Media lawyers have urged the courts to see sealing orders for what they are, a form of publication ban, and to deal with them as they do other restrictions on publication.
More victories followed in The case is headed to the Supreme Court of Canada, which could set a new access precedent as significant as the MacIntyre ruling of two decades ago. A court challenge is likely to bring much of the information to light. An earlier version of this column appeared in Media , the magazine of the Canadian Association of Journalists.
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Support us on Patreon. By Dean Jobb In the late summer of the Ontario Provincial Police, armed with six search warrants, descended on a meat-packing plant in Aylmer.
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All right reserved. There would need to be evidence supporting a specific risk to the witness. It is an error of law for the authorizing judge or justice to fail "to consider alternative measures short of a full-fledged non-access order". The risk posed to the investigation must be satisfied on a case-by-case basis and is not to be used as a class of prohibited records. Denial of access cannot be granted on the basis that there is an "investigative advantage" to the police in having documents sealed.
Prejudice to innocent persons is "entitled to significant weight". An "innocent person" does not include the accused as "reporting of It is unsettled whether notice is required to be given to innocent third-parties with cases going both ways. Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial". The release of certain types of "incriminating evidence" against the accused may result in such prejudice as to be unfair to be released to the public.
There is some suggestion that protecting of trial rights are better protected by a publication ban rather than a sealing order. A "real and substantial risk" to commercial interests of a company in revealing the allegations in the ITO may create a public interest in confidentiality. The applicant must be specific on the grounds of sealing, there must be "particularized grounds".
Generalized assertions are not enough.
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The Judge must give reasons for any decision to issue the sealing of a public record. Aside from matters of privilege, the dominant reason for maintaining seal upon any part of an ITO would be for the purpose of preserving the integrity of the investigation.
Expectation of privacy for third parties is reducated after the charges are laid. In it not settled whether an unsealed ITO must be vetted for legislation requiring privacy including the SOIRA provision relating to confidential information about an offender. Where a judicial authorization has been executed, an accused person is entitled to a properly vetted copy of the ITO even before charges are laid, however, a third party is not. However, before charge an accused must present some evidence that the authorization was obtained unlawfully ie.
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