Access to Court-Filed Exhibits

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General Principles

Access to Court Record
The Court has a power to supervise and protect its own records.

Sealing and Accessing Exhibits

The power to seal exhibits comes from the common law.

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

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".

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

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

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.

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.

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

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.

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

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. 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.

Obscene and Pornographic Materials

When sealing child pornography, the Crown must give advance notice to the Court and media.

The authority to seal and restrict access to exhibits of child pornography arises from inherent jurisdiction of the Court.

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

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.

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

The dangers of permitting release of child pornographic images include:

1. disclose the identity of the victims;
2. cause significant psychological harm to the victims;
3. discourage the reporting of sexual offences;
4. publicize child pornography; and
5. disadvantage women and girls who are subjected to significant trauma by sexual violence and pornography.

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:

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.

Media Access to Exhibits

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

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

There is a presumption of access to exhibits.

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

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

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."

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

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.

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."

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.

No court order is required to access an exhibit.

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.

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

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

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. The burden is upon the party seeking to deny access to the exhibit.

See Also

• Public and Media Restrictions
• Sealing and Unsealing Warrants