PUBLICATION BANS AND OTHER ORDERS LIMITING ACCESS TO COURTS

Webinar for Canadian Newspaper AssociationOctober 16, 2007

Presenters

Tony S.K. Wong, Partner Robert Koopmans, reporterBlake, Cassels & Graydon LLP r_koopmans@shaw.caCommerce Court West, 199 Bay Street Kamloops Daily NewsToronto, Ontario M5L 1A9 250-372-2331

Tel: 416.863.2180Fax: 416.863.2653Email: tony.wong@blakes.com

THE PRESUMPTION OF OPENNESS

• There is a common law and constitutional presumption of openness with respect to court proceedings.

• The presumption of openness includes the right to:

– Attend at court proceedings;– Report fairly and accurately on court proceedings;

and– To access exhibits filed in court proceedings.

• The presumption of openness prevails unless specifically limited by court order or by statute.

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LIMITING THE PRESUMPTION OF OPENNESS

How the Presumption of Openness Can Be Limited

– A publication ban – limits what a journalist can report about a court proceeding or exhibits filed.

– A sealing order – limits what documents or exhibits in a court file can be accessed by a journalist or a member of the public.

– An in-camera order/order to exclude the public – limits who can be present in the courtroom during all of or certain portions of a court proceeding.

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STATUTORY LIMITS ON THE PRESUMPTION OF OPENNESS

Examples

• A number of statutory limits on the presumption of openness exist.

• In most cases, these statutory limits apply automatically or are automatically available at the request of a particular party to the court proceedings.

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STATUTORY LIMITS ON THE PRESUMPTION OF OPENNESS

Type of Court Hearing Subject to Publication Ban and

What the Publication Ban Covers (cont’d)

Preliminary Hearings, s. 539 and 542 of Criminal Code

• Evidence taken at the preliminary hearing shall not be published.

• NOTE: There is a publication ban on any admission or confession made at preliminary and on the fact that an admission or confession was made at the preliminary hearing.

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STATUTORY LIMITS ON THE PRESUMPTION OF OPENNESS

Types of Court Hearings Subject to Publication Ban and

What the Publication Ban Covers

Bail Hearings, s. 517 of Criminal Code

• The evidence taken, the information given or the representations made.

• If there is a publication ban, you can report on the ultimate order at the bail hearing, i.e. accused released subject to these conditions.... However, you cannot report on the justice or judge’s reasons for the order.

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STATUTORY LIMITS ON THE PRESUMPTIONOF OPENNESS

Type of Court Hearing Subject to Publication Ban and What the Publication Ban Covers (cont’d)

Jury Trials, s. 648 of Criminal Code

• Any part of the jury trial that takes place in the absence of the jury is subject to a complete publication ban. This includes pre-trial motions heard by the trial judge before a jury is selected.

• NOTE: In a jury trial, whenever the court is conducting a voir dire or determining the admissibility of evidence, the s.648 ban applies

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STATUTORY LIMITS ON THE PRESUMPTIONOF OPENNESS

Sex Based Charges

• The identity of the complainant or witness or an any information that could identify the complainant or witness.

• The ban can be violated even if you do not specifically name the complainant or witness. So, if you say the complainant is the daughter of Mary Jones or lives at 123 Oak Street, this will likely breach the ban.

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STATUTORY LIMITS ON THE PRESUMPTIONOF OPENNESS

Trials

• The ban applies to evidence or submissions that allegedly prejudice fair trial interests, ongoing police investigations, the interests of “innocent persons” or the “proper administration of justice”

• There is no standard ban. You must review the order made by the trial judge in order to determine what is banned.

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STATUTORY LIMITS ON THE PRESUMPTIONOF OPENNESS

Wiretap Applications

• There is a publication ban on the contents of a communication, or the gist of the communication, that has been intercepted through wiretap.

• There is a publication ban on the fact that a person has been subject to a wiretap.

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STATUTORY LIMITS ON THE PRESUMPTIONOF OPENNESS

“Young persons”

• There is a publication ban on the identity of young persons “dealt with”, ie. charged under the Youth Criminal Justice Act, or any information that could identify him or her.

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LIMITING THE PRESUMPTION OF OPENNESS

The Test for Limiting the Presumption of Openness

• Absent statutory prohibition, the presumption of openness can only be limited by court order.

• A court order limiting openness must be justified by the party seeking the order, i.e. Crown or accused.

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LIMITING THE PRESUMPTION OF OPENNESS

• The test that must be satisfied by the party seeking to limit openness is referred to as the Dagenais/Mentuck test – based on the two Supreme Court of Canada decisions by the same name. This test applies to all limits on openness, be they publication bans, sealing order or in-camera orders.

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LIMITING THE PRESUMPTION OF OPENNESS

The Elements of the Dagenais/Mentuck Test

• Pursuant to the Dagenais/Mentuck test, the party seeking a court order to limit the presumption of openness must provide evidence and make submissions to satisfy the following test:

– such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

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LIMITING THE PRESUMPTION OF OPENNESS

The Elements of the Dagenais/Mentuck Test (cont’d)

− the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy to the administration of justice.

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LIMITING THE PRESUMPTION OF OPENNESS

The Elements of the Dagenais/Mentuck Test (cont’d)

The Nature of the Risk Required to Justify a Limit on Openness

• The risk to the proper administration of justice must be “serious” or “real and substantial”.

• The risk to the administration of justice must be well-grounded in the evidence.

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LIMITING THE PRESUMPTION OF OPENNESS

The Elements of the Dagenais/Mentuck Test (cont’d)

There must be no reasonable alternative to limiting openness

• Even if public access creates a “serious risk” or a real and substantial risk to the “proper administration of justice” an order limiting openness should only be issued if the court is satisfied that there are no reasonable alternatives to a limit on openness to prevent the risk.

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LIMITING THE PRESUMPTION OF OPENNESS

The Elements of the Dagenais/Mentuck Test (cont’d)

• Alternatives to a limit on openness include a strong instruction by the trial judge, expanded challenge for cause, a change of venue, an adjournment etc.

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LIMITING THE PRESUMPTION OF OPENNESS

The Elements of the Dagenais/Mentuck Test (cont’d)

Any Limit on the Presumption of Openness must be Narrowly Tailored

• Even if a limit on openness is justified, the limit must still be narrowly tailored to impair the right of the public to know no more than is necessary to prevent the serious risk to the proper administration of justice.

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LIMITING PRESUMPTION OF OPENNESS

The Elements of the Dagenais/Mentuck Test (cont’d)

• The party seeking the limit bears the burden of proving that the proposed limit is as limited (in scope, time, content, etc.) as possible.

• Further, if a publication ban is sufficient to prevent the “serious risk” to the proper administration of justice, then there should not be a sealing order or an order excluding the public from the courtroom.

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LIMITING THE PRESUMPTION OF OPENNESS

The benefit from the limit on openness must outweigh the harms resulting from such a limit

• There must be a proportionality between the salutary and deleterious effects of a limit on openness.

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

• Subject to orders to the contrary or specific statutory prohibition, you have the right to be in the courtroom and to see exhibits filed in court proceedings.

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

How to effectively object to discretionary orders limiting the presumption of openness:

• Voice an objection to the limit on the presumption of openness.

• Inquire as to whether Notice has been given to the media.

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

How to effectively object to discretionary orders limiting the presumption of openness:

• If no notice has been given, seeking adjournment (if practical) to allow notice to be given and to allow media to determine whether it wishes to intervene and oppose granting of order limiting openness

• Prepare “script” opposing limit on openness and have it ready if necessary

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

How to effectively object to discretionary orders limiting the presumption of openness:

• If you are required to make submissions, ensure that

the Court is aware of the Supreme Court of Canada’s decisions in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, [2001] 3 S.C.R. 442 and the test for limiting openness set out in those cases (see earlier).

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

Accessing Exhibits

• Best chance to look at exhibit is likely during break in trial or hearing. Ask the registrar.

• If the trial or hearing is at an end: Go to the court office holding records and request access. If access is denied, ask the basis for the denial. Register objection.

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

Accessing Exhibits

• Consider bringing application for access to exhibits.

• Ask the Crown or Defence counsel for copies of exhibits

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

Finding out if there is a limit:

• Determine if there are any limits on the presumption of openness before preparing report on court proceedings or court documents. Ask judge, crown, defence, court reporter or court staff for clarification if unsure if a limit has been imposed.

• Online sources of information available in certain provinces, i.e. in Nova Scotia, see www.courts.ns.ca

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PRACTICAL POINTS FOR JOURNALISTS COVERING COURTS

Finding out if there is a limit:

• Breach of a publication ban is an offence under Criminal Code and may expose reporter and paper to contempt proceedings.

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FINAL THOUGHTS …

• You have the right to be in the courtroom. Don’t let anyone deprive you of that right – at least without a fight.

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