Case Report – Ontario Court of Appeal grants media broad access to video evidence

On November 1st, the Ontario Court of Appeal amended an order to give the media greater access to video evidence filed as exhibits in a preliminary inquiry.

The Crown charged four correctional officers with criminal negligence causing death after a prisoner died in custody. The Crown dropped the charges mid-way through the preliminary inquiry and the CBC then sought access to video and audio recordings filed as exhibits. The Court ultimately gave the CBC access, but held that it was only entitled to view and copy portions of video played in court and held that it could view but not copy the portion of the video that was played showing the prisoner’s death.

The Court first held that the Dagenais/Mentuck framework applies to a request for access to exhibits. Regarding the “played in court” limitation, the Court held there was no principled reason to deny access to the whole of an exhibit:

When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a part of the record in the case. While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whether judge or jury, is not limited to considering only those portions when deciding the case. A party who introduces an exhibit without restriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses to read out or play in open court.

Regarding the restriction on copying portions of video showing the inmate’s death, the Court held there was no evidence adduced to support the restriction.

R. v. Canadian Broadcasting Corporation, 2010 ONCA 726.

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