September 11, 2017
Bélanger, Émond, Schrager
Appeal from a judgment of the Superior Court. Allowed, with dissenting reasons.
On January 9, 2017, the Superior dismissed a motion for a writ of certiorari against a judgment of the Court of Quebec. This judgment, rendered November 25, 2015, had dismissed the motion for a publication ban presented by the appellant, who is the ombudsman for the city of Montréal, concerning the information contained in an information used to issue a search warrant against her. The search sought to cast light on the appellant’s allegations that public funds were being abused.
The principles established in Flahiff c. Bonin (C.A., 1998-01-08), SOQUIJ AZ-98011109, J.E. 98-334,  R.J.Q. 327, cannot be set aside just because the appellant has not been charged criminally and, consequently, her right to a fair trial has not been violated. Even in the face of uncertainty that the accused will be tried, a motion for certiorari must be granted. In fact, as long as the police investigation is ongoing, caution is required, and it is appropriate to protect the appellant’s future rights. Furthermore, as stated in Toronto Star Newspapers Ltd. v. Ontario (S.C. Can., 2005-06-29), 2005 SCC 41, SOQUIJ AZ-50320845, J.E. 2005-1234,  2 S.C.R. 188, the Dagenais-Mentuck test (that is, to set aside the open court principle, a competent court must find, in exercising its discretionary power, that disclosure would subvert the ends of justice or unduly impair its proper administration) applies to each of the stages of the legal process, even before criminal charges are filed. The counterpart of this premise is that the rights, even future ones, of those who are being investigated must be taken into consideration. In this case, a temporary publication ban will ensure the preservation of the appellant’s right to a fair trial, should there be a trial. Indeed, the details set out in the information constitute hearsay, have not been verified by the investigator, and was given by individuals who have obvious reasons to be angry with the appellant. The information is incriminating and highly prejudicial, and the appellant has no means to contradict it at this point in the proceedings. Moreover, the appellant benefits from the presumption of innocence. The ends of justice require that the trial be held before the courts, not the media, whether conventional or the social networks, before the police investigations are even finished. Thus, a publication ban of the contents of the information in support of the application for a search warrant should be ordered. This temporary ban will end when a decision is made about whether or not charges will be filed as a result of the informations laid against the appellant.
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