Murder accused allowed to hide behind court ban

No lawyers were present for ruling in Barrie case

Tracey Tyler
Legal Affairs Reporter
, Jul. 31, 2002

A justice of the peace allowed an accused killer to hide behind a cloak of anonymity after an out-of-court hearing with only a police officer and the arrested man in attendance.


There appears to be no legal basis for imposing a ban on publication of the accused man's name, but that didn't stop Justice of the Peace Donna Fildey from making her order after a brief hearing in an office at the Barrie courthouse last week.


As a result of her ruling, the public can't know the name of the person charged with two counts of first-degree murder in connection with the slaying of a Toronto couple, whose bodies were found in a field in Oro-Medonte Township, just outside Barrie, on May 25.


The accused man is scheduled to make a court appearance today by way of a video link from a provincial jail and, while much about the case remains murky, details are starting to emerge about the circumstances surrounding the ban, something one legal expert calls "a fiasco."


"There is no legal foundation, in either the Criminal Code or at common law, for a justice of the peace to ban publication of the name of an accused murderer," said Toronto lawyer Bert Bruser, a media law expert who acts for The Star, which plans to challenge the ban in court.


"It's a farce," he said.


It's also the second such ban to be imposed in recent weeks. Last month, Justice of the Peace Grainne Forrest banned publication of the name of Toronto police Constable Richard Wills when he was brought before her in Newmarket court, charged with murder in the death of Linda Mariani of Richmond Hill.


That ban was overturned by a Superior Court judge, who said there was no legal basis for the JP's order.


The reasons for Fildey's order remain confidential, covered by the publication ban she imposed.


When contacted by The Star yesterday, Fildey wouldn't comment, referring the call to the Barrie crown attorney's office.


Crown Attorney John Alexander said Fildey's ban was different from the one imposed in Newmarket, where "they were trying to keep the identity of someone secret because he was a police officer."


In the Barrie case, he said, there was some evidence that identifying the man now charged with the murders of Bong Thi Bui and Dung That Ton would create safety and security concerns.


Also, unlike the Newmarket case, the request to ban the identity of the man charged in the Barrie slayings wasn't supported jointly by the crown attorney and duty counsel for the accused man, he said.


It's not hard to see why. Neither the crown nor duty counsel was in attendance at the Barrie hearing, although the crown's office apparently knew about the request in advance.


The media received no notice before the ban was made.


"As I understand it, it (the request for a publication ban) was made with our knowledge, but without our participation," said Alexander, adding he doesn't believe the crown attorney's office was "asked whether we opposed it or not."


Gisele Miller, one of two assistant crown attorneys assigned to the case, said it's not unusual to have only a police officer in attendance when an accused person is initially brought before a justice of the peace. Although the accused man does have a defence lawyer, Miller said she could not reveal his identity.


Court officials wouldn't say when the hearing took place.


An official with the trial co-ordinator's office in Barrie said Fildey wasn't presiding in court last week. The hearing actually took place at the justice of the peace intake office at the Barrie courthouse, after an Ontario Provincial Police officer came in with the accused man.


The hearing was taped and a 15-page transcript was obtained by The Star yesterday. Although the Criminal Code gives judicial officers the power to ban evidence given at a bail hearing, this wasn't a bail hearing. Still, Fildey's publication ban covers everything that was said.