Capital City News Group v. A.G., 2021 BCPC 57

Citation: Capital City News Group v. A.G. 2021 BCPC 57 Date: 20210316 File No: 21419-2 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CAPITAL CITY NEWS GROUP APPLICANT AND: HER MAJESTY THE QUEEN (ATTORNEY GENERAL OF BRITISH COLUMBIA), CORRECTIONAL SERVICES OF CANADA (ATTORNEY GENERAL OF CANADA), and ZACHARY ARMITAGE RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. CUTLER Appearing for the Applicant J. Thompson, T. Marlan Counsel for Attorney General of BC C. Fisher Counsel for Attorney General of Canada K. Elvin-Jensen Counsel for Z. Armitage J.

Heller Place of Hearing: Western Communities, B.C. Date of Hearing: February 24, 2021 Date of Judgment: March 16, 2021 [ 1 ] This is an application brought forward by a media organization, Capital City News Group (“the Capital”), seeking access to a document marked as an exhibit in now concluded sentencing proceedings of Zachary Armitage. Mr. Armitage was being sentenced for escaping a minimum-security federal correctional institution located in Metchosin, British Columbia.

[2] The document entitled “Assessment for Decision” (“the Assessment”) is a twelve page document prepared by the CorrectionalServices of Canada (“CSC”), and is dated February 13, 2018. The Assessment was prepared as part of an internal assessment of Mr.Armitage while he was serving a lengthy sentence in a federal correctional facility. The assessment was to determine if he was a suitablecandidate to be placed in a minimum security facility and contains information relating to Mr.

Armitage’s antecedents, his history in thecriminal justice system, including the programs he had pursued while incarcerated, and his extensive efforts to rehabilitate himself. Itconcluded he was suitable to be placed in a minimum security facility, which led to his transfer to such a facility from where heeventually escaped. The document was a critical piece of evidence considered by the court to determine a fit sentence for Mr.

Armitage’sescape from lawful custody. [3] Before the court, making submissions on this application are the Capital, which is not represented by counsel, Crown counselfor the Provincial Crown, counsel for Mr. Armitage, and counsel for the Attorney General of Canada on behalf of CSC. With theexception of the Capital, all parties have concerns with the contents of the Assessment being disclosed at this time. Alternatively, counselsubmit if disclosure is permitted, it should be a redacted version; the proposed redactions were identified by counsel and submitted to thecourt.

The proposed redactions are numerous and, for the most part, focus on information addressing some of Mr. Armitage’s lifeexperiences, particularly as a youth, as well as information identifying individuals who have been engaged with Mr. Armitage bothbefore and while he had been incarcerated. [4] Central to counsels’ concerns is that Mr. Armitage is currently before the court as a result of being charged with first degreemurder and there is a fear that disclosure of information contained in the document will prejudice Mr. Armitage’s right to a fair trial.

Aswell, there are concerns disclosure of information contained in the Assessment may adversely impact both security and privacy interestsof Mr. Armitage and others. Counsel provided the court very helpful written submissions addressing the various issues and the applicablejurisprudence. [5] Upon a review of the proposed redactions and after discussions between the parties and the court, it was determined that theCapital will be granted access to a redacted version of the Assessment.

As this matter has been the subject of considerable media andpublic attention, I believe it is necessary, and in the interest of the administration of justice, for the court to provide an explanation forthe decision to provide access to a redacted version of the Assessment. I.

APPLICABLE LEGAL PRINCIPLES [6] Before addressing the concerns surrounding disclosure of the Assessment, it will be helpful to set out some general principlesapplicable to determining access to information or evidence filed with the court. [7] It is axiomatic to state that freedom of expression and the press in our legal tradition, and under the Charter, is a hallmark of ourfree and democratic society. The open and transparent court principle is a central tenet of our justice system and is inextricably linked tofreedom of expression and its core values.

Public accessibility is an important ingredient of judicial accountability. There has longexisted a recognition of the established rule that our court must be open to the public and that curtailment of public access is onlyjustified where there is a need to protect a social value of superordinate importance (A.G. (Nova Scotia) v. MacIntyre, (SCC), [1982] 1 S.C.R. 175; Canada Broadcasting Corp. v. The Queen, 2011 SCC 3; Vancouver Sun (Re), 2004 SCC 43). [8] The Supreme Court of Canada in Edmonton Journal v.

Alberta (Attorney General), (SCC), [1989] 2 SCR 1326,recognized the fundamental role the media plays in providing access to the courts as people are not able to attend court proceedings. 85 …It is only through the press that most individuals can really learn of what is occurring in the courts. They as “listeners” or readershave a right to receive this information. Only then can they make an assessment of the institution.

Discussion of court cases andconstructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court.Practically speaking, this information can only be obtained from the newspapers or other media. 86 It is equally important for the press to be able to report upon and for the citizen to receive information pertaining to court documents. [9] The Supreme Court of Canada in Canadian Broadcasting Corp. v. The Queen, confirmed the public’s access to exhibits is acorollary to the open court principle.

The open court principle is not restricted to the physical courtroom and the fact an exhibit was notfully read out or viewed in open court does not protect the full exhibit from public access. (Aboriginal Peoples Television Network v.Alberta (A.G.), 2018 ABCA 133; R. v. Schoenborn, 2010 BCSC 40). [10] The Ontario Court of Appeal in R. v. Canadian Broadcasting Corp., 2010 ONCA 726, held that part of the open court principleis that the media are not limited to reporting strictly what has been led in evidence in court, and the right of access includes the right tomake copies of exhibits.

And the right to make copies extends to the entire exhibit not simply the portion referred to in court. [11] However, the right of the public or media to access and publish information before the court is not absolute and public accessmay be temporarily or permanently denied if access to sensitive information relating to court proceedings will endanger the integrity ofour justice system. (Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC76). In Global BC, A Division of Canwest Media Inc. v.

British Columbia, 2010 BCCA 169, our court of appeal reiterated that theCharter guarantees of freedom of communication and expression depend for their vitality on public access to information of publicinterest which goes on in the courts, and confirmed that the applicable principles governing access to information before the court,commonly referred to as the Dagenais/Mentuck principles, apply to court exhibits. The Court then adopted the statement of principles setout by the lower court judge, Pitfield J, (R. v. Fry, 2008 BCSC 1485, at para 11): 1.

There is a rebuttable presumption that judicial proceedings are open and public: Toronto Star [Toronto Star Newspapers Ltd. v.Ontario, 2005 SCC 41 (S.C.C.)], para. 14.

Section 2(

b) of the Charter guarantees freedom of communication and freedom of expression, fundamental freedoms which dependfor their vitality on public access to information of public interest including access to that which goes on in the courts: Toronto Star,para. 2.

3. If public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of oursystem of justice then a temporary or permanent denial of access may be warranted: Toronto Star, para. 3. 4. The circumstances in which access may be denied are limited: Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that courtproceedings are presumptively “open” in Canada.

Public access will be barred only when the appropriate court, in the exercise of itsdiscretion, concludes that disclosure would subvert the ends of the justice or unduly impair its proper administration: Toronto Star, para.4. 5. The Dagenais/Mentuck test is applicable at every stage of the judicial process but must be applied in a flexible and contextual manner:Toronto Star, para. 8. 6. A limitation on access should only be ordered when the salutary effects of the order outweigh its negative impact on the freedom ofexpression of those affected by the ban. As stated in Dagenais [Dagenais v.

Canadian Broadcasting Corp., [1994] 3 S.C.R. 385 (S.C.C.)]and modified in Mentuck [R. v. Mentuck, 2001 SCC 76 , 2001 S.C.C. 76], restrictions on access should only be ordered when: (

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 publication ban outweigh the deleterious effects on the rights and interests of the parties and the public,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: Toronto Star, para. 26. 7. Finally, the Dagenais/Mentuck test should not be applied mechanistically: Regard must always be had to the circumstances in which a sealing order is sought by the Crown, or by others with a real anddemonstrated interest in delaying public disclosure.

The test, though applicable at all stages, is a flexible and contextual one. Courtshave thus tailored it to fit a variety of discretionary actions, such as confidentiality orders, judicial investigative hearings, and Crowninitiated applications for publication bans: Toronto Star, para. 3. [12] More recently, our court of appeal, in confirming the principle of an open court, emphasized the court has a supervisory andprotecting power over its own records, and was clear that the supervision by the court recognizes the need to protect social values ofsuperordinate importance (R. v. Moazami, 2020 BCCA 61).

As custodian of its exhibits, the court is entitled to regulate the use to bemade of the exhibits to avoid misuse of same (Vickery v. Nova Scotia Supreme Court (Prothonotary), (SCC), [1991] 1S.C.R. 671). [13] There may be competing interests of superordinate importance including the right to a fair trial as well as security and privacyinterests, all of which are engaged in this application.

Where these rights and interests compete, the court must weigh them and exerciseits judgment and discretion as to which of the rights is to prevail. [14] In Vickery, the Supreme Court of Canada identified four factors the court should consider in deciding whether to deny publicaccess to trial exhibits: 1) the nature of exhibits as part of the court record and recognition that exhibits are not a court record of the same order as recordsproduced by the court or pleadings and affidavits prepared and filed to comply with court requirements.

And while courts havesupervision over exhibits when exhibits are in their custody, exhibits are not property of the court but usually the property of non-parties.Once exhibits have served their purpose in the court process, the argument for access based on the principle of open court’s loses someof its pre-eminence; 2) the right of the court to inquire into the use to be made of access and to regulate in order to protect competing interests; 3) the fulfilment of the open justice requirement often may be satisfied by the opportunity for the public and media to attend theproceedings and report on what they observed; 4) this factor addresses non-contemporaneous public scrutiny and the notion that judicial proceedings must undergo public scrutinyduring a trial and contemporaneous discussion is protected.

However different considerations may govern when the process and thepublic or media discussion is removed from the hearing context. [15] Lastly, with respect to general principles, the jurisprudence is clear that the presumption is in favour of public access to judicialrecords and the burden is on the party seeking to deny or restrict the public’s access to an exhibit to displace the presumption ofopenness; public access is the rule, covertness is the exception.

The risk to the proper administration of justice created by disclosing theinformation must be real, substantial, and well-grounded in the evidence. (McIntyre v. Nova Scotia; R. v. Mentuck) [16] To summarize the general principles governing this application: a transparent and open court is fundamental to a free anddemocratic society and this includes access to court records. However, the right to access is not absolute; the court must control access toguard against abuse or harm and protect competing interests including fair trial interests as well as security and privacy interests.

Inassessing the competing interests, the right of access is presumed with the burden lying on the party who seeks to deny access. [17] This matter requires the court to exercise its discretion in balancing a number of competing interests including the open courtprinciple, the need to protect the fair trial rights of an accused, as well as the need to protect privacy interests, security interests, and toavoid serious risk to the proper administration of justice. II. THE SIGNIFICANCE OF THE ASSESSMENT TO THE SENTENCING HEARING

[ 18 ] In order to fully understand the context of this application, it is necessary to set out the history of the sentencing proceedings and the significance of the Assessment to those proceedings. [ 19 ] In 2019, I presided over the sentencing of Mr. Armitage for his escape from a federal corrections facility on Vancouver Island. My reasons are reported at 2019 BCPC 311 , and set out why I concluded that a jail sentence of 12 months consecutive to the sentence that Mr.

Armitage was currently serving was fit in all the circumstances. [ 20 ] The escape and the sentencing proceedings received considerable media attention due to public safety concerns. Mr. Armitage and another prisoner were unlawfully at large for several days and the public had been advised at that time by the authorities and by extensive media coverage that the two were at large, and violent and dangerous.

Further contributing to the public’s consternation was information that the two violent offenders were being detained at a minimum security institution on Vancouver Island when they escaped. [ 21 ] During the course of the sentencing hearing, information was disclosed that Mr. Armitage, not only had a violent criminal past, but had escaped lawful custody on at least four separate occasions. The court was also advised that despite Mr. Armitage being assessed as a medium escape risk, a decision was made to override the assessment and classify Mr. Armitage as a minimum escape risk.

As a result of the override, he was shortly thereafter transferred to the minimum security facility from where he escaped. This revelation brought further focus to Mr. Armitage’s situation at the time he escaped: an offender, with a violent record and an extensive escape history, found himself at a minimum security facility where an inmate could escape by simply walking down the beach at low tide, which is what Mr. Armitage and his fellow inmate did to escape the seaside facility.

I inquired of counsel how it was that this offender was at a minimum security facility. [ 22 ] As Crown counsel was unable at that time to provide any information relating to Mr. Armitage’s minimum security classification, the hearing was adjourned for the Crown to make inquiries. Crown counsel subsequently provided the court with the Assessment which had been provided to Crown counsel by CSC. The document was marked as an exhibit in the sentencing proceedings and was relied on by counsel for Mr. Armitage (not counsel on this application) in submissions and was referred to in my reasons for sentencing.

The process of how the document came before the court is addressed in the reasons: [4] Given the offender's prior violent record and his history of escaping lawful custody, including four prior convictions, I was perplexed as to why at the time of his escape the offender was serving his sentence at a minimum security institution.

This situation was particularly troubling as the information provided to the Court indicated that the offender had recently escaped in 2016 and less than two years later, in February 2018, he had been assessed as a medium security or moderate risk to escape on the security reclassification scale.

However, a week later, that assessment had been overridden to minimum security or low risk to escape and, two months after the reassessment, he was transferred to the minimum security facility at William Head Institution on Vancouver Island from where he escaped. [5] At the earlier hearing of this matter, I asked the Crown to provide the Court further information explaining the reasons for the offender being held in a minimum security facility.

Crown counsel has since provided the Court with the internal report prepared within Corrections Services Canada recommending an override of the initial assessment and promoting the offender's transfer to the minimum security prison at William Head. The report provides an extensive assessment of the offender's positive efforts and progress to rehabilitate himself and the opinion that the offender presented a low escape risk. The transfer was part of a long-term gradual reintegration plan.

His case management team did not believe he posed a risk to escape or to attempt to escape. [ 23 ] The document was very informative and helpful to the court in not only explaining how Mr. Armitage found himself at a minimum security facility and his history in the correction system but as well, providing information regarding his difficult past and the traumatic experiences he has endured as an Indigenous person. The information contained in the Assessment provided insight into Mr. Armitage’s past and current struggles.

The information was similar to information the court frequently receives in a pre-sentence report, or a Gladue report often presented to the court when sentencing Indigenous offenders. [ 24 ] As a result of the information contained in the Assessment, counsel for Mr. Armitage revised his initial submissions on sentencing, seeking a sentence of 6 months incarceration instead of the 6-9 months sentence sought by counsel at the earlier hearing, before the Assessment had been produced.

The Crown continued to seek a sentence in the maximum range of 2 years. [ 25 ] The assessment was a critical document in the sentencing proceedings, informing the court’s determination of a fit sentence for Mr. Armitage. For fuller context, it will be helpful to set out portions of my sentencing reasons referring to information contained in the Assessment in order to better understand the significance of the Assessment to the sentencing proceedings: [19] The offender is a 30-year-old Indigenous first time federal offender serving a 14-year sentence imposed on May 27, 2011.

He experienced a troubled childhood with transiency, family breakdown, and was the victim of family violence. He engaged in substance abuse at the age of 12. The government child protection agency was engaged with the offender from age 11 to adulthood. The offender lacked stability and consistency in both his residence and education. He did not complete high school. [20] Past assessments of the offender indicate that there are concerns with his emotional management and his ability to adhere to one solid plan.

Reports indicate his mode of speaking, his demeanour, and his inability to remain focused give the appearance of someone much younger than his 30 years. He suffers from attention deficit hyperactive disorder for which he has received medication in the past. As well, he has been diagnosed with oppositional defiant disorder. He has been assessed as possessing poor decision-making skills and is plagued by impulsivity and a lack of maturity.

It has been recommended that the offender needs to re-engage in a maintenance program and should begin addressing his past trauma through a personal counsellor. [21] Despite these disadvantages, he has taken positive strides in his personal development during his incarceration and has gained insight into the precipitating factors of his offending. [ 26 ] The information in the Assessment set out various mitigating factors and personal circumstances of Mr. Armitage which were critical to the court’s determination of a fit sentence as is reflected in one of the concluding paragraphs of the sentencing reasons:

[29] Based on the offender's prior criminal record, in particular, the numerous prior escapes, a sentence in excess of one year and evenat the higher end of the range as sought by Crown might be appropriate. However, when one considers the various mitigating factors, theoffender's personal circumstances, and the totality principle, I am satisfied that a sentence of one year is appropriate in this case and I amso ordering.

The one-year sentence will be served consecutive to his current sentence. [27] It is important to indicate for the purposes of this application that the sentencing decision was posted on legal websites, andmedia reports of the escape and the sentencing proceedings posted on the internet provided a link to the reasons for sentencing. [28] Subsequent to the sentencing, the Capital, on January 16, 2020, filed this application seeking disclosure of the Assessment. Somesix months after the filing of the application, on June 13, 2020, both Mr.

Armitage and his fellow escapee were charged with first degreemurder for a homicide which allegedly occurred while they were both at large. Not surprisingly, this has further heightened the media’sand public’s attention to the escape and surrounding circumstances. It should be noted that delays in bringing the hearing of thisapplication before the court were caused by numerous factors including the ongoing pandemic, change in counsel, and discussionsbetween the parties of what portions of the Assessment could properly be redacted to permit access to the Assessment. III.

CONCERNS WITH PUBLICATION OF INFORMATION CONTAINED IN THE ASSESSMENT [29] Counsels' concerns with permitting access to the Assessment focused primarily on two issues:

i) disclosure of the contents of theAssessment will prejudice Mr. Armitage’s right to a fair trial at the prosecution of the first degree murder charge; and ii) disclosure ofinformation in the Assessment would engage privacy and security issues for Mr. Armitage as well as family members of Mr. Armitageand third parties including individuals who have engaged with Mr.

Armitage while he has been in custody. [30] The starting point in the court's analysis is to properly characterize the Assessment within the context of the sentencing hearingand the impact it had on the court's ultimate determination of a fit sentence. This Assessment was critical to the court in determining a fitsentence for Mr. Armitage as it contained significant information which counsel and the court relied upon. In the absence of compellingreasons, the public ought not to be deprived of evidence which was critical to the court’s decision.

It is essential for the rule of law thatthe public have confidence in the court’s proceedings, and in particular that the court's sentencing decisions are fair and arrived at basedon proper considerations. [31] The Assessment will provide the public with critical information explaining the court's sentencing decision. In this regard, andspecific to the third factor identified in Vickery, the assessment was filed with the court during the sentencing hearing, and while counselrelied on it to revise their initial sentencing position, there was little discussion with respect to its contents in open court.

Accordingly,anyone attending the trial would have had minimal information with respect to its contents, save for the overview provided in the reasonsfor sentencing.

i) Mr. Armitage's Right to a Fair Trial [32] I will first address the concerns raised with respect to Mr. Armitage's right to a fair trial. [33] The courts have long held that the right to a fair trial and unprejudiced trial is paramount over the right of freedom of expressionwhen the two interests compete (Canadian Newspapers Co. Ltd. v. Swail, (1984) (MB CA), 16 C.C.C. 3d 495,(Man.C.A.); CBC et al. v. R., (1980) (ON CA), 55 C.C.C. (2d) 444 (Ont. C.A.)). [34] There is no question that Mr. Armitage is entitled to a fair trial at the prosecution of the alleged murder.

It is prudent for Mr.Armitage and his counsel to guard against an unfair trial and pursue all legal means to ensure he is provided a fair trial. Similarly, theCrown which represents society, has a duty to secure a fair trial for the accused before an impartial tribunal. The court also must bevigilant in this regard. [35] However, the concern that the disclosure of the information contained in the Assessment will somehow prejudice Mr. Armitage’sright to a fair trial is not compelling. The essence of the submission is the Assessment contains unfavourable and prejudicial informationregarding Mr.

Armitage's antecedents and character which if released to the public and potential jurors, could undermine the ability toprovide Mr. Armitage with a fair trial at the murder prosecution. There is no doubt much of the information in the Assessment would notbe admissible at the murder trial unless Mr. Armitage’s character were to be put in issue. [36] The concern wanes considerably however when viewed in the context of the potentially prejudicial information that is already inthe public domain. There has been extensive media coverage since the escape and the subsequent charge for first degree murder.

Thiscoverage has published significant information relating to Mr. Armitage which is far more prejudicial then that found in the Assessment. [37] At the request of the Court, the Capital filed a history of the extensive media attention Mr. Armitage has received since theescape. It is a voluminous binder containing hundreds of pages setting out scores of media articles addressing both the escape and theallegations of murder.

It has been marked as an exhibit in these proceedings. [38] The media coverage has not only been extensive but extremely detailed, setting out in graphic details the violent offences forwhich Mr. Armitage has been convicted including robberies, home invasions, and aggravated assault. While there is reference to theseoffences in the Assessment, it is somewhat skeletal compared to the details currently in the public domain. Due to the disturbing natureof these offences and the escape, the coverage has been nationwide (CBC, CTV, Globe and Mail).

And most importantly for thepurposes of the murder prosecution, the local media outlets on Vancouver Island, where the escape and alleged murder took place, haveprovided extensive coverage. [39] Much of the media coverage since Mr. Armitage’s escape has been posted on the Internet, where it remains for public viewingand likely will for many years. Anyone who wishes to do an internet search of Mr. Armitage would have little difficulty finding thevarious media reports related to the escape and his past acts and personal circumstances.

Indeed, as is now common, many of the reportsprovide internet links to the numerous media reports covering Mr. Armitage.

[40] The information contained in the Assessment is insignificant in comparison to the potentially prejudicial information publishedand currently posted on media sites across Canada. By way of illustration, the Assessment briefly discusses Mr. Armitage’s earlieroffences, all of which have been published widely in the media. However, the Assessment does not go into the graphic details of theseoffences as has already been reported in the media. As well, the Assessment, comes to the conclusion, after assessing Mr.

Armitage, thathe has made great strides to address issues which led to the heinous crimes the media has reported, and concludes he has reduced his riskto commit further crime. [41] Many of the cases submitted by counsel, where the court has prohibited the disclosure of exhibits before the court, dealt withevidence that was to be produced at a future criminal trial. This is not the case before me. The concern of counsel is primarily that theinformation relates to Mr. Armitage’s character and may be prejudicial if potential jurors were to learn of this information.

As indicated,the information in the Assessment with respect to Mr. Armitage’s antecedents and character although unfavourable in places, pales incomparison to the information currently in the public domain.

Preventing the public’s right to know of information critical to the court’sdecision pertaining to a high profile escape of great concern to the public should not be denied based on a concern that the informationmay be unfavourable to an accused when the information currently in the public domain relating to the accused’s background is far moreprejudicial. [42] While I share counsels' concerns that the information, which has been widely published and is currently in the public domain,will pose challenges to ensuring a fair trial for Mr.

Armitage, the disclosure of the information contained in the Assessment, will not inmy view pose further challenges at the murder trial. [43] It would seem that others also share the view that given the prejudicial information currently in the public domain relating to theescape, as well as the alleged murder and the backgrounds of the accused, attempting to restrict less prejudicial information frompublication will achieve little in the way of enhancing the ability to ensure a fair trial of the murder allegation. I note in this regard that atthe sentencing hearing of Mr.

Armitage's fellow inmate for his escape, which came before the court in September 2020, months after theannouncement of the murder charges against Mr. Armitage and his fellow escapee, neither the Crown nor defence counsel sought apublication ban of the information provided to the court during the sentencing hearing.

Not surprisingly, the media reported on the information provided at the hearing including that the fellow escapee was serving a life sentence for 2nd degree murder after beingconvicted in 2010, has a lengthy criminal record, a history of drug abuse and been in trouble with the law commencing before he was 12years of age. [44] As a result of the media reports already in the public domain related to both Mr.

Armitage and his fellow escapee, it will likely benecessary for counsel at the murder trial, and the court, to consider the various options available to ensure a fair trial when offendershave gained such notoriety. Standard options often employed in such cases include questioning of prospective jurors on their knowledgeof the crime and the accused, or seeking a change of venue. Or it may be necessary to consider the occasionally adopted process ofconducting a murder trial without a jury.

Suffice to say that if any of the options are deemed necessary, I do not believe any of theinformation contained in the Assessment will make it more so. The need for such precautions to ensure a fair trial is not likely to beelevated as a result of disclosure of the information contained in the Assessment. [45] Moreover, with respect to concerns of finding impartial jurors for the murder trial, I am also mindful of the Supreme Court ofCanada’s observations in R. v.

Vermette, (SCC), [1988] 1 S.C.R. 985, where the Court indicated that while casesreceiving extensive publicity should lead to challenge for cause at the trial, one ought not to necessarily assume that a person subject tosuch publicity will necessarily be biased. Similarly, in R. v. Hubbert, (1976) (ON CA), 29 C.C.C. (2d) 279, affirmed bythe Supreme Court of Canada (SCC), [1977] 2 S.C.R. 267, the Ontario Court of Appeal, at paragraph 19, quoted ourcourt of appeal in R. v.

Makow (1974) (BC CA), 20 C.C.C. (2d) 513, in stating: "In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involvingconsiderable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about acase, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to theevidence. Again, we respectfully quote from Seaton, J.A., in R. v.

Makow, supra, at pp. 518-9 C.C.C., p. 94 C.R.N.S.: In selecting jurors we do not guarantee that they will have any particular attributes. We take 12 people from the street, with their virtuesand their blemishes. We do it with the justifiable expectation that the blemishes of one will be more than compensated for by the virtuesof the others. By our present methods we obtain a jury of 12 independent, conscientious people of varying intelligence and capacity. Willwe get better jurors if they are cross-examined to ensure that they have no views on the subject and have not heard about the matter? Ithink not.

The suggestion that a juror might have read about the case seems to me quite unimportant. If knowledge of a case is a step towards afinding of lack of indifference, it is a very short step indeed. The suggestion that a juror who knew of one of the parties or had heard ofthe case would thereby be incapacitated seems to me not to give sufficient recognition to the fact that day in and day out jurors aredeciding cases fairly and impartially and with sophistication.

There might have been a day when illiterate jurors could only be trusted ifthey were without outside knowledge and were directed meticulously respecting each halting step their limited reasoning power mightallow. But that day is gone. Some rules that arose in that period will persist but there is no need to introduce new practices based on thepremise that jurors are not to be trusted. Today's jurors are intelligent people, well able to put from their minds something they heard elsewhere. While engaged in a tense jurytrial they will not hark back to something heard elsewhere that they have been told to disregard.

I have not heard it suggested that a trialJudge who has heard about a case is not competent to decide it and I do not think that his capacity to reject what he heard before isunique. Jurors, too, are able to decide upon the evidence. [46] More recently, in R. v. McClintic, 2010 ONSC 2944, the court addressed a similar situation to the one before me where anindividual had been sentenced and it was asserted that information put before the court during the sentencing hearing might prejudice thefairness of another related prosecution.

In that case the court acknowledged that there had been extensive ongoing and national pre-trialcoverage by the media. The court stated “the onus of justifying a publication ban falls on the party seeking it. Only when the

'Dagenais/ Mentuck ' test is satisfied can the ban be imposed. The threshold is high. If the ban is imposed, it should be framed as narrowly as possible.” (para 8). The court must ask itself if a publication ban is not granted, is there a real and substantial risk to the right to a fair trial and are alternative measures reasonably available to prevent the risk.

The Court continued: [23] The object of jury selection is not to choose 12 persons who know nothing about the case, but to choose 12 impartial jurors who are able to decide the case based solely on the evidence introduced during the trial and the instructions of the trial judge. Mr.

MacKinnon submits that alternative measures are reasonably available to guard against the risk of an unfair trial, namely a change of venue, the use of the challenge for cause and peremptory challenges in jury selection, and the instructions of the trial judge to the jury. [ 47 ] Along with the nature of the information to be disclosed and the traditional procedural mechanisms to ensure a fair trial such as change of venue and challenge for cause, the court must also consider the imminence of future trial proceedings.

It is worth noting in this regard, that a preliminary hearing for the murder allegation is currently scheduled to commence in May 2021 and, if Mr. Armitage is committed to stand trial on the murder charge, the trial would likely take place sometime in the following year. [ 48 ] The media reports contained in Exhibit 4 filed in these proceedings leave little doubt that the circumstances surrounding the escape by Mr. Armitage have undermined the public’s confidence in our correction system in Canada. Refusing the public access to critical information relied on by the court in determining a fit sentence for Mr.

Armitage, information provided the court by the same correction system, presents a very real risk that the court will be dragged into the same quagmire as the corrections system, causing the public to lose confidence in the justice system.

This, coupled with the reality that there is little, if any, information in the Assessment which would further contribute to the potentially prejudicial information currently in the public domain, leads me to the conclusion that an order denying access is not appropriate in this case. [ 49 ] Such an order is not necessary to prevent a serious risk to the administration of justice.

The salutary effects of an order denying access to pertinent information in the Assessment do not outweigh the deleterious effects on the open court principle and the public’s right to fully understand the outcome of the court’s sentencing process and the nature and extent of the information that was relied on by the court in determining a fit sentence in an alarming and controversial escape. [ 50 ] The public has a right to know the information the court relied on when it rejected the Crown’s submission for a 2 year sentence and imposed a sentence of 1 year on Mr. Armitage for the escape.

My concerns are succinctly captured in the reasons of Cohen J. in Toronto Star Newspapers Ltd. v. Ontario , 2012 ONCJ 27 at paragraph 85 : The right of the public, through the press, to scrutinize the workings of the court is dependent on the information revealed in court. As Mr. Bruser said, the public may only see one side of the story. Because the reporter cannot access the records, he or she may be unaware that strong mitigating factors have been detailed in the pre-sentence report, or that a victim has expressed sympathy for a young person in a victim impact statement. The converse may also be true.

The public may not be able to make an informed judgment as a result. The public may feel that a sentence is too lenient or too severe and lose confidence in the justice system through misunderstanding. The efficacy of the justice system is thereby negatively affected. These are compelling arguments. [ 51 ] In that case Justice Cohen ultimately concluded that access to pre-sentence reports and a victim impact statement was not appropriate. However, the reason for denying the access was primarily as a result of the reports containing information of youths and their families in youth court proceedings.

The Court heard extensive evidence, including from an expert, opining on the fundamental importance of protecting the privacy of young persons. Cohen J. cited Dagenais (para 83 ) that publication bans may “maximize the chances of rehabilitation of ‘young offenders’”. Cohen J. acknowledged the importance of the privacy rights of young persons, rights which form a cornerstone of the Youth Criminal Justice Act , and that the privacy rights of young persons are understood in Canadian law as being essential to their rehabilitation which ultimately protects the community.

Moreover the court noted that the entire victim impact statement had been read out in court. [ 52 ] The matter before me does not engage considerations related to youths and their rehabilitation. And as indicated earlier in these reasons, the contents of the Assessment were not discussed by counsel or the court in open court at the sentencing hearing. [ 53 ] In the result, for the reasons provided, I am unable to conclude that access to the Assessment constitutes a real risk of compromising Mr. Armitage’s right to a fair trial.

Nor do I believe the concern for same in the circumstances before me is superordinate to the public’s right to an open court and a full understanding of the court’s reasoning in sentencing Mr. Armitage in a highly publicized sentencing matter. ii) Security and Privacy Interests [ 54 ] The second concern advanced by counsel is that disclosure of information contained in the Assessment will compromise the security and privacy interests of Mr. Armitage and others. [ 55 ] There is no question that the Assessment contains information addressing Mr. Armitage's difficult past and his traumatic childhood.

Such information is commonly placed before the court in sentencing proceedings. It is a regular occurrence for courts to receive various reports addressing an offender’s antecedents in order to properly assess the offender before the court and arrive at a fit sentence. [ 56 ] As indicated earlier, reports come before the court in various forms including pre-sentence reports, psychiatric assessments, and Gladue reports for Indigenous offenders. These documents often contain sensitive information engaging privacy concerns for the offender, and others.

Nonetheless, because the information is often compelling and informs the court’s decision in arriving at a fit sentence, it is common for the court to set out the contents of the report in its reasons for sentencing. This is illustrated by recent jurisprudence in British Columbia where disclosure of the personal and sensitive information of an offender contained in reports provided to the court is included in the sentencing reasons ( R. v. Heiney , 2018 BCCA 313 ; R. v. Poorman , 2020 BCSC 1420 , R. v.

Milne , 2020 BCSC 2101 ). [ 57 ] Inclusion of the personal and sensitive information in the reasons for sentencing is not surprising as it is often significant

information impacting the court’s decision, and accordingly its disclosure is important in order that the public have a full understanding of the information presented to the court which informed its sentencing decision. The practice is consistent with the principle of a fair and open court. I don’t see this principle being less worthy as a result of the manner in which the information came before the court, or the reason the document containing the information was prepared.

If the information is placed before the court and is relied on by counsel in their submissions, as well as the court to inform its decision, the public is entitled to know what that information is. That is the essence of an open and transparent court. [ 58 ] However, as indicated earlier, the court may decide the benefits of disclosing certain information is outweighed by the deleterious effects disclosure would have on other competing interest, including individual privacy interests.

The privacy concerns of the offender and others must always be balanced against the public’s right to fully understand how the court arrived at a fit sentence and the information the court relied on in performing its sentencing function. The court must be cautious when exercising its discretion in determining what sensitive information should be disclosed during the sentencing process. [ 59 ] In R. v.

Blackmore , 2018 BCSC 1225 , the court was confronted with a similar issue before this court in determining whether information relied on by the court to arrive at a fit sentence in a high profile prosecution ought to be made public.

Justice Donegan recognized the significance of pre-sentence reports filed in a sentencing hearing indicating “the presentence report is to assist the court in the challenging and delicate task of determining a just and proportionate sentence, individualized to the circumstances of a particular offense and of a particular offender” (para 18). [ 60 ] Donegan J. wrote [82] In this case, evidence relating to the circumstances of the offenders and the effects of their offences (particularly Mr. Blackmore), came primarily from the information gathered by the probation officers.

I accepted most of that evidence and relied upon it in deciding the question before me. As such, accessibility to that evidence is very important to the public’s understanding of the sentences imposed. Public accessibility is an important aspect of judicial accountability as well. [ 61 ] Some of the information sought redacted by counsel before me is personal information relating to Mr. Armitage which the court received, considered, and ultimately relied on to arrive at a fit sentence.

In these circumstances, the public is entitled to know what information the court had been provided, and informed the court’s deliberations. Like the many cases I have cited, I do not see the privacy interest of Mr. Armitage as being superordinate to the public's right to know the information the court considered and relied on in making its ruling. [ 62 ] However some of the information contained in the assessment ought not to be disclosed as the information relates to personal matters of Mr. Armitage’s youth and were not relevant to my sentencing considerations.

These portions of the Assessment are minimal and are being redacted from the version produced for access. [ 63 ] Lastly, with respect to the offender’s privacy rights, I believe they are diminished when the offender commits an offence and the document in question not only addresses important antecedents of the offender, but also provides information explaining how the offender was placed in a position to commit the offence and his role in the process.

This information was important to the sentencing proceedings and is important to providing the public a better understanding of the circumstances surrounding the offence before the court, which the public has quite understandably scrutinized. [ 64 ] The information relating to third party privacy rights and prison security requires separate considerations. [ 65 ] There are numerous references in the Assessment to third parties who have engaged with Mr. Armitage earlier in his life, or while he has been in custody.

It is not uncommon for courts to order that references to third parties in court documents be redacted to protect the privacy interests of these individuals. In R. v. Wellwood, 2011 BCSC 689 , the court recognized that redactions are a useful tool in striking the right balance to ensure access to the exhibits not be allowed to put privacy interests of individuals at risk.

The court was also concerned with the “chilling effect” the disclosure of identities of third parties would have on individuals coming forward in the future to provide valuable information relating to offenders if they believed their names would be publicly disseminated. [ 66 ] R. v. Blackmore also addressed the issue of redacting portions of the reports to protect privacy interests of third parties. The court addressed the need to protect the identity of third parties while nonetheless allowing access to the information the court relied on. [115] Protection of their identities is needed.

In sentencing the offenders, I relied heavily on the evidence they provided as it was largely the only evidence in certain areas. To deprive the public of the critical information, information necessary to inform their understanding of the sentences imposed, would risk undermining the administration of justice. Public disclosure of the identities of those third parties who came forward is, however unnecessary to the public’s understanding and would unnecessarily expose those innocent persons and ultimately the administration of justice to the harm I have outlined. [ 67 ] Similarly, in R. v.

J (B) , 2009 ABPC 248 , an application was brought by the media to have access to sentencing exhibits filed in a young offender proceeding. The exhibits included medical reports pertaining to the victims as well as pre-sentence reports and a psychological assessment.

The court granted the media access to the reports but ordered redaction’s to protect information of third parties and their names. [ 68 ] I find that such an approach is appropriate in the case before me and have determined it necessary for small portions of the Assessment to be redacted in order to protect both the privacy interests of third parties and the security in our federal institutions. [ 69 ] The identity of the individuals referred to in the Assessment had no bearing on my sentencing decision and I am satisfied that they are entitled to have their identities and privacy protected.

Accordingly the names and information which may identify these individuals are being redacted from the version of the Assessment to be disclosed. [ 70 ] As well, there is affidavit evidence before me, filed by CSC, indicating that some of the information in the Assessment, is extremely sensitive as it relates to security intelligence within our prison system and disclosure of same would compromise both personal

safety of individuals and undermine the ability of CSC to safely manage our prisons. Similar to the identities of third parties referred to in the Assessment, this security intelligence information had no bearing on my sentencing decision.

Accordingly, the portions of the Assessment which address security matters are also being redacted from the version of the Assessment to be disclosed [ 71 ] Lastly, where courts have granted access to exhibits in criminal proceedings, courts have also needed to determine, after assessing the competing interests, whether it is appropriate to permit the exhibit to be copied or whether viewing the exhibit is sufficient. ( R. v. Wellwood , 2011 BCSC 689 ; R. v. Panghali , 2011 BCSC 422 ). In R. v. J (

B) the court permitted the media access to the redacted reports, however it prohibited the media from publishing the reports in their entirety. [ 72 ] The court must play a supervisory role to ensure the ends of justice are not subverted by inappropriate disclosure. After considering the various interests engaged in disclosure of the information contained in the Assessment, I have concluded that the public's right to access of the information will not be enhanced by observing the entire document, nor will it be curtailed if the media access is limited to viewing the Assessment.

As well, I am mindful that there is a very real risk for mischief if the document is released and circulated on social media. IV. CONCLUSION [ 73 ] In the result, in accordance with these reasons, I am granting access to the Capital to view a redacted version of the Assessment. The redactions are minimal and fall into one or more of the following categories: 1) Personal information of Mr. Armitage including events which occurred when he was a youth; 2) Names and information which may identify persons who have engaged with Mr.

Armitage both in and out of jail; 3) Sensitive information relating to security intelligence within our prisons. [ 74 ] The viewing shall only occur under the supervision of court registry personnel. The Capital may attend at the registry at a scheduled time to view the redacted version of the Assessment, a copy of which I am providing to the clerk of the court and asking be marked as Exhibit 6 in these proceedings.

The document is not to be removed from the registry, nor copied, photographed or in any way duplicated except for court process purposes. [ 75 ] Lastly I should confirm that the copy of the Assessment provided to the court at sentencing hearing and marked as Exhibit 3 in those proceedings is sealed until further order of this court. _____________________________ The Honourable Judge R. Cutler Provincial Court of British Columbia