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‘Important’ decision balances open court principle with protection of sensitive information: lawyer

January 19, 2023 by Ian Burns

The B.C. Court of Appeal has outlined a process to follow when judges deal with media requests in “rare and exceptional cases” where there is no information publicly available about a court proceeding — and revealing that information to counsel for the media would represent too great a risk to an important public interest.

The court’s decision comes as the result of a challenge from Postmedia Network Inc. after a Vancouver Sun reporter was denied access to a court proceeding in which the judge had issued orders sealing the court file, banning publication of information and requiring the action to proceed in camera. Postmedia filed an application in the B.C. Supreme Court registry seeking access to the materials before the court that had led to the orders restricting court openness being granted, for the purpose of making a further application to vary or vacate those orders.

Supreme Court Chief Justice Christopher Hinkson denied the application and told Postmedia could instead file an originating application to receive an audience with the judge — which was later  dismissed. Postmedia appealed the ruling, alleging that the process taken was procedurally unfair and  that the reasons are inadequate and reveal an error of law.

But the Court of Appeal dismissed the challenge, ruling there was no procedural unfairness to Postmedia  and noting the case is the “rare and exceptional one” in which revealing the very nature of the interests  at stake would risk disclosing them.

The court wrote that it is “well established” that the open court principle, essential to the rights of  freedom of expression and freedom of the press under s. 2(b) of the Charter, is fundamental to our  democracy and to the rule of law — but those rights are not absolute.

“In certain circumstances, public access to confidential and sensitive information will endanger and not  protect the integrity of our justice system,” the court wrote. “Courts have discretion to make orders  limiting court openness where disclosure of such information would pose a serious risk to an important  public interest; where the order sought is necessary to prevent this serious risk because reasonable  alternative measures will not; and where the benefits of the order outweigh its negative effects.” 

But the court did outline a process to follow when the media seeks to bring an application to vary  complete sealing orders, and orders that a sealed case proceed behind closed doors. 

“Specifically, we are confronted with the need for a procedure to govern a situation where, by virtue of  the fact that there is no information publicly available about a proceeding, the media must make a  preliminary application for access to materials in order to understand the very basis for the orders  restricting court openness, and consequently to make meaningful submissions in a further application to  vary them,” the court wrote. 

In such circumstances, the court wrote it “may be preferable” for a judge to appoint an amicus curiae to  make an argument on how to both protect the privilege in issue and realize the open court principle. 

“In the usual situation, the media would have access to at least some material upon which to base  submissions. Occasionally, circumstances may arise in which this information cannot be given to the  media representatives themselves, but only to their counsel upon an undertaking not to disclose it,” the  court wrote. “In the situation at hand, where even revealing the nature of the privilege to counsel for  the media represents too great a risk, an amicus curiae can provide submissions regarding the  importance of ensuring that the privileges in issue are not overextended, and the way in which this can  be accomplished in the context of the case.” 

Doing that would have led to a better process in the case at hand, the court wrote. 

“When the media brings an application requesting access to materials in a fully sealed and in camera  case, the judge below should appoint an amicus to whom information can with less risk be revealed in  order to make argument,” the court wrote. “The judge must still take great caution, and material should  be redacted as needed. The result may still be a complete sealing of the file and an entirely in camera  proceeding … but the public and the parties will at least know that the matter has been fully argued and  considered.” 

The court further wrote that an application brought by the media should, at first instance, be an  application to vary or vacate the orders restricting court openness, rather than a preliminary application  for access to materials. 

“In a case like this, they amount to the same thing: allowing access to materials leading to the Restrictive  Orders would effectively be a variation of them,” the court wrote. “If a decision of the court below is to  come before this Court, it should be a substantive decision as to the need for and scope of the orders  themselves, with the benefit of the arguments of the amicus. This would result in a better use of both  courts’ resources.” 

The unanimous decision was authored by a three-judge panel of the court consisting of Chief Justice  Robert Bauman and Justices Lois Frankel and Anne MacKenzie. The court’s decision to dismiss the  appeal was made public Dec. 21, with a corrected judgment issued Jan. 9 (Postmedia Network Inc. v.  Named Persons, 2022 BCCA 431). 

Media and defamation lawyer Howard Winkler said courts have long had to deal with the struggle  between the principle of an open court and the protection of highly sensitive information — and the  likelihood of harm from the disclosure of such information. 

“The court correctly says it is only a very rare and extraordinary case in which the court will in a sense  make its decision in silence and in secret, outside of view of the public and outside of the view of the  media,” he said. “And what is really difficult about these situations — and the problem that was faced  by Postmedia — is that their counsel essentially had to argue this matter of the important principle of an  open court not having any information whatsoever about the underlying proceedings. And that really  puts the media at a disadvantage and the protection of the open court principle in jeopardy.” 

Judges across Canada will likely look at the case as one example of how the courts in one province have  attempted to create some kind of balance between open courts and the protection of information, said  Winkler. 

“This situation is very rare — and we are not going to know what is sensitive about this information that  complete secrecy is required, except perhaps once the proceeding comes to an end,” he said. “What the  court did here was very important.” 

Winkler noted all lawyers are officers of the court, but what the decision recognizes is that lawyers for  the media have somewhat conflicting duties.

“They have a duty to the client and a duty to the court as officers of the court, and one would normally  think that a lawyer’s undertaking not to disclose information to their client would be sufficient,” he said.  “But what the court has recognized there are situations where even doing that has too much risk.” 

Counsel involved in the case declined to officially comment on the decision. 

The ‘Important’ decision balances open court principle with protection of sensitive information: lawyer article was published by The Lawyer’s Daily on February 16, 2022.

Filed Under: Civil litigation, Defamation

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Howard Winkler

Certified Specialist in Civil Litigation by the Law Society of Ontario

hwinkler@winklerresolution.com

p: (416) 519-2344

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