R. v. Toronto Star, CBC, Sun Media

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June 29, 2005

In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.
Fish J.

A unanimous Supreme Court of Canada upheld the decision of the Ontario Court of Appeal in favour of the media's unsealing of a search warrant in respect of the premises of the Aylmer Meat Packing plant in southern Ontario. The search was conducted to investigate allegations that the plant was processing dead stock. In doing so, the court reaffirmed its decision in the MacIntyre case, and, as in the Vancouver Sun case, confirmed the applicability of the Dagenais/Mentuck test to all stages of court proceedings, even the investigative stage. The ruling was written by Fish J. on behalf of the entire court.

Sealing orders are here to stay, but the test for getting one is now clearer and slightly more difficult:

In Vancouver Sun, the Court recognized that the evidentiary burden on an application to hold an investigative hearing in camera cannot be subject to the same stringent standard as applications for a publication ban at trial:
Even though the evidence may reveal little more than reasonable expectations, this is often all that can be expected at that stage of the process and the presiding judge, applying the Dagenais/Mentuck test in a contextual manner, would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice.[para.43]
Similar considerations apply to other applications to limit openness at the investigative stage of the judicial process.

In the end, a resounding win, but a recipe for more media/police litigation.

See: Toronto Star Newspapers Ltd. v. Ontario

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