]

I will refer to the relevant sections by their present
    numbering.

[3]

These portions of the affidavit are presently subject to the
    non-publication order and are not available to the public.  The parties and the
    interveners, however, do have access to these portions of the affidavit.  The
    same is true of the parts of the affidavit referred to in para. 59 of these
    reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2017 ONCA 229

DATE:  20170321

DOCKET: M46177

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

Michael H. Wilson,
Taylor Wilson
, Rosemary
    Wilson, Marrida Yusuf and
Christopher Gould

Respondents

Adrienne Rice, for the applicant

Taylor Wilson and Christopher Gould, acting in person

Heard: November 23, 2016

Epstein J.A.:

[1]

In separate proceedings, this court released
    Michael Wilson on recognizances with sureties, pending a hearing in this court
    concerning efforts to extradite Michael back to the United States to face
    criminal charges. His two cousins, Taylor Wilson and Christopher Gould, his
    mother, Rosemary Wilson and his then girlfriend, Marrida Yusuf agreed to be
    sureties for a total recognizance of $937,000, of which Taylor was responsible
    for $500,000 and Christopher for $10,000.

[2]

Michael did not surrender in accordance with the
    terms of his recognizance. In fact, he escaped to Vietnam just before the date
    set for his hearing. The Minister of Justice now seeks orders that the
    recognizances entered into by Taylor and Christopher be forfeited in full,
    pursuant to s. 771 of the
Criminal Code
, R.S.C. 1985, c. C-46.  Taylor
    and Christopher argue that they should not be required to forfeit any portion
    of their recognizances, or at least not the full amount. While this matter was
    under reserve Michael was returned from Vietnam to the United States to face
    the charges there. I will deal with this development later in these reasons.

[3]

I have decided to grant the application in part.  I order that Taylor
    forfeit the amount of $200,000 and Christopher the amount of $3,000.

BACKGROUND

[4]

Michael was charged in the United States with
    multiple counts of fraud and money laundering, following an investigation by
    the FBI into an investment scheme that he ran from 2008 to 2009. Michael gained
    access to substantial amounts of money, by promising people that he would
    invest their money at unrealistic rates of return. Michael is alleged to have
    fraudulently diverted to his own use funds totaling approximately $8,000,000, that
    he spent on houses, cars, artwork and vacations, rather than on investments.

[5]

On July 19, 2010 Michael fled to Canada, shortly
    after the United States Attorneys Office sent him a letter notifying him that
    criminal charges were being laid against him.

[6]

On July 23, 2013 Michael was arrested in Toronto on an
    extradition warrant.

Bail Pending the Extradition Hearing

[7]

Michael applied for bail pending his extradition
    hearing. The four sureties identified above came forward in support of his
    application: Taylor, Christopher, Rosemary and Marrida.

[8]

On August 13, 2013 Garton J. granted Michael
    judicial interim release. Michaels release was ordered on strict terms. He was
    to reside with Taylor at his residence on Wellington Street in Toronto, and to notify
    the court in writing within 24 hours of any change of Taylors address and
    inform the officer in charge a month in advance of any chance in Taylors
    address.  In addition, he was to remain in Taylors unit at all times between
    10 p.m. and 9 a.m., and could only leave between 9 a.m. and 10 p.m. if in the
    company of one or more of his sureties. It was also a condition of his bail
    that Michael deposit his passport and any other travel documentation with the
    police, and not apply for another one.

[9]

On September 3, 2013 Michael entered into a
    recognizance in the amount of $937,000, consisting of a cash deposit of
    $300,000 and pledges by his sureties in the amount of $500,000 by Taylor,
    $125,000 by Rosemary, $10,000 by Christopher, and $2,000 by Marrida.
[1]

[10]

In her reasons, Garton J. reviewed the adequacy
    of the proposed plan of release. She acknowledged the Crowns argument that
    Rosemary was not an appropriate surety because her status in Canada was
    uncertain and her visitors visa was set to expire in March 2014. Garton J.
    concluded:

If Rosemary Wilson were being proposed as the
    sole surety in this matter, I would perhaps give more weight to the concerns
    raised by the respondent with respect to her suitability as a surety. However,
    pursuant to the plan of release, she is only one of four proposed sureties. It
    is proposed that Taylor Wilson be the surety with the heaviest financial
    obligation  $500,000  which represents a large percentage of the equity in
    the homes that he owns. He has no other assets. In my view, it is appropriate
    in the circumstances that Taylor [ ] also bear the heaviest burden in terms of
    supervising [Michael] and that [Michael] should live with him under house
    arrest and with strict conditions. Such terms will adequately address the
    concerns in this case with respect to both the primary and secondary grounds.

[11]

On January 23, 2014 Michaels recognizance was
    varied to allow him to live with Rosemary in a unit in the same building in
    which Taylor lived. Otherwise, the terms of Michaels release were not varied.

[12]

On October 20, 2014 OMarra J. ordered that Michael
    be committed to custody pursuant to s. 29 of the
Extradition Act
, S.C. 1999, c. 18,
to
    await the Minister of Justices decision on surrender. On March 11, 2015 the
    Minister of Justice ordered Michaels surrender to the United States.

Bail Pending Appeal and Judicial Review

[13]

Michael applied for bail pending his appeal and
    judicial review of the committal order and the surrender order.  On October 23,
    2014 I ordered Michaels release on recognizance on almost the same terms as
    the release order from the Superior Court. However, the residence and curfew conditions
    were changed. The requirement that Michael live with Taylor in his unit on
    Wellington Street was reinstated. Michaels curfew condition was also changed
    to allow him to leave this residence between 10 p.m. and 9 a.m., in the company
    of one or more of his sureties. It was a term of his release that he was to
    surrender into custody by 6 p.m. on the day before the hearing of his appeal
    and judicial review, or on January 20, 2015 whichever came earlier.

[14]

The judicial interim release was varied twice to
    extend the date of surrender. The last extension was granted by Pardu J.A. on
    May 6, 2015. It required Michael to surrender into custody by 4 p.m. on the day
    before the hearing of the appeal and judicial review. The appeal and judicial
    review were scheduled to be heard by this court on February 11, 2016.

Breach of Recognizance and Disappearance

[15]

Michael reported at the police station regularly
    as required from September 3, 2013 to February 2, 2016 the final date on which
    he is recorded as reporting.

[16]

On or about February 5, 2016 Michael flew to
    Vietnam with Marrida, Rosemary and his three dogs, in a private plane he had
    chartered.

[17]

Taylor sent text messages to both Rosemary and
    Michael on February 10, 2016 to coordinate Michaels attendance in court, asking
    Rosemary if he should pick her and Michael up in the morning. Rosemary
    responded by text that Michael was going to spend the night at her home, and
    that they would be going to court together in the morning with Marrida. Later
    that day, Taylor and Michael exchanged texts confirming that they would see
    each other in the morning.

[18]

Michael did not surrender into custody on
    February 10, 2016 as required by the terms of his release order. The following
    day - the day on which the appeal and judicial review were scheduled to be heard
    - Michaels counsel informed Taylor that Michael had failed to surrender
    himself into custody. Taylor advised Christopher of Michaels default.

[19]

When Michael failed to appear on February 11,
    2016 Roberts J.A. dismissed his appeal and application for judicial review, and
    issued a warrant for his arrest. She also ordered that the recognizance in the
    amount of $937,000 be noted in default.

[20]

On June 29, 2016 Detective Constable Inal of the
    Toronto Fugitive Squad was informed that Interpol had arrested Michael in
    Vietnam.

The Applicable Principles

[21]

A forfeiture hearing is governed by s. 771 of
    the
Criminal Code
, which provides that after
    giving the parties an opportunity to be heard, the presiding judge may in his
    discretion grant or refuse the application and make any order with respect to
    the forfeiture of the recognizance that he considers proper. Accordingly,
    whether to grant relief from forfeiture and the quantum of relief is within the
    discretion of the presiding judge.

[22]

The onus is on the sureties to show why, on a
    balance of probabilities, the recognizance should not be forfeited:
Canada
    (Attorney General) v. Horvath
, 2009 ONCA 732,
248 C.C.C. (3d) 1,

at para. 27; Gary Trotter,
The Law of Bail in Canada
, 3d ed. (Toronto: Carswell, 2016), at pp. 13-16. Sureties asserting
    that they should be relieved from forfeiture of any amount of the recognizance
    have the obligation to adduce credible evidence to support their position:
Horvath
, at para. 52.

[23]

In
Horvath
, the
    leading case in Ontario on forfeiture of a recognizance, this court recognized
    the preeminent importance of the pull of bail in the context of forfeiture.
    The court explained at para. 41:

[T]he pull of bail is an important factor
    that serves as a reminder that, in attempting to do what is just and fair
    towards the sureties, the courts must be careful not to undermine the
    effectiveness of the bail system. Our system depends upon accused attending
    court and if accused came to believe that they could fail to attend court
    without their sureties suffering any penalty, the surety system would be
    ineffective... An overemphasis on a suretys lack of fault could undermine the
    pull of bail and have an adverse impact on the criminal justice system, which
    depends upon the accused complying with release conditions.

[24]

However, this court rejected the argument that
    the only way to ensure the effectiveness of the bail system is to adopt a rigid
    rule of total forfeiture absent exceptional circumstances. The court did not
    take this approach as it concluded that a rigid rule of full forfeiture was
    inconsistent with the broad discretion granted in the
Criminal Code
allowing
    the presiding judge to order any forfeiture that is considered appropriate. The
    court recognized that the pull of bail can sometimes be vindicated by something
    less than total forfeiture:
Horvath
, at paras.
    44-45.

[25]

In
Horvath
, at
    para. 51, this court set out a non-exhaustive list of factors to be considered
    in determining whether there should be forfeiture, and in what amount relative
    to the amount in issue. They are:

·

the amount of the recognizance;

·

the circumstances under which the surety entered
    into the recognizance (with an emphasis on whether there was any duress or coercion);

·

the diligence of the surety;

·

the suretys means;

·

any significant change in the suretys financial
    position after the recognizance was entered into and after the breach;

·

the suretys conduct following the breach,
    including efforts to assist authorities in locating the accused; and

·

the relationship between the accused and the
    surety.

[26]

In cases such as this, involving significant
    sums of money, a more searching examination of the circumstances is called for:
    Trotter;
R. v. Jackson
, 2013 ONSC 7761, at
    para. 20. Frequently, such an examination centers on the impact forfeiture
    would have on the suretys financial circumstances.

pRINCIPLES applied

[27]

Without diminishing the importance of a suretys
    obligations to supervise and enforce bail conditions other than attendance in
    court, Taylor, and secondarily, Christopher were primarily responsible for
    ensuring that Michael attended court on the date when the appeal and judicial
    review were set to be heard. In terms of analyzing the degree of the breach of
    recognizance, this case presents the most serious of breaches in that Michael
    did not appear in court and, in fact, left the jurisdiction so as to avoid
    extradition to the United States:
R. v. Hanif
,
    2016 ONSC 7720, at para. 37. As Speyer J. explains in
Romania v.

Iusein
, 2014 ONSC 623, 307 C.C.C. (3d) 266, at para. 26, [a]bsconding is
    more serious than most, if not all, the other breaches of recognizance.

[28]

In their submissions, both Taylor and
    Christopher indicated that they understood the risk they were taking and the
    extent of their potential liability in becoming Michaels surety. They were
    prepared to support their cousin on the basis of friendship, family ties and
    their conviction that Michael appreciated the immense responsibilities they had
    assumed in becoming his sureties. They firmly believed that Michael would not do
    anything that would jeopardize the funds they had advanced.  They had neither
    any reason to suspect their cousin would abscond nor any indication that the
    other two sureties were conspiring with Michael to craft a sophisticated plan
    to abscond.

Taylor

[29]

As noted by Garton J. at the initial bail hearing, Taylor bore the
    heaviest burden in terms of supervising [Michael].  He put up the most money.
    For most of the period of release, Michael was to live with him.
However, Garton J.s initial release decision and the variations
    that followed, including this courts release orders pending the appeal and
    judicial review, were made in the light of the fact that
Taylor
lived in Toronto approximately 4-5 days every week, and the rest of
    the time lived in London, Ontario for business purposes. It is clear that these
    living arrangements were a significant reason why the court put a multi-surety plan
    in place that contemplated that the other sureties would supervise Michael when
    Taylor was away.

[30]

There is conflicting evidence about Michaels
    living arrangements while on bail.

[31]

The Crown argues that although the release
    orders made in October 2014, January 2015 and May 2015 stipulated that Michael was
    to reside with Taylor, the Toronto Fugitive Squads investigation revealed that
    Michael had actually been living with Rosemary and Marrida in another unit in
    Taylors building, contrary to the terms of his bail.

[32]

Taylor submits that Michael maintained primary
    residence in his (Taylors) unit from October 2014 to February 2016. In support
    of his position, Taylor produced a text to all sureties that he sent following
    the October 2014 release order to ensure that they had a plan in place to
    supervise Michael. In that communication, Taylor explicitly stated that his
    cousin had to live at his (Taylors) home, but that he could spend nights with
    Rosemary and Marrida. The text emphasized that although Michael no longer had a
    curfew, he always had to be with a surety, and could only be alone at Taylors
    house. Taylor also filed an affidavit of Milan Kukolj, a Constable in the
    London Police Services, which stated that he consistently witnessed Michael
    residing with Taylor from September 2013 to January 2016.

[33]

I find it is not necessary for me to resolve whether,
    from October 2014 to February 2016, Michael resided with Taylor, in accordance
    with the terms of his release. Either way, it is clear to me that Taylor
    allowed himself to be increasingly at the mercy of Rosemarys and Marridas
    commitment to their supervisory responsibilities. When Taylor was away from
    Toronto,
he came close to effectively delegating supervisory authority
    to Rosemary and Marrida, in circumstances in which Taylor was unable to assure
    himself that Michael was complying with the conditions of his bail. This
    contradicted the strict conditions of Michaels release given Taylors
    responsibility as primary surety.
Although sureties serve
    voluntarily and can terminate their commitment for any reason, they are not permitted
    to re-write the conditions of release to suit their own circumstances, or to
    delegate their responsibilities to others:
R v.
Norman
,
    2014 ONSC 2005, at paras. 29-30;
Iusein
, at para. 31.

[34]

That said, it is significant that in August 2013
    Taylor sought advice from Michaels lawyers regarding what his obligations were
    when he was out of town.

Michaels
    lawyer advised Taylor to maintain reasonable contact by phone, email or text to
    confirm that Michael was abiding by his conditions. Even though Taylor claims to
    have assiduously followed this advice,
leaving Michael with Rosemary and Marrida for days at a time
    was fraught with obvious risk.
I would echo the
    comments made by Trotter J., as he then was, in
Norman

at para. 34:
[e]
ven
    though Mrs. Norman received advice that the proposed plan was

legal
, I have a difficult time seeing how
    anyone could have thought that it was

wise
 (emphasis in original). As in
Norman
, the legal advice that Taylor received
    was simply not wise.
The effective transfer of much of Taylors
    responsibility as a surety to Rosemary and Marrida weakened the court-ordered
    surety plan, and compromised Taylors ability to supervise Michael. In the
    circumstances in which he found himself, Taylor should have either applied for a
    variation on a bail review, or rendered Michael into custody.

[35]

Instead, Taylor allowed the situation to worsen.
    And he did so at a particularly crucial time.  He left Toronto for over a week just
    before the appeal and judicial review. In fact, the last time Taylor saw
    Michael was on February 2, 2016. Taylor left town on that day and was away until
    February 10, 2016.  During this critical period, Taylor put himself in a
    position where he could not monitor Michael. Significantly, he was not in a
    position to observe conduct that might have foreshadowed a failure to appear.

[36]

The record demonstrates that as the date of the
    hearing approached, Michael was engaged in activities that, had Taylor been keeping
    a closer watch, he may have learned of. For example, starting in January 2016,
    Michael had been selling furniture and ridding himself of his belongings.  These
    actions may well have alerted Taylor that Michael was planning to abscond.

[37]

Moreover, Taylor did not have any independent
    knowledge of when and where Michael was supposed to surrender into custody.
    Taylor never sought independent information regarding Michaels court dates.
    Rather, he relied on Michael to provide him with updates about the case and
    inform him of important court dates. Taylors approach shows a disregard for the
    obligation the court places on sureties: it is their responsibility to know the
    timing and the circumstances surrounding the accuseds obligations to attend
    court.

[38]

In addition, Taylor did not ensure that Michael
    surrendered himself to police the afternoon before his appeal and judicial
    review, which was an express condition of Michaels recognizance. Taylor
    attempted to coordinate meeting with Michael and Rosemary at the court on the
    day of the hearing, but this did not comply with the condition placed on
    Michael pursuant to the recognizance. The recognizance was clear that Michael
    had to surrender into custody the day before the appeal. Taylor should have
    known that.  He signed the recognizance.

[39]

That said, when Taylor learned that Michael had absconded
    he took immediate action. He reported Michael missing, contacted Christopher,
    and attempted to contact Rosemary and Marrida. Taylor sent Michael, Rosemary
    and Marrida texts encouraging them to return.

[40]

Taylors actions also proved helpful to the
    officers at the Toronto Fugitive Squad who were responsible for investigating
    Michaels disappearance. Taylor shared with them what he had learned about
    Michaels actions in January 2016  his having moved furniture out of Rosemarys
    apartment, given away his belongings, and secretly married Marrida. Taylor
    advised the authorities that, based on his research and his experiences with
    Michael, Michael was likely in Vietnam, Cambodia or Indonesia.
Taylor
    also provided the police with the names of Marrida`s relatives, and
three receipts with Rosemary, Michael and Marridas names on them,
    dated January 13, 2016, for medical kits that one would purchase to travel to
    Asia.

[41]

I now turn to Taylors financial circumstances. Taylor is involved in a
    start-up business. He submits that the $500,000 he pledged represents his whole
    net worth.  However, he does have considerable equity in two properties. At the
    time of the original bail hearing, Michael owned a house in London valued at
    approximately $700,000. The mortgage on the property was $386,000. He also
    owned a loft on 264 Seaton Street, Toronto that he rented out for $6,000 per
    month. The estimated value of the unit at the time was $1,100,000 with a
    mortgage of $648,000. The equity in these two properties totaled about
    $762,000.

[42]

The Crown submits that
Taylors current net worth is
    $1,000,000, which is more than it was
at the time he entered the
    recognizance. The Crown argues that
Taylor has the means to
    fulfill his obligation.

[43]

Applying the principles identified
    above, I have concluded that a forfeiture order should issue against Taylor,
    but not for the full amount.
I come to this conclusion
    based on the following.

[44]

First, the evidence supports a
    finding that at least by the time Taylor agreed to continue to act as Michaels
    surety pending the appeal and judicial review, he knew that Michael had come to
    Canada to avoid prosecution in the United States on serious charges. To Taylors
    knowledge Michael had proven that he had the willingness and capacity to
    abscond.

[45]

Although Taylor played no role in Michaels
    complex escape plans, he was lax in his supervisory obligations. The record
    supports the conclusion that Taylor allowed Rosemary and Marrida to assume some
    of the supervisory responsibilities that were assigned to him under the terms
    of the release order. One of the more serious aspects of Taylors failure to
    meet his obligations as a surety was his near total abdication of responsibility
    to ensure that Michael appeared in court on the date set for the hearing of his
    appeal and judicial review.

[46]

There are, however, factors that militate
    against full forfeiture. Michael was particularly skilful in covering up his
    plans to abscond. He complied with his reporting conditions diligently for over
    two years by checking in at the police station at the beginning of every
    month.  Michaels escape  chartering a private plane showed sophisticated
    planning not easy to detect.

[47]

Furthermore, as previously noted, Taylor did
    seek legal advice from Michaels lawyers regarding complying with the
    conditions of bail when he was out of town.

[48]

Also relevant is the fact that Taylor provided
    considerable assistance to the authorities in their ultimately successful
    efforts to find Michael. And Michael is now back in the United States where he
    is facing the charges against him.  Rosenberg J.A. in
Horvath
, at para.
    60, acknowledged that the apprehension of the fugitive is relevant to the
    determination of what order, if any, should be made against the sureties in an
    estreatment proceeding.

[49]

Taking all of these circumstances into consideration,
    I have concluded that
forfeiture in the amount of $200,000 takes into account the unique
    circumstances of this case, and will adequately ensure the integrity of the
    bail and surety system.  I appreciate that this is a sizeable amount of money.
    But, there is no evidence, beyond a bald statement in his affidavit, that Taylors
    financial situation has changed since he agreed to support Michael, or that
    forfeiture of this amount would create extreme hardship.

Christopher

[50]

Christopher is a professor at Durham College in
    Oshawa. When the release order was put in place, the court was aware that he
    lived and had a job and a family an hour away from where Michael was ordered to
    reside. It was therefore clear that Christopher could not be responsible for
    supervising Michael on a daily basis. The understanding was that a couple of
    times a month he and his children would pick Michael up, spend the day with him,
and then
return him to Taylors home. Christopher undertook to
    ensure that Michael was constantly with him, when they spent time together.

[51]

That said, the record makes it clear that as the
    date of the appeal and judicial review approached, Christopher made no efforts
    to see that Michael fulfilled his primary obligation  to show up for the
    hearing.  He did not appear to take any steps to understand what Michaels
    responsibilities were, or what his responsibilities were in ensuring Michael
    met his. This nonchalant attitude is particularly serious given that, like
Taylor, Christopher knew that his cousin had fled from
    prosecution in the United States.  In these circumstances, as the date of the
    hearing approached Christopher should, at the very least, have taken steps to
    ensure that he knew what his obligations were and that he did everything in his
    power to meet them.

[52]

But he did not.  After January
    2016 Christopher had no further contact with
Michael.
    In fact, Christopher did not even know when Michael was required to surrender
    into custody. Moreover, there is no evidence that he reached out to the other
    sureties to ascertain what they were doing to ensure Michael complied with this
    most important term of his recognizance.

[53]

Immediately after he learned that Michael had
    breached his bail conditions by failing to appear in court, Christopher
    contacted the Durham Regional Police and the Toronto Police Service. He was
    told that he had to drive to Toronto to notify the authorities of Michaels
    breach of recognizance. He was unable to go to Toronto that day due to child
    care responsibilities, but did file a request to be removed as Michaels surety
    a few days later when he did get to Toronto.

[54]

In my analysis of the Crowns request that
    Christopher forfeit the full $10,000, the most significant consideration is the
    change in his financial circumstances since becoming a surety.  Since that
    time, Christopher and his wife have separated. They are currently in the midst
    of divorce proceedings.   Christopher claims that the separation has left him
    with no assets other than one property valued at approximately $490,000 with a mortgage
    of $390,000. He has two dependent children, one who has significant medical
    needs.  Christopher pays monthly child and spousal support.

[55]

Again, I have concluded forfeiture
    is called for. I say this on the basis of Christophers failure to pay more
    than a modicum of attention to his responsibility to ensure that Michael turned
    himself in on the day before the hearing.

[56]

However, in determining the amount
    to be forfeited I have taken into account that Christopher was not the primary
    surety, and the significant change in Christophers financial situation since
    the time he agreed to help Michael. While Christopher does have equity in his
    home, the evidence supports the conclusion that all available resources are
    being directed toward the increased costs of supporting his family.

[57]

Christopher does not appear to
    have had anything to do with Michaels abscondment.  As in the case of Taylor,
    he was not complicit, rather, neglectful.  That said, Michaels abscondment delayed
    rather than denied justice. The fact that he is in the United States awaiting
    trial merits some mitigation of the forfeiture order.

[58]

In the light of these circumstances I order that
    Christopher forfeit $3,000.

DISPOSITION

[59]

I allow the application in part and order forfeiture of
    the following amounts: Taylor Wilson: $200,000 and Christopher Gould: $3,000.

[60]

I feel compelled to comment on the assistance
    Taylor and Christopher offered the court in their capacity as self-represented
    litigants. In the almost 25 years I have been a judge, their submissions
    represent the gold standard in the capacity of self-represented litigants to
    assist the court. I thank them.

Released: March 21, 2017 ("DW")

"Gloria
    Epstein J.A."

[1]

On September 20, 2016 Justice MacFarland ordered that Rosemary
    forfeit the $125,000 she had put forward, that Marrida forfeit the $2,000 she
    had put forward and that Michael forfeit the $300,000 deposit he had left at
    Superior Court.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zerat, 2017 ONCA 193

DATE: 20170306

DOCKET: C62122

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Berhane Embaye Zerat

Applicant

Berhane Embaye Zerat, acting in person

Hannah Freeman, for the respondent

Heard: March 3, 2017

On appeal from the order of Justice R. Smith of the
    Superior Court of Justice, dated April 20, 2016, dismissing an appeal from the conviction
    entered on August 13, 2015 by Justice M. Hoffman of the Ontario Court of
    Justice.

ENDORSEMENT

[1]

After a trial before Justice M. Hoffman of the
    Ontario Court of Justice, Mr. Zerat was found guilty of mischief to property
    under $5,000.

[2]

Using a sledgehammer, Mr. Zerat smashed 4
    windows of the CBC building in Ottawa. At the outset of trial, Mr. Zerat
    brought a
Charter
application to stay
    proceedings, based on perceived historical abuses by government officials,
    post-secondary institutions and other individuals. The application was
    dismissed.

[3]

Mr. Zerat testified on the trial proper. He
    explained that he smashed the windows to draw attention to the same grievances
    that he pursued on his
Charter
application.
    Mr. Zerat was found guilty. The trial judge imposed a suspended sentence and a
    year of probation.

[4]

Mr. Zerat appealed his conviction, alleging bias
    on the part of the trial judge. The Summary Conviction Appeal Judge (SCAJ) dismissed
    his appeal.

[5]

Mr. Zerat seeks leave to appeal to this Court.
    He alleges that the trial judge and the SCAJ were biased against him.

[6]

Upon a review of the record at trial and before
    the SCAJ, we can find no indication of bias, or indeed any foundation to
    support a claim of reasonable apprehension of bias. The trial was conducted in
    a fair and even-handed manner. The trial judge did not err in dismissing Mr.
    Zerats
Charter
application. The elements of
    the offence were established on the evidence at trial. Moreover, the SCAJ
    treated Mr. Zerat with absolute fairness and compassion and made no error in
    dismissing his appeal.

[7]

Leave to appeal is refused.

J.
    MacFarland J.A.

G.
    Pardu J.A.

G.T.
    Trotter J.A.