Vancouver Sun (Re)
June 23, 2004 (2004 SCC 43)
Last year, a lawyer for the Vancouver Sun knocked on the door of
a BC courtroom and was not let in. This ruling gives us more of
the story, and the principles that govern this kind of proceeding.
Exactly one year ago, Justice Holmes released a synopsis
of the issues before her in the in camera hearing, and her ruling.
A day later, she denied
the application by the Vancouver Sun to access the proceeding.
The Supreme Court of Canada granted leave to appeal both rulings.
The ruling upholding the constitutionality of s.83.28 of the Criminal
Code (Application
under s. 83.28 of the Criminal Code (Re)) does so on the basis,
in part, of the application of the open justice principle to the
hearings contemplated by that section. The companion ruling that
deals with openness, Vancouver
Sun (Re), reaffirms the application of the Dagenais and Mentuck
precedents in this new context: i.e. a judicial investigative hearing
regarding a terrorism offence.
The majority held that determining whether to hold a hearing could
be done in an ex parte proceeding. The constitutional challenge
to the process, and the investigative hearing itself, however, has
to be presumptively public, though investigative hearings may end
up considerably less so.
40 If the existence of the order is made public, the issuing
judge, acting under s. 83.28(5)(e), would determine, still under
the guidance of the Dagenais/Mentuck test, whether any information
ought to be withheld from the public. For example, even though
there may be no reason to hide an order for a judicial investigative
hearing in relation to an identified alleged terrorist act, it
may not be appropriate to reveal the reasonable grounds upon which
the police relied to obtain the order. Whether the name of the
person who will be heard at the hearing needs to be kept confidential
may largely dictate whether the time and place of the hearing
will also be the subject of a non-disclosure order. Of course
should the hearing proceed in a public forum, the Crown would
be expected to request that parts of the hearing proceed in camera
in light of the sensitive nature of the information sought.
41 It may very well be that by necessity large parts of judicial
investigative hearings will be held in secret. It may also very
well be that the very existence of these hearings will at times
have to be kept secret. It is too early to determine, in reality,
how many hearings will be resorted to and what form they will
take. This is an entirely novel procedure, and this is the first
case -- to our knowledge -- in which it has been used.
The majority held that the hearing in this case should have been
held in public. It refused to rule on the desirability of media
counsel and select members of their clients having preferred confidential
access to assist in preparing argument. Additional comments on the
problem with secrecy and on notice to the media will figure in future
cases...
49 It is not necessary in this appeal, given our conclusion that
the hearing should have been held in open court, to decide whether
an appropriate condition under s. 83.28(5)(e) could include an
order that counsel be present but be prohibited from disclosing
to their clients the content of the information revealed in the
hearing. It is difficult to anticipate all the difficulties that
such an order may pose. In the same way, we would not endorse
the suggestion made by the Vancouver Sun that some members of
its Editorial Board be allowed to attend the hearings and have
access to the materials but be subject to an undertaking of confidentiality.
It is difficult again to understand how the public good is better
served by the qualified participation of professionals who cannot
discharge fully their publicly entrusted mandate. In any event,
these issues can be left for another day, and should be debated
amongst the professional bodies involved so that court imposed
conditions can properly consider ethical standards and best practices
in the professions involved.
50 Keeping in mind our statements about the novelty of this case,
the present facts clearly illustrate the mischief that flows from
a presumption of secrecy. Secrecy then becomes the norm, is applied
across the board, and sealing orders follow as a matter of course.
51 When the Named Person indicated an intention to challenge
the constitutionality of the order, the imperatives of the open
court principle became even more compelling. The constitutional
challenge, and as much of the information about the case as could
be revealed without jeopardizing the investigation, should have
been made public, subject, if need be, to a total or partial publication
ban. When that matter resumed before Holmes J., it became apparent
that the existence of a judicial investigative hearing related
to the Air India case was already known to counsel for Mr. Malik
and Mr. Bagri and later to the Vancouver Sun.
52 The unfolding of events in this case also illustrates how
antithetical to judicial process secret court hearings are. Courthouses
are public places. In the course of a public hearing a judge may
order that part of the proceedings be held in camera, thus excluding
the public for from that part of the hearing. But, of course,
in such a case, the fact that an in camera hearing is taking place,
as well as the overall context in which it was ordered, are in
the public domain, subject to challenge, inter alia by the Press
and to comments by interested parties and by the public. Whether
better notice should be given to the Press, or to other possibly
interested parties, of proceedings that are held in camera or
that are subject to a publication ban is beyond the scope of the
issues raised on this appeal but we again suggest serious consideration
should be given to this matter by the legal profession, the media,
and the courts.
The conclusion overall favoured the media in the case, and required
future judges to consider the media at every stage of the process:
56 It is therefore clear that the constitutional challenge here
should not have been conducted in camera. We would add that there
would have been no need to give the Vancouver Sun (through some
members of its editorial board or otherwise) preferential and
confidential access to secret information in this case if much
of the constitutional challenge had been conducted in open court,
along the lines of the process followed in this court, with the
helpful cooperation of all parties. Much of the constitutional
case can be properly argued without the details of the information
submitted to the application judge being revealed.
IV. Disposition
57 We would therefore order that:
The appeal be allowed in part and that the order made by Holmes
J. be varied.
That the name of the Named Person be made public.
That the proposed judicial investigative hearing be held in
public, subject to any order of the presiding judge that the public
be excluded and/or that a publication ban be put in place regarding
aspects of the anticipated evidence to be given by the Named Person.
58 In any event, we would also order that the investigative judge
review the continuing need for any secrecy at the end of the investigative
hearing and release publicly any part of the information gathered
at the hearing that can be made public without unduly jeopardizing
the interests of the Named Person, of third parties, or of the
investigation: Criminal Code, s. 83.28(5)(e). Even in cases where
the very existence of an investigative hearing would have been
the subject of a sealing order, the investigative judge should
put in place, at the end of the hearing, a mechanism whereby its
existence, and as much as possible of its content, should be publicly
released.
See Vancouver
Sun (Re)
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