SCC Clarifies Test for Access to Trial Exhibits

Paul Broad posted earlier today about Friday’s Supreme Court of Canada judgment on media access to courts and its right to broadcast audio recordings of proceedings. Its companion decision – Canadian Broadcasting Corporation II– is much less principled, though does settle a debate about whether access to and use of exhibits is governed by the approach endorsed in Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671 (burden of justification on media) or in Dagenais/Mentuck, [1994] 3 S.C.R. 835 (burden of justification on person or persons opposing access).

In a judgement written by Dechamps J., the Court unanimously held that Dagenais/Mentuck governs with the factors identified in Vickery remaining relevant. The Ontario Court of Appeal took a similar position in a judgement last November.

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