Halifax Herald Ltd. v. Sparks, J.F.C., (1995) 142 N.S.R.(2d) 321 (SC)

• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 25, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 142 N.S.R.(2d) 321 (SC)

Halifax Herald v. Sparks, J.F.C. (1995), 142 N.S.R.(2d) 321 (SC);

    407 A.P.R. 321

MLB headnote and full text

The Halifax Herald Limited, a body corporate (plaintiff) v. Her Honour Judge Corrine E. Sparks, a Judge of the Family Court for the Province of Nova Scotia, sitting at Halifax in the County of Halifax (defendant)

(S.H. No. 112747)

Indexed As: Halifax Herald Ltd. v. Sparks, J.F.C.

Nova Scotia Supreme Court

Palmeter, A.C.J.

April 25, 1995.

Summary:

A young person was acquitted of two counts of assault and one count of resisting a police officer engaged in the execution of his duty. Subsequent to the trial, a journalist employed by the Halifax Herald applied for the release of the electronic tape recording of the proceedings.

The Nova Scotia Youth Court, in a deci­sion reported as R. v. R.D.S. (1994), 136 N.S.R.(2d) 299; 388 A.P.R. 299, dismissed the application. The Halifax Herald applied for certiorari to quash the decision and for an order of mandamus to allow access to the tape recording.

The Nova Scotia Supreme Court granted the application.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings - A young person was acquitted of assault and resisting a police officer - No publication ban (apart from identity) was in effect - Subsequent to the trial, a journalist employed by the Halifax Herald applied for the release of the elec­tronic tape recording of the proceedings - The Youth Court judge denied the appli­ca­tion - The Nova Scotia Supreme Court noted that the refusal amounted to a publi­cation ban where a reporter was not able to be present in court - The court held that the refusal violated freedom of expression and freedom of the press (Charter, s. 2(b)) where there were no "clear circumstances" warranting restriction of those rights - See paragraphs 38 to 50.

Criminal Law - Topic 7122

Extraordinary remedies - Certiorari - When available - [See Criminal Law - Topic 7124 ].

Criminal Law - Topic 7124

Extraordinary remedies - Certiorari - Powers of court on a certiorari application - A young person was acquitted of assault and resisting a police officer - Subsequent to the trial, a journalist employed by the Halifax Herald applied for the release of the electronic tape recording of the pro­ceedings - The Youth Court judge dis­missed the application - The Halifax Herald applied under Civil Procedure Rule 58 for certiorari to quash the decision and for an order of mandamus to allow access to the tape recording - The Nova Scotia Supreme Court granted the application - The court stated that under rule 58 it could "review the decision of the trial judge for both jurisdictional error and error of law on the face of the record" - See paragraph 12.

Criminal Law - Topic 7142

Extraordinary remedies - Mandamus - When available - [See Criminal Law - Topic 7124 ].

Criminal Law - Topic 8863

Young offenders - Court records - Record - What constitutes - A young person was acquitted of assault and resisting a police officer - Subsequent to the trial, a jour­nalist employed by the Halifax Herald applied for the release of the electronic tape recording of the proceedings - Coun­sel for the Herald argued that s. 44.1 of the Young Offenders Act was not appli­cable to the request and that leave of the court was not required because the tape recording was not part of the court record - The Youth Court judge concluded that the electronic tape recording was part of the youth court record - The Nova Scotia Supreme Court agreed - See paragraphs 18 to 27.

Criminal Law - Topic 8865

Young offenders - Court records - In­spection of - A young person was ac­quitted of assault and resisting a police officer - Subsequent to the trial, a jour­nalist applied for the release of the elec­tronic tape recording of the proceedings - The journalist claimed that the proceedings raised questions regarding the quality of police work involved, the possible fabrica­tion of evidence and possible police preju­dice against black youths - Defence coun­sel opposed the release of the tape - The Youth Court judge denied the request - The Nova Scotia Supreme Court ordered mandamus to permit access to the record where: the plaintiff had a valid interest in the tape recording, the denial was a vio­lation of freedom of expression and the press, and the Youth Court judge consid­ered extraneous matters in her decision.

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al. (1994), 175 N.R. 1; 76 O.A.C. 81 (S.C.C.), refd to. [para. 7 et seq.].

Halifax (County) v. Halifax (City) and Board of Commissioners of Public Util­ities (N.S.) (1984), 63 N.S.R.(2d) 393; 141 A.P.R. 393 (C.A.), refd to. [para. 12].

Bordon v. Halifax (City) (1991), 109 N.S.R.(2d) 261; 297 A.P.R. 261 (T.D.), refd to. [para. 12].

Nixon v. R. et al. (1992), 102 Nfld. & P.E.I.R. 310; 323 A.P.R. 310; 94 D.L.R.(4th) 464 (Nfld. C.A.), refd to. [para. 12].

Law Society of Newfoundland v. Nixon - see Nixon v. R. et al.

Spaans v. Halifax (County) et al. (1993), 121 N.S.R.(2d) 136; 335 A.P.R. 136 (S.C.), refd to. [para. 13].

Thomas v. Social Assistance Appeal Board (N.S.) (1992), 119 N.S.R.(2d) 159; 330 A.P.R. 159 (T.D.), refd to. [para. 13].

K.H. v. R. (1985), 19 C.C.C.(3d) 413 (Ont. Prov. Ct.), not folld. [para. 19].

D.C.F., Re (1986), 74 A.R. 342 (Prov. Ct.), folld. [paras. 31, 32, 33].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [paras. 35, 47, 48].

Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres (1991), 130 N.R. 321; 43 Q.A.C. 161 (S.C.C.), refd to. [para. 45].

C.B.C. v. Lessard - see Société Radio-Canada v. Lessard (juge), Québec (Procureur général) et autres.

Reference Re Section 12(1) of Juvenile Delinquents Act (Canada) (1983), 41 O.R.(2d) 113 (C.A.), refd to. [para. 46].

Southam Inc. v. R. (No. 1) - see Refer­ence Re Section 12(1) of Juvenile Delin­quents Act (Canada).

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 50]; sect. 2(b) [paras. 39, 49, 50].

Civil Procedure Rules (N.S.), rule 56.08(1) [para. 24]; rule 58 [para. 25]; rule 58.02(1) [para. 11]; rule 58.08(1), rule 58.08(2) [para. 25].

Constitutional Questions Act, R.S.N.S. 1989, c. 89, generally [para. 56].

Criminal Code, R.S.C. 1985, c. C-46, sect. 438 [para. 25].

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 38 [para. 43]; sect. 38(1) [para. 17]; sect. 39 [paras. 26, 41, 43]; sect. 39(1), sect. 40(1) [para. 17]; sect. 44.1 [para. 9 et seq.]; sect. 44.1(1) [paras. 17, 29]; sect. 44.1(1)(a), sect. 44.1(1)(b), sect. 44.1(1)(c), sect. 44.1(1)(k)(ii), sect. 44.1(4), sect. 46(1) [para. 17].

Authors and Works Noticed:

Black's Law Dictionary (4th Ed. 1968), [para. 23].

Dukelow, Daphne A. and Nuse, B., Dic­tionary of Canadian Law (1991), p. 889 [para. 21].

Yogis, J.A., Canadian Law Dictionary (2nd Ed. 1991), p. 186 [para. 22].

Counsel:

Virve Sandstrom, for the plaintiff;

Louise Walsh Poirier, for the Attorney General of Nova Scotia;

David G. Coles and Stephen T. McGrath, for the intervenor, Canadian Broadcast­ing Corporation;

Burnley A. Jones and Cindy Gorman (law student), for the intervenor, R.D.S.

This application was heard by Palmeter, A.C.J., of the Nova Scotia Supreme Court, who delivered oral decision on April 25, 1995, and the following written reasons on May 12, 1995.