Canadian Broadcasting Corp. v. R. et al., (2010) 271 O.A.C. 7 (CA)

• Judge: Laskin, Sharpe and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 15, 2010
• Jurisdiction: Ontario
• Citations: (2010), 271 O.A.C. 7 (CA);2010 ONCA 726

CBC v. R. (2010), 271 O.A.C. 7 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. NO.003

Canadian Broadcasting Corporation (applicant/appellant in appeal/respondent in cross-appeal) v. Her Majesty the Queen (respondent/respondent in appeal) and Valentino Burnett, Karen Eves, Blaine Phibbs and Travis MacDonald (respondents/respondents in appeal) and Waterloo Regional Police Service and The Office of the Chief Coroner (respondents/respondents in appeal) and Correctional Service of Canada (respondent/respondent in appeal/appellant in cross-appeal)

(C51613; C51617; 2010 ONCA 726)

Indexed As: Canadian Broadcasting Corp. v. R. et al.

Ontario Court of Appeal

Laskin, Sharpe and Epstein, JJ.A.

November 1, 2010.

Summary:

Ashley Smith died in custody at the Grand Valley Institution for Women. Four correctional officers were charged with criminal negligence causing death. At their preliminary inquiry, the exhibits introduced into evidence included video recordings, including one that captured the actual circumstances of Smith's death. Part way through the preliminary inquiry, the Crown decided not to proceed with the charges and the four correctional officers were discharged. Subsequently a coroner's warrant was issued for the seizure of all documents related to Smith's death, including the preliminary inquiry exhibits. The Canadian Broadcasting Corporation (CBC) decided to produce an investigative documentary on Smith's life. CBC sought access to and copies of the preliminary inquiry exhibits. The preliminary inquiry judge refused the request on the ground that it should not interfere with the process of the coroner's inquest. CBC sought certiorari.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 86, granted certiorari and held that CBC was entitled to access the exhibits, but it limited CBC's rights in certain respects. In particular, CBC was entitled to view and copy only those portions of the video evidence that were actually played at the preliminary inquiry, and CBC was entitled to view but not copy the portion of the video that was played showing Smith's death. CBC appealed. The Correctional Services of Canada (CSC) cross-appealed.

The Ontario Court of Appeal allowed CBC's appeal and dismissed CSC's cross-appeal.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - Publication bans - Ashley Smith died in custody at the Grand Valley Institution for Women - Four correctional officers were charged with criminal negligence causing death - At their preliminary inquiry, the exhibits introduced into evidence included video recordings, including one that captured the actual circumstances of Smith's death - Part way through the preliminary inquiry, the Crown decided not to proceed with the charges and the four correctional officers were discharged - Subsequently, a coroner's warrant was issued for the seizure of all documents related to Smith's death, including the preliminary inquiry exhibits - The Canadian Broadcasting Corporation (CBC) produced an investigative documentary on Smith's life - CBC sought access to and copies of the preliminary inquiry exhibits - The preliminary inquiry judge refused on the ground that it should not interfere with the process of the coroner's inquest - CBC sought certiorari - The application judge granted certiorari and held that CBC was entitled to access the exhibits, but it limited CBC's rights in certain respects - In particular, CBC was entitled to view and copy only those portions of the video evidence that were actually played at the preliminary inquiry, and CBC was entitled to view but not copy the portion of the video that was played showing Smith's death - CBC appealed - The Correctional Services of Canada (CSC) cross-appealed - The Ontario Court of Appeal dismissed CSC's cross-appeal - If CBC was to be denied access, or to have its access limited, it was for the party seeking to assert or uphold that denial to demonstrate through convincing evidence that the two-part Dagenais/Mentuck test had been satisfied (1994, 2001, S.C.C.) - That had not been done here - The court allowed CBC's appeal - When an exhibit was introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit became a part of the record - The entire exhibit was evidence to be used in deciding the case and there was no principled reason to restrict access to only those portions played or read out in open court absent some countervailing reason sufficient to satisfy the Dagenais/Mentuck test - The application judge erred by refusing CBC the right to copy the portion of the video exhibit showing the actual circumstances of Smith's death - The application judge properly concluded that there was no risk to the administration of justice arising from the pending coroner's inquest that would justify restricting CBC's access to the exhibits - See paragraphs 40 to 54.

Civil Rights - Topic 2494

Freedom of the press - Limitations - Access to exhibits - The Ontario Court of Appeal held that the Dagenais/Mentuck test (1994, 2001, S.C.C.), as restated in Toronto Star Newspapers Ltd. v. Ontario (2005, S.C.C.) reflected the importance of the open court principle and the rights of freedom of expression and freedom of the press in relation to judicial proceedings - Under the test, "Restrictions on the open court principle and freedom of the press in relation to judicial proceedings can only be ordered where the party seeking such a restriction establishes through convincing evidence that: (a) 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 (b) the salutary effects of the restriction outweigh the deleterious effects on the rights and interest 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 of the administration of justice." - The court held that while the Dagenais/Mentuck test was developed in the context of publication bans, it also applied to media requests for access to exhibits - See paragraphs 17 to 25.

Civil Rights - Topic 2494

Freedom of the press - Limitations - Access to exhibits - The Ontario Court of Appeal rejected the submission that the open court principle and the media's s. 2(b) Charter rights were limited to attending court and observing and reporting on what actually transpired in the courtroom - Even before the Charter, access to exhibits that were used to make a judicial determination, even ones introduced in the course of pre-trial proceedings and not at trial, was a well-recognized aspect of the open court principle - Further, absent the proof of some countervailing interest sufficient to satisfy the Dagenais/Mentuck (1994, 2001, S.C.C.) test, the right to access exhibits included the right to make copies - See paragraphs 28 to 39.

Coroners - Topic 4047

Inquests and fatality inquiries - Evidence - Access to exhibits - [See Civil Rights - Topic 2486 ].

Courts - Topic 1404

Administration - General - Public access to judicial proceedings (incl. court records) - [See both Civil Rights - Topic 2494 ].

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, appld. [para. 9].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, appld. [para. 9].

Vickery v. Prothonotary, Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181, consd. [para. 17].

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 41, folld. [para. 20].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 21].

MacIntyre v. Nova Scotia (Attorney General), Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 22].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 23].

R. v. Fry (N.R.) - see Global BC et al. v. British Columbia et al.

Global BC et al. v. British Columbia et al. (2010), 286 B.C.A.C. 86; 484 W.A.C. 86; 254 C.C.C.(3d) 394 (C.A.), refd to. [para. 25].

R. v. Hogg - see CTV Television Inc. v. R. et al.

CTV Television Inc. v. R. et al. (2006), 208 Man.R.(2d) 244; 383 W.A.C. 244 (C.A.), refd to. [para. 25].

Episcopal Corp. of the Diocese of Alexandria-Cornwall v. Commissioner of the Cornwall Public Inquiry (2007), 219 O.A.C. 129; 278 D.L.R.(4th) 550 (C.A.), refd to. [para. 27].

CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) - see CTV Television Inc. v. Toronto Police Service et al.

CTV Television Inc. v. Toronto Police Service et al. (2002), 157 O.A.C. 238; 59 O.R.(3d) 18 (C.A.), refd to. [para. 29].

Lac d'Amiante du Québec ltée v. 2858-0702 Québec Inc. et al., [2001] 2 S.C.R. 743; 274 N.R. 201; 2001 SCC 51, refd to. [para. 30].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 33].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 33].

R. v. Pilarinos (D.) et al., [2001] B.C.T.C. 1332; 158 C.C.C.(3d) 1 (S.C.), dist. [para. 35].

Société Radio-Canada v. Quebec (Attorney General), 2008 QCCA 1910, dist. [para. 35].

R. v. Sylvester (D.), [2007] O.T.C. Uned. C34; 222 C.C.C.(3d) 106 (Sup. Ct.), dist. [para. 36].

R. v. Cairn-Duff (W.D.) (2008), 468 A.R. 117; 237 C.C.C.(3d) 181 (Q.B.), dist. [para. 36].

R. v. Dufour (S.) - see Société Radio-Canada v. Canada.

Société Radio-Canada v. Canada, 2008 CarswellQue 14365 (S.C.), leave to appeal granted (2009), 398 N.R. 383 (S.C.C.), dist. [para. 37].

R. v. Baltovich (R.) - see Canadian Broadcasting Corp. et al. v. R.

Canadian Broadcasting Corp. et al. v. R., [2008] O.T.C. Uned. B77; 232 C.C.C.(3d) 445 (Sup. Ct.), refd to. [para. 39].

R. v. Coté - see CanWest Media Works Inc. et al. v. R. et al.

CanWest Media Works Inc. et al. v. R. et al. (2007), 213 Man.R.(2d) 233 (Q.B.), refd to. [para. 39].

R. v. Hilderman (A.E.D.) et al. (2004), 395 A.R. 218 (Q.B.), refd to. [para. 39].

R. v. Black (R.P.), [2006] B.C.T.C. Uned. C79; 2006 BCSC 2040, refd to. [para. 39].

R. v. Arenburg (J.R.) (1997), 38 O.T.C. 91 (Gen. Div.), refd to. [para. 39].

R. v. Van Seters (1996), 31 O.R.(3d) 19 (Gen. Div.), refd to. [para. 39].

R. v. Stark (S.M.), [1995] B.C.T.C. Uned. 438 (S.C.), refd to. [para. 39].

French Estate et al. v. Ontario (Attorney General) et al. - see R. v. Bernardo (P.K.).

R. v. Bernardo (P.K.), [1995] O.J. No. 1472 (Gen. Div.), leave to appeal refused (1995), 191 N.R. 400; 88 O.A.C. 160 (S.C.C.), further appeal dismissed (1998), 108 O.A.C. 93; 122 C.C.C.(3d) 475 (C.A.), dist. [para. 48].

Counsel:

Patricia M. Latimer, for Canadian Broadcasting Corporation;

Joel Robichaud and Nancy Noble, for Correctional Service of Canada;

Lorenzo D. Policelli, for the Office of the Chief Coroner;

Gary Melanson, for Waterloo Regional Police Service.

This appeal was heard on September 15, 2010, by Laskin, Sharpe and Epstein, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., delivered the following decision for the court on November 1, 2010.