Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671

Claude Vickery Appellant

v.

Prothonotary of the Supreme Court of Nova Scotia

at Halifax and Brent Stephen Nugent Respondents

and

Canadian Association of Journalists Intervener

Indexed as: Vickery v. Nova Scotia Supreme Court (Prothonotary)

File No.: 21598.

1990: October 31, November 1; 1991: March 28.

Present: Lamer C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.

on appeal from the supreme court of nova scotia, appeal division

Evidence -- Exhibits -- Access -- Audio and video tapes admitted in evidence in criminal trial resulting in conviction -- Appeal court finding evidence inadmissible and overturning conviction -- Whether member of public entitled to access to tapes.

Courts -- Administration -- Exhibits -- Access -- Audio and video tapes admitted in evidence in criminal trial resulting in conviction -- Appeal court finding evidence inadmissible and overturning conviction -- Whether member of public entitled to access to tapes.

Respondent N was convicted of second degree murder on the basis of audio cassettes containing an alleged confession and a video cassette of an alleged re-enactment of the killing. The trial, the admission of the tapes into evidence and information about their contents were reported in the media. On appeal the majority found that the audio and video evidence had not been freely and voluntarily obtained from N, that it had been obtained in violation of his right to counsel, and that its admission into evidence brought the administration of justice into disrepute. As a result of the exclusion of the evidence, N's conviction was overturned. Appellant, a journalist, requested a copy of the tapes, but the respondent prothonotary refused to release them. The Nova Scotia Supreme Court, Trial Division, granted appellant's application, as a member of the public, to obtain the tapes. The Appeal Division reversed the judgment.

Held (L'Heureux-Dubé, Cory and McLachlin JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and Wilson, La Forest, Sopinka, Gonthier and Stevenson JJ.: N's privacy interests as a person acquitted of a crime outweigh the public right of access to exhibits judicially determined to be inadmissible against him. The court, as custodian of the exhibits, is bound to inquire into the use to be made of them and is fully entitled to regulate that use. Such exhibits are frequently the property of non-parties and there is ordinarily a proprietary interest in them. In this case N was a participant in the creation of the tapes, a creation found to have been in violation of his constitutional rights, and the court ought to take steps to protect his legitimate interests. In the face of obvious prejudice and with no proposed use being specified, the order for unrestricted access should not have been made. The exhibits were produced at trial and were open to public scrutiny and discussion, so that the open justice requirement had been met. Further, while those subjected to judicial proceedings must undergo public scrutiny of what is said at trial or on appeal, and contemporaneous reporting is protected, different considerations may govern when the process is at an end and the discussion removed from the hearing context. While fair, accurate, contemporaneous reports are likely to be balanced, to display the full context, and to expose the arguments on both sides, the subsequent release and publication of selected exhibits is fraught with the risk of unfairness. The courts must be careful not to become unwitting parties to N's harassment by facilitating the broadcasting of material which was found to have been obtained in violation of his fundamental rights.

In short, curtailment of public accessibility is justified where there is a need to protect the innocent, and N must be considered an innocent person for this purpose. Someone who has been accused and convicted of a serious crime on the basis of self-incriminating evidence obtained in violation of his Charter rights should not be made to bear the stigma resulting from unrestricted repetition of the very same illegally obtained evidence.

The Court should not entertain appellant's argument that the prohibition of access was an infringement of his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms, since that point was not developed in the courts below. Had the point been raised, the parties would have had the right to lead evidence, the Court would have had the benefit of the reasoning of the courts below, and interested parties might have sought to intervene.

Per L'Heureux-Dubé, Cory and McLachlin JJ. (dissenting): Two principles of fundamental importance to our democratic society must be weighed in the balance in this case: the right to privacy and the principle of open courts. Here the openness of the courts must prevail. This result is necessary to maintain public confidence in the administration of justice. Further, appellate deference should be accorded to the trial judge's discretionary order concerning access, which was reasonable and should be upheld.

There is a strong presumption in favour of access to ensure judicial accountability. Criminal appeals, like criminal trials, should be as open as possible. The media, as the public's representative, should have access to all the exhibits which are part of the appeal proceedings and which may form the basis for the appellate court's decision. In particular, access should not be denied on the grounds that the tapes were found to be inadmissible. The public has a right to know what was excluded by the appellate court and the reason for its exclusion. To prohibit access to all evidence which has been ruled inadmissible would permit the courts to operate in secret. The trial judge in this case admitted all the tapes and the dissenting member of the court of appeal would have admitted the videotape and most of the audio tapes. This diversity of views on the issue of admissibility further supports the case for access, since the public is entitled to know the actual evidence that was the subject of differing judicial opinion.

Finally, the production of the tapes at trial did not satisfy the common law right of access and the underlying open court principle. The fact that the tapes have been played before should not weaken any claim for access, and makes the privacy interest less compelling. The right of access to court documents, which includes the opportunity to inspect and copy such records, facilitates the openness of court processes. While it is not necessary in this case to consider whether it is guaranteed by s. 2(b) of the Charter, this right also promotes and advances the constitutional values of freedom of expression.

Cases Cited

By Stevenson J.

Applied: Attorney General of Nova Scotia v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175; distinguished: Re Regina and Lortie, 1985 3637 (QC CA), [1985] C.A. 451, 21 C.C.C. (3d) 436; referred to: Solomon v. McLaughlin, 1982 1161 (AB KB), [1982] 4 W.W.R. 415; Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).

By Cory J. (dissenting)

Ex parte Drawbaugh, 2 App. D.C. 404; Craig v. Harney, 331 U.S. 367 (1947); Sheppard v. Maxwell, 384 U.S. 333 (1966); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); United States v. Mitchell, 551 F.2d 1252 (1976); United States v. Myers, 635 F.2d 945 (1980); United States v. Criden, 648 F.2d 814 (1981); In re National Broadcasting Co., 653 F.2d 609 (1981); Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (1981); United States v. Edwards, 672 F.2d 1289 (1982); United States v. Beckham, 789 F.2d 401 (1986); United States v. Webbe, 791 F.2d 103 (1986); Valley Broadcasting Co. v. United States District Court for the District of Nevada, 798 F.2d 1289 (1986); Attorney General of Nova Scotia v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175; Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042.

Statutes and Regulations Cited

American Constitution, First Amendment.

Canadian Charter of Rights and Freedoms, ss. 2(b), 24(2).

Defamation Act, R.S.N.S. 1967, c. 72, s. 13(1)(b).

Nova Scotia Civil Procedure Rule 30.11(6).

Authors Cited

Whelan, William J. "Copying and Broadcasting Video and Audio Tape Evidence: A Threat to the Fair Trial Right" (1982), 50 Fordham L. Rev. 551.

APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1989), 1989 198 (NS CA), 91 N.S.R. (2d) 126, 233 A.P.R. 126, 41 C.C.C. (3d) 6, 71 C.R. (3d) 33, reversing a judgment of Glube C.J.T.D. (1988), 1988 7126 (NS SC), 87 N.S.R. (2d) 29, 222 A.P.R. 29, granting appellant access to electronic tapes filed as exhibits in a criminal trial. Appeal dismissed, L'Heureux-Dubé, Cory and McLachlin JJ. dissenting.

David G. Coles, James L. Connors and Danny J. Henry, for the appellant.

R. M. Endres and M. Smith, Q.C., for the respondent the Prothonotary of the Supreme Court of Nova Scotia at Halifax.

Marguerite J. MacNeil, Kevin G. Coady and R. James Filliter, for the respondent Nugent.

Richard G. Dearden, for the intervener.

//Stevenson J.//

The judgment of Lamer C.J. and Wilson, La Forest, Sopinka, Gonthier and Stevenson JJ. was delivered by

Stevenson J. -- The appellant appeals a judgment of the Supreme Court of Nova Scotia Appeal Division refusing him access to electronic tapes filed as exhibits in the criminal trial of the respondent Nugent. The issue is whether the appellant, a journalist, is entitled to have access and copy those tapes which, while admitted at a trial, were held to be inadmissible by that Appeal Division, which acquitted Nugent.

In May 1987, Nugent was convicted, at trial, of second degree murder. At that trial, two forms of electronic tapes, prepared by the R.C.M.P., were admitted into evidence. One form of tape was audio cassettes, containing an alleged confession by Nugent to the killing of the victim. The other form was a video cassette of an alleged re-enactment of the killing by Nugent. These tapes became the basis of the Crown's case against Nugent and, ultimately, the basis of his conviction. The trial, the admission of the tapes into evidence, and information of their content, were reported in the media.

On May 10, 1988, in a four‑to‑one decision, the Appeal Division allowed Nugent's appeal of his conviction, set the conviction aside, and entered an acquittal. The majority of the Appeal Division ruled that the audio and video evidence was not obtained freely and voluntarily from Nugent, that it was obtained in violation of his right to counsel, and that its admission into evidence brought the administration of justice into disrepute.

On May 16, 1988, the appellant wrote to the Attorney General's Department requesting a copy of the audio and video tapes which were admitted at Nugent's trial. The appellant was advised to contact the Registrar of the Appeal Division, as custodian of such exhibits. The Registrar, by letter of May 19, 1988, indicated that he would not release the exhibits, either before or after the appeal period, which was still running. This refusal on the part of the Registrar eventually led to the appellant's bringing an application, as a member of the public, to obtain the tapes from the Registrar, as Prothonotary of the Supreme Court at Halifax.

In his application the appellant swore that he was a television producer "currently doing research on the topic of video tapes and their use by the police in recording confessions, re-enactments of crime and recording of surveillance activities". He swore that he had been denied access by the prothonotary, who proposed releasing the exhibits to the Crown, but invited the appellant to apply to a Supreme Court judge in chambers.

The prothonotary, in making his ruling, referred to Nova Scotia Civil Procedure Rule 30.11(6):

On the expiration of the time for appeal or on the disposition of the appeal, the prothonotary or registrar on his or her own initiative shall return the exhibits to the respective solicitors or parties who put the exhibits in evidence at the trial. . . .

Glube C.J.T.D. heard the application, hearing counsel for Nugent on the application as well as counsel for the appellant and the prothonotary: (1988), 1988 7126 (NS SC), 87 N.S.R. (2d) 29. She concluded that the appellant was entitled to access, including the right to make copies. In the course of her ruling she said, at p. 34:

I was not asked to rule on, nor does this application relate to, whether or not these videotapes and copies of audiotapes could be played on television. If that issue was before me, I would be prepared to put restrictions on the viewing, such as nondisclosure of the individual and location of the event, as well as blocking off the face of Mr. Nugent. However, on the actual application, I was unable to accept the argument of Mr. Coady on behalf of Mr. Nugent that the ends of justice require that I refuse the application in spite of the decision of the Court of Appeal and the remarks in MacIntyre [Attorney General of Nova Scotia v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175] about protection of the innocent. Any violation of that protection has already occurred and controls over future publication could be imposed if the appropriate application is made.

Based on the case law cited, namely, MacIntyre and Lortie [Re Regina and Lortie (1985), 1985 3637 (QC CA), 21 C.C.C. (3d) 436 (Que. C.A.)], I concluded that this was an appropriate case in which to grant the application for access to and permitting copying of the audio and videotapes as requested. I find their release does not bring the administration of justice into disrepute. The public interest outweighs any private interest. Had an application been made during the trial, it might well have been granted.

The appeal was argued before us on the basis that the issue was one of access; no question was raised regarding the right to copy if access were properly permitted. Moreover, counsel for the appellant suggested other uses that might be made of the copied tapes, for example, to criticize the decision of the Attorney General not to appeal the decision acquitting Nugent. The order of the chambers judge makes no restriction on the use to be made, and the appellant seeks an order from this Court, free of any restrictions upon the use of the copies. That order does not reserve any questions of use nor reserve any right of further application. Counsel for Vickery declined, during argument, to delineate the use to which the copies would be put.

Nugent was given party status in order to appeal the judgment of Glube C.J.T.D. Macdonald J.A. speaking for the Appeal Division reversed the judgment: (1989), 1989 198 (NS CA), 91 N.S.R. (2d) 126. After referring to MacIntyre, supra, and Solomon v. McLaughlin, 1982 1161 (AB KB), [1982] 4 W.W.R. 415 (Alta. Q.B.), he recognized the principle that the court is the keeper of its records and may exercise its discretion in excluding them from public access where the circumstances require. He added the following (at pp. 132-33):

The acquittal of Mr. Nugent . . . is equivalent to a finding of innocence with respect to any subsequent criminal proceedings. As a matter of public policy, it is my opinion that the acquittal should also be treated as the equivalent of a finding of innocence with respect to the right of the public to inspect, copy and publish the prejudicial material contained in the [respondent's] confessions. I recognize that the rule is that the public have a general right to inspect judicial records and documents. This right is not absolute but rather is one where, as Chief Justice Dickson said in MacIntyre (p. 149), "Every court has a supervisory and protecting power over its own records."

In my opinion, Mr. Nugent comes within the exception to the general access rule with respect to innocent persons referred to in the MacIntyre case. There the fundamental principle that the innocent must be protected from unnecessary harm was held to override the public access interest in those cases where nothing is found upon the execution of a valid search warrant. That being so, in my view the protection of the innocent from unnecessary harm should prevail here and override the public access interest in Mr. Nugent's confessions.

In the hearing before us the appellant sought to argue that the prohibition of access was an infringement of his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.

That point was not pursued in the courts below. While this Court undoubtedly has a discretion to entertain arguments not developed in the courts below, I would not extend that privilege to the appellant in this case. Had the point been raised in chambers, the parties would have had the right to lead evidence. We would have had the benefit of the reasoning of the courts below. If the issue had been clearly raised, interested parties might have sought to intervene even though no constitutional question in the technical sense of that term was raised. I note in passing, however, that if the appellant were to succeed on the Charter ground, the effect would be to impose a gloss upon rule 30.11(6).

In my view this Court should not entertain the Charter argument at this stage.

I turn then to the matters to be considered in judging whether to grant access to filed exhibits. In my view, the Appeal Division was correct in concluding that Nugent's privacy interests as a person acquitted of a crime outweigh the public right of access to exhibits judicially determined to be inadmissible against him.

The case of Re Regina and Lortie, 1985 3637 (QC CA), [1985] C.A. 451, 21 C.C.C. (3d) 436, to which the chambers judge referred, is distinguishable. In that case, the question was whether, pending the disposition of an appeal, there should be a temporary prohibition against the showing of tapes which were exhibits and had been copied. The majority of the Quebec Court of Appeal granted the prohibition. L'Heureux-Dubé J.A. (as she then was) dissented. Her comments were stressed before us. Her strong defence of the openness concept accords with the views of this Court in MacIntyre. In Lortie, the accused, whose privacy interests would be of paramount concern, supported the showing of the tapes. L'Heureux-Dubé J.A. was very careful to note (at p. 443 C.C.C.) that the question of copying and broadcasting of the tapes after the court of appeal had given its decision was not before the court. That question was before the Nova Scotia Appeal Division and is before us.

In MacIntyre, the other case to which the chambers judge referred, the press sought access to search warrants and supporting material. Dickson J. (as he then was), speaking for the majority, noted that it was unwise to attempt any comprehensive definition of the right of access (p. 183), and pointed out the competing policy considerations of respect for individual privacy and the need for "openness" in respect of judicial acts. This Court concluded that protection of the innocent would override public access, but that where the warrant was executed and something found the parties affected and the public should have access to the material upon which the warrant had been issued. Because a search warrant is issued in camera, allowing access to the materials in those circumstances serves public accessibility and concomitant judicial accountability (p. 186).

In this appeal, the exhibits were presented at an open trial to which there was public access and, indeed, information relating to them was publicly discussed.

I have already noted that the heart of MacIntyre is public accessibility as an important ingredient of judicial accountability. The applicant, in his sworn affidavit in support of this application, makes no claim to serve that interest. He does not indicate that these tapes are to be used to engage in some scrutiny of the judicial process. Public access to the trial and appellate process in which these exhibits were discussed was in no way impeded and there is no basis on the material before us for concluding that unrestricted dissemination of them would make any meaningful contribution to scrutiny.

I believe that the Appeal Division was correct in applying the principles in MacIntyre and concluding that the interests of Nugent outweighed those put forward by the appellant.

In my view, the chambers judgment fails to recognize four significant factors that come into play in deciding whether the appellant should be given access to (and thus the ability to copy and disseminate) these exhibits. (I note that these points may not have been put to the chambers judge in argument). The factors are:

1. The nature of exhibits as part of the court "record".

2)The right of the court to inquire into the use to be made of access, and to regulate it.

3)The fact that the exhibits were produced at trial and open to public scrutiny and discussion so that the open justice requirement had been met.

4)That those subjected to judicial proceedings must undergo public scrutiny of what is said at trial or on appeal and contemporaneous discussion is protected, but different considerations may govern when the process is at an end and the discussion removed from the hearing context.

1. The Nature of Exhibits as Part of the Court "Record"

An exhibit is not a court record of the same order as records produced by the court, or pleadings and affidavits prepared and filed to comply with court requirements. Exhibits are frequently the property of non-parties and there is, ordinarily, a proprietary interest in them. When they have served the purpose for their filing they are ordinarily at the disposition of the person who produced them. While they remain in its custody, the court has a duty to pass upon any request for access. That function is ordinarily exercised by its officers, such as the prothonotary here, but the court having custody of the exhibits has supervision over their use. The chambers judge here noted the Nova Scotia rule which directs that exhibits be turned over to the party producing them (Rule 30.11(6), supra). She observed that the reason for the rule was to relieve the court of the task of storing unwanted exhibits. The rule, however, reflects the fact that exhibits are not the property of the court.

While proprietary interests are not stressed by any of the parties before us, they are relevant to characterizing the nature of exhibits in balancing the interests of competing parties. Ordinarily the person entitled to possession would be a party to any application for access to them. Here, Nugent was a party to their creation.

I note that counsel here suggested that someone might want access to the tapes for the purpose of preparing educational programmes for the police. If that were the object of the request, the police, who probably own them, might well have some view to express.

Once exhibits have served their purpose in the court process, the argument based on unfettered access as part of the open process lying at the heart of the administration of justice loses some of its pre-eminence.

2)The Right of the Court to Inquire Into the Use to be Made of Access, and to Regulate It

It follows that the court, as the custodian of the exhibits, is bound to inquire into the use that is to be made of them and, in my view, is fully entitled to regulate that use by securing appropriate undertakings and assurances if those be advisable to protect competing interests. Nugent has put forward a genuine interest in the disposition of the tapes. He was a participant in their creation, a creation found to have been a violation of his constitutional rights, and the court ought to take steps to protect his legitimate interests.

In exercising its supervisory powers over material surrendered into its care, the court may regulate the use made of it. In circumstances such as these I do not think it right to say, as the chambers judge suggested, that Nugent must initiate other proceedings to protect or promote his privacy interests. While subsequent proceedings might lie, the court is, on the application, able to obviate that step. There is no need for a multiplicity of proceedings, nor should someone in the position of Nugent run the risk of bolting the laboratory door after the virus has not only been removed, but reproduced. In an application of this nature the court must protect the respondent and accommodate the public interest in access. This can only be done in terms of the actual purpose and, in the face of obvious prejudice and the absence of a specific purpose, the order for unrestricted access and reproduction should not have been made.

3. The Fulfillment of the Open Justice Requirement

The exhibits were produced at trial and open to public scrutiny and discussion so that the open justice requirement had been met.

I do not, for one moment, gainsay the importance of the principle that justice must be administered openly, but I am inclined to agree with the observation of Powell J. of the United States Supreme Court, quoted by Macdonald J.A. in the judgment appealed from, at p. 131, that "[t]he requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed." (Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), at p. 610.)

In the course of that judgment, Powell J. noted that the court having custody of records and other material has a responsibility to exercise an informed discretion "with a sensitive appreciation of the circumstances that led to their production" (p. 603). As none of the United States authorities to which I have been referred deal with the copying of inadmissible exhibits, I am unable to say what conclusion a court in the United States would reach, but I am persuaded that conclusion is, in the United States, as here, reached upon a balancing of the interests at the time access is sought.

I am not persuaded that the court appealed from erred in its conclusion that the chambers judge had given insufficient weight to Nugent's privacy rights, rights he holds after a judicial acquittal. He surrendered that privacy during the trial process, but he did not surrender it for all time.

4. Non-Contemporaneous Public Scrutiny

Those subjected to judicial proceedings must undergo public scrutiny of what is said at trial or on appeal and contemporaneous discussion is protected, but different considerations may govern when the process is at an end and the discussion removed from the hearing context.

Nugent's privacy was surrendered to the judicial process. Public access to and reporting of those proceedings is a price that he and any other accused must pay in the interests of ensuring the accountability of those engaged in the administration of justice. This principle is reflected in the special privilege that our law has traditionally accorded those who report judicial proceedings. Yet, modern defamation statutes restrict that privilege to contemporaneous reporting (see for example s. 13(1)(b) of the Defamation Act, R.S.N.S. 1967, c. 72, which is also c. D-3 of the C.S.N.S.). The reason, I suggest, is obvious. Fair, accurate, contemporaneous reports are likely to be balanced, to display the full context, and to expose the arguments on both sides. The subsequent release and publication of selected exhibits is fraught with risk of partiality, with a lack of fairness. Those policy considerations which form our attitude towards the openness of the administration of justice are relevant to an application such as this. Nugent cannot escape from proceedings in which he was involved, nor from the fair and accurate reporting of them, but the courts must be careful not to become unwitting parties to his harassment by facilitating the broadcasting of material which was found to have been obtained in violation of his fundamental rights.

As Dickson J. observed in MacIntyre, at p. 184:

In short, what should be sought is maximum accountability and accessibility but not to the extent of harming the innocent . . . .

Before us counsel suggested that there might be scope for challenging the decision of the Attorney General not to appeal Nugent's acquittal by the Appeal Division and the tapes could be used to that end. I am by no means persuaded that it is necessary to go beyond the proceedings in the trial and appeal to make that challenge.

Conclusion

While MacIntyre did not address access to or copying of exhibits, the principles discussed there must, a fortiori, apply to them.

In MacIntyre, Dickson J. said this (at pp. 186-87):

In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent.

The appellant would have us interpret the expression "innocent person" extremely narrowly. Dickson J. did not claim to define exhaustively the limitations of rights of access. He said this (at p. 183):

By reason of the relatively few judicial decisions it is difficult, and probably unwise, to attempt any comprehensive definition of the right of access to judicial records or delineation of the factors to be taken into account in determining whether access is to be permitted.

He also spoke of innocent persons who were the subject of search warrants as entitled to protection from "the stigmatization to name and reputation which would follow publication of the search" (p. 187).

I find it difficult to fathom how Nugent could be considered anything other than an innocent person within MacIntyre. Someone who has been accused and convicted of a serious crime on the basis of self-incriminating evidence obtained in violation of his Charter rights should not be made to bear the stigma resulting from unrestricted repetition of the very same illegally obtained evidence.

The Appeal Division was correct in concluding that Nugent's privacy interests outweighed the appellant's interests in viewing and disseminating the exhibits.

It may be said that the order of the chambers judge was discretionary in nature. I am not satisfied that it should be so characterized and, as the point was not made by the appellant, authorities supporting that characterization were not advanced. However, assuming the order was "discretionary", the chambers judge did not have all the relevant considerations before her, gave insufficient weight to Nugent's innocence and should have insisted upon the proposed use being specified so that any order could be crafted accordingly. In my view it was wrong to give an order, let alone an unrestricted order.

I would dismiss the appeal, with costs to the respondent Nugent, with no costs for or against the prothonotary or the Attorney General.

//Cory J.//

The reasons of L'Heureux-Dubé, Cory and McLachlin JJ. were delivered by

Cory J. (dissenting) -- I have read with great interest the reasons of my colleague Justice Stevenson but, with respect, I cannot agree with them.

The Principles that Must be Weighed in the Balance

There are two principles of fundamental importance to our democratic society which must be weighed in the balance in this case. The first is the right to privacy which inheres in the basic dignity of the individual. This right is of intrinsic importance to the fulfilment of each person, both individually and as a member of society. Without privacy it is difficult for an individual to possess and retain a sense of self-worth or to maintain an independence of spirit and thought.

The second principle is that courts must, in every phase and facet of their processes, be open to all to ensure that so far as is humanly possible, justice is done and seen by all to be done. If court proceedings, and particularly the criminal process, are to be accepted, they must be completely open so as to enable members of the public to assess both the procedure followed and the final result obtained. Without public acceptance, the criminal law is itself at risk.

In this appeal an appropriate balance must be struck between the right to privacy and the principle of open courts.

The American Experience

At the outset, it may be of assistance to consider the American experience in the field. This review should be conducted carefully and cautiously, bearing in mind the differences between the American Constitution and the Canadian Charter of Rights and Freedoms, as well as the differences in the history and background of the two countries. The examination is undertaken not with the aim of slavishly following the American decisions, but rather to benefit from the discussions and learning which have emanated from the American jurisprudence and scholarship.

A. Contrasting the English and American Approaches

Courts in both England and the United States have traditionally recognized the existence of a common law right to inspect and copy judicial records. This right has often been referred to as a "right of access". It has a long and honoured history, gaining recognition as early as the fourteenth century. In 1644, Lord Coke advocated an unrestricted right of access to judicial records. In England, however, while all persons enjoyed a general right of access, only those with an evidentiary or proprietary interest in the records were able to enforce their right if it were denied them.

The American approach, on the other hand, was based on a clear general right of access to court records, the enforcement of which was not restricted to those asserting a special interest in the documents. Generally, the American approach has favoured access for all citizens. As early as 1894, American courts recognized the right of access to judicial records including transcripts, evidence and other material. They did so on the basis that the denial of access would be an attempt to maintain secrecy in judicial records and would conflict with "the common understanding of what belongs to a public court of record, to which all persons have the right of access, and to its records, according to long established usage and practice". See Ex parte Drawbaugh, 2 App. D.C. 404, at pp. 407-8.

B. The United States Supreme Court and the Open Court Principle

The open court principle has two facets. The first is the right of the public and of the media, as members or agents of the public, to attend trials and court proceedings and to report on all that transpires. The second facet is the right of the public to scrutinize and criticize the judicial process. In order to exercise this right effectively, it is necessary to have full access to the information upon which such scrutiny and criticism may be based.

The United States Supreme Court has on several occasions emphasized the importance of public scrutiny of the judicial process. In Craig v. Harney, 331 U.S. 367 (1947), the court stressed the public nature of court proceedings and vindicated the right of members of the press to report on them. In his reasons, Douglas J. stated, at p. 374: "A trial is a public event. What transpires in the court room is public property. . . . Those who see and hear what transpired can report it with impunity."

The importance of the press in securing the principle of open courts and court processes was emphasized again by the U.S. Supreme Court in Sheppard v. Maxwell, 384 U.S. 333 (1966), where it stated (at p. 350):

A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Supreme Court stressed the importance of the public's right to know the contents of public records. Although recognizing the legitimacy of privacy concerns, the court relied on the First Amendment to conclude (at p. 491) that the State could not

impose sanctions on the accurate publication of the name of a rape victim obtained from public records -- more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.

The court emphasized the need in modern society for full and open access to public records. It stated (at p. 495):

Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.

The Cox decision also contains important observations about the role of the media in facilitating public debate and in furthering the open court principle. The court stated (at pp. 491-92):

. . . in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately upon the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.

See also Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), where the Supreme Court again reaffirmed the essential role of the press in safeguarding effective judicial administration by exposing the judicial process to public scrutiny.

Finally, the U.S. Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), held that the right to attend criminal trials is implicit in the guarantees of the First Amendment. On behalf of the majority, Burger C.J. recognized public access to the criminal courtroom as a right guaranteed by the American Constitution and, in doing so, emphasized the importance of public acceptance of the criminal justice process. At page 571, he noted that:

. . . especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.

He went on to state (at pp. 571-73):

When a shocking crime occurs, a community reaction of outrage and public protest often follows. . . . Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful "self-help," . . .

The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." . . . It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," . . . .

Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This "contribute[s] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system . . . ." [citing the concurring judgment of Brennan J. in Nebraska Press Assn., supra.] [Emphasis added.]

These decisions stress the vital importance of the open court principle and the public scrutiny of the judicial process which it facilitates. In so doing, they provide a context in which to consider the American approach to the more immediate question of access to taped evidence.

C. The American Approach to Access to Audio and Video Tape Evidence

The U.S. Supreme Court considered the issue of public and media access to taped evidence in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). The media sought access to audio tapes which had been introduced in evidence at the trial of aides to President Nixon on charges arising out of the Watergate break-ins. During the trial, 22 hours of audio tapes were played for the jury. All those in court, including members of the media, were provided with earphones and transcripts of the tapes. Six weeks after the trial had begun, several broadcasters filed a motion seeking permission to obtain and copy the tapes played at trial. They based their claim on the common law right of access to judicial records. District Court Judge Sirica denied access on the grounds that broadcast of the tapes would endanger the rights of the defendants on appeal. The broadcasters appealed Judge Sirica's order to the Court of Appeals for the District of Columbia.

In United States v. Mitchell, 551 F.2d 1252 (1976), the D.C. Circuit Court of Appeals considered the common law right to inspect and copy judicial records and determined that the right is essential to the functioning of a democratic state, although it is not absolute. Since no clear guidelines could be articulated as to when judicial records should be closed to the public, the decision necessarily rested within the discretion of the trial court, subject to appellate review for abuse of discretion. However, the court stated that any incursions on the right of access should be made only where "justice so requires". It observed as well that "once an exhibit is publicly displayed [in open court], the interests in subsequently denying access to it necessarily will be diminished" (p. 1261). The Court of Appeals thus found a strong presumption in favour of access and determined that only compelling circumstances could militate against release. Since such circumstances were absent in that case, the D.C. Court of Appeals overturned the decision of Judge Sirica and granted access to the tapes.

In Nixon v. Warner Communications, supra, the U.S. Supreme Court reviewed the Mitchell decision. In a 5/4 split, the court reversed the Court of Appeals and denied the broadcasters' request for access. The broadcasters had claimed a constitutional right of access under both the free press clause of the First Amendment and the Sixth Amendment guarantee of a public trial. The court rejected these claims. It held that, while physical access to judicial records is a right at common law, the right is not absolute and is not constitutional in nature. In rejecting the Sixth Amendment claim, Powell J. stated at p. 610:

The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.

It is important to note, however, that this statement was made in refuting the broadcasters' claim to a constitutional right of access. It was not directed to the balancing process required when considering the common law right of access.

With respect to the latter issue, the court held that the general common law right of access is subject to the "sound discretion" of the trial court. It observed that the question of access would typically be resolved by weighing "the interests advanced by the parties in light of the public interest and the duty of the courts", and that this balancing exercise would take place in the larger context of "the presumption -- however gauged -- in favor of public access to judicial records" (p. 602).

At the same time, the court refused to define the scope of the common law right or to identify the specific factors to be weighed in determining whether to grant access. Rather, the majority decided the issue on the basis of "an additional, unique element" not argued by either of the parties -- namely, the Presidential Recordings Act. In the court's view, the Act provided an alternative administrative procedure by which the public could gain access to all presidential materials of historical interest, including the recordings at issue. Accordingly, the court held (at p. 606) that it:

. . . need not weigh the parties' competing arguments as though the District Court were the only potential source of information regarding these historical materials. The presence of an alternative means of public access tips the scales in favor of denying release.

Since then, American federal appeal courts have differed as to the interpretation which should be given to the Nixon decision and have articulated varying approaches to the issue of access to taped evidence.

In the first line of cases, which arose out of various FBI "sting" operations, the Nixon decision was construed narrowly as turning on the applicability of the Presidential Recordings Act. Having distinguished Nixon in this way, several appeal courts followed, either expressly or implicitly, the approach taken by the D.C. Circuit Court in the Mitchell case, supra. They held that the common law right created an extremely strong presumption in favour of access which, though not of constitutional stature, could be overcome only rarely and in the clearest of cases. The holding of the Second Circuit Court of Appeals in United States v. Myers, 635 F.2d 945 (1980), is typical. The court stated (at p. 952):

. . . it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction. . . . When physical evidence is in a form that permits inspection and copying without any significant risk of impairing the integrity of the evidence or interfering with the orderly conduct of the trial, only the most compelling circumstances should prevent contemporaneous public access to it.

The same approach was adopted by the Third Circuit Court of Appeals in United States v. Criden, 648 F.2d 814 (1981), and by the District of Columbia Circuit in In re National Broadcasting Co., 653 F.2d 609 (1981).

It is important to consider the grounds advanced in opposition to the release of the tapes in these cases. The defendants argued that access would jeopardize their right to a fair trial as guaranteed by the Sixth Amendment and would also render unfair the pending criminal trials of other defendants through the prejudicial effect publicity would have upon present and prospective jurors. All the appeal courts rejected this argument. They held that standard jury instructions and the examination of prospective jurors in the selection process together provided sufficient mechanisms to safeguard the fair trial rights of criminal defendants from any potential prejudice which might arise from broadcasting the tapes.

A contrary position was taken by the Fifth Circuit in Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (1981). The court accepted that a common law right of access exists, but determined that the standard of appellate review was whether or not the trial court had abused its discretion in its decision regarding access. In direct refutation of the earlier line of authority, the court held that the observations of the trial judge were essential in considering whether a fair trial could be ensured for present and prospective defendants and that the balancing of competing values was heavily reliant on the observations and insights of the presiding judge. The court considered its appellate role to be a narrow one.

In subsequent cases, American appellate courts have attempted to reconcile the more extreme positions and to articulate a "middle ground". The first such attempt was made by the Seventh Circuit in United States v. Edwards, 672 F.2d 1289 (1982). The court recognized the presumption in favour of access and citing the Mitchell case, supra, observed that the "common law right supports and furthers many of the same interests which underlie those freedoms protected by the Constitution" (p. 1294). At the same time, referring to Belo Broadcasting, supra, the court acknowledged that the right was non-constitutional in origin and conceded that a number of factors might militate against public access. It set out its position in these words (at p. 1294):

. . . we hold that there is a strong presumption in support of the common law right to inspect and copy judicial records. Where there is a clash between the common law right of access and a defendant's constitutional right to a fair trial, a court may deny access, but only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture. . . . We stress that it is vital for a court clearly to state the basis of its ruling, so as to permit appellate review of whether relevant factors were considered and given appropriate weight. [Emphasis added.]

This position was echoed by the Sixth Circuit in United States v. Beckham, 789 F.2d 401 (1986), and by the Eighth Circuit in United States v. Webbe, 791 F.2d 103 (1986).

Finally, in Valley Broadcasting Co. v. United States District Court for the District of Nevada, 798 F.2d 1289 (1986), the Ninth Circuit reaffirmed the middle ground position. In so doing, the court expanded upon the holding in Edwards, supra, by specifically requiring the trial judge not only to articulate the reasons for denying access, but also to substantiate possible prejudice with a clear factual basis for the danger. The court put its position this way (at p. 1295):

The only potential prejudice appropriate for consideration by the district court was, therefore, the added prejudice that might result from broadcasting excerpts of the tapes as opposed to simply describing their contents. While we recognize that the added danger of jury taint arising from the transmission of the tapes themselves may vary from case to case, we reemphasize that the district court must articulate the factual basis for the danger without relying on hypothesis or conjecture.

D. General Principles Emerging from the American Cases

The American courts have for many years recognized a common law right of access to judicial records. All courts have held this right to include a common law, but not a constitutional, right of access to taped evidence introduced at trial. There is also a consensus that the decision as to whether to grant access is within the discretion of the trial court, which must balance the relevant interests at stake. In Nixon, the U.S. Supreme Court committed this determination to "the sound discretion" of the trial judge.

American courts have agreed that the standard of appellate review to be applied to the trial judge's determination regarding access is whether there has been an "abuse of discretion". Although there is agreement as to the standard to be applied, there is variation amongst the appellate courts as to whether the application of that standard should be deferential or strict.

All courts considered the media to be the representatives of the public with regard to judicial proceedings. The cases recognize the right and responsibility of the media to keep the public informed of the workings of the courts, particularly in the criminal context. The courts have acknowledged that the media play an essential role in furnishing the information upon which public scrutiny and criticism of court proceedings can properly be based, and that in fulfilling this role the media make a substantial contribution to the democratic process of government. It is the media which make the courts truly accessible and "public".

The American cases indicate that there are several factors weighing in favour of public access to evidentiary tapes. First, it is said that audio and video tapes provide additional meaning to the written word or eyewitness account. Gestures, facial expressions, voice patterns and voice intensity are all modes of communication common to humanity that are lost in transcripts. Second, all persons present in the courtroom at trial witness the tapes as they are introduced into evidence for the benefit of the triers of fact. Broadcasting the tapes publicly would give effect and meaning to the open court principle by allowing members of the public who are unable to be physically present in the courtroom to witness all that privileged members of the public have been able to see for themselves. Third, public broadcasting of the taped evidence allows those who cannot be present at the trial to weigh the evidence and form their own opinion. This, it is said, satisfies both the appearance and the reality of justice within the community. Finally, public access to judicial records permits the public to keep an eye on all branches of government, including the judiciary.

On the other side of the balance, certain interests are put forward as militating against media access to audio and video tapes. In the American cases, the primary countervailing concern is the possible prejudice to the right of an accused to a fair trial. Other interests weighing against access are concerns relating to admissibility and privacy.

It must be remembered that the balancing in the American cases is far different from that required in the case at bar. In the American decisions the common law right of access had to be balanced against the constitutional right of present or prospective defendants to a fair trial as guaranteed by the Sixth Amendment to the American Constitution. In those cases where access was denied, the defendant's constitutional right to a fair trial was considered to outweigh the common law right of access. Furthermore, it is not without significance that, despite their concern for the Sixth Amendment rights of present and prospective defendants, the majority of American appellate courts were still willing to grant access.

In the case at bar, the fair trial interest simply does not arise. Nugent stands in no criminal jeopardy. He has been acquitted of the murder charge and the time for any further appeal has long since elapsed. He cannot claim any prejudice to a present or future right to a fair trial. Thus, the primary concern weighing in the balance against access in the American jurisprudence is not present in this case.

It is worth bearing in mind that some of the American cases suggest that the right to a fair trial is the only countervailing interest which could overcome the strong presumption in favour of access. It is significant as well that in the American setting, the principal contention of those writers who argue most vehemently against access is the need to preserve the right of the accused to a fair trial. Furthermore, none of them would recommend that the denial of access be indefinite. See, for example, William J. Whelan, "Copying and Broadcasting Video and Audio Tape Evidence: A Threat to the Fair Trial Right" (1982), 50 Fordham L. Rev. 551, at pp. 580-81:

. . . it is clear that the proper time to stem any possible prejudice is before it is allowed to occur. In the cases that involve requests to copy tapes in evidence, the trial judge should deny their release until all risk of prejudice to the current defendants and to those implicated by the tapes has passed. Only when all rights to appeal are exhausted should the tapes be made available for copying.

When the records are video and audio tapes introduced into evidence at trial, the presumption in favor of release should not apply. Because there is a reasonable possibility that the broadcast of those tapes will irreparably harm the accused's right to a fair trial, the courts as a matter of law should deny the release of the tapes for copying until the accused is no longer in jeopardy. [Emphasis added.]

In light of the above analysis, it would appear that in the United States the media would be granted access to the tapes filed as exhibits in the trial of Mr. Nugent.

The Factors to be Considered in the Present Case

At the outset, I should say that for the reasons given by my colleague, I agree that the appellant's argument that his s. 2(b) Charter right to freedom of expression had been breached should not be considered. This argument was not raised before the judge of first instance and, although argued before the Court of Appeal, was not considered by that court in its reasons.

A.The Nature and Extent of the Common Law Right of Access to Court Documents in Canada

There can be no doubt that there exists in Canada a common law right of access to court documents. The nature and extent of that right will determine the outcome of this appeal. The common law right of access is of fundamental importance to the functioning of courts and to the preservation of public confidence in court processes. The right of access was considered in the pre-Charter case of Attorney General of Nova Scotia v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175. In that case Dickson J., as he then was, clearly acknowledged that there is a strong general presumption in favour of access to judicial records. At page 184 he stated:

In short, what should be sought is maximum accountability and accessibility but not to the extent of harming the innocent or of impairing the efficiency of the search warrant as a weapon in society's never-ending fight against crime.

He went on to observe that there is a need for contextual balancing in deciding whether to grant access in individual cases. After noting the general right to inspect and copy public records that exists in the United States, he said at p. 183:

By reason of the relatively few judicial decisions it is difficult, and probably unwise, to attempt any comprehensive definition of the right of access to judicial records or delineation of the factors to be taken into account in determining whether access is to be permitted. The question before us is limited to search warrants and informations. The response to that question, it seems to me, should be guided by several broad policy considerations, namely, respect for the privacy of the individual, protection of the administration of justice, implementation of the will of Parliament that a search warrant be an effective aid in the investigation of crime, and finally, a strong public policy in favour of "openness" in respect of judicial acts.

In emphasizing the need for openness with respect to judicial acts, Dickson J. stated at p. 185:

It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.

B. Some General Policy Considerations

It is important that the public have confidence in the workings and proceedings of the courts. There can be a cathartic effect to a criminal trial. When a serious crime has been committed, the community quite naturally is outraged. In earlier times that sense of outrage sometimes led to vengeful acts which triggered a chain of violent action and reaction and occasionally led to mob violence. The criminal trial has pre-empted violence by providing an outlet and a means of sublimating the community's sense of outrage at the commission of a serious crime. It provides both a stage and a forum whereby the alleged crime can be explored and, if the accused is found to be guilty, the appropriate penalty imposed. An open trial process demonstrates to all, whether the family of the victim, the family of the accused, or the members of the community in general, that the entire criminal process has been conducted fairly and that those accused of crimes have been dealt with justly.

To operate effectively, the criminal law must have the support of the community. The public has traditionally, and very properly, had a compelling interest in the criminal trial process. In simpler days gone by, a significant segment of the community could attend criminal proceedings. Those who were present could and did advise their families and friends as to the nature of those proceedings. The process was, in the truest sense of the term, open to the public.

Obviously times have changed. Courtroom space is limited. Even if it were not, it is impossible for most members of the community to attend in court no matter how much they might wish to do so. Obligations to work and family make attendance impossible. The public is now represented by members of the media who are, in a very practical sense, the proxies of the community at the trial process. This has been recognized by reserving a special place for members of the press in most courtrooms.

The public has accepted the media as their representatives at the unfolding of the criminal process. However, it necessarily follows that the modern community must rely upon the media for a fair and accurate depiction of the proceedings in order to facilitate the public right to comment on and criticize that process. This simply cannot be done without the degree of openness which would provide the media with full access to court documents, records and exhibits. The more barriers that are placed in the way of access, the more suspect the proceedings become and the greater will be the irrational criticism of the process. It is through the press that the vitally important concept of the open court is preserved.

The open court principle has been clearly recognized by this Court in previous decisions. As noted above, the MacIntyre case, supra, emphasized the importance of public scrutiny of the courts. More recently, in Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326, I discussed the open court principle in the context of the s. 2(b) Charter right to freedom of expression. I stated at p. 1339:

It can be seen that freedom of expression is of fundamental importance to a democratic society. It is also essential to a democracy and crucial to the rule of law that the courts are seen to function openly. The press must be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny.

With regard to the role which the media play in advancing this principle, the following appears at p. 1340:

It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.

Although these remarks were made in the Charter context, the underlying principles are of general application and import in a democratic society. The rationale of the open court principle is important to the balancing exercise whether under the Charter or, as in the present case, at common law.

Appeals are the natural and frequent continuation of the criminal trial process. What is the community to make of a situation where an accused has been found guilty and the decision reversed by a court of appeal? No matter how right and proper that appellate decision may be, it will always be difficult for a community to accept. These difficulties will be magnified if the appellate court decision is based upon material which is not made accessible to the public's representative, the media.

Therefore, like the criminal trial, the criminal appeal should be as open as possible. The media, as the public's representative, should have access to all the exhibits which are part of the appeal proceedings and which may form the basis for the appellate court's decision. There can be no confidence in the criminal law process unless the public is satisfied with all court proceedings from the beginning of the process to the end of the final appeal. Of the three levels of government, it is the courts above all which must operate openly. While what is done in secret is forever suspect, what is done openly, whether susceptible to praise or condemnation, is more likely to meet with acceptance. There cannot be reasonable comment or criticism unless all aspects of the proceedings are known to the public.

In the absence of some overriding principle, there should, in my view, be access to the tapes filed as exhibits at trial and on appeal. Particularly is this true in a situation such as the present where the issue of the admissibility of the tapes formed the very basis of the appeal court decision. Access is essential if the community is to continue to support and have confidence in the work of the courts, particularly in the criminal context. Let us see if there is any such overriding principle applicable in this case.

C.Should Access be Denied on the Grounds that the Tapes were Found to be Inadmissible?

In arguing that access to the tapes should be denied, Nugent emphasized that the tapes had been ruled inadmissible by the Court of Appeal as having been obtained in violation of his Charter and common law rights. Nugent argued that the tapes should not remain part of the public record after the Court of Appeal made "the very pointed rulings that resulted in their inadmissibility".

In the American case of Criden, supra, there was a question as to the admissibility of the tapes filed in evidence. Nevertheless, the Third Circuit Court of Appeals ruled that the public interest in access prevailed over the issue of admissibility. Noting that the right of access is based on the public's interest in seeing and knowing the events which actually transpired, the Court pointed out that it would be unduly restrictive of the right of access were it to be confined to evidence found to have been properly admitted. Only through access can the public reasonably consider and criticize the rulings of the court, including rulings as to admissibility. Therefore, it would appear that in the United States access to the tapes would not be denied simply because they were ruled inadmissible. The approach of the Third Circuit Court of Appeals seems eminently sound.

It is not without significance that in the case at bar the majority of the Court of Appeal indicated that there was nothing manifest on the videotape itself which would make it inadmissible; rather, it is what had transpired earlier which rendered it so. This contrasts with the situation with respect to some of the audio tapes which should clearly not have been admitted in view of the police conduct recorded on the tapes themselves. Apart from any question of prior police misconduct, a viewing of the videotape demonstrates that there is nothing in it that would cater to a morbid or prurient appetite. It is a measured, unemotional recounting of a killing. If anything to do with a murder case can be said to be unexceptional, this tape fits that description.

Should the issue of admissibility in itself prohibit access to the tapes? I think not. The media as the agent of the public ought to have access to the tapes and be able to make copies of them. The public has a right to know what was excluded by the appellate court and the reason for its exclusion. To prohibit access to all evidence which has been ruled inadmissible would permit the courts to operate in secret.

Although it is necessary and appropriate that rulings be made at the trial level as to what may be properly admitted for consideration by the triers of fact, the trial is now over. The principal issue in the Court of Appeal was the admissibility of the taped evidence. There should not be a priestly cult of the law whereby lawyers and judges exclusively determine those items of the appeal record which can be seen and heard by members of the public. What evidence is admitted or excluded usually determines the outcome of a trial. Appeal court decisions on this issue are important to the public. Anything that prevents light being shed upon the subject can only lead to dark suspicion of the process.

The ruling of the Court of Appeal was based to a large extent on the denial to Nugent of his Charter right to counsel. Section 24(2) of the Charter provides:

24. . . .

(2) Where . . . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The importance of the Charter as the supreme law of the land cannot be denied. It follows as the night the day that the public has a right to know what courts consider to be evidence which is so unacceptable that its admission would bring the administration of justice into disrepute. The public should be able to comment on and, if appropriate, to criticize the court's position on that issue. It is a matter of public importance, interest and concern.

In this case, judicial opinion differed on the issue of admissibility. The trial judge admitted all the tapes. Four members of the Court of Appeal held all of the tapes to be inadmissible. The dissenting member of the court would have admitted the video tape and most of the audio tapes. This diversity of views on the issue of admissibility further supports the case for access, since the public is entitled to know the actual evidence that was the subject of differing judicial opinion. I therefore conclude that the fact that the tapes were ruled inadmissible should not constitute a bar to their accessibility by the media. The public has a right to know what was ruled admissible and the reason for that ruling.

D.Did the Production and Playing of the Tapes in Open Court Satisfy the Common Law Right to Access?

It was argued that the production and playing of the tapes during the trial satisfied the common law right of access and the underlying open court principle.

It may be that in some cases the production of audio or video tapes in open court would satisfy the public's right of access to those tapes. However, it cannot be forgotten that the ruling as to their inadmissibility determined the outcome of the appeal. So far as the community in which Nugent lived was concerned, he had been found guilty by a jury of his peers. The community and the public in general had a right to know the basis for the reversal of that decision by the Court of Appeal.

Surely the media cannot be faulted for not knowing at the time of trial what grounds of appeal might be raised or the issues upon which an appeal would be decided. Even experienced appellate counsel often raise additional legal issues that were not considered at trial. The media, on behalf of the public, are entitled to gain access to and copy the tapes which became the focal point of the appeal. It is neither fair nor reasonable to say that the media at trial should have recognized the legal issue or anticipated the centrality of the question of admissibility of the tapes on appeal and reported and commented on the tapes accordingly.

In my view, it cannot be said that the production of the tapes at trial satisfies the principle of open courts. The appellate proceeding must be as open as the trial. Court records and documents, including exhibits filed at trial which form part of the appeal record, should, as a general rule, be open to all. The fact that the tape has been played before should not weaken any claim for access. Indeed, the fact that the tape has been publicly viewed renders the privacy interest less compelling. The view expressed by the Third Circuit Court of Appeals in the Criden case, supra, is apposite (at p. 828):

Whatever the validity of the original ruling, the tapes were in fact admitted into evidence, their contents publicized, and the transcripts of the tapes released to the press. Thus, whatever privacy right defendants may have claimed in such tapes is irretrievably lost, and if any remedy remains, it must perforce be confined to appellate action with regard to the underlying conviction.

Developments in Canada since 1982 have raised the common law right of access and the open court principle on which it is based to even greater prominence. With the advent of the Charter of Rights and Freedoms, courts are playing a far wider role in the affairs of all Canadians than ever before. The concepts of freedom of religion, freedom of expression and equality rights have been and will continue to be before the courts. With this widening judicial role, there is an increased public interest in judicial decisions and their effects. As a result, the principle of open courts has attained ever-greater significance. When the balancing of competing rights and interests is undertaken, due weight must be given to the added importance of open courts. What is done by the courts away from the clear light of public scrutiny fosters public suspicion, no matter how ill-founded that suspicion might be. Suspicion nurtures the cancerous growth of mistrust which must, if possible, be avoided.

In this case, on balancing the privacy considerations of Nugent against the principle of open courts, the openness of the courts must prevail. This result is necessary to avoid ill-founded suspicion of the courts and to maintain public confidence in the adminstration of justice. It is openness which maintains both the integrity of the court system and public confidence in it. The preservation of that essential policy of openness must outweigh Mr. Nugent's privacy interest in the tapes which were already displayed to the public at the time of trial.

E. Proprietary Interests

Finally, my colleague has raised the issue of proprietary interests in exhibits. With respect, I am of the view that it does not arise in the present case. Regardless of the question of ownership of the audio and video tapes, the fact remains that the tapes were in the custody of the Supreme Court of Nova Scotia at the time the application for access was brought. Thus, it was entirely appropriate that a party seeking access apply to the court; indeed, this was the only manner a party seeking access could proceed. Once the application was made, the court was correct in retaining custody of the exhibits until the question of access was determined. Its right to do so flows from a court's supervisory and protecting power over its own records, as recognized by this Court in MacIntyre, supra. As a result, I am of the view that the question of proprietary interest in the tapes is irrelevant to the determination of the present appeal.

Conclusion

There can be no question that there must be a strong presumption in favour of openness to ensure judicial accountability. Certainly, it is clear that the right of access not only facilitates the openness of court processes, but also promotes and advances the constitutional values of freedom of expression. As a result, it is deserving of recognition and protection in appropriate instances, of which the present case is a prime example. Accordingly, I am of the view that access was properly granted in the present case.

The Discretionary Nature of the Order of the Trial Judge and Appellate Review of that Order

There is a further and independent basis for upholding the decision of the judge of first instance. Glube C.J.T.D. considered the matter fully before granting access to the tapes. She was well aware of the effect that the reproduction or broadcast of the tapes might have upon Nugent and specifically reserved the question of what use might be made of the tapes. Referring to the videotape, she stated that steps might be taken to protect the identity of Nugent. It was clearly implicit in her order that before any use could be made of the tapes, the matter was to come before her again once the media had gained access. Thus, the trial judge carefully considered the matter before exercising her discretion. I would note in passing that the question as to what steps might properly be taken to control the use of the tapes is not before this Court. The sole issue is the media's right of access to the tapes.

It is clear that an appellate court should not interfere with a discretionary order unless a significant error is revealed. In Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110, Beetz J., speaking for the Court, quoted with approval from the decision of the House of Lords in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042. The latter case emphasized the limits imposed upon a court of appeal in substituting its own discretion for that of a motion judge granting an interlocutory injunction, even in situations where the appellate court has had the benefit of additional evidence. In that case Lord Diplock stated:

. . . it is I think appropriate to remind your Lordships of the limited function of an appellate court in an appeal of this kind. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. On an appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge's exercise of his discretion on the ground that it was based on a misunderstanding of the law or of the evidence before him or on an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn on the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal, or on the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons that it becomes entitled to exercise an original discretion of its own.

I can find no error that would justify setting aside the order of Glube C.J.T.D. Indeed, in my view, the decision in MacIntyre, supra, would lead to the conclusion that Glube C.J.T.D. was correct in the order which she granted.

Summary

There is a common law right of access to judicial records and this right includes the opportunity to inspect and to copy such records.

It is not necessary in this case to consider whether that right is guaranteed by s. 2(b) of the Charter. Nevertheless, the right of access plays an important role in promoting openness of the courts and accountability of the judiciary, and clearly advances the values enshrined in s. 2(b) of the Charter.

There is a very strong presumption in favour of access. That presumption must be balanced against other important rights and interests.

The balancing exercise must be conducted on a case-by-case basis. Any order made with regard to access is discretionary. If access is to be denied, the trial court should outline the opposing interests which have been deemed sufficient to overcome the strong presumption in favour of the common law right of access.

In considering and balancing the right of Nugent to privacy, it must be remembered that Nugent has undergone a trial and the tapes were played in public. In those circumstances the right to privacy, although it always must be taken into account, is of less weight than it would be had the tapes never been played. Further, the importance of the openness of the courts and judicial accountability weighs heavily in favour of access in the present case.

Appellate deference should be accorded to the discretionary order of the trial judge concerning access. See Attorney General of Manitoba v. Metropolitan Stores, supra.

Disposition

The trial judge's decision to grant access in this case is reasonable and should be upheld. In the result, I would allow the appeal and restore the order of the judge of first instance.

Appeal dismissed, L'Heureux-Dubé, Cory and McLachlin JJ. dissenting.

Solicitors for the appellant: Boyne, Clarke, Dartmouth.

Solicitor for the respondent the Prothonotary of the Supreme Court of Nova Scotia at Halifax: The Department of the Attorney General, Halifax.

Solicitors for the respondent Nugent: Coady, Filliter, Halifax.

Solicitors for the intervener: Gordon, Strathy & Henderson, Ottawa.