Case Report – BCCA orders media access to “crime boss” video post trial

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.”

Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 (CanLII).

Case Report – Ont. C.A. considers pre-trial publicity, jury contamination and the internet’s long memory

On January 26th, a 3-2 majority of the Ontario Court of Appeal held that the mandatory ban on publication of bail proceedings when requested by an accused violates the Charter-protected right to freedom of the press and is not saved by section 1. The majority read down the Criminal Code ban so that it applies only to charges that may be tried by a jury.

All members of the panel agreed that the mandatory ban breached freedom of the press. They also agreed on the purpose of the ban:  to ensure a fair trial by promoting expeditious bail hearings, avoiding unnecessary detention and allowing accused to retain scarce resources to defend their cases. The panel members differed, however, on how to apply the Charter‘s saving provision, section 1.

The majority, in judgement written by Madam Justice Feldman, held that the ban was over-broad in its application to charges that may not be tried by a jury. While finding that judges are “professional decision-makers” immune to the influence of pre-trial publication, the majority was not willing to invalidate the legislation as it applied against juries given the conflicting social science evidence on the impact of pre-trial publication on jury decisions. It held that the legislature is entitled to act upon a “reasoned apprehension of harm” in enacting laws based on such disputed domains.

The minority, in a judgement written by Mr. Justice Rosenberg, held that the conflicting evidence was a basis for striking down the ban in whole (with a 12 month suspension). The minority held that the salutary effects of the ban did not outweigh its deleterious effects because the causal connection between pre-trial publicity and jury contamination is weak and speculative.

Both the majority and minority made comments on the internet and the concept of practical obscurity.  The majority said:

It is also, in my view, no longer appropriate or realistic to rely on jurors’ faded memories of any pre-trial publicity by the time of the trial as the basis for confidence that they will not remember what they read or heard. Once something has been published, any juror need only “Google” the accused on the Internet to retrieve and review the entire story.

The minority made a similar note:

On the one hand, the salutory effect of any publication ban is undermined by the ease with which the ban can be circumvented.  On the other hand, because of the nature of the Internet, information first published at the time of the bail hearing is always accessible, right up to the time of the trial.  In other words, the court cannot always simply rely upon the fact that time will have passed from when the information was first published and that this passage of time will lessen any prejudicial effects of the information.

On the whole, perhaps all that can be said about the efficacy of publication bans in the era of mass communication and the Internet is that the salutory and deleterious effects are uncertain.

The concept of practical obscurity is one favoring the maintenance of an individual’s privacy interest despite the disclosure of information because the information can be hard to find or recall.

For more detailed commentary, see the Court’s summary here.

Toronto Star Newspapers v. Canada, 2009 ONCA 59.

Garbage case touches on idea of practical obscurity

It’s at the obscure end of what I’ll cover on this blog, but the Alberta Court of Appeal’s October 18th decision in R. v. Patrick contains an intriguing debate about an individual’s expectation of informational privacy in garbage.

Conrad J., in dissent, held that the Calgary Police violated an accused individual’s section 8 Charter rights by seizing information…

  • mixed in with garbage…
  • in opaque garbage bags…
  • inside garbage cans…
  • that were placed in a receptacle without a lid…
  • on the accused individual’s property.

Good use of bullet points? They’re a cute prelude to the point Conrad J. makes about the accused individual’s expectation of privacy:

In this case, the appellant put his garbage out for municipal collection. Municipalities have an interest in the orderly collection and disposal of garbage. Citizens are forbidden from burning garbage in their homes and citizens pay taxes for this municipal collection service. A homeowner, such as the appellant, places his garbage out for collection on the understanding that his garbage will be treated in the same manner as his neighbour’s garbage – it will be picked up by the garbage collectors and placed inside a garbage truck where it will be mixed with other garbage. At this point, the homeowner’s privacy in respect of much of the information regarding his lifestyle and personal choices will be completely preserved because it will have become anonymous. Any privacy in garbage that identifies the homeowner directly, such as a discarded bank statement, will also be preserved, although not so completely, by the fact it is now contained within a vast pile of collected detritus that makes it almost impossible to find.

The last sentence in the above quote is significant because it endorses the concept of inaccessibility or practical obscurity of information: information can still be private (or one’s interest in keeping something private can subsist) even if it is exposed to unauthorized or limited authorized access. This concept may become more relevant given the prevalence of electronically stored information. For starters, think of the lost backup tape that can’t easily be restored and how a valid claim that the information on the tape is inaccessible might weigh against either a civil or statutory duty to warn. Accessibility may also be relevant in some disputes about waiver of a confidentiality interest or legal privilege.

Ritter J.A.’s majority judgement leaves Conrad J.’s practical obscurity point intact. Instead, and apparently taking judicial notice that garbage often goes to sorting facilities, he states, “With respect, I disagree with this assessment as it does not equate with the myriad of ways in which garbage is handled in Canada.”