Susan Clairmont: Court of Appeal decision released in Hamilton mob murder

An interesting and unusual Court of Appeal for Ontario decision was released recently concerning a Hamilton mob murder.

Part of that decision leaves it unclear whether I can tell you about it. But another part of that decision allows me to tell you exactly where you can go to read all about it.

Confused?

So is a media lawyer who counts CBC, Postmedia and Vice among his clients.

It's a head scratcher, for sure," says Iain MacKinnon.

This all concerns a guy named Jabril Abdalla, who is charged in the murders of Hamilton mobster Angelo Musitano and of Mila Barberi, who was killed by a bullet apparently meant for her boyfriend.

Abdalla was arrested in September 2018 and faces two counts of first degree murder and one count of attempted murder.

Abdalla is the only person, among three co-accused, to be arrested in the Musitano case. He is not the alleged shooter, but is accused of being a party to the offences.

He applied for bail in 2019 and was denied. His lawyer sought a bail review but the court upheld the judge's decision.

In April 2020, as inmates across Canada were requesting bail while COVID concerns soared in jails, Abdalla requested a bail review.

This time, a judge granted his release.

But then the Crown took that to the Court of Appeal. Last month, the appeal court overturned the previous decision and ordered Abdalla back into custody.

Follow this so far?

On Oct. 21, the Court of Appeal released its 50-page decision. That decision refers to evidence in the case against Abdalla and then provides the reasons why two justices decided he should be returned to custody while a third took a dissenting view.

That decision was posted to the Court of Appeal website and was posted on CanLii, a public website that provides access to court judgments from all Canadian courts, and on QuickLaw, which requires a membership.

Now here's where it gets tricky.

Generally, a publication ban applies to bail hearings, to protect the fair trial rights of the accused. That means the media cannot report details related to evidence in the case. All we can report is that the hearing happened, the result and any conditions that may apply to the accused.

So when the Court of Appeal decision was posted to its own website (with a standard warning stipulating that portions of the reasons may be covered by a publication ban) and to CanLii, it was making public those evidentiary details cited in the reasons. The details covered by the publication ban.

That led the trio of Crowns from the provincial Crown Law Office in Toronto who had argued the case and Abdalla's lawyer, Leora Shemesh, to go back to the Court of Appeal to raise concerns.

The lawyers suggested the Court of Appeal ought to post an edited copy of its own decision.

That conundrum led the court to issue a second decision on Nov. 3, about the dissemination of the first decision.

The second decision says that the entire, unedited first decision will stay on the Court of Appeal website. Including all the evidence covered by the publication ban.

The openness principle would direct that the reasons should be available to the public," the justices write. There is no inherent jurisdiction in this court to withhold its reasons from the public or to otherwise direct that they remain secret."

They go on to say that not making the decision available to Canada's legal community and to the public" but allowing the Hamilton judge's original bail decision from six months earlier to be available (it was also posted on CanLii and QuickLaw) would be misleading."

The decision notes that the Hamilton bail decision had already been cited 15 times in other decisions of the Superior Court of Justice and twice in decisions in other provinces.

The trio of Crowns and Shemesh had apparently been surprised and concerned that the Hamilton bail decision had been available on CanLii and QuickLaw for months.

(CanLii has since taken the decision down, although it still appears on QuickLaw.)

The Court of Appeal rejected the idea of posting an edited version of its decision.

Doing so would potentially establish a precedent that would inevitably lead to counsel in other cases also asking for edited reasons for publication purposes ... The evidence is critical to a proper understanding of our reasoning and our evolution of the issues that were before us."

MacKinnon says the decision distinguishes between access to a document and publication of a document.

The implication from the decision is that posting a judgment on a court website is the electronic equivalent of someone going to a courthouse and asking for a copy of a judgment."

Everyone tries to figure out, what does publication mean?" says MacKinnon. With the internet, nobody knows what that means any more."

Regardless of what publication" means, the Court of Appeal also concluded that it was unclear whether the publication ban on bail hearings applies to bail reviews at all.

As for Abdalla?

Shemesh has filed a notice on his behalf seeking leave to appeal the bail decision to the Supreme Court of Canada.

His preliminary hearing is concluded and he is committed to stand trial. No dates have been set.

Susan Clairmont is a Hamilton-based crime, court and social justice columnist at The Spectator. Reach her via email: sclairmont@thespec.com