Ontario Superior Court of Justice

Court File No.: CR 23-024
Date: 2025/04/07

Between

Toronto Star Newspapers Ltd., Metroland Media Group, (Torstar) and Postmedia Network Inc., Canadian Broadcasting Corporation/Société Radio-Canada, Canadian Press Enterprises Inc., CTV News (a division of Bell Media Inc.), Global News (a division of Corus Television Limited Partnership), and The Haldimand Press
Applicants

and

His Majesty the King
Respondent

Applicants' Counsel:
J. Manoryk for Toronto Star Newspapers Ltd. and Metroland Media Group
B. Hughes for Postmedia Network Inc. and all other media entities

Respondent's Counsel:
F. McCracken and T. Shuster, for the Crown

Heard: March 27 and 31, 2025

Judge: A.J. Goodman

Reasons on Application for Virtual Media Access

Background

1The accused, Randall McKenzie and Brandi Stewart-Sperry, are charged with the first degree murder of OPP Constable Greg Pierzchala. The trial of this matter commenced in Cayuga, Ontario on March 24, 2025.

2On March 25, 2025, counsel for Toronto Star Newspapers Limited (“TSNL”) and Metroland Media Group Ltd. (“Metroland”, collectively referred to as “Torstar”) filed a notice of application with the court for an order that the trial in the within proceedings be available virtually, such that representatives of the applicants may be permitted to access and observe the proceedings virtually/remotely. A day later, on March 26, 2025, counsel for Postmedia Network Inc. (“Postmedia”) filed a notice of application requesting the same.

3Amongst the various grounds for the application, the open court principle was cited within both notices as support for the webcast request.

4Counsel for the applicants appeared before this court on March 27, 2025. Upon hearing submissions, their applications were allowed in part and the following order was made:

(a) That Torstar Corporation (as a representative of TSNL and Metroland) and Postmedia be provided with access to a restricted videoconference feed for the duration of the trial;

(b) That such feed may be limited to when the jury is present during the presentation of evidence at trial;

(c) That prior to being provided access, the journalist or reporter with Torstar Corporation or Postmedia shall identify themselves to the registrar and provide the required credentials;

(d) That no individual who receives access to the videoconference feed pursuant to this order shall record, reproduce, transmit or broadcast the videoconference feed in any way in whole, or in part, or provide access to the videoconference feed to any other individual or any other organization outside of the named applicants; and

(e) That subject to a further order of this court, no other journalist or media entity shall have access to the restricted videoconference link.

5On March 28, 2025, pursuant to bullet (e) above, a further notice of application was filed on behalf of Canadian Broadcasting Corporation/Société Radio-Canada, Canadian Press Enterprises Inc., CTV News (a division of Bell Media Inc.), Global News (a division of Corus Television Limited Partnership), and The Haldimand Press. Counsel for these applicants appeared before the court on March 31, 2025, and were awarded the same relief; their journalists were appended to the relevant list.

6Beyond some procedural concerns, the above applications were unopposed by Crown counsel as well as counsel for both accused.

7On March 27, 2025, this court noted that further reasons would follow the above order, regarding the applicants’ use of the open court principle as support for the necessity of webcasting the proceedings. These are those reasons.

The Open Court Principle

8Public access to court proceedings is a constitutionally protected right and a hallmark of a democratic society, restricted only in narrow circumstances where superordinate interests must prevail: see R. v. Veltman, 2023 ONSC 5063, at para. 15; Endean v. British Columbia, 2016 SCC 42, at para. 66.

9Unlike many cases in which the open court principle is cited, this application does not concern the obstruction of the public or media from observing or reporting on court proceedings in order to give proper effect to interests such as the privacy of litigants: Endean, at paras. 67-68. In such cases, the framework for assessing discretionary limits on the open court principle may become applicable (i.e., the Sherman Estate test).

10There is no question that the open court principle is in effect in these proceedings; it has not been limited. Rather, through this application, the media seeks to increase the practicability of its access on the basis that to do so would be in furtherance of the open court principle.

11In the Central South Region of the Superior Court of Ontario, the presumptive mode of hearing criminal jury trials is in person only. As set out in the Region’s Notice to the Profession, Parties and Public, effective February 1, 2024, requests to change the presumptive mode of hearing are subject to judicial discretion and will be determined considering, among other things, the issues in the proceeding, the expected length of the hearing, the evidentiary record, and access to technology (including the virtual capabilities at the institutions and courthouses). As trial judge, I endorsed the record to reflect that this trial would be held in-person only.

12There are limited reported cases addressing the issue of whether the open court principle necessitates virtual access by the public and media in general. However, the case law dealing with judges sitting outside of their home provinces and media broadcasting of proceedings is instructive and affirms the court’s inherent jurisdiction to control its own process. Ultimately, this body of law supports the proposition that the open court principle does not operate to guarantee the public’s right to be physically or otherwise present in the courtroom.

13The Court of Appeal for Ontario in Parsons v. Ontario, 2015 ONCA 158, 125 O.R. (3d) 168, later heard by the Supreme Court of Canada (Endean, at para. 70), considered whether an Ontario judge hearing a matter outside the province was acting in breach of the open court principle by failing to provide virtual access to the hearing. LaForme J.A. stated as follows with respect to the motion judge’s decision at paras. 144-148:

Part 1 directs that a judge of Ontario's Superior Court of Justice has the discretionary authority to sit outside Ontario "without the necessity of a video-conference link to a courtroom in Ontario". While Part 1 of the order directs that a video link may not be necessary, Part 2 does not preclude a video link if class counsel or the public asks for a link. Therefore, when both parts of the order are read together, it becomes clear that the presence or absence of a video link remains in the judge's discretion, to be determined on a case-by-case basis. What is equally clear is that, according to the motion judge, the discretionary authority to order an out-of-province hearing is not contingent on whether a video link is used.

I agree with the motion judge. The court's discretionary authority to hold an out-of-province hearing does not depend on the presence of a video link. I say this for three primary reasons.

First, out-of-province hearings would presumably take place in a courtroom open to the public, thereby preserving the cleansing effect public scrutiny has on the legitimacy of legal proceedings. A core tenet of the open court principle would remain unaffected.

Second, the media would still be free to report on what occurred at the hearing. The proliferation of online news media has helped Canadians stay informed about matters taking place across the nation. As the Supreme Court observed in Edmonton Journal"[i]t is only through the press that most individuals can really learn of what is transpiring in the courts". Therefore, Canadians would still have the opportunity to ensure "that justice is administered in a non-arbitrary manner, according to the rule of law". The driving factor behind the proximity between open justice and freedom of expression would be preserved.

Third, as I explain above, the open court principle does not guarantee the right to be physically present in the courtroom. And the principle must yield when its strict application would render the administration of justice unworkable. In this way, the open court principle does not serve as an automatic bar to out-of-province hearings. Instead, as I discuss below, the principle is an important factor to consider when a judge exercises his or her discretion to direct the precise contours of an out-of-province hearing. [Citations omitted; Emphasis added.]

14At paras. 174-181, LaForme J.A. went on to discuss the implications of s. 135(1) of the Courts of Justice Act, RSO 1990, c C.43, for virtual access:

Before concluding, I wish to briefly respond to my colleague Juriansz J.A.'s reading of s. 135(1) of the Courts of Justice Act. He says this section requires that "the hearing of the Ontario claims extension motion must be held in an Ontario courtroom open to the Ontario public". He concludes, however, that a hearing linked by video to an Ontario courtroom is held in Ontario even if the judge sits outside of Ontario. The motion judge erred, my colleague says, in failing to order a video link between the out-of-province sitting and an Ontario courtroom.

With respect, I do not agree that s. 135(1) requires that the hearing take place in an Ontario courtroom. To compel the Ontario judge to hear the claims extension motion in an Ontario courtroom, s. 135(1) must either limit the superior court's inherent jurisdiction or constrain the motion judge's discretion such that the motion judge erred in failing to order a video link to an Ontario courtroom. In my view, s. 135(1) does neither.

As I explained earlier, the court may exercise its inherent jurisdiction even in respect of matters regulated by statute or by a rule of court so long as it can do so without contravening any statutory provision.

Section 135(1) requires that, subject to subsection (2)"all court hearings shall be open to the public".

This court has interpreted s. 135(1) in Palkowski v. Ivancic (2009), 100 O.R. (3d) 89, 2009 ONCA 705. As Juriansz J.A. noted, at para. 23 of Palkowski, s. 135 "is the embodiment of the open court principle".

I discussed the purposes of the open court principle above, which include allowing Canadians to observe that justice is administered in a fair manner. I agree that open justice is fundamental to our justice system. I do not agree, however, that the open court principle dictates the geographic location in which a hearing is held. In a country as large as Canada, the [page203] reality is that litigants and other members of the public may have to travel considerable distances to attend a court hearing. Even within the Province of Ontario, a litigant or member of the public from Ontario may have to travel a considerable distance to attend a court hearing within the province. In my view, that does not offend the principle that courts be open to members of the public.

Nor, in my view, does the wording of s. 135 dictate that to be "open to the public" the hearing must be located within Ontario. My colleague effectively reads words into s. 135(1) that are not there. He reads the section as saying that all court hearings shall be open to the public "at a location in Ontario".

While the Ontario public (or some segment of it) may find it more difficult to access an out-of-province hearing, a hearing held in an open courtroom elsewhere in Canada is no less open to the Ontario public. [Emphasis added.]

15Affirming the above, the Supreme Court in Endean, at paras. 68-70, summarized as follows:

[T]here is no issue here about the media and the general public being prevented from entering the courtroom and observing or reporting on the proceedings. Nor are these appeals concerned with balancing the open court principle against other interests such as the privacy of litigants or whether the court can conduct an in camera hearing. Further, these appeals do not raise broader questions of the acceptable limits on the use of electronic communication mediums in the courtroom.

In short, the notion of accessibility protected by the open court principle is not typically concerned with whether a hearing is held within the boundaries of the province in which the matter originated. The location of the hearing in a publicly accessible place outside the court’s territorial jurisdiction does not, on its own, create a requirement for a video link to protect the open court principle.

For the reasons given by LaForme J.A. in the Ontario Court of Appeal at paras. 179-82, I do not accept that s. 135 of the Courts of Justice Act, which requires (subject to exceptions) that “all court hearings shall be open to the public”, means that Ontario hearings held outside the province must be conducted so that there is a video link to an open courtroom in Ontario. In my respectful view, “open to the public” does not mean “open to the public physically present in Ontario”. [Emphasis added.]

16Also examining the extent/scope of access required to satisfy the open court principle, the court in Canadian Society for the Advancement of Science in Public Policy v. British Columbia, 2022 BCSC 2108, granted the media’s application to broadcast a class action certification hearing in furtherance of the open court principle but noted that denying virtual access would not constitute a restriction on same:

[34] A decision to deny an application to film or broadcast a court proceeding is not a restriction on the open court principle protected by s. 2(b) of the Charter: Canadian Broadcasting Corporation v. Fertuck, 2021 SKQB 218 at paras. 81, 99–100; see also Meng at para. 53. Rather, a broadcast order extends and expands the open court principle. Refusal of a broadcast order does not prevent members of the public and media from attending the courtroom to watch the hearing and to scrutinise the proper functioning of the nation's courts. Denial of broadcast does not impinge public dissemination of information about a court proceeding in the same way as does a publication ban, a sealing order, or an in camera closed‑door hearing order: Pilarinos at para. 109. As such, it does not engage the tests and considerations set out by the governing Supreme Court of Canada precedents, such as Dagenais v. Canadian Broadcasting Corp., R. v. Mentuck, 2001 SCC 76, Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, and Sherman Estate v. Donovan, 2021 SCC 25.

[35] Rather, the decision today will be based upon an exercise of the Court's jurisdiction and discretion, and its inherent jurisdiction to regulate its proper functioning: Pilarinos at paras. 24, 26–32, 96, 222. This discretion must be exercised judicially, with an eye to the precedents and examples cited above, insofar as they are precedents, and with an eye to the proper administration of justice. [Emphasis added.]

17Parallels can be drawn to the current case, as it is arguable that the location of the trial and the courtroom capacity may limit the practical ability of the public and media to access the proceedings. Nevertheless, the above-cited cases make clear that to satisfy the open court principle the court is not obliged to take steps beyond having its physical doors open. Put another way, the open court principle does not equate to having the convenience of a video feed for those that cannot make it to the court for a variety of reasons.

18Further, in the current case, arrangements were made for the media to have specified front row seats to observe the trial. Indeed, several reporters were present in the courtroom on the first day of evidence and following days. Immediate access for the media to exhibits filed during the trial has been accommodated. The door to the courtroom was and remains wide open to any member of the public and media. The open court principle is fully engaged without the provision of virtual access. The application for virtual access and supporting argument related to the open court principle must fail.

The Basis for the Included Order

19Despite my comments, I am inclined, as evidenced above, to grant recognized media outlets virtual access in this case. In coming to such a holding, I note the words of Wagner J. (as he then was), in obiter in Endean, that the open court principle “must be understood as an ‘ensemble of practices’ and principles that are called upon in various contexts to serve our society’s democratic ideals, one of which being the public’s ‘right to know the law and to understand its application’”: see para. 83. With respect to the special role of the media, Wagner J. went on to state the following regarding virtual access, at paras. 98-101:

A video link was not necessary in the particular circumstances of these cases. One was not requested by class counsel, the public, or the media.

While a video link is not mandatory in an extraprovincial hearing, a judge sitting extraprovincially should be prepared to consider how to give effect to the educational and community-centric aspects of the open court principle. The absence of a request for a video link does not mean that one should not be provided where the judge considers it appropriate. The open court principle operates to protect the public’s interest in knowing what transpires in the courtroom.

I readily acknowledge that the open court principle is not unassailable. The open court principle may be limited where countervailing values are engaged: Dagenais v. Canadian Broadcasting Corp.; R. v. Mentuck, 2001 SCC 76. For example, the open court principle “must yield to circumstances that would render the proper administration of justice unworkable”: C.B.C. v. New Brunswick, at para. 29.

While the court should not presumptively order that a video link back to the home province be set up where the court sits extraprovincially, members of the public, the media, or counsel can request that a video link or other means be used to enhance the accessibility of the hearing. If such a request is made and subject to any countervailing considerations, such a request should generally be granted. [Emphasis added.]

20I accept the arguments from both applicants’ counsel. I am sympathetic to the realities that local news coverage has been facing over the last couple of years. Well summarized in the March 25 application, from the affidavit of Michelle Mandell on behalf of Postmedia, and the included, decidedly informative affidavit of Neil Oliver – Executive Vice Chair at Torstar Corporation; local news coverage is on the decline in Canada.

21I accept that the result of this decline is that remaining media organizations and outlets must do more with less. Providing coverage over greater geographic areas has resulted with fewer journalists and media resources. Where that is not possible, gaps in local news coverage occur and news deprivation results. I accept that the unincorporated community of Cayuga is somewhat remote from major news centers in Ontario.

22It is due solely to these realities that video access was granted, as the open court principle would not have been offended by my denial of the applicant’s request. Ultimately, virtual access to decisions of this nature are for judicial discretion, to be determined on a case-by-case basis.

23Finally, I observe that there are a number of media personnel who routinely attend in-person to observe and report on these proceedings. They may have a discrete advantage. For example, there are only two cameras available for limited videoconferencing. Moreover, as the Crown attorney points out, exhibits, videos, photographs, and PowerPoint presentations that will be shown on the screens in the courtroom to the jury and gallery cannot be shown simultaneously on the virtual link, as there are no hybrid videoconferencing facilities at the Cayuga courthouse. In order to ensure full compliance pursuant to s. 648(1) of the Criminal Code, the virtual feed must be limited to when the jury is in the courtroom hearing evidence.

24Order accordingly.

A.J. Goodman
Date: April 7, 2025

Released: April 7, 2025