Aboriginal Peoples Television Network v Alberta (Attorney General) 2018 ABCA 133

A witness in a murder trial was cross-examined using her videotaped statements to police. Only small portions of her statements were put to her during cross-examination. Neither the judge nor the jury watched the portions of the videos that were not played in court, or made any decisions based upon them, or otherwise considered them. However, the trial judge marked complete copies of the videotaped statements as an exhibit for identification.

APTN applied for an order authorizing the release and publication of videotaped interviews marked as exhibits in the second degree murder trial of Connie Oakes. The trial judge allowed the application in part, granting APTN access to the portions of the videos that were played for the jury during cross-examination. She denied access to the remainder of the exhibits. APTN appealed, arguing that the trial judge should have granted it full access to the exhibits.

The ABCA stated:

In our view, the open court principle does not extend to the parts of the videos that were not actually used at trial, in the sense that they were never considered by the judge or jury nor did they play a role in the resolution of any legal, factual, or procedural issue. While access to these videos does not turn on whether the full videos were admissible under the rules of evidence, the trial judge did not err by refusing to release the exhibit…the appeal is dismissed.