Prosecutors are arguing that journalists — and their lawyer — must be barred from the first portion of court proceedings that will determine the release of redacted information used in the police investigation of April’s mass shooting.
A media consortium, including Global News, is attempting to obtain the blacked-out sections of documents submitted by the RCMP to obtain search warrants for the killer’s properties, but the format of those proceedings has not yet been determined by a judge.
On Friday, Crown attorney Mark Covan argued that a confidential, in-camera hearing must be held early in order to ensure neither the journalists, nor their lawyer, are privy to sensitive information.
David Coles, representing the consortium, argued that allowing the Crown to have an in-camera hearing first would delay scheduled court dates, limit cross-examination, and allow the Crown extra time to argue its case against lifting the redactions.
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At the heart of the debate is what the Crown calls “protected information,” including the investigative techniques used by RCMP in the early days of their probe into one of the deadliest mass shootings in Canadian history.
Other areas of concern identified by Covan include the reasons why RCMP are pursuing certain avenues of investigation, the names of potential suspects, and the names of those interviewed by police, like acquaintances of the shooter.
“If all vetting was, was to take out the names, take out the identity of the confidential informants, take out the investigative technique, take out the names of suspects — if that’s all vetting was, that would be fantastic,” he told Justice Laurel Halfpenny-MacQuarrie.
“It’s the inadvertent disclosure, it’s the slips.”
In his arguments, Covan relied heavily on case law that cites the unique protection rights of confidential informants, and information that could reveal the identity of confidential informants.
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Coles countered with the Crown’s confirmation, already on record, that “no confidential informants are at issue in this proceeding.”
“The case law does not support a position that people involved in an investigation who are not charged are entitled to anonymity,” Coles wrote in court documents filed on Thursday morning.
“The public’s right to have access to this information outweighs the privacy interests of a citizen, even one who was a suspect but is ultimately absolved of any criminal activity.”
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Covan argued that holding an in-camera hearing before the scheduled court dates of July 20-24 would protect the integrity of the ongoing RCMP investigation. It would allow the judge to determine, privately, whether certain redactions must not be lifted, and whether debating them in public, for example, might tip off an individual that the RCMP is investigating.
Covan said Coles, on behalf of the journalists, would be allowed to submit written questions to any witnesses he called.
Coles said that was meaningless, since he wouldn’t be able to hear the answers and wouldn’t have time to craft the right questions before the hearing is held.
Instead, he advocated for a process that begins with cross-examination and the presentation of all evidence. The judge would decide whose arguments to hear first, and any matters that need to be held in-camera, privately, would be. Anything not determined by the judge to require confidentiality would be heard in open court.
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“(The Crown) has to establish that it’s necessary to keep the particular redactions for purposes of preserving or not interfering with some particular investigation,” Coles argued.
“It’s not enough that (the RCMP) are doing an investigation. He can’t give you speculative information that may or may not be required to be kept.”
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Four days have been set aside in court, beginning on July 20, for the arguments for and against lifting the redactions in the documents.
Halfpenny-MacQuarrie said she expects to make a decision the format of proceedings by July 15.
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