No.

$210831
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

Between:

CANADIAN SOCIETY FOR THE ADVANCEMENT OF SCIENCE

IN PUBLIC POLICY
Plaintiff

And:

HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF BRITISH

COLUMBIA AND DR. BONNIE HENRY IN HER CAPACITY AS PROVINCIAL
HEALTH OFFICER FOR THE PROVINCE OF BRITISH COLUMBIA

Defendants

Brought under the Class Proceedings Act, RSBC 1996, c. 50

APPLICATION RESPONSE

Application response of: Attorney General of British Columbia (the “AGBC”)

THIS IS A RESPONSE TO the notice of application of the Canadian Society for the
Advancement of Science in Public Policy filed 26/Oct/2022.

Part 1: ORDERS CONSENTED TO

The AGBC consents to the granting of the orders set out in NONE of the paragraphs of
Part 1 of the notice of application.

Part 2: ORDERS OPPOSED

The AGBC opposes the granting of the orders set out in ALL of the paragraphs of Part 1
of the notice of application.
 2=

Part 3: ORDERS ON WHICH NO POSITION IS TAKEN

The AGBC takes no position on the granting of the orders set out in NONE of the
paragraphs of Part 1 of the notice of application.

Part 4: FACTUAL BASIS

Background

1, The Canadian Society for the Advancement of Science in Public Policy (“CSASPP”)
was incorporated pursuant to the Societies Act, S.B.C. 2015, c. 18 on January 14,
2021.' One of CSASPP’s two primary purposes is to challenge the provincial COVID-
19 measures instituted in British Columbia.2

On January 26, 2021, CSASPP filed a proposed class proceeding against His Majesty
the King in right of the Province of British Columbia (the “Province”) and Dr. Bonnie
Henry in her capacity as Provincial Health Officer for the Province of British
Columbia (the “PHO”) (collectively, the “Provincial Defendants”).

The proposed class consists of “all persons residing or doing business in British
bo

Columbia who, since on or after March 17, 2020, have suffered personal injury or
other damages as a result of the actions of the defendants in declaring a state of
emergency pursuant to the [Emergency Program Act] and Part 5 of the Public Health
Act’3

CSASPP relies on “grass-roots contributions from members of the public”, such as

contributions made through a ‘GoFundMe’ page, to advance its proposed class
proceeding.*

December Hearing

5. The following applications in this proceeding are set to be heard concurrently over
five days commencing on December 12, 2022 (the “December Hearing”):

a. CSASPP’s application for leave to further amend its pleadings and add

' Affidavit #3 of Kipling Conrad Singh Warner (“Warner Affidavit”), Exhibit A.

? Canadian Society for the Advancement of Science in Public Policy v. Henry, 2022 BCSC 724 at
para. 47.
* Amended Notice of Civil Claim, Part 1, para. 8.
* Warner Affidavit at paras. 5-6.
 additional plaintiffs;

b. CSASPP’s application for certification as a class proceeding; and

c. the Provincial Defendants’ application to strike CSASPP’s claim in its

entirety on the basis that it is bound to fail and is an abuse of process.

The Court has not made any orders restricting access to or reporting on the
proceedings to date. At hearings in the proceeding, the Court has “granted leave for
members of the public to listen through a phone-in line,” permitting “several hundred
people” to listen to chambers hearings, case management conferences and other
matters in the proceeding.”

The Court has not made any orders restricting access to or reporting on the December
Hearing. Like most other matters, the courtroom will remain open to members of the
public and access to the court record will be subject to the Supreme Court of British
Columbia’s Policy on Access to the Court Record.

Part 5: LEGAL BASIS

The Court’s Inherent Jurisdiction Over Courtroom Procedures

8. The courtroom is a place of solemn inquiry; it is not a place of entertainment. Nor is

it a “a place of debate to facilitate social or political decision-making”.®

The question of whether to permit the recording and broadcasting of court proceedings
is at the core of the Court’s “duty to control the procedures in his or her courtroom”.’
The Court’s authority over its processes, and the decorum and solemnity of its
proceedings, is linked to ensuring trial fairness and protecting the privacy interests of
litigants and witnesses.* Thus, the Court has “the inherent power to make any order in
relation to the publicity of its proceedings.”

> Canadian Society for the Advancement of Science in Public Policy v. British Columbia, 2021 BCSC 2168
at para. 52.
© Ry. Pilarinos, 2001 BCSC 1332 at paras. 162 and 165.
’ Pilarinos, at para. 26.
8 Pilarinos at para. 26, 28 and 29.
° Pilarinos at para. 30.
 -4-

Broadcasting of Court Proceedings is Generally Prohibited

10. Absent court order, the recording and broadcasting of court proceedings (whether by
television or webcast) in the Supreme Court of British Columbia is prohibited.

Ih. Pursuant to the Court’s Policy on the Use of Electronic Devices in Courtrooms,
members of the public, including litigants, may not use electronic devices to audio or
video record a proceeding for any purpose.!°

12. Accredited media may use electronic devices to audio record a proceeding for the sole
purpose of verifying their notes. Once the verification of notes is complete, the audio
recording must be destroyed.!!

Considerations when Authorizing Recording or Broadcasting

13. Supreme Court of British Columbia Practice Direction 48 (“PD 48”) addresses the
procedure for applications to video record or broadcast court proceedings. The Court
has held that the existence of a Practice Direction is a recognition that televising court
proceedings is appropriate in some circumstances.!”

14. PD 48 is premised on such applications being advanced by media. There is no

equivalent Practice Direction regarding an application made bya litigant.

15. PD 48 provides that an applicant must comply with certain procedures and standards
unless the Court orders otherwise. In support of its application, an applicant must
provide a written argument addressing the impact of the authorization sought on:

a. fair trial rights;

b. privacy interests;

c. witnesses in the proceeding; and

d. the Court and the administration of justice.

'° Policy on Use of Electronic Devices in Courtrooms at para. 3.

" Policy on Use of Electronic Devices in Courtrooms at para. 6.
” Reference re: Section 293 of the Criminal Code, 2011 BCSC 1588 (“Polygamy Reference’) at para. 41.
 $=

Nature of the Issue and Purpose of the Broadcasting

16. When exercising their inherent jurisdiction to permit the recording and broadcasting
of proceedings, or to dispense with any of the requirements of the related court
policies, Courts have considered the nature of the issues before the Court and the
purpose of the broadcasting.

17. Courts have authorized broadcasting of hearings in treaty interpretation cases where
webcasting would promote reconciliation.’ For example, in West Moberly First
Nations v. British Columbia, the Court permitted broadcasting of an interlocutory
injunction hearing in a treaty case to allow members of the plaintiff First Nations
living in remote communities to watch the proceeding. Importantly, the Court imposed
certain restrictions, noting that the order should not extend beyond the purpose
supported by the evidence.!4

18. Courts have also permitted the broadcasting of final submissions in cases of public
importance where the parties consented to or took no position on the broadcasting
application. In Reference re: Section 293 of the Criminal Code, the Court permitted
broadcasting of final submissions by the media. In doing so, the Court noted that the
reference was “an exceptional proceeding” and held that its ruling “does not
necessarily have precedential value for future cases”.!>

19. While CSASPP’s claim arguably engages matters of public importance, the nature of
the issues before the Court in the December Hearing are of less significance. A
certification hearing is a purely procedural step in the proceeding where contested
facts are to be assumed for the purposes of a legal question. It does not involve the
weighing of relevant scientific evidence or result in an adjudication of the plaintiff's
claim on its merits. It is not akin to a culmination of proceedings, like final argument
ina trial.

20. Further, the December Hearing will include the Provincial Defendants’ application to

8 West Moberly First Nations v. British Columbia, 2018 BCSC 1282; Restoule v. Canada (Attorney
General), 2018 ONSC 114.
'S West Moberly at para. 4.
8 Reference re: Section 293 of the Criminal Code, 2011 BCSC 1588 at para. 42 (the “Polygamy
Reference”).
 «6

strike CSASPP’s claim as an abuse of process. Broadcasting and archiving a hearing

in a proceeding that may ultimately prove to be an abuse of this Court’s process is
inconsistent with the interests the general prohibition against recording and
broadcasting court proceedings is intended to protect, including the proper
administration of justice.

al. Finally, the Provincial Defendants do not consent to the recording and broadcasting
of the proceeding and oppose CSASPP’s application. While this Court has the inherent
jurisdiction to order the broadcasting of the December Hearing without the consent of
the Provincial Defendants, a lack of consent has been a significant and often
determinative factor in other cases.

Broadcasting Proceedings and the Proper Administration of Justice

22. Broadcasting of a proceeding in the trial court may be incompatible with the function
of the court and may pose risks to the proper administration of justice, even in
circumstances where there are no live witnesses.

23. Broadcasting may jeopardize the safety and privacy of participants; may inhibit access
to courts as parties may be discouraged from bringing actions for fear of publicity;
may change the behaviour of participants; and may require judges to monitor media
compliance with court rules during proceedings.!°

24. Moreover, permitting broadcasting on the application of a party may enable a litigant
to inappropriately use the court proceeding as a platform to advance their cause
beyond the courtroom doors.

25. Recording and broadcasting of a proceeding also creates the risk that context-less or
distorted materials will be broadcast, detracting from the public understanding of the
proceeding and undermining the dignity of the court.'” The inherent authenticity of an
apparent reproduction of a court proceeding in audio-visual format poses greater risks
than the publication of similarly deficient commentary in other forms of media.!®

26. This risk may be elevated where contested facts are to be assumed for the purposes of

'© Pilarinos at para. 157.

'7 United States v. Meng, 2020 BCSC 43 at para. 43.
'8 Meng at para. 42.
 “T's

a legal question, such as in the context of a certification hearing. Absent the proper
legal and factual context, members of the public may misunderstand a party to be
conceding disputed facts in the litigation.!°

27. Moreover, the risk that distorted representations may be created and broadcast for
purposes contrary to the proper administration of justice is heightened where the
nature of a case is particularly controversial or has become highly politicized.”

28. CSASPP’s application poses a risk to the proper administration of justice.

29, An order permitting webcasting and archiving of a recording on the internet ultimately
provides uncontrolled access to the proceeding.?! Even with the restrictions
prohibiting the rebroadcast or editing of the December Hearing, in practice, this Court
will have little control over its use or dissemination once it is uploaded onto the
internet.

CSASPP’s evidence implies that the proceeding will likely be accessed beyond this
Court’s jurisdiction. Mr. Warner deposes that the proceedings have generated “very
significant public interest” and that CSASPP has received “inquiries from many
interested persons, including media requests, across widely geographically distributed
regions ... including Canada, the United States, Latin America, and Europe”.? The

extra-jurisdictional enforcement of any order restricting the use of the broadcast would
be difficult, if not impossible.

. Even within British Columbia, the risk that edited, context-less or distorted
representations of the December Hearing could circulate on the internet is significant.
The enforcement of any order restricting the use of the broadcast could consume
significant time and resources.

1° Tn Meng at paras. 39-42, the Court held that broadcasting of the “double criminality” portion of the
extradition hearing may compromise Ms. Meng’s right to a fair trial in the United States. The public may
view Ms. Meng’s counsel accepting the allegations against her for the purposes of the legal question at
issue as an admission, resulting in an entrenched public perception of her guilt that may taint witnesses and
potential jurors.
2 Meng at para. 48.
2! Pilarinos at para. 203.
22 Warner Affidavit, paras. 5, 9.
 =<

Broadcasting Does Not Engage the Open Court Principle

32. Courts have recognized that an application to record and broadcast court proceedings
does not engage the open court principle.”? Rather, an order permitting broadcasting
amounts to an expansion of the right traditionally held by the public and the media.”4

The open court principle is of critical importance in a democratic society. Courts have
recognized that public access to proceedings permits public scrutiny of judicial
processes and enhances public confidence in the justice system.?°

34. The open court principle is engaged where a party seeks an order restricting public
access to a proceeding, such as a sealing order or publication ban. In these
circumstances, the Court must balance the various rights and interests at play.

Absent such an order, individuals may enter courtrooms in British Columbia and
observe or report on proceedings. Those who cannot attend a proceeding may visit
one of nine court registries with listening stations across the province and listen to the
audio recording of the proceeding from anywhere in British Columbia.”®

It cannot be that the open court principle is abrogated any time it would be
inconvenient or impossible for certain members of the public to watch a proceeding
in this Court. If this were the case, the principle would be violated almost daily.

CSASPP’s reliance on the open court principle in support of its application to webcast
the December Hearing is misplaced. Members of the public and the media are not
prohibited from attending the December Hearing, nor are they prohibited from
subsequently attending court registries across the province to listen to the official
recording of the hearing.

Conclusion

38. In light of the considerations above, CSASPP’s application to webcast and archive the
December Hearing ought to be dismissed.

39. The AGBC does not seek costs and asks that no costs be awarded against him.

Pilarinos at para. 210; Canadian Broadcasting Corporation v. Fertuck, 2021 SKQB 218 at para. 81.
24 Fertuck at para 81.
35 R. y, Moazami, 2020 BCCA 350 at para. 2.
°° Supreme Court of British Columbia Policy on Access to the Court Record at 6.1.
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Part 6: MATERIAL TO BE RELIED ON

1. The pleadings and other materials filed herein; and

2. Such further materials as counsel may advise and this Court may permit.

The AGBC estimates that the application will take one day.
[] The application respondent has filed in this proceeding a document that contains the
application respondent’s address for service.

[X] The application respondent has not filed in this proceeding a document that contains
an address for service. The application respondent’s ADDRESS FOR SERVICE is:

Ministry of Attorney General

Legal Services Branch
P.O. Box 9280 Stn Prov Govt |
1001 Douglas Street
Victoria, BC V8W 9J7
Fax number for service: (250) 356-9154
E-mail address for service: caily.dipuma@gov.be.ca

Date: November 2, 2022

Signatur of counsel to the AGBC
Caily A. DiPuma and Christine Bant

This APPLICATION RESPONSE is prepared by Caily A. DiPuma and Christine Bant, Barristers &
Solicitors, of the Ministry of Attorney General, whose place of business and address for service is P.O. Box
9280, Stn Prov Govt, 1001 Douglas Street, Victoria, British Columbia, V8W 9J7; Telephone: (236) 478-
3693; Facsimile: (250) 356-9154; Email Address: caily.dipuma@gov.be.ca and christine.bant@gov.bc.ca.