Executive Summary: Key Legal and Evidentiary Issues

• The open court principle was balanced against privacy and safety concerns for undercover police officers and other individuals mentioned in the evidence.

• Public access to video exhibits and transcripts in four completed appeal files was sought for use in a docuseries.

• The sufficiency of protective measures to prevent disclosure of sensitive identities was a key consideration.

• Notification and response procedures for affected parties, including incarcerated appellants, were reviewed.

• The Court’s Record and Courtroom Access Policy and Supreme Court of Canada jurisprudence guided the assessment of access and restrictions.

• A consent order was used to regulate the duplication, alteration, and publication of sensitive court materials.

Facts of the case

Network Entertainment Inc., a Vancouver-based media firm, applied for access to video evidence and transcripts in four appeal files (CA42479, CA45933, CA21544, CA21545) for use in a streaming docuseries about the undercover police investigative technique known as “Mr. Big.” The appeal files related to Darin Andrew Randle, Garry Taylor Handlen, Glen Sebastian Burns, and Atif Ahmad Rafay, whose appellate proceedings had already concluded. The request was managed in accordance with the Court’s Record and Courtroom Access Policy, which presumes public access to court records but allows for restrictions where privacy or other important interests outweigh that presumption.

The Attorney General of Canada, Minister of Justice, and Attorney General of British Columbia responded to the request and consented to access on certain terms and conditions. These terms were consistent with a previous order in Global BC, a Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169, and required that Network Entertainment Inc. alter the duplicates to protect absolutely the identity of RCMP officers and any other individuals mentioned in the tapes, to the satisfaction of the RCMP. The individual appellants were notified of the request. Mr. Randle’s whereabouts were unknown despite reasonable efforts to notify him. Mr. Handlen, who is incarcerated, received notice through his institutional parole officer but did not respond. Mr. Burns and Mr. Rafay, also incarcerated, received notice; only Mr. Rafay objected but did not wish to appear or make further submissions and did not file any documentation in support of his opposition.

Discussion of policy terms and clauses at issue

The Court’s Record and Courtroom Access Policy (10 October 2024) presumes public access to court records, reflecting the open court principle, but allows for restrictions where serious risks to privacy or other important interests outweigh the presumptive right of access. Any such restrictions must “minimally impair the presumptive right of access.” The Supreme Court of Canada’s decisions in Sherman Estate v. Donovan, 2021 SCC 25, and Canadian Broadcasting Corp. v. Manitoba, 2023 SCC 27, were cited as guiding authorities on balancing openness with competing interests.

The consent order required Network Entertainment Inc. to cause the duplicates to be altered so as to protect absolutely the identity of RCMP officers and any other individuals mentioned in the tapes to the satisfaction of the RCMP. The altered duplicates were to be submitted to counsel for the RCMP and the Crown for review. Until all parties approved the alterations, the applicant was not permitted to use the duplicates in any way. Once approved, the applicant could use the altered duplicates for broadcast, publication, or transmission, and was required to destroy all unaltered duplicates and any copies thereof.

Outcome and ruling

The Honourable Madam Justice DeWitt-Van Oosten granted the request for access to the records sought by Network Entertainment Inc. on the terms and conditions set out in the draft consent order. The court found that the protective measures were sufficient and that no party had justified further limitations beyond those already contemplated. Network Entertainment Inc. was the successful party, as access was granted in accordance with their application. The decision does not indicate that any costs or damages were awarded to any party, nor does it specify any monetary amount ordered in favor of the successful party. If any costs or monetary award were determined, they are not stated in the decision.