J. 2002 SKQB 250 Q.B. A.D. 2002 No. 1122 J.C.S. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPLICATION BY SASKATOON STAR PHOENIX GROUP INC. FOR ACCESS TO AN EXHIBIT FILED WITH THE PROVINCIAL COURT IN HER MAJESTY THE QUEEN v. GLEN IVOR JONES BETWEEN: SASKATOON STAR PHOENIX GROUP INC. and ATTORNEY GENERAL FOR SASKATCHEWAN RESPONDENT G.M. Currie for the applicant G. G. Mitchell, Q.C. for the respondent FIAT ROTHERY J. June 12, 2002 [1] Saskatoon’s daily newspaper applies for access to a CD-ROM entered in evidence at a sentencing hearing in the matter of R. v. Glen Ivor Jones on May 14, 2002. The CD-ROM contains the audio and text summaries of more than 200 intercepted conversations that had been obtained by warrant. [2] The applicant’s journalists had no prior opportunity to hear the contents of the CD-ROM, because Mr. Jones entered guilty plea. The CD-ROM, while filed by the Crown in his sentencing submissions, was not played for the sentencing judge. Now, the journalists wish to hear and view that evidence. The Registrar of the Provincial Court had advised the applicant that it must apply to the appropriate court with notice to the Crown for an order to obtain access to the CD-ROM. [3] Both counsel agree that this exhibit is now under the control of the Attorney General, and it is the appropriate respondent in this proceeding. Both counsel submit that the appropriate court to determine the issue of access to the CD-ROM is the Court of Queen’s Bench. The Attorney General does not oppose the application. It merely seeks the court order to release the CD-ROM to the applicant. [4] The applicant seeks an order for mandamus, or a declaration. The Court of Queen’s Bench is the appropriate court to obtain such relief. See: McIntyre v. Nova Scotia (Attorney General) 1982 CanLII 14 (SCC), [1982] S.C.R. 175. And see: Leader-Post v. Neuls, [1992] S.J. No. 686 (Q.B.). [5] The ratio in McIntyre, supra, and applied in Leader Post, supra, is that “the presumption is in favour of public access to court records, and the burden to the contrary proof lies upon the person who would deny the exercise of the right.” [6] This right is tempered somewhat by other factors. As stated in R. v. S.J.S., [2000] S.J. No. 49 (C.A.) at para. 8: The right of access to judicial records has never been considered absolute: ... The governing principle is that there is presumption in favour of public access but that access must be supervised by the Court to ensure the integrity of the exhibit is preserved and that no abuse or harm occurs to innocent parties. This comports with the hallmark of openness in our judicial system: ... [7] The applicant requests an order that it be entitled to make copy of the CD-ROM at its expense. Because the contents are extensive, it may take more than week to listen to all the conversations on the CD-ROM. It would like to do so at its own premises and own leisure. The Attorney General is agreeable to such copy being made. However, the court must be concerned that no harm befalls innocent parties. This CD-ROM will invariably hold conversations made by innocent parties. [8] Had the trial proceeded, the journalists would have heard the contents of the CD-ROM in open court and would have been able to report on what they heard. In granting access to the exhibit, the court should be mindful of possible harm to others. Requiring the journalists to attend at the offices of the Attorney General and playing the original CD-ROM balances those interests. [9] therefore declare that the applicant is granted access to the CD-ROM entered as an exhibit in the Jones sentencing. The respondent is ordered to make available to the applicant, during regular business hours, the said exhibit and the requisite recording devices to utilize the CD-ROM. The applicant is entitled to make its own notes on what it hears and sees. [10] Counsel are entitled to return the matter to me for further directions.
FIAT. Saskatoon's daily newspaper applied for access to a CD-ROM entered in evidence at a sentencing hearing in the matter of R. v. Glen Ivor Jones on May 14, 2002. The journalists had no prior opportunity to hear its contents because Jones entered a guilty plea. The application was not opposed. The applicant sought an order for mandamus or a declaration. HELD: The presumption is in favour of public access to court records and the burden to contrary proof lies with the person who would deny access. This right is tempered by other factors (see R. v. SJS). Requiring the journalists to attend at the offices of the Attorney General and playing the CD ROM and making their own notes balances the interests of innocent parties whose conversations were recorded.