Court and Tribunal Openness


PDF Reference

R v. Bacon 2020 BCCA 140

[1] James Kyle Bacon was charged with one count of first degree murder and one count of conspiracy to commit murder. The judge stayed the proceedings as a remedy for abuses of process in the course of the police investigation. The Crown appealed.

[2] The judge’s reasons are sealed. As she explained in her publicly released reasons entitled “Abbreviated Ruling re Entry of Judicial Stay of Proceedings” (2017 BCSC 2207), in order to protect the Crown’s claims of privilege, the evidence adduced, the materials filed, and her reasons for entering the stay of proceedings must remain sealed.

[3] Similar constraints require our reasons to be sealed. As we noted at the outset of the hearing, in response to an application to have the appeal heard in camera, in reasons indexed at 2019 BCCA 458, there are rare cases that demand protection of privileged and confidential information to the degree that the courtroom must be closed and reasons sealed to allow the issues engaged to be adjudicated. This is such a case.

[4] This step is not taken lightly. The open-court principle is vital to the community’s confidence in the administration of justice. The circumstances of this case, however, are such that the open-court principle must give way and our full reasons must remain sealed.

[68] We have had the opportunity to review the record in detail and recognize that certain portions of the evidence raise concerns of extraordinary seriousness, and require the highest level of confidentiality. For that reason, high security levels were employed in this Court, and the entire hearing was held in camera.

[69] Nonetheless, we are disquieted by learning that some of the pre-trial proceedings proceeded off-docket, and so were not made known to the community. Closing a court room is a serious and rare step. It is even more serious to hide the fact a hearing is ongoing.

[70] Such secrecy in the court process is an anathema. A court should not hide the fact a hearing is proceeding. Listing a case as an in camera proceeding provides slim information to the public but it is not nothing. In the minimum, doing so informs the public that the court, which is their court, is grappling with the case listed. It allows the public to keep track of the closed proceedings and it allows for applications to the court in respect of the closure: e.g., Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. In our respectful view, proceedings that do not allow for that minimal degree of oversight should not occur.

[73]…we conclude that the judge made errors in identifying certain conduct as an abuse of process, in considering steps taken to remedy, at least in part, the misconduct at the heart of the appeal, and in balancing the serious misconduct we agree is abuse of process with the importance of trying this case on the merits.

[74] The appeal is allowed. The order staying the trial against Mr. Bacon on the charges is set aside, and the matter is remitted to the Supreme Court of British Columbia for trial.