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Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for August 2002

Media Access to Court Records

MaNo doubt there is currently a litigation underway somewhere in Canada which interests a particular magazine's readers and which could serve as the basis for a feature article. Because magazines have the ability to deliver carefully researched articles in each issue, an in-depth review of court exhibits can form a key part of any research and fact checking. This month's article outlines the general rules applicable to access to exhibits filed in court records.

Access to court records

A common law right of access to court records exists in Canada. Canadian courts favour public accessibility at every stage of the litigation process, including public access to exhibits filed in court records. Despite some distinctions between civil and criminal litigation, the basic approach is to grant access unless there is a need to protect a social value of high importance such as protecting innocent defendants.

Public access fosters two important objectives: public confidence in the integrity of the court systems and public understanding of the administration of justice. Magazines are key in providing comment on court proceedings and informing the public of what is happening in the courts. Though magazines cannot issue daily bulletins, their feature articles are prime opportunities to provide meaningful comment and information on disputes of interests to readers.

Four factors governing access

Despite favouring access, the courts still have to balance maximum accountability and accessibility with other values, such the right of an innocent person to a fair trial. The Supreme Court of Canada in Vickery v. Nova Scotia Supreme Court (Prothonotary) [1991]¸1 S.C.R. 671 at page 681 identified four factors which the courts must consider whenever the media, or any member of the public, apply to the courts for access to exhibits as well as for the ability to copy and to distribute those exhibits:

1) The nature of exhibits as part of the court "record".

2) The right of the court to inquire into the use to be made of access, and to regulate it.

3) The fact that the exhibits were produced at trial and open to public scrutiny and discussion so that the open justice requirement had been met.

4) That those subjected to judicial proceedings must undergo public scrutiny of what is said at trial or on appeal and contemporaneous discussion is protected, but different considerations may govern when the process is at an end and the discussion removed from the hearing context.

Nature of the exhibits

The courts have recognized that exhibits are not the same as documents generated by the court or written pleadings filed by the parties. Rather, an exhibit is often the property of someone, either a party or non-party to the litigation, and therefore they have a proprietary interest in the exhibit. Whenever the media applies to the court to have access to an exhibit, the person entitled to possession of the exhibit is a likely party to any application for access. Such persons might wish to make representation on whether or not access should be granted.

The courts will not allow the exhibits to lie around on shelves indefinitely. When the exhibits have served the purpose for which they were filed, the exhibits are returned by the court to the person who produced them. Many courts even have specific rules designed to free up court space by returning exhibits which are no longer needed for the litigation. For example, in Québec, the rules provide that one year after the trial, exhibits are destroyed if the litigants do not respond to a court notice asking them to recover the exhibits. So, if your magazine wants access to exhibits, do not wait too long. To avoid any surprises, check with your local court registry office on the rules regarding deadlines to preserve exhibits held by that court.

Use of the exhibits

The courts are also obliged to consider the use which the applicant intends to make of the exhibits. A court can regulate the use by imposing undertakings on the applicant, as necessary, to protect competing interests. Any application to the court should therefore demonstrate the purpose for which access is sought and anticipate ways to address how to protect competing interests, if any.

Timely requests for access

While the exhibits remain in the custody of the court, the court has a duty to consider any request for access and copying. During the litigation, the parties have weaker grounds to block access to exhibits filed in the court record. However, while a party may have to surrender a measure of privacy during the trial process, the party does not surrender it indefinitely. Thus, after the litigation ends, the courts may be more protective of a party's privacy. It may be advisable for a magazine to apply for access prior to the conclusion of the litigation process rather than after its conclusion as different considerations would apply once the litigation has terminated.

A key distinction has to be made by the magazine: are the exhibits still being used in the litigation process or have they served their purpose? Once the litigation has finished, including any appeals, the exhibits have served their primary purpose. Any application based on access to the courts as part of the public scrutiny of the judicial proceedings loses some, but not all, of its force as an argument after the litigation is over. The court will still balance the competing interests.

While the courts do accord a certain privilege to media to report on judicial proceedings, that privilege is typically restricted to contemporaneous reporting during the proceedings. The reasoning is that contemporaneous reports are more likely to be fair and accurate as they expose the ongoing arguments of both sides as the trial proceeds. A selected release and distribution of some exhibits long after the litigation may skew the presentation of the issues and unfairly affect one or more of the parties' interests. As with any journalism, due diligence in the fact checking and fairness in the presentation of the issues is key.

The media must also respect any publication bans imposed on any litigation, including criminal trials and will only have an ability to apply for access to exhibits which have been filed in the court record and not those documents exchanged between civil litigants in the pre-trial discovery process. (See the article in this column for September 2001 which deals with media access to pre-trial information and documents.)

Timing of the application

A recent court case illustrates how the timing of an application for access to exhibits can be crucial. In an April 2002 decision in CTV Television Inc. v. Ontario Superior Court of Justice [2002], 59 O.R. (3d) 18, the Ontario Court of Appeal distinguished that between an application for access to exhibits made during a trial process and an application made after the trial process.

In that case, the broadcast media applied after the sentencing for access to exhibits filed at a preliminary enquiry and sentencing hearing in a criminal case. Though some of the exhibits had been sealed, they all formed part of the public court record and had been given back to police after the accused was sentenced. The main issue was whether or not the court retained jurisdiction to determine access to court records when possession of the exhibits passed from the court to a third party, such as the police.

In its decision, the Court of Appeal made some helpful observations at pages 24-25 regarding the court's jurisdiction over exhibits the court no longer held. Given that exhibits are regularly removed, either voluntarily or under the rules of court, the court's ability to control access to exhibits after their removal is key:

While in both MacIntyre and Vickery the relevant court records remained in the court's possession, in my view there can be no principled basis for terminating the court's jurisdiction to provide access to exhibits just because they have left the possession of the court. They do not lose their character as exhibits simply because they have been physically transferred to the Toronto Policy Service. They remain an integral part of the court record in the Lorenz case.

Moreover, the objectives that are served by the presumption of public accessibility - namely, judicial accountability and public understanding of the administration of justice - continue to be important even when possession passes from the court. Fostering judicial accountability in a particular case and enhancing public understanding of that case do not cease when the exhibits are transferred to the police. The policy objectives served by the court's jurisdiction to provide public access to its records thus strongly suggest that, whatever its ultimate reach, this jurisdiction does not end when the records pass out of the court's possession.

The Court of Appeal decided that the court had jurisdiction to order public access to the court exhibits sought by the media, but remitted the application to the hearing judge as the Court of Appeal did not have sufficient evidence before to decide the merits of the application.

The Court of Appeal referred to the leading case, namely Vickery v. Nova Scotia Supreme Court (Prothonotary), in which a majority of the Supreme Court of Canada denied access to an audio taped confession and video taped re-enactment of a criminal crime given that the courts decided that those particular materials were inadmissible against the accused in that case. Access to the audio tape and video tape was denied as the court held that such access would unfairly harm the innocent defendant.


The four factors set out by the Supreme Court of Canada should be considered by any magazine wishing to access exhibits filed in the court record in order to complete any in-depth coverage of a topic of interest to the magazine's readers. An application for access should be made with sufficient evidence and in a timely manner, preferably prior to the end of the litigation process or soon thereafter. The applicant should also consider the impact of access on those who possess or own the exhibits and anticipate ways in which the magazine can have access to the exhibits and disclose the contents thereof without unduly affecting the rights of others.