Today the B.C. Civil Liberties Association appears as an intervenor before the Supreme Court of Canada in a challenge to a publication ban of evidence given during the trial of a young offender. The ban prohibited the publication of the “specific scenarios” used during an undercover operation in that case. The Association is asking the Court to vary the publication ban to allow the media to inform the public about the evidence presented in court.
The Association argues that at the core of democracy is the promise that citizens will govern themselves. This promise requires citizens to retain the ability to observe, deliberate on and call into account both elected and unelected authorities. The democratic legitimacy of the judiciary, the prosecution and the police depends on transparency and the continuous opportunity for accountability. When the public, through a free press, is denied information about actions and decisions of the police, prosecutors and judges without due justification, citizens are prevented from playing this vital role in our democracy.
In the circumstances of this case, the BCCLA takes the position that there was insufficient justification to prohibit publishing the details of the specific scenarios employed during the undercover operation. Furthermore, the publication ban granted in this case would prevent members of the public from developing informed opinions about the specific scenarios used. Such information is critical for citizen participation in debate about the appropriateness of police undercover techniques.
The Association will ask the Court to use this appeal to formulate a principled test for publication bans of otherwise open court proceedings. Such a test must properly reflect the values of freedom of expression and freedom of the press essential to the maintenance of a free and democratic society.