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PROCEDURE - Publication bans and confidentiality orders

Friday, June 09, 2017 @ 8:36 AM  


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Application by media entities for an order lifting the sealing of various judicial authorizations. A 2015 government letter of intent contemplated a non-competitive $667 million contract with Chantier Davie to convert a container ship into a naval supply vessel. A working group of government, navy and third party entities was formed to discuss project strategy. The information used by the group was subject to a confidentiality agreement. Work commenced in October 2015. Weeks later, the federal election resulted in a change in government, and a desire by the shipbuilding community to reopen and/or retender the supply ship contract. The following month, media published an article stating the project had been delayed for two months. Judicial authorizations obtained to determine the source of the leak of confidential information resulted in charges against Navy Vice-Admiral Norman. The applicants sought an order lifting the sealing order of the judicial authorizations based on the open court principle. Vice-Admiral Norman sought restriction on publication of any unsealed materials in order to preserve his fair trial rights. Chantier Davie cited their commercial confidentiality interest in opposing the relief sought.

HELD: Application allowed. There was a high degree of public interest in the proceedings. Publicity per se did not unduly compromise the unlikelihood of empaneling an impartial jury. With the exception of the uncontested portions redacted by the Attorney General of Canada due to cabinet confidentiality, and redactions to protect the personal information of third parties as well as the pricing information in the Chantier Davie communications, the documents were unsealed. No publication ban was warranted, as the potential public stigma of Vice-Admiral Norman disclosing confidential information in an effort to preserve the existing contractual relationship was not sufficiently serious to impact fair trial rights. The open court principle and its underlying objective of accountability favoured the relief sought.

R. v. Globe and Mail Inc., [2017] O.J. No. 1994, Ontario Superior Court of Justice, K.B. Phillips J., April 21, 2017. TLD-June52017010