Ontario Court of Appeal Recognizes Right of Access to Court Exhibits

The most recent issue of The Lawyers Weekly discusses the November 1, 2010 Ontario Court of Appeal decision R. v. Canadian Broadcasting Corporation recognizing the media’s constitutional right to access court exhibits.

The Canadian Broadcasting Corporation had been seeking access to the exhibits from the preliminary inquiry into the death of 19-year-old Ashley Smith, who died while under observation in an isolation cell.

The network requested access to all photographs, documents and audio and video recordings filed at the preliminary inquiry, not only those filed in open court.

"The court [of appeal] reaffirmed the importance of the open court principle, that public access to the courts is a fundamental aspect of s. 2(b) of the Charter. The Court of Appeal also confirmed that, absent the proof of some countervailing interest 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."

"The Court of Appeal also held that the Superior Court erred in not allowing the CBC to copy the portion of the video exhibit showing the actual circumstances of Ashley Smith’s death. There was nothing in the law that permitted a judge to impose his or her opinion about what does not need to be broadcast to the general public, and there was no potential harm or injury to a recognized legal interest."

Under the The Dagenais / Mentuck test, the party opposing media access must demonstrate the publication ban is necessary to prevent a real and substantial risk to the fairness of a trial and that the salutary effects of the publication ban outweigh the deleterious effects to free expression.

The full text of the Court of Appeal decision is available on the Court website.