Canada Judgment

British Columbia Court of Appeal

R. v. Orr

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Source document

01

Holding and result

The court dismissed the appellant's application for disclosure and, consequently, ordered that the second affidavit of Sgt. Thomas Tomiye sworn October 23, 2020 remain sealed permanently.

Court disposition

Application for disclosure dismissed; affidavit permanently sealed.

Orders

  • Application for disclosure dismissed
  • Second affidavit of Sgt. Thomas Tomiye sworn October 23, 2020 sealed permanently

02

Material facts

Parties

Arlen Jeffrey Orr

Appellant Counsel: D.J. McKay

Regina

Respondent Counsel: J.N. Walker; O.L. Bick

03

Procedural history

  1. Posture

    Criminal Appeal / Application for Disclosure / Sealing; Supplementary Reasons on Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellant sought disclosure of the October 23, 2020 affidavit of Sgt. Tomiye and opposed the continued sealing of that affidavit.
Respondent
Respondent maintained the interim sealing order and opposed disclosure, asking the court to continue and make permanent the sealing to protect the affidavit from disclosure.

05

Court’s reasoning

  1. 01

    Common law / open court principle balanced with confidentiality interests

    Courts have discretion to seal records to protect competing interests where necessary.

  2. 02

    Order of Bennett J. (Oct 29, 2020) and reasons of the Court of Appeal (Nov 16, 2020)

    An interim sealing order may be continued and made permanent where disclosure is refused by the appellate court.

06

Ratio, limits and disposition

Ratio decidendi

The court dismissed the appellant's application for disclosure and, consequently, ordered that the second affidavit of Sgt. Thomas Tomiye sworn October 23, 2020 remain sealed permanently.

Obiter and limits

  • The interim sealing order made by Madam Justice Bennett on Oct 29, 2020 was appropriately extended pending the appellate hearing and, given dismissal of the disclosure application, there was no basis to unseal the affidavit.

Court disposition

Application for disclosure dismissed; affidavit permanently sealed.

  • Application for disclosure dismissed
  • Second affidavit of Sgt. Thomas Tomiye sworn October 23, 2020 sealed permanently

Source and reliance status

British Columbia Court of Appeal · 19 November 2020

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Judgment reading view

Judgment text

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Source document

British Columbia Court of Appeal

Judgment· 19 November 2020

2020 BCCA 320

2020 BCCA 320 R. v. Orr

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Orr, 2020 BCCA 320 Date: 20201119 Docket: CA45726 Between: Regina Respondent And Arlen Jeffrey Orr Appellant

FILE SEALED IN PART Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Dickson The Honourable Mr. Justice Fitch Supplementary Reasons to R. v.Orr, 2020 BCCA 319. Counsel for the Appellant: D.J. McKay Counsel for the Respondent: J.N. Walker O.L. Bick Place and Date of Hearing: Vancouver, British Columbia November 3, 2020 Place and Date of Judgment: Vancouver, British Columbia November 16, 2020 Date of Supplementary Judgment November 19, 2020 Supplementary Reasons of the Court Reasons for Judgment of the Court: [1] On October 29, 2020, Madam Justice Bennett made an order sealing the second affidavit of Sgt. Thomas Tomiye sworn October 23, 2020, directing that the affidavit not be disclosed to any interested party or member of the public until this court heard the application of Mr. Orr for disclosure. [2] On November 3, 2020, we heard Mr. Orr's application for disclosure and adjourned the proceeding to today's date, when we delivered judgment dismissing the application. Accordingly the interim sealing order extended to today's date. [3] Given the dismissal of the application, it is now appropriate that the second affidavit of Sgt. Thomas Tomiye sworn October 23, 2020 be sealed permanently. It is so ordered. "The Honourable Madam Justice Saunders" "The Honourable Madam Justice Dickson" "The Honourable Mr. Justice Fitch"

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

R. v. Orr, 2020 BCCA 319

Case cited

R. v. Orr, 2020 BCCA 320

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