1

Submissions by Mr. Jones

1 November 26, 2010

2 Vancouver, B.C.
3
4 (DAY 5)
5 (PROCEEDINGS COMMENCED)
6
7 THE CLERK: Order in court. In the Supreme Court of
8 British Columbia at Vancouver this 26th day of
9 November 2010, recalling the matter concerning
10 constitutionality of section 293 of the Criminal
11 Code, My Lord.
12 MR. JONES: Thank you, My Lord. We're here obviously
13 to hear this application. I was hoping at the end
14 of that I could say a few words about scheduling
15 and hand up a revised witness schedule to the
16 court. For the purposes of my presentation, I'll
17 be referring to a couple of documents. We have a
18 book of authorities that has our written
19 submissions also as tab 1, but I'm handing up as
20 well a separate copy of our written submissions.
21 I understand my friend Mr. Henry has written
22 submissions as well. I should say I gave a copy
23 of my written submissions to my friend when they
24 were completed yesterday afternoon.
25 Understandably, of course, his written submissions
26 weren't available until this morning and he's
27 given me a copy, but I'll be referring to them as
28 well during my presentation, so perhaps --
29 MR. BURNETT: Yes, in that case, My Lord, I'll hand up
30 a book of authorities as well as, inside the front
31 cover, an argument and I'm hand up the affidavit
32 of Daphne Bramham as well.
33 MR. JONES: I think I might have misspoken and called
34 Mr. Burnett Mr. Henry.
35 THE COURT: Just half a sec. Let me get organized.
36 I'm just wondering if I shouldn't read
37 Ms. Bramham's affidavit.
38 MR. JONES: I won't be referring to it, My Lord, but
39 it's quite brief if you'd like to.
40 THE COURT: Okay. Well, go ahead.
41 MR. JONES: Thank you, My Lord.
42 Just recapping the background of this matter,
43 in July and August 2010, the Attorney General of
44 British Columbia filed 14 affidavits in this
45 proceeding that attached video exhibits of witness
46 interviews, which we refer to as "the video
47 affidavits." These were prepared and I believe
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Submissions by Mr. Jones

1 there's an affidavit of Ms. Horsman which is

2 attached at tab 2 that's already before Your
3 Lordship in these proceedings, where she just
4 explains the process by which this happened.
5 These were gathered throughout British Columbia
6 and the United States.
7 I don't think it's in dispute that the
8 exhibits, the videotapes themselves, are the
9 property of Her Majesty the Queen in Right of the
10 Province of British Columbia.
11 The video interviews contain detailed
12 personal accounts of affiants' personal
13 experiences with polygamy, as well as details of
14 their personal lives and family members, and
15 contain, obviously, both the likenesses and the
16 voices of the affiants. The affidavits attaching
17 the videos were marked as exhibits on November
18 24th, 2010, the third day of the hearing of the
19 reference. They have not yet been played in open
20 court.
21 Each of the affiants shown in the video
22 affidavits is a lay witness who has agreed to
23 testify voluntarily, since no witnesses are
24 compellable in this proceeding. None is a party
25 to the proceeding and none is an interested person
26 or a member of an organization that is an
27 interested person in the reference.
28 Prior to October 15th, 2010, the Attorney
29 General declined to provide copies of the video
30 affidavits directly to the media because it was
31 our advice that they were protected as personal
32 information by the Freedom of Information and
33 Protection and Privacy Act of British Columbia.
34 On October 15th, 2010, Ms. Bramham of the
35 Vancouver Sun appeared in court at the case
36 planning conference to apply for access to the
37 video affidavits.
38 Now, the Attorney General of British Columbia
39 took no position on the access application, but
40 agreed to assist technologically through the
41 production of digital copies on a USB drive, if
42 the court directed that Ms. Bramham or other
43 members of the media be permitted to access the
44 videos. The court was advised at that time that
45 the government considered the videos to be
46 personal information for FOIPA purposes.
47 Since that order, copies of the video
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Submissions by Mr. Jones

1 affidavits have been provided to the Vancouver

2 Sun, CBC, CTV and the Globe and Mail. And I
3 believe those are all the entities that were
4 provided them directly by us but, according to Ms.
5 Bramham's affidavit, they appear now on other
6 websites as well.
7 On about November 19th, 2010, this was the
8 Friday before the Monday that the trial or hearing
9 was beginning, the Vancouver Sun began to
10 broadcast edited versions of four of the video
11 affidavits on a special page of its website
12 dedicated to the reference proceedings. The
13 edited versions are approximately 5 to 13 minutes
14 in length. No advance notice, I should emphasize,
15 My Lord, was given to the owner of the videos, the
16 witnesses depicted in the videos, anyone obviously
17 described in the videos or the parties and
18 participants to this reference.
19 These videos are now out there, they're on the
20 internet. The witnesses -- they're there
21 essentially for all time. We can try to restrict
22 at least established sites like Vancouver Sun from
23 showing them, but they're out there. Ms. Lane's
24 children, Ms. Lane's children's children, will
25 have her views of her relationship with their
26 father circulating around the world essentially
27 forever.
28 Now, this happened on the Friday, as I say.
29 On Monday the Attorney General stated his position
30 that the video affidavits could not be broadcast
31 without consent of the witnesses. On Tuesday we
32 advised that we would be bringing an application.
33 On Wednesday we made the application, delivered
34 copies to the Vancouver Sun and other media, and
35 then on Thursday, as Your Lordship knows, this was
36 scheduled to be heard today.
37 The media, represented collectively by Mr.
38 Burnett, takes the position that all of this is
39 entirely proper legally and, I suppose, otherwise.
40 We take the position, of course, that it's not.
41 The position of Vancouver Sun, I think, is that
42 access equals publication rights, and we take the
43 position that they're two very distinct matters.
44 Turning to general legal principles, My Lord,
45 I think we accept that the open court principle
46 with respect to access --
47 THE COURT: Sorry, is it your position that having
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Submissions by Mr. Jones

1 possession of the tapes, they cannot broadcast

2 them? In other words, you don't need a ban; they
3 need some act of permission to broadcast?
4 MR. JONES: That's exactly it, My Lord, yes. Their
5 default position is that -- if I can put it
6 bluntly, that access to the court file equals
7 ownership, that they can deal with these things
8 however they want once access is granted. It's
9 our position that the default with respect to
10 exhibits, is that -- that the default position is
11 for access, but against publication.
12 THE COURT: Well, I mean, the suggestion that the
13 property in these exhibits is in Her Majesty the
14 Queen, when they're filed in the court they're --
15 the property in them is in the court.
16 MR. JONES: Well, I don't believe that's true, My Lord,
17 with the greatest of respect. The cases that I'll
18 take you to indicate that the property of the
19 exhibit remains with the owner of the exhibit, and
20 that although -- and that access may give the
21 right to the media to use them to comment and to
22 cover the court proceedings.
23 THE COURT: I'll be interested in reading that case
24 law.
25 MR. JONES: Yes, My Lord. So we say the
26 Dagenais/Mentuk test have been applied with
27 respect to publication bans and really any -- so
28 far any attempt to restrict the media's right of
29 freedom of expression. We set out the
30 Dagenais/Mentuk test as it has been more recently
31 expressed in the Vancouver Sun. I don't think
32 it's controversial:
33
34 The two stages of the test, such an order is
35 necessary to prevent a serious risk to the
36 proper administration of justice because
37 reasonably alternative measures will not
38 prevent the risk and, B, the salutary effects
39 of the publication ban outweigh the
40 deleterious effects on the rights and
41 interests of the parties and the public,
42 including the effects on the right of free
43 expression, the right of the accused to a
44 fair and public trial and the efficacy of the
45 administration of justice.
46
47 And we acknowledge that the Supreme Court of
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Submissions by Mr. Jones

1 Canada in the Toronto Star case had said that the

2 Dagenais/Mentuk test applies to all discretionary
3 orders limiting the open-court principle,
4 including restrictions on publication. However,
5 we point out, as Mr. Justice Fish did in the
6 Toronto Star case, that the Dagenais/Mentuk test
7 is meant to be applied in what he described as a
8 flexible and contextual manner, and that was
9 reiterated in two paragraphs in the Toronto Star
10 case that we reference there.
11 In the Vancouver Sun case, also known as the
12 named person case, the rights -- the court says
13 that the rights and interests considered are
14 broader than simply the administration of justice
15 and include the rights to a fair trial and may
16 include privacy and security interests.
17 We say that the open-court principle
18 underlying Dagenais/Mentuk is that the media
19 provides an important role as scrutineer of the
20 judicial process, and I don't think that's a
21 controversial point, but we cite the MacIntyre
22 decision for that.
23 The court, we say, is the custodian of the
24 exhibits put before it and has the discretion to
25 control access to and publication of video and
26 audio recordings within constitutional limits.
27 There is a presumption that the public and
28 media should have full access to all documentary
29 evidence to which the trial judge refers, the
30 Province newspapers, and this is just from the
31 headnote of that case:
32
33 Generally all documentary evidence to which
34 trial judges refer should be available to
35 both the media and the public. Because of
36 its reporting role, the media has a right to
37 full and detailed examination of documentary
38 evidence.
39
40 THE COURT: That extends to copying too, doesn't it,
41 now?
42 MR. JONES: I think it has to.
43 THE COURT: Well, no, I mean, the cases say it does.
44 MR. JONES: Indeed, My Lord.
45
46 The principle of an open court and full
47 disclosure of documentary evidence may be
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Submissions by Mr. Jones

1 limited where necessary for a fair trial,

2 however, such limitation is not warranted by
3 embarrassment, fear, inconvenience, as the
4 burden of proof is on the person opposing
5 disclosure to establish some other overriding
6 principle that defines the field of
7 exception.
8
9 Now, perhaps before I go to the Nova Scotia
10 Provincial Court decision in the Hyde case, I
11 might refer you to my friend's argument. We say
12 there's a distinction between access -- this is
13 the written argument that my friend handed up just
14 before we commenced, it's got a grey box on the
15 front. We say there's a distinction between
16 access and publication. And my friend, in
17 response, cites a number of cases, all having to
18 do with the right of access. And perhaps I can
19 take you to paragraph 20 on his page 8, and these
20 express, I think, the principles well. There are
21 1, 2, 3, 4, 5, 6 cases. The first one, paragraph
22 20A, is the Abbotsford News case and I'll just
23 skip down to the last line where he says:
24
25 There should generally be access by the
26 media, as representative of the public, to
27 tapes filed as exhibits at trial. B...
28
29 Start with the second line from the bottom.
30
31 However, the court held on the authorities
32 and the strong presumption of openness that
33 there was no legal reason to deny access to
34 the video tape. C, the Terry Driver case.
35 Mr. Justice Oppal --
36
37 This is the last line of the main paragraph.
38
39 Mr. Justice Oppal said in allowing access ...
40
41 At page 4:
42
43 Mr. Justice Oppal said, our courts must be
44 fully open and accessible to all members of
45 the public, including those who cannot be
46 physically present for the court's
47 proceedings. In any free and democratic
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Submissions by Mr. Jones

1 society the media performs a valuable

2 function in that the act as a conduit ...
3
4 I suppose that should say "they act as a conduit."
5
6 ... to the public about the workings of the
7 justice system. Indeed, CTV Television,
8 which the Manitoba Court of Queen's Bench
9 granted during the ongoing trial access to
10 tapes and conversations with the undercover
11 officers that had been entered as exhibits.
12
13 THE COURT: Are you saying that the case is
14 distinguished between access and publication
15 arising out of the access?
16 MR. JONES: We say that the cases with respect to
17 access at the very least, even if they don't
18 discuss the distinction, at the very least they
19 are talking about the open-court principle in the
20 context of access. And that was --
21 THE COURT: But what good is access if there's no right
22 to then, with freedom of expression, publish the
23 results of the access?
24 MR. JONES: Oh, I'm not saying they can't publish the
25 results of the access, My Lord. They have to be
26 able to -- in order to maintain their role as the
27 scrutineer of the judicial process, they have to
28 be able to describe them, they have to be able to
29 say what's in them. That's different, in the same
30 way that it's different when a witness appears on
31 the stand to tape it or videotape it and then
32 present that in public, as opposed to describing
33 what was said and scrutinizing the judicial
34 process that way.
35 The parallel, in our submission, is exact.
36 My friend disagrees, obviously. But they
37 performed their function just like members of the
38 public do by having access. They do not perform
39 their function --
40 THE COURT: But we have lots of examples of exhibits
41 being reproduced in the press.
42 MR. JONES: Yes, My Lord.
43 THE COURT: During the sentencing of Kelly Ellard the
44 exhibits on the sentencing were actually
45 reproduced in the press.
46 MR. JONES: Yes, My Lord. I'm not sure if those were
47 challenged. And we'll take you to some cases that
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Submissions by Mr. Jones

1 have considered the implications of publication

2 versus the implications of access.
3 THE COURT: CBC and the recent case in Ontario decided
4 by the Ontario Court of Appeal, the video
5 exhibits were, with some prior conditions,
6 republished, reproduced.
7 MR. JONES: Yes. And the cases that I'll take you to
8 show that, for instance, accused persons have a
9 reduced expectation of privacy, for instance, with
10 respect to their police interviews, like we
11 recently saw in the Colonel what's his name case,
12 I forget. There's a reduced expectation of
13 privacy with respect to that. But to suggest that
14 a lay witness is, by providing information to the
15 court, is giving up any rights that they have with
16 respect to their image and their voice being
17 broadcast for eternity on the internet, there's
18 simply no case to support that. My friend has put
19 forward no case to support that and the cases that
20 we will show indicate the other way.
21 THE COURT: I guess the difference is that no one is
22 filming these people, no one is asking for
23 permission to film these people. Their evidence
24 has come in in that form.
25 MR. JONES: Yes, My Lord. Well, the evidence of a live
26 witness has come in through them presenting
27 themselves physically and speaking. If -- we'll
28 go to the Practice Directive, we say that the
29 analogy is quite exact.
30 THE COURT: Okay.
31 MR. JONES: Just finishing off with my friend's, you'll
32 notice that both E and F both refer to access, not
33 to publication.
34 Now, My Lord, if I could take you to tab 11,
35 which is the Hyde case. This is a case where
36 there was an inquiry with respect to the death of
37 a mentally ill individual while incarcerated. And
38 what was at issue, I believe, was interviews or
39 discussions that were recorded between -- of
40 Mr. Hyde in custody. And the question was whether
41 these things whether these videotapes should be
42 part of the live streaming that was being proposed
43 for the -- for the proceeding.
44 And if I can ask you to turn to page 9 of 17
45 and I'll start at paragraph 35, that's tab 11, My
46 Lord.
47 THE COURT: Yes.
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Submissions by Mr. Jones

1 MR. JONES: The court said this:

2
3 No one is suggesting that the proceedings of
4 this inquiry will not be open and accessible
5 to the general public and the media. As I've
6 noticed, the live streaming means that there
7 will be more than the usual access provided
8 for in court proceedings. The video
9 surveillance evidence will be coming before
10 the court -- before the inquiry as an
11 exhibit. That is the context in which the
12 issue of direct downloading has to be
13 examined and it frames the essential question
14 I must answer. Is it contrary to the
15 presumptive openness of court proceedings for
16 a fatality inquiry to prohibit the direct
17 downloading of one of its exhibits to the
18 internet?
19
20 And I'll just flip over the page, this is
21 under the heading "access to court exhibits, legal
22 principles." The court says this:
23
24 If filming court proceedings is not
25 constitutionally mandated, then it follows
26 that the media and general public are not
27 entitled, pursuant to freedom of expression
28 guarantees, to access court exhibits for
29 unregulated and unlimited use. That being
30 said, I do not want to be heard as saying
31 that section 2(b) guarantees play no role in
32 the determination of access to exhibits
33 tendered into evidence in a court proceeding.
34
35 I'm just skipping over to paragraph 45:
36
37 In Vickery v. Nova Scotia ...
38
39 This was a 1991 decision of the Supreme Court of
40 Canada:
41
42 The majority of the Supreme Court of Canada
43 declined to consider a late argument under
44 section 2(b) of the Charter, but identified
45 four significant factors to be accessed when
46 deciding whether access to exhibits,
47 including the ability to copy and
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Submissions by Mr. Jones

1 disseminate, should be permitted. One, the

2 nature of the exhibits as part of the court
3 record; two, the right of the court to
4 inquire into the use to be made of access,
5 and to regulate it; three, the fact that the
6 exhibits, having been produced at trial and
7 open to public scrutiny and discussion, means
8 the open justice requirement has been met.
9
10 In other words, in my submission, if the open
11 justice requirement can be met simply by access
12 and not by publication of the actual videos and
13 the images, then there's no further right under
14 section 2(b).
15 THE COURT: But Vickery really has been overtaken. It
16 was pre Dagenais, pre Mentuk.
17 MR. JONES: It was, My Lord, yes.
18 THE COURT: The Ontario Court of Appeal, in a very
19 strong judgment in CBC, as you know, made that
20 very point, in the context of video exhibits, of
21 the most incredible footage that one could
22 imagine.
23 MR. JONES: I'm not sure --
24 THE COURT: That is the filming of Ashley Smith, was
25 it, Ashley Smith, when she was in custody and the
26 playing of portions of that, reproducing it in the
27 Fifth Estate.
28 MR. JONES: Well, they do say the expectation of a
29 person in custody is much different from the
30 expectation of someone providing other information
31 to the court. I'm not sure if they make that
32 distinction in that case.
33 THE COURT: Well, no, I think you have to -- with the
34 greatest of respect to the Court of Nova Scotia,
35 I'm more moved by the Ontario Court of Appeal.
36 MR. JONES: Understood, My Lord. Nevertheless, I would
37 say that the factors -- well, let me put it this
38 way: Your Lordship recognized, when he was
39 granting access, that there was a distinct legal
40 question with respect to publication.
41 THE COURT: I was thinking of it from the perspective
42 of the ability of the press to report on
43 proceedings that had not yet occurred in open
44 court. I wasn't purporting to limit the press in
45 any way, but I was advising them that they should
46 take some advice in that regard. I presume they
47 did.
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Submissions by Mr. Jones

1 MR. JONES: Yes, well, apparently they did, My Lord.

2 The distinction is perhaps lost on my friends.
3 They're asserting a right not only to publish
4 these things once they're presented in open court,
5 they're asserting the right to publish them simply
6 because they have a right to access and prior to
7 the court proceedings ever commencing, prior to
8 these things being officially received in
9 evidence.
10 THE COURT: Okay. I'm not determining that issue,
11 though, am I?
12 MR. JONES: Well, that's the circumstances in which
13 this happened. It was published prior to --
14 THE COURT: No, but now it's been tendered. I mean,
15 I'm not ruling -- for example, there might be an
16 argument that it's contempt to reproduce evidence
17 that has not yet been exhibited in open court. I
18 don't know. There may well be law suggesting that
19 there is a possibility that that is interfering
20 with the administration of justice in a
21 contemptuous way. I don't know. I don't suggest
22 that is the case, but that may be the argument.
23 But I'm not ruling on any suggestion that the
24 press misconducted itself in publishing these
25 documents at the time they did, am I? I don't
26 think I am.
27 MR. JONES: Only inferentially, from the point of view
28 that we are asserting a default position with
29 respect to broadcast of videos that are exhibits
30 before the court. And --
31 THE COURT: M'mm-hmm.
32 MR. JONES: -- we are on the cusp of an age where we
33 may have extensive attempts by parties to put in
34 competing video evidence and have it published,
35 with those potential impacts on the judicial
36 system weighed in here. There is a difference, My
37 Lord, there has to be a difference between a
38 witness's accepting that they will be reported on,
39 that the judicial process will be scrutinized, on
40 the one hand, and on the other hand that their
41 image and voice will be broadcast for eternity on
42 the internet. There has to be a distinction.
43 That is completely disconnected from the media's
44 constitutional right which is founded on
45 scrutinizing the judicial process and ensuring the
46 public that there's nothing untoward happening.
47 The publication is entirely unnecessary for that
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Submissions by Mr. Jones

1 purpose. And the default, we say in those

2 circumstances, should be no publication. Come to
3 the court for an order, give notice to the witness
4 at least, so that the witness can show up and --
5 THE COURT: I'm still struggling with your distinction
6 between -- they have the document, they have the
7 video clip --
8 MR. JONES: Yes, My Lord.
9 THE COURT: -- which the witness chose to voluntarily
10 produce their evidence in that fashion. And that
11 makes it different from whether the CBC or the
12 Vancouver Sun is asking to come in here and film
13 that. That is a different issue. These
14 witnesses, for their own reasons, voluntarily
15 agreed to a video -- a videography of their
16 evidence, which is a very interesting way of
17 tendering evidence.
18 MR. JONES: There's no mystery about the reasons for
19 it. The reasons for it is, among other things,
20 prevents someone from a small community in Arizona
21 from having to come up and testify, unless they
22 need to be cross-examined, and yet will still have
23 the ability to put in their evidence in their own
24 words, colloquially, instead of having it drafted
25 and redrafted by lawyers and presented in written
26 affidavit form.
27 It's certainly not within the expectation,
28 necessarily within the expectation that they're
29 therefore publishing that to the world because
30 they're submitting it to the court, and certainly
31 the affidavit with respect to the one witness
32 indicates that that wasn't the expectation.
33 THE COURT: Okay. I'm still having trouble
34 distinguishing between CBC or the Vancouver Sun
35 having possession of this video evidence and their
36 inability, you say, to publish it.
37 MR. JONES: Well, I mean, I didn't come here prepared
38 to rely on intellectual property rights, but if
39 you can consider the analogy of someone attaching
40 an article or a book to an affidavit, as there's
41 been many of these in this case, then under CBC's
42 argument they can simply scan that and put the PDF
43 of the book on their website.
44 THE COURT: Well, no, the author of the book didn't
45 consent to that happening.
46 MR. JONES: Well, in some cases they did, My Lord. In
47 some cases it's the author of the book that swore
 13
Submissions by Mr. Jones

1 the affidavit in this case.

2 THE COURT: They might have retained copyrights.
3 MR. JONES: I don't think you have to retain copyright
4 explicitly. I don't think there's any authority
5 for the proposition that an exhibit before the
6 court loses its copyright, but, again, I'm not
7 here to argue intellectual property.
8 THE COURT: No, okay.
9 MR. JONES: I would just return to the Nova Scotia
10 decision and its invocation of Vickery, because
11 clearly the court there felt the factors of
12 Vickery spoke to this question. And nothing, as I
13 understand it, from the jurisprudence since, and
14 I'm sure my friend will take us to it if it exists
15 has undermined the general principles that that
16 case established and they're reproduced at
17 paragraph 46 of the Hyde decision, the important
18 observations from Vickery.
19
20 First, exhibits are not the property of the
21 court. Others will have a proprietary
22 interest in them. Once exhibits have served
23 their purpose in the court process, the
24 argument based on unfettered access as part
25 of the open-court process lying at the heart
26 of the administration of justice loses some
27 of its preeminence.
28
29 THE COURT: Let me interject. That surely cannot apply
30 to affidavit evidence, that's evidence. Once they
31 give their evidence it's the property of the
32 court. I mean, if you're talking about financial
33 statements of a company that have been exhibited
34 in court, I can understand the technical
35 difference between property interest in those and
36 the ability to access them, there's maybe a
37 distinction there, but in the odd situation that
38 we're in here we're actually talking about the
39 evidence before the court, not an exhibit of a
40 document, but somebody's evidence, and surely that
41 is the court's.
42 MR. JONES: I would say that with respect to something
43 that was produced, even for the purposes of
44 submission, that once it's played in open court,
45 the court has a corollary proprietary interest. I
46 don't think it overcomes the other interests that
47 have to be weighed with respect to publication,
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Submissions by Mr. Jones

1 and I don't think it's infringed at all by the

2 publication in the way that the rights that might
3 reside with the witness or with the owner of the
4 videotape would.
5
6 The second point is that the court is the
7 custodian and is fully entitled to regulate
8 the use to which the exhibit is to be put by
9 the access seeker. The third point is that
10 the open justice requirement is met by the
11 production at trial of an exhibit and its
12 exposure to public scrutiny and discussion.
13 Privacy rights may be surrendered during a
14 court proceeding, but they are not
15 surrendered for all time. Public access to
16 and reporting of the proceedings is a price
17 to be paid in the interest of ensuring
18 accountability of those engaged in the
19 administration of justice. The subsequent
20 release of selected exhibits is fraught with
21 risk of partiality, with a lack of fairness.
22
23 And then the court says:
24
25 In Vickery the application to access the
26 exhibits which were video and audiotaped had
27 been granted by the chambers judge but
28 overturned on appeal, a decision that was
29 upheld by the majority of the Supreme Court
30 of Canada. Even in granting the access
31 originally, the chambers judge stated that
32 had she been asked to rule on whether the
33 video or audiotapes could be played on
34 television she would have imposed
35 restrictions on their viewing to protect
36 privacy rights involved. This is a clear
37 indication that even a decision to grant
38 access would have taken into account the
39 extent of the public access intended and
40 imposed conditions accordingly.
41
42 And then over the page at page 56 it notes that:
43
44 The Supreme Court of Canada has not
45 considered since Vickery the issue of public
46 access. It will be doing so on an appeal by
47 the Canadian Broadcasting Corporation from a
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Submissions by Mr. Jones

1 decision of the Quebec Court of Appeal

2 denying permission to the media to broadcast
3 images from a videotaped statement made by an
4 accused before he was charged to a person in
5 authority.
6
7 And then it notes that leave to appeal the case
8 was granted on April 30th, 2009. And, I'm sorry,
9 My Lord, I haven't had a chance to follow that up.
10 THE COURT: I think Canada told us the other day that
11 it was still --
12 MR. JONES: Is that the case --
13 THE COURT: -- on reserve.
14 MR. JONES: -- that's presently pending?
15 Just over to 65:
16
17 There is no question that this inquiry will
18 fulfill a vital educative function in
19 discharging its mandate to investigate
20 Mr. Hyde's death. Those parties seeking
21 direct downloading of the video surveillances
22 have emphasized the value of that public
23 education and the discussion that may well
24 ensue from the evidence that comes out.
25 However, rights have to be respected at the
26 same time that the public's understanding of
27 events is illuminated. Although said in the
28 context of the inquiry established under the
29 Public Inquiries Act and referring to the
30 reputational rights of persons whose conduct
31 was under scrutiny, the Supreme Court of
32 Canada's observations in the Krever Inquiry
33 are apposite here.
34
35 And just the last sentence of that quote:
36
37 No matter how important the work of an
38 inquiry may be, it cannot be achieved at the
39 expense of the fundamental rights of each
40 citizen to be treated fairly.
41
42 I'll just return to my submission, My Lord, at
43 paragraph 14. A very recent and helpful BC
44 decision is that of Mr. Justice Powers in
45 R v Shellenbourne. In that case transcripts of
46 audio recordings of conversations between the
47 accused and the children's mother, Ms. Clark, had
 16
Submissions by Mr. Jones

1 been made available to the media, while the

2 recordings themselves were played in open court.
3 The applicant media organizations applied for an
4 order for access to and an opportunity to hear,
5 duplicate, publish, distribute and broadcast two
6 audiotapes played in open court during the crown
7 testimony.
8 And, of course, that is a much greater
9 application than was made by the Vancouver Sun in
10 this case, and it was granted by Your Lordship.
11 The court denied the application and after a
12 thorough review of the available cases, Justice
13 Powers wrote:
14
15 This is a particularly tragic case which has
16 attracted the attention of the public. The
17 children's mother agreed to assist the RCMP
18 in their investigation by allowing her
19 conversations with the children's father on
20 the telephone in the KRCC to be recorded.
21 This was an extremely difficult thing for her
22 to do and it is obvious from the exhibits
23 themselves, stressful at the time. The
24 audiotapes reveal her pain and distress. Her
25 privacy would be significantly impacted if
26 these materials were reproduced. They could
27 well be published on the internet. Many
28 media outlets, in particular, the Canadian
29 press, provide information over the internet.
30 The recording of her voice would be
31 accessible for an indefinite period of time
32 by anybody doing simple research on the
33 internet. She would know that her pain and
34 anguish could be exposed indiscriminately
35 over and over again to anybody with access to
36 the internet. I'm told by Crown counsel that
37 after discussions with her it is her position
38 that this would be extremely damaging to her
39 and prolong her already significant
40 suffering.
41 I am satisfied that the children's
42 mother's concerns and privacy interests go
43 much beyond mere embarrassment. To allow her
44 suffering in her own voice to be available to
45 the entire world indiscriminately would pose
46 a serious risk to the proper administration
47 of justice, in the sense that it would impact
 17
Submissions by Mr. Jones

1 negatively on the reputation of the

2 administration of justice if the court simply
3 allowed revictimization of the children's
4 mother in this case.
5 I am also satisfied that the salutary
6 effects of the publication restriction or the
7 denial of the right to copy the exhibits
8 outweighs any deleterious effects on the
9 rights and interests of the parties and the
10 public, including the effects of the right to
11 free expression.
12 The media, including the applicants,
13 already have access to the transcripts of
14 these conversations. Accredited members of
15 the media may listen to the audio without
16 reproducing it or recording it themselves, if
17 they wish to make arrangements with the court
18 registry to do so.
19
20 And that's the distinction here, My Lord, they
21 can listen to the audio and we've facilitated
22 that, they can watch the video and we've
23 facilitated that, but they have to demonstrate
24 that there is a necessity, a constitutional
25 necessity, for going further and putting the video
26 and the audio itself on the internet.
27 The open-court considerations: We say that
28 publication bans on video evidence have been
29 declined where broadcast serves the interest of
30 the administration of justice. However, we say
31 there's no case in which the attorneys are aware
32 where publication has been permitted of videotapes
33 of witness testimony without the witness's
34 consent, at least where that testimony is of a
35 highly personal nature.
36 Now, my friend has put affidavit evidence in,
37 as Your Lordship knows, that says one of the 14 --
38 THE COURT: Well, I actually haven't had a chance to
39 read it.
40 MR. JONES: I see.
41 THE COURT: Are you referring to --
42 MR. JONES: The affidavit of Ms. Brown. And she says
43 that one of the 14 and one of the four that
44 appeared on the website is, in fact -- has been on
45 the Dr. Phil show, discussing her personal
46 history.
47 We say surely the constitutional test can't
 18
Submissions by Mr. Jones

1 turn on that. The principle can't turn on whether

2 someone has exposed themselves previously, because
3 they must retain control over the extent to which
4 that happens.
5 THE COURT: Well, it goes to whether there is simply --
6 is there any substance to their concern that
7 they're prejudiced. Surely it goes to their bona
8 fides in suggesting that they are prejudiced by
9 the publication of the video. If, in fact,
10 they've in the past freely made this type of
11 "evidence" in quotes available on Dr. Phil.
12 MR. JONES: Well, we're not sure and I don't think it's
13 in there what was said on Dr. Phil, although
14 perhaps we can see that or how it goes further.
15 But the question really should be, if the
16 default position is as my friends say, which is
17 access equals publication, then anyone tendering
18 an exhibit in every trial has to stop the trial,
19 apply for a publication ban, and then there's
20 going be an argument over how much they've said
21 previously, what they're saying here and whether
22 it goes any further.
23 THE COURT: Well, the law -- isn't the law that filing
24 an exhibit is indeed attorning to the jurisdiction
25 of the court, which now says, under the
26 Dagenais/Mentuk test, that the onus is on the
27 person who wishes to deny publication to show that
28 it shouldn't be published. I mean, that is the
29 law now. So, indeed, the onus is on your --
30 MR. JONES: We would say the Dagenais/Mentuk test kicks
31 in when the -- well, no. Whether or not it kicks
32 in when the thing is read in open court or not is
33 beside the point, for at least these videos.
34 Assuming that it does, the question is really how
35 far does it go based on the principles underlying
36 it? And the principles underlying it are the
37 press has the constitutional right to do what is
38 necessary, but only what's necessary, to report
39 and scrutinize the proceedings. And it is not an
40 unlimited right to use and dispose of the
41 videotapes however it sees fit for all time.
42 THE COURT: Let me back up just a bit. You're saying
43 that if the press have a copy -- have obtained a
44 copy, lawfully obtained a copy of the document or
45 the video extract, that before they do anything
46 with it they must apply to the court for
47 permission to do so? I mean, I know they did in
 19
Submissions by Mr. Jones

1 Schoenborn, but possibly the answer to that is

2 that they didn't have to ask for permission to
3 publish it, that was something that they needn't
4 do, but you're saying they have to come back and
5 ask for permission to publish it?
6 MR. JONES: I'm saying they have an automatic and
7 constitutional right to access, but they have no
8 automatic and constitutional right of publication.
9 THE COURT: So they have to come and ask for an order?
10 MR. JONES: At the very least, My Lord, they have to
11 ask somebody.
12 THE COURT: Why? Where does the law say that? I mean,
13 that strikes me as --
14 MR. JONES: I guess it depends on your default
15 position, My Lord. I mean, where does the law say
16 that they don't?
17 THE COURT: Well, I would have thought the minute you
18 get access and the right to a copy, which CBC --
19 the Ontario Court of Appeal seems to suggest that
20 the right to copy is inherent in the right to
21 access, subject to certain limitations. I would
22 have thought once you have a copy in your hands
23 there has to be some law that says you can't
24 publish it.
25 Now, there are laws, of course, there's
26 defamation, and they may kick in, to the extent
27 they're publishing something before it's been
28 heard in open court. They may have a defamation
29 issue they have to face, but that's not for me to
30 say. They may have a contempt concern, of course,
31 if they're interfering with the administration of
32 justice by doing something they shouldn't have
33 done, but that again is not the concern on this
34 application, as far as I can see. So there are
35 laws they have to comply with, but I know of no
36 law, and I invite you to show me if there is, that
37 says they must apply for the right to publish what
38 they possess in their hands.
39 MR. JONES: If they found one of these videotapes on a
40 bus in the back of a taxicab --
41 THE COURT: Right.
42 MR. JONES: -- the default would be you can't just slap
43 that up on the internet.
44 THE COURT: Why?
45 MR. JONES: Because it's not yours. You -- I mean,
46 surely that's the case.
47 THE COURT: I don't mean to be difficult, I don't see
 20
Submissions by Mr. Jones

1 that, that surely that must be the case. I mean,

2 if they found a book on the bus they know they
3 can't simply reproduce it because there's a
4 copyright on the book, it hasn't been waived.
5 MR. JONES: If you're suggesting, I suppose, My Lord,
6 that there's a legal waiver of copyright involved
7 in submitting something attached to an affidavit,
8 then we would dispute that. We don't know what
9 the basis for that waiver would be. We know of no
10 case that suggests that there's a waiver of
11 copyright.
12 THE COURT: Well, again, of course --
13 MR. JONES: If this is somebody's home video, then you
14 also have privacy concerns. But my friend would
15 say, set all that aside.
16 THE COURT: And they have ethical concerns. And maybe
17 the press counsel would say something about them
18 reproducing a person's private video that they
19 found on the bus.
20 MR. JONES: Right.
21 THE COURT: But where's the legal prohibition?
22 MR. JONES: Well, I've just suggested two. One is
23 copyright. I mean, if you find somebody's home
24 movie on the bus, then you'd have the copyright
25 problem and you'd also have privacy problems.
26 It seems to me just wrong to suggest that the
27 default position should be you can publish it if
28 you want.
29 THE COURT: Of course, that example breaks down because
30 here the Sun has lawfully received custody of the
31 video evidence.
32 MR. JONES: They've lawfully received access to it,
33 My Lord, and they've received a copy only to
34 facilitate the access. I suppose you could set up
35 a room here and say, you can come during these
36 hours and watch the video but that's it. But, you
37 know, frankly speaking, in this digital age, it's
38 so much easier and more convenient for everyone
39 involved to do that digitally. But there has to
40 be some default restraint put on that.
41 THE COURT: Well, no, I'm suggesting that the
42 default -- the restraint has to be put in place at
43 the time we're giving them the video evidence.
44 And no conditions were placed on that.
45 For example, in CBC, when CBC obtained this
46 very disturbing video evidence of the young woman
47 who was in custody, certain conditions were
 21
Submissions by Mr. Jones

1 imposed on the CBC and their use of the video,

2 which CBC didn't complain about. But they were
3 placed on CBC at the time they were given access
4 to the video. Here we're doing it ex post facto,
5 after the fact.
6 MR. JONES: Agreed. And with respect to at least the
7 ten that haven't been put up on the internet yet.
8 I'm not sure if that makes any difference, except
9 mea culpa, for not bringing the -- for not
10 fighting the application on that basis.
11 But, you know, consider that an application
12 of this sort is made, for instance, without any
13 notice to the witness, as it was here. Where's
14 the fairness in that? So, I don't think that the
15 lateness of our bringing the application changes
16 the analysis at all.
17 If Your Lordship concludes that this
18 restriction should have been put in place then,
19 then it should be put in place now.
20 And again, My Lord, we -- I won't dwell on
21 this point because I sense you're not persuaded,
22 but the Practice Directive of this court, which
23 appears in the authorities at tab 4, clearly puts
24 a primacy on the witness's consent as an element
25 of broadcast. That in attorning, as Your Lordship
26 put it, to the court to provide the testimony in
27 open court, they are not attorning to the
28 subsequent broadcast. The media has access to it,
29 but they don't have republication rights.
30 And I just take Your Lordship to page 3 of
31 the Practice Directive, not that you aren't
32 familiar with it, under paragraph 7(c):
33
34 Any witness, counsel or other participant in
35 the proceeding who objects to being
36 identified pictorially or by voice or to
37 being portrayed on television must not be
38 recorded:
39
40 And then I -- over the page, "any authorized
41 recording," and here I would say this, My Lord:
42 Even if the analogy were this, that in providing a
43 video affidavit the witness has consented -- the
44 witness is in the same position as a witness in a
45 televised proceeding who had consented to being --
46 sorry, in a witness to a videotaped proceeding who
47 has consented to being videotaped, I say this:
 22
Submissions by Mr. Jones

1
2 Any authorized recording may be used only for
3 the purposes authorized and not during the
4 time period specified --
5
6 Sorry:
7
8 -- and only during the time period specified
9 in the authorization. Use for any other
10 purpose or time period requires the applicant
11 to obtain the fully informed consent of all
12 parties depicted and/or heard in the
13 recording and must be subject of a separate
14 court application and order pursuant to these
15 provisions.
16
17 So even if the witness consents to having the
18 thing videotaped for the court's purposes, and we
19 say that's the analogy here, that's not enough.
20 The onus is still on someone who wants to use it
21 for another person to make the application. And
22 we say that's good policy and that it should apply
23 in this case.
24 Now, the next part deals with a little more
25 balancing of interests, My Lord, and in the
26 interest of time I won't dwell on it, but the
27 affidavit of Karen Horsman speaks to the
28 difficulty in obtaining the co-operation of
29 witnesses in this very sensitive matter. She
30 notes that many of the witnesses still have family
31 within the communities. And that that makes
32 speaking out on these issues very difficult.
33 THE COURT: Sorry, I don't know that I -- where is her
34 affidavit?
35 MR. JONES: It's in the authorities, My Lord, at tab 2.
36 THE COURT: Okay, right.
37 MR. JONES: And so she speaks to the difficulty of
38 getting co-operation. From our submission, these
39 witnesses should not be penalized for their
40 decision to assist the court.
41 This Ruth Lane, the woman to whom Ms. Bramham
42 refers, mother of six, is actually against us on
43 this reference. She says she doesn't think it
44 should be criminalized and things would be a lot
45 better if it wasn't. We put in her evidence
46 anyway because it's useful. People like her, in
47 this case, we rely on volunteers. Your Lordship
 23
Submissions by Mr. Jones

1 has made an extraordinary order for confidentially

2 on the basis of encouraging volunteers. There
3 will be analogous proceedings where people aren't
4 compellable, where the court or an inquiry or
5 something will be relying on the co-operation of
6 people coming forward. But even where they are
7 compellable, practically speaking, the court, the
8 administration of justice relies heavily on people
9 coming forward and volunteering, because
10 practically speaking, if they're not willing
11 witnesses they're not going to be witnesses before
12 the court.
13 So we say the proper administration of
14 justice here requires that these people should not
15 be penalized by having the details of their family
16 lives, for all purposes, for all time, released to
17 the Vancouver Sun or the other --
18 THE COURT: But, I mean, if it was an affidavit, it
19 could be reprinted all over the world. The words
20 could be reprinted. All we're talking about here
21 is an image.
22 MR. JONES: Yes. And I suppose if it was affidavit --
23 THE COURT: I know that viscerally there's a
24 distinction between the actual voice and the
25 picture, but --
26 MR. JONES: It's not just visceral, My Lord. Obviously
27 that's the reason perhaps that my friends will
28 invoke for saying this is why it's so valuable,
29 but from a privacy standpoint there's a huge
30 difference, a huge difference between your face
31 and your voice on the evening news and an excerpt
32 from your affidavit, even if it's a pictorial
33 excerpt from your affidavit. From a privacy point
34 of view that's huge. And that's why the Privacy
35 Act, for instance, has this whole special
36 category, has a whole special port relating to the
37 use of image, and it refers to still or moving
38 images. There is a difference there.
39 Anyways, subject -- I hope, given the recency
40 of my friend's argument, that I might be entitled,
41 if necessary, to reply. But those are my
42 submissions, My Lord.
43 THE COURT: Thank you. I'll take a break while I read
44 this affidavit that I have not read yet. Thank
45 you.
46 THE CLERK: Order in court. Court is adjourned for the
47 morning recess.
 24
Submissions by Mr. Burnett

1
2 (MORNING RECESS)
3
4 THE CLERK: Order in court.
5 THE COURT: Thank you. Mr. Burnett?
6 MR. BURNETT: Thank you, My Lord.
7 I'm going to begin by referring briefly to the
8 salient affidavit evidence that's before the court
9 on the matter. As you'll see and undoubtedly
10 know, the test ultimately is one of whether the
11 evidence meets the test for a publication ban.
12 The first affidavit I'll refer to briefly is
13 actually not Ms. Bramham's, but the one appearing
14 at tab 3 of my friend's blue book, and it's the
15 affidavit that is, as I read it, the entirety of
16 the evidentiary basis for the ban that is sought.
17 I believe it's the affidavit three of Leah
18 Greathead.
19 THE COURT: M'mm-hmm.
20 MR. BURNETT: And what it says at paragraph 3 is:
21
22 When we took the video affidavits we
23 explained to the deponents that the videos
24 would be played in open court and accessible
25 to the public.
26
27 And it goes on in paragraph 4 to express,
28 somewhat second-hand, to the court, an e-mail
29 message from one of the deponents who simply says
30 they wash themselves and, "I'm happy to share my
31 experience but didn't realize that just anyone
32 could exploit me that way without my permission."
33 And then paragraph 6 refers to follow-up
34 telephone call, the deponent confirmed that they
35 had not given their consent to broadcast the video
36 and that they wanted the broadcast of the video
37 that they agreed to for court purposes removed
38 from the internet.
39 So what we have is a witness who has given
40 evidence upon which this court is to rely and for
41 which she should be accountable, as any witness
42 before Her Majesty's courts, and someone who has
43 expressed a preference, I don't think it can be
44 put any higher than that, that the evidence not be
45 available in broadcast or internet form. She
46 hasn't cited any stress, any upset, there's no
47 doctor's report, there's no indication of
 25
Submissions by Mr. Burnett

1 consequences or harassing phone calls or anything

2 one might expect on an application of this sort.
3 My submission is that to grant the ban on the
4 basis of -- even to grant the ban on this one
5 witness alone, let alone any others, on the basis
6 of a witness's what I'm going to describe as whim,
7 would be tantamount to allowing a witness to say,
8 well, let's close the courthouse doors. I'd
9 prefer nobody to watch my testimony. We just
10 don't do that. This is an accountable,
11 transparent open, process and sometimes it's a
12 tough process.
13 In this case there's no evidence of putting
14 any hardship of any sort on the witness, but it's
15 a process that requires someone to stand up in a
16 public way and say their piece.
17 The second affidavit I wish to refer to is the
18 affidavit of Daphne Bramham. And I will confirm
19 to the court that the person whose name is
20 referred to repeatedly in the affidavit is indeed
21 the person my friend identified to me following
22 yesterday's direction as the objector, who -- and
23 Ms. Bramham's affidavit points out where the video
24 is located on the internet, at least to her
25 knowledge, points out that the person who is the
26 objector has spoke up publicly at a news
27 conference in Creston.
28 THE COURT: I'm sorry, the person in Ms. Bramham's
29 affidavit is the person that she identifies is the
30 person identified in paragraph 3?
31 MR. BURNETT: That's correct, yes. So this very person
32 upon which the entire application is based
33 appeared publicly and made public statements with
34 reporters present at a protest or news conference
35 in Creston. That's paragraph 6.
36 At paragraph 7, appeared on the syndicated
37 national television show Dr. Phil, spoke openly
38 about her lifestyle, and Exhibit A, is a -- which
39 is still available on the Dr. Phil show website,
40 which contains quotes from her, not very different
41 from the quotes in her video affidavit that are on
42 the net.
43 When asked about girls as young as -- page 3
44 of Exhibit A, when asked about girls as young 14
45 forced to marriage, she said, "I knew that when I
46 grew up. That was not the norm. That was
47 something that started to take place after the
 26
Submissions by Mr. Burnett

1 year 2000." And then she discloses that, at least

2 that time, her husband had between 12 and 20
3 wives. She goes on on page 4, top right, where
4 she says, "I feel like I'm in control and at the
5 same time I have a great deal of love and respect
6 for my husband, but I'm free to make my own
7 choices." And then she goes on to talk about what
8 she thinks should be the legal situation,
9 something that she says in her video affidavit
10 before this court. Her picture is shown to the
11 left.
12 And so I say, My Lord, that the suggestion
13 although the onus would be on her or the applicant
14 to indicate what negative effect is being shown
15 publicly would be, the suggestion, if there is
16 any, when she said many of the same things
17 certainly on the same topic to a mass national
18 audience, is a stretch, to say the least.
19 Paragraph 8 of the affidavit references an
20 article in Time magazine, which is Exhibit B to
21 the affidavit. This is the Canadian edition of
22 Time magazine, in which, if you go over to that
23 exhibit, the first page is page 7 of the exhibits,
24 and the first paragraph it refers to her by name,
25 on page 8 in the third paragraph there's a quote
26 from her, "It's the lifestyle I chose. I wanted
27 it." It's near the end of that paragraph. It
28 begins with the word "Blackmore." At the end of
29 the Time magazine piece there's a reference to and
30 I presume it has to do with the original
31 non-internet version of this contained a photo of
32 her, and they say they're pleased with the
33 lifestyle they've chosen.
34 So I'm not going to take you through every one
35 of the news article of the Vancouver Sun, ones
36 that have quotes of the question conference and so
37 forth, but I think that makes the point.
38 The last aspect of the Daphne Bramham
39 affidavit, My Lord, that I wish to highlight is
40 paragraph 10 in which Ms. Bramham summarizes what
41 information is on the internet posted copy of her
42 video affidavit. Talks about when she married
43 Winston Blackmore, the number of wives, total
44 number of children, limited time he had for
45 children and wives, in a broad sense, the fact
46 that having so many children was both good and bad
47 financially, and her opinion on how the court
 27
Submissions by Mr. Burnett

1 should rule in this case. It's not, I have a

2 medical condition and here's what it is, it's not,
3 here's some details about my life.
4 I'll turn now to my written argument. And
5 just by way of introduction, My Lord, and to sort
6 of, if I may, plunge right into the heart of what
7 my friend's argument is, which is there's all
8 these cases that grant access. That's all they're
9 doing, they're not granting publication rights.
10 And I can say, My Lord, in 20 years I've probably
11 done certainly in excess of three dozen, access to
12 various recordings, video, audio. In every single
13 case, including the ones listed in my argument my
14 friend referred you to, publication followed. And
15 in fact it's not correct for my friend to say
16 they're only granting access, because in several
17 of those cases there were particular things, such
18 as undercover officers or a young offender's
19 identity, where certain aspects had to be
20 restricted at the time of granting access. So by
21 definition, at least inferentially if not quite
22 explicitly, the court is understanding in granting
23 such an order that it includes publication, and
24 the time to ask for a restriction is then. And,
25 of course, in this case there was no such request.
26 THE COURT: But let's -- with respect to the ones that
27 aren't posted yet, you're not suggesting your
28 friend couldn't come now and ask for some
29 restrictions? You'd have an onus to satisfy me
30 that --
31 MR. BURNETT: Yes. I'm saying that -- and I gather
32 that's what he's doing now. And I'm not
33 suggesting -- my friend referred to a time period
34 and forever being on the internet. It's a bit of
35 a stretch to expect that's what would happen, but
36 I'm not suggesting that at some point in the
37 future if circumstances were to change, for
38 example, that my friend or, indeed, any of the
39 individuals couldn't make an application and meet
40 the onus.
41 I'll go over to the -- on of page 2 of my
42 argument, My Lord. And there I quote the very
43 familiar Dagenais/Mentuk test for a publication
44 ban. And that test applies no matter what the
45 publication is, be it a ban on identity, be it a
46 ban on a particular aspect, or be it a very all
47 encompassing kind of ban, though the breadth of a
 28
Submissions by Mr. Burnett

1 ban has to do with one of the factors to be

2 considered.
3 Indeed, in the Mentuk decision, which I've
4 cited at the end of the quoted test, there's -- it
5 was primarily a decision, or at least most
6 remembered decision which held that these RCMP
7 undercover scenarios could no longer be banned.
8 They were a matter of important public discussion,
9 whatever inconvenience their publicity might give
10 to the RCMP. But there was an aspect where the
11 court did grant a ban on someone's identity, so it
12 engaged a safety or a privacy or a personal
13 interest of that sort towards the end of that
14 decision. And even there the same test is
15 applied. The court looks at, you know, in the
16 case of an undercover officer, a pretty obvious
17 and grave physical concern if someone's
18 identified. And even there wrestled with the
19 test. I think it's paragraph 56 and following in
20 Mentuk, wrestled with the test and concluded that
21 only a time-limited ban even in that extreme case
22 was necessary. So for my friend to say, well, in
23 effect, saying this person is entitled to not have
24 the -- this entered affidavit or this entered
25 exhibit, this video, made public, really has the
26 onus completely backwards.
27 At paragraph 2 from Dagenais I've inserted a
28 helpful section of that decision which provides
29 guidance to judges dealing with these motions.
30 And it's essentially another way of saying what
31 the test was, but saying, here's what a judge
32 should do, should review the publication, the
33 parties seeking to justify the limitation bears
34 the burden. I've underlined that at paragraph
35 (c). And then further on:
36
37 The parties seeking the ban bears the burden
38 of proving that the proposed ban is
39 necessary, that it relates to an important
40 objective and cannot be achieved by a
41 reasonably available and effective
42 alternative measure, and that the proposed
43 ban is as limited in scope.
44
45 Et cetera, as possible, and that there's
46 proportionality.
47 Over the page to page 3 of my argument, My
 29
Submissions by Mr. Burnett

1 Lord. One of the things and perhaps the most

2 important thing that happened in Dagenais is the
3 balance was shifted. The court commented in that
4 case that there was once a time when, if there was
5 some risk to a fair trial, which is how these
6 often arise, even if somewhat speculative, the
7 publication or the free expression rights yielded
8 to that risk. And that's the main thrust of
9 Dagenais, was to write that down and say we need
10 -- a publication ban is only -- you only get over
11 the threshold when you prove a real and
12 substantial risk. It's not a protection against
13 remote and speculative dangers. In my submission
14 what is presented to this court on this
15 application is nothing, it's not even a remote
16 speculative danger, it's just a whim, a preference
17 by a witness.
18 I've quoted in paragraph 4 some passages from
19 Mentuk and I emphasize this one of the -- or I
20 emphasize them all, about the real and substantial
21 risk in the first passage. And then at paragraph
22 34, it must be a risk the, reality of which is
23 well grounded in the evidence. It must also be a
24 risk that poses a serious threat to the proper
25 administration of justice.
26 And I concede that the safety or the integrity
27 of a particular witness falls into that category
28 potentially, but in the evidence before the court
29 it doesn't come anywhere close, in my submission.
30 Paragraph 5 I just summarize what I took you
31 to in the Leah Greathead affidavit. Paragraph 6 I
32 say it doesn't meet the test.
33 And at paragraph 7 I've gone back to a
34 decision that was actually, just by a few months,
35 a pre-Charter decision, MacIntyre and AG Nova
36 Scotia, but it remains one of the seminal
37 decisions and one that's quoted often. In that
38 decision Mr. Justice -- or Chief Justice Dickson,
39 addressed head on the argument that sometimes
40 raises, and that's what I'll call the privacy
41 argument, and I've included that passage, although
42 it's somewhat lengthy, but I commend it to the
43 court. The court says:
44
45 Let me first deal with the privacy argument,
46 although this is not the first occasion on
47 which such an argument been tested in the
 30
Submissions by Mr. Burnett

1 courts. Many times it's urged that the

2 privacy of litigants require the public to be
3 excluded ...
4
5 And so forth. Going down to about the last
6 four lines of the paragraph:
7
8 As a general rule the sensibilities of the
9 individuals involved are no basis for the
10 exclusion of the public from judicial
11 proceedings. The following comments of
12 Justice Laurence in R. v. Wright are apposite
13 and were cited with approval by Justice Duff
14 in Gazette Printing v Shallow:
15
16 Though the publication of such
17 proceedings may be to the disadvantage of
18 the particular individual concerned, yet
19 it is of vast importance to the public
20 that the proceedings of courts of justice
21 should be universally known. The general
22 advantage to the country in having these
23 proceedings made public more than
24 counterbalances the inconveniences to the
25 private persons whose conduct may be the
26 subject of such proceedings.
27
28 Then it goes on to talk about the importance
29 of openness broadly.
30 If I can skip over, My Lord, to the top of
31 page 5 of the argument where I've included some
32 passages from one decision, and it was a bit of a
33 scramble to get ready, so I apologize if CBC v.
34 New Brunswick decision is actually not in the
35 material, but the passages I quoted are from that
36 decision about -- and it goes back to, really, the
37 basis for why the test is as tough as it is when
38 someone's seeking a publication ban. It's because
39 of the vital importance of openness and
40 transparency in the courts.
41 I say, My Lord, that that applies to all
42 proceedings before Her Majesty's courts, but it's
43 probably also fair to say that that concern rises
44 or is at its zenith in a case of such national
45 public importance as one like this.
46 Paragraph 10, I address my friend's argument
47 that the publication of the video exhibits is
 31
Submissions by Mr. Burnett

1 somewhat like televising the proceedings. And I

2 say that comparison is flawed, because the person
3 on video -- I mean, the reason you have a policy
4 about televising proceedings, whatever the
5 arguments on either side of that might be, one of
6 the primary reasons for a policy forbidding or
7 restricting that is the concern that witnesses
8 might be distracted while giving their testimony,
9 and jurors might be -- while we have no jurors
10 here, in this case the evidence is what the
11 evidence is, it's not as though the person is
12 there having a TV camera staring at them as they
13 talk.
14 At paragraph 11 I made this point, my friend
15 has said, well, you know, nobody's stopping them
16 from quoting and giving out the text of what was
17 said. But in response to that, I think we all
18 know at a gut level, and the Supreme Court of
19 Canada has confirmed at a more intellectual level,
20 the value of seeing a witness. It surely would be
21 inadequate for a judge to receive just a
22 transcript of a witness's evidence. You need to
23 see, is the person timid, confident, guarded in
24 their demeanour? All of those things are
25 relevant. And so, although the context is
26 different, this is to do with the importance of
27 video testimony for confession evidence for a KGB
28 decision of the Supreme Court of Canada makes a
29 point, which is -- which helps understand why it
30 is that the actual video is of value, as opposed
31 to the pure text of what was said, and it talks
32 about the importance of demeanour and so forth.
33 Sometimes -- just pausing on that point, My
34 Lord, sometimes the -- it is -- we fall into the
35 trap in these cases of thinking, well, why is that
36 necessary for the media to publish? We start to
37 become sort of a news editor. And our Court of
38 Appeal in the Fry decision, which I know has been
39 referred to to the court at London, Ontario,
40 addressed that and overturned the lower court on
41 the access to video, pointing out in pretty strong
42 terms that that's the wrong way of asking the
43 test. You don't put the onus to a media outlet to
44 say, here's why I want to run this piece of a
45 trial. The point of openness and the point of
46 freedom of expression is to be able to -- for the
47 media and the multiplicity of media to make those
 32
Submissions by Mr. Burnett

1 choices and that's part of their expressive right.

2 So the onus very much is on someone to justify why
3 not, not the other way around.
4 Paragraph 12, I've quoted the same passage on
5 the general presumption that my friend did from
6 Justice Trainor's decision in The Province.
7 And I point out in paragraph 13, if there was
8 any doubt that we're now at a stage where all
9 discretionary orders limiting freedom of the
10 press, if I can use that term broadly, which
11 infringe freedom of the press, require a
12 Dagenais/Mentuk test, we now clearly have that
13 answer. Toronto Star Newspapers, Ontario, Supreme
14 Court of Canada make it clear that even an access
15 request is subject to the very same test as a
16 publication ban request, which is, you only make
17 the order denying either the access or granting
18 the ban, if you can meet the same two-part test.
19 And the court itself emphasized in the Italicized
20 portions that --
21 THE COURT: Let me stop you there. There's nothing
22 wrong with the court saying you've got to apply --
23 MR. BURNETT: Right.
24 THE COURT: -- but here's the test.
25 MR. BURNETT: Yes.
26 THE COURT: So saying you have to apply isn't an
27 impediment to access, it's simply regulating
28 access. And in regulating the access one must
29 have regard to the cases you're referring me to.
30 MR. BURNETT: That's right. And it makes -- well, it's
31 frustrating for my clients from time to time to
32 make the applications.
33 THE COURT: Right.
34 MR. BURNETT: There's a logic because issues arise
35 differently in every case. There might be a child
36 witness on a tape, there might be all sorts of
37 things that need to be sorted out before access
38 goes out, but it doesn't change what the onus is.
39 THE COURT: Correct.
40 MR. BURNETT: I say at paragraph 14, to apply a
41 different test, and that's with the greatest of
42 respect to my friend, that he is asking the court
43 to apply a radically different test for access, I
44 say, without the patentor of the law.
45 Paragraph 15, I summarize what I've already
46 said about absence of any evidence of harm and,
47 indeed, evidence that the person involved has been
 33
Submissions by Mr. Burnett

1 quite public herself.

2 Starting at paragraph 18, is a series of
3 decisions where the courts have granted access,
4 and they're included not because this is the
5 access request, we've done that, but included to
6 illustrate the court's approach to these matters
7 and the presumption of openness. And, as I can
8 say, I think I can say, that you could add the
9 Ashley Smith decision to that list, of course, as
10 being perhaps the most recent and powerful one.
11 But I can certainly say that in every one of those
12 cases there was either counsel or a person privy
13 to all but perhaps the last one in Ontario, the
14 release led to publication and that was often the
15 very argument that was before the court.
16 My friend referred in the course of argument
17 and there was some discussion, My Lord, to the
18 Schoenburg decision, and I think you may have made
19 a comment about that being a case in which, for
20 some reason, the media applicant had gone to the
21 court to ask permission to public something. I
22 think it's correct to say, looking at the headnote
23 of that decision, they were indeed seeking access
24 as part of it, so it wasn't as though they had it
25 and felt the need to go and get permission,
26 because, in my submission, there's no legal basis
27 for saying that.
28 THE COURT: Yeah, because when you're applying for
29 access in that application we just discussed and
30 the test is being applied, conditions that address
31 any prejudice can be imposed and they can be the
32 subject of an appeal. But, for example, in Ashley
33 Smith, many of the conditions imposed on the CBC
34 were accepted.
35 MR. BURNETT: Yes, yes. And there's times when, you
36 know, you might have a tasering video, in a police
37 assault case, it's in a nightclub and there's
38 third parties shown. And it's often the case that
39 somebody says, well, we should either notify all
40 of them or obscure their faces, and the media
41 applicant that I might represent will say, all we
42 care about is the officer and the victim, really.
43 And there's no real argument there. It's just a
44 practical way of getting through the problem. And
45 those people fall into a, in my submission, into a
46 fundamentally different category than somebody's
47 who is a witness and whose evidence is tendered in
 34
Submissions by Mr. Burnett

1 court and expected to be relied upon in open

2 proceedings.
3 My friend referred to the Nova Scotia decision
4 which I'd be remiss not to mention, although the
5 Nova Scotia Provincial Court relying upon a
6 clearly dead Vickery decision, in my submission,
7 is a --
8 THE COURT: Sorry, clearly dead?
9 MR. BURNETT: Well, in my submission it is. I mean, I
10 don't think I'm overstating it.
11 THE COURT: No, no, I didn't hear you.
12 MR. BURNETT: It may be an undiplomatic way of saying
13 it, but Vickery is absolutely overtaken and the
14 court has said so much, the Ontario Court of
15 Appeal no less. You won't find the Supreme Court
16 of Canada in all of these decisions like Vancouver
17 Sun, Dagenais/Mentuk, Toronto Star, you won't find
18 them saying, well, the Toronto Star was releasing
19 documents. They're not going back and applying
20 the Vickery analysis or even mentioning their
21 decision.
22 Paragraph 21 I point out that consistent
23 throughout all these cases is that when there's to
24 be a restriction it's raised at the time. And
25 that surely is the understanding. I don't think I
26 can go quite as far as to say my friend is up
27 against a res judicata, but only strictly speaking
28 a publication ban argument, but surely that's the
29 understanding when a judge makes an access order.
30 Subject, of course, to considerations you
31 mentioned earlier about whether matters might be
32 contemptuous and so forth.
33 I point out at paragraph 23 on that point,
34 that my friend has referred to, I suppose, trying
35 to meet the administration of justice test, he's
36 pointed out that while we don't want trial and
37 media, we don't want these things published, in
38 that sense, I can -- I referred you there, in that
39 paragraph 23 to the Phillips and Westray decision,
40 a Nova Scotia decision to do with the Westray
41 inquiry in which -- and I've included the relevant
42 excerpt in the material I handed up, in which the
43 Supreme Court of Canada made it perfectly clear
44 that in a nonjury setting, which, of course, this
45 is, the -- there is no basis for saying that the
46 court will be contempted. Judges are used to
47 hearing evidence, putting evidence aside, used to
 35
Reply by Mr. Jones

1 ignoring media influences and things like that.

2 And I think I must say, with respect to my
3 friend, that describing the placement of these
4 affidavits on the public record in the context of
5 the public understanding cases is hardly trial in
6 the media. It's a very public discussion and
7 description and showing what goes on in court,
8 which is really an exercise of one of the core
9 democratic values.
10 So, My Lord, there might be one or two more
11 points to raise, just bear with me.
12 I've covered all the points I wish to make, My
13 Lord, and those are my submissions.
14 THE COURT: Thank you. Mr. Jones?
15 MR. JONES: Yes. I'll constrain it to a few discreet
16 points, My Lord. The first is that my friend
17 indicates that the purpose of the Practice
18 Directives consent rules which give witnesses
19 control, at least control to make an argument
20 about the extent of the use of their testimony, he
21 says that that is simply to avoid -- to give them
22 the right to refuse cameras because they distract.
23 That may be part of the reason for allowing them
24 to not be filmed, but once filmed, to give them
25 control is something else entirely. And I just
26 make that point.
27 I don't think it's fair to say that the
28 presumption in favour of privacy is a whim. And
29 this goes to my friend's point about the
30 inadequacy of the evidence in this case.
31 True, the evidence in this case is only with
32 respect to Ruth Lane, the evidence on this
33 application is only with respect to Ruth Lane. We
34 say the privacy interest is apparent on all the
35 other evidence before this court in the 14 video
36 affidavits themselves.
37 My most important point in reply is this: My
38 friend concedes that it is appropriate for the
39 media to apply when it is seeking, at the very
40 least, the very broad rights of full publication
41 for all purposes and all time. What does that
42 mean "apply"? According to my friend it doesn't
43 mean apply on notice to the witness, because that
44 never happened here, My Lord. That never happened
45 here. Ruth Lane, Brent Jeffs, Carolyn Jessop, Ron
46 Fisher, those are the four who are now on the
47 internet. And he's saying this was all disposed
 36
Reply by Mr. Jones
Discussion

1 of when we applied for access, not on notice to

2 Ruth Lane, Brent Jeffs, Carolyn Jessop or Ron
3 Fisher. He says they would then bear the onus, a
4 single mother perhaps in the United States of
5 retaining local counsel to argue against the
6 publication of that. Even if that were so, you'd
7 have to tell them. This application was a letter,
8 as I understand it, to the court, or an e-mail to
9 the court saying that Ms. Bramham would appear,
10 which she did within a day or so, and simply asked
11 for access. And he's saying by virtue of the
12 Attorney General's not opposing access that we
13 have somehow waived the rights of all of those 14
14 witnesses with respect to publication, for all
15 purposes, for all time, on the internet. Well, he
16 calls my argument a stretch, My Lord. I say
17 that's a stretch. That's a stretch.
18 My friend emphasizes that Ms. Lane has
19 appeared on national television. Doesn't indicate
20 whether any of the other witnesses in his view
21 have given up their rights because of that. But
22 the right that he's asserting doesn't pivot on
23 that. That may well be a factor, if notice was
24 given to Ms. Lane, if Ms. Lane had the opportunity
25 to retain local counsel and appear before you.
26 But that's not the issue here.
27 Subject to any questions, those are my
28 submissions, My Lord.
29 THE COURT: Thank you. Well, in deference to the very
30 complete arguments, thank you, counsel. I'll try
31 to get it done by Monday, but I may not be able
32 to.
33 MR. JONES: Would it be appropriate, My Lord, to ask
34 for some direction with respect to those videos
35 that have not yet been posted on the internet,
36 that they should not be until and unless a
37 decision of this court permits it?
38 THE COURT: I thought some of them were already on the
39 Regina Leader Post.
40 MR. BURNETT: Yes. I think my friend's referring to
41 the ones that have not yet been posted.
42 THE COURT: Oh, so some of them haven't?
43 MR. BURNETT: Yeah, I think it's the same ones that are
44 on the Leader Post website.
45 THE COURT: Oh, I see.
46 MR. BURNETT: I -- on principle I oppose my friend,
47 although the editing down to a reasonable amount,
 37
Discussion
Certification

1 it's not going to happen in the meantime anyways.

2 I don't think there should be an order to that
3 effect. I don't think my friend needs to be
4 concerned. In my submission, unless -- he's now
5 asking for a brief injunction pending the ruling,
6 and an injunction going to expressive rights is a
7 pretty tall order.
8 MR. JONES: I would just say in response to that,
9 My Lord, that there has been no application on
10 notice to those people and pending that, it
11 shouldn't happen.
12 MR. BURNETT: Let me just address that. When you have
13 a witness who's affidavit is before the court, you
14 don't need notice. A third party who might not be
15 knowing what's going on, you might give notice to,
16 but you don't apply to publish someone's
17 affidavit. You don't apply to publish this and
18 you don't give notice for it.
19 THE COURT: I'm reserving and in the circumstances I'm
20 not going to issue any interim orders.
21 THE CLERK: Order in court. Court is adjourned till
22 Monday November 29th, 2010 at 10 a.m.
23
24 (PROCEEDINGS ADJOURNED TO MONDAY NOVEMBER 29, 2010
25 AT 10 A.M.)
26
27 I, Marina Hopkins, Official Reporter in
28 the Province of British Columbia, Canada,
29 BCSRA No. 547, do hereby certify:
30 That the proceedings were taken down by
31 me in shorthand at the time and place herein
32 set forth and thereafter transcribed, and the
33 same is a true and correct and complete
34 transcript of said proceedings to the best of
35 my skill and ability.
36 IN WITNESS WHEREOF, I have hereunto
37 subscribed my name and seal this 3rd day of
38 December, 2010.
39
40
41
42 ______________________
43 Marina Hopkins, RCR
44 Official Reporter
45
46
47