March 2, 2012
National Bank Financial Ltd. v. Potter

The Halifax Herald and the CBC opposed the motion by Bruce Clarke for a Confidentiality Order. Mr. Clarke had been ordered to appear as a witness in civil proceedings against his former employer, National Bank Financial Limited. Mr. Clarke asserted that testifying in open court would infringe on his right to a fair trial in an ongoing related criminal proceeding in which he, along with two others, is charged with conspiracy to commit fraud, amongst other charges.

Justice Warner held that “the common law and the Charter” protect Mr. Clarke from subsequent use and derivative use of any testimony he gives in civil litigation pursuant to the court’s Order to testify in open court. Warner J. also found that this protection significantly diminishes any prosecutorial advantage that might be gained from listening to Mr. Clarke’s testimony in open court. And, given the amount of publicity already generated in the proceeding, testifying in open court would not carry a serious risk of tainting the jury pool. Additionally, “there is insufficient evidence to establish a real and substantial risk that witnesses in this testimony will alter their evidence in subsequent criminal proceedings after hearing (the applicant) testify.”

At paragraph 21, Justice Warner cites Nova Scotia Civil Procedure Rule 85.04(1), which states that:

A judge may order that a court record be kept confidential only if the judge is satisfied that it is in accordance with law to do so, including the freedom of the press and other media under section 2 of the Canadian Charter of Rights and Freedoms and the open courts principle.

Warner J. goes on to cite s. 37 of the Nova Scotia Judicature Act, which reads:

Where a judge of the Supreme Court at any proceeding deems it to be in the interest of public morals, the maintenance of order or the proper administration of justice, he may order that the public be excluded from the court.

After considering whether Mr. Clarke established that part or all of the Confidentiality Order was necessary to prevent a real and substantial risk to his fair trial rights in his criminal trial, and that there were not reasonable, alternative measures to prevent the risk, Warner J. concludes at para 36:

The paragraphs in the affidavit (of Mr. Clarke’s counsel) respecting possible jury contamination, witnesses altering testimony, and prosecutorial advantage are speculative and vague.

And, Warner J. goes on to state that as “per the Dagenais/Mentuck test, there must be some evidence of a “serious risk” that the jury pool will be contaminated.” Warner J. does find that there is a real and substantial issue with respect to whether Mr. Clarke’s evidence in the civil litigation could incriminate him in the related criminal proceeding. However, Warner J. concludes at para 63 that there are:

…significant and robust protections barring the use or derivative use of Mr. Clarke’s testimony in this proceeding in a subsequent criminal proceeding. Therefore, the Confidentiality Order requested is not necessary to protect against any alleged prosecutorial advantage.

On the issue of whether the positive effects of the Confidentiality Order outweigh the deleterious effects on the rights and interests of the parties and the public, Warner J. states at para 64:

I accept the submissions of the Herald and the CBC on the deleterious effects the Confidentiality Order would have on the public. But for my belief in the soundness of the Supreme Court’s decision in “Henry”, and the protection it provides Mr. Clarke, the balancing of the open court principle and section 2(b) of the Charter against Mr. Clarke’s competing Charter-protected right against self-incrimination would likely have resulted in a different result in the balancing exercise. In the circumstances, I find that the established deleterious effects outweigh the speculative positive effects of the Confidentiality Order.