Global BC et al. v. British Columbia et al., 2010 BCCA 169

• Judge: Newbury, Hall and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 25, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 169;(2010), 286 B.C.A.C. 86 (CA)

Global BC v. B.C. (2010), 286 B.C.A.C. 86 (CA);

    484 W.A.C. 86

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. AP.031

Global BC, a Division of Canwest Media Inc. and Canadian Broadcasting Corporation (appellants/applicants) v. Her Majesty the Queen, Nathan Richard Fry, and Undercover Officers A, B, C, D, E and F (respondents/respondents)

(CA036593; 2010 BCCA 169)

Indexed As: Global BC et al. v. British Columbia et al.

British Columbia Court of Appeal

Newbury, Hall and Chiasson, JJ.A.

April 6, 2010.

Summary:

Fry was convicted of first degree murder. He confessed to the crime to a "crime boss" in a police undercover operation involving a number of undercover police officers. The confession was recorded on videotape and an imperfect transcript of the recording was prepared. At trial, the videotape and the transcript were marked as exhibits 39 and 40 respectively. The identity of the undercover officers was ordered to be protected. With this limitation, the videotape was played and the transcript was made available to the jury. Subject to the restriction on identifying the officers, there was full media coverage of the trial. Neither the transcript nor the videotape was released to the media. The day after Fry's conviction, the applicants applied for an order that exhibits 39 and 40 be made available for review and duplication.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. D31, dismissed the application. The applicants appealed.

The British Columbia Court of Appeal, Chiasson, J.A., dissenting, allowed the appeal.

Civil Rights - Topic 1859.1

Freedom of speech or expression - Limitations on - Access to court documents - Fry was convicted of first degree murder - He confessed to the crime to a "crime boss" in a police undercover operation involving a number of undercover police officers - The confession was recorded on videotape and an imperfect transcript of the recording was prepared - At trial, the videotape and the transcript were marked as exhibits 39 and 40 - The identity of the undercover officers was ordered to be protected - With this limitation, the videotape was played and the transcript was made available to the jury - Subject to the restriction on identifying the officers, there was full media coverage of the trial - Neither the transcript nor the videotape was released to the media - The day after Fry's conviction, the applicants applied for an order that exhibits 39 and 40 be made available for review and duplication - The trial judge dismissed the application - The British Columbia Court of Appeal allowed the applicants' appeal - The trial judge erred in concluding that "anything to be gained by release of the exhibit in a greatly modified form" was substantially outweighed by the need to protect the safety and privacy interests of the undercover officers and the other individual implicated by Fry in his confession - The editing of the exhibits to the extent necessary to protect the identities of those persons would achieve the objectives the trial judge sought to achieve by denying the release of the exhibits to the applicants - The applicants had clearly raised their rights of free expression under the Charter and the Supreme Court of Canada had made it clear that the R. v. Mentuck (SCC 2001) test was to be applied "to all discretionary judicial orders limiting the openness of judicial proceedings" - It was not necessary to deny access to the two exhibits in order to prevent any serious risk to the proper administration of justice - With respect to the second branch of the test, the salutary effects of denying access did not outweigh the very strong presumption given by the Supreme Court of Canada to the right of the public to have access to information of this kind - This presumption was especially strong given that the information in this case had already been publicized in the course of the trial - The court imposed conditions to the release of the exhibits - See paragraphs 60 to 83.

Civil Rights - Topic 1859.2

Freedom of speech or expression - Limitations on - Publication bans - [See Civil Rights - Topic 1859.1 ].

Courts - Topic 1404

Administration - Public access to judicial proceedings (incl. court records) - [See Civil Rights - Topic 1859.1 ].

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [paras. 13, 65].

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 41, refd to. [paras. 13, 82].

R. v. Toronto Star Newspaper Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 41, refd to. [paras. 13, 65].

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; 64 C.C.C.(3d) 65, consd. [para. 24]; refd to. [para. 62].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 26].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 26].

R. v. Bruce Power Inc. et al. (2009), 254 O.A.C. 335; 245 C.C.C.(3d) 315; 2009 ONCA 573, refd to. [para. 26].

CTV Television Inc. et al. v. R. et al. (2006), 208 Man.R.(2d) 244; 383 W.A.C. 244; 214 C.C.C.(3d) 70; 2006 MBCA 132, consd. [para. 27].

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

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. 27].

R. v. Black (R.P.), [2006] B.C.T.C. Uned. C79; 2006 BCSC 2040, refd to. [paras. 45, 73].

R. v. Casement (B.R.) (2009), 330 Sask.R. 274; 2009 SKQB 105, refd to. [para. 62].

R. v. Cairn-Duff (W.D.) (2008), 468 A.R. 117 (Q.B.), refd to. [para. 63].

R. v. Unger (K.W.) and Houlahan (T.L.) (1993), 85 Man.R.(2d) 284; 41 W.A.C. 284; 83 C.C.C.(3d) 228 (C.A.), refd to. [para. 74].

R. v. Roberts (D.C.) (1997), 90 B.C.A.C. 213; 147 W.A.C. 213 (C.A.), refd to. [para. 74].

R. v. Osmar (T.) (2007), 220 O.A.C. 186; 217 C.C.C.(3d) 174 (C.A.), refd to. [para. 74].

Counsel:

D. Burnett, for the appellant;

G.H. Copley, Q.C., for the respondent, Her Majesty the Queen and Attorney General of British Columbia;

P. McMurray, for the respondent, N. Fry;

D. Strachan, K. Swift, for the respondents, Undercover Officers A-F.

This appeal was heard on January 25, 2010, at Vancouver, B.C., by Newbury, Hall and Chiasson, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on April 6, 2010, and included the following opinions:

Chiasson, J.A., dissenting - see paragraphs 1 to 59;

Newbury, J.A. - see paragraphs 60 to 80;

Hall, J.A., concurring - see paragraphs 81 to 83.