Keith Fraser

Published:June 27, 2022

-Toronto Sun


A trial that is expected to run for six weeks but is shrouded in secrecy began Monday at the B.C. Supreme Court in Vancouver.

The secret trial is happening in the wake of a recent story in the National Post detailing a concerning rise in the number of discretionary publication bans being sought in Canadian courts.

The case at the Vancouver Law Courts is referred to on the court docket as “Named Persons V. Attorney-General of Canada,” but very little else about the civil matter is readily available.

When a reporter arrived at the courtroom shortly before the trial was to begin, the doors were open and there was a small number of lawyers present.

One of the lawyers, who declined to be identified, said there was a publication ban on the case and noted that the court file had been sealed, but did not provide details of the ban and added that the matter would have to be addressed by the trial judge, B.C. Supreme Court Chief Justice Christopher Hinkson.

But before the arrival of Hinkson, B.C.’s top trial court judge, a court clerk handed a typed notice to the sheriff, who advised the reporter that the case was going in-camera, or behind closed doors. The reporter left the courtroom.

A clerk in the civil registry confirmed that the file was sealed and declined to provide any details of the case, including the names of counsel involved in the matter.

Later, a Postmedia lawyer was told much the same thing when he made inquiries about the sealing order at the registry.

The doors to the courtroom remained closed after the lunch break. No one answered a knock on the door. The notice, which said, “This courtroom is closed to the public”, remained attached to the door of the courtroom.

Retired judge Bruce Cohen, who acts as a spokesman for the superior courts, said that he had made inquiries into the reason why the case had gone in-camera, but there was no information available to him that he could pass on.

The federal justice department, which handles media inquiries concerning the Attorney-General of Canada, had no immediate response to a request for details about the case.

Canadian courts are presumed to be open to the public, but in some circumstances either legislation or a court can require a proceeding be held in-camera.

The National Post story outlined data from four provinces, including B.C., that indicated a 25-per-cent increase in the number of discretionary publication bans sought for civil and criminal cases over the past two years.

Other data from the B.C. attorney-general’s ministry indicated a substantial rise in discretionary bans actually imposed in B.C. Supreme Court and the Provincial Court over the past 10 years.

Mark Bantey, a longtime media lawyer in Montreal, said Monday that he wasn’t sure how it works in B.C. courts, but that if the Vancouver file was sealed, the media should be able to find out why it was sealed, when it was sealed, and if the media were given an opportunity to challenge the sealing order.

“Because if the media weren’t given an opportunity to challenge the sealing order, you should be able to intervene and challenge it.”

Bantey, who has represented national and local media, said that it was “highly exceptional” for a trial to be closed to the public, but that it does occur in some cases.