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1Discussion re Scheduling

1 February 7, 20112 Vancouver, B.C.34 (DAY 30)5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)67 THE CLERK: Order in court. In the Supreme Court of8 British Columbia at Vancouver on this 7th day of9 February, 2011, calling the matter concerning the10 constitutionality of section 293 of the Criminal11 Code, My Lord.12 MR. JONES: Good morning. My Lord, I thought just13 before Mr. Burnett began with his application I

14 could just address some questions of scheduling.15 Our proposal is to have Mr. Burnett's16 application, the submissions argument made first,17 and then for -- after that today we need to18 address some outstanding admissions of affidavits19 and also the sealing order for the birth20 registration records and the Klette affidavit21 number 2. And then tomorrow we propose to begin22 with the examinations and cross-examinations of23 the education affiants, and that's Mr. Munro and24 Mr. Vanderboom.25 And the intention is that Mr. Vanderboom will26 carry on over into perhaps the first half hour of

27 Wednesday to accommodate counsel's schedules,28 cross-examining counsel's schedules, and then the29 remainder of Wednesday would be the examination30 and cross-examination of Mr. Klette.31 And also on Wednesday we will then have the32 final reception of submission of the registration33 records and the Klette affidavit 2, which can't be34 done until the order is entered.35 So if that pleases Your Lordship.36 THE COURT: So we'll be finished all of the evidence by37 Wednesday afternoon.38 MR. JONES: That's right, My Lord. The only39 outstanding question of evidence will be, I'm40 afraid, a little bit of a further delay on the41 Quebec report and I can describe that to you later42 today.43 THE COURT: Okay. Mr. Dickson, do you have anything44 more.45 MR. DICKSON: I don't, My Lord. Thank you.46 THE COURT: Mr. Burnett.47 MR. BURNETT: Thank you, My Lord. My Lord, I'm handing

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2Submissions re Media application

1 up a book of authorities along with a copy of the2 applications before the court and an outline of3 argument, the latter two of which are tucked loose4 into the front cover.5 THE COURT: Thank you.6 MR. BURNETT: My proposal this morning, My Lord -- I'm7 sorry. For the record it's Daniel Burnett8 B-u-r-n-e-t-t for the Canadian Broadcasting9 Corporation and Global Television, and my proposal10 for submissions on the application this morning,11 My Lord, is to take you through the written12 argument that I have prepared, which is not

13 terribly lengthy. There will be a few additional14 items in the authorities that are not reproduced15 to the extent I want in the written argument but I16 would like to highlight, and those will set out17 sort of principles and what is proposed. And then18 having gone through those my proposal is to19 address the specific issues, if I can call them20 that, that are raised. We're in a situation where21 nobody is opposing the application.22 There are -- I forgot to do up an actual23 count -- there is at least one, maybe two parties24 who are simply taking no position including the AG25 Canada. And there one party who has said that26 they do not oppose subject to there being a delay.27 I want to address that and it will be my28 submission that's not necessary for the argument29 stage that is sought to be televised.30 So firstly then, My Lord, the -- with respect31 to the written argument, paragraph 2 summarizes32 what is in the notice of application, and what is33 sought in order to provide the best representation34 both in terms of web casting and television35 coverage without the need for, you know, one36 camera constantly having to swivel depending on37 who's talking and so forth is firstly, for the web38 casting aspect, two small web cameras to be39 permitted. None of these would have any lights.

40 That would be for live web casting. And the idea41 there is that the only people shown would be42 counsel who are speaking and the court, and that43 would permit doing so.44 And then in addition two broadcast quality45 cameras. This would be for the television aspect,46 to be located as the Court directs.47 With respect to audio, the -- because of the

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1 courtroom having a system the proposal primarily2 is to use that same feed so that it can pick up3 what counsel is saying and what you are saying,4 My Lord. If that's impractical certainly audio5 can be provided by the applicants with small6 microphones. And thirdly, the proposal is for7 a -- rather than there being, you know, more than8 one media outlet seeking to do so that this would9 be for a feed available to all media outlets that10 would be outside the courtroom in a designated11 place and to avoid disruption, and happily when a12 circumstance where there's going to be a

13 reasonable amount of time between now and the14 commencement of argument to accomplish those.15 With respect to the argument, My Lord, there16 is, as you know, lively debate about things like17 impact on jurors and witnesses and so forth and18 we're in the simpler position today of dealing19 only with the televising of an argument stage and20 there is nothing particularly novel about that.21 Supreme Court of Canada live webcasts and has been22 televising for a number of years now. Ontario23 Court of Appeal has done so with -- the most high24 profile was the Stephen Truscott appeal, for25 example, and several months of other webcasting.26 I am not aware, and I do follow these issues,27 of any adverse issues arising in any of those28 cases. In this case I say at paragraph 4 that,29 you know, what is sought here really provides30 benefits. It allows the public to see something31 that most members of the public don't see and that32 is our courts actually in action in a personal way33 without having to attend court personally, which34 many people can't do.35 THE COURT: So the webcast would be a continuous36 webcasting?37 MR. BURNETT: Yes.38 THE COURT: So you don't pick and choose, you just turn39 it on like C-SPAN?

40 MR. BURNETT: Yes. The CBC proposal is that they would41 run it gavel to gavel. I know we don't have42 gavels, but that's the expression.43 THE COURT: Sure. But the television -- the television44 cameras would be showing edited?45 MR. BURNETT: That's right, and the television cameras,46 whether they would be here for -- to do nightly47 news coverage of every single day of the two -- I

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1 think it's two weeks of argument is unknown at2 this stage. It would certainly start with the3 intention of following it daily. But, yes, it4 would be edited just like any other media5 coverage.6 And so what I say is sought here really has,7 in my submission, none of the negative effects8 that sometimes get attributed, at least9 speculatively, to what is termed cameras in court.10 There is obvious positive effects in terms of11 public education, in terms of seeing what is going12 on. And by definition everything in Her Majesty's

13 courts is of public interest, but in truth there14 really are cases that grapple with fundamental15 social issues, religious tolerance issues, welfare16 of children and all of those are wrapped up in17 this very important proceeding.18 And of course, throughout, the proposal is19 that the -- that all of the electronic access be20 subject to the ongoing discretion of you, My Lord.21 If it doesn't work, turn it off. If an aspect of22 it is inappropriate, turn it off. And if --23 THE COURT: When you say that are you contemplating a24 kill switch?25 MR. BURNETT: That's -- I'm going to be addressing that26 with respect to the delay concept. If the court27 orders it we can put that in place. My -- when I28 made the point that I made a moment ago it's, you29 know, literally when I say turn it off I don't30 mean for this particular ten-second period. It's31 this is not working. Sorry, CBC, take the cameras32 away and we'll continue our argument without you.33 I don't anticipate there's going to be anything34 that would necessitate that kind of a move, but it35 is -- it is a matter of, in my submission, some36 assurance to the court to have that ongoing37 discretion. And short of that kind of a decision,38 simply, you know, placement and things like that39 are obviously subject to the court's ongoing

40 discretion.41 I'm going to be taking you through the recent42 Supreme Court of Canada decision that deals with a43 different issue, in Quebec --44 THE COURT: I have looked at it.45 MR. BURNETT: Okay. It deals with corridors and use of46 audio and so forth but it is instructive. The --47 I refer at paragraph 7 to an aspect of the Supreme

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1 Court of Canada decision has cleared up and that2 goes back to the Clark and Pilarinos decision in3 this court in which it had been ruled that refusal4 of cameras -- this was for trial granted, but5 refusal of cameras was not a section 2B6 infringement, and it's in my submission plain from7 the new decision that that aspect is incorrect.8 It is effectively overruled.9 Paragraph 8 I say, so the issue at bar is now10 not about the right to broadcast court audio or11 conduct interviews in the courthouse, it's simply12 about televising the argument.

13 THE COURT: Sorry, did the Supreme Court opine on the14 filming of actual court proceedings as being15 expressive under 2B, or just the filming outside?16 MR. BURNETT: No, they didn't, although the reasoning17 in that decision is -- I'll take you through it,18 in my submission, would be irresistible --19 THE COURT: Well, except that to the extent they found20 it was protected by 22B they were using the21 Montreal Arcade analysis.22 MR. BURNETT: Yes.23 THE COURT: That might not be apt, or it might not lead24 to the same with respect with respect to in-court25 filming.26 MR. BURNETT: I think that's fair, My Lord. In my27 submission it would be hard to resist, but -- and28 may not be necessary for our proceedings.29 THE COURT: Hard to resist.30 MR. BURNETT: To debate that.31 THE COURT: Okay. But they didn't opine?32 MR. BURNETT: That is correct.33 The -- at paragraph 9 I have cited some34 passages, often-quoted passages from Supreme Court35 of Canada decision in CBC v. New Brunswick that36 just incapsulates broad principles, and I know37 you're aware of them, My Lord, with respect to the38 vital importance of openness in the courts to a39 democracy, the ability of people to discuss one of

40 our important democratic institutions, the courts,41 relies upon them knowing what is going on which in42 effect is through the conduit of the media.43 Paragraph 24 of the quote, Supreme Court says:4445 Essential to the freedom of the press to46 provide information to the public is the47 ability to have access to the information.

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12 I don't propose, My Lord, to go at great3 length into all the various studies, but I have4 tried to touch on them a little bit. Much of them5 get into the debate about witnesses and so forth,6 in fact, I would submit that's -- that is really7 the primary concern that generally arises, which8 is not at bar.9 The -- talk in about paragraph 10 about the10 experience with video and audio pool arrangements11 both in quasi-judicial proceedings and in-court12 proceedings.

13 And I refer at paragraph 11 to the Cho14 decision, which was a 2000 decision of the15 Honourable Mr. Justice McKinnon in which, over the16 opposition of defence and Crown, television access17 was permitted for the latter stage of the case.18 It was essentially -- it's from the close of19 Crown's case to the end, and whatever arguments20 there may be about that or the legal status of21 that decision today, given subsequent decisions22 that have come down. What I cite it for primarily23 what I have quoted at paragraph 12, and within the24 authorities I have included at the end of that25 decision a memorandum that His Lordship issued26 recognizing that it was a pretty unique thing that27 he had permitted and I suppose wanting to record28 observations about it.29 And I have quoted the salient passages from30 that paragraph 12. Essentially the experience was31 not disruptive. It was complimentary of the32 media. I expect you will have the same, and I33 have confidence that my clients will provide the34 same level of professionalism, non-disruption.35 And it was significant in my submission that he36 said in the second paragraph:3738 All media behaved professionally, protecting39 the anonymity of the jurors --

4041 That doesn't arise here, but...4243 ... comply with my directives in respect to44 others. The video cameraman and photographer45 were discrete, their equipment was relatively46 unobtrusive, and no one involved seemed to47 pay the slightest attention to them.

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12 Paragraph 13 I refer to the decisions both the3 one in Clark and Pilarinos and the recent Supreme4 Court of Canada one that emphasize again and again5 phrases like "stress upon witnesses," which again6 doesn't arise here.7 I have included in the material just two other8 items, I suppose, that you could describe as9 studies or reflections on the subject. One is a10 special committee of the English bar from 198811 which I have included in excerpted form, where12 the -- towards the end in a conclusion section the

13 working party published these words:1415 We began with few reservations about16 televising appellate proceedings.1718 And just to pause there, My Lord, I will be19 submitting that this is much more akin to what is20 being proposed today.2122 ... but considerable reservations about23 televising a criminal trials, especially24 during their currency. We have ended with no25 reservations about recommending an26 experimental program in both our trial and27 appellate courts.2829 And so forth. And then the next paragraph:3031 We believe it would be a significant32 advantage to televising court proceedings,33 namely that it would be enhance the public's34 understanding of and confidence in the legal35 system, the judiciary and the decisions of36 our courts. Television is the single most37 important source of information for 7038 percent of our adult population.39

40 And so forth.41 At paragraph 15 I point out, and I will take42 you to these as we touch upon some highlights from43 the book of authorities, a resolution announcement44 from the Canadian Judicial Council which had45 previously issued its view that televising of46 trials create -- raise problems.47 In 2002 in March the Canadian Judicial Council

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1 announced that they did not have the same2 reservation about appellate proceedings.3 Similarly the Canadian Bar Association resolution4 from 1987, going back that far, endorsed televised5 appellate proceedings. And an Ontario Attorney6 General panel on justice and the media -- I will7 take you to a recommendation -- they recommended8 moving forward with electronic access to -- I'll9 get to it. I'll get the exact language, but it's10 things like motions, things that don't involve11 witnesses.12 And then lastly in terms of the research

13 material a study which in the Clark and Pilarinos14 decision was described as "comprehensive and one15 of the most useful documents filed in terms of an16 overview of the issue," was a report for the17 Australian Federal Court by Professor Daniel18 Stepniak. And I have included excerpts from that19 report. It's a full thick volume.20 But he observes -- the salient aspects in my21 submission go to today's application are quoted22 under paragraph 16. In paragraph 176 he says:2324 Potential distraction and disruption of25 judicial proceedings are no longer sound26 reasons for maintaining a general27 exclusion of television cameras in the28 courtroom, given current conditions. As29 recognized by the US courts, distraction30 and physical disruption from the presence31 of television cameras in court are no32 longer concerns which cannot be33 minimized, if not eliminated altogether,34 through the utilization of appropriate35 technology and guidelines.3637 Page 182 and 183, Professor Stepniak, this38 conclusion:39

40 Evidence from Canada, the United States41 and even that obtained from the42 televising of Australia parliamentary43 debates also suggests that participants44 to proceedings quickly become accustomed45 to the presence of television cameras.46 For example, Nova Scotia's media liaison47 committee reported at the end of its

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1 two-year project that: "The camera and2 the operator were not found to be3 obtrusive presences and tended to be4 forgotten after the first few minutes."56 THE COURT: What is Nova Scotia doing?7 MR. BURNETT: I should have anticipated that. That8 was -- they were doing. The Stepniak report came9 down in the early 1990s, mid 1990s, so it was back10 at that time. They were doing an experimental11 program with testing out the -- I'm sorry that I12 haven't got more specifics on that but I can

13 certainly provide them. It was a consent-based14 experiment. That's the best way I can describe15 that.16 Page 191 of the Stepniak report, Professor17 Stepniak says:1819 Surveys of the Canadian federal Court of20 Appeal judges reveal that their21 perceptions as to the benefit of media22 coverage measured in terms of causing23 counsel to be better prepared in oral24 argument, increasing judge's25 attentiveness and in prompting judges to26 be more courteous in questioning counsel27 were reinforced after judges experienced28 cameras in court.2930 I'm not suggesting any of those are concerns31 here, My Lord, but it's -- it's an aspect.32 And then finally on this subject I refer, just33 in terms of one additional aspect, a somewhat34 distance analogy I admit, but in terms of the --35 the significance of what seeing proceedings live36 conveys -- this is to do with the K.G.B. decision37 from the Supreme Court of Canada on the importance38 of videotaping statements from accused in serious39 cases, and the point about being able to observe,

40 in my submission, is salient even when you're41 dealing with argument and the ability to see that,42 for those who have not spent time in Canadian43 courts, that it isn't like on TV. You know, these44 are serious proceedings, they're thoughtful45 arguments, they're grappling with important issues46 respectfully to each other, and that something47 that you, in my submission, need to see first-hand

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1 as an observer to appreciate.2 And so I say in the concluding paragraphs that3 in the modern era the ability to see what happened4 and hear what happens in important public events,5 at least in a situation like the one at bar where6 we're dealing with argument only, in my submission7 is an opportunity to be grasped.8 The -- I say at paragraph 19 that the9 broadcast media has played a vital role in10 bringing events of public interest to Canadians11 for well over half a century, and at least in this12 circumstance today there's a time to allow their

13 regular tools to be used.14 And at paragraph 20, of course, this is not15 some irreversible leap. This is a matter of16 ongoing control and discretion.17 Now, with respect to the items I just wanted18 to touch upon without repeating arguments that are19 in the green book, at tab 1 I have excerpted the20 New Brunswick v. CBC decision. One was just one21 of many I chose that had significant passages that22 in the excerpt that I included, beginning -- going23 at paragraph 19 of that decision through to the24 end of the excerpt I concluded on the importance25 of not only freedom of expression in a broad26 sense, but the freedom to cover and discuss and to27 gather the information necessary to cover and28 discuss important democratic institutions and29 particularly courts.30 I'll just take you to one passage. It's on31 page 22 of that decision. And I emphasize it32 because the Court emphasized these words within33 the -- within the quote that is from Edmonton34 Journal where the Court emphasized these words:3536 It is only through the press most37 individuals can really learn of what is38 transpiring in the courts.39

40 And moving on:4142 Discussion of court cases and43 constructive criticism of court44 proceedings is dependent upon receipt by45 the public of information of what46 transpired in court. Practically47 speaking, this information can only be

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1 obtained from the newspaper or other2 media.34 Tab 2 is the recent Supreme Court of Canada5 decision, and you've indicated you have had a6 chance to review that decision. What I have7 included really just deals with the Court's8 decision of the 2B infringement with respect to9 both elements that were at issue in that decision.10 THE COURT: Right.11 MR. BURNETT: And so, apart from some general aspects12 at the beginning, paragraph 28 and following deals

13 with the aspect of interviews in the court14 building. Well, it's actually some general15 propositions and then 28 and 29 deal with the16 importance of openness generally and it's -- I'm17 sorry, paragraph 46 and thereabouts which deals18 with the 2B infringement of preventing expressive19 activities by media within the court building.20 And then on the second part of the issue that21 was -- and that conclusion is reached at22 paragraph 55. Since I find the accused -- sorry,23 I'm going a little too fast here.24 Paragraph 46 is the conclusion with respect to25 the infringement of taking the photographs and26 interviews and so forth, and then paragraph 5427 with respect to the use of court audio.28 The Cho decision, which is the next one I have29 already referred you to, My Lord. That memorandum30 as I indicated from Mr. Justice McKinnon appears31 at the very last page under that tab. I don't32 need to repeat that.33 The Pilarinos and Clark decision is at tab 4,34 and there's an aspect of that that I may as well35 address now because I expect this will arise. Her36 Ladyship in that decision traced the evolution of37 the policy that is now in the form of a practice38 direction with respect to television coverage.39 Just to provide the context, when the Clark

40 application to television began there was no court41 policy that came into place while that was42 pending.43 And at paragraph 5 of that decision on page 544 Madam Justice Bennett reviewed the fact that there45 was a 43-page report on the Supreme Court policy46 which explained various guidelines and gave draft47 guidelines as the policy was being developed, and

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1 cited at paragraph 6 a passage from the report2 indicating that the policy was not to have a force3 of law and so forth but to inform and guide media4 and the court on applications. And then that5 point is repeated again at paragraph 32 about the6 policy not having the force of law.7 I was attempting to sort of trace where the8 evolution has gotten and what I discovered,9 My Lord, was that we currently have the practice10 direction on the subject, which is included in the11 material.12 THE COURT: Right. 23?

13 MR. BURNETT: At the very last tab. And what I14 discovered, unless I was just not thorough enough15 in my research on the court web site, was the16 practice direction refers to the guidelines but17 the guidelines are actually no longer on the court18 web site. So I went into my personal study law19 files and at tab 10 I included the most recent20 version of the guidelines that I could locate,21 which was an update from November of 2003. And I22 believe that to be the most recent version, but it23 was a matter of as the web site changes over I24 suppose that something got missed in terms of25 including the guideline that the practice26 direction makes reference to.27 The point of tracing this a little bit is28 because, My Lord, we have parties who for the most29 part are consenting to the application today but30 in the case of at least one or two are taking no31 position.32 THE COURT: Right.33 MR. BURNETT: It raises this interesting question. The34 practice direction refers to consent as opposed to35 non-opposition, and it is my submission that36 the -- I don't know how the legal force has37 changed from when Madam Justice Bennett commented38 that it didn't have the force of law to being a39 practice direction now. My submission would be

40 that it has not changed. It remains guidelines41 and it would somewhat defeat common sense to have42 an application mostly consented to, not opposed by43 anybody, but held up because of this word44 "consent" that appears in the document. And it45 remains a matter of guideline and a tool for the46 Court, not something that enslaves the Court by47 its language. So I raise that issue anticipating

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1 that one arising.2 At tab 5 I have included your earlier ruling,3 My Lord, just with respect to the earlier4 application and the comment about coming back for5 this.6 Tabs -- tab 6 is the Canadian Bar Association7 resolution that I have already referred you to.8 Tab 7 is the British Working Party Public Affairs9 Committee report that I quoted. Tab 8 is10 Stepniak. Tab 9 is the Canadian Judicial Council11 position confirming that the council does not12 oppose the televising of appellate courts. And

13 then you have the guidelines that I've indicated14 from the Ontario Attorney Justice Panel from 2006.15 And with respect to that panel report which is16 at tab 11, the salient recommendation on the issue17 is recommendation number 3 which appears beginning18 at page 15, where the panel, having heard debate19 from some of the more prominent spokes -- or20 advocates, I should say, on both sides of the21 issue, came out saying that they recommended22 amending the Courts of Justice Act in Ontario to23 permit cameras for proceedings "where no witnesses24 will be examined at the hearing subject to the25 discretion of the panel or judge."26 So that completes my review of what I wanted27 to take you to in the green book.28 The one aspect that I want to address before29 turning the podium over is I have dealt with what30 I think are the two questions, if I can put it31 that way. One being that whether we need consent32 of 100 percent of the participants or not, and the33 second being one of the respondents, and only one34 of them, the intervener --35 THE COURT: The Asper --36 MR. BURNETT: I'm sorry, thank you. David Asper Centre37 indicated that they -- their position was38 dependent on there being a delay. My submission39 on that is this, My Lord. If the court orders it

40 we can arrange it. As simple as that.41 But in the context of dealing with argument42 only in a case where I appreciate there's a little43 bit of evidence left to go, but what is currently44 the subject of any bans is very discrete. I45 believe it was transcript of one witness, if I'm46 not mistaken. I'll defer to Mr. Jones about that.47 There may be a little bit more. But there's not,

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1 in my submission, any risk of any reality that2 counsel are going to stumble, particularly with3 the time there is to prepare arguments, written4 arguments and all that. Live proceedings are the5 norm -- live webcasting I should say is what6 happens at the Supreme Court of Canada level now.7 There really just isn't, in my submission, a8 reason to impose the added layer of complexity, if9 I can put it that way, and there's a bit of10 expense involved, although that's not -- that's my11 client's problem. But the complexity of having12 someone say, okay, well, hit the kill button and

13 all that, I just don't see that problem arising.14 If the Court does then of course we can make15 arrangements that meet with what the Court wants.16 We can arrange for a delay with a kill button17 like they do when somebody uses a dirty word on18 the Oscar -- on television. I mean, that's19 possible. We can arrange, if the Court really was20 concerned, to have it so that, for example, the21 morning and the afternoon sessions' availability22 on the internet would be held until two hours23 after those things had each completed, so if24 there's a problem during the morning session of25 day three you can, say hold that one and my26 clients can do that.27 It detracts in some ways from the ability of28 somebody who, you know, who is sitting in29 Bountiful or somewhere else who actually wants to30 watch this thing live in terms of the ability to31 do that. But those possibilities are there if the32 Court is attracted to those ideas.33 THE COURT: Okay. Who else is speaking to the34 application?35 MR. JONES: I would like to speak, My Lord.36 Listening to my friend I've been scribbling37 some notes on what I think are four areas that we38 might be able to usefully assist.39 As Your Lordship knows the Attorney General of

40 British Columbia supports the application of CBC41 in the present case. The four points that I would42 like to address though are the applicability of43 the CBC decisions in the unique circumstances of44 this reference.45 And I think there's some caution that needs to46 be exercised with respect to the application of47 these cases.

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1 The second point is I would like to make some2 submissions on some public interest factors that3 are alive in this case.4 The third area in which I think we can be5 helpful are submissions with respect to the6 protected evidence, the classes of protected7 evidence in this case and how they might be8 addressed -- how the Court has already ordered9 that they be addressed and how that might fit in10 with this application.11 And the fourth point, very briefly, just on12 the question of the requirement of consent under

13 the practice directions.14 So on the first point, My Lord, the Attorney15 would say that it's not necessary or desirable to16 decide this matter on a broad analysis of a17 constitutional requirement or permissibility of18 cameras in the courtroom. This case is unique.19 And one of the things arising from the CBC 120 decision -- there's two decisions that came out21 last week as Your Lordship is no doubt aware.22 The first was with respect to cameras in the23 hallways and the broadcast of the recordings in24 the courtroom, and the second one was with respect25 to video exhibits. And there's also I think some26 potential guidance in the second decision that27 wasn't mentioned by my friend, and I'm sorry, I28 didn't reproduce it, but I won't refer except in a29 very general way to it.30 The point of the first case, which is SCC 2 I31 think, was that they confirmed, among things, in32 the analysis that it would be necessary to look at33 the venue and the compatibility of the form of34 expression with the venue. And this of course35 goes back to the committee for the Commonwealth of36 Canada case which was referred to in passing by37 the court, but it follows the Supreme Court38 jurisprudence on free speech right the way up to39 the very recent decision in the BC federation of

40 students case about signs on buses.41 And the point is just this, that it is42 appropriate to look at the historical use of a43 forum as well as the type of expression that's44 being proposed in that forum to determine45 compatibility. This was not a controversial46 feature of the CBC case because I don't think it47 was contested that the areas outside and around

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1 courts had historically been a place where media2 interviews and whatnot could take place. There3 was just a concern they had become, as you know, a4 melee and a gauntlet through which witnesses had5 to run into the courtroom.6 So the question then is if you were looking at7 the -- at that, my concern with my friend's8 submissions was that you should simply look at the9 courtroom as the venue, as a court. My submission10 would be that in this unique proceeding it would11 be preferable to consider the uniqueness of this12 as a trial court reference and more appropriate

13 analogies might be drawn with public inquiries14 rather than ordinary judicial proceedings, or as15 my friend drew the analogy, with appellate16 proceedings in the Supreme Court of Canada and17 elsewhere. So just the word of caution that it's18 not necessary, and I'm sure at some other point,19 as Your Lordship knows, the Attorney General would20 welcome the opportunity to make very full21 submissions on the ideas of cameras in the22 courtroom, but it probably isn't advisable and23 isn't necessary in this case to do so. We can24 consider this uniquely and discretely.25 So I will move to my second point which is26 related to that first, My Lord, when we're27 considering this unique forum and the28 appropriateness here. I wanted to introduce some29 public interest factors that either weren't30 mentioned or perhaps weren't emphasized by my31 friend Mr. Burnett.32 Now, the first Your Lordship was alive to and33 that's the fact that the entire arguments would be34 live streamed and that this assuages concerns with35 respect to very selective reporting, that the36 entire context is available to anyone that wants37 to watch it. And Your Lordship I think was38 drawing a distinction between the live webcast39 cameras and the television cameras which would be

40 expected to only result in the broadcast of only41 excerpts.42 I would suggest that the fact of the live43 streaming militates in favour of both forms of44 filming or videotaping because it operates as a45 check and balance not only on itself but also on46 any inclination in the media to be selective about47 the reporting. People can always go back and

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1 check the archive broadcast or simply watch the2 whole thing if they're concerned with that.3 So I say that it goes some way to addressing4 concerns that would be present if only the5 television cameras were here, as opposed to the6 live web stream.7 The second point that my friend mentioned in8 passing but I would like to emphasize is that this9 televization will assist in the remote access to10 these arguments by residents of Bountiful and also11 by persons in those US states with strong12 connections to the issue in BC. And this is, I

13 think, further than the general public interest in14 viewing these proceedings.15 We have a community in the province that is16 both intensely interested in these proceedings and17 for whom it is particularly difficult to attend in18 person.19 Now, my friend Mr. Burnett noted that the20 Supreme Court of Canada, of course, and other21 appellate courts have broadcast submissions of22 counsel for years. We suggest that an even more23 apt analogy in this case is to certain24 non-judicial proceedings or quasi judicial25 proceedings. This case takes advantage of a26 procedurally novel device, the trial court27 reference, so when Your Lordship is considering28 the appropriateness of the forum for the type of29 expression proposed, here you have a novel30 situation and you have to draw analogies. You can31 either draw analogies to the ordinary court32 process with a jury and witnesses or you can draw33 analogies to, that I say would be more direct, and34 that is to public inquiries.35 Yes, this takes place in a courtroom and36 relies for its efficacy on the dignity and the37 decorum and the authority of this court, but it's38 undertaken like a public inquiry because of the39 strong public interest in the issue. And that

40 makes it unique. This is not in the ordinary41 sense a party-driven proceeding. It is a public42 interest-driven proceeding.43 This court has at least tacitly but often44 overtly adopted procedures more familiar in public45 inquiries than in adversarial proceedings. There46 has been no rigid formality in the sequence of the47 presentation of evidence. There has been a very

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1 liberal approach taken to the admission of2 evidence in order that it be inclusive of as many3 viewpoints as possible. And whether through the4 anonymous receipt of certain evidence, the use of5 videotape statements as an adjunct to live6 testimony, or the extraordinary measures to7 provide public access through the internet to8 exhibits and submissions of counsel, I would9 suggest that this is already being demonstrated as10 an unusually and perhaps uniquely open judicial11 process.12 And the things that I have mentioned are not

13 necessarily familiar features of courts but most14 of them are familiar features of public inquiries.15 And public inquiries are usually, if not16 invariably, available to the public through17 televising of portions of the proceedings, or I18 would say more often nowadays through live19 streamed broadcast. So if that's the analogy to20 be drawn then I think on the -- on the committee21 for the Commonwealth of Canada line of cases, that22 speaks to the appropriateness in this particular23 proceeding.24 And let me just say, on the issue of the25 broader public interest here this is an26 extraordinary case with extraordinary issues that27 have proven to be of interest to many, many28 Canadians, possibly as well to lawmakers here and29 in other countries. The questions being answered30 by the court are at the heart of constitutional31 law and at the heart of democratic governance32 itself. Obviously the case has attracted the33 attention of editorialists and commentators across34 the country and further afield. Certainly that is35 not unique, but it is also in my submission, at36 least in my personal observation captured the37 imagination of ordinary citizens in a way that38 many other cases don't.39 This isn't a case of public interest as simply

40 gauged by the amount of interest of the public.41 This isn't a case where details, lurid details42 attract some sort of prurient interest, which is43 something we should always be cautious about.44 This is a case of the public interest in my45 submission at large. It's about the limits of46 power of the State to intrude on the private lives47 of its citizens, the nature of harm and how we

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1 measure it. The nature of equality, religious2 tolerance, liberty, even democracy. It's about3 international law and obligations. It's about the4 particular rights of children. It's about the5 role of the courts vis-a-vis Parliament. And I6 would say that few if any cases, even7 constitutional cases, engage so many of these8 issues at once.9 Finally on the point of public interest,10 My Lord, I would just say that there is always an11 ongoing debate about the effects of cameras, not12 only on witnesses or jurors, but also on counsel

13 and possibly even on judges. I would only add as14 another personal observation perhaps that counsel15 on this case, the collaborative posture and the16 friendliness that's marked these proceedings so17 far bode well that submissions won't be marked by18 grandstanding or rhetoric. And having said that19 and in no way including myself in this assessment20 I think that my friends in this court are among21 the best our profession has to offer, and I think22 that this is a case where the public will see23 first class submissions from very capable leading24 members of the bar. I expect that they will be25 focussed, restrained and professional, and that26 this can only serve to enforce public confidence27 in the sense of vocation in the profession, and28 the fairness of this process in particular and in29 the administration of justice in general.30 So those are my submissions with respect to31 the public interest, My Lord.32 I also wanted to speak briefly with respect to33 the protected evidence.34 THE COURT: Yes.35 MR. JONES: There are, to my recollection, two types of36 protected evidence that we're dealing with here,37 with respect to which orders have been made.38 Well, perhaps there are three, but let me deal39 with the first two first.

40 The first was with respect to the identity of41 the participants in Angela Campbell's research,42 and the order that went from that provided -- it's43 my recollection that submissions of counsel to the44 extent that they referred to that underlying45 evidence would be made under seal. Even the46 written arguments would be made under seal.47 That I think goes some way to addressing the

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1 concern that that aspect, that those identities or2 that order would be breached in spirit in any way3 through counsel's submission, and presuming that4 counsel's submissions follow closely their written5 submissions that have been exchanged in advance.6 The second class I suppose would be the birth7 registration information that was -- that will be8 the subject of the order that we'll be handing up9 the court later today.10 Again, the terms of the order actually11 preclude reference to any identifying information,12 so I would suggest that -- that that won't be an

13 issue here either. That that identifying14 information won't be part of the written15 submissions. And if -- if they are then it's a16 problem regardless of what happens with17 televization.18 The only other aspect, and I said there might19 be a third, and that is with respect to20 identifying information of the anonymous affiants.21 And I suppose it is conceivable that through22 process of triangulation of various pieces of23 evidence that some descriptions in some arguments24 might be said to be unfairly identifying of one of25 the anonymous affiants. Again, I think if this is26 a problem it will be a problem that will be27 apparent on the face of the arguments and can be28 dealt with absent concerns over the televization29 of the proceedings.30 So we take no position with respect to the31 delay. Out of an abundance of caution Your32 Lordship might find that that's a useful thing to33 do. I just wanted to make that summary to assist34 in that analysis.35 And the final point, My Lord, was just with36 respect to the question of consent. My friend37 Mr. Burnett said that we shouldn't sacrifice the38 game for the candle of the fine wording of the39 practice direction. I think that's right. But

40 even if we were, I think, to address ourselves41 more slavishly to the wording of the practice42 direction it really isn't directly on point43 because it speaks of consent to the named parties44 to the proceedings, which I take to be analogous45 to parties of record within the rules which are46 those parties in the style of cause, and of course47 here we don't have any. Now, Your Lordship has in

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1 previous orders referred to the Attorney General2 of British Columbia and Canada and the amicus as3 parties to the proceedings for various purposes,4 and I think that's right but I'm not sure that5 that makes us named parties to the proceedings for6 the purposes of the practice directive so there7 may not be a direct application of that8 restriction in this case.9 THE COURT: Okay.10 MR. JONES: So those are my submission.11 THE COURT: Thank you very much, Mr. Jones. Anybody12 else wish to make oral submissions?

13 MR. DICKSON: Yes, My Lord. Thank you.14 The amicus consents to the media application.15 We do not think that televising the argument would16 impair fair and proper administration of this17 reference. And just on the one point raised by my18 friend Mr. Jones with respect to the protected19 evidence. In our view televising just magnifies20 the concerns about disclosure of the identities.21 It doesn't present new problems. And counsel have22 put orders in place to deal with these concerns23 and the amicus is content that these orders and24 the professionalism of counsel will allay the25 concerns.26 THE COURT: Thank you, Mr. Dickson. Mr. Reimer.27 MR. REIMER: For the record, My Lord, Keith Reimer28 appearing for the Attorney General of Canada this29 morning. Just briefly, Canada is not taking any30 position with respect to the merits of this31 application. However, Canada is also not trying32 to prevent or forestall your Your Lordship from33 considering this application on its merits, so34 we're certainly not trying to be a roadblock in35 this particular case. Thank you.36 THE COURT: Thank you. Anyone else.37 MS GOVENDER: I would only add that West Coast Leaf is38 not opposed to the application as we indicated39 back on November 22nd. It would be nice to have a

40 delay. Even the Superbowl has a 10 second delay.41 And also just with respect to the guidelines42 themselves, Mr. Burnett is here it appears as the43 representative of the media outlets. It would be44 nice to know if those are accredited journalists45 and not bloggers who may ultimately have access to46 the broadcast material.47 THE COURT: Okay. He said Global TV and CBC. I think

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1 I can take that as being accredited.2 MS GOVENDER: Yes. I just note that there's a portion3 of his application where it's the applicant media4 outlets. And if it's just those two that would be5 fine.6 THE COURT: Is that right, Mr. Burnett?7 MR. BURNETT: That is right, My Lord, that we act for8 those two. If -- my friend raises a good point.9 If, for example, let's say CTV were to decide that10 they would like to participate in the pool feed in11 my submission it shouldn't be necessary for12 somebody to have to go back to this court to deal

13 with that. If the order were to allow the pool to14 go to accredited media that that would permit15 that. Or you could simply leave it on the basis16 that such requests might be a very brief matter to17 address before the court. As you prefer.18 THE COURT: Okay. Anyone else? Okay. Did you have19 reply?20 MR. BURNETT: There was actually just one very discrete21 point I wanted to make while I had the22 opportunity, and that just is to do with my23 friend's submissions with respect to the24 importance of the gavel to gavel, if I can call it25 that, live feed. And that feature of the proposal26 I suppose underlies the great public interest in27 this case and is in my submission significant28 benefit. But it would be in my submission an29 error to sort of hang the application on that as30 being some sort of necessity. We don't -- have31 never required newspapers to report everything32 that goes on this court or radio stations or33 television stations. We don't make spectators sit34 here through the whole thing. Selectivity is part35 of expression, and if that was thought to be an36 essential component of the order I would urge that37 it not be.38 THE COURT: But the media plan is to have --39 MR. BURNETT: Yes, there is. Yes.

40 THE COURT: So I want to go through my list so I41 understand I've got everyone's position correctly.42 The AGBC supports the application. The43 Attorney General for Canada takes no position on44 the application but does not wish to stand in the45 way of matters. The amicus supports the46 application. I have Stop Polygamy in Canada47 supporting the application. I have LEAF not

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1 opposing the application. I have CAFE,2 Mr. Christie, supporting the application. I have3 the BCTF taking no position. I have the FLDS and4 Mr. Oler taking no position. I have the British5 Columbia Civil Liberties Association supporting6 the application. REAL supporting the application,7 I don't have anything from Mr. Chipeur's client.8 MS. LIM: Our client does not take a position.9 THE COURT: Does not take a position. No position,10 okay. The Canadian Polyamoury Association takes11 no position. Beyond Borders I don't believe we12 have a position; is that right?

13 MR. JONES: I haven't heard anything.14 THE COURT: And the CCRC supports the application15 subject to some provision for reasonable delay.16 Okay. Hearing no dissent.17 MR. REIMER: My Lord, if I might just to clarify one18 point on a position. We're taking no position on19 it. We're certainly not standing in the way of20 considering the application. I think we talked21 about not standing in the way of application.22 We're actually trying to not stand in the way of23 considering the application, if there's a24 distinction there.25 THE COURT: Okay. AG Canada is slicing it fairly thin26 there.27 MR. DICKSON: Tight line.28 THE COURT: I understand your position, Mr. Reimer.29 Thank you. Let's stand down for a few minutes and30 perhaps we can dispose of this application right31 now.32 THE CLERK: Order in court. Court is stood down.3334 (MORNING RECESS)3536 THE CLERK: Order in court.37 THE COURT: Thank you for your submissions, counsel,38 all of you.39 I agree that this is a most exceptional case

40 and in the light of that I am going to approve the41 application in principle. By that I mean I would42 like to see a detailed plan for the coverage that43 covers all of the various aspects first approved44 by the Court Services Branch and then by the45 Court, and that plan would be quite detailed. I46 see it as the actual location of the cameras, the47 protocol that Mr. Burnett described, all aspects

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1 of the application.2 I would ask that it also identify any3 departures from the practice direction so that we4 can compare the plan to the practice direction5 readily.6 I would like to see in the plan as well, I7 think some sort of delay should be contemplated.8 Something like 10 or 15 minutes would be I think9 probably a good safety net. Two hours I don't10 think is necessary, but some sort of delay I would11 like to see factored into the plan.12 I would also like to see if possible, and I

13 would be interested to see what the technical14 people say about this. I would like to know for15 the Court's purposes in the future what the takeup16 or the viewership of the live stream and I guess17 the live stream would be the most obvious one.18 People will be watching the newscasts, I imagine,19 in any event. But I would be interested to see if20 it's possible to know what the viewership on the21 live cast would be so that we might take that into22 account in future applications.23 This is an exceptional case. Anything that24 happens in this case does not necessarily have25 precedential value for future cases; it may or it26 may not. I will be elaborating on the reasoning27 to permit the application in my final reasons.28 MR. BURNETT: My Lord, just with respect to setting up29 the plan that you've indicated, I'm wondering30 whether it might make that practical reality if31 there was someone from court services32 identified -- not necessary right this moment, but33 identified to work so they can figure out things34 like where the cabling goes that is least35 obtrusive and all of that?36 THE COURT: Okay. Number one, I think that person37 should be Mr. Messenger, and that is subject to38 change but that would be my first thought. And39 second we should have a timeline. Unlike the

40 press we like to do things weeks in advance. So41 let's have a date. What day can we put down?42 MR. BURNETT: The argument commences March --43 MR. JONES: 28th is the oral submission.44 THE COURT: So what date can we put in there?45 MR. BURNETT: Today is the 7th. Assuming that46 Mr. Messenger is available to get together with47 our people I imagine a plan can be together within

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25Discussion re Evidence

1 two weeks.2 THE COURT: Okay. So the order then would -- the plan3 will be within two weeks and we'll have -- I guess4 then once the plan is approved we will have a5 formal order.6 MR. BURNETT: With respect to just one item, I will7 have to inquire with respect to -- the idea of a8 10 to 15 minute delay would involve, I believe,9 buffering that amount of video, so it may be that10 that -- I'll find out technically whether it11 actually means you're sort of into an hour delay12 and if so you are, but I have the court's decision

13 in principle on that.14 THE COURT: Right. Correct. Okay. And this all is15 subject to the plan, so if you come back to me and16 say it doesn't work for these reasons I will17 certainly consider that.18 MR. BURNETT: Thank you.19 THE COURT: Okay. So then we have what else for today?20 MR. JONES: Some questions with respect to admission of21 evidence, My Lord.22 THE COURT: M'mm-hmm.23 MR. JONES: There's some formal receiving into evidence24 of some outstanding affidavits, some of which can25 happen today, but some of which because of26 sequencing of the sealing orders can't happen27 today. So I will just go through the outstanding28 pieces of evidence if I may and describe how we29 propose to deal with them.30 THE COURT: Okay.31 MR. JONES: The first is the two education affidavits,32 those of Mr. Munro and Mr. Vanderboom. We have33 worked as Your Lordship knows with counsel for the34 FLDS to get him the underlying documents. We35 appear to have satisfied all their requests in36 that respect and my understanding is that there's37 no opposition now to the admission of the Munro38 and Vanderboom affidavits.39 Now, Mr. Munro's affidavit was previously

40 marked C for identification with the number 1741 reserved.42 THE COURT: Correct.43 MR. JONES: So I would propose that that be admitted as44 Exhibit 17.45 THE COURT: Thank you.46 THE CLERK: Exhibit 17, My Lord.47

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1 EXHIBIT 17: 41 page original "Affidavit #1 of2 Brent Munro" filed Nov 22, 201034 MR. JONES: The affidavit of Mr. Vanderboom was marked5 E for ID with 22 reserved, and I would submit that6 affidavit.7 THE COURT: Thank you.8 THE REGISTRAR: Exhibit 2, My Lord.910 EXHIBIT 22: 1 cerlox brief "Affidavit #1 of11 Edward Vanderboom" filed Nov 16 2010; 10 page12 affidavit; Tabs A - J; original

1314 MR. JONES: Now, the ones that we can't deal with15 today, and I'll just explain why -- yes, I'm16 sorry, there is one other that could go in today17 but I neglected to discuss it with Madam18 Registrar, and that's the first affidavit of19 Mr. Klette. And that's one without any of the20 evidence of under seal appended to it. I'm not21 sure if we have Mr. Klette's number 1 handy. Do22 we?23 THE CLERK: Where might that be filed?24 MR. JONES: It would be filed but not --25 THE CLERK: Do you have a date?26 MR. JONES: I'm sorry. I'm ill prepared for this.27 THE COURT: Then why don't we do that next time first28 thing.29 MR. JONES: We can at least table that till tomorrow.30 The only concern, My Lord, is that Mr. Klette --31 oh, thanks, it was filed January 18th, 2011.32 Thanks very much.33 The only thing is that a Mr. Klette is due to34 be cross-examined on Wednesday so we would like to35 have it done before then36 THE COURT: So let's see if Madam Registrar can find37 it.38 MR. JONES: That's right.39 THE COURT: Okay. Exhibit.

40 THE CLERK: As the next exhibit, My Lord?41 THE COURT: Yes.42 THE CLERK: 135.43 THE COURT: Thank you.4445 EXHIBIT 135: 38 page original 1st affidavit of46 Bruce Klette filed Jan 18, 201147

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1 MR. JONES: Okay. The other thing that we filed and2 distributed last week, My Lord, was a final, God3 willing, Brandeis brief with perhaps six or seven4 articles and book chapters in it, and that was the5 affidavit of Ms. Isbister number 4.6 THE COURT: Yes.7 MR. JONES: I have spoken with my friend the amicus8 this morning and they haven't yet had a chance to9 review it. We don't anticipate any difficulty but10 we'll table that if we can for Wednesday.11 THE COURT: Okay.12 MR. JONES: The final -- well, a couple of other

13 issues. My friend also suggested in our14 conversation this morning that the legislative15 history brief that we filed pursuant to Your16 Lordship's direction very early on in this process17 should be marked somehow as an exhibit. I'm not18 quite sure how to do that except by attaching it19 perhaps to an affidavit. And so if that suits20 Your Lordship then I'll have Ms. Bevan swear an21 affidavit and we'll put that before the Court22 Tuesday or Wednesday.23 THE COURT: Okay. Thank you.24 MR. JONES: The final two pieces of evidence that can't25 be dealt with immediately are the affidavit26 number 2 of Mr. Klette which attaches the redacted27 birth records, and then the 85 birth records28 themselves. And both of those of course are29 subject to Your Lordship's recent order. And what30 we did was we drafted the order, circulated it31 early last week and invited tweaking by the32 parties as far as the practicalities went. We33 received some feedback and we accommodated that in34 the order and I have just confirmed this morning35 with Mr. Dickson and through him Mr. Wickett that36 they have no concerns with the way the order is37 presently drafted. I was hoping I could get38 Your Lordship to sign it and save us from39 distributing it to counsel. If Your Lordship

40 would prefer to perhaps review this over lunch and41 then I could pick it up after lunch, if that would42 be more convenient.43 THE COURT: That's probably a good idea.44 MR. JONES: And then that would leave the second Klette45 affidavit, the birth registration records and the46 Isbister and proposed Bevan legislative history47 affidavits to be dealt with perhaps at end of day

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28Certification

1 tomorrow or Wednesday.2 THE COURT: Right.3 MR. JONES: Thank you, My Lord.4 THE COURT: Is that it for today?5 MR. DICKSON: I have nothing further, My Lord.6 THE COURT: Thank you very much. Tomorrow at7 10:00 a.m.8 THE CLERK: Order in court. Court is adjourned until9 Tuesday, February 8th, 2011 at 10:00 a.m.1011 (PROCEEDINGS ADJOURNED AT 11:36 A.M.)12

13 I, SPENCER J. CHAREST, OFFICIAL REPORTER14 IN THE PROVINCE OF BRITISH COLUMBIA, CANADA,15 DO HEREBY CERTIFY:1617 THAT THE PROCEEDINGS WERE TAKEN DOWN BY18 ME IN SHORTHAND AT THE TIME AND PLACE HEREIN19 SET FORTH AND THEREAFTER TRANSCRIBED, AND THE20 SAME IS A TRUE AND CORRECT AND COMPLETE21 TRANSCRIPT OF SAID PROCEEDINGS TO THE BEST OF22 MY SKILL AND ABILITY.2324 IN WITNESS WHEREOF, I HAVE HEREUNTO25 SUBSCRIBED MY NAME THIS 1ST DAY OF MARCH26 2011.27282930 ______________________31 SPENCER J. CHAREST32 OFFICIAL REPORTER33343536373839

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