R. v. Global News, 2011 ONCJ 381

Her Majesty the Queen et al. v. Global News (a Division of Shaw Television Limited Partnership) et al. [Indexed as: R. v. Global News] 107 O.R. (3d) 492 2011 ONCJ 381 Ontario Court of Justice, Wake J.

July 19, 2011 Criminal law -- Open court principle -- Accused applying for stay of proceedings on basis that police violated her rights under s. 7 ofCharter -- Accused applying for production of records in possession of SIU -- Cellblock DVD showing accused's interactions with policeofficers were included in application record which was served and filed in support of third party records application -- DVD notbecoming exhibit as Crown withdrew charges before stay application was heard -- Open court principle applying to DVD -- Publicinterest outweighing any possible salutary effects of restriction on open court principle -- Media applicants granted access to DVD andbeing permitted to copy it.

D brought an application for a stay of proceedings, arguing that her rights under s. 7 of the Canadian Charter of Rights and Freedomswere infringed by police actions. She also brought an application for the production of all records in the possession of the SIU. Acellblock DVD showing D's interactions with police officers which was disclosed to the defence was included in the application recordserved and filed in support of the third party records application. The media applicants brought an application for an order authorizingaccess to, and copying of, the cellblock DVD.

The DVD never became an exhibit, as the Crown withdrew the charges before the Charterapplication was heard. The presiding judge determined that he was without jurisdiction to hear the media application. That decision wasoverturned in the Superior Court of Justice and the media application was remitted to the Court of Justice to be heard. Held, the application should be granted. The Rules of the Ontario Court of Justice in Criminal Proceedings, SI/97-133 were never intended to be applied rigidly. This applicationshould not turn on whether the DVD was "filed". [page493] The open court principle applied to the DVD.

The principle is not restricted to exhibits at trial or at the preliminary inquiry, itemsconsidered in a judicial proceeding and/or items which were subject to a judicial act such as a search warrant. The court had possessionand control of the DVD. The availability of a freedom of information application did not establish that an order restricting access to theDVD was necessary. The public interest in granting access to the DVD outweighed any salutary effects of a restriction on such access. APPLICATION for an order authorizing access to a DVD. Cases referred to Dagenais v.

Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045,25 W.C.B. (2d) 304; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76, 205 D.L.R. (4th) 512, 277 N.R. 160,[2002] 2 W.W.R. 409, J.E. 2001-2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d) 349, apld CTVTelevision Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar) (2002), (ON CA), 59 O.R. (3d) 18,[2002] O.J.

No. 1141, 157 O.A.C. 238, 163 C.C.C. (3d) 321, 17 C.P.C. (5th) 252, 5 C.R. (6th) 189, 112 A.C.W.S. (3d) 864, 53 W.C.B.(2d) 394 (C.A.); R. v. Bonds, [2010] O.J. No. 5034, 2010 ONCJ 561; R. v. Delay, [citation unknown]; R. v. Sarazin, [citation unknown],consd Other cases referred to Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19, [2011] S.C.J. No. 2, 2011SCC 2, 2011EXP-346, 411 N.R. 23, J.E. 2011-189, 264 C.C.C. (3d) 1, 328 D.L.R. (4th) 128; Canadian Broadcasting Corp. v. NewBrunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J.

No. 38, 139 D.L.R. (4th) 385, 203 N.R. 169,182 N.B.R. (2d) 81, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1, 39 C.R.R. (2d) 189, 66 A.C.W.S. (3d) 444, 32 W.C.B. (2d) 273; Hill v. Churchof Scientology of Toronto (1995), (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R.(4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189; Lac d'Amiante du Québec Ltée v. 2858-0702Québec Inc., [2001] 2 S.C.R. 743, [2001] S.C.J.

No. 49, 2001 SCC 51, 204 D.L.R. (4th) 331, 274 N.R. 201, J.E. 2001-1735, 14 C.P.C.(5th) 189, REJB 2001-25653, 108 A.C.W.S. (3d) 44; Nova Scotia (Attorney General) v. MacIntyre, (SCC), [1982] 1S.C.R. 175, [1982] S.C.J. No. 1, 132 D.L.R. (3d) 385, 40 N.R. 181, 49 N.S.R. (2d) 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193, 7 W.C.B.154, EYB 1982-149378; R. v. Blom (2002), (ON CA), 61 O.R. (3d) 51, [2002] O.J. No. 3199, 162 O.A.C. 238, 167C.C.C. (3d) 332, 6 C.R. (6th) 181, 96 C.R.R. (2d) 122, 55 W.C.B. (2d) 108 (C.A.); R. v. Canadian Broadcasting Corp. (2010), 102 O.R.(3d) 673, [2010] O.J.

No. 4615, 2010 ONCA 726, 221 C.R.R. (2d) 242, 271 O.A.C. 7, 262 C.C.C. (3d) 455, 327 D.L.R. (4th) 470; R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d)193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210, 14 W.C.B. (2d) 266; R. v. Tillotson, [2011] O.J. No. 2555,2011 ONSC 3390; Vickery v.

Nova Scotia Supreme Court (Prothonotary), (SCC), [1991] 1 S.C.R. 671, [1991] S.C.J.No. 23, 124 N.R. 95, J.E. 91-604, 104 N.S.R. (2d) 181, 64 C.C.C. (3d) 65, 12 W.C.B. (2d) 560 Statutes referred to Canadian Charter ofRights and Freedoms, ss. 2(b), 7 Criminal Code, R.S.C. 1985, c. C-46, s. 482(2) [as am.] Municipal Freedom of Information andProtection of Privacy Act, R.S.O. 1990, c. M.56 [as am.] [page494] Rules and regulations referred to Rules of the Ontario Court ofJustice in Criminal Proceedings, SI/97-133, rules 2, 2.02, 4.06(3) John Pearson, for respondent Her Majesty the Queen. Richard G.

Dearden, for applicants. Richard G. Dearden, for Ottawa Sun (intervenor).

Vince Westwick, for Ottawa Police Service (intervenor). WAKE J.: -- Overview [ 1 ] This is an application by Global News (a Division of Shaw Television Limited Partnership), the Ottawa Citizen (a Division of Postmedia Network Inc.), the Canadian Broadcasting Corporation and CTV Inc. (hereinafter referred to as the media applicants) for an order authorizing access to and copy of a cellblock DVD which is in the possession of the court. [ 2 ] The court came into the possession of this DVD in the following way. [ 3 ] On August 23, 2008, Roxanne Carr was arrested by members of the Ottawa Police Service.

During the course of her time in the cellblock, she alleged that she was mistreated by the cellblock officers. Although charged with assaulting a third party it is not disputed that, at some point, it was indicated to Ms.

Carr's counsel that the Crown would only proceed on the three charges relating to her interaction with the police following her initial arrest. [ 4 ] A notice of application for a stay of proceedings on the basis that her rights under s. 7 of the Canadian Charter of Rights and Freedoms had been violated by police actions was filed in the Ontario Court of Justice on January 11, 2011 by her counsel, Mark Ertel. [ 5 ] The Crown and the intervenor, the Ottawa Police Service, take the position that the cellblock DVD was not properly filed with the court. [ 6 ] The cellblock DVD was prepared by the Ottawa Police Service and delivered to the Crown who sought it to comply with its obligation to provide disclosure to the defence. [ 7 ] The DVD was turned over to Mr.

Ertel, subject to undertakings in the letters of conveyance to which Mr. Ertel was subject in terms of the use of the disclosure but in keeping with his client's right to make full answer and defence. [page495] [ 8 ] The stay application was eventually set for May 17, 2011. In the meantime, Mr. Ertel brought a second application for the production of all records in possession of the SIU returnable for April 13, 2011. The media applicants brought their application which was filed with the Ontario Court of Justice on March 24, 2011, also returnable for April 13, 2011.

In support of the third party records application, an application record was served on the Crown and filed in the Ontario Court of Justice on March 23, 2011. Included in the application record was the cellblock DVD at Tab 7. [ 9 ] On April 13, 2011, the Crown, Robert Wadden, appeared before the court and withdrew the charges against Roxanne Carr, at which time he stated the following for the record: The Crown has reviewed the application, it has reviewed all the evidence available to it in this case, including the evidence of Ms. Carr's time and treatment in police cells.

In light of all the circumstances, the Crown is of the view that there is no longer a reasonable prospect of conviction and therefore I would ask that the charges be marked withdrawn. [ 10 ] On the same occasion Mr.

Ertel, on behalf of his client, indicated to the court "that she is not opposed to the media having access to any of the materials that have been filed . . . in addition to the cellblock video which came from disclosure". [ 11 ] The presiding judge determined that he was without jurisdiction to hear the media application since the charge had been withdrawn. [ 12 ] The matter was taken to the Superior Court of Justice where Justice McLean disagreed and found that "there were instant applications that were brought before the court with respect to the information that was contained in the court file".

The application was remitted back to this court to be heard. Position of the Parties [ 13 ] Mr. Dearden, on behalf of the media applicants, submits that the essential issue in this application is who controls a record legitimately filed in an Ontario Court of Justice file in support of the stay application. [ 14 ] Mr. Pearson, on behalf of the Crown, states that to frame the issue in that way is a tautology and obscures the real issues in the application which are as follows: (

a) was the DVD "filed"; (

b) does the open court principle apply to the DVD; and (

c) would the purposes of the open court principle be served by extending the principle to the DVD. [page496] [ 15 ] Mr. Pearson suggests that the answer to these questions should be in the negative; however, he concedes that if the answer is in the affirmative then the Crown does not contest the relief being sought by the media applicants. [ 16 ] Mr.

Westwick, on behalf of the intervenor, the Ottawa Police Service, frames the issue as to whether the open court principle applies with respect to items that are not exhibits, have not been considered in a judicial proceeding or which have not been subject to a judicial act. [ 17 ] Unlike the Crown, Mr. Westwick is not prepared to concede the relief sought by the media if the open court principle is found to apply. He maintains that the release of material disclosed to the defence, but which are not exhibits nor considered by a judge, would amount to a serious risk to the administration of justice.

Analysis [ 18 ] First I will deal with the issues as framed by the Crown concerning the applicability of the open court principle to the circumstances of this application and then, if necessary, I will deal with the intervenor's position that the release of the DVD to the media applicants would amount to a serious risk to the administration of justice. The open court principle

[ 19 ] The open court principle was developed at common law. In Nova Scotia (Attorney General) v. MacIntyre, [See Note 1 below] Dickson J. (as he then was) quoted [at p. 183 S.C.R.] from the English philosopher Jeremy Bentham who stated: "publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity." [ 20 ] The importance of the open court principle was recently stated by the Supreme Court of Canada in Canadian Broadcasting Corp. v.

Canada (Attorney General), [See Note 2 below] where Deschamps J. stated the following in the judgment of the court: The open court principle is of crucial importance in a democratic society. It ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them.

Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law. [page497] [ 21 ] To some extent, the open court principle has been constitutionalized in s. 2(

b) of the Charter guaranteeing the freedom of thought, belief, opinion and expression, including freedom of the press and other media communication. In fact, the Ontario Court of Appeal recently observed that the open court principle is "[n]ow recognized as a fundamental aspect of the rights guaranteed by s. 2(

b) of the Charter. See R. v. Canadian Broadcasting Corp. [See Note 3 below] [ 22 ] Nevertheless, Deschamps J. sees the freedom of the press as distinct from the open court principle. At para. 2, she stated: Freedom of the press has always been an embodiment of freedom of expression. It is also the main vehicle for informing the public about court proceedings. In this sense, freedom of the press is essential to the open court principle. Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair. The media applicants relied on both the open court principle as well as s. 2(

b) of the Charter as the grounds in support of their application. Was the DVD "filed"? [ 23 ] Mr. Pearson submits that the status of the DVD is governed by the Rules of the Ontario Court of Justice in Criminal Proceedings, SI/97-133 and specifically rule 4.06(3) , which provides that an exhibit is only "filed" with the court if it is referred to in a filed affidavit and marked as an exhibit by the person taking the affidavit.

If an exhibit is referred to in an affidavit as being produced and shown to the deponent, (b) . . . it shall not be attached to the affidavit or filed with it, but shall be left with the clerk for the use of the court, and on the disposition of the matter in respect of which the [affidavit] was filed . . . the exhibit shall be returned to [counsel or] the party who filed the affidavit[.] [ 24 ] Mr. Pearson correctly notes that the DVD here was not referred to in the affidavit on the stay application or marked as an exhibit by the person who took the affidavit of Ms. Carr. Moreover, Ms.

Carr's affidavit does not refer to the DVD as something produced and shown to her. [ 25 ] Mr. Pearson submits that it cannot be said, as the media applicants argue, that the DVD was "legitimately filed" since there was no basis for it being in the court file. [page498] [ 26 ] Mr. Pearson submits the following, as set out in para. 10 of his factum: The DVD does not have the status of an exhibit. It was not an exhibit to the affidavit of Ms. Carr. And it was not tendered and admitted in judicial proceedings as an exhibit.

If it had been referred to and identified in an affidavit, it could only be left with the clerk for the "use of the court" and for no other purpose. Since there was no basis for the DVD being in the court file, it was not a "court record". It remained under the control of counsel who requested it be placed with the court file. [ 27 ] In 1997, the judges of our court, and I was one of them, gathered in Sudbury to adopt the Rules of the Ontario Court of Justice in Criminal Proceedings . The Lieutenant Governor-in- Council approved the Rules under s. 482(2) of the Criminal Code, R.S.C. 1985, c.

C-46 and they came into force on January 1, 1998. [ 28 ] Prior to that date, different practices in different regions and court locations had sprung up governing, inter alia, the requirements for service and filing of documents so that an application could be heard.

The Rules were intended to provide some uniformity in these practices and an assurance to counsel, wherever they might practice in Ontario, that if these Rules were complied with, counsel could be assured that their application would be heard in any court location in this province. [ 29 ] The Rules were never intended to be applied rigidly to prevent the hearing of matters on their merits unless a countervailing legitimate interest, such as the integrity of trial scheduling and trial management, was adjudged, in the circumstances of the case, to be of overriding importance. [ 30 ] For that reason, Rule 2 was adopted and enacted, which states: 2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court, (

a) may grant all necessary amendments or other relief in accordance with rule 2.01, on such terms as are just, to secure the just determination of the real matters in dispute; or (

b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. 2.02 The court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time. [ 31 ] The Ontario Court of Appeal has disapproved of the rigid applications of these Rules, while confirming the discretion [page499] of

judges to apply them, in R. v. Blom. [See Note 4 below] The purpose of the Rules was stated to be the just and expeditious resolution of cases. Sharpe J.A., on behalf of the court, stated, at para. 21, the following: Rule 30, requiring notice of Charter applications to exclude evidence, is a procedural rule. Its purpose is to facilitate the fair and expeditious determination of Charter issues by ensuring that neither party is taken by surprise at trial and that both parties have adequate notice of the factual and legal basis for the Charter application.

As has been frequently observed, procedural rules are servants not masters. They are servants to the cause of just and expedient resolution of disputes. Procedural rules are important, but they are not to be rigidly applied without regard to their underlying purpose. This is made clear by the Rules themselves. Rule 1.04 requires that Rule 30 "be liberally construed to ensure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay".

Rule 2.01 provides that failure to comply with Rule 30 is a mere "irregularity" and that even where a rule has not been followed, to the extent possible, steps should be taken "to secure the just determination of the real matters in dispute." [ 32 ] Blom has been applied in many subsequent cases, most recently by R.B. Reid J. in R. v. Tillotson. [See Note 5 below] [ 33 ] This same approach to technical requirements was taken by Cory J. in Hill v.

Church of Scientology of Toronto. [See Note 6 below] The issue in that case, a libel and slander case, was whether the recitation of the contents of a notice of motion by counsel took place on an occasion of qualified privilege since the notice of motion was not filed with the court until the following day. [ 34 ] Cory J. stated, at para. 154, the following: The public interest in documents filed with the court is too important to be defeated by the kind of technicality which arose in this case.

The record demonstrates that, prior to holding the press conference, Morris Manning had every intention of initiating the contempt action in accordance with the prevailing rules, and had given instructions to this effect. In fact, the proper documents were served and filed the very next morning.

The fact that, by some misadventure, the strict procedural requirement of filing the documents had not been fulfilled at the time of the press conference should not defeat the qualified privilege which attached to this occasion. [ 35 ] Similarly, in the case before me, I do not think that the consideration of the open court principle should be prevented simply because the affidavit failed to make specific reference to the DVD in the manner contemplated by the Rules. It is clear [page500] that references to what Ms.

Carr referred to on the "camera" are the images that must have been shown to her from the DVD her counsel had secured from the Crown and the Ottawa Police Service by way of disclosure. Any irregularity in the filing of the DVD should be governed by Rule 2 to dispense with compliance. Does the open court principle apply to the DVD? [ 36 ] It is conceded by both the Crown and the intervenor that the open court principle and the media's right of access to judicial proceedings must extend to anything that has been made part of the record. Mr.

Pearson acknowledges that this includes access to exhibits used to make judicial determinations, including exhibits admitted into evidence in the course of ex parte, open trial and completed judicial proceedings. He argues, however, that the exhibit does not become part of the record until after it is introduced into evidence, at which point it becomes subject to the open court principle. [ 37 ] Both the Crown and the intervenor argue that the open court principle does not apply to the DVD since it was never tendered as an exhibit in court, played no

part in ex parte or open judicial proceedings and had no role in judicial decision making. [ 38 ] The intervenor further submits that there are no reported cases in which the open court principle has been applied to items that are not exhibits nor to items that have not been considered in a judicial proceeding or to items which have not been subject to a judicial act. [ 39 ] Mr. Westwick argues that "maximum accountability and accessibility" with respect to judicial and quasi-judicial acts is the public policy justification for the open court principle (MacIntyre, supra, p. 184 S.C.R.; and R. v.

CBC, supra, at para. 22) and here there was no judicial act to trigger the open court principle. [ 40 ] I would disagree that the open court principle is necessarily confined to judicial acts. In CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar), [See Note 7 below] Goudge J.A. defined [at para. 13] the central issue in the appeal as "the extent of the court's power or jurisdiction over its own records.

To determine whether it extends to the circumstances of this case, it is important to remember that the court's jurisdiction over its own records is anchored in the vital public policy favouring public access to the workings of the courts" (emphasis added). [page501] [ 41 ] The use of the phrase "workings of the courts" suggests that something broader than judicial accountability alone is contemplated. [ 42 ] After reviewing MacIntyre, Goudge J.A. concluded [at para. 15] that "[o]f the two important objectives served by public access referred to in MacIntyre, the court in that case emphasized judicial accountability and the consequent public confidence that results from public access to the workings of the courts" (emphasis added). [ 43 ] Clearly Goudge J.A. drew a distinction [at para. 16] between these two objectives and noted that in cases subsequent to MacIntyre "the court has made equally clear how important public access is to the second objective, the greater public understanding of the administration of justice". [ 44 ] Relying on this analysis, I have concluded, with respect to the DVD, that public access to the workings of the courts and a greater understanding of the administration of justice does not necessarily require that the DVD have been considered in a judicial proceeding or have been subject to a judicial act.

The DVD is directly related to a judicial proceeding. It was clearly the intention of Ms. Carr's solicitor to have it filed for the use of the court and in support of her application to stay proceedings on the basis of what it disclosed. The fact that the Crown, Mr.

Wadden, withdrew the charges after viewing what I can safely presume to have been a copy of the same DVD (otherwise the Ottawa Police Service would have produced one copy for the Crown and a different copy for disclosure purposes for the defence which would have been odd, ultimately discoverable and thus unlikely) makes the DVD a highly relevant item in these protracted proceedings.

[45] These proceedings began on August 24, 2008, with the decision of members of the Ottawa Police Service to charge Roxanne Carrwith resisting arrest, assaulting a peace officer and wilfully damaging a police cruiser.

She was released on a promise to appear whichwas confirmed by a justice on September 8, 2008, and she was scheduled to appear before the court on September 12, 2008. [46] The matter then limped along for another 23 appearances (hardly a poster case for the Attorney General's laudable initiative ofJustice on Target) and then on the 25th appearance on a date set aside for an application for third party records and a month before thestay application and trial were to be commenced, the charges were withdrawn, almost three years after they were laid.

Anyone followingthe history of these proceedings would have to conclude that the cellblock DVD must have been [page502] central to the termination ofthese proceedings which had involved an inordinate number of court appearances and time. [47] In Canadian Broadcasting Corp. v.

New Brunswick (Attorney General), [See Note 8 below] La Forest J. stated that [at para. 25]: It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what istranspiring in the courts. [48] Clearly, the DVD filed, albeit irregularly, in this case had a lot to do with what transpired in court and undoubtedly it would havebecome an exhibit if the charges had not been withdrawn and the stay application had proceeded. [49] I accept Mr. Westwick's assessment of the case law which has heretofore applied the open court principle only to (

a) exhibits at trialor preliminary inquiry; (

b) where items were considered in a judicial proceeding; and/ or (

c) where an item was subject to a judicial actsuch as a search warrant. [50] For that reason, some passages in the case law would seem to suggest that unless the item in question fits into one of thosecategories the open court principle does not apply.

For instance, in Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., [See Note9 below] the Supreme Court of Canada defined the media's access to court records, exhibits and documents filed by the parties verybroadly; however, the paragraph which defines this right commences with the phrase "once the trial begins". [51] I do not, however, regard these words as an impediment to releasing exhibits, documents or records in the unique circumstances ofthis case where no trial or adjudication took place. Rather, I think the words addressed the timing of when applications for release of thismaterial can be made.

For instance, in the case before me, the application record discloses an attempt by one of the media applicants,Global Television, to secure access to the DVD, first by one of its reporters and then through its solicitors, within days of it having beenfiled with the court and months before the scheduled trial date. In those circumstances, the court, appropriately, would not release theDVD or consider the matter until the hearing of the stay [page503] application and trial. As a result, the media applicants brought theirapplication to this court.

I will have more to say later concerning the impact of this ruling on applications for access made prior to thestart of trial. [52] Since the charges were withdrawn prior to the hearing of the stay application and no trial would ever take place, it would beimpossible for the media applicants to succeed if the words "once the trial begins" were to be given the

interpretation placed on them byMr. Westwick. [53] In this case, although the trial never began, the proceedings are complete and, subject to other considerations dealt with below, theapplication should now be considered since any fair trial concerns over a premature release of the DVD are gone. [54] The application record discloses that recently in two other Ottawa cases, R. v. Bonds, 2010 ONCJ 561 , [2010] O.J. No.5034, 2010 ONCH 561 and R. v.

Delay [citations unknown], cellblock videos have been introduced into evidence and led to judicialstays as a result of alleged mistreatment of the applicants in those cases by members of the Ottawa Police Service. Two days before I hadoriginally scheduled the delivery of this ruling, another matter scheduled for trial before me, R. v. Sarazin [citation unknown], waswithdrawn, again by Mr.

Wadden, on behalf of the Crown, as a result of his review of the evidence including the treatment of theaccused in that case by members of the Ottawa Police Service while he was in custody. [55] A stay application had been brought in that case which, as in the case before me and in Bonds and Delay, relied on a cellblock DVDas part of the grounds for the application although the DVD had never been filed with the court. One of the media applicants, the OttawaCitizen, brought an application for access to that cellblock DVD.

I put the application over to the date I had set for delivery of this rulingso that arrangements could be made with counsel to have the two applications heard together since many of the issues were the same. Atthat time, however, counsel for the Ottawa Citizen withdrew its application and indicated that it might proceed in the Superior Court ofJustice on a stand alone s. 2(

b) Charter application. [56] Although on the surface all four cases bear remarkable and, in some aspects, disturbing similarities: a cellblock DVD disclosingalleged mistreatment of an individual in police custody by members of the Ottawa Police Service, a stay application which results in thecharges being stayed by the court (Bonds and Delay) or withdrawn by the Crown (Carr and Sarazin). There was no objection to therelease of the cellblock DVD in Bonds and Delay and they have each been broadcast widely.

The objection to the release of the cellblockDVD in Carr, and [page504] presumably, would be in Sarazin, is based on process and the application of the open court principle to thethree different situations presented by the four cases to which I have referred.

While the distinctions might be difficult to grasp to adisinterested observer to these cases, I recognize that it is important that access should only be in accordance with the law as it hasdeveloped in this area. [57] For that reason, I would have some difficulty in applying or extending the open court principle to the Sarazin situation where theorder for release of the DVD would have to be made directly to the Ottawa Police Service, since the DVD was never in the possession ofthe court.

I would need to be satisfied of my jurisdiction to make such an order and, although no argument was made on this issue, thatjurisdiction is not apparent to me. [58] On the other hand, in the case before me I have no concerns about my jurisdiction to make the order sought. The DVD was filed insupport of a third party records application and the stay application which was before the court. The court had possession of the DVDand must still have possession of it.

[59] In CTV, supra, Goudge J.A. defined the issue on that appeal as the extent of the court's power or jurisdiction over its own records.He stated, at para. 13: [I]t is important to remember that the court's jurisdiction over its own records is anchored in the vital public policy favouring publicaccess to the workings of the courts. [60] Since the DVD is in the possession of the court and although the Rules for filing it as an exhibit were not complied with theprovisions of rule 2.02 permits compliance to be waived by the court, then the DVD can be properly viewed as having been left with theclerk for the use of the court. [61] Although an order granting access to a document that has not been considered in a judicial proceeding or has been subject to ajudicial act would be unprecedented, in the unique circumstances of this case it would not amount to an extension of the open courtprinciple, but rather it would be an application of that principle with respect to an item in the possession and control of the court.

Would the purposes of the open court principle be served by extending the principle to the DVD? [62] For the most part, I have answered this question in that I do not consider the principle to have been extended, only applied. There is,however, one point raised by the Crown and the intervenor that needs to be addressed.

Since the DVD was [page505] not reviewed by ajudge or made an exhibit, the argument is that the DVD has not been properly identified, the integrity verified or the basic criteria ofcompleteness, ownership and evidentiary chain been established for the open court principle to apply to it. [63] This submission might have more weight if it was made with respect to a record unlike the one in question here. The DVD wasprepared by the Ottawa Police Service itself. I have concluded that it must have depicted the same events as the DVD reviewed by theCrown which led to the withdrawal of the charges.

The DVD was received by Ms. Carr's counsel, Mr. Ertel, as part of disclosure andsubject to the strict conditions of his solicitor's undertaking including the requirement that he not leave disclosure material in theunsupervised possession of the accused. There is no suggestion that Mr. Ertel did anything wrong while the DVD was in his possession.It was filed with the court for the legitimate purpose of supporting an application to enable his client to make full answer and defence.

Inthese circumstances, I am satisfied that I have no concerns about the identification, completeness, accuracy, authentication, ownershipand evidentiary chain concerning this particular DVD. Other Concerns (

a) Exhibits [64] Mr. Pearson submits that in Vickery v. Nova Scotia Supreme Court (Prothonotary) [See Note 10 below] exhibits were not a courtrecord of the same order as records produced by the court. The DVD is not the property of the court. In CTV, supra, Goudge J.A.recognized this distinction but held [at para. 22] that "the court's jurisdiction to determine access to court records (including exhibits)rests on the premise that public accessibility should be curtailed only with the greatest reluctance, taking into account the need to protectthe innocent and the other considerations described in Vickery".

He ordered that the court had jurisdiction to order the Toronto PoliceService to provide access to exhibits filed at a preliminary hearing but which had been returned to the Toronto Police Service followingthe accused's plea of guilty and sentence in the Superior Court of Justice. He remitted the matter back to the Superior Court of Justice todetermine the application on the merits. I see nothing to prevent the DVD filed with the court from being treated in the same way[page506] notwithstanding it is ultimately the property of the Ottawa Police Service. (

b) Other remedies Both Mr. Pearson and Mr. Westwick suggest that the media applicants should apply for a copy of the DVD under the the MunicipalFreedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. Again in CTV, Goudge J.A. counters a similar suggestionfrom the Toronto Police Service, at paras. 28 and 29: Finally, the Toronto Police Service argues that the existence of the Municipal Freedom of Information and Protection of Privacy Act,R.S.O. 1990, c. M.56 precludes the court from exercising its common law jurisdiction to order access to court records.

The respondentsays that this legislation permits the appellant to apply for access to the exhibits it seeks and sets up criteria for evaluating such a request. In my view, the simple answer to this argument is that the regime set up under this legislation has an entirely different purpose. It isdesigned to regulate access to private information which, but for the regime, would not otherwise be available to the public. By contrast,the jurisdiction which the appellant seeks to engage is over court records which the common law treats as presumptively accessible to thepublic.

There is nothing in the legislation that suggests either explicitly or by necessary implication that the court's jurisdiction atcommon law is being curtailed or removed. This is hardly surprising since the legislation is designed for such a different purpose. Theregime it establishes is simply one which co-exists with the court's jurisdiction. It does not replace it. The Dagenais/Mentuck Test [65] In R. v. Canadian Broadcasting Corp., supra, the Ontario Court of Appeal stated the Dagenais/Mentuck test [Dagenais v. CanadianBroadcasting Corp., (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104; R. v.

Mentuck, 2001 SCC 76 , [2001]3 S.C.R. 442, [2001] S.C.J. No. 73] as follows [at para. 20]: For the Supreme Court's post-Charter test that applies to all discretionary decisions limiting freedom of the press in relation to courtproceedings, it is to Dagenais and Mentuck that one must turn. The Dagenais/Mentuck test, as restated in Toronto Star Newspapers Ltd.v. Ontario, 2005 SCC 41 , [2005] 2 S.C.R. 188 at para. 26, reflects the importance of the open court principle and the rights offreedom of expression and freedom of the press in relation to judicial proceedings.

Restrictions on the open court principle and freedomof the press in relation to judicial proceedings can only be ordered where the party seeking such a restriction establishes throughconvincing evidence that:(

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternativemeasures will not prevent the risk; and (

b) the salutary effects of the restriction outweigh the deleterious effects on the rights and interest of the parties and the public,[page507] including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of theadministration of justice. [66] I have already dealt with the submission of the Crown and the intervenor concerning the alternative of a freedom of information

application as an alternative measure. I therefore find that the availability of this alternative does not establish that an order restrictingaccess to the DVD is necessary. [67] Similarly, I have already dealt with the valid concern of the Crown and the intervenor about providing public access to untested,unauthenticated and unconsidered items. This concern would also be a consideration under the second branch of the Dagenais/Mentucktest.

I have concluded that I have no concerns in this case given the origin of the DVD and the particular evidentiary chain which led toits being deposited in the court file in support of the stay application. [68] Subject to that concern, which I found to have been met in this case, the Crown has conceded that the public interest in grantingaccess to the DVD in this case outweighs any salutary effects of a restriction on such access. Mr. Westwick, on behalf of the OttawaPolice Service, is not prepared to make that concession. [69] Mr.

Westwick submits that providing an avenue for disclosure of material to become public prior to its consideration in court andprior to any judicial review would undermine the integrity of the disclosure process by creating "an unanticipated avenue for publicdistribution of disclosure". [70] One of the sources of Mr. Westwick's concern seems to have been misplaced, as became apparent during submissions.

Mr.Westwick surmised that granting the order sought would lead to the media in future being able to rely on such a decision to gain accessto exhibits in the court file before the matter ever comes before a judge, or would lead to endless pre-trial motions for access. I queriedMr. Dearden if that was how he saw the effect of such an order and he confirmed that he did not.

Let me be clear, I see the effect ofgranting the order in this case as applying only to situations where the criminal proceedings have been terminated by the Crown'swithdrawal of charges following a stay application where the items sought had been filed with the court in support of that application. Itseems to me that the infrequency of such a set of circumstances would limit the application of this case to situations where thecircumstances are identical, which would be very few. [71] The other concern expressed by Mr.

Westwick is the impact such an order might have on the confidentiality of the [page508]disclosure process. Confidentiality of disclosure material is an essential feature of the system by which the Crown fulfills its disclosureobligations pursuant to R. v. Stinchcombe [See Note 11 below] and discussed in the Martin report. During the course of evidencegathering, the police frequently obtain copious amounts of material, statements and records which often impinge on the privacy interestsof both persons being investigated and persons who are not the subject of the investigation.

Sometimes statements gathered in aninvestigation prove unreliable, but if publicly disclosed prematurely before those privacy interests can be identified and weighed in thebalance of an accused's right to make full answer and defence, careers and lives can be adversely affected needlessly. [72] The confidentiality and privacy concerns in this case are attenuated. First, Ms. Carr herself has consented to the release of the DVDdepicting her treatment while she was in custody.

The Ottawa Police Service prepared the DVD from their own surveillance cameras.The intervenor is not asserting any privacy or confidentiality concerns for the Ottawa Police Service itself, only a concern that it mightset an unfortunate precedent if disclosure material is routinely dumped into the court file and thereby expunges the confidentiality termsattached to that disclosure. [73] I do not see this happening with any alarming regularity.

A judge would still have to decide whether the filing of disclosure materialin this fashion was done for an ulterior or illegitimate purpose or whether, as I have found in this case, that it was done strictly for thenoble purpose of making full answer and defence. Given the widespread publicity that has surrounded both the Bonds and Delay cases inthis community and beyond and since the criminal proceedings have concluded against Ms.

Carr so that there are no fair trial concernsand she has consented to the order sought, I am satisfied that the public interest outweighs any possible salutary effects of a restriction onthe open court principle and freedom of the press in this case. [74] The order sought will be granted. Application granted. Notes ---------------- Note 1: (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1. Note 2: [2011] 1 S.C.R. 19, [2011] S.C.J. No. 2, 2011 SCC 2. Note 3: (2010), 102 O.R. (3d) 673, [2010] O.J. No. 4615, 2010 ONCA 726. Note 4: (2002), (ON CA), 61 O.R. (3d) 51, [2002] O.J. No. 3199. Note 5: [2011] O.J.

No. 2555, 2011 ONSC 3390 (S.C.J.). Note 6: (1995), (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64. Note 7: (2002), (ON CA), 59 O.R. (3d) 18, [2002] O.J. No. 1141 (C.A.). Note 8: (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38. Note 9: 2001 SCC 51 , [2001] 2 S.C.R. 743, [2001] S.C.J. No. 49. Note 10: (SCC), [1991] 1 S.C.R. 671, [1991] S.C.J. No. 23, 64 C.C.C. (3d) 165. Note 11: (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83.

----------------