The Crown attorney in Nathaniel McLellan’s manslaughter case will go to court Thursday to ask a judge to lift a publication ban that the family and media have objected to, a senior Ontario government official said. .

Nancy Krigas, director of Ontario’s assistant deputy attorney general’s office, confirmed that the London Crown office that called for the ban two weeks ago will now ask for it to be lifted. Last week, the Star wrote to Krigas’s boss, Assistant Assistant Attorney General Susan Kyle, questioning the ban and informing her that the McLellan family never asked for their son’s identity to be protected.

In response, the Crown has said it will ask for the ban to be lifted.

“The Crown is submitting material to overturn the publication ban, that is, lift the publication ban,” Krigas told the Star.

The McLellans told the Star they are happy with the Crown’s position, albeit confused as to why a ban was requested in the first place.

“We are pleased that the Crown is aware of Nathaniel’s rights as a victim of crime. As part of respecting Nathaniel’s rights, the removal of the publication ban is a positive step toward Nathaniel’s right to justice, ”said Rose-Anne McLellan, Nathaniel’s mother. “Our family is pleased that Nathaniel’s memory continues and his name is not forgotten.”

If a justice or justice of the peace agrees with the Crown’s request to lift the ban, it means that Nathaniel’s identity will be public in relation to future court proceedings and in relation to documents filed in court.

Nathaniel’s case was described in a five-part Toronto Star series, “Death in a Small Town.” A week after publication, the OPP arrested and charged Meggin Van Hoof with manslaughter. As The Star reported in its series, Nathaniel, 15 months old, had collapsed in Van Hoof’s daycare on the morning of October 27, 2015. Doctors who examined him found a three to four inch fracture in the back of his skull. .

Strathroy-Caradoc Police and the OPP initially focused their investigation on Nathaniel’s parents. The McLellans recently said they feel like a “cloud of suspicion” that was lifted following the publication of the Star series and the police indictment.

When they learned that a police document referring to the case (called “information”) was filed in court under a publication ban, the family was confused. A big part of Rose-Anne and Kent McLellan’s battle over the past five and a half years has been trying to make a difference in their son’s short life. “Why would we want Nathaniel’s name and who was kept secret?” Rose-Anne said recently.

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In the world of courts and posting bans, this ban is strange. The Crown that requested it, Jeremy Carnegie, and his superiors have not explained why they asked for the ban.

First, a little about the courts and publication bans.

Most court hearings in Canada are held in public and most court documents are available to the public. In a recent case heard by the Supreme Court of Canada, involving the estate of murdered billionaires Barry and Honey Sherman and the Toronto Star’s request to view the files, the court unanimously ruled that the estate documents were not sealed. The court said in its ruling:

“The court proceedings are supposedly open to the public. The openness of the courts is protected by the constitutional guarantee of freedom of expression and is essential for the proper functioning of Canadian democracy. It is often said that reporting on judicial proceedings through a free press is inseparable from the principle of open justice. The principle of public hearing applies to all judicial proceedings, whatever their nature ”.

The reasoning behind open courts is often explained with reference to a 1924 English case in which the then Lord Chief Justice of England, Lord Hewart, said: “Not only must justice be done, but also see what is done “.

That said, there are posting bans in certain cases. A judge or justice of the peace can grant a ban on request. For example, in a case involving a living victim of sexual abuse, the identity of the victim is often forbidden when the victim requests it. In that case, the media can report on the case but cannot identify the victim, not by name or anything that could identify the victim.

In the McLellan case, the original police “information” describing the charge against Van Hoof included a publication ban requested by Crown attorney Carnegie and ordered by Justice of the Peace Kristine Diaz. The date of that ban was June 23, the date on which Van Hoof was charged with murder. The prohibition was under Section 486.5 of the Penal Code, which establishes the prohibition of the identification of a victim or a witness.

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The Star confirmed with justice officials that the ban was related to Nathaniel’s identity. Since his identity was well known (from the Star series, the OPP’s recorded press conference announcing the charges, and in numerous media reports), Star contacted the London Crown office for an explanation. None were provided.

The prohibition appears in a particular document: police information. No prohibition was indicated in court documents regarding Van Hoof’s bail conditions (she was released on bail the same day she was charged), and the names of the McLellans and their five children are specified in the conditions. of the deposit.

Shortly after Star raised the issue, Carnegie went back to Justice of the Peace Diaz and amended the ban to a different section of the Penal Code, 486.4 (2.1), which relates to the identity of victims of non-sexual crimes under 18. In that kind of prohibition, once requested by a Crown or a victim, is a mandatory prohibition.

After Star raised the issue of the ban, Carnegie spoke with Rose-Anne and Kent McLellan. Nathaniel’s parents said they didn’t want the ban.

At this point, Star contacted Susan Kyle, Assistant Deputy Attorney General, Carnegie’s boss. Kyle put the Star in touch with Krigas, a senior official in the Ontario Prosecutor’s Office. Krigas contacted the London office and several days later, Krigas told the Star that they would request that the ban be lifted.

On Wednesday, the Star and the McLellans still did not know the reason for the ban. The Star contacted Carnegie, the Crown of London that requested the ban.

“As for the reasoning behind the publication ban, in my role I restrict any public comment on the prosecutions I make in court,” Carnegie wrote in an email. “I do not make public comments outside of court.”

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