On April 6th, a majority of the British Columbia Court of Appeal held that a trial judge erred by denying the media post-trial access to a videotape exhibit adduced in a criminal trial. It ordered the tape to be released with measures to be taken to protect the identities of undercover RCMP officers and others who where shown on the tape.
The video showed a confession that the RCMP extracted by use of a scenario in which an accused is asked to confess past crimes to a “crime boss.” It showed three undercover officers and identified them by their real first names. The video was shown in open court subject to a publication ban that restricted identifying the officers. Shortly after the accused was convicted, the applicants requested access to the videotape and a transcript of the same, but the trial judge denied access on the strength of an affidavit that established a likelihood of harm to the undercover officers.
Madam Justice Newbury held that the trial judge erred by balancing the benefit to be gained by releasing a video in a substantially modified form (to protect the officers’ identities) against the safety and privacy interests at stake, in effect reading out the “necessity” requirement for restrictive order endorsed by the Supreme Court of Canada in Dagenais/Mentuck. Mr. Justice Hall concurred and Mr. Justice Chiasson dissented.
Note that Madam Justice Newbury justified a permanent restriction on the publication of the officers’ identities by reference to the “perpetual availability of information on the internet.”