CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar) et al.

[Indexed as: CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region)]

59 O.R. (3d) 18

[2002] O.J. No. 1141

Docket No. C35819

Court of Appeal for Ontario

Carthy, Goudge and Cronk JJ.A.

April 2, 2002

Courts -- Jurisdiction -- Exhibits -- Jurisdiction of court to grant access to exhibits at end of proceedings not restricted to cases where requirements of open justice were not met in those proceedings -- Court's jurisdiction to determine access to court records rests on premise that public accessibility should be curtailed only in extraordinary circumstances -- Jurisdiction to grant access to exhibits does not disappear because exhibits have been filed in proceedings which were open to public -- Jurisdiction does not end when documents are transferred by court to police at end of proceedings -- Documents remain integral part of court record.

The applicant brought an application for an order compelling the Toronto Police Service to provide it with access to and the right to photocopy and reproduce the exhibits filed at the preliminary inquiry and sentencing hearing in a murder case. Some of those exhibits had been ordered sealed, but they all formed part of the public court record. The application judge held that the court could grant access to exhibits only where the requirements of open justice had not been met. In this case, he ruled, both the preliminary hearing and the sentencing hearing were open to the public, so the requirements of open justice were met. He held that the court had no power to act simply for the purpose of public access. Having based his decision on jurisdictional concerns, he declined to make a finding on the merits of the applicant's entitlement to the order sought. The applicant appealed.

Held, the appeal should be allowed.

The court's jurisdiction over its own records is anchored in the vital public policy favouring public access to the working of the courts. The court's jurisdiction to determine access to court records (including exhibits) rests on the premise that public accessibility should be curtailed only with the greatest reluctance and only because of considerations of very significant importance such as the protection of the innocent. This jurisdiction does not vanish simply because it is shown that the exhibits were filed in open court. The application judge erred in determining that he had no power to grant the applicant's request for access simply because the exhibits had been filed at the preliminary inquiry and then forwarded to the sentencing court, both of which were open to the public.

The court's jurisdiction to provide access to exhibits does not end when the exhibits leave the possession of the court. The documents do not lose their character as exhibits simply because they have been physically transferred to the Toronto Police Service. They remain an integral part of the court record.

The Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 has no application in these circumstances. The Act is designed to regulate access to private information which would not otherwise be available to the public. By contrast, the jurisdiction which the applicant sought to engage was over court records which the common law treats as presumptively accessible to the public.

The application should be remitted to the Superior Court of Justice for hearing on the merits.

APPEAL from a judgment dismissing an application for access to exhibits.

A.G. of Nova Scotia v. MacIntyre, [1982] 14 (SCC), [1982] 1 S.C.R. 175, 49 N.S.R. (2d) 609, 132 D.L.R. (3d) 385, 40 N.R. 181, 96 A.P.R. 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193 (sub nom. MacIntyre and R. Re); Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 90 (SCC), [1991] 1 S.C.R. 671, 104 N.S.R. (2d) 181, 124 N.R. 95, 283 A.P.R. 181, 64 C.C.C. (3d) 65, apld Other cases referred to Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 184 (SCC), [1996] 3 S.C.R. 480, 182 N.B.R. (2d) 81, 139 D.L.R. (4th) 385, 203 N.R. 169, 463 A.P.R. 81, 39 C.R.R. (2d) 189, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1 Statutes referred to Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56

Richard N. Storrey and N. Butterfield, for appellant. Leslie Mendelson, for respondent. Luba Kowal, for Intervenor, the Ministry of the Attorney General.

The judgment of the court was delivered by

[1] GOUDGE J.A.: -- On January 18, 2001, Pitt J. dismissed the application of CTV Television for an order compelling the Toronto Police Service to provide it with access to and the right to photocopy and reproduce the exhibits filed at the preliminary hearing and sentencing hearing in the matter of R. v. Lorenz. He based his decision on jurisdictional concerns and expressly declined to make a finding on the merits as to CTV's entitlement to the order sought.

[2] For the reasons that follow, I have concluded that he had jurisdiction to consider CTV's request and that he erred in declining to do so. I would therefore allow the appeal.

The Facts

[3] On August 9, 1999, Anton Lorenz appeared at a preliminary hearing in the Ontario Court of Justice to face charges as a result of the death of his common-law spouse, Sandra Quigley. He was charged with attempting to murder her on May 22, 1998, with a subsequent breach of a recognizance requiring that he not associate with her, and with her first degree murder on February 27, 1999.

[4] The exhibits filed at the preliminary hearing included photographs, letters, journals, the audiotape of the 911 call placed on May 22, 1998, the audiotape of a police interview with Sandra Quigley and a videotape confession of Lorenz.

[5] Some of these exhibits were ordered sealed. All formed part of the public court record. The Crown successfully sought a publication ban at the commencement of the preliminary hearing. The ban prevented publication of the evidence including the exhibits until the conclusion of the trial.

[6] After Lorenz was committed for trial on all charges, the court record, including the exhibits, was sent from the Ontario Court of Justice to the Superior Court of Justice at 361 University Avenue in Toronto.

[7] On February 16, 2000, Lorenz pleaded guilty before a judge of the Superior Court of Justice to attempted murder, second degree murder and breach of recognizance. He was sentenced on the murder charge to imprisonment for life and parole ineligibility for ten years. He was sentenced on the other two charges to lesser concurrent sentences.

[8] It appears from a note on file in the file room at 361 University Avenue that all of the evidence in this case, including the exhibits, was released to the Toronto Police Service on June 15, 2000. However, we were advised by counsel for the respondent, the Toronto Police Service, that while that respondent had indeed received the exhibits, it had been determined in preparing for this appeal that the whereabouts of the original exhibits is now unknown, but that the respondent is in possession of copies of the exhibits requested in this proceeding.

[9] In September 2000, the appellant approached the Toronto Police Service and sought to access and copy all of the Lorenz exhibits. It intended to examine the exhibits as part of a W- Five Program on domestic abuse and how that abuse is dealt with by the police and the judicial system. The appellant had the support of the deceased's sister to have the program include the circumstances of the Lorenz case and her consent to obtain access to the exhibits. However, there was nothing in the record before Pitt J. to indicate whether either of Ms. Quigley's children or those responsible for them, or other family members, felt the same way.

[10] The respondent declined the appellant's request for access and this proceeding resulted.

The Decision Appealed From

[11] The application judge based his decision on his view of his jurisdiction. He found that the court could grant access to exhibits only where the requirements of open justice had not been met. In this case, both the preliminary hearing and the sentencing hearing were open to the public. He therefore determined that the open justice requirement had been met. He went on to conclude that, while the court might retain some power over these exhibits for the purpose of the administration of justice (presumably such as an allegation of a miscarriage of justice), the court had no power to act simply for the purpose of public access. Having found this want of jurisdiction, he declined to make a finding one way or the other as to CTV's entitlement on the merits but invited the appellant to pursue its objective through the applicable freedom of information legislation.

[12] He put his fundamental conclusions in the following language [at paras. 30, 31 and 38]:

The evidence before me suggests, if not demonstrates, that the subject exhibits may also probably be owned by the police. I leave this issue unresolved on the basis of the limited record before me and in view of the jurisdictional concerns I express below.

Be that as it may, the extent to which the court should be involved in co-ordination with the police and CTV in selecting and vetting exhibits so that CTV can successfully achieve its commercial broadcasting objectives raises troubling administrative problems. Such involvement could, in my view, be justified, only if it were designed to meet the common-law and Charter requirements of open justice, which have already been met.

In a word, the open justice requirement having been met by the courts, there is no issue of limitation by the courts of the applicant's right to access the exhibits. Whatever residual inherent common law and statutory supervisory powers and duties the courts retain to protect records out of their possession are, in my view, required to be exercised and performed only for the purposes of the administration of justice.

Analysis

[13] The central issue in this appeal is the extent of the court's power or jurisdiction over its own records. To determine whether it extends to the circumstances of this case, it is important to remember that the court's jurisdiction over its own records is anchored in the vital public policy favouring public access to the workings of the courts.

[14] This was made clear in the seminal case of A.G. of Nova Scotia v. MacIntyre, [1982] 14 (SCC), [1982] 1 S.C.R. 175, 132 D.L.R. (3d) 385. Speaking for the majority of the court, Dickson J. upheld public access to a search warrant and the information upon which it had been issued once the warrant had been successfully executed. In doing so he eloquently described the importance of public accessibility at every stage of the process. The rule should be one of public accessibility, to be departed from only if necessary to protect what he called "social values of superordinate importance", such as the protection of the innocent. As he indicated, this approach fosters both public confidence in the integrity of the court system and public understanding of the administration of justice. At p. 189 S.C.R. of his reasons, he concluded with the following:

Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.

[15] Of the two important objectives served by public access referred to in MacIntyre, the court in that case emphasized judicial accountability and the consequent public confidence that results from public access to the workings of the courts.

[16] In subsequent cases the court has made equally clear how important public access is to the second objective, namely a greater public understanding of the administration of justice. Moreover, the court has underlined how important the media are in providing the medium of communication to achieve this end. For example, in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 184 (SCC), [1996] 3 S.C.R. 480, 139 D.L.R. (4th) 385, the court discussed the value of public access as a means of enhancing public understanding. La Forest J. said this at pp. 496-97 S.C.R.:

Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.

It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what is transpiring in the courts.

[17] In MacIntyre, the court made clear that the strong presumption in favour of public access to court records should be displaced only with the greatest reluctance and only because of considerations of very significant importance such as the protection of the innocent. In Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 90 (SCC), [1991] 1 S.C.R. 671, 64 C.C.C. (3d) 65, the court further elaborated on the factors to be considered in deciding whether public access should be given.

[18] The issue in Vickery was whether a journalist should have access to audio and video tapes filed as exhibits at a criminal trial given that the appeal court had held that they were inadmissible, had reversed the conviction and acquitted the accused.

[19] Speaking for the majority, Stevenson J. concluded that access to the tapes was properly denied because the privacy interest of the accused as a person acquitted of a crime outweighed the public right of access to exhibits which had been held to be inadmissible against him. In reaching this conclusion, Stevenson J. reiterated the fundamental proposition in MacIntyre that there should be maximum accessibility but not to the extent of harming the innocent.

[20] He went on to outline several other significant factors to be considered in deciding whether to accord access. He referred to the nature of exhibits as a part of the court "record" including, particularly, the proprietary interest that non-parties may have in them, and suggested that this may cut against unfettered access once the exhibits have served their purpose in the court process. He made clear that the court had the right to inquire into the use to be made of access and to regulate that use by securing appropriate undertakings to protect competing interests. He described as another important consideration whether the exhibits had been open to public scrutiny at trial. And he indicated that once the judicial proceedings had been concluded different considerations might govern, for example where the subsequent release of selected exhibits would create risks of partiality and unfairness.

[21] In the end, he decided that the privacy interest of the innocent person who had been acquitted outweighed the access interest of the journalist who sought to view and disseminate the tapes.

[22] I think it is clear from this jurisprudence that the court's jurisdiction to determine access to court records (including exhibits) rests on the premise that public accessibility should be curtailed only with the greatest reluctance, taking into account the need to protect the innocent and the other considerations described in Vickery. It is also clear that this jurisdiction does not vanish simply because it is shown that these exhibits were filed in open court. As Vickery indicates, this is not conclusive, but merely one factor for the court to consider in determining whether to depart from the presumption of public accessibility. Indeed, in the present case, where there was a publication ban during the trial, it is perhaps a factor of diminished importance.

[23] Thus, I conclude that the application judge erred in determining that he had no power to grant the appellant's request for access simply because these exhibits had been filed at the preliminary hearing and then forwarded to the sentencing court, both of which were open to the public.

[24] The Toronto Police Service also seeks to defend the decision appealed from on the basis that the exhibits sought by the appellant are no longer in the possession of the court.

[25] While in both MacIntyre and Vickery the relevant court records remained in the court's possession, in my view there can be no principled basis for terminating the court's jurisdiction to provide access to exhibits just because they have left the possession of the court. They do not lose their character as exhibits simply because they have been physically transferred to the Toronto Police Service. They remain an integral part of the court record in the Lorenz case.

[26] Moreover, the objectives that are served by the presumption of public accessibility -- namely, judicial accountability and public understanding of the administration of justice -- continue to be important even when possession passes from the court. Fostering judicial accountability in a particular case and enhancing public understanding of that case do not cease when the exhibits are transferred to the police. The policy objectives served by the court's jurisdiction to provide public access to its records thus strongly suggest that, whatever its ultimate reach, this jurisdiction does not end when the records pass out of the court's possession.

[27] As with the proprietary interest in exhibits referred to in Vickery, it may be that where they have passed into the control of another, there is a possessory interest to be considered in deciding on public access. In a case like this, however, where the exhibits have simply been returned to the police a few months after the court proceeding and the application for access has been promptly made, that interest would not seem to be significant.

[28] Finally, the Toronto Police Service argues that the existence of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 precludes the court from exercising its common law jurisdiction to order access to court records. The respondent says that this legislation permits the appellant to apply for access to the exhibits it seeks and sets up criteria for evaluating such a request.

[29] In my view, the simple answer to this argument is that the regime set up under this legislation has an entirely different purpose. It is designed to regulate access to private information which, but for the regime, would not otherwise be available to the public. By contrast, the jurisdiction which the appellant seeks to engage is over court records which the common law treats as presumptively accessible to the public. There is nothing in the legislation that suggests either explicitly or by necessary implication that the court's jurisdiction at common law is being curtailed or removed. This is hardly surprising since the legislation is designed for such a different purpose. The regime it establishes is simply one which co-exists with the court's jurisdiction. It does not replace it.

[30] In summary, therefore, I conclude that the court has jurisdiction to order public access to the court exhibits sought by the appellant.

[31] In my view, we should not go beyond this to decide the application on its merits. The application judge did not do so. He did not address how the relevant considerations should be balanced, nor did he decide that if public access should be granted, on what, if any, terms that should be done. In addition, there was no substantial argument on these issues in this court where the focus was simply on the question of jurisdiction. Finally, it appears that the children of the victim in the Lorenz case have a legitimate interest which ought to be canvassed before a final determination of the appellant's application is made.

[32] Therefore, I would allow the appeal, set aside the order below and remit the application to be heard on the merits before a judge of the Ontario Superior Court of Justice. The parties should be free to file further material on that application if so advised.

[33] The appellant is entitled to its costs of the appeal from the respondent the Toronto Police Service, on a partial indemnity basis. In order to comply with the rule that this court fix costs of the appeal, the appellant is requested to file within ten days its proposed bill of costs with brief written submissions. The respondent may make brief written submissions thereon within ten days thereafter. Costs of the original application should be in the discretion of the judge to whom the application is remitted.

Appeal allowed.