Ont. C.A. Affirms Sealing Order to Protect Settlement Privilege Pending Agreement’s Approval

Today the Ontario Court of Appeal affirmed an order that sealed information about the amount of monies to be paid under a settlement agreement that was subject to court approval.

The order applied only to information about monies to be paid and not to the entire agreement. It also had a provision that allowed non-settling parties to obtain access to sealed information upon signing a confidentiality agreement to allow them to participate in the approval proceeding without encumbrance.

The Court held that the the order was based on the important interest in promoting settlement that is recognized by litigation privilege doctrine and that this interest was not outweighed by the interest in holding an open approval proceeding. It also held that the order was not over-broad.

Court approval of the proposed agreement was required under the Companies’ Creditors Arrangement Act. In making its finding, the Court said, “we leave to another day the issue of whether the privilege always attaches to other settlements requiring court approval, for example, class action settlements or infant settlements, where different values and considerations may apply.”

Hollinger Inc. (Re), 2011 ONCA 579.

Ontario Court of Appeal Relieves Media of Elevated Costs Order in Privacy Dispute

The Ontario Court of Appeal reduced a full indemnity costs award made against the Toronto Star on Tuesday. The motion judge made the extraordinary costs award against the Star because it was a “media giant” that had unsuccessfully taken on an individual who was trying to protect his personal privacy. The Court of Appeal held that the Star’s action in seeking to publish potentially embarrassing personal information about the individual was not conduct worthy of sanction even though it affirmed a finding that the the Star was motivated, in part, by its private interests. Though notable to readers of this blog, given how it was handled this case is arguably more about the exceptional character of elevated costs orders than about media rights and privacy.

Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555 (CanLII).

Ontario Court Says Open Court Principle Applies to Record Filed Before Charges Withdrawn

On July 18th the Ontario Court of Justice granted several media organizations access to a DVD that a criminal defendant filed before charges against her were withdrawn by the Crown. Justice Wake explained that the open court principle can apply to records that are not considered in a judicial proceeding if public access would support a greater understanding of the administration of justice.

The Crown charged the defendant with assault in relation to her interaction with the police. She received a “cellblock DVD” as part of the Crown disclosure, and filed it in furtherance of a stay application, though apparently it was not properly incorporated by reference into an affidavit. The Crown withdrew all charges after noting in open court that he had  reviewed evidence of the defendant’s treatment while in police cells.

Justice Wake’s analysis focused on whether the open court principle applied to the DVD. He first held that the irregularity in the manner of filing the DVD was too technical a basis for denying access. He then held that the open court principle applied to the DVD even though it was not considered in a judicial proceeding. He said:

Clearly Goudge, J.A. [in CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar)] drew a distinction between these two objectives and noted that in cases subsequent to MacIntyre “the court has made equally clear how important public access is to the second objective, the greater public understanding of the administration of justice”.

Relying on this analysis, I have concluded, with respect to the DVD, that public access to the workings of the courts and a greater understanding of the administration of justice does not necessarily require that the DVD have been considered in a judicial proceeding or have been subject to a judicial act. The DVD is directly related to a judicial proceeding. It was clearly the intention of Ms. Carr’s solicitor to have it filed for the use of the court and in support of her application to stay proceedings on the basis of what it disclosed. The fact that the Crown, Mr. Wadden, withdrew the charges after viewing what I can safely presume to have been a copy of the same DVD (otherwise the Ottawa Police Service would have produced one copy for the Crown and a different copy for disclosure purposes for the defence which would have been odd, ultimately discoverable and thus unlikely) makes the DVD a highly relevant item in these protracted proceedings.

Justice Wake stressed that he was not expanding the open court principle but, rather, applying it in novel circumstances. He stressed that the criminal proceeding had concluded, that DVD appeared to be “central” to the Crown’s decision to withdraw and that the proceeding (prior to withdrawal) had involved significant expenditure of court resources.

R. v. Global News, 2011 ONCJ 381.

Extension of Publication Ban Denied in Facebook Bullying Case

On Monday, the Nova Scotia Court of Appeal issued a procedural judgement in the A.B. v. Bragg Communications Inc. matter that may affect its path to the Supreme Court of Canada.

The matter is about a whether a 15-year-old girl who has taken issue with an individual who created a fake and allegedly defamatory Facebook profile in her name can sue anonymously. On March 4th, the Nova Scotia Court of Appeal denied her this right but continued the in-place publication ban to preserve the girl’s right of appeal. The ban was set to lapse at the end of yesterday, May 3rd.

In Monday’s judgement Justice Beveridge held that he had no jurisdiction to extend the publication ban because an application for leave had not yet been filed and he had no basis for finding that a miscarriage of justice would result from failing to grant the requested order. The girl argued that the potential appeal would be moot without the requested relief, but Justice Beveridge was doubtful, without evidence, that her identity would become known.

The media has now covered Monday’s ruling, apparently without naming the girl. I assume her identity is known amongst reporters who have covered this story, and speculate they are declining to publish it based on ethical considerations. If so, they should be applauded. The matter should be resolved on a less technical basis than represented by this latest judgement.

A.B. v. Bragg Communications Inc., 2011 NSCA 38 (CanLII).

Court says implied undertaking applies to Stinchcombe disclosure

On March 15th the British Columbia Supreme Court issued a significant decision on the implied undertaking. It held:

  • that Crown disclosure in criminal cases is subject to an implied undertaking not to use the disclosure for a collateral purpose;
  • that the undertaking is not spent when disclosure materials are filed in interim applications (though is spent in respect of materials admitted as evidence at trial); and
  • that a court has inherent jurisdiction to enforce the undertaking by ordering materials to be returned to the Crown.

The Court ordered the respondents and their defence counsel to return documents to the Crown given the large volume of documents disclosed, the high profile nature of the criminal case, the number of third party interests implicated by the disclosure and the degree to which third party interests were affected and the failure of the Crown and respondents to agree on a means of adequately protecting the undertaking.

R. v. Basi, 2011 BCSC 314 (CanLII).

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.

SCC Considers Media Access to the Courts

In Canada Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, the Supreme Court of Canada considered the extent to which the media should have unrestrained access to courthouses and whether the media could broadcast official court audio recordings of proceedings.

The genesis of the case was the passage of rules restricting the areas within certain Quebec courthouses in which reporters could conduct interviews or photograph participants.  While not completely barred from undertaking such activities, the reporters were prevented from doing so in areas in which they had previously operated.  Moreover, the rules prevented the broadcasting of audio recordings of proceedings, both the official recordings as well as recordings made by the reporters themselves.

The Court analysed the case as a question of a restriction on freedom of expression, of which the freedom of the press is an integral part.  Moreover, the Court recognized that media access to the courts is essential to a meaningful “open court” principle, as the vast majority of Canadians obtain their information about, and understanding of, court proceedings from media coverage.

Nevertheless, the Court found that the restrictions, while infringing freedom of expression, were justifiable under the Charter.  Notably, the Court found that it was reasonable to preserve a necessary level of decorum and serenity of hearings, which are essential to the proper administration of justice.  Apparently, the Court was concerned that the ability (and willingness) of witnesses to testify in proceedings was being compromised by the concern over being photographed or subjected to unsolicited questions and interviews.  It was also feared that the broadcast of audio recordings would have a similar detrimental effect, in addition to being overly invasive of the privacy of participants in the process.  Thus, the unrestricted media access was felt to be affecting the proceedings themselves, and potentially undermining trial fairness and the quest for truth.

Redaction preferred to sealing says court

The Federal Court of Appeal issued an illustrative order on January 6th in which it rejected a consent motion to seal documents that included the appellant’s SIN number. Instead, it ordered the respondent to redact and re-file. For some reason the Attorney-General filed the documents with SIN numbers for a second time on appeal after the appellant sought protection of the same information in the lower court hearing.

Grace Singer v. Canada (Attorney General), 2011 FCA 3 (CanLII).

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.

Case Report – SCC says no class privilege to protect journalists’ confidential sources in Quebec

On October 22nd, the Supreme Court of Canada unanimously rejected arguments that unique features of Quebec law justify the recognition of a class privilege to protect against the identification of journalists’ confidential sources. Rather, it held that journalists who claim confidential source privilege in a Quebec civil proceeding must meet the requirements of the Wigmore case-by-case test.

The Court summarized the proper approach as follows:

In summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, having regard to the particular demand for disclosure at issue. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.

The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means.  As discussed earlier, this list is not comprehensive. I will now consider whether a claim of privilege could be established in this case.

The Court also made a notable finding in support of journalists’ right to receive and publish information obtained from whistleblowers.

The Respondent argued in support of a publication ban issued after it complained about leaks from confidential settlement negotiations. The Court stressed the strong public interest maintaining the confidentiality of settlement negotiations, but also held that confidentiality obligations held by the parties to settlement discussions do not bind others, including journalists:

Moreover, there are sound policy reasons for not automatically subjecting journalists to the legal constraints and obligations imposed on their sources.  The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not providing the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources of information.

This reasoning led the Court to reject a rule that would “automatically prevent” journalists from publishing information obtained from a source who is in breach of his or her confidentiality obligations. Rather, the Court held that the Dagenais/Mentuck test for limiting freedom of expression and freedom of the press in relation to legal proceedings applies.

Globe and Mail v. Canada (Attorney General), 2010 SCC 41.