Court File and Parties

DATE: 2001-10-11 DOCKET: M27797-C36641

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. Y. (K.S.) (Appellant)

BEFORE: DOHERTY, ROSENBERG and MOLDAVER JJ.A.

COUNSEL: No one appearing for the appellant Rosella Cornaviera for the respondent Beverly Wilton for the Attorney General of Canada Peter Jacobsen for the intervener, the Globe and Mail

HEARD: October 4, 2001

E N D O R S E M E N T

[1] The events preceding this motion are set out in our endorsement of July 18, 2001. The intervener, the Globe and Mail, seeks access to the sealed affidavit for the purposes of determining whether a challenge to the sealing order should be made.

[2] Mr. Jacobsen proposes that access should be limited to himself and Sylvia Stead, the executive editor of the Globe and Mail. Mr. Jacobsen indicates that he will share the contents of the affidavit with Ms. Stead only to the extent necessary to permit her to make an informed decision as to whether the Globe and Mail should challenge the sealing order. Mr. Jacobsen and Ms. Stead have both undertaken to maintain the confidentiality of the material in the affidavit. The bona fides of their undertakings is not questioned.

[3] Mr. Jacobsen’s proposal is an attractive one. The public has a right to know what goes on in its courtrooms and, in particular, in this case why a conviction for a serious criminal offence has been set aside at the behest of the federal Crown as a miscarriage of justice. It is acknowledged that the public right to know is not absolute and must yield on occasion to other rights. It is crucial, however, that any limit on the openness of court proceedings be subject to the fullest scrutiny possible.

[4] We are satisfied, however, that this motion must be dismissed for three reasons. First, as a result of this application, the Crown has now specified with some particularity the nature of the confidentiality claim which gave rise to the sealing order. Crown counsel has stated:

… The sealed affidavit also contains confidential information pertaining to an ongoing criminal investigation.

[5] There is nothing before us to suggest that the criminal investigation is not still ongoing, and certainly we would have expected to have been advised by the Crown if the investigation was no longer extant. We cannot envision anything that Mr. Jacobsen might learn from the affidavit that would realistically put him in a position to challenge the basis relied on by the Crown for the sealing order. We cannot say that there is no possibility that access to Mr. Jacobsen and his client would not enable him to mount a challenge to the order, however, we can say that the possibility of being able to mount such a challenge is remote given the basis upon which the claim is made.

[6] Second, any disclosure of the information outside the ranks of those involved in and responsible for the ongoing criminal investigation carries the risk of disclosure that could compromise that investigation. We are not concerned with deliberate or even inadvertent disclosure of the actual contents of the affidavit. We are concerned with more indirect forms of disclosure or other conduct flowing from the knowledge of the contents of the affidavit which could compromise the investigation.

[7] Third, the sealing order is temporary and as matters presently stand, will expire in three months. We are conscious that any delay in disclosure compromises the public’s right to know what is going on in its courts. Where, however, other competing important interests are engaged and those interests can be fully protected by a relatively short ban on access to information produced in court, it is a significant consideration that the public right is delayed and not totally sacrificed in favour of the other interests.

[8] The motion for access to the sealed affidavit is denied. This is not an appropriate case for costs.

“Doherty J.A.”

“M. Rosenberg J.A.”

“M.J. Moldaver J.A.”