Contemporaneous Access to Hearing Exhibits

The open-hearing principle is robust.

A police discipline hearing was held following a public outcry and independent review into the police service’s handling of investigations. In CBC v. Chief of Police, 2021 ONSC 6935 (CanLII), https://canlii.ca/t/jk3nd a police officer was alleged to have responded inappropriately to a report that a defendant violently choked a victim during sexual activity. The case was newsworthy because the defendant was released without being charged at the time. The defendant was later found to have murdered eight men, some of them after the interview occurred. During the discipline hearing a video of the interview between the police officer and the defendant was made an exhibit. There already was an order banning publication of the identity of the victim. Without first hearing submissions on the issue, the tribunal ordered a publication ban on the video “on the basis that the video contained intimate details of sex acts … and was necessary to protect the victim.” The media requested an opportunity to make submissions on the publication ban. Before the submissions were heard, the parties agreed to withdraw the video as an exhibit and the media request was not addressed on the merits.

The Court found that the tribunal breached the open-hearing principle when it granted the publication ban over the video without considering the proper principles and when it permitted the exhibit to be withdrawn. The openness principles for courts and tribunals were the same. The Court held that, given the publication ban on the identity of the victim, there was no important public interest in limiting access to the video. “It has long been the law that the sensibilities of individuals are not an important risk justifying a publication ban.” The Court also noted that there was “a long line of cases refusing to impose publication bans to protect from shame and embarrassment.” The Court did order that the victim’s name be redacted from the video.

Of perhaps even greater interest to regulators is the Court’s views on the importance of providing timely access to exhibits during the hearing:

Part and parcel of the right to access exhibits is the right to access them in a timely manner. Providing hearing exhibits days or weeks after the hearing has concluded ensures that those exhibits will not form part of the media’s reporting and for all practical purposes public access is denied. To submit that there are insufficient resources or that there are other priorities is not a justification for an infringement of the open hearing principle. There was no evidence in this case that the exhibits could not have been made available while the hearing was still pending. Producing the exhibits after the hearing concluded contravened the open hearing principle. Going forward, the Toronto Police Service shall be required to provide exhibits in police misconduct hearings during the hearing except in exceptional circumstances. In addition, the exhibits shall be provided in accordance with the TPS policy to provide access to exhibits at no charge if they are available electronically and at a nominal charge, if they are not available electronically.

Regulators may wish to ensure they have administrative processes to facilitate the prompt distribution of exhibits.

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