November 6, 2015
R v Shawyer 2015 ABQB

The Court ruled that the new statutory prohibition on disclosures (relating to documents and testimony) designed to protect the “means and methods” used in the Program, are still subject to the Dagenais/Mentuck test, leading to their disclosure and broadcast in this case.

Justice Germain begins his legal analysis with:

Once a document is marked as an exhibit in a trial or portion of a trial conducted in open court, that exhibit is open to the public as represented by the media without restriction or qualification, unless the applicant to restrict or limit access can achieve the high standard set by the Supreme Court of Canada in a series of cases. Dagenais v. CBC, [1994] 311 S.C.R. 835 and R. v. Mentuck, [2001] 3 S.C.R. 442. These cases have been shortened in judicial shorthand to be the Dagenais-Mentuck test. The subject matter of the items sought to be suppressed by the applicants is either evidence given in an open court hearing or an exhibit marked in that same hearing. The foundational starting point is that this evidence should be disclosed pursuant to the principle of an open court and limited only where necessary for a fair trial or for other statutory reasons.

Germain J. goes on to state:

The impact of the amendments clarified disclosure issues by altering section 11(1) by increasing prohibition on disclosure. The legislation, with superfluous wording deleted, now reads as follows: (as read)

Disclosure is prohibited. Section 11(1): No person shall directly or indirectly disclose:

(b) any information about the means and methods by which protected persons are protected.

Section 11(2) also defines and explains what the government meant by means and methods of protection. It includes information about: (as read)

(a)covert operational methods used to provide protection;

(b) covert administrative methods used to support the provisions of protection; and

(c) any means used to record or exchange confidential information.