You can film it, but don’t show it to the public. Those were the instructions of a Quebec judge to journalists in the case of Stéphan Dufour, a man charged with helping his uncle to commit suicide. The judge was referring to a statement that Dufour made to police before he was charged, a statement captured on video and used as an exhibit during the trial. Members of the media were allowed to film the recorded statement as it played, but were prohibited from broadcasting it. The result has been yet another flare up in the Canadian controversy over access to court exhibits. Despite the fact that the open court principle is a fundamental aspect of freedom of expression in the Canadian Charter of Rights and Freedoms, journalists still face an uphill battle when it comes to accessing and publishing exhibits.
The open court principle means that courts must be transparent and open to public scrutiny. More than a decade ago, in the cases of Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835 and R v. Mentuck,  3 S.C.R. 442, the Supreme Court of Canada set out the test to be applied when a party seeks to limit the open court principle. The Dagenais/Mentuck test requires a party to show with convincing evidence that a limit on openness is necessary to prevent a serious risk to the administration of justice, and that the beneficial effects of the order will outweigh the harmful effects on the interests of the parties and the public.
Last November, the Ontario Court of Appeal ruled in R v. Canadian Broadcasting Corporation,  O.J. No. 4615 (a case about access to exhibits from a preliminary inquiry in connection with the death of a 19-year-old girl while in custody) that the Dagenais/Mentuck test applies to the issue of access to court exhibits. Absent a countervailing interest and evidence sufficient to satisfy the Dagenais/Mentuck test, the right to access exhibits includes access to everything filed with the court – not just what is played or read out in open court – and includes the right to make copies and publish or broadcast. As Sharpe J.A. wrote:
“..there is nothing in the law that permits a judge to impose his or her opinion about what does not need to be broadcast to the general public [absent a finding of harm or injury capable of overriding a constitutional guarantee]. That would be inconsistent with the constitutional protection our legal order accords freedom of expression and freedom of the press.”
This general approach has recently been confirmed by the Supreme Court in Canadian Broadcasting Corporation v. Canada,  S.C.J. No. 3, the Stéphan Dufour case. However, applying the Dagenais/Mentuck test, the Court held that the harm associated with broadcasting the statement made by Dufour outweighed the need for openness. The Court took into account that Dufour had by then been acquitted and, as a person with an intellectual disability, he was a vulnerable individual. As a result, the order of the Quebec judge – that the media could film the screen on which the statement was being played, but not rebroadcast it – was allowed to stand.
Despite its specific outcome, the Stéphan Dufour case represents a major victory for the openness principle. In addition to applying the Dagenais/Mentuck test to the issue of court exhibits, the Supreme Court at long last held that the test it stated years ago in Vickery v. Nova Scotia Supreme Court (Prothonotary),  1 S.C.R. 671 – that the media must satisfy the onus of demonstrating why it was entitled to copies of exhibits – no longer applies.
The problem that remains for journalists is that while the law is on their side, the law is not applied in practice. As reported in The Toronto Star in a November 9, 2010 article, shortly after the Ontario Court of Appeal decision, “Courts slow to act on ruling that gives media access to exhibits”, the Ontario government has taken the position that the procedure for accessing court exhibits is for the media to bring a court application. Even though the media has the presumptive right to access exhibits, journalists must ask for court permission, asserts the Crown, despite these court rulings.
The Supreme Court needs to clarify this point. In the Stéphan Dufour case, the Supreme Court seems to have accepted the reality that journalists often need to bring applications to get access to and publish or broadcast court exhibits, as happened in that case. But the Court does not discuss whether this procedure is in line with openness, though it refers to an earlier Supreme Court decision, Canadian Broadcasting Corporation v. New Brunswick (Attorney General),  3 S.C.R. 480, which, like the Dagenais/Mentuck test, puts the burden on the party seeking to displace the general rule of openness. As the law now recognizes a strong presumption in favour of access and openness, it would seem incongruous if the media was nevertheless put to the burden of bringing an application each time it wants to view, copy or publish an exhibit. Access should be the norm, both in law and procedure.