July 23, 2018
R v Blackmore 2018 BCSC 1225

On July 24, 2017, Winston Kaye Blackmore and James Marion Oler were each found guilty of practising a form of polygamy contrary to s. 293(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Convictions were entered on March 9, 2018 following their unsuccessful post-trial applications for a stay of proceedings. Pre-sentence reports for each offender were ordered to assist the court in sentencing.

The sentencing hearing occurred on May 15, 2018. Three exhibits were filed – the two pre-sentence reports and a collection of government birth records. Following the hearing, members of the media filed requests for unlimited access to all three exhibits. Submissions were later made and the court ultimately determined the applications should be adjourned until after the imposition of sentence. The offenders were sentenced on June 26, 2018 and further submissions on the applications were made the following day.

At the sentencing hearing on May 15, 2018, the pre-sentence report for Mr. Blackmore was marked as Exhibit 1 and the pre-sentence report for Mr. Oler was marked as Exhibit 2. A number of government birth record documents, tendered by the Crown, were collectively marked as Exhibit 3. No other exhibits were tendered by any party.

As part of a new court protocol designed for the purpose of minimizing the need for accredited members of the media to make formal court applications for access to exhibits, the requests came to the court through the registry in Form 2: Media Request for Access to an Exhibit.

In accordance with the new protocol, the court determined that input from the parties was required through oral submissions or by completion of section B of Form 2. The parties sought to make oral submissions.

The parties did not necessarily oppose the applicants’ access to the exhibits, but sought certain restrictions to that access, mainly to protect the privacy interests of some third parties who provided information to the pre-sentence report authors and the privacy interests of all children of the offenders identified in the exhibits.

With respect to Exhibits 1 and 2, and upon applying the first part of the Dagenais/Mentuck test, Madam Justice Donegan states:

…I am satisfied that the serious risks to the proper administration of justice can only be addressed through some form of restricted access to these exhibits.

…neither complete restriction nor restriction to the content of the information provided by the identified third parties is necessary. Protection of their identities is needed. In sentencing the offenders, I relied heavily on the evidence they provided as it was largely the only evidence in certain areas. To deprive the public of that critical information, information necessary to inform their understanding of the sentences imposed, would risk undermining the administration of justice. Public disclosure of the identities of those third parties who came forward is, however, unnecessary to the public’s understanding and would unnecessarily expose those innocent persons and ultimately the administration of justice to the harms I have outlined. I am satisfied the infringement upon third party privacy interests and the chilling effect that would be incurred by publication of the identities of those third parties would cause serious harm to the proper administration of justice that cannot be remedied by reasonably alternative measures.

Addressing the second part of the Dagenais/Mentuck test:

I am satisfied that the concern to avoid the risk of identifying those innocent third parties outweighs the negative effects on the right to free expression. In my view, the right balance is struck between all of the competing interests by permitting access to the reports with limited redactions to protect the identities of all of the offenders’ children, along with a publication ban in respect of the identities of the former and current family members of both offenders who spoke to the report authors and limiting the use to which these reports can be put. I think these limited restrictions will lessen any impairment to free expression while still protecting the other interests that are engaged.

With respect to Exhibit 3 (birth records), Donegan J. states:

The highly personal information about the infant children in Exhibit 3 derives from the reporting requirements of the VSA (Vital Statistics Agency). Recognizing the need to protect this compelled private information, the legislature built certain protections into the VSA. For example, the Vital Statistics Agency cannot release a birth certificate to a member of the public unless the requestor falls within a narrow class of persons entitled to make the request, such as the person who is the subject of the birth certificate: s. 36(1) of the VSA.

Confidentiality of the information is also protected through operation of s. 46 of the VSA.

After a review of the Dagenais/Mentuck test, Donegan J. states:

I conclude that the public benefit in having these birth records published is low. Their publication would provide little or no substantive information that would further the public’s understanding of the sentence imposed in this case. As I indicated, I summarized the relevant conclusions derived from the facts contained within these documents in my reasons for sentence. Access to the documents themselves would not assist the public in understanding the issue that was decided. In contrast, public access to these birth records and disclosure of them, even redacted in the manner suggested, would have a significant negative impact on the privacy interests of innocent infant children and expose them and the administration of justice to a real risk of harm. In this case, the negative effects on free expression freedom of the press are outweighed by these salutary effects of restriction. Accordingly, the application with respect to Exhibit 3 is dismissed.