Vancouver Sun (Re)

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June 23, 2004 (2004 SCC 43)

Last year, a lawyer for the Vancouver Sun knocked on the door of a BC courtroom and was not let in. This ruling gives us more of the story, and the principles that govern this kind of proceeding.

Exactly one year ago, Justice Holmes released a synopsis of the issues before her in the in camera hearing, and her ruling. A day later, she denied the application by the Vancouver Sun to access the proceeding.

The Supreme Court of Canada granted leave to appeal both rulings. The ruling upholding the constitutionality of s.83.28 of the Criminal Code (Application under s. 83.28 of the Criminal Code (Re)) does so on the basis, in part, of the application of the open justice principle to the hearings contemplated by that section. The companion ruling that deals with openness, Vancouver Sun (Re), reaffirms the application of the Dagenais and Mentuck precedents in this new context: i.e. a judicial investigative hearing regarding a terrorism offence.

The majority held that determining whether to hold a hearing could be done in an ex parte proceeding. The constitutional challenge to the process, and the investigative hearing itself, however, has to be presumptively public, though investigative hearings may end up considerably less so.

40 If the existence of the order is made public, the issuing judge, acting under s. 83.28(5)(e), would determine, still under the guidance of the Dagenais/Mentuck test, whether any information ought to be withheld from the public. For example, even though there may be no reason to hide an order for a judicial investigative hearing in relation to an identified alleged terrorist act, it may not be appropriate to reveal the reasonable grounds upon which the police relied to obtain the order. Whether the name of the person who will be heard at the hearing needs to be kept confidential may largely dictate whether the time and place of the hearing will also be the subject of a non-disclosure order. Of course should the hearing proceed in a public forum, the Crown would be expected to request that parts of the hearing proceed in camera in light of the sensitive nature of the information sought.

41 It may very well be that by necessity large parts of judicial investigative hearings will be held in secret. It may also very well be that the very existence of these hearings will at times have to be kept secret. It is too early to determine, in reality, how many hearings will be resorted to and what form they will take. This is an entirely novel procedure, and this is the first case -- to our knowledge -- in which it has been used.

The majority held that the hearing in this case should have been held in public. It refused to rule on the desirability of media counsel and select members of their clients having preferred confidential access to assist in preparing argument. Additional comments on the problem with secrecy and on notice to the media will figure in future cases...

49 It is not necessary in this appeal, given our conclusion that the hearing should have been held in open court, to decide whether an appropriate condition under s. 83.28(5)(e) could include an order that counsel be present but be prohibited from disclosing to their clients the content of the information revealed in the hearing. It is difficult to anticipate all the difficulties that such an order may pose. In the same way, we would not endorse the suggestion made by the Vancouver Sun that some members of its Editorial Board be allowed to attend the hearings and have access to the materials but be subject to an undertaking of confidentiality. It is difficult again to understand how the public good is better served by the qualified participation of professionals who cannot discharge fully their publicly entrusted mandate. In any event, these issues can be left for another day, and should be debated amongst the professional bodies involved so that court imposed conditions can properly consider ethical standards and best practices in the professions involved.

50 Keeping in mind our statements about the novelty of this case, the present facts clearly illustrate the mischief that flows from a presumption of secrecy. Secrecy then becomes the norm, is applied across the board, and sealing orders follow as a matter of course.

51 When the Named Person indicated an intention to challenge the constitutionality of the order, the imperatives of the open court principle became even more compelling. The constitutional challenge, and as much of the information about the case as could be revealed without jeopardizing the investigation, should have been made public, subject, if need be, to a total or partial publication ban. When that matter resumed before Holmes J., it became apparent that the existence of a judicial investigative hearing related to the Air India case was already known to counsel for Mr. Malik and Mr. Bagri and later to the Vancouver Sun.

52 The unfolding of events in this case also illustrates how antithetical to judicial process secret court hearings are. Courthouses are public places. In the course of a public hearing a judge may order that part of the proceedings be held in camera, thus excluding the public for from that part of the hearing. But, of course, in such a case, the fact that an in camera hearing is taking place, as well as the overall context in which it was ordered, are in the public domain, subject to challenge, inter alia by the Press and to comments by interested parties and by the public. Whether better notice should be given to the Press, or to other possibly interested parties, of proceedings that are held in camera or that are subject to a publication ban is beyond the scope of the issues raised on this appeal but we again suggest serious consideration should be given to this matter by the legal profession, the media, and the courts.

The conclusion overall favoured the media in the case, and required future judges to consider the media at every stage of the process:

56 It is therefore clear that the constitutional challenge here should not have been conducted in camera. We would add that there would have been no need to give the Vancouver Sun (through some members of its editorial board or otherwise) preferential and confidential access to secret information in this case if much of the constitutional challenge had been conducted in open court, along the lines of the process followed in this court, with the helpful cooperation of all parties. Much of the constitutional case can be properly argued without the details of the information submitted to the application judge being revealed.

IV. Disposition

57 We would therefore order that:

The appeal be allowed in part and that the order made by Holmes J. be varied.

That the name of the Named Person be made public.

That the proposed judicial investigative hearing be held in public, subject to any order of the presiding judge that the public be excluded and/or that a publication ban be put in place regarding aspects of the anticipated evidence to be given by the Named Person.

58 In any event, we would also order that the investigative judge review the continuing need for any secrecy at the end of the investigative hearing and release publicly any part of the information gathered at the hearing that can be made public without unduly jeopardizing the interests of the Named Person, of third parties, or of the investigation: Criminal Code, s. 83.28(5)(e). Even in cases where the very existence of an investigative hearing would have been the subject of a sealing order, the investigative judge should put in place, at the end of the hearing, a mechanism whereby its existence, and as much as possible of its content, should be publicly released.

See Vancouver Sun (Re)

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