May 17, 2013
Canadian Broadcasting Corporation et al v. Saint John Police Force et al NBQB 167

This application for judicial review of a decision of a judge of the provincial court arose from an application by the applicants to unseal eight search warrants, one production order, the informations to obtain in support of each of those and the reports to a judge filed after they were executed.

At para 33, Justice Grant distinguishes the case relied on by the provincial court judge and the instant case:

As mentioned the Provincial Court Judge relied heavily on the approach used in the Ottawa Citizen decision. However, in doing so he did not conduct the required analysis as set out in the Mentuck case, supra. I don’t find any error in his determination that the Interested Parties are “innocent persons”. However, he then omitted the next step in the analysis which was to determine whether or not the evidence before him established that it was necessary to continue the sealing order with respect to the Interested Parties in order to protect them as innocent persons.

Justice Grant goes on to state that “the Provincial Court Judge made an error of law by failing to make the threshold determination that a sealing order was necessary based on the evidence in the record before him”.

Grant, J. then states, at para 43:

With respect to the second branch of the Mentuck test, i.e. weighing the salutary effects of the publication ban versus its deleterious effects, the Judge acknowledges the requirement to conduct this analysis when he quotes from paragraph 65 of the Ottawa Citizendecision. However, he then concludes his decision by ordering a publication ban without explaining what its salutary effects would be and why they outweigh its deleterious effects….I therefore find that the Provincial Court Judge also committed an error of law on the fact of the record by omitting the second part of the Mentuck test.

On the issue of the applicants’ request to lift the bans on publication ordered by the Provincial Court Judge, Justice Grant states that “any variation or revocation of those orders…should be dealt with at first instance by him, not on judicial review”.