Pub Bans and Sealing Orders

Postmedia Network Inc v HMQ 2019 BCPC 267

Postmedia Network Inc. made an application to vacate or vary sealing orders made on February 16, 2019 and April 9, 2019 for disclosure of material, including production orders and ITOs.

These materials related to an investigation launched by the RCMP into allegations of misconduct made against Craig James and Gary Lenz, respectively the Clerk and the Sergeant-at-Arms of the British Columbia Legislative Assembly.

On November 20, 2018, Mr. James and Mr. Lenz were placed on administrative leave by the Legislative Assembly, owing to various allegations of misconduct made against them by the Speaker of the Legislative Assembly, Darryl Plecas. The matter, having been referred to the police, resulted in the commencement of an investigation, and eventually the preparation and issuance of the ITO and resulting orders, which were the subject of the application to unseal. Mr. James and Mr. Lenz are each mentioned to in the ITO.

Gill J. states:

Once a sealed ITO and any resulting authorization has been executed, the presumption then lies in favour of openness, with the onus being on parties opposing to establish, on clear and convincing evidence that disclosure would subvert the ends of justice.”

Justice Gill reviews the positions of the parties opposing the application:

…counsel for the Crown, counsel for AG (Canada) on behalf of the police, counsel for Mr. James, and counsel for Mr. Lenz all oppose Postmedia’s unsealing application, with each making their own submissions, as well as largely adopting the submissions of the others.”

…it is said the police investigation, described as ongoing and complex, may be adversely impacted. The investigation is also characterized as being highly sensitive, given the profile of the individuals, including public officials, who are involved and the information that has already been released.”

Broadly speaking, the main concern supported by the affidavit and accompanying submissions is that this investigation is complex and incomplete. The main concern is that release of the ITO would provide information of a nature and quality that could impair the ability of the police to properly conduct the more extensive investigation and wherever that investigation may ultimately lead.”

All parties point out there already exists a large volume of public domain material comprising allegations, refutations, reports, audits, investigations and findings. Counsel for Postmedia suggest this dilutes any concerns relating to release of the ITO.”

Gill J. cautions:

The potential for additional offences, or even suspects, to be identified through some of the people mentioned in the ITO is what gives rise to the case complexity. Persons connected to these matters or otherwise having knowledge of them, and whether as of yet contacted by police or not, upon learning about the details contained in the ITO would have the ability, if they so choose, to anticipate the direction of the broader, high profile investigation, and thereby influence it in negative ways.”

I must also be mindful that un-redacted unsealing could adversely impact the privacy rights and reputations of innocent third parties, including of those playing entirely legitimate or incidental roles in the conduct under scrutiny.”

That said, the case authorities often appear to weigh more in favour of disclosure than secrecy, with regard to the potential for impact on the innocent, their reputations and privacy, including that of innocent third parties.”

On the whole, and on the basis of the evidence presented, while unsealing and dissemination to meet the needs of transparency in judicial process may add to the existing controversy to a degree, I am unconvinced as to any sufficient evidentiary basis for concern that it would result in the information being used for an improper purpose, including any purpose that could be described as political. Disclosure, balanced and appropriate to the circumstances and reflecting the open court principle, applying the Dagenais/Mentuk test, by its very nature invites public scrutiny and commentary as to judicial proceedings. That is its purpose.”

Gill J. concludes:

Based on a careful and contextual weighing and balancing, I conclude there is sufficient evidence upon which I am satisfied that unsealing of the material, un-redacted, would subvert the ends of justice by posing a real and substantial risk to the administration of justice, such that it outweighs the importance of access. The salutary effect of the sealing order, namely protecting the integrity of an ongoing, complex investigation outweighs the deleterious effects, including diminution of freedom of expression and the open court principle. To that extent, the application to unseal in un-redacted format is disallowed.”

However, a reasonable and proportionate alternate measure exists, namely appropriate redaction of the ITO and related material, to reduce that risk, such that the sealing order would, to that extent, no longer be necessary. On that basis, the deleterious impacts of such a redacted release would be outweighed by the salutary effects on the freedom of the press and the open court principle, which would under those circumstances be only minimally impaired.”