Judge mulls lifting publication ban on details of deadly Fredericton shooting

A judge in New Brunswick will rule Friday whether to lift a court order prohibiting the publication of previously reported details about last week's deadly shooting in Fredericton.

Court of Queen's Bench Justice Judy Clendening will issue a written decision at 10 a.m. AT.

The order was issued by Clendening ​on Monday at the request of the Crown's office, just hours after some new information about the shooting that claimed the lives of two police officers and two civilians was reported.

The information came from legally obtained documents filed in Fredericton provincial court.

CBC News and other media outlets challenged the order during a hearing in Fredericton on Wednesday.

Media lawyer David Coles argued the information had already been broadcast around the world.

"To now effectively stop further publication doesn't unpublish what was published. People don't not know what they know," he said during an interview. "You can't put the genie back in the bottle."

"In our society, the judicial process is open. That's what gives the public confidence.… It's important that people stand up and protect that right. It's a freedom that we have, and it allows us to police the justice system."

The Crown amended its application Wednesday, seeking a more "narrow ban" than what was previously filed.

"We support the open court principle and the media explaining to the public what goes on in court," director of specialized prosecutions Cameron Gunn told the court.

"We balance this against privacy, right to fair trial and national security, as manifested in legislation and jurisprudence."

'Inadvertently filed'

He said the information at issue was "inadvertently filed" with the court and while the public might be interested in the information, they also have an interest in the trial being done correctly.

But Coles countered it's not a "balancing exercise." A 2005 Supreme Court of Canada decision mandates a specific process the court must follow, the so-called Dagenais/Mentuck test.

"My client has the right in a free and democratic society to express ideas — their own ideas, the ideas of other people — and if you're going to limit that in any way, you have to satisfy the Dagenais/Mentuck test," Coles said.

The test requires the party opposing media access to demonstrate that the information poses a serious risk to the administration of justice, he said.

He pointed out New Brunswick's former chief justice of the Court of Queen's Bench recognized the Dagenais/Mentuck test in the 2014 case of Justin Bourque, who gunned down three Moncton Mounties and wounded two others.

The Crown and defence had applied in that case to have court documents, video and audio related to the sentencing of Bourque sealed.​ CBC and several media outlets successfully sought to have them made public.

"There is no evidence submitted by the Crown or counsel for the defence which would demonstrate that it is in the interest of the administration of justice to ban the video of the offender's confession or to ban the exhibits," David Smith had stated in his 11-page decision.

"Canadian courts, as a general rule, are open and transparent. The open-court principle is important in that it allows the public to go behind court decisions to see what further determined or influenced its decision; in other words, why the court decided what it did."

Oland case cited

Coles also cited CBC News's successful challenge in 2013 of a publication ban on search warrant information related to the 2011 murder of Saint John multimillionaire Richard Oland.

A provincial court judge had imposed a ban on the names of people who were subject to searches and any personal information that would reveal their identity, even though the searches had been observed and reported.

Coles argued at the time it was an attempt to rewrite history and likened it to George Orwell's 1984.

New Brunswick Court of Queen's Bench Justice William Grant ruled the lower court judge had "made an error of law" in imposing the ban.

"There was no specific evidence that they suffered any damage or harm arising from the publication of their names and while intense media scrutiny is undoubtedly difficult for them to endure, the sensibility of individuals is not, as a general rule, a sufficient justification for a publication ban," Grant had said.

"Based on the record before the court in this application, then, I find that there is no serious threat to the proper administration of justice in this case that would support this publication ban."

Oland's son, Dennis Oland, is scheduled to be retried for second-degree murder on Oct. 15.

Old ruling stands

Under Clendening's retroactive order, the media cannot "publish, broadcast, re-broadcast, transmit, re-transmit, or disseminate" any of the information already in the public domain until the end of the criminal proceedings, which could take months, or even years.

The accused gunman, Matthew Vincent Raymond, 48, is charged with four counts of first-degree murder in connection with the deaths of Const. Robb Costello, 45, Const. Sara Burns, 43, and civilians Donnie Robichaud, 42, and Bobbie Lee Wright, 32.

Police revealed Monday the long gun they believe was used in the shooting is commonly available for purchase, and is not a prohibited or restricted weapon.

Until Clendening issues her new ruling Friday, her old ruling stands, prohibiting the reporting of any information gleaned exclusively from the court documents.

Monday's order also required media outlets to remove from publication any information from the court document that had already been published.

Costello and Burns were killed while responding to reports of gunfire at an apartment complex on the city's north side on Aug. 10 at 7:10 a.m. AT.

They were the first officers to arrive on scene at 237 Brookside Dr. and were shot trying to help two civilians — later identified as Robichaud and his girlfriend Wright — lying on the ground.

The media consortium members included CBC, CTV, Postmedia, the Globe and Mail, Global and Brunswick News.