Access to Exhibits and Seized Property

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Introduction

Property seized by the police is held in custody under the supervision of the Courts.[1]

Access to Court Record

The Court has a power to supervise and protect its own records.[1]


  1. MacIntyre v. Attorney General of Nova Scotia et, 1982 CanLII 14 (SCC), per Dickson CJ, p. 193 ("Undoubtedly every court has a supervisory and protecting power over its own records")

Access to Seized Property

Any property seized pursuant to a warrant and then detained on the basis of a report to justice under s. 490 may be accessed by a third party under s. 490(15) and (16).

490.
...
Access to anything seized
(15) Where anything is detained pursuant to subsections (1) to (3.1), a judge of a superior court of criminal jurisdiction, a judge as defined in section 552 or a provincial court judge may, on summary application on behalf of a person who has an interest in what is detained, after three clear days notice to the Attorney General, order that the person by or on whose behalf the application is made be permitted to examine anything so detained.
Conditions
(16) An order that is made under subsection (15) shall be made on such terms as appear to the judge to be necessary or desirable to ensure that anything in respect of which the order is made is safeguarded and preserved for any purpose for which it may subsequently be required.

...
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.


CCC

The civil procedure rules of each province may provide for some rules regarding the use and release of exhibits.[1]

The right to "examine" includes the ability to make copies of any documents.[2]

Section 490(15) is not unconstitutional for being silent on the use of the section by government agencies conducting non-criminal investigations.[3]

  1. See Nova Scotia Civil Procedure Rule 84.04(4)
    Ontario Rules of Civil Procedure Rule 52.04
    Alberta Rules of Court Rule 13.26
    British Columbia Supreme Court Rules Rule 40
  2. R v Sutherland (1977), 38 CCC (2d) 252 (*no link) - in reference to s. 446 (predecessor to s. 490)
    Canada (Attorney General) v Ontario (Attorney General), [2002] O.J. No. 2357 (S.C.J) (*no link)
  3. Anderson-Davis (Re), 1997 CanLII 4181 (BC SC)

Sealing and Accessing Exhibits

See also: Public and Media Restrictions and Statutory Publication Ban on Court Proceedings

The power to seal exhibits comes from the common law.[1]

A sealing order on an exhibit is a form of publication ban and must satisfy the Dagenais/Mentuck test.[2]

Under the Dagenais/Mentuck test, when considering whether to apply a sealing order, the Court must consider whether the protections of a publication ban would be a "reasonable alternative measures".[3]

When dealing with sexual offences, it appears the order can be considered an application under s. 486(4).[4]

The decision to release Court exhibits to the public for publication is at the discretion of the presiding judge.[5]

A judge should only refuse a request from the media to access evidence from a preliminary inquiry after the conclusion of trial where:

  1. such an order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
  2. the salutary effects of the 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 the administration of justice.

The judge must rely on actual evidence and not simply judicial common sense and logic alone.[6]

Applications to restrict viewing of exhibits presented in court should have "early notice" so that the court can give direction and the matter can be settled before trial.[7]

Procedure
There is likely an obligation upon the parties to give notice to the media where there is an application to seal an exhibit.[8]

Where notice to the media may slow down the process of sealing and there is a prima facie case to seal the exhibit, the Court may seal it first and allow for notice to media on a later date.[9]

Obscene Materials
The right to freedom of expression and the press “must stop short of requiring the court to distribute obscene material”.[10]

Exhibits such as those showing child pornography and sexual assault, or other materials with "virtually no redeeming social value" are generally sealable.[11]

Application to seal exhibit of a video and photographs of a victim’s vaginal and anal regions taken by the accused while the victim sleeps is not accepted. [12]

Victim's interests
Autopsy photographs were not releasable to protect the right to a fair trial and privacy rights of victim's family.[13]

Accused's Interests
The interests in protecting an acquitted accused by refusing to release an inadmissible cautioned statement of the accused was sufficient to prohibit it's release.[14] By contrast, a statement of an accused found not criminally responsible to a psychiatrist was found releasable to assist the public in understanding the nature of the offence.[15]

  1. R v Moosemay, 2001 ABPC 156 (CanLII) at para 23
  2. R v Clauer, 2011 ABQB 98 (CanLII) at paras 26 to 34
  3. R v Vice Media Canada, 2017 ONCA 231 (CanLII) at para 52
  4. e.g. R v Stratton, 2009 ONCJ 181 (CanLII)
  5. R v Hilderman, 2006 ABQB 107 (CanLII) at paras 5 and 6
  6. CTV Television Inc. v R. et al., 2006 MBCA 132 (CanLII)
  7. R v Stratton ("I would observe for future cases that I consider it incumbent on the Crown to bring early notice of their intention to bring an Application to restrict public access to the evidence to the Court so that more time will be available to obtain directions from the Court and for the Application to be dealt with thoroughly before trial.")
  8. A.B. v. Bragg Communications Inc., [2012] 2 SCR 567, 2012 SCC 46 (CanLII)
  9. R v Moosemay, 2001 ABPC 156 (CanLII) at para 38
    R. v. K.S.Y. [2001] O.J. No. 3207
  10. Clauer at para 33
  11. R v Bernardo, [1995] OJ. No. 1472 (Ont. Gen. Div.) (*no link)- video of child victims in a homicide case being sexually assaulted. Judge was "satisfied that the harm that flows from the public display of this videotape evidence far exceeds any benefit that will flow from the public exposure of sexual assault and child pornography".
  12. R v Clauer, 2011 ABQB 98 (CanLII)
  13. R v G. (W.P.), [1999] BCJ No. 1110 (B.C. S.C.) (*no link)
  14. Vickery v Nova Scotia Supreme Court (Prothonotary), [1991] 1 SCR 671, 1991 CanLII 90 (SCC)
  15. Arenburg, [1997] O.J. No. 2386 (Ont. Gen. Div.) (*no link)

Release of Exhibits for Testing

All objects that are put in as exhibits before the court may be released for the purpose of testing on application of a party.

Section 605 states:

Release of exhibits for testing
605. (1) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, after three days notice to the accused or prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial.
Disobeying orders
(2) Every one who fails to comply with the terms of an order made under subsection (1) is guilty of contempt of court and may be dealt with summarily by the judge or provincial court judge who made the order or before whom the trial of the accused takes place.
R.S., 1985, c. C-46, s. 605; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

The application may be made before either a superior court judge or a provincial court judge on three days notice.

Once the proceedings are complete and all avenues of appeal are exhausted this section no longer applies to exhibits.[1]

  1. e.g. R v Horne, 1999 ABQB 754 (CanLII) at para 34

Media Access to Exhibits

The right to access to exhibits flows from the "open court principle". [1]

It also arises from the s. 2(b) Charter right to freedom of expression.[2]

There is a presumption of access to exhibits.[3]

Where there is no governing legislation, access to exhibits is up to the judge to decide.[4]

Access can be denied "when the ends of justice would be subverted by disclosure or ... used for an improper purpose".[5]

The court is the custodian of exhibits and has supervisory powers of the materials surrendered to it, which includes the regulation of its use. The court must "inquire into the use that is to be made of them and ...[is] fully entitled to regulate that use by securing appropriate undertakings and assurances if those be advisable to protect competing interests."[6]

The public interest in the press having access to all information regarding a court proceeding in rooted in the need to:[7]

  1. to maintain an effective evidentiary process;
  2. to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society;
  3. to promote a shared sense that our courts operate with integrity and dispense justice; and
  4. to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them

Dagenais/Mentuck test should apply to requests of third-parties to access exhibits.[8]

The test requires the party opposing access to show that it is "necessary to prevent a serious risk to the proper administration of justice and that the salutary effects of the order sought outweigh the deleterious effects on the rights and interests of the parties and the public."[9]

When dealing with a young offender, the courts must take into account the privacy requirements under the YCJA when deciding whether to give access to the exhibit.[10]

No court order is required to access an exhibit.[11]

Jurisdiction
It is the trial judge who should be deciding whether access should be allowed. A superior court judge who is not the trial judge should decline jurisdiction to decide whether to grant access.[12]

Pre-trial proceedings
The right to access exhibits includes access at pre-trial proceedings.[13]

Making Copies
The right to access exhibits undoubtedly includes the right to copy them.[14]

Denying Access
The party filing an exhibit who wishes to have access denied should provide "Dagenais notice" to the media and interested parties of their intention.[15] The burden is upon the party seeking to deny access to the exhibit.[16]


  1. R v Canadian Broadcasting Corporation, 2010 ONCA 726 (CanLII) R v Magnotta, 2013 QCCS 4395 (CanLII)
  2. Toronto Star Newspapers Ltd. v Ontario, [2005] 2 SCR 188, 2005 SCC 41 (CanLII) at paras 1 to 9
    Magnotta, supra
  3. Muir v Alberta, 1995 CanLII 9166 (AB QB), [1995] A.J. No.1656 Veit J. at paras 15 and 17 ("Access to exhibits is presumed in an open justice system")
    Magnotta, supra at para 29 ("Access to court exhibits is the constitutional norm and restricting access the exception. In the absence of a specific court order to the contrary, access to exhibits is to be granted without restrictions and copies are to be provided.")
  4. R v CBC, [2011] 1 SCR 65, 2011 SCC 3 (CanLII) at para 12 per Deschamps J ("In the absence of an applicable statutory provision, it is up to the trial judge to decide how exhibits can be used so as to ensure that the trial is orderly.")
  5. A.G. (Nova Scotia) v MacIntyre, [1982] 1 SCR 175, 1982 CanLII 14 (SCC), at p. 189 per Dickson J. (as he was) CBC, supra at para 12
  6. Vickery v Nova Scotia Supreme Court (Prothonotary), [1991] 1 SCR 671, 1991 CanLII 90 (SCC) at paras 24‑25
    MacIntyre at 189 (SCR)
  7. Edmonton Journal v Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 SCR 1326 at para 61
  8. Canadian Broadcasting Corporation
    Global BC, A Division of Canwest Media Inc. v British Columbia, 2010 BCCA 169 (CanLII) at para 29, 30
  9. Canadian Broadcasting Corporation
  10. e.g. see R v B.J., 2009 ABPC 248 (CanLII)
  11. Magnotta at para 31
  12. Magnotta at paras 39 to 53
  13. Magnotta at para 25
    Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43 (CanLII), at para 27
  14. Magnotta at paras 20 to 24
    R v CBC, 2010 ONCA 726 (CanLII), at para 31
  15. Magnotta at para 30
    Dagenais v Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at 868-9
    Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43 (CanLII), at para 52
  16. Canadian Broadcasting Corp. v The Queen, 2011 SCC 3 (CanLII), [2011] 1 S.C.R. 65, par. 13-14

Sharing Seized Evidence Amongst Government Organizations

Where evidence, seized by way of a residential search warrant, does not hold a reasonable expectation of privacy, they may be shared between law enforcement and government agencies.[1]

  1. Brown v Canada, 2013 FCA 111 (CanLII) - CRA documents found in a warrant search of accused's residence was shared with CRA

See Also