Canadian Broadcasting Corporation v. Postmedia Inc., 2019 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 10 Date: January 25, 2019 Information: 90159984 Location: Melfort _____________________________________________________________________________ Between: Canadian Broadcasting Corporation and Postmedia Inc. - and - The Attorney General for Saskatchewan -and- Jaskirat Singh Sidhu S. Sinclai r for the Canadian Broadcasting Corporation and Postmedia Inc. K. Roy for the Attorney General for Saskatchewan G. Luther for Mr. Jaskirat Singh Sidhu

REASONS re APPLICATION TO PERMIT CAMERAS IN THE COURTROOM TO RECORD AND BROADCAST CERTAIN SEGMENTS OF THE SENTENCING HEARING I.J. CARDINAL, J. INTRODUCTION [ 1 ] On January 8, 2019, Mr. Jaskirat Singh Sidhu plead guilty to sixteen counts of dangerous driving causing death and thirteen counts of dangerous driving causing bodily harm contrary to the provisions of the Criminal Code . The circumstances giving rise to the charges occurred on April 6, 2018. [ 2 ] A sentencing hearing is scheduled to commence January 28, 2019, in Provincial Court in Melfort, Saskatchewan.

In addition to submissions by counsel for the Crown and Mr. Sidhu, a number of people will provide victim impact statements. [ 3 ] On January 17, 2019, counsel for the Canadian Broadcasting Corporation and Postmedia Inc. [Media] filed this application. Formal notice of the application was served on the Attorney General for Saskatchewan [Attorney General] and counsel for Mr. Sidhu. [ 4 ] The hearing of this application proceeded on Wednesday January 23, 2019. The Attorney General opposes this application. Mr. Sidhu takes no position.

STANDING [ 5 ] The Media are well-known, accredited media entities. [ 6 ] Neither the Attorney General, nor counsel for Mr. Sidhu objected to the Media being granted standing. I find the Media have a clear interest in the subject matter of the proceedings and recognize other courts have granted standing to media organizations to bring similar applications. I grant the Media standing to bring this application. NATURE OF THE REQUEST [ 7 ] The Media initially requested permission “to stream and record the sentencing hearing or portions thereof”.

While they wished to stream and record victim impact statements, this was to be only for those speakers who gave their written consent in advance. One victim’s family provided a signed document, included in the Media’s materials filed with the Court, indicating they were in favor of the court granting this application. [ 8 ] On January 21, 2019, the Media advised they had canvassed the families involved and found that most preferred not to be

videotaped reading their victim impact statements. However, as far as the Media were aware, the families did not appear to object to the balance of the application. As such, the Media has limited their application to videotape the submissions of counsel and/or the oral reading of the judgment. [ 9 ] The Media indicate that, in addition to serving notice on the Attorney General and counsel for Mr.

Sidhu, they notified the following of this application: Office of the Deputy Attorney General of Canada, Canadian Bar Association (Saskatchewan Branch), Saskatchewan Trial Lawyers Association Inc., Crown Counsel Attorneys’ Association, North East Regional Victim Services, and the Canadian Civil Liberties Association. [ 10 ] None of the above organizations filed a response with the Court, nor were they represented at the hearing. [ 11 ] This application does not challenge the constitutional validity of the current guidelines regulating the use of cameras in Saskatchewan courtrooms, or any provisions of the Criminal Code pertaining to publication bans or the Court’s jurisdiction.

The application is premised on the foundation that a court controls its own processes, including whether to allow cameras in the courtroom. POSITION OF THE PARTIES 1. The Media [ 12 ] The Media submit that given the high public interest in this proceeding locally, nationally and internationally, allowing the Media to stream, record and broadcast the submissions of counsel and the decision of the judge will further the “open court” principle and promote the administration of justice.

Many people cannot attend the proceedings in person, and given the use of technology by the public at large to obtain information, the Media argue that live streaming serves to facilitate public access to the court process and public engagement with the justice system. Further, given the unobtrusive manner in which the filming occurs, there will be no interference with the conduct of the hearing. 2.

The Attorney General [ 13 ] The Attorney General for Saskatchewan [Attorney General] opposes the application on the basis there is insufficient time to give the matter the considered and deliberate thought needed to canvas the issues raised. They argue applications of this nature should not be determined on an ad hoc or sudden basis given the grave significance of the broadcasting issue to the justice system, the victims, participants in the sentencing hearing and the public at large.

Live streaming of the sentencing process is an unprecedented step, which carries a host of unpredicted effects that may impact the process itself and those involved with it. Rather than supporting or enhancing the administration of justice, the Attorney General submits live streaming may serve to decrease public confidence in the judicial system. WHICH PARTY HAS THE ONUS? [ 14 ] The law is settled that the Canadian Charter of Rights and Freedoms does not guarantee the Media’s ability to record and broadcast court proceedings.

The Media recognize this in their brief of law at paragraph 20, but state the judge must consider the application of Charter principles in exercising discretion. They submit that whenever there is a discretionary action by a judge which may limit the freedom of expression by the press, the Dagenais/Mentuck test applies. This means the party resisting the application bears “the burden of displacing the general rule of openness”, as noted in R v Vader (13 September 2016) Edmonton, Action No 130781800Q1, Transcript of Proceedings (Alta QB) page 2 at lines 24-25.

[ 15 ] I have difficulty with the proposition that the onus rests on the party opposing the application. There is no publication ban in this case, nor is any party suggesting the Media be excluded from the courtroom. While there may be constitutional considerations, the Media has not launched a constitutional challenge involving any law, or policy.

What is at issue is whether the Court should create an exception to its stated, published policy, so as to allow cameras in the courtroom. [ 16 ] I agree with the Attorney General’s statement that the Media bears the onus of persuading the court to grant their application and that the Dagenais/Mentuck test does not apply. ANALYSIS [ 17 ] As noted in R v Stanley, 2018 SKQB 27 [ Stanley ], the media plays a vital role in disseminating information to the public concerning court processes.

Chief Justice Popescul held at paragraphs 50 -51: [50] The importance of the open court principle, freedom of expression and the Media’s ability to report on matters taking place in courts across this country cannot be understated. The open court principle ensures that our justice system functions not behind closed doors, but in the public eye whereby citizens can better understand the laws that govern our nation, the processes that enforce the law and comment on the same.

It is the essential role played by the media, facilitated through freedom of expression, which ensures Canadian citizens are able to see justice being done . . . [51] The court recognizes the pivotal role that the media plays in informing the public about what happens in courtrooms throughout the country. Courts are open to the public, albeit, relatively few members of the public have the time or inclination to observe court proceedings first-hand.

The media serves as the eyes and ears of the public, reporting to them matters of interest and concern. [ 18 ] In Stanley , Chief Justice Popescul gave a brief history of the evolution of cameras in courtrooms, including the gradual shift in policy by the Canadian Judicial Council [CJC] from barring cameras in any court to allowing cameras in some courts. At paragraph 55, he noted the CJC recommended in 2015 that “courts continue to reflect on ways to achieve a balance between open courts and preserving the integrity of the administration of justice.

Council recognizes that for some jurisdictions, this may mean allowing the presence of cameras, while for others these may be limited or prohibited completely.” Chief Justice Popescul found that while this is a non –binding recommendation, it should not be lightly disregarded as it was developed after considerable thought and reflection. [ 19 ] It is important to understand that, unlike the superior courts of criminal jurisdiction in Canada, the Provincial Court was created by statute and as such, has no inherent jurisdiction. However,

section 484 of the Criminal Code states: 484. Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof. [ 20 ] The authority of a court to control its own processes in the furtherance of the proper administration of justice is not a new concept. An aspect of a court’s power to control its own processes is the power to regulate the publicity associated with its proceedings.

Such power serves, among other things, to protect privacy interests, especially those of witnesses and victims. While a court has the power to make any order in relation to the publicity of its proceedings, such orders must take into account the facts, the common law, and be consistent with constitutional requirements. ( R v Pilarinos , 2001 BCSC 1332 at paras 28-31 , 158 CCC (3d) 1 [ Pilarinos ]). [ 21 ] The parties recognize the Provincial Court has the authority and discretion to control its own processes, including whether

cameras are allowed in the courtroom, and to what extent they may be used. [ 22 ] To that end, the Provincial Court has enacted a number of policies to guide the use of technology in court by anyone, whether they are accredited media personnel, a lawyer, a witness, an accused, or a member of the public.

These include: - Saskatchewan Law Courts Electronic and Wireless Devices Policy - Saskatchewan Law Courts Twitter and Other Text-Based Forms of Media - Communication from Saskatchewan Courtrooms Protocol - Public Access to Court Records in Saskatchewan: Guidelines for the Media - Practice Directive XII: Discretionary Orders Restricting Media Reporting or Public Access [ 23 ] The Saskatchewan Court of Appeal, has specific policy regarding cameras in the courtroom that has been in effect since June 2, 2017.

Accredited media outlets have been allowed to live stream recordings of appeals involving criminal matters, such as was done in the case of R v Hales , 2015 SKCA 124 and in the case of R v Woods (25 September 2018) Regina, CACR 2445 (Sask CA). [ 24 ] To date, no media outlet has been allowed to live stream, record or broadcast any criminal trial, sentencing or other proceeding (other than a ceremonial swearing-in of a judge or justice) in Provincial Court or the Court of Queen’s Bench in Saskatchewan.

I know of no decisions from either level of court on such issues, nor have counsel for the parties brought any to my attention. [ 25 ] I recognize the Media gave notice to other organizations of this application, such that those organizations had the opportunity to seek formal intervener status and provide evidence, insights, and legal arguments if they so chose.

However, perhaps due to the short time between the notice and the date of this hearing, none responded. [ 26 ] I note the Media reduced the scope of their application once they determined that most victims did not want to be recorded while presenting their victim impact statements in open court.

While this helped to narrow the issue of what would be live streamed, I am concerned about the lack of information as to how live streaming the proceedings can affect the administration of justice, victims, court officials, counsel for the parties, the accused and the public in attendance. [ 27 ] Unlike the Justice who heard the application in Pilarinos , I do not have the assistance of an amicus curiae .

I also do not have any representations from those organizations who may have an interest in supporting or opposing cameras in Saskatchewan courtrooms, such as the Canadian Bar Association (Saskatchewan Branch), associations representing criminal trial lawyers, Crown attorneys, sheriffs, court staff, victims or the public. [ 28 ] I find that there is neither sufficient time nor factual background to make a considered decision concerning the live streaming, recording, or broadcasting of any part of the proceedings concerning Mr.

Sidhu. [ 29 ] I agree with the Attorney General and Chief Justice Popescul in Stanley that such decisions ought not to be undertaken on an ad hoc basis or sudden manner. They require consideration by the judiciary as a whole. There are a multitude of factors that must be considered before such an important decision can be made – one that can significantly impact the administration of justice and affect the privacy rights of a large group of people. [ 30 ] Neither is this the time to make such a ground-breaking decision. The sentencing hearing is to commence in three days.

No fault lies with the Media as to the timing of this application. They notified the Court and the parties as quickly as possible, given that the guilty pleas were entered on January 8, 2019 and the sentencing hearing set to commence three weeks later on January 28, 2019. [ 31 ] It is important to note the Media is not foreclosed from reporting on the proceedings as they would usually do, and have been

doing, since these proceedings commenced. [ 32 ] The Court Manager has arranged for a large, dedicated room for the Media where they will be able to work and conduct interviews.

This is located in the Kerry Vickar Centre where the proceedings are to be held, and allows easy access to the courtroom. [ 33 ] Reserved seating will be available in the body of the court for the Media. [ 34 ] While the Media will not be allowed to live stream the proceedings, those Media with Ministry-issued media identification will be allowed to use their electronic devices during the proceedings as outlined in the Saskatchewan Law Courts policies. They will be able to text and tweet during the proceedings.

Further, they will be able to audio record the proceedings to ensure accuracy in their notes, but they are not allowed to broadcast those recordings. [ 35 ] The Communications Director for the court, Dawn Blaus, will be available to assist the Media throughout the proceedings to ensure they are able to carry out their duties in reporting on this matter.

DECISION [ 36 ] Having heard argument by the parties, and having reviewed the materials, I find the Media has not convinced me to exercise my discretion to allow cameras in the courtroom to stream, record, and broadcast any part of these proceedings. [ 37 ] I dismiss this application. [ 38 ] I thank counsel for their able submissions and excellent briefs of law. ______________________________ I.J. Cardinal, J.