Ue geaait 13:2 ‘CROWN ATTORNEY 925 645 5264 P.OL RULING The media have brought a motion to release the tapes of the 3 911 calls, that were made by Cosgun Hasan, Jeffrey Gaudet and Lori Faccio. The crown originally consented to the release as did the defense. Later the crown passed that | make in order that the tapes not be released which I did. The transcripts of the 91 calls where. released to the media. CHCH News and The Hamilton Spectator did not have counsel. The matter was put over to Wednesday, 25 May to hear argument. On the 25" of May. This matter was heard for about 2 hours. The following counsel were present; Brent Bentham for the Crown Christopher Hicks and Keely Duncan for the Defendant Cengiz Isiko K. Baker for hasan Cosgun and Rumeysa Cosgun Brian MacLeod Rogers for the Hamilton Spectator and CHCH TV. Ms Baker indicated the difficulties she had in obtaining the witnesses she.wished to call and the financing. After a short break it was agreed by all counsel that Ms Baker's clients the Cosguns would suffer some emotional upset and a disruption to their right of privacy if the tapes were released and played by the media. With that understanding the motion proceeded. It had already been delayed for about a week.JUN-06-2011 13:21 CROWN ATTORNEY 985 645 5264 P02 The 911 tapes had already been played to the jury when the Cosguns were on the stand. There is no doubt that the tapes displayed a great deal of emotion. That was to be expected, . The Crown Attorney and Ms baker opposed the release of the tapes because of the emotional impact on the Cosguns. Mr. Rogers on behalf of his clients argued that the release of the tapes was essential to the open court policy, If they were not released it would be against the existing law. ———The.non-release-of the-tapes:could only be-ordered if the court was satisfied that: 1. Needed to prevent a serious risk to the proper administration of justice, and alternative measures could not prevent the risk, ; 2. The salutary effects of the restriction outweigh the deleterious effects on the rights and Interest of the parties seeking the release and the public at large. The Supreme Court of Canada in Regina versus Mentuck [2001] 3.5.,.R 442 at paragraph 32 and 33 stated the following: is case requires 5 findings of (a) Necessity of the_ and (b) proportionality. between the ban’ 's salutary and deleterious effects. However, while Dagenais frame the test in the specific terms of the case, It is now necessary to framed it more broadly SO as to allow explicitly for consideration of the interest involved in the incident case and other cases where such orders are sought in order toJUN-05-2011 13:22 ‘CROWN ATTORNEY 905 645 5264 POS protect other crucial aspects of the administration of justice. In assessing whether to issue common law publication bans, therefore, in my opinion, a better way of stating the proper analytical approach for cases of the kind Involved herein would be: A publication ban should only be ordered when: (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and 7 (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the rights of free expression, right of the accused to a fair public trial, and the efficacy of the administration of justice. 33. The reformulation of the Dagenais test aims not to disturb the essence of that test, but to restate it in terms that more plainly recognize as Lamer C.J, himself did in that case, that publication bans may invoke more interest and rights than the rights to trial fairness and the freedom of expression. The version encompasses the analysis conducted In Dagenais, and Lamer C.J.’s discussion of the relative merits of a publication bans remain relevant. Indeed, in those common law publication ban cases where only freedom of expression and trial fairness issues are raised, the test should be applied precisely it was in Dagnais. For cases where concerns about the proper administration of justice other than those two charter rights are raised, the present, broader approach, will allow those concerns to be weighed as well. There may also be other cases which raise interest other than the administration of justice, for which a similar approach would be used,JUN-06-2011 13:22 CROWN ATTORNEY 925 645 5264 P.04 depending of course on the particular danger at issue and rights and interests at stake. The matter of publication bans has also been discussed in the recent case of Canadian Broadcasting Corporation v Her Majesty the Queen 2010 O.R. (3d) 673 at paragraphs 20 and 21 20. For the Supreme Court's post charter test that applies to all discretionary decisions limiting freedom of the press in relation to court proceedings, it is to Dagenais and Mentuck that one must turn. The ~-Dagenais/Mentuck-test asYestated in'theToronto Star newspapers versus Ontario 2005 2 S.C.R.CR 188 at paragraph 26, reflects the importance of the open court principle and the rights of freedom of expression and freedom of the press in relation to judicial proceedings. Restrictions on the open court principle and freedom of the press in relation to judicial proceedings can only be ordered with the party seeking such a restriction to establish through convincing evidence that (a)such an order is necessary in order to prevent a serious risk to the Proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweighs the deleterious effects 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JUN-@6-2011 13:22 CROWN ATTORNEY 985 645 5264.05 21. While Dagenais/Mentuck test was developed in the context of publication bans, the Supreme Court is has stated that applies any time section 2b) freedom of expression and freedom of the press rights are engaged in relation to judicial proceedings: “the Dagenais/Mentuck test applles to all discretionary orders that limit freedom of expression and freedom of the press in relation to legal proceedings" Toronto Star had paragraph 7. Therefore the party or parties seeking to have access to documents, exhibits filed in a court t proceeding are deemed to have that right. That right is ‘overturned if the: party seeking to prevent this disclosure shows to the court that there would be a serious risk to the administration of justice and there is no alternative measure to alleviate that risk. Counsel for the Cosguns and the Crown attorney provided a number of cases and good arguments as to why the tapes should not be released. | find that they did not overcome the test in Dagenais/Mentuck, which was enunciated by our Court of Appeal The decision to release or not release is within the discretion of a trial Judge. He or she must weigh the various competing interests. 1am on the belief that our courts should be open to the public, both those that attend and through the media. A free and open press is a hallmark of a free society. | am mindful of the distress that the Cosguns may have with the release of the tapes. They both testified in open court and the tapes were played when they were on the witness stand and in front of the jury. Hopefully when this trial is over they may have some feeling of closure.JUN-G6-2011 13:22 CROWN ATTORNEY 925 645 5264 P06 | am satisfied that the tapes should be release to the Applicant on the foliowing conditions: 1, Every step be taken to insure that the tapes now in court be copied in a manner as not to in any way impalr the original tape. 2. That the media in this case, The Hamilton Spectator and CHCH TV, shall be able to play the tapes on radio, television or their websites for a period of 48 hours after they-are in recei pt of _same, . 3. The Hamilton Spectator and CHCH TV will take every reasonable step that the tapes or the re-recording of them do not fall into other hands. Ontario ‘Mint of ‘Court House: the Attorney Srovey Ey icon = General a Homiton ON LEN 287 Minister om Wereiae Feit cer serrate Général oe ctv tet Se FACSIMILE TRANSMISSION TRANSMISSION PAR TELECOPIEUR ATTENTION ipa fevinaiony “if you are Nok freon yale ay cnr ee ereemien sey eo Sciences = Ss TO: + hb. 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