Judge to decide whether to reveal mystery player allegedly involved in bread price-fixing
Case pits presumption of innocence against freedom of the press, principle of an open court
An Ontario Superior Court judge has reserved judgment on whether to reveal the identity of a mystery player alleged to have been involved in an industry-wide scheme to raise the price of bread products.
The applicant in the case — so far identified only as "X" — has asked the court to impose a permanent publication ban on any information that could identify them either directly or indirectly, arguing that such publication would irreversibly tarnish their reputation.
Justice Lynn Ratushny maintained the existing temporary publication ban on Thursday, after hearing arguments over whether the ban should be lifted.
The application centres on an affidavit prepared by the Competition Bureau of Canada, which includes testimony provided to the bureau by two bread industry whistleblowers.
Both whistleblowers were former employees of Loblaw Companies Ltd. and Weston Bakeries.
In December 2017, the two companies revealed they had participated in an industry-wide deal to fix the retail and wholesale prices of some packaged bread products between 2001 and 2015.
In exchange for tipping off the Competition Bureau to the practice in March 2015, both companies received immunity from criminal charges.
Based on the information the whistleblowers provided, a judge issued warrants allowing the Competition Bureau to enter and search the premises and records of seven companies alleged to have been involved in the arrangement, based on reasonable grounds to believe they had committed offences relating to bread price-fixing.
Most of the affidavit was made public in January, but portions of the document remain redacted in order to conceal the identity of both whistleblowers and applicant "X."
'Pure speculation' and 'salacious' allegations
Speaking in court, the applicant's lawyer argued that any details that could directly or indirectly identify his client should remain under seal.
"It is perhaps naive to think or to suggest that the publication of these allegations would not have a devastating effect on this person's reputation, in light of what the affiant chose to put in [the affidavit]," said Scott Fenton.
Fenton attacked the whistleblower's credibility, referring to portions of their Competition Bureau testimony as "pure speculation" and questioning the accuracy of their recollection.
Fenton also sought to have the so-called "Genesis" subtitle redacted from the Competition Bureau's affidavit, arguing it could lead readers to believe his client was involved in concocting the alleged conspiracy to raise bread prices.
The combination of the affidavit's "untested, unproven allegations" and its "salacious" subtitle, Fenton said, threaten to irreparably damage his client's reputation.
"There's no real public interest in knowing my client's identity," he said.
Portions of the currently redacted sections of the affidavit could be made public, Fenton said, provided they do not include his client's name or any other information that could directly or indirectly identify them.
Media wants publication ban lifted
In response, a lawyer representing a coalition of media outlets — including the CBC — asked the court to lift the publication ban on the affidavit's contents entirely, including the portions that relate to applicant "X."
In her submissions to the court, the coalition's counsel Tae Mee Park said the redacted paragraphs shed light on the Competition Bureau's decision to pursue its investigation and the judge's subsequent decision to issue search warrants in the matter.
"It's not an individual who's [been] swept up," she said.
"The commissioner has deemed this person 'X' as a key person, by virtue of the fact that he placed this information under 'Reasonable Grounds to Believe Offences have been Committed' and under the 'Genesis' heading."
In a case that pits the presumption of innocence against the principle of an open court and the freedom of the press, Park argued that the applicant had not provided sufficient grounds to have their identity concealed.
"The public has a significant interest in having access to the name, the identifying information, the alleged conduct of 'X,' in order to scrutinize the grounds for the belief that offences have been committed, as sworn by the commissioner's representative," she said.
Park also pushed back against the applicant's counsel's suggestion that his client would not be able to defend themselves against allegations of wrongdoing and potential public blowback.