Case Report – ABQB says media has no right of access to exhibits at trial

On September 23rd, the Alberta Court of Queen’s Bench denied a mid-trial application made by the CBC for access to an audiotape played in open court. Madam Justice Moen engaged in considerable analysis of the applicable jurisprudence and held:

  • The open courts principle gives the public and the media a right to attend in open court and to report and publish widely what they heard and saw. Any limits on this right must be subject to the Dagenais/Mentuck test.  
  • The open courts principle does not, however, give the public and the media a right to receive copies of evidence.  Dagenais/Mentuck does not apply.
  • Mid-trial applications in criminal jury trials will generally work an unfairness on the parties and interfere with the trial process. Hence, they should only be entertained in “special circumstances.”
  • The onus in applications for access to exhibits should be on the media, who should be required give notice to all persons that may be directly affected by the broadcast of the recording and show that “extraordinary circumstances” weigh in favor of access.  
  • In considering applications for access to exhibits, the Court should consider the property and privacy interests of third parties.

This decision comes shortly after the Court launched a new Audio Recording Policy, which allows accredited members of the media to record proceedings if they provide a signed undertaking to use the recording for verification purposes only.

Case Report – Manitoba CA denies access to child and family services records

On July 25th, the Manitoba Court of Appeal held that the media ought not to be allowed to publish information in records protected under child and family services legislation that were tendered in a public inquest into the death of a 14-year-old child.

The decision deals with the interaction between the prohibition against disclosure of certain records in section 76(3) of the Manitoba Child and Family Services Act and the open inquest presumption embedded in section 31(1) the Manitoba Fatality Inquiries Act.  

The Court held that the CFSA does not strip a judge holding an inquisition from exercising a discretion to permit publication of the protected records but also held that section 31(1) of the FIA does not mean that protected records that are filed as exhibits in an open inquest are automatically “public” in the sense they are open to all use.  In the circumstances, and in applying the Dagenais/Mentuck test, the Court held the records should remain protected.  It endorsed a statement by the inquest judge which stated, “confidentiality of disclosure [sic] used to assist child and family in abusive and neglectful situation” is a social value of “superordinate importance” to freedom of expression and freedom of the press.

Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2008 MBCA 94.

OBA Eye on Privacy Published

The OBA has published its privacy law section newsletter – Eye on Privacy.  I wrote a short article called “Recent Cases Illustrate the Polarity of Privacy Rules for Litigants.” It questions whether the policy of absolute openness regarding filed discovery transcripts conflicts with the policy underlying the deemed or implied undertaking rule by juxtaposing the recent Juman v. Doucette and Moore v. Bertuzzi cases. Here’s a link, but it might not be live for long because the OBA password protects archived editions of its newsletters.  Check it out now, and please consider becoming a member!

Case Report – OCA outlines procedure on an application to quash a sealing order

In a decision issued yesterday, the Ontario Court of Appeal declined to quash sealing orders issued in respect of search warrant materials, in part because the court record was not suitable for appellate review. The outcome is largely fact-driven, but the Court did explain in general terms how procedure on application to quash a sealing order should be managed to ensure a full and fair hearing and a court record that supports appellate review. It said that, in general:

  • the Crown should prepare a redacted version of the materials
  • the Crown should prepare a page-by-page index of the materials redacted in tabular form, with a general description of each portion that has been redacted and the grounds for its redaction
  • the Crown should provide the redacted materials and the index to applicants and deal with any conditions or restrictions on this disclosure by way of preliminary motion if necessary
  • the Crown should provide a highlighted (rather than redacted) version of the materials to the court to facilitate review
  • the judge should consider each claim separately and use the index to provide an organized set of reasons
  • if it is clear the judge’s reasons will reveal information to be sealed, he or she should consider preparing and releasing a redacted version of the reasons and consider who will receive the unredacted version on what terms

The Court said this process, and in particular the requirement on the Crown to produce a index with its grounds, “reflects the presumption that once a search warrant has been executed, the warrant and the information upon which it is based must be available to the public unless it is demonstrated that the ends of justice would be subverted by the disclosure of the information.”

R. v. Canadian Broadcasting Corporation, 2008 ONCA 397.

Case Report – SCC says informer privilege absolute

In a judgment released October 11th, the Supreme Court of Canada weighed the interest protected by the informer privilege against the interest in open courts. An 8 – 1 majority held that informer privilege is an absolute bar on the disclosure of an informer’s identity subject only to the innocence at stake exception.

The majority strongly affirmed the mandatory character of the informer privilege. Writing for the majority, Bastarache J. said:

The informer privilege rule is mandatory (subject only to the “innocence at stake” exception). To permit trial judges wide discretion in determining whether to protect informer privilege would undermine the purposes of the rule. Part of the rationale for a mandatory informer privilege rule is that it encourages would-be informers to come forward and report on crimes, safe in the knowledge that their identity will be protected. A rule that gave trial judges the power to decide on an ad hoc basis whether to protect informer privilege would create a significant disincentive for would-be informers to come forward, thereby eviscerating the usefulness of informer privilege and dealing a great blow to police investigations.

Despite this forceful position, the majority did leave open the possibility that the rule might be the subject of a Charter challenge. It was disinclined, however, to embark on a constitutional analysis in the circumstances because the appeal was of a discretionary order.

The core of the majority judgement is directed at how the judiciary should operationalize the privilege, for even though the privilege must always be respected it is clear that a judge also has a duty to apply it in a manner that minimally impairs the open court principle. The majority recognized that meeting this duty can be challenging for judges because the parties will frequently consent to an in camera process.

In recommending a model process to assist judges in meeting this challenge, the majority held that:

  • a judge can appoint an amicus curiae for the limited purpose of addressing whether the evidence supports the conclusion that a person is a confidential informer
  • the media does not have standing to address this question
  • the media may have standing after the privilege has been established in a second hearing to address the issue of minimal intrusion
  • members of the media should be provided with notice rather than be hand picked
  • whether notice to the media is given is a matter of the judge’s discretion
  • the media should not be provided with identifying information and, more generally, should only be provided with information essential to making an argument

LeBel J. was the lone dissenter. Unlike the majority he framed the contest as between a constitutionally-protected principle (open courts) and a judge made rule that promotes the administration of justice (the informer privilege). He held that an absolute rule was not warranted because the privilege is not an end in and of itself. He also suggested that the majority should have embarked upon a constitutional analysis even though a Charter challenge to the common law rule was not formally made. Given the qualifier made by the majority, LeBel J. may some day get another chance to make his point.

Named Person v. Vancouver Sun, 2007 SCC 43.