Case Report – BCCA rejects privacy claim by criminal defendants

On March 3rd, the British Columbia Court of Appeal directed that factums filed on a criminal appeal be provided to a non-party.

While the outcome is not surprising, this is a decision in which an appellant court comments on a criminal defendant’s right to privacy. Chief Justice Finch rejected an argument made by the defendants whose order of acquittal was under appeal. They argued that access should not be granted because the factums contained references to unproven allegations of fact. The Chief Justice responded as follows:

It is common ground among all counsel with knowledge of same, that there is nothing contained in any of the factums that was not said or disclosed in Provincial Court in proceedings that were open to the public. There was no order banning publication of any of the information or material at issue on the voir dire.

It necessarily follows in my view that there is no principled basis upon which disclosure of this information to a non-party could now be refused. Everything that is to be learned from reading the factums filed in Court is already in the public domain by reason of the proceedings in Provincial Court. It has not been suggested that publication of this information would in any way prejudice the fair trial interests of the respondents should the Crown’s appeal succeed. Whatever privacy interests or protection of innocence interests may be at risk have already been overtaken by the open proceedings in Provincial Court.

The matter was before the Court because a British Columbia Court of Appeal criminal practice directive limits routine access to factums and, instead, requires that a request be made to the Chief Justice.

R. v. Bacon, 2010 BCCA 102.

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