File No.

011-26487
THE PROVINCIAL COURT OF MANITOBA (Winnipeg Centre)

HER MAJESTY THE QUEEN

- andGRAHAM MICHAEL JAMES Accused

MOTIONS BRIEF of the Moving Parties, Canadian Broadcasting Corporation, BellMedia Inc., Shaw Television Limited Partnership and Winnipeg Free Press

HILL SOKALSKI WALSH TRIPPIER

LLP

Litigation Counsel 2670 - 360 Main Street Winnipeg, Manitoba R3C 3Z3

Bob Sokalski
Telephone: (204) 943-6740 Fax: (204) 943-3934 File No. 12068

-2File No. 011-26487

THE PROVINCIAL COURT OF MANITOBA (Winnipeg Centre)

HER MAJESTY THE QUEEN

- andGRAHAM MICHAEL JAMES

Accused

MOTIONS BRIEF of the Moving Parties, Canadian Broadcasting Corporation, BeliMedia Inc., Shaw Television Limited Partnership and Winnipeg Free Press INDEX
PART I LIST OF DOCUMENTS TO BE RELIED UPON ...............................................................3

PART II LIST OF AUTHORITIES TO BE RELIED UPON ...............................................................4 PART III I. INTRODUCTION ...................................................................................................7

II.

ARGUMENT
A. B. C. JURISDICTION TO MAKE THE ORDER SOUGHT ......... 9 SUMMARY OF FACTS ................ 12 PUBLIC ACCESS TO COURTS ............... 15

III.

CONCLUSION ....................................................................................................29

-3PART I LIST OF DOCUMENTS RELIED UPON BY THE MOVING PARTIES

1.

Affidavit of Cecil Rosner, sworn March 9, 2012

-4PART II LIST OF CASES AND STATUTORY PROVISIONS RELIED UPON BY THE APPLICANTS

Tab 1 2 The Provincial Court Act, C.C.S.M. c. C275, s. 7 Court Policies and Practice Directive of Chief Judge Ken Stefanson, Provincial Court of Manitoba, December 4, 1989, Manitoba Courts Hudson Say Mining & Smelting Co. v. Cummings, 2004 CarsweliMan 480 (Man.C.A.)

4 5 6

R. v. Felderhof, [2003] O.J. No. 4819 (C.A.) at para 41 R. v. 974649 Ontario Ltd. [2001] 3 S.C.R. 575 at para 38
Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2008 MBCA 94 Vancouver Sun, Re, 2004 CarswellBC 1376 (S.C.C.) Edmonton Journal (The) v. Alberta (Attorney General), 1989 CarsweliAlta 198 (S.C.C.) Application to Proceed in Camera, Re, 2007 CarswellBC 2418 (S.C.C.) CSC v. Canada (AG) 2011 SCC2

7 8

9 10 11 12 13 14

R. v. Cho, 2000 CarswellBC 1572 (B.C.S.C.) R. v. Squires, 1992 CarswellOnt 121

Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 Canadian Newspapers Co. v. Canada (Attorney General), 1988 CarsweliOnt 1023

-515 New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CarswellNS 417 Excerpt from Public Inquiry Into the Administration of Justice and Aboriginal People: Presentation to a Panel on Courts and the Media, August24,1990,atp.9 Daniel Henry, Electronic Public Access to Court - An Idea Whose Time Has Come, Canadian Institute for the Administration of Justice, Les Editions Themis, 1994, p.389 Judicial Council of Manitoba at the Public Inquiry into the conduct of Judge Frank D. Allen in 1993 Daniel Henry, Free Expression and Publication Bans: Toward a More Open Criminal Justice System, 19 Nat'l J. Const. L. 337, 2005 (Westlaw: 2006, Thomson Canada Limited) Dagenais v. Canadian Broadcasting Corp., 1994 CarswellOnt 112 (S.C.C.)
R. v. Mentuck, 2001 CarswellMan 535 (S.C.C.)

16

17

18

19

20

21 22

The Director of Child and Family Services v. D.M.P., W.G.S. and J.A.M.P., 2009 MBQB 133 (Man.Q.B.) CTV Television Inc. v. Hogg, 2006 MBCA 132 R v. Fry, 2010 BCCA 169
R. v. O'Brien, May 26, 2009 O.S.C.J.

23 24

25
26 27

Canwest & CTV v. R 2007 MBQB 40 CTV Television v. Ontario Superior Court of Justice, 2002 CarswellOnt 955 (Ont.C.A.)
R. v. Canadian Broadcasting Corporation and Canwest Television Inc. (Manitoba Court of Queen's Bench unreported May 2, 2001)

28

29

CTV Television Inc. v. R., 2005 CarswellMan 232 (Man.Q.B.)

-7-

PART '" I. INTRODUCTION

1.

This is a motion brought by Canadian Broadcasting Corporation,

BeliMedia Inc., Shaw Television Limited Partnership and Winnipeg Free Press (collectively referred to as the "Applicants"), for an order: a) that electronic public access to the sentencing hearing of the Accused be granted, for the purpose of live and recorded television and internet broadcasts of the proceedings with the Applicants having television camera access (including microphone access) to the Courtroom for the duration of the sentencing hearing;

b) for such further and other relief as counsel may advise and this Honourable Court may allow

2.

This application is for the purpose of providing the public with "electronic

public access" to these proceedings, by streaming the proceedings live on the internet, and through radio, television and internet-based news services, for any member of the public to see and hear what they would be entitled to witness if they were able to attend the courtroom in person. The media have historically been permitted to convey all the words spoken, the way they were spoken, and everything that goes on during the proceedings to the public. Now, technology permits the media to do directly what it has always done indirectly, and in the process give the public the most accurate picture of the proceedings as possible. 3. The provisions of section 2(b) of the Canadian Charter of Rights and

Freedoms, Part I of The Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charte(') , entitle the Applicants to the order they seek, as such an order serves to facilitate the public's exercise of its statutory and Charter rights of access to the sentencing hearing.

-84. The Applicants further submit that camera access for live and recorded

broadcasts is in the interests of justice. There is a significant degree of public interest in the subject matter of this case, and in the various issues arising as summarized in the Affidavit of Cecil Rosner and it is therefore respectfully submitted that the public interest is best served by granting the order sought.

-9II. A. 5. ARGUMENT JURISDICTION TO MAKE THE ORDER SOUGHT This Honourable Court has the jurisdiction to make the order sought by

the Applicants. Reliance is placed on the relevant statutory provisions. 6. Section 7 of The Provincial Court Act, C.C.S.M. c. C275, describes the

jurisdiction of a judge of the Provincial Court. In particular, subsection 7(a) states that every judge has jurisdiction throughout Manitoba and "shall exercise all the powers and perform all the duties conferred or imposed upon a judge by or under any Act of the Legislature or of the Parliament of Canada." The Provincial Court Act, C.C.S.M. c. C275, s. 7 (Tab 1) 7. The Provincial Court Practice Directive effective as of December 4, 1989

recognizes the jurisdiction of a provincial court judge to permit electronic recording by journalists and refers to the permission to be sought for camera access. This permission has been sought and this motion seeks an order

granting camera access. The Provincial Court Practice Directive (Tab 2) 8. The control over process in provincial court must necessarily fall under the

jurisdiction of the presiding provincial court judge. 9. A discussion of the scope of the jurisdiction of a provincial court judge is

found in the case of Hudson Bay Mining & Smelting Co. v. Cummings. In that case, Mr. Justice Freedman referred to the following statement from Sharpe J.A., in G. (N.) v. Upper Canada College (2004), 70 O.R. (3d) 312 Ont. C.A. [In Chambers]):

- 10-

Statutory courts have by necessary implication the power to control their own process and the procedural tools to ensure the effective and efficient disposition of matters falling within their competence. [emphasis added] Hudson Bay Mining & Smelting Co. v. Cummings, 2004 MBCA 182, para. 34 (Tab 3)

10.

In the Court of Appeal Chambers decision of Mr. Justice Sharpe,

reference was also made to R. v. Felderhof, [2003] O.J. No. 4819 (C.A.) at para 41 (Tab 4); and R. v. 974649 Ontario Ltd. [2001] 3 S.C.R. 575 at para 38 (Tab 5). It is clear from those two references that this Honourable Court has broad remedial jurisdiction under the Charter. 11. In a more recent decision of the Manitoba Court of Appeal, Chief Justice

Scott held that a provincial court judge (in an inquest) has the discretion to perform a Oagenais/Mentuck balancing analysis when a request is made by the media for access to documents protected by section 76(1) of The Child and
Family Services Act, R.S.M. 1987, c. C80.

Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2008 CarsweliMan 426 (Man.C.A.), para. 36 (Tab 6) 12. It is therefore respectfully submitted that a judge of the provincial court has

the jurisdiction to exercise control over conduct in provincial court and this would necessarily extend to the interpretation and application of the Charter to the public access rights sought to be invoked by the order sought on this motion. 13. The Applicants submit that in the absence of clear statutory direction as to

the method by which camera access will proceed in a sentencing hearing, a determination by this Honourable Court in regard to camera access is necessarily incidental to this Honourable Court's fulfillment of the statutory

- 11 -

requirement that the hearing be open to the public. Given that this Honourable Court (a) has the power to control who has access to the hearing and the extent of that access, and (b) has the discretion to make an order regarding media access, which engages a Charier analysis, this Honourable Court also has the jurisdiction to make an order in respect of the nature and extent of media access such as the one presently sought by the Applicants. 14. The Applicants seek an order permitting them to provide the public direct

access through electronic means to the sentencing hearing in this matter, currently scheduled to take place on March 20, 2012, subject to the ongoing control and discretion of the presiding judge. Such access would involve use of audio-visual recording and transmission equipment to facilitate live internet streaming of the entire proceedings, as well as radio, television, and internetbased news services ("electronic public access"); 15. Based on the authorities presented, the Applicants are requesting that the

court exercise its discretion to permit such access, and that it do so in accordance with the OagenaislMentuck test set down by the Supreme Court of Canada with respect to all discretionary court orders involving potential publication bans.

- 12 -

B.

SUMMARY OF FACTS

16.

The media have reported extensively on the case of Graham James, a

former hockey coach accused and convicted of sexual assault in the 1990's. James pleaded guilty to additional sexual assaults last December. Because his victims have included former NHL hockey players, the case has drawn extraordinary attention across Canada and beyond. The case also touches on matters of profound interest to the public: safety of vulnerable youth, the integrity of the coaching system in Canada, and the manner in which the justice system and the courts deal with sexual offenders. James will be sentenced on his December charges on March 20,2012.
Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 3

17.

The circumstances surrounding this case have created extraordinary

public interest in this case. The sentencing hearing will be of significant interest not only to the parties directly involved, but to the general public. Matters touching on the issues in this case are of great concern to large numbers of people in this city and province, as well as across the country.
Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 4

18.

While the public has a right to attend in person at sentencing hearings,

time and distance effectively prevent most members of the public from exercising this right. In reality, very few people have the ability to attend such proceedings in person. It is the media's role to fill this gap. In this particular matter, many people across the country have had contact with the accused and will be directly interested in the sentencing proceedings, but they have no practical ability to attend court.
Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 5

- 13 19. The Canadian Judicial Council acknowledges that the justice system and

the public interest are served when coverage of the justice system and manner in which it functions contains an accurate, balanced and complete report of the hearing and disposition of specific cases.

Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 6

20. A significant number of Canadians continue to report that they rely on

television as their main source of news, and a rapidly increasing number of people say the Internet is another major source of news. For the media to discharge their role properly, television and online reporters must have the means to do so accurately. For such reporters, a camera is an essential tool of the trade, and, the ultimate means of accurately and completely recording all that transpires in such proceedings. It is far more accurate than jottings in a reporter's notebook or brush strokes on an artist's sketch pad. Television is not the only medium that requires use of video cameras. All major media outlets now provide video clips and streams on their websites.

Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 7

21. Over the last two decades, camera access to many proceedings has

expanded exponentially.

Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 8

22. No serious problems or controversies arose from the use of cameras in

any of those proceedings, and because no witnesses or evidence will be called on March 20, there is little likelihood of any tangible negative effect of televising the proceedings.

Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 9

- 14 23. Video (with audio) provides the most accurate means of reporting.
Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 10

24.

The camera access will not be disruptive or obtrusive.

Affidavit of Cecil Rosner, sworn March 9, 2012, paragraph 13

- 15 -

C.
25.

PUBLIC ACCESS TO COURTS

The public has a constitutional and a statutory right to access to the The order sought by the Applicants merely serves to

sentencing hearing.

facilitate the exercise of existing rights. Any restriction on media access, would in effect be a restriction on public access and therefore would need to be justified by the party seeking to restrict access under section 1 of the Charter. 26. The importance of public and media access to court proceedings as a

Charter right has also been affirmed in numerous cases, typically in the context

of media access to trial proceedings. In the Vancouver Sun case, Iacobucci and Arbour JJ. stressed the importance of the "open court" principle: This Court has emphasized on many occasions that the "open court principle" is a hallmark of a democratic society and applies to all judicial proceedings: Macintyre v. Nova Scotia (Attorney General), [1982] 1 S.C.R. 175, (S.C.C.), at p. 187; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.), at paras. 21-22; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.). "Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be overemphasized": Edmonton Journal, supra, at p. 1336. The open court principle has long been recognized as a cornerstone of the common law: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 21. The right of public access to the courts is "one of principle ... turning, not on convenience, but on necessity": Scott v. Scott, [1913] A.C. 417, (U.K. H.L.), per Viscount Haldane L.C., at p. 438. Justice is not a cloistered value": Ambard v. Attorney General for Trinidad & Tobago, [1936] A.C. 322 (Trinidad & Tobago P.C.), per Lord Atkin, at p. 335. "[P]ublicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity": J.H. Burton, ed., Benthamiana or, Select

- 16 Extracts from the Works of Jeremy Bentham (1843), p.

115.
Public access to the courts guarantees the integrity of judicial processes by demonstrating "that justice is administered in a non-arbitrary manner, according to the rule of law": Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22. Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public's understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.

The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 17. The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression: Ford c. Quebec (Procureur general), [1988] 2 S.C.R. 712, (S.C.C.); Edmonton Journal, supra, at pp. 1339-40. The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions: Edmonto n Journal, su pra, at pp. 1339- 40. Consequently, the open court principle, to put it mildly, is not to be lightly interfered with. [emphasis added]

Vancouver Sun, Re, 2004 SCC 43, paras. 23-26 (Tab 7)

27. Cory J., in Edmonton Journal v. Alberta (Attorney General), commented

on the importance of the role that the media play in allowing the public to access court proceedings: ... It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children would find it

- 17 possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings - the nature of the evidence that was called, the arguments presented, the comments made by the trial judge - in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.

Edmonton Journal (The) v. Alberta (Attorney General), 1989 CarsweliAlta 198 (S.C.C.), para. 85 (Tab 8)
28. The Supreme Court of Canada reaffirmed the "open court principle" in

Application to Proceed in Camera, in the context of an extradition hearing.

Bastarache J., for the majority, stressed the importance of the principle: The "open court principle" is a "hallmark of democratic society", as this Court said in Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43 (S.C.C.), at para. 23 ... Open courts have several distinct benefits. Public access to the courts allows anyone who cares to know the opportunity to see "that justice is administered in a nonarbitrary manner, according to the rule of law": Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) ("CBC"), at para. 22. An open court is more likely to be an independent and impartial court. Justice seen to be done is in that way justice more likely to be done. The openness of our courts is a "principal component" of their legitimacy: Vancouver Sun, at para. 25. In addition to its longstanding role as a common law rule required by the rule of law, the open court principle gains importance from its clear association with free expression protected by s. 2(b) of the Charier. In the context of this

- 18 appeal, it is important to note that s. 2(b) provides that the state must not interfere with an individual's ability to "inspect and copy public records and documents, including judicial records and documents" ... ... Returning to our examination of the open court principle, I note that it is clearly a principle of general application to all judicial proceedings. [emphasis added]

Application to Proceed in Camera, Re, 2007 CarswellBC 2418 (S.C.C.), paras. 31-34 (Tab 9)
29. The relevant statute and the Charter principles are unmistakably clear: the

public has a right of access to the sentencing hearing. Taking into account the comments of Cory J. in Edmonton Journal about the practical difficulties associated with attending court proceedings, permitting the Applicants to record and broadcast the proceedings will allow any member of the public, who might not otherwise be able to attend court, the opportunity to access the proceedings. The requested order will facilitate the exercise of existing rights. Conversely, to deny the right to broadcast the hearing would have the practical effect of restricting public access and denying Charter rights. 30. In this particular case there are affected individuals all over the country,

and leaving aside the space limitations in the courtroom, it is impractical if not impossible for affected individuals and the general public to be able to be present in the courtroom for this hearing, which is of profound public interest. 31. There is some direction provided with respect to media access to

provincial court facilities by way of Provincial Court Policies and Practice Directives found on the Manitoba Courts website (Tab 2). The Provincial Court policy contemplates the presence of cameras in the courtroom, as the policy states that media cameras are not permitted in court facilities unless permission has been granted.

- 19 -

32.

There

is

authority to

suggest that generally,

the

media

should

presumptively be granted camera access to court proceedings. 33. In

cac v.

Canada (AG) 2011 SCC2 (Tab 10), it was acknowledged that a

measure that limits filming and taking photographs in a courthouse infringes Section 2(b) of the Charter. In that case, the Court upheld the impugned

measures based on evidence justifying the limits; but that type of evidence does not exist in this case. Contrast for example the evidence summary at paragraphs 72-73. 34. Because there is no witness testimony involved, this case is virtually

identical to the situation in R. v. Cho, where it was held that in the absence of a statutory scheme addressing camera access to a proceeding, the common law governs. In that case the court allowed camera access to counsels' submissions to the jury and the judge's instructions to the jury in a trial, and this occurred over the objection of both the Crown and the defence. McKinnon J. held: The sum of the many cases referred to me suggests to me that insofar as British Columbia is concerned, there is no common law basis for excluding modern technology from Indeed, when one considers the the courtroom. discussion in Dagenais and Squires, the reverse might now be the situation. Given the provisions of s. 2 of the Charter, against the obiter referred to, it could be argued that, subject to the overriding duty and right of the individual trial judge to control his or her process, the time has now arrived to permit the introduction of equipment designed to more accurately depict public events.

R. v. Cho, 2000 CarswellBC 1572 (B.C.S.C.), para. 27 (Tab 11)

35. Furthermore, the following quote from the Ontario Court of Appeal case of

R. v. Squires, 1992 CarsweliOnt 121 (Tab 12) ("Squires'') states that laws that

limit camera access in courthouses violate s. 2(b) of the Charter.

- 20-

The freedom of expression enjoyed by television journalists, such as the appellant, is the freedom to film events as they occur and to broadcast the film to the public. If television journalists are unable to photograph persons entering or leaving a courtroom, their freedom of expression is curtailed: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122 at p. 129,38 C.R.R. 72 at p. 77. I agree, therefore, with Tarnopolsky J.A. that s. 67(2)(a)(ii) infringes the freedom of expression conferred on the appellant by s. 2(b) of the Charter (at para 81).

The range of time at which news coverage is available offers the added promise of disseminating images and ideas that originate in court proceedings to the public in periods when the public is able to receive them, rather than restricting observation to a small and select group of people who can attend the courthouse in person (at para 33).

36.

It should be noted that in Squires four out of five members on the Ontario

Court of Appeal panel found that the statutory provision in question which imposed camera access restrictions violated the Charter, but two of those four found the limitation to be reasonable in the specific circumstances of that case. Those circumstances are not present in our case. Furthermore, the statements made by the Supreme Court of Canada in Vancouver Sun, Re, 2004 SCC 43
(Tab 7) ("Vancouver Sun") and Toronto Star Newspapers Ltd. v. Ontario, 2005

SCC 41 (Tab 13) (" Toronto Star") definitely militate against such a finding today. Moreover, the British Columbia Supreme Court in R. v. Cho, 2000 BCSC 1162
(Tab 11) ("Cho") ruled in favour of camera access, relying in large measure on

the comments from Mr. Justice Tarnopolsky (concurred in by Krever, J.A.) in

Squires.

37.

In Canadian Newspapers Co. v. Canada (Attorney General), 1988

CarsweliOnt 1023 (Tab 14) ("Canadian Newspapers") the Supreme Court of Canada held that a law which prohibited media from printing or broadcasting the identity of a sexual assault complainant violated s. 2(b) of the Charter.

- 21 Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom (at para 14).

38.

Since "publishing" includes printing or broadcasting (as the court

confirmed), then a measure that prohibits camera access at a hearing would likewise violate s. 2(b): if it "prohibits the media from publishing information (i.e., images and sound of testimony) deemed of interest."

39.

In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House

of Assembly), 1993 CarsweliNS 417 (Tab 15) Cory J., (in dissent), held that a

law that prohibited media from televising legislative assembly proceedings violated s. 2(b): In my view, the protection of news gathering does not constitute a preferential treatment of an elite or entrenched group, the media, rather it constitutes an ancillary right essential for the meaningful exercise of the Charter. Although the language of the section may not specifically grant special rights to a defined group it does include freedom of the press within the ambit of protected expression. It is obvious that a prohibition on television cameras is by definition a restriction on freedom of the press. Whether such a restriction is justified will depend on s. 1. Certainly, if the legislative assembly prohibits any media access to the public debates or excludes one form of the media (television) from the public debates, there has been an infringement of the Charter right to freedom of expression. (emphasis added)

40.

While Cory J. dissented on the main issues of the judgment, the majority

did not address whether s. 2(b) was not infringed. Rather, it held that the legislative assembly was immune from Charter scrutiny because of privilege. Sopinka J. agreed with Cory J. that s. 2(b) was infringed.

41.

The public has a constitutional and statutory right to camera access to the The access sought by the Applicants merely serves to facilitate the

hearing.

- 22-

exercise of existing rights. Any restriction on media access would, in effect, be a restriction on public access and therefore would need to be justified with sufficient admissible evidence to be submitted by the party seeking to restrict access under section 1 of the Charter.

42.

While some may argue that there are some considerations in the context

of trial proceedings that may militate against camera access, the Applicants do not agree with such arguments, but also respectfully submit that in any event, those considerations do not arise in this sentencing hearing. As such, regardless of any arguments based on considerations at issue in the context of trial proceedings (which arguments are rejected by the Applicants) those arguments have no application to a sentencing hearing.

43.

In a presentation to a panel on "Courts and the Media", Associate Chief

Justice Murray Sinclair (as he then was) stated: "It was my own personal belief as well that the media is the public. Our system of justice assumes that the public is interested in what we do and in our judgments ... We build large courtrooms in the expectation that the general public will come to hear what goes on... I have some difficulty therefore in understanding why we discriminate so freely against the visual and audio media. Frankly, it doesn't make much sense for me for the visual media has the potential to be even more useful as an educational tool than the print media." Public Inquiry Into the Administration of Justice and Aboriginal People: Presentation to a Panel on Courts and the Media, August 24, 1990, at p. 9 (Tab 16)

44.

Since that time, there have been countless further instances of public

access through television in similar types of hearings.

- 23-

45.

From an historical perspective, Daniel Henry has assembled cases and

data in a 1994 article entitled Electronic Public Access to Court - An Idea Whose
Time Has Come (Tab 17) demonstrating the legitimate grounds and positive

aspects for television camera access to the Courts. 46. One of the examples cited by Mr. Hendry is the decision made by the

Judicial Council of Manitoba at the Public Inquiry into the conduct of Judge Frank D. Allen in 1993 (Tab 18). 47. Further, Daniel Henry, in Free Expression and Publication Bans: Toward a

More Open Criminal Justice System, 19 Nat'l J. Const. L. 337, 2005 (Westlaw:

2006, Thomson Canada Limited), argues (similar to what was stated by McKinnon J. in R. v. Cho), that given the constant presence of such technology, camera access to courts should presumptively be permitted. Any restriction on the presumptive position should be subject to a DagenaislMentuck analysis: In the year 2005, with virtually everyone owning or otherwise comfortable with video cameras, and pervasive video use throughout society, it is high time that the ban on cameras in courts in Ontario be lifted, in favour of a Dagenais analysis each time such a ban is considered. In light of the Charter guarantee of "freedom of the press and other media of communication", the practically total presumptive ban on camera access to trial and appeal courts remains unjustifiable. I remain of the view that the single most important step our judicial system can take to announce that it is open to scrutiny is to permit camera access to courts. Daniel Henry, Free Expression and Publication Bans: Toward a More Open Criminal Justice System, 19 Nat'l J. Const. L. 337, 2005 (Westlaw: 2006, Thomson Canada Limited), p. 16 (Tab 19) 48. A restriction on the Applicants' ability to record and broadcast the

sentencing hearing would be a de facto restriction on the public's right of access, as practically there would not be another method by which the vast majority of the public would be able to access an equally accurate depiction of the hearing,

- 24should they wish to do so. As stated by Mr. Henry, any proposed restriction on the Applicants' ability to record and broadcast the hearing ought therefore to be subject to a OagenaislMentuck analysis. 49. The Supreme Court of Canada has held that the OagenaislMentuck test

applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings.

Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (S.C.C.), para. 7 (Tab 13)
50. The OagenaislMentuck analysis provides that access to information with

respect to judicial proceedings may only be restricted when: i. the restriction is necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and ii. the salutary effects of the restriction 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 to a fair trial, and the efficacy of the administration of justice.

Dagenais v. Canadian Broadcasting Corp., 1994 CarsweliOnt 112 (S.C.C.), para. 77 (Tab 20); R. v. Men tuck, 2001 CarsweliMan 535 (S.C.C.), para. 32 (Tab 21); See also: The Director of Child and Family Services v. D.M.P., IN..G.S. and J.A.M.P., 2009 MBQB 133 (Man.Q.B.), paras. 21 and 22 (Tab 22)
51. In the present circumstances, the Applicants submit that there is virtually

no risk to the administration of justice, nor are there generally any of the concerns warranting any ban on recording and broadcast of the sentencing hearing.

- 25-

52.

Given (a) the significant public interest in the subject matter of the

sentencing hearing (which is also reflected in the media coverage this issue has received to date); and (b) the importance of openness in judicial proceedings, the deleterious effects of a restriction on camera access would be very significant. 53. In Toronto Star Newspapers Ltd. v. Ontario, the Supreme Court of Canada

had occasion to comment on the media's ability to access information that had been used to obtain a search warrant, and when public access may be denied. Fish J., for the Court, noted: Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively "open" in Canada. Public access will only be barred when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.
Toronto Star Newspapers Ltd. v. Ontario, supra, paras. 1, 4 (Tab 13)

54.

Closer to home, the Manitoba Court of Appeal applied Toronto Star in

CTV Television Inc. v. Hogg in allowing the media access to broadcast a videotaped confession where there was no evidence submitted that could justify limiting the Charter right to broadcast the videotape that had been played in open court.
CTV Television Inc. v. Hogg, 2006 MBCA 132 (Tab 23)

55.

The Manitoba Court of Queen's Bench applied the principle recounted by

the Court of Appeal in Hogg in Manitoba (Director of Child and Family Services) v. P.(O.M.), 2009 MBQB 133, (Tab 23), where the Court remarked on the lack of substantive evidence to deny Charter rights to media access.

- 26-

56.

To similar effect, in R v. Fry, 2010 BCCA 169, (Tab 24), the British

Columbia Court of Appeal ordered production of video-taped evidence that had been played in court. There were certain editing restrictions relating to the

identities of undercover police officers for security reasons based on the evidence presented to the court, but no such issues arise from the evidence before this court.

57.

The British Columbia Court of Appeal referred to the Supreme Court of

Canada decisions in Dagenais, Mentuck and Toronto Star and stated at para. 65: The Court [in Men tuck] emphasized at para. 34 that the first branch of the test [the DagenaislMentuck analysis], which turns on "necessity", requires that the risk to the administration of justice be a "real and substantial" one, and well-grounded in the evidence. (emphasis added)

58.

The Ontario Superior Court of Justice came to the same conclusion in R.

v. O'Brien, May 26, 2009 O.S.C.J. (Tab 25) as had the Manitoba Court of
Queen's Bench in Canwest & CTV

v. R 2007 MBQB 40 (Tab 26).

59.

Thus the overwhelming weight of authority makes it clear that it is

fundamental that there must be well-grounded evidence of a real and substantial risk to the proper administration of justice in order for a Charter right (such as the right to camera access) to be restricted.

60.

In CTV Television v. Ontario Superior Court of Justice, Goudge J.A. for

the court cited the Supreme Court of Canada decisions in Macintyre

v. Nova

Scotia (Attorney General), [1982] 1 S.C.R. 175 an d Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, for the proposition that there
is a strong presumption in favour of public access to court records, which should be displaced only with the greatest reluctance and only because of

- 27considerations of very significant importance, such as the protection of the innocent.

CTV Television v. Ontario Superior Court of Justice,

2002 CarsweliOnt 955 (Ont.C.A.), para. 22 (Tab 27) 61. As re-affirmed by the Supreme Court of Canada in Mentuck (at paragraph

38) applying the dicta enunciated in its earlier decisions, the burden of displacing the general rule of openness lies on the party opposing public access. Coincidentally, a few months prior to the Supreme Court of Canada rendering its judgment in Men tuck, Associate Chief Justice Oliphant (as he then was) stated that the burden of proof is on the person opposing disclosure.
R. v. Canadian Broadcasting Corporation and Canwest Television Inc.

(Unreported Manitoba Court of Queen's Bench May 2, 2001) (Tab 28)

62.

In the case of CTV Television Inc. v. R., Mr. Justice Menzies stated that

"without any compelling reason, the general public should not be restricted to the information available simply because they are unable to attend court at the relevant times."

CTV Television Inc. v. R., 2005 CarsweliMan 232 (Man.Q.B.),

para. 13 (Tab 29) 63. In an earlier Manitoba Provincial Court decision in Re: Brian Lloyd Sinclair

Inquest, 2010 MBPC 18 (Tab 30), the court expressed concerns arising out of

some affidavit evidence filed on behalf of proposed witnesses, and although the Court did not refer to the Court of Appeal decision in Hogg (Tab 23), that case has no application because there are no witnesses at the sentencing hearing.

64.

Whereas the Supreme Court of Canada ruled against access to a

videotaped statement in CBC v. Dufour 2011 SCC3 (Tab 31), in that case there was an acquittal (unlike the guilty verdict in Hogg) , and there was evidence of the

- 28-

dire consequences that would follow from the impact of the broadcast as a result of the accused's intellectual disabilities. No such evidence in this case.

65.

Whereas possible salutary effects of a general ban on media recording

and broadcast of the sentencing hearing would be to minimize any possible disruption associated with the presence of cameras, the Applicants are prepared to adhere to reasonable protocols in order to minimize the possibility of disruption. The deleterious effects of a denial of public access to the hearing would therefore not be outweighed by the salutary effects of a restriction. 66. The interests of justice would be best served by televised broadcast of the

sentencing hearing. The examples above indicate that this can be achieved without significant disruption to the proceedings, and the Applicants are willing to adhere to reasonable protocols in order to minimize any potential for disruption of the proceedings. 67. Based on the principles stated above, the Applicants therefore respectfully

submit that the public has a right of access to the sentencing hearing and, the Applicants have the right to record and broadcast the proceedings. Any

restriction on camera access would be a restriction on public access which cannot be justified under section 1 of the Charter.

- 29-

III.
68.

CONCLUSION
The Charter provides the basis for camera access to enable the public to The deleterious effects of a presumptive restriction on

exercise their rights.

camera access would outweigh any salutary effects. 69. The Applicants therefore respectfully request this Honourable Court to

grant the order for television camera access for the sentencing hearing for the purpose of live and recorded broadcasts of the proceedings.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 12th day of March 2012.

Bob Sokalski Counsel for the Applicants, Canadian Broadcasting Corporation, BeliMedia Inc., Shaw Television Limited Partnership and Winnipeg Free Press