Exhibit at preliminary inquiry available to media once publication ban expires

R. v. Canadian Broadcasting Corporation, 2010 ONCA 726, released today on line, holds the Supreme Court of Canada caselaw in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, [2001] 3 S.C.R. 442, generally know as the "Dagenais/Mentuck" test, applies to preliminary inquiries and, specifically, after any publication bans expire the media has a right to exhibits filed. The Court holds:

[40]          I conclude that the trial judge was correct in applying the Dagenais/Mentuck test to CBC's request for access to and copies of the exhibits at issue in this case.  If CBC is to be denied access, or to have its access limited, it is for the party seeking to assert or uphold that denial to demonstrate through convincing evidence that the two-part Dagenais/Mentuck test has been satisfied.

[41]          Accordingly, I would dismiss the cross-appeal.
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[42]          In my view, the application judge erred by limiting CBC's right of access to only those portions of the exhibits that were played in open court.  While this result follows from much of what I have already said about the application of the Dagenais/Mentuck test, I add the following considerations.

[43]          When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a part of the record in the case.  While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whether judge or jury, is not limited to considering only those portions when deciding the case.  A party who introduces an exhibit without restriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses to read out or play in open court.

[44]          As the entire exhibit is evidence to be used in deciding the case, I can see no principled reason to restrict access to only those portions played or read out in open court. When Dickson J. articulated and applied the open court principle to accord a journalist access to an affidavit filed in support of a search warrant application in MacIntrye, he was plainly confronted with material that had not been read out in open court.  Yet he did not hesitate to order access.  Absent some countervailing consideration sufficient to satisfy the Dagenais/Mentuck test, the open court principle and the media's right of access to judicial proceedings must extend to anything that has been made part of the record, subject to any specific order to the contrary.

[45]          Accordingly, it is my view that the application judge erred by limiting CBC's access to only those portions of the exhibits that were played in open court.