FPSLREB Decisions

I. Application before the adjudicator

1 This decision addresses an application filed on June 25, 2009 by the Canadian Broadcasting Corporation (“the CBC”) in the course of an ongoing hearing dealing with a grievance filed by Douglas Tipple (“the grievor”) against the termination of his employment. The CBC is requesting timely access to the exhibits entered in evidence by the grievor and the deputy head of the Department of Public Works and Government Services (“the deputy head”). In support of its application, the CBC provided the following affidavit:

…

I Alison Crawford, make oath and say as follows:

I am the justice reporter by the Canadian Broadcasting Corporation and am based in Ottawa, Ontario.

I have been employed by the Canadian Broadcasting Corporation for thirteen years. For twelve of those years, I have bee covering courts throughout Canada.

In the course of my current work, I report on the Supreme Court of Canada and the Federal Court and the Federal Court of Appeal of Canada

I have also extensively covered trial courts in Canada.

The courts during the course of trial, routinely provide access to text-based, photographic, audio and video exhibits at the time that an exhibit is entered in evidence.

The access is provided shortly after an exhibit has been tendered in evidence, either at a break in the court proceedings, at the lunch break or at the end of the day.

Access to exhibits is provided even in cases in which there is an order excluding witnesses.

I make this affidavit in support of an application for access to exhibits in the above-mentioned case and for no improper purpose

…

[Sic throughout]

II. Background

2 On October 11, 2005, the grievor was hired as a special advisor to the deputy head. By letter dated August 31, 2006, the grievor was informed by the deputy head that he was laid off immediately, pursuant to subsection 64(1) of the Public Service Employment Act, since his services were no longer required.

3 On September 5, 2006, the grievor filed a grievance alleging that he had been wrongfully dismissed and referred the grievance to adjudication on February 13, 2007. I was appointed to hear this matter and the hearing commenced on September 24, 2007. The hearing has continued on various dates throughout the remainder of the year, as well as in 2008 and up to July 2009, and the evidentiary portion of the hearing has now been completed. Exhibits G-10, G-11 and G-24 have been sealed in the course of the hearing; they are financial statements and income tax returns relating to the grievor. I will be hearing the parties’ closing arguments on October 6, 2009.

III. Arguments

4 As stated above, the CBC’s application was filed on June 25, 2009. When the hearing resumed on June 26, 2009, counsel for the grievor stated that he did not wish to take a position regarding the application. Counsel for the deputy head raised an objection, stating that the exhibits should not be provided to the CBC until I render a final decision on the merits of the grievance. I adjourned the hearing until July 6, 2009, to allow the deputy head to prepare arguments to support its position.

5 The CBC’s and deputy head’s written submissions were filed before the oral hearing on July 6, 2009, when I heard their oral submissions. I have decided to reproduce those written arguments in full.

A. For the CBC

6 On June 26, 2009, the CBC filed the following written arguments:

…

Principles Governing Access to Exhibits

There is a presumptive right of access to exhibits that should only be curtailed with the greatest reluctance. Access to exhibits is recognized as a fundamental right attendant upon the constitutional value of openness in our courts and tribunals adjudicating the rights of Canadians.

Discretionary power relative to the release of exhibits for viewing, copying and/or publication must be exercised in accordance with the Dagenais/Mentuck principles. An order restricting access to exhibits must be supported by an evidentiary foundation that the restriction is:

1. necessary to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk and
2. that the salutary effects of the restriction outweigh the deleterious effect on freedom of expression and freedom of the press.

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees the right of the media to gather and disseminate news.

Any limitation on publication of the news, including restriction on access to exhibits, is a restriction on freedom of speech and of the press which must be justified under section 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society.

The media represent the public and have the right of access, copying and publication of exhibits.

Argument

Freedom of Expression

In the leading case, Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (S.C.C.) which concerned restrictions imposed by the Alberta Judicature Act on publishing details of matrimonial proceedings, the court, in overturning the provisions, stated per Cory J.:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.

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.

There is another aspect to freedom of expression which was recognized by this Court in Ford v. Quebec (Attorney General), 1998 CanLII 19 (S.C.C.), [1988] 2 S.C.R. 712. There at p. 767 it was observed that freedom of expression "protects listeners as well as speakers". That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. 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.

It is equally important for the press to be able to report upon and for the citizen to receive information pertaining to court documents. It was put in this way by Anne Elizabeth Cohen in her article "Access to Pretrial Documents Under the First Amendment" (1984), 84 Colum. L. Rev. 1813, at p. 1827:

Access to pretrial documents furthers the same societal needs served by open trials and pretrial civil and criminal proceedings. Court officials can be better evaluated when their actions are seen by informed, rather than merely curious, spectators. [no pagination provided on CanLii]

Public Right of Access to Exhibits

The law concerning public right of access to documents related to a judicial action was expressed in the A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (S.C.C.). In granting Mr. MacIntyre, a CBC journalist, access to executed search warrants, the Supreme Court, per Dickson, J., as he then was, stated:

“At every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law. A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing to establish the commission of a crime may, in some circumstances, raise issues of public importance.

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.

Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.” [pp. 186-187]

This case was decided before the declaration of the Canadian Charter of Rights and Freedoms and therefore did not take it into account; however the position stated in MacIntyre was only strengthened by the inclusion of freedom of speech and of the press in s. 2(b) of the Charter.

An important post-Charter case concerning the copying and broadcasting of trial exhibits is Re Regina And Lortie, 21 C.C.C. (3d) 436, a decision of the Quebec Court of Appeal. In this case, at the accused’s trial on three counts of first degree murder the Crown had adduced as evidence video cassettes from cameras in the National Assembly where the killings had taken place. The cassettes had been produced without objection by the Speaker of the National Assembly. After the accused was convicted he appealed to the Court of Appeal. Pending that appeal a journalist was permitted to make copies of the tapes and now sought to broadcast the tapes. The court decided that the videotape cassettes should not be publicly shown pending the disposition of the accused’s appeal, however, L’Heureux Dube J.A., as she then was, stated in her strong dissent at p. 456 –7:

“The records of a court in criminal matters as well as the exhibits contained therein, are accessible to the general public including the media, for the purpose of consultation in so far as there is no court order restricting access to them either at the time of the production of the exhibits, or subsequently.

The production of an exhibit in a criminal case in the absence of an order restricting access to it, eliminates its private document characteristic and puts it into the public domain, not because the document becomes the property of the public as would be the case, for example, of an archive document, but in the sense that it becomes accessible to the general public for the purpose of consultation.

A document, even one in the public domain, may be subject to restrictions for the purpose of its preservation (i.e., a prohibition against photographing or photocopying it as is the case for certain archive documents or works of art) or for the purposes of the administration of justice. On this last point, Dickson J. made the following comments (MacIntyre, supra, p. 149 C.C.C., p. 189 S.C.R):

The "administration of justice" argument is based on the fear that certain persons will destroy evidence and thus deprive the police of the fruits of their search. Yet the appellant agrees these very individuals (i.e., those "directly interested") have a right to see the warrant, and the material upon which it is based, once it has been executed. The appellants do not argue for blanket confidentiality with respect to warrants. Logically, if those directly interested can see the warrant, a third party who has no interest in the case at all is not a threat to the administration of justice. By definition, he has no evidence that he can destroy. Concern for preserving evidence and for the effective administration of justice cannot justify excluding him.

The evolution of the jurisprudence as well as the rules of practice adopted in Quebec enable me to state that, always subject to an order excluding it, the right of consultation includes the right to take notes and to copy or photocopy these documents.

Once in possession of a copy of a document, the use that one can make of it is subject to the general rules of law which govern civil law obligations or contracts which is not an issue within the competence of this Court. If, in so doing, a person infringes copyright, there exist appropriate recourses under the Copyright Act, R.S.C. 1970, c. C-30. In addition, if, in so doing, one is guilty of defamation, there exist recourses in the civil courts to remedy it and so on. In these cases, the appropriate forum is not the present forum, and in any event, all recourses of this nature would be premature at the present stage. One cannot presume that these documents will be used in a prohibited manner, or one contrary to the statutes or regulations.

Publicity is the hallmark of justice, and trial in open Court is the instrument through which publicity is effectively attained. Closed Courts and secret trials bring back memories of the Court of Star Chamber, whose activities cast a dark stain on English law that was not either easily or quickly erased. No one wants a repetition of that or of anything tending towards that.

Dickson J., in the MacIntyre case, supra, refers to this comment by Bentham (p. 144 C.C.C., p. 183 S.C.R.):

"In the darkness of secrecy, sinister interest, and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge himself while trying under trial." (pp. 145-6 C.C.C., p. 185 S.C.R.):

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. The following comments of Laurence J. in R. v. Wright, 8 T.L.R. 293, are apposite and were cited with approval by Duff J. in the Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339 at p. 359:

"'Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.'"

The leading case is the decision of the House of Lords in Scott v. Scott, [1913] A.C. 417. In the later case of McPherson v. McPherson, [1936] A.C. 177 at p. 200, Lord Blanesburgh, delivering the judgment of the Privy Council, referred to "publicity" as the "authentic hall-mark of judicial as distinct from administrative procedure". (p. 147 C.C.C., pp. 186-7 S.C.R.):

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 seminal Supreme Court of Canada case, Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (S.C.C.), establishes that the Charter right of free expression is equal in value to the right to a fair hearing and therefore all measures must be taken to ensure the integrity of both. In that case the respondents, former and present members of a Catholic religious order, were charged with physical and sexual abuse of young boys in their care at training schools in Ontario. They applied to a superior court judge for an injunction restraining the CBC from broadcasting the mini-series The Boys of St-Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution in Newfoundland, and from publishing in any media any information relating to the proposed broadcast of the program. At the time of the hearing, the trials of the four respondents were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) before a judge and jury… The superior court judge granted the injunction, prohibiting the broadcast of the mini-series anywhere in Canada until the end of the four trials, and granted an order prohibiting publication of the fact of the application, or any material relating to it. The Court of Appeal affirmed the decision to grant the injunction against the broadcast but limited its scope to Ontario and CBMT-TV in Montreal and reversed the order banning any publicity about the proposed broadcast and the very fact of the proceedings that gave rise to the publication ban.

In the course of the judgment lifting the ban, the court, per Lamer C.J. stated:

The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favored the rights protected by s. 11(d) over those protected by s. 2(b). A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.

It is open to this Court to "develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution": Dolphin Delivery, supra, at p. 603 (per McIntyre J.). I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows:

A publication ban should only be ordered when:

  (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and

  (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.

    If the ban fails to meet this standard (which clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter), then, in making the order, the judge committed an error of law and the challenge to the order on this basis should be successful. [pp 877-878]

The Dagenais test was refined in the 2001 Supreme Court of Canada decision R. v. Mentuck, 2001 SCC 76 (CanLII). This case involved an attempt by poolice to suppress publication of the operational methods employed by the police in a “sting” operation. In refusing a publication ban, the court set out a three pronged test to determine if a publication ban was necessary. The first branch of the analysis requires consideration of the necessity of the ban in relation to its object of protecting the proper administration of justice. The concept of “necessity” has several elements:

1. the risk in question must be well-grounded in the evidence and must pose a serious threat to the proper administration of justice;
2. “the proper administration of justice” should not be interpreted so widely as to keep secret a vast amount of enforcement information the disclosure of which would be compatible with the public interest; and
3. in order to reflect the minimal impairment branch of the Oakes test, the judge must consider whether reasonable alternatives are available, but he must also restrict the order as far as possible without sacrificing the prevention of the risk.

The Alberta Court of Queen’s Bench directly addressed the Charter issue in Muir v. Alberta [1995] A.J. No 1656. Action No. 8903 20759. This trial concerned the forced sterilization of individuals determined to be mentally unsound. In granting access to exhibits filed at the trial to members of the media and allowing photocopies and video reproductions to be made, the court provided a thorough rationale. Veit. J. stated the following principles in the decision:

“Principles of access to exhibits

(a) General principles

14      The principles that apply to access to court exhibits have long been established in the common law and have recently been amplified in contemporary case law. Because there is, essentially, among the parties and the applicants no dispute about the public and the media's right to access exhibits, only the briefest outline of the law is necessary. This brief outline is made necessary only because Alberta limits its acceptance of public and media access to exhibits to this case. The case law demonstrates that access to exhibits is the general rule, whether or not the parties agree to such access.

15      Access to exhibits is presumed in an open justice system; exhibits are part of the court "record". Public scrutiny of the judicial process is key to the democratic control of that branch of government. In Alberta, the then Deputy Attorney General of Alberta sent a circular memo to the Bar in January 1984; one paragraph of that letter read as follows:

Civil Trials: Exhibits, once entered on the Court record, are accessible for viewing by the public unless there is a statutory requirement of confidentiality, or the Court otherwise orders.

                                              Stevenson & Cote, at p. 1517

16      In addition, Canadians, including Canadian media, have a constitutionally protected right of "freedom of expression". In order to exercise this right, the media requires access to, and the right to publish, exhibits.

17      Therefore, any restriction on either the right of access, or the freedom to speak about what has been accessed, must be made only in the clearest of circumstances. Before imposing any limitation, the court must find that some value other than open justice or freedom of expression requires protection.

18      A restriction of the usual or general right of access to exhibits is not justifiable to protect a "speculative risk" to a societal value. The burden of persuasion is on those who seek to limit access or freedom of expression. Access should not be provided only to those who have a personal or specific interest in the exhibit.

19      Indeed, any court limitation of the right of access or the freedom of expression gives rise to the potential application of s. 2(b), and perhaps other sections, of the Charter.

20      Authority for these propositions can be found in: Edmonton Journal, Re Halifax Herald; Dagenais; MacIntyre; Scott…

(b)  No difference between public and press

21      The media do not stand in any different position than the public: where the public would be allowed access, the media is allowed access.

22      The media does not have any unique right of access; its rights are equal to, but not greater than, those of the public.

23      Where a young witness would be prevented from giving evidence if required to give that evidence in front of the public, the public may be prevented from being present in the courtroom. Often, in such cases, a representative of the media is allowed to stand in for the public, to be a surrogate for the public. In such situations the media are not accorded rights above those of the public generally; the media are merely exercising the public's right.

24      Authority for these propositions can be found in: Children's Aid, Canadian Newspaper Co. Ltd.

(c)  No difference between reading and publishing

25      While some cases have held that there is no distinction between the right of access and the right to replicate and duplicate, and while that result may generally be correct, those opinions do not appear to be addressing issues of ownership in exhibits, including ownership of copyright. The issue of ownership of exhibits is discussed below.

26      Except for issues involving ownership of the exhibits, the media, as agent of the public, ought to have not only access to the exhibits but the right to copy them as part of the report of proceedings. The right of access should usually be exercised contemporaneously with the trial proceeding itself.

27      Support for these propositions can be found in: Warren, and Vickery.

(d)  No difference between document entered and document referred to by witness

28      If the exhibits are introduced into evidence and seen by the people present in the court, allowing media access to the exhibits facilitates the open justice concept by allowing those who could not be present to see the exhibits.

29      Even if the exhibits are not seen by the public present in the court, the exhibits constitute evidence on which the court - whether the court is a judge or judge and jury - will reach verdicts or make decisions. Therefore it is appropriate that the public have access to that evidence.

Limitations on rights of access

32      As the parties and the applicants have acknowledged, the right to access to court exhibits is not unlimited. Because of the Supreme Court of Canada's recent decisions on the ranking of constitutional rights, I prefer to avoid the language of "superordinate" values used in some of the earlier case law. We should merely recognize that the courts are often faced with choosing from among competing values; when that happens, the courts must consider all of the circumstances of the case to determine, for that case, how the competing interests must be weighed.

(a) Order limiting access is equivalent to publication ban

33      In this trial we have proceeded on the basis that a limitation of access to exhibits is equivalent to a publication ban. Any order limiting access to exhibits must therefore comply with the principles set out by the Supreme Court of Canada in Dagenais.

In a 2002 decision, CTV Television Inc. v. Ontario Superior Court of Justice  (Toronto Region) (Registrar) et al., 2002 CanLII 41398 (ON C.A.) the Ontario Court of Appeal allowed an appeal from the decision of an application judge who had held that the court could grant access to exhibits only where the requirement of open justice had not been met. In this case, he ruled that both the preliminary hearing and the sentencing hearing were open to the public, so the requirements of open justice were met. He held that the court had no power to act simply for the purpose of public access. Having based his decision on jurisdictional concerns, he declined to make a finding on the merits of the applicant’s entitlement to the order sought. In allowing the appeal and referring the matter back for decision, Goudge J.A. relied upon the presumption of accessibility to exhibits and decided that jurisdiction does not end when documents are transferred by court to police at the end of the proceedings. Documents remain an integral part of the court records. He stated:

“[13] The central issue in this appeal is the extent of the court's power or jurisdiction over its own records. To determine whether it extends to the circumstances of this case, it is important to remember that the court's jurisdiction over its own records is anchored in the vital public policy favouring public access to the workings of the courts.

[14] This was made clear in the seminal case of A.G. of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, 132 D.L.R.

(3d) 385. Speaking for the majority of the court, Dickson J. upheld public access to a search warrant and the information upon which it had been issued once the warrant had been successfully executed. In doing so he eloquently described the importance of public accessibility at every stage of the process. The rule should be one of public accessibility, to be departed from only if necessary to protect what he called "social values of superordinate importance", such as the protection of the innocent. As he indicated, this approach fosters both public confidence in the integrity of the court system and public understanding of the administration of justice. At p. 189 S.C.R. of his reasons, he concluded with the following:

Undoubtedly every court has a supervisory and protecting power over its own records. Access can be   denied when the ends of justice would be subverted by disclosure or the judicial documents might be used    for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right.

[15] Of the two important objectives served by public access referred to in MacIntyre, the court in that case emphasized judicial accountability and the consequent public confidence that results from public access to the workings of the courts.

[16] In subsequent cases the court has made equally clear how important public access is to the second objective, namely a greater public understanding of the administration of justice. Moreover, the court has underlined how important the media are in providing the medium of communication to achieve this end. For example, in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, 139 D.L.R. (4th) 385, the court discussed the value of public access as a means of enhancing public understanding. La Forest J. said this at pp. 496-97 S.C.R.:

Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.

It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what is transpiring in the courts.

[17] In MacIntyre, the court made clear that the strong presumption in favour of public access to court records should be displaced only with the greatest reluctance and only because of considerations of very significant importance such as the protection of the innocent. In Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, 64 C.C.C. (3d) 65, the court further elaborated on the factors to be considered in deciding whether public access should be given.

[18] The issue in Vickery was whether a journalist should have access to audio and video tapes filed as exhibits at a criminal trial given that the appeal court had held that they were inadmissible, had reversed the conviction and acquitted the accused.

[19] Speaking for the majority, Stevenson J. concluded that access to the tapes was properly denied because the privacy interest of the accused as a person acquitted of a crime outweighed the public right of access to exhibits which had been held to be inadmissible against him. In reaching this conclusion, Stevenson J. reiterated the fundamental proposition in MacIntyre that there should be maximum accessibility but not to the extent of harming the innocent.

[20] He went on to outline several other significant factors to be considered in deciding whether to accord access. He referred to the nature of exhibits as a part of the court "record" including, particularly, the proprietary interest that non-parties may have in them, and suggested that this may cut against unfettered access once the exhibits have served their purpose in the court process. He made clear that the court had the right to inquire into the use to be made of access and to regulate that use by securing appropriate undertakings to protect competing interests. He described as another important consideration whether the exhibits had been open to public scrutiny at trial. And he indicated that once the judicial proceedings had been concluded different considerations might govern, for example where the subsequent release of selected exhibits would create risks of partiality and unfairness.

[21] In the end, he decided that the privacy interest of the innocent person who had been acquitted outweighed the access interest of the journalist who sought to view and disseminate the tapes.

[22] I think it is clear from this jurisprudence that the court's jurisdiction to determine access to court records (including exhibits) rests on the premise that public accessibility should be curtailed only with the greatest reluctance, taking into account the need to protect the innocent and the other considerations described in Vickery. It is also clear that this jurisdiction does not vanish simply because it is shown that these exhibits were filed in open court. As Vickery indicates, this is not conclusive, but merely one factor for the court to consider in determining whether to depart from the presumption of public accessibility. Indeed, in the present case, where there was a publication ban during the trial, it is perhaps a factor of diminished importance.

[23] Thus, I conclude that the application judge erred in determining that he had no power to grant the appellant's request for access simply because these exhibits had been filed at the preliminary hearing and then forwarded to the sentencing court, both of which were open to the public.

[24] The Toronto Police Service also seeks to defend the decision appealed from on the basis that the exhibits sought by the appellant are no longer in the possession of the court.

[25] While in both MacIntyre and Vickery the relevant court records remained in the court's possession, in my view there can be no principled basis for terminating the court's jurisdiction to provide access to exhibits just because they have left the possession of the court. They do not lose their character as exhibits simply because they have been physically transferred to the Toronto Police Service. They remain an integral part of the court record in the Lorenz case.

[26] Moreover, the objectives that are served by the presumption of public accessibility -- namely, judicial accountability and public understanding of the administration of justice -- continue to be important even when possession passes from the court. Fostering judicial accountability in a particular case and enhancing public understanding of that case do not cease when the exhibits are transferred to the police. The policy objectives served by the court's jurisdiction to provide public access to its records thus strongly suggest that, whatever its ultimate reach, this jurisdiction does not end when the records pass out of the court's possession.

[27] As with the proprietary interest in exhibits referred to in Vickery, it may be that where they have passed into the control of another, there is a possessory interest to be considered in deciding on public access. In a case like this, however, where the exhibits have simply been returned to the police a few months after the court proceeding and the application for access has been promptly made, that interest would not seem to be significant.

[28] Finally, the Toronto Police Service argues that the existence of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 precludes the court from exercising its common law jurisdiction to order access to court records. The respondent says that this legislation permits the appellant to apply for access to the exhibits it seeks and sets up criteria for evaluating such a request.

[29] In my view, the simple answer to this argument is that the regime set up under this legislation has an entirely different purpose. It is designed to regulate access to private information which, but for the regime, would not otherwise be available to the public. By contrast, the jurisdiction which the appellant seeks to engage is over court records which the common law treats as presumptively accessible to the public. There is nothing in the legislation that suggests either explicitly or by necessary implication that the court's jurisdiction at common law is being curtailed or removed. This is hardly surprising since the legislation is designed for such a different purpose. The regime it establishes is simply one which co-exists with the court's jurisdiction. It does not replace it.

[30] In summary, therefore, I conclude that the court has jurisdiction to order public access to the court exhibits sought by the appellant.”

The Dagenais/Mentuck Test applies to access to Exhibits.

In the recent Supreme Court of Canada case, Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), search warrants relating to alleged violations of provincial legislation were issued. The Crown brought an ex parte application for an order sealing the search warrants, the informations used to obtain the warrants and related documents, claiming that public disclosure of the material could identify a confidential informant and could interfere with the ongoing criminal investigation. A court order directed that the warrants and informations be sealed. Various media outlets brought a motion for certiorari and mandamus in the Superior Court, which quashed the sealing order and ordered that the documents be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. Applying the Dagenais/Mentuck test, the Court of Appeal affirmed the decision to quash the sealing order but edited materials more extensively to protect informant’s identity.

The court per Fish. J., stated:

In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy.

That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.

The freedoms I have mentioned, though fundamental, are by no means absolute. Under certain conditions, public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice. A temporary shield will in some cases suffice; in others, permanent protection is warranted.

Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.

This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined. The issue in this case is whether that test, developed in the context of publication bans at the time of trial, applies as well at the pre-charge or “investigative stage” of criminal proceedings. More particularly, whether it applies to “sealing orders” concerning search warrants and the informations upon which their issuance was judicially authorized.

The Court of Appeal for Ontario held that it does and the Crown now appeals against that decision.

I would dismiss the appeal. In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter. [para 1-7]

It is thus clear from the case law that accessibility to exhibits is the rule and denial of access the exception. As stated by Veit J, the denial of access to exhibits is a form of publication ban. The decisions also establish that the media is the representative, that is, the eyes and ears of the public who cannot attend a court proceeding and that in normal circumstances, the media should be allowed not only access to but the right to copy exhibits. The burden of preventing access lies upon the party that would deny the access and the only justifiable reason for preventing access is to protect values of superordinate importance. Even in the case of the potential release of compromising videotapes of an individual whose conviction was overturned, three members of the Supreme Court of Canada argued for their release. Finally, the Court of Appeal of Ontario has confirmed that the right of access to exhibits does not end with the end of the trial itself. The documents remain an integral part of the court record.

In our respectful submission, the practice of preventing access to exhibits until the decision of an adjudicator is rendered amounts to a ban on publication until the end of the hearing. If the goal is to prevent current and future witnesses from reviewing the contents of exhibits in the news, there are other ways to achieve this goal. Any witness currently being examined will have seen the exhibit and cannot be prejudiced by its publication. Future witnesses, even where there is an order excluding witnesses, may be directed by the adjudicator not to read, listen to or view media reports concerning the matter at hand, just as juries are so instructed in trials. Reporters and the public may attend open hearings and report all aspects, including the name of the exhibit being examined and details of the questioning. Access to the exhibits themselves assists the accuracy of the reporting, without otherwise prejudicing the rights of the parties or the administration of justice.

…

[Sic throughout]

7 The CBC filed the following supplementary written arguments on June 26, 2009:

…

This supplementary brief include two additional cases on the following points of law:

• In camera hearings are tantamount to a publication ban
• Access to exhibits must be provided in a timely basis.

In Camera Hearings Are Tantamount To A Publication Ban.

In Named Person v. Vancouver Sun [2007] 3 S.C.R. 232, 2007, SCC43, The appellant Named Person informed the judge, during an in camera portion of extradition proceedings, that he was a confidential police informer, and on that basis requested some disclosure from the appellant Attorney General, who was acting on behalf of the state requesting the Named Person’s extradition. At a subsequent hearing, media representatives applied for an order that they be allowed to review the documents prepared by an amicus curiae upon filing undertakings of non-disclosure. The judge allowed the application and ordered that counsel for the respondents as well as specific representatives of each respondent be allowed to review the amicus documents on each individual filing an undertaking of confidentiality. The Supreme Court of Canada overturned that order on the basis that informer privilege is extremely broad and powerful. Once a trial judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer’s identity applies. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time.  The court remanded the case to the extradition judge to decide what information may be disclosed to media counsel and the media representatives In the course of its judgment, per Basterache J, the court stated however:

96 It will now be necessary to turn to a problem relating to the definition of the rights flowing from the open court principle. The recognition of the right of the press to inform the public on court proceedings as a corollary to the public’s right to open courts tends to lead to the view that these two rights are one and the same. However, a conceptual distinction must be maintained between them in order to deal with the difficulties that the application of this principle gives rise to in the relationships between these rights and other rights without taking the relevant values into consideration. For example, in certain situations, a judge might consider it appropriate — or might be required by legislation — to order a publication ban but not to order that the proceedings be held in camera. Such an order would restrict the right of the press to report on what happens in court. However, it would not infringe the more general right to open courts. In this sense, an order that proceedings be held in camera is more drastic because, in practice, it constitutes a publication ban, whereas the converse is not true.

97 The difference between the two types of orders can be seen in Canadian Newspapers, in which this Court ruled on the constitutionality of a statutory provision compelling the trial judge to order a publication ban in certain circumstances in sexual assault cases. On that occasion, the Court agreed that such a provision limits the right to freedom of expression guaranteed by s. 2(b) of the Charter. It nevertheless held that the provision was justified under s. 1 of the Charter because, inter alia, it did not require the trial judge to proceed in camera but, on the contrary, allowed the media to be present at the hearing and report on the conduct of the hearing and the facts of the case, provided that this information did not tend to identify the complainant.

98 Canadian Broadcasting Corp. v. New Brunswick also illustrates the difference between the two types of orders and it shows clearly that courts should exercise caution before ordering that proceedings be heard in camera. In that case, which concerned sexual assaults committed against young female persons, the trial judge had ordered under s. 486(1) of the Criminal Code that the media and the public be excluded from a part of the sentencing proceeding dealing with the specific acts committed by the accused. The order remained in effect for only 20 minutes. Nevertheless, this Court decided that the trial judge should not have excluded the public in this manner, as there was insufficient evidence to support a concern for undue hardship to the accused or the complainants. The Court reached this conclusion because, inter alia, of the fact that the victims’ privacy was already protected by a publication ban.

The Media Must Be Given Timely  Access To Exhibits.

In R. v. White, 2005 ABCA 435 (CanLII), the accused sought an order banning publication of the evidence, memoranda of argument, and the oral submissions made during a hearing for judicial interim release. The judge reviewing that order for judicial interim release convened a hearing to hear submissions from the media. At the end of the hearing the judge left the publication ban in place because s. 517 of the Criminal Code placed a mandatory ban on publication of this material which the judge felt would be rendered nugatory, if he, on judicial review of an order for interim release, were to lift the ban. In the course of his decision, however, he noted:

[5] In my opinion, transparency enhances the public’s knowledge of the judicial process, thereby promoting respect for the administration of justice. It follows that an application for a publication ban should be heard in open court and not in-camera. The latter will be the rare exception. That is because proceeding in private insulates the decision from meaningful appellate review, there being no readily available public record of the submissions made, nor any accessible recorded reasons for granting the publication ban.

 [6] News is a perishable commodity. Because “[n]ews, as the word implies, involves something new - something fresh.” (Triple Five Corp. v. United Western Communications Ltd.(1994), 19 Alta. L.R. (3d) 153 at 155 (C.A.)), unjustified delay in permitting full public access will have a deleterious effect on the ability of the media to report, and, in the result, for the public to be informed. Contemporaneous access to court documents and processes allows the media to fulfil their legitimate role as the eyes and ears of the public. As Kerans, J.A. noted in Triple Five Corp.,“time [for the media] is always of the essence.”

In a later application to revoke bail for Mr. White, R. v. White, 2006 ABCA 65 (CanLII), the court found that while there was a statutory ban on publication of bail hearing proceedings if requested by the accused, there was no such limitation on bail application reviews in the Court of Appeal. The appeal court decided that there was no justification for a ban on publication of proceedings in this case.

Conclusion

As stated in the Brief of Law, the rule is that tribunals hold hearings in public and permit public reporting of all aspects of the hearing. Any limitation on that publicity is the exception. Such measures as bans on publications and holding hearings “in camera” are exceptional and should be carefully considered, applying the Dagenais/Mentuck test. In courts the practice has been to provide access to exhibits contemporaneous with their entry into evidence [See affidavit of Alison Crawford] and the case law indicates that this should be the case. News is a perishable commodity and unjustified delay in permitting full public access has a deleterious effect on the ability of the media to report, and, in the result, for the public to be informed.

…

[Sic throughout]

8 The CBC submitted the following case law in support of its arguments: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175; R. v. Lortie (1985), 21 C.C.C. (3d) 436 (Qc C.A.); Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76; Muir v. Alberta, [1995] A.J. No 1656 (Alta. Q.B.) (QL); CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region), (2002), 59 O.R. (3d) 18 (Ont. C.A.); Toronto Star Newspaper Ltd. v. Ontario, 2005 SCC 41; Named Person v. Vancouver Sun, 2007 SCC 43; R. v. White, 2005 ABCA 435; and R. v. White, 2006 ABCA 65.

B. For the deputy head

9 On July 3, 2009, the deputy head filed the following written arguments:

…

OVERVIEW

1.       It is arguable that the principle of open court applies to the Public Service Labour Relations Board (the “PSLRB”) when adjudicating grievances such as the one brought by the grievor, Mr. Douglas Tipple. However, administrative tribunals are different than courts and this may warrant flexibility in the way the open court principle applies. Thus, as master of its own procedure, it is for the PSLRB to decide whether to provide access to the documents entered as exhibits after a decision is rendered and not infringe on the rights guaranteed by section 2b) of the Charter.

FACTS

2.       The grievor was hired as a Special Advisor to the Deputy Minister of Public Works and Government Services Canada (“PWGSC”) in October, 2005. This was a term appointment for a period of three years made pursuant to section 8 of the Public Service Employment Act (“PSEA”).

3.        By letter dated August 31, 2006, the grievor was advised by the Deputy Minister that his services were no longer be required as it was decided to integrate the function of his position with those of the Assistant Deputy Minister, Real Property. As a result, due to the discontinuance of the grievor’s functions, he was laid off pursuant to section 64(1) of the PSEA.

4.       The circumstances surrounding the termination of the grievor’s term employment with PWGSC have been the subject of a hearing before the PSLRB. Evidence was heared throughout 2007, 2008 and 2009 and recently concluded with the testimony of the grievor on June 29, 2009, leaving the closing arguments for a later date.

5.       On June 25, 2009, the Canadian Broadcasting Corporation (“CBC”) brought a motion to obtain access to the evidence entered as exhibits in the course of the hearing before the PSLRB.

ISSUES

6.       The motion brought by CBC raises the following issues:

i.        Does the open court principle protected by section 2(b) of the Charter require administrative tribunals to make available to the public the exhibits presented in evidence?

ii.       Does an administrative tribunal have a discretion to refuse to release the exhibits until a decision is rendered?

POSITION

7.       Regardless of whether the open court principle and section 2(b) of the Charter applies, all courts and administrative tribunals have the discretion to make exhibits available or not and how and when they will be available. Some of the factors that can be taken into account when exercising this discretion include the continuity of exhibits, their integrity, the administrative burden, the presence of the press during a hearing and whether making copies would unfairly prejudice any of the parties.

SUBMISSIONS

A)      Applicability of the Open Court Principle to Administrative Tribunals

8.       Traditionally, and subject to contrary statutory direction, there is no general common law requirement that administrative tribunals conduct their proceedings in public.  Where the enabling legislation is silent on this point of procedure, a statutory decision-maker is the master of its own proceedings and the matter of a public versus in camera hearing is left to its discretion.

9.       Recently, the common law relating to the open court principle has been largely overtaken by s. 2(b) of the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter protects the right to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. The courts have held that s. 2(b) guarantees the right of members of the public to receive information pertaining to all judicial proceedings, subject to overriding public interests. However, the case law is divided as to the applicability of the open court principle under section 2(b) of the Charter to administrative tribunals in general.

10.     In Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), MacGuigan J.A. concluded that the open court principle under s. 2(b) of the Charter applied to all statutory tribunals exercising judicial or quasi-judicial functions. In determining whether a tribunal performs a judicial or quasi-judicial function, he relied on the four-part test set out in the Supreme Court’s decision in M.N.R. v. Coopers and Lybrand.

11.     The reasoning in Pacific Press did not find unanimity in subsequent cases and in the absence of clear guidance from the Supreme Court of Canada, courts are wrestling with the suggestion that the open court principle applies to all administrative tribunals performing judicial or quasi-judicial functions.

12.     The unresolved issue is whether it is sufficient that the administrative tribunal is of a judicial or quasi-judicial nature or whether some additional finding is necessary such as a finding that the matter before the tribunal is of sufficient public importance that openness is warranted.

13.     The PSLRB considers itself a quasi-judicial tribunal and as such would appear to be bound by the constitutionally protected open court principle.

14.     In addition, since the PSLRB is responsible for, among other things, the interpretation of collective agreements and arbitral award, the adjudication of disciplinary actions of public servants and their demotion or termination for unsatisfactory performance or for any other non-disciplinary reasons, it is arguable that public servants have an interest in the way in which disputes over grievances are resolved by the PSLRB. There is therefore an argument to be made that the adjudication of grievances before the PSLRB is of sufficient public importance to warrant the application of the open court principle.

B)       Whether CBC is Entitled to Exhibits Before a Decision is Rendered

15.     As mentioned above, an administrative tribunal is master of its own proceedings and where the enabling legislation is silent on a point of procedure, the tribunal may determine the procedure to be followed.

16.     There is nothing in the PSLRB’s enabling legislation or regulations preventing it from determining how it will proceed in releasing exhibits to the public and media.

17.     Thus, on the surface it appears that the PSLRB would be acting within its jurisdictional limit if it ordered that the exhibits be released to the media after it renders a decision. However, superimposed upon this general rule of administrative law is section 2(b) of the Charter.

18.     While section 2(b) of the Charter and the open court principle would appear to apply to the PSLRB, the degree to which the principle applies to this tribunal may not be the same as before a court. Administrative tribunals come in all shapes and sizes with some performing policy functions while others act as quasi-judicial bodies and conduct hearings. A degree of flexibility is therefore warranted in how they give expression to the open court principle. Requiring administrative decision-makers to meet the open court principle in exactly the same manner as a court could potentially make their proceedings unmanageable.

19.     In this case, it is arguable that the open court principle has been met since the hearing has been open to the public and access to the exhibits will be possible at the latest once a decision is rendered. The media has been present during most of the presentation of the evidence and has been taking notes throughout. The media has a right to disseminate information to the public and the public has the right to receive it. There is, however, no authority that dictates that the information must be released in precisely the same form in which it was produced and presented during the hearing, or that the public have a right to copies of exhibits.

CONCLUSION

20.     The PSLRB is master of its own procedure subject to its enabling legislation and the Charter. Given that the case law suggests that the open court principle does not necessarily apply to administrative decision-makers in the same manner as it does to courts and given that, it is arguable that PSLRB has a certain discretion in the manner it will release the exhibits to the public and the media.

…

[Sic throughout]

10 The deputy head submitted the following precedents: Brunswick News Inc. v. New Brunswick (Attorney General) 2008 NBQB 289; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; Canadian Broadcasting Corp. v. Summerside (City) (1999), 173 Nfld. & P.E.I.R. 56 (P.E.I.S.C. (T.D.)); Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Gordon v. Canada (Minister of National Defence), 2005 FC 335; Kirchmeir v. Edmonton (City), 2001 ABQB 107; Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 327 (C.A.); Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; R. v. Canadian Broadcasting Corporation, 2007 CanLII 21124 (Ont. Sup. Ct. J.); Robertson v. Edmonton (City) Police Service, 2004 ABQB 519; Southam Inc. v. Canada (Attorney General) (1997), 36 O.R. (3d) 721 (Ont. Ct. (G.D.)); Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329 (T.D.); Re Vancouver Sun, 2004 SCC 43; MacAulay and Sprague, Practice and Procedure Before Administrative Tribunals (2004), ¶ 16.3; and Adjudication Services (as of July 3, 2009), online: PSLRB <http://pslrb-crtfp.gc.ca/adjudication/intro_e.asp>.

IV. Reasons

11 The CBC argues that the open court principle applies to adjudication proceedings and, therefore requests immediate access to all exhibits entered in evidence during the course of the hearing regarding the grievor’s termination.

12 The deputy head, at paragraph 18 of its written arguments, concedes that paragraph 2(b) of the Charter and the open court principle appears to apply to these proceedings. However, the deputy head, relying on the administrative law principle that an adjudicator is the master of his or her own proceedure, requests that I exercise my discretion not to grant the CBC access to the exhibits until I render a final decision on the merits of the grievance. The deputy head argues that the open court principle does not necessarily apply to administrative tribunals in the same fashion as it does to the courts.

13 In exercising his or her discretion, an adjudicator must act within the boundaries set by the Charter. As the Supreme Court of Canada found in Toronto Star Newspapers Ltd., such boundaries, known as the Dagenais/Mentuck test, apply with regard to public access to legal proceedings. At paragraphs 4, 5 and 7, the Court wrote the following:

…

4        Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.

5        This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined…

…

7        … In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter.

[Emphasis in the original]

14 In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, the Supreme Court of Canada had reformulated the Dagenais/Mentuck test as follows:

…

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the … order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

…

In this case, however, the second part of the Dagenais/Mentuck test has no practical application, as the deputy head has not alleged that the right to information protected by the Charter interferes with another important right or interest requiring protection.

15 The party seeking to restrict the public’s access to these proceedings bears the burden of establishing the legitimacy of the limitation sought: MacIntyre. For the purpose of this decision, the deputy head must provide a sufficient evidentiary basis to establish that not granting access to the exhibits until I render a final decision on the merits of the grievance is necessary in order to prevent a serious risk to an important interest in the context of adjudication. It has produced no evidence to that effect or alluded to any risk of that kind.

16 As previously stated, the evidentiary portion of the hearing has been completed and the hearing will resume on October 6, 2009, to hear the parties’ closing arguments. I therefore find that granting the CBC access to all the exhibits, except those that have been sealed, will not create a serious risk to the integrity or fairness of the remainder of the hearing.

17 For all of the above reasons, I make the following order:

V. Order

18 I declare that the CBC is entitled to immediate access to all the exhibits, except Exhibits G-10, G-11 and G-24 that have been sealed.

September 11, 2009.

D. R. Quigley,
adjudicator