R v M.M. 2017 NSPC 12
From Ad IDEM / CMLA
A Nova Scotia court has ordered that an un-redacted version of an ITO be made available to the media, subject to both statutorily and judicially imposed publication bans (YCJA).
Allegations arose after a student at a local high school in Nova Scotia advised the principal of students sharing nude photos of other students utilizing the software program, “Dropbox”. Bridgewater Police Services were contacted and an investigation commenced. Police obtained a Search Warrant, pursuant to Section 487 of the Criminal Code, to search a variety of electronic devices which had been handed over to, and then seized by, the police.
An ITO was sworn to by a police officer and then used to obtain the search warrant for the electronic devices held by the police. In addition, the police filed an affidavit asking that the contents of the ITO and search warrant be sealed. This request for a Sealing Order, as well as the Search Warrant, was granted. Subsequently, the accused in the matter were charged.
The CBC applied to have access to the sworn informations, together with a request to view the sealed search warrant and the accompanying ITO in the matter.
Subsequent to the application, the Crown, accused’s counsel and the applicant, adjourned to consider their respective positions which resulted in the Crown providing to the applicant a redacted ITO. The redacted portions obscured the names of the accused, alleged victims, serial numbers and the IP addresses of the electronic devises and a student’s name, who had reported to school authorities what was occurring but was not directly involved in the exchange of intimate photos.
After reviewing the redacted ITO, the CBC appeared back before the Court and requested that the ITO in its entirety be un-redacted and made available to the media. The Crown and accused opposed any further un-redactions of the ITO.
The records, in this case, are governed by the Youth Criminal Justice Act and as such are treated differently from those in adult court.
However, Justice Scovil states that:
...the burden of maintaining non-disclosure of material ordinarily accessible to the public and the medial remains on that party wishing to maintain non-disclosure. That burden does not shift at any point in the process.
He goes on to say:
...as to the sealing orders in matters in all courts. These orders are normally attached to the outside of the packet of sealed material and available to view by the public. Normally, in the administration of this Court, this is the case. If the sealing order itself in this matter was sealed, it would have likely been an administrative anomaly. What is clear is that any order directing the sealing of a court file should, itself, be available for public inspection (see, R. v. Toronto Star Newspapers Ltd.,  O.J. No. 5533 (Ont. Sup. Ct. Justice), see also, R. v. C.B.C., 2008 ONCA 397.)
Scovil J. also ruled that the process for vetting/disclosing a redacted ITO followed in R. v. Canadian Broadcasting Corporation, 2008 ONCA 397 and in Application by the Winnipeg Free Press, MBQB 43 provide useful guidance.
Scovil J. then went on to ask whether the Dagenais/Mentuck text applied to the YCJA and concluded that it did:
The conceptual paradigm of Courts that are open to the public and therefore the media in my opinion clearly applies to matters under the YCJA...with the proviso that any analysis be done “through the lens” of applicable Youth Criminal legislation”.
And, on the issue of whether the principles that were important in the formulation of the test in Dagenais/Mentuck are equally meaningful in an analysis of whether the media is a class of persons with a valid interest in a record under the YCJA, he states:
That the media is such a class of persons with a valid interest under. S. 119 is clear from R. v. S. (R.D.),  N.S.J. No. 207 (N.S.S.C.). In addition, the role of the media in scrutinizing how the courts deal with youth is just as critical to the administration of justice as with adult matters. Here, I find the media is clearly a class of persons with a valid interest in the record sought.