Canadian Broadcasting Corporation v. Canada Border Services Agency, 2022 NSPC 22

PROVINCIAL COURT OF NOVA SCOTIA Citation: Canadian Broadcasting Corporation v.

Canada Border Services Agency, 2022 NSPC 22 In the Matter of an Application to Vary a Sealing Order, Criminal Code s. 487.3 BETWEEN: Canadian Broadcasting Corporation, Canadian Television Network, Global News, The Canadian Press, Globe and Mail, Post Media, Halifax Examiner and Saltwire (CBC Law Department, Bell Canada, Global News, Halifax Examiner Inc., SaltWire Network, The Globe and Mail, Toronto Star Newspapers Limited) - Applicants - and- Her Majesty the Queen in the Right of Canada (Canada Border Services Agency) and Her Majesty the Queen in the Right of Nova Scotia (Royal Canadian Mounted Police) - Respondents Canadian Victim Bill of Rights - Procedure Judge: The Honourable Judge Laurel J.

Halfpenny MacQuarrie Heard: April 25, 2022 Decision: May 10, 2022 Counsel: Mark Covan and Scott Millar, for the Federal Crown Shauna MacDonald, Q.C. and Mark Heerema, for the Provincial Crown David G. Coles, Q.C., for the Applicants

By the Court: I. The Initial Application [ 1 ] On April 28, 2020, the Canadian Broadcasting Corporation, through its representative Elizabeth McMillan, filed a “Notice of Application” in the Provincial Court seeking to lift a sealing order over Informations to Obtain and search warrants, pursuant to the open court principle. It suggested a general warrant, with an associated sealing order, had been issued under

Section 487.01 of the Criminal Code permitting the search of property belonging to Gabriel Wortman. [ 2 ] This application was precipitated by the mass shooting by Gabriel Wortman on April 18 and 19, 2020 in rural Nova Scotia, which resulted in 22 people being killed, one of whom was pregnant, others injured, and a Province left in a state of shock. The tragedy encompassed 17 crime scenes and covered a large geographical area. Gabriel Wortman died on April 19, 2020. [ 3 ] In her correspondence, Ms. McMillan wrote: I am a journalist with the Canadian Broadcasting Corporation.

I am applying to lift a sealing order that has been imposed over certain records relating to these proceedings… We believe this matter is urgent because it is possible that the information outlined in the search warrant/affidavits/ITO’s could shed light on what police knew and when. There has been considerable focus on why the RCMP didn’t send out a public alert to warn people about an active shooter. We believe the public should know what information police had in this case, in the event protocol changes need to be made before the next tragedy.

If we wait months for this information, an opportunity to take steps to prevent a similar situation could be delayed. There is tremendous public interest in understanding the facts regarding the attacks that killed 22 people.

This was the largest mass shooting in Canadian history, and we believe the public should know why police searched properties belonging to the shooter Gabriel Wortman . [my emphasis added] [ 4 ] The Royal Canadian Mounted Police (RCMP) became the Respondents, represented by the Public Prosecution Service of Nova Scotia (PPS) as Her Majesty the Queen in the Right of the Province of Nova Scotia. [ 5 ] Subsequently, the Canada Border Services Agency (CBSA) became a Respondent represented by the Public Prosecution Service of Canada (PPSC), as representing Her Majesty the Queen in the Right of Canada. [ 6 ] The application has expanded to include all 28 judicial authorizations issued between April 20 th and December 21 st , 2020.

II. History of Proceedings [ 7 ] On July 16, 2020, I released a procedural decision in this matter which is reported as Canadian Broadcasting Corporation v. Canada (Border Services Agency) , 2020 NSPC 29 , setting out the process the Court would use to make a determination on the s. 487.3(4) application. [ 8 ] On March 16, 2021, I released a merits decision in relation to the unsealing application on the first seven ITOs and associated authorizations ( see Canadian Broadcasting Corporation v.

Canada (Border Services Agency), 2021 NSPC 15 . [ 9 ] There have been other decisions by this Court on this application including Canadian Broadcasting Corporation v. Canada (Border Services Agency) , 2021 NSPC 48 released on November 25, 2021.

It held individuals identified by the Crown as “victims” in this matter have measurable and active rights within the meaning of the Canadian Victims Bill of Rights , S.C. 2015, c 13, s. 2 . ( “ CVBR ”) . “Victims” have the right to convey their views as it relates to un-redacting sealed paragraphs within the judicial authorizations. [ 10 ] Counsel, not being able to agree to a procedure for such, provided written briefs to the Court and I heard submissions on April 25, 2022, at Truro, Nova Scotia. This decision outlines how such can be presented to the Court. III.

Position of the Parties Crown [ 11 ] Views can come to the Court in one of two ways, in a Form 1 application (from the Crown or the victim) or in a victim impact statement-like document similar to s. 722 of the Criminal Code . Further, these statements should not be sworn nor subject to cross- examination. Applicants [ 12 ] Any regime which limits cross-examination of such infringes on their rights under s. 2(

b) of the Canadian Charter of Rights and Freedoms and thereby limits the “open court principle” without justification. [ 13 ] The Applicants, submit in their brief at pages 1-2: 5. The Crown in paragraphs 4 and 16 through 19 commend that the victims be given/have ‘…the ability to initiate an application’. Respectfully, in recognizing the CVBR applies to these proceedings, the applicant media organizations submit that it is more appropriate

that individuals who wish to make submission in opposition to unredacting names and related information in the ITO’s in issue in this proceeding should be given the status to participate/intervene in opposition to the applicant media organizations application, to present evidence and argument in opposition to redacting. Multiple new proceedings are not appropriate. 6. If Victim Impact Statement(

s) are sought to be filed and/or orally presented pursuant to

section 15 of the CVBR , dates should be fixed for such presentations. Such statements should be presented in open court, and advise Your Honour, and the public, as to the impact of Mr. Wortman’s activities on the person(

s) concerned. On the other hand, if the “victim(s)” seeks identity protection pursuant to

Section 12 of the CVBR , which will impact the open court principle and s. 2(

b) of the Canadian Charter of Rights and Freedoms , then the filed material and oral presentation should be subject to a temporary publication ban until such time as Your Honour has determined, on the merits, the request for continued redaction. 7. Those persons opposing uredactions should submit their evidence of facts upon which they rely via affidavit. A date should be set to permit limited cross examination. Finally, a date should be set for argument by the Crowns, the individuals opposing unredaction, and the Applicant’s Counsel.

In that regard, the Crown brief at paragraph 17 states the victims to not bear the burden of demonstrating why redacted portions of ITO’s and related documents should remain redacted. Respectfully, anyone seeking to compromise the open court principle bears the evidentiary and legal burden necessary to obtain such an order. IV. Legal Principles and Analysis [ 14 ] At issue is the procedure to be employed such that the conveyance of a victim’s views pursuant to the CVBR are received by this Court. [ 15 ] The Canadian Victim Bill of Rights allows for victims to convey their views and present the same to the Court.

In particular, sections 14, 15 and 19 provide: Views to be considered 14 Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered. Victim Impact Statement 15 Every victim has the right to present a victim impact statement to the appropriate authorities in the criminal justice system and to have it considered.

Exercise of Rights 19(1) The rights of victims under this Act are to be exercised through the mechanisms provided by law. [ 16 ] The Crown has informed the Court that identified victims will be seeking to protect their privacy or identity rights under the Canadian Victim Bill of Rights , in particular: Privacy 11 Every victim has the right to have their privacy considered by the appropriate authorities in the criminal justice system.

Identity Protection 12 Every victim has the right to request that their identity be protected if they are a complainant to the offence or a witness in proceedings relating to the offence. [ 17 ] Sections 486.1 , 486.2 , 486.3 , 486.31 , 486.4 , 486.5 and 486.7 of the Criminal Code provide mechanisms for witnesses and/or victims to have their privacy and identification protected, including their testimony at trial in the form of a restriction on publication, broadcast and transmission.

Applications within these provisions can be brought by the Crown, a witness, victims, or a justice system participant, as provided for in the respective sections. Under s. 486.7, the Court can, on its own motion, advance such. Sections 722 and 722.2 provides a victim impact statement can be filed with the Court at the time of sentencing. [ 18 ] How can a victim convey their views to this Court, as Gabriel Wortman, the perpetrator, is deceased and thus no trial and/or sentencing will ever occur? What mechanism should be established? [ 19 ] The Crown relies on R. v.

Davies , 2022 BCCA 103 as a parallel procedural situation similar to the one before this Court, suggesting its approach is appropriate. It was a fresh evidence application, and the reasoning in it is instructive in terms of how trial procedures (ss. 276 and 278 CC ) are applied on appeal. [ 20 ] The appellant in Davies was opposed to those provisions being available on appeal, arguing such are trial based. [ 21 ] The British Columbia Court of Appeal agreed with the Crown approach that such requires a broad and liberal application when necessary.

The following is helpful from a procedural standpoint as it relates to matters not before a trial court. At paras. 18​-19: [18] As noted, it appears that the purpose, aims and goals of the legislation are primarily directed towards a trial process. However, that does not end the matter . The substantive purpose, protecting the identity and privacy of complainants, is not limited to the trial process . There is no disagreement amongst the parties on that point. Indeed, this motion was heard in camera , as contemplated by the legislation.

However, there is disagreement on whether the procedural aspects−such as the requirement of providing detailed particulars of the proposed evidence, the complainant’s standing, and the provision of reasons found in ss. 278.93 and 278.94 apply to the appellate process.

[19] The question becomes, should the procedure set out in those sections be given a broad, generous

interpretation thus making themwholly applicable in the appellate context, or can the law in relation to the admission of fresh evidence on appeal achieve the sameresult? [my emphasis added] [22] Mr.

Coles in his written brief, objecting to the conclusion of the Crown, comments at paragraph 25: However, the Honourable Madam Justice Bennett, writing for the unanimous panel of the British Columbia Court of Appeal stated atparagraph 39 of the Decision: ‘In my view, however, the hearing under s. 278.94 to determine if the evidence that is “capable of being admissible” is actually to beadmitted would generally have no application in the appellate process.

Nor would the publication prohibitions in s. 278.95, as the facts ofthe prior sexual conduct often have to be set out in the reasons for judgment in order to give guidance to lower courts. However,appellate courts should take considerable care when reciting facts and keep them as circumscribed as possible. No doubt the name of thecomplainant will be anonymized, and sometimes more will need to be done.’ [23] Paragraph 39 is not the end of Justice Bennett’s reasoning, as paragraphs 40 and 41 confirm the Crown’s

interpretation ofDavies. [40] Having said all that, there may be cases where an appellate court is of the view that it should embark on a hearing similar in natureto one pursuant to s. 278.94, perhaps, amongst other things, for guidance to the trial court. I would not foreclose a court from holdingsuch a hearing in the appropriate circumstances and granting standing to a complainant to make submission on appeal. [41] In

summary, in most cases where fresh evidence involving s. 276 evidence is tendered, the appellant will comply with the spirit ofthe procedures in s. 278.93. The complainant will not have standing to appear and make submissions with respect to the evidence. Theapplication will however, be in camera; proper notice and detailed particulars of the proposed evidence will be given to the Crown andthe Court; and safe guards and measures to protect the identify of the complainant will be taken. [24] Davies, supra, holds that trial procedures may be used in appeal hearings when necessary.

The Court adopts the reasoningtherein and finds that trial procedures/mechanisms established in the Criminal Code are appropriate in this matter, with suchmodification as necessary. Evidence [25] Mr. Coles submits any conveyance of views should be sworn, subject to cross-examination and victims be given the status ofparties/interveners to present evidence for continued redaction. [26] Mr. Coles argues that the victims must establish an evidentiary basis for continued redaction.

At paragraph 22 of his brief: It is clear that the authorities place a significant evidentiary burden upon he/she that would seek to displace the open courtprincipal/compromise the applicant’s rights pursuant to

Section 2(

b) of the Canadian Charter of Rights and Freedoms. At this stage ofthis proceeding Your Honour is being asked to make a final determination as to the continuation of certain confidentiality, primarily as tothe identity of individuals, in the ITO’s and related documents. Such significant relief, if ordered, will constitute a departure from theprincipal that Canadian courts’ process is open. It is submitted Your Honour must rely upon sworn evidence as to particular relevantfacts. To test the veracity of certain of that evidence, the applicants should have a limited right to cross examination.

The Crowns, aswell as Counsel for the media Applicant, may argue/make submission as to what Your Honour should do or what weight should be givento the affidavits concerned. The time for the Crowns purportedly acting in the interests of all persons named in the ITO’s and relateddocuments has passed. [27] In support, Mr. Coles references Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, R. v.Mentuck [2001] S.C.R. 442, M.E.H. v. Williams, 2012 ONCA 35, Sherman Estate v. Donovan [2021] SCC 25 among others.

At paras.12-20 of his written submissions: The matter before Your Honour, any intervening/opposing individual/representative of an individual must, in seeking an ordercontinuing a redaction, establish on balance of probabilities: 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 The salutary effects of the publication ban outweigh the deleterious effects on the rights and interest of the parties and the publicincluding 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… There must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he/she mayexercise his discretion judicially… The party seeking confidentiality must at the very least allege a serious and specific risk… The ground must not just be asserted in the abstract; it must be supported by particularized grounds related to the investigation thatis said to be imperilled.

In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press

in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(

b) of the Charter . …Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute. By contrast, whether that interest is at ‘serious risk’ is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context. [ 28 ] R. v. Arfmann , 2020 BCSC 56 was a murder case where a police officer was shot and killed. A media group sought access to a video recording that was an exhibit at trial showing the murder of the officer.

The family of the victim as well as the Abbotsford Police Department and the Crown opposed the application. There was disagreement between the applicants and the respondents as to the manner/form of evidence to be put before the court. The respondents were seeking both a publication ban and a sealing order with respect to the statements of the officer’s family members. [ 29 ] In considering the Dagenais /Mentuck test, Justice Ross referenced Justice Donegan, in R. v.

Blackmore , 2018 BCSC 1225 at para. 30 : Justice Donegan, in Blackmore , considered and rejected a similar argument advanced by the media applicants. After citing Schoenborn and Banghali she said: ‘[107] I agree with the reasoning and conclusion of all these courts, as they have held, the court bears the responsibility to exercise supervisory and protecting powers over its exhibits, not only exhibits surrendered into its care but exhibits generated by its orders . This responsibility exists independent of the position of the parties in a given case.

Where appropriate, a court is entitled to consider matters of a general human nature and prediction and is also entitled to accept the submissions of counsel or factors outside the scope of tendered evidence in considering the legally protected interests at play in its application of the Dagenais/Mentuck test. This is a case where all these types of considerations come into play. [my emphasis added] [ 30 ] Justice Ross at para. 31: [ 31 ] In R. v.

Ferguson, 2018 BCSC 1539 at paras. 59 ,64, Justice DeWitt-Van Osten, as she was then, after considering the Shoenborn, Banghali and Blackmore concluded that affidavit evidence from the respondents was not required to find a ‘potential harm or injury to a legally protected interest’ sufficient to override s. 2 (

b) constitutional guarantee in the Dagenais /Mentuck analysis could rely on the submissions of counsel. [31] She concluded at para. 32: [ 32 ] I too am persuaded by the analysis in Shoenborn, Banghali and Blackmore. In addressing the Dagenais/Mentuck analysis, I am entitled to consider the submissions of counsel with respect to interactions with Mr. Siefert, the exhibits to the affidavit of Ms. Lowe, and to apply reason and logic to the relevant circumstances. [32] In my reasoning in Canadian Broadcasting Corporation v. Canada (Border Services Agency) , 2021 NSPC 15 , I stated at paras. 90 and 109: [90] R. v.

Blackmore , 2018 BCSC 1225 holds that requiring innocent parties to establish the negative impact the disclosure of their identity would have is an abdication of the Court’s function.

At para. 108: ‘To require these identified vulnerable and innocent third parties to provide affidavits or attend court to testify about their fears of reprisal, lack of awareness they could be published if they spoke to the probation officer and/or the effects an infringement on their reasonable expectations of privacy if published, in the circumstances of this case would only further aggravate their personal fears and concerns and would only further deepen the chilling effect on those upon whom courts rely to provide valuable information in the future.

These concerns and interests go well beyond mere embarrassment. To require their attendance at court or the provision of affidavits in the circumstances of this case would be to abdicate the court’s function to protect its process and to prevent avoidable harms to innocent third parties whose interests are negatively affected by that process.’ [109] Privacy rights have attained legitimate policy status in the criminal context in matters involving sexual violence, therapeutic records and police occurrence reports by way of example.

In those matters there are generally charges before the court, with people accused and with complainants or witnesses. The Criminal Code has seen significant amendments and change in this regard by establishing mechanisms to shield or protect privacy issues such as publication bans, sealed documents and in camera hearings. [my emphasis added] [ 33 ] I see no reason to conclude otherwise in this procedural decision. [ 34 ] This case involves rights established in law for victims under the CVBR .

Section 14 provides that every victim has the right to convey their views about decisions to be made by the appropriate authorities in the criminal justice system that affects a victim’s rights

under this Act and to have those views considered. [35] There is nothing within the Canadian Victim Bill of Rights that raises the position of victims to parties and/or gives themintervener status. [36] The language and legislative intent of the CVBR does not even remotely suggest that the views conveyed by a victim should besubject to cross-examination. [37] The decisions in R. v. V.W., (2008), 2008 ONCA 55 , 89 O.R. (3d) 323 (Ont CA) and R. v. Chaulk [2021] NJ 243 (P.C.),are instructive. [38] In R. v.

V.W., Justice Sharpe heard an application by the Attorney General seeking three serious violent offence designationsunder the Youth Criminal Justice Act. [39] The Crown relied upon victim impact statements to prove serious bodily harm. Given such, counsel for the Appellant, argued hewas entitled to cross-examine the victims at the designation hearing.

Justice Sharpe at paras. 27-29: [27] Although victim impact statements are not specifically mentioned, I can see no principle reason for excluding them from the reachof the general rule articulated by Dickson, J. in Gardiner or these procedural protections listed in s.724(3). I conclude, therefore thatvictim impact statements are admissible, pursuant to s. 722(1), but their use is subject to the general provisions of s. 724(3).

The Crownbears the burden of proving any disputed fact and the offender has the right to cross-examine on the evidence the Crown leads. [28] However, I do not read either Gardiner or s. 724(3) as meaning that an offender has an automatic or open-ended right to insist thatvictims attend for cross-examination anytime the Crown wishes to use a victim impact statement in a sentencing hearing. Nor do I agreethat s. 7 of the Charter mandates such a right.

Conferring an automatic or unconstrained right to cross-examine would risk underminingthe very purpose of victim impact statements, namely to give victims a voice in the criminal justice process, to provide a way for victimsto confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. Conferring an open-ended right to cross-examine might discourage victims from offering such statements and re-victimize those who do.

On the other hand, an absolute bar on cross-examination would unduly interfere with offenders’ procedural rights. [29] It seems to me that the way to reconcile the use of victim impact statements with the procedural rights conferred by s. 7 of theCharter, s. 42(9) of the YCJA and s. 724(3) of the Criminal Code is to impose a threshold “air of reality” burden on the offender tosatisfy the sentencing judge that fact or facts contained in the victim impact statement are disputable and the request to cross-examine‘specious or empty’…If there is no factual dispute that meets this low threshold, the protections afforded by s. 724(3) are not triggeredand I fail to see how there could be any violation of the appellant’s s. 7 Charter rights. [40] In R. v.

Chaulk, Judge Wayne Gorman of the Newfoundland Provincial Court considered the application of V.W., and how victimimpact evidence is to be considered by a court. This was an application by Mr. Chaulk to cross-examine a victim on her victim impactstatement. He stated at para. 37: [37] Mr. Chaulk had applied to cross-examine Ms. X on her victim impact statement. The Criminal Code does not specifically provideany authority for a sentencing judge to allow such cross-examination to occur. In this case, the Crown did not present the victim impactevidence through the calling of a witness.

The presentation of victim impact evidence does not require viva voce evidence (see s.722(5)) Ms. X. did not testify. As a result, there was no basis upon which to allow her to be cross-examined. [41] And further at para. 38: [38] As we have seen, s. 722(8) of the Criminal Code, allows a sentencing judge to consider only those portions of a victim impactstatement that the judge considers “relevant to a determination” of sentence. Thus, it provides significant discretion to the sentencingjudge to give such a statement that ‘weight’ she/he deems appropriate. (see R. v. Cook, 2020 ONCA 809 at para. 12).

This does notrequire cross-examination. It can be achieved through submissions and this provision can be applied by a sentencing judge on his/herown motion. [42] The following comments from Judge Gorman are very helpful and important in this Court’s determination. [43] The contents a victim impact statement are often of a general nature. Victim impact statements contain information which is of avery different nature than the facts led in support of a guilty plea or those found by a judge after a trial.

For instance, in the context of avictim impact statement, a victim is not always referring to facts that can be proven or disproven. The victim is referring to personalimpact, which includes such things as feelings, worries, and concerns. These cannot always be articulated or even explained. Theseimpacts are, however, no less real, even though the victim may not be able to present facts in support of her or his concerns. As a result,cross-examining a victim on her or his victim impact statement will generally be of no value.

Consider harm that has not yetmaterialized, but which can still be considered in sentencing (see R. v. Clifford [2014] EWCA Crim 2245, at paragraph 22). How is avictim to be cross-examined on potential long-term impact? [44] Finally, a sentencing judge has a broad discretion as to the weight to be given to a victim impact statement, or portions of it, that sheor he does not have in considering agreed facts upon which a guilty plea is based (or the found facts after a trial). A sentencing judgecannot disregard those facts, but she or he can disregard the contents of a victim impact statement.

[ 45 ] The discretion to allow cross-examination as set out in V.W. must therefore be limited to those instances in which the Crown calls the victim to give evidence. This does not include the victim reading the statement into the record from the body of the court or it being filed. A "right" to cross-examine does not exist in either of those scenarios. [43] Judge Gorman’s reasoning is based upon the spirit and intent of legislated victim impact statements. This Court has to be equally mindful of the spirit and intent of the CVBR in the mechanism it designs.

Such is clearly set out in the Canadian Broadcasting Corporation v. Canada (Border Services Agency) , referenced in para. 9 herein. [44] Judge Gorman’s approach is appropriate in this case given the wording of the

preamble of the CVBR , the provisions therein and the comments in the House of Commons when this legislation was being introduced. The Canadian Victim Bill of Rights is intended for victims to convey their views in situations that have brought them before a Court. [45] Legal procedural jurisprudence and statutory regimes have to inform process. There is no established procedure for the conveying of victim views within the CVBR in the factual situation of these applications. The Court must develop the same.

To do so, I draw upon existing Criminal Code frameworks which aim to protect victims/witnesses on issues of identity and privacy. [ 46 ] Drawing from the reasoning in R. v.

Davies , supra , as well as the procedure set forth in both s. 486.1 and the subsections that follow, and s. 722 of the Criminal Code , victims in this matter may present to the Court a document entitled “Statement of Victim Views” (“SVV”) signed by the them, dated and outlining how the release of the current redacted materials will impact them as it relates to their identity and/or privacy. [ 47 ] I do not find a need to proceed through a Form 1 application process, as set out in the Nova Scotia Provincial Court Rules. The writer(

s) can read the statement in Court on the date set if they so choose. [ 48 ] Following the procedure set out in s. 486.1 – 486.7, this “SVV” may be brought by the Crown or initiated by a victim directly. [ 49 ] The Crown is to provide notice to the identified victims forthwith of the availability of the “SVV” and if they intend to file such, it must be received by the Clerk of the Court in Port Hawkesbury, Nova Scotia, no later than 12 p.m., May 24, 2022.

It will then be distributed to the Applicants and Respondents. [ 50 ] This Court will convene on May 27, 2022, at 10 a.m. in Truro, Nova Scotia, for any victim who chooses to read their statement to the Court, subject to a request by a victim for another date. [ 51 ] The provisions in s. 722 of the Criminal Code apply mutatis mutandis to the “SVV”. [ 52 ] The Canadian Victim Bill of Rights was never intended, nor should it ever become an adversarial process.

Victim’s rights have been established in legislation with the coming into force of the CVBR . [ 53 ] Participation through the expression of views on sealed materials being released, is not to be morphed into such. [ 54 ] Victims can file a “SVV” in the form attached. It will not be subject to cross-examination unless it is presented in the form of viva voce evidence. [ 55 ] The reading of the “SVV” is not subject to cross-examination. [ 56 ] The burden of proof remains on the Crown, on a balance of probabilities and only shifts to a victim should a victim file a “SVV” not ad item with the Crown.

The mechanics of such will have to be sorted as between the Crown and any victim. [ 57 ] The “SVV” will be part of the Court’s consideration in the ultimate decision on the merits of the matter and its contents a matter of weight in that consideration. [ 58 ] As agreed by counsel during submissions, the filing of a “SVV” with this Court will be subject to a publication ban in relation to the victim’s name, or any information that would reasonably reveal such. __________________________ Laurel Halfpenny MacQuarrie J.P.C.