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 JudyClendeningwillissue a written decision at 10 a.m. AT.

The order was issued by Clendening onMonday at the request of the Crown's office, just hours after some new information about the shootingthat claimed the lives of two police officers and two civilianswas reported.

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

You can't put the genie back in the bottle.- David Coles, media lawyer

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

Media lawyer David Colesarguedthe 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."

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• Fredericton mayor asks public to 'be patient' as police release few details

The Crownamended its application Wednesday, seekinga 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 prosecutionsCameronGunn told the court.

"We balance this against privacy, right to fair trialand 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 ideastheir own ideas, the ideas of other peopleand if you're going to limit that in any way, you have to satisfytheDagenais/Mentucktest," 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 ofthe Court of Queen's Bench recognized the Dagenais/Mentuck test in the 2014 case of JustinBourque, who gunned down threeMonctonMounties and wounded two others.

The Crown and defence had applied in that case to have court documents, video and audio related to the sentencing ofBourquesealed. 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."

Olandcase cited

Colesalso cited CBCNews'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 searchesandany personal information that would reveal their identity,even though the searcheshad been observed and reported.

Colesargued at the time it was an attempt to rewrite history and likened it to George Orwell's1984.

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

UnderClendening'sretroactive 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. RobbCostello, 45, Const. SaraBurns, 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'sorder also required mediaoutlets to remove from publication any information from the court document that had already been published.

Costello and Burnswere 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 Wrightlying on the ground.

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