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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Fundamental freedoms - Freedom of expression 

Thursday, January 28, 2021 @ 6:13 AM  

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Application by the media for a declaration that sections of the Court of Appeal’s Record and Courtroom Access Policy that applied to access to criminal appeal records were unconstitutional. The Court’s Access Policy required media and the public to provide the Court Registry with a written request for access to certain criminal appeal materials and set out guidelines for how those requests might be processed. The document expressly stated that the policy was founded on the principle that the court had a common law supervisory power over its record. The applicants argued that the Access Policy, in effect, created restrictions on access to material filed with the court without anyone having applied for those restrictions, thereby infringing the open court principle and their s. 2(b) Canadian Charter of Rights and Freedoms (Charter) rights. The applicants argued that restrictions on access could only be imposed by application of the test under Dagenais/Mentuck, and that the onus in that application rested on those who sought to restrict access.

HELD: Application dismissed. The Policy did not infringe s. 2(b) of the Charter. The Access Policy did not have the effect of displacing a judge’s discretion to limit court openness. It described a process by which the factors that could inform a decision on access were put before the court. It did not, at any point, purport to prescribe a result. When the protected rights of individuals came into conflict, a balance between them must be struck by applying the Dagenais/Mentuck framework. Persons requesting access under the form were not required to provide affidavit evidence, enter exhibits, provide testimony, submit written argument, or even appear in court. The requirement to complete and submit the short form in no way amounted to the reversal of the legal or evidentiary burden in these matters.

R. v. Moazami, [2020] B.C.J. No. 2021, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., L.A. Fenlon and J.J.L. Hunter JJ.A., December 9, 2020. Digest No. TLD-January252021007