A provincial court judge erred in ordering a publication ban on information related to the Richard Oland murder investigation, media outlets will argue before the Court of Queen’s Bench next week.
CBC News and Brunswick News are seeking to have the ban on the identities of people who were subject to police searches in the case quashed.
They are also asking to have the publication ban and sealing order on the in-camera testimony of lead investigator Const. Stephen Davidson lifted, including information about the suspect in the case.
Only so-called hallmark evidence about the crime scene and condition of Oland’s body should remain sealed, according to Halifax-based lawyer David Coles, who is representing the media outlets.
Oland, 69, a prominent businessman and member of the Moosehead beer-making family, was found dead in his uptown Saint John office on July 7, 2011.
There have been no arrests and no charges in the nearly two-year-old case. Saint John Police Chief Bill Reid has said he expects charges to be laid this year.
The media outlets have been fighting since December 2011 to get search warrants related to the police investigation unsealed.
'National security is not a concern in the Oland homicide investigation.' —David Coles, media lawyer
Search warrants are normally public documents.
Last year, Chief Judge R. Leslie Jackson ruled several of the warrants should be released, but he imposed a publication ban and ordered some of the information be blacked out.
"With respect, Chief Judge Jackson committed an error of law" in imposing the publication ban, Coles states in a written pre-hearing brief, filed with the court on Thursday.
Jackson based his decision in part on an Ontario Court of Appeal decision related to an Ottawa Citizen case in 2005.
"The Ontario Court of Appeal allowed the media access to the entire warrant, but issued a publication ban as to the identity of the subjects of the warrants. In my view, a similar sort of order would be appropriate in this case," Jackson stated in his Sept. 28 decision.
But "the facts in the Ottawa Citizen Group case are so significantly different from those before Chief Judge Jackson that even if this Honourable Court endorses the Ontario Court of Appeal’s approach, the result should be the quashing of the publication bans," Coles argues in his brief.
In the Ontario case, the names of six people who were subject to search warrants were withheld on the grounds of international relations and national security, said Coles.
"National security is not a concern in the Oland homicide investigation."
Ban creates 'unjustified dichotomy'
In addition, the names in the Ontario case were sealed to everyone — the media and public alike.
The names in the Oland documents, however, are available to anyone who pays to obtain copies of the documents from the provincial court, said Coles.
"This demonstrates that keeping the names of the persons searched from the general public was not seen by Chief Judge Jackson as necessary," he said.
"It has set up an unjustified dichotomy – members of the public who have the time and money can see the names of the persons searched and warrant materials while those who do not cannot."
The courts have ruled members of the public have a right to information pertaining to public institutions, particularly the courts, said Coles.
And many people rely on the media to inform them, he said.
"A search warrant is issued as a consequence of a judicial process. Once the warrant has been executed and something is seized, the need for continued secrecy except in exceptional circumstances has dissipated," said Coles.
"There is a legitimate public interest, in accord with the open court principle in being able to ascertain whether warrants intruding upon the rights of an individual’s privacy and property were properly issued in first instance, and that investigations of crimes are proceeding as they should."
"The law is clear that freedom from public scrutiny and embarrassment is not enough of a solitary effect to outweigh the deleterious effects of curtailing public accessibility and the open-court principle."
The names of suspects and accused are routinely published without prejudicing any future trial, said Coles.
Juries are instructed to decide a case based only on the evidence before them, free of bias, he said.
The judicial review is scheduled for April 23 and 24.
Meanwhile, the media outlets are also seeking to have the final search warrants that remain sealed in the Oland case made public.
The Crown and police have agreed to release redacted versions of the warrants, in accordance with Jackson’s previous ruling.
Provincial court Judge Henrik Tonning has ordered the redacted versions be provided to lawyers representing interested parties, including members of the Oland family, for their input on what information should or should not be made public.
The Crown will make any necessary adjustments and then release those documents to the media outlets’ lawyers to review.
The media lawyers will then have two weeks to decide whether to accept the documents, as presented, or seek a court hearing to contest the redacted material.