View source for Access to Court-Filed Exhibits

{{fr|Accès_aux_pièces_déposées_par_le_tribunal}}
{{Currency2|January|2018}}
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==General Principles==
{{seealso|Public and Media Restrictions|Access to Things Detained Under Section 490}}

; Access to Court Record
The Court has a power to supervise and protect its own records.<ref>
{{CanLIIRPC|MacIntyre v Attorney General of Nova Scotia et al|1lpbn|1982 CanLII 14 (SCC)|[1982] 1 SCR 175}}{{perSCC|Dickson CJ}}{{atp|193}} ("Undoubtedly every court has a supervisory and protecting power over its own records")<br>
</ref>

{{reflist|2}}

==Sealing and Accessing Exhibits==
{{seealso|Public and Media Restrictions|Statutory Publication Ban on Identity Information}}

; Sealing Orders
The power to seal exhibits comes from the common law.<ref>
{{CanLIIRP|Moosemay|5bzf|2001 ABPC 156 (CanLII)|297 AR 34}}{{perABPC|Fradsham J}}{{atL|5bzf|23}}<br>
</ref>

A sealing order on an exhibit is a form of publication ban and must satisfy the Dagenais/Mentuck test.<ref>
{{CanLIIRP|Clauer|fkps3|2011 ABQB 98 (CanLII)|511 AR 253}}{{perABQB-H|Veit J}}{{atsL|fkps3|26| to 34}}<br>
</ref>

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."<ref>
{{CanLIIRP|Vice Media Canada|h2pk9|2017 ONCA 231 (CanLII)|352 CCC (3d) 355}}{{perONCA-H|Doherty JA}}{{atL|h2pk9|52}}<br>
</ref>

When dealing with sexual offences, it appears the order can be considered an application under s. 486(4).<ref>
e.g. {{CanLIIRx|Stratton|23c36|2009 ONCJ 181 (CanLII)}}{{perONCJ|Bellefontaine J}}
</ref>

; Release
The decision to release Court exhibits to the public for publication is at the discretion of the presiding judge.<ref>
{{CanLIIRP|Hilderman|1mj7q|2006 ABQB 107 (CanLII)|68 WCB (2d) 705}}{{perABQB|P Martin J}}{{atsL|1mj7q|5| and 6}}
</ref>

A judge should only refuse a request from the media to access evidence from a preliminary inquiry after the conclusion of trial where:
#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
# 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.<ref>
{{CanLIIRPC|CTV Television Inc v R. et al.|1q0cx|2006 MBCA 132 (CanLII)|214 CCC (3d) 70}}{{perMBCA|MA Monnin JA}}
</ref>

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.<ref>
{{supra1|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.")
</ref>

; Procedure
There is likely an obligation upon the parties to give notice to the media where there is an application to seal an exhibit.<ref>
{{CanLIIRPC|AB v Bragg Communications Inc|fstvq|2012 SCC 46 (CanLII)|[2012] 2 SCR 567}}{{perSCC-H|Abella J}}<br>
</ref>

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.<ref>
{{supra1|Moosemay}}{{atL|5bzf|38}}<br>
{{CanLIIRP|KSY|1fc6d|2001 CanLII 8579 (ON CA)|[2001] OJ No 3207}}{{TheCourtONCA}}<br>
</ref>

; Victim's interests
Autopsy photographs were not releasable to protect the right to a fair trial and privacy rights of victim's family.<ref>
{{CanLIIRP|W.P. Glowatski|1d2d7|1999 CanLII 5632 (BC SC)|[1999] BCJ No 1110 (B.C. S.C.)}}{{perBCSC|Macaulay J}}
</ref>

; Accused's Interests
The interests in protecting an acquitted accused by refusing to release an inadmissible cautioned statement of the accused were sufficient to prohibit it's release.<ref>
{{CanLIIRPC|Vickery v Nova Scotia Supreme Court (Prothonotary)|1fsm3|1991 CanLII 90 (SCC)|[1991] 1 SCR 671}}{{perSCC-H|Stevenson J}}<br>
</ref> 
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.<ref>
{{CanLIIR-N|Arenburg|, [1997] OJ No 2386 (Ont. Gen. Div.)}}{{perONSC|Chadwick J}}
</ref>
{{reflist|2}}
===Obscene and Pornographic Materials===
When sealing child pornography, the Crown must give advance notice to the Court and media.<ref>
{{CanLIIRx|JJP|hns90|2017 YKSC 66 (CanLII)}}, ''per'' Veale J{{atL|hns90|4}}
</ref> 

The authority to seal and restrict access to exhibits of child pornography arises from inherent jurisdiction of the Court.<ref>
{{ibid1|JJP}}
</ref>

; Obscene Materials
The right to freedom of expression and the press “must stop short of requiring the court to distribute obscene material”.<ref>
{{CanLIIRP|Clauer|fkps3|2011 ABQB 98 (CanLII)|511 AR 253}}{{perABQB-H|Veit J}}{{atL|fkps3|33}}<br>
</ref>

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. <ref>
{{ibid1|Clauer}}
</ref>

; Child Pornography
Exhibits such as those showing child pornography and sexual assault, or other materials with "virtually no redeeming social value" are generally sealable.<ref>
{{CanLIIR-N|Bernardo|, [1995] OJ. No 1472 (Ont. Gen. Div.)}}- 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".
</ref>

The dangers of permitting release of child pornographic images include:<ref>
{{supra1|JJP}}{{atL|hns90|36}}<br>
</ref>
# disclose the identity of the victims;
# cause significant psychological harm to the victims;
# discourage the reporting of sexual offences;
# publicize child pornography; and
# disadvantage women and girls who are subjected to significant trauma by sexual violence and pornography.

{{Reflist|2}}

==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 an application of a party.

Section 605 states:
{{quotation2|
; 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.
<br>
; Disobeying orders
(2) Every one who fails to comply with the terms of an order made under subsection (1) {{AnnSec6|605(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.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 605; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 203.
{{Annotation}}
|{{CCCSec2|605}}
|{{NoteUp|605|1|2}}
}}

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.<ref>
e.g. {{CanLIIRP|Horne|5nts|1999 ABQB 754 (CanLII)|47 WCB (2d) 269}}{{perABQB-H|Veit J}}{{atL|5nts|34}}<br>
</ref>

{{reflist|2}}

==Media Access to Exhibits==
The right to access to exhibits flows from the "open court principle."<ref>
{{CanLIIRP|CBC|2d4c5|2010 ONCA 726 (CanLII)|262 CCC (3d) 455}}{{perONCA|Sharpe JA}}
{{CanLIIRx|Magnotta|g0m9r|2013 QCCS 4395 (CanLII)}}{{perQCCS|Cournoyer J}}
</ref>

It also arises from the s. 2(b) Charter right to freedom of expression.<ref>
{{CanLIIRPC|Toronto Star Newspapers Ltd v Ontario|1l27q|2005 SCC 41 (CanLII)|[2005] 2 SCR 188}}{{perSCC-H|Fish J}}{{atsL|1l27q|1| to 9}}<br>
{{supra1|Magnotta}}
</ref>

There is a presumption of access to exhibits.<ref>
{{CanLIIRPC|Muir v Alberta|28q05|1995 CanLII 9166 (AB QB)|[1995] AJ No 1656}}{{perABQB-H|Veit J}}{{atsL|28q05|15| and 17}} ("Access to exhibits is presumed in an open justice system")<br>
{{supra1|Magnotta}}{{atL|g0m9r|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.")</ref>

Where there is no governing legislation, access to exhibits is up to the judge to decide.<ref>
{{CanLIIRP|CBC|2fgn2|2011 SCC 3 (CanLII)|[2011] 1 SCR 65}}{{perSCC|Deschamps J}}{{atL|2fgn2|12}} ("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.")
</ref>

Access can be denied "when the ends of justice would be subverted by disclosure or ... used for an improper purpose."<ref>
{{CanLIIRPC|AG (Nova Scotia) v MacIntyre|1lpbn|1982 CanLII 14 (SCC)|[1982] 1 SCR 175}}{{perSCC|Dickson J}}{{atp|189}} (SCR) ("Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercice of the right.")<br>
{{supra1|CBC}}{{atL|2fgn2|12}}
</ref>

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."<ref>
{{CanLIIRPC|Vickery v Nova Scotia Supreme Court (Prothonotary)|1fsm3|1991 CanLII 90 (SCC)|[1991] 1 SCR 671}}{{perSCC-H|Stevenson J}}{{atsL|1fsm3|24| to 25}}<br>
{{supra1|MacIntyre}}{{atp|189}} (SCR)
</ref>

The public interest in the press having access to all information regarding a court proceeding in rooted in the need to:<ref>
{{CanLIIRPC|Edmonton Journal v Alberta (Attorney General)|1fszp|1989 CanLII 20 (SCC)|[1989] 2 SCR 1326}}{{Plurality}}<sup>Superscript text</sup>{{atL|1fszp|61}}
</ref>
# to maintain an effective evidentiary process; 
# to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; 
# to promote a shared sense that our courts operate with integrity and dispense justice; and 
# 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.<ref>
{{supra1|Canadian Broadcasting Corporation}}<br>
{{CanLIIRPC|Global BC, A Division of Canwest Media Inc v British Columbia|29222|2010 BCCA 169 (CanLII)|[1991] 1 SCR 671}}{{perBCCA|Newbury JA}} (2:1){{atsL|29222|29| to 30}}</ref>

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."<ref>
{{supra1|Canadian Broadcasting Corporation}}</ref>

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.<ref>
e.g. see {{CanLIIRP|BJ|2591q|2009 ABPC 248 (CanLII)|479 AR 248}}{{perABPC|Miller J}}
</ref>

No court order is required to access an exhibit.<ref>
{{supra1|Magnotta}}{{atL|g0m9r|31}}<br>
</ref>

; 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.<ref>
{{supra1|Magnotta}}{{atsL|g0m9r|39| to 53}}<br>
</ref>

; Pre-trial proceedings
The right to access exhibits includes access at pre-trial proceedings.<ref>
{{supra1|Magnotta}}{{atL|g0m9r|25}}<br>
{{CanLIIRPC|Vancouver Sun (Re)|1hbl8|2004 SCC 43 (CanLII)|[2004] 2 SCR 332}}{{perSCC|Iacobucci and Arbour JJ}}{{atL|1hbl8|27}}
</ref>

; Making Copies
The right to access exhibits undoubtedly includes the right to copy them.<ref>
{{supra1|Magnotta}}{{AtsL|g0m9r|20| to 24}}<br>
{{supra1|CBC}}{{atL|2d4c5|31}}
</ref>

; 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.<ref>
{{supra1|Magnotta}}{{atL|g0m9r|30}}<br>
{{CanLIIRPC|Dagenais v Canadian Broadcasting Corp|1frnq|1994 CanLII 39 (SCC)|[1994] 3 SCR 835}}{{perSCC|Lamer CJ}}{{atp|868-9}} (SCR)<br>
{{supra1|Vancouver Sun}}{{atL|1hbl8|52}}<br>
</ref>
The burden is upon the party seeking to deny access to the exhibit.<ref>
{{supra1|Canadian Broadcasting Corp}}{{atsL|1frnq|13| to 14}}
</ref>

{{Reflist|2}}

==See Also==
* [[Public and Media Restrictions]]
* [[Sealing and Unsealing Warrants]]