R v Moosemay, [2001] A.J. No. 1164 (ACJ – Fradsham, PCJ):

[31] In summary, I am satisfied that the common law permits me, as trial judge, to seal an exhibit, and thereby restrict public access to it, if I find there to be sufficient cause such as the protection of innocent persons. Individuals in the circumstances of the witness called before me (i.e., an informant working undercover for law enforcement officials), and who are called to give evidence qualify as such innocent persons. If, as in this case, such an individual has legitimate reason to fear for his or her safety, then the court may act to protect that person by sealing the exhibit which discloses that person’s identity.
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[36] In the case at Bar, the paper upon which the witness wrote his name was marked as an exhibit, shown to counsel, and immediately sealed. No member of the public attending the trial knew of its contents. The press was in no worse position than any other member of the public, and was able to report everything that was public in the courtroom. However, that still leaves the matter of the sealed exhibit, and the issue of whether the news media’s section 2(d) Charter rights were infringed by the sealing order.

[37] The question becomes: should the press, by virtue of section 2(b) of the Charter, be able to object to the sealing of the exhibit?

[38]….The better practice, I think, is the one followed by the Ontario Court of Appeal in R. v. K.S.Y., supra: if a prima facie case is made to seal the exhibit, a temporary order sealing the exhibit should be granted, notice should then be given to the news media of what has occurred, and the news media should then be left to determine if any one of them wishes to bring an application to unseal the exhibit. This permits the trial to continue while notice is given to the news media, and members of that group decide whether to bring an application in respect of the sealed exhibit. If no application to unseal the exhibit is made, then the court can make the order permanent. In those rare occasions when a party does not wish to proceed until it is known whether the sealing order will be successfully challenged, then an adjournment of the trial may be unavoidable, but that should be the exception, not the rule.

[39] I am satisfied that my order sealing the exhibit infringed the section 2(b) Charter rights of the news media. In R. v. McArthur, supra, the Court held that any such infringement was justified. While that conclusion initially seems reasonable to me in the case at Bar (particularly in light of the linkage between the sealing order and the order permitting the witness to testify under a pseudonym), I am also satisfied that the news media must be given notice of the order so that they may reach their own conclusion about any possible challenge to the order. That was not done in R. v. McArthur, supra, but in fairness, it should be noted that Dupont, J. did not have the benefit of the Supreme Court of Canada’s decision in Canadian Broadcasting Corp. v. Dagenais et al., supra.