Test for permitting media access to exhibits the same as for publication bans

Canadian Broadcasting Corp. v. Canada, 2011 SCC 3, released today, provides :

[12] Access to exhibits is a corollary to the open court principle. In the absence of an applicable statutory provision, it is up to the trial judge to decide how exhibits can be used so as to ensure that the trial is orderly. This rule has been well established in our law for a very long time. As long ago as in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at p. 189, Dickson J. (as he then was) wrote:Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose.(See also P. Béliveau and M. Vauclair, Traité général de preuve et de procédure pénales (15th ed. 2008), at pp. 499‑500; R. v. Canadian Broadcasting Corporation, 2010 ONCA 726 (CanLII); Société Radio‑Canada v. Bérubé, [2005] R.J.Q. 1183 (Sup. Ct.); R. v. Giroux, 2005 CanLII 12396 (Sup. Ct.))

[13] The analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect the openness of proceedings. In Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, Iacobucci and Arbour JJ. wrote the following:

While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuck, supra); is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002 SCC 41). The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), at para. 71. [para. 31]

(See also Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 7; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 35; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at paras. 15‑16; R. v. Canadian Broadcasting Corporation, at para. 21)