R. v. Magnotta (presence media) April 17 2014 QCCS
From Ad IDEM / CMLA
In this decision in the Luka Magnotta case, the court concludes that the open court principle does not apply to rogatory commissions conducted under S. 709 and ff. of the Criminal Code.
In February 2014 the Court appointed a Commissioner to take evidence of witnesses in France and Germany in May and June of 2014.
The media were seeking a variance in the terms and conditions of the Rogatory Commission in order to attend the taking of the evidence of witnesses in those countries.
The prosecution were seeking an order that the audio and/or video recording of witnesses' testimony taken in Germany not be recorded by the media when the evidence is presented during the trial and further, an order that the audio and/or video recordings of these testimony will not be published, broadcasted or transmitted in any way.
The specific issue in this case was whether the open court principle should be extended to the taking of evidence pursuant to s. 709 of the Criminal Code outside of Canada in order to allow media presence at the time of the taking of the evidence.
Justice Cournoyer states that "...the issue of the nature of the proceedings is to be resolved through an exercise in statutory interpretation and not by the Dagenais/Mentuck test."
The order to appoint a Commissioner triggered mutual legal assistance requests by Canada to both France and Germany pursuant to the relevant treaties signed with both countries.
Citing the SCC decision in R. v. Terry  Cournoyer J. concludes that Canada's sovereign authority ends with the sending of the mutual legal assistance request. And, that the Court may not issue an order with extraterritorial application.
Germany, pursuant to s. 13 of its Treaty with Canada, requested that the recording of the evidence taken on its territory be forbidden as well as an order that the audio and/or video support of the evidence taken shall not be published, broadcasted or transmitted in any way.
Cournoyer J. adds, however, "that the media are not restricted to report, publish or broadcasted the content, nature or substance of the evidence of the witnesses taken in Germany."