Ruling said no safety issues prevented publishing video or transcripts, provided police not identified
The British Columbia Court of Appeal permitted access to video exhibits and related transcripts in four appeal files in an application where a film producer wanted to review, duplicate, and use the material in a streaming docuseries.
Network Entertainment Inc. v. Canada (Attorney General), 2025 BCCA 359, revolved around the appeal court’s Record and Courtroom Access Policy, dated Oct. 10, 2024.
The policy, which acknowledged the right of public access to court records, would deem access restrictions justified if serious risks to privacy, the proper administration of justice, or other vital interests outweighed the presumptive access rights. The policy noted that any restrictions should minimally impair those rights.
The policy’s approach aligned with Sherman Estate v. Donovan, 2021 SCC 25, which stated that the court would only find restrictions on the open court principle justified if:
- Court openness posed a serious risk to an important public interest
- Limitations were necessary to prevent that serious risk because reasonably alternative measures were not enough
- In line with proportionality, the benefits of a limiting order outweighed its negative impacts
The applicant, a Vancouver-based media firm, submitted court records request forms through its representative, a film producer, under s. 1.7 of the access policy. The request related to four appeal files, which included video exhibits and related transcripts.
The producer wanted to review and duplicate the material for use in a streaming docuseries he was developing about the undercover police investigative technique commonly called “Mr. Big.”
Access granted
With the consent of Canada’s attorney general and justice minister and BC’s attorney general (collectively, the attorneys), the Court of Appeal for British Columbia granted the request for access to the records on the terms and conditions in a draft consent order, subject to any publication or disclosure bans attached to the files.
The draft order’s terms included protecting the identities of undercover police officers and others who appeared or were mentioned in the evidence.
The appeal court referred to Global BC, a Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169, where the media obtained access to videotape and transcript evidence arising from a Mr. Big operation, subject to a publication ban protecting the undercover officers’ identities.
The appeal court’s majority granted access upon finding no reason to deny it to prevent serious risks to the proper administration of justice. The majority said the fact that the media would not reveal new details of operational methods beyond what the trial had disclosed mitigated any potential risks to police efficacy.
In this case, the appeal court presumed that the attorneys expressed their consent because nothing in the record substantively distinguished the applicant’s access request from the one that succeeded in Global BC.
The appeal court saw no safety or other public interest issues regarding the publication of the videotapes or transcripts, which the draft order’s terms would not sufficiently tackle, which would require consideration in the balancing exercise, or which would possibly impede access.
The appeal court noted that all four appeal files had published reasons for judgment, with many of the details in these cases known to the public for some time.
According to the appeal court, while one respondent objected to granting access, he did not provide submissions addressing the Sherman Estate factors for restricting access. The appeal court added that none of the respondents met the onus for justifying restrictions beyond the RCMP-approved steps to safeguard specific identities.
