Court File No.

CNJ6835
ONTARIO

SUPERIOR COURT OF JUSTICE
THE HONOURABLE
) THURSDA Y, THE 7TH
)

JUSTICE TAYLOR

) DAY OF JANUARY, 2010

BETWEEN:
CANADIAN BROADCASTING CORPORATION
Applicant
- and-

HER MAJESTY THE QUEEN
Respondent
. - and -

VALENTINO BURNETT, KAREN EVES, BLAINE PHIBBS AND TRAVIS MACDONALD
Respondents
- and-

WATERLOO REGIONAL POLICE SERVICE
Respondent

ORDER
THIS APPLICATION, made by the Applicant, Canadian Broadcasting Corporation

("CBC"), for an Order (a) granting a writ of certiorari quashing the decision of the
Honourable Justice Carr of the Ontario Court of Justice rendered on September 16, 2009, in
which Justice Carr refused to exercise his jurisdiction to hear CBC's application for access to

court exhibits filed at a preliminary inquiry, and (b) granting CBC access to court exhibits

with the right to copy, reproduce, edit, publish, and broadcast such exhibits, was heard on
December 22 and 23, 2009 and followed by telephone conferences on January 5 and 6, 2010,
at Kitchener, Ontario.

-2-

ON READING the Application Record, Supplementary Application Record and
Factum filed by CBC, the Responding Record, Supplementary Responding Record and
Factum filed by the Correctional Service of Canada ("CSC"), the Responding Record,

Supplementary Responding Record, Factum and Supplementary Factum filed by the Office of

the Chief Coroner (the "Coroner"), and on hearing the submissions of the lawyers for CBC,
the CSC, the Coroner and the Waterloo Regional Police Service ("WRPS"), no one appearing
for Valentino Burnett, Karen Eves, Blaine Phibbs or Travis MacDonald, although properly

served as appears from proof of service.

L THIS COURT ORDERS that the Coroner and CSC be added as Respondents to this
Application;
2. THIS COURT ORDERS that access to the exhibits deposited and filed with this Court

by WRPS be restricted to access by counsel in this matter (subject to the other terms set out in
this

Order) until the appeal period from this Court's decision has expired, at which time the

material is to be forwarded to the Officer of the Chief Coroner;

3. THIS COURT ORDERS a writ of certiorari quashing the decision of Justice Carr
dated September 16, 2009;

4. THIS COURT ORDERS that CBC is entitled to access to make or obtain copies of

the

following exhibits:
(a) Photographs: Exhibit 4, Exhibit 6, Exhibit 7, Exhibit 8, Exhibit 9, Exhibit 44;

(b) Audio Recordings and Transcripts: Exhibit 18, Exhibit 18A, Exhibit 19,
Exhibit 19A, Exhibit 21, Exhibit 21A, Exhibit 22, Exhibit 22A, Exhibit 23,
Exhibit 23A, Exhibit 24, Exhibit 24A;

(c) Documents: Exhibit 27, Exhibit 29, Exhibit 36, Exhibit 37, Exhibit 38, Exhibit
40.

5. THIS COURT ORDERS that CBC is entitled to access to make or obtain copies of
that portion of

Video Recording Exhibit 34 from 2:05 to 2: 1 0:53;

6. THIS COURT ORDERS that CBC is entitled to access to make or obtain copies of

-3-

that portion of

Video Recording Exhibit 41 from 9:02:50 to 9:04:25;

7. THIS COURT ORDERS that a representative of CBC is entitled to access to view

Video Recording Exhibit 25 for a maximum of three times, from the beginning of the
recording until 7:01:31, but that no copies are to be made; with the CBC representative
permitted to pause and rewind the recording as he or she feels necessary during each viewing;

8. THIS COURT ORDERS that CBC is denied access to Video Recording Exhibits 33
and 42;

9. THIS COURT ORDERS that, for the exhibits that CBC is entitled to make or obtain
copies of, the following conditions apply:
(a) The face of any Corrections Officer or other person who has not consented to

their face being shown is to be digitally obscured on the video recordings;

(b) The audio recordings are to be edited so that the names of any Corrections
Officer or other person who has not consented to their names being broadcast
are removed;
( c) The copying and editing of the audio and video recordings must be done so as

to maintain the integrity of the original recording;

(d) The names of any persons other than Ashley Smith and the four Corrections Officers who were charged in relation to the death of Ashley Smith are to be
removed from any paper exhibit;

(e) The exhibits are to be used solely for use in a documentary by thefiflh estate;

(1) No copies are to be made of any of the exhibits other than for use in the
documentary by the fifth estate;

(g) The copies of the exhibits are not to be posted on any internet site except as
.. ENTERED AT KITCHENÈR part of

the documentary by thefìflh estate.

in Book He. C I ç
aI Document ND. ;¿ ~ y-

OIl qJlkuL ~ f 0
by -Fh,,-,

~~. ,,,,'Jt

II ~ ..-r1r~ L Ö ,t I '-oJ .
Ii .,--

Canadian Broadcasting Corporation Applicant
and
Her Majesty the Queen et al.

Court File No: CNJ6835

Defeñdant

ONTARIO

SUPERIOR COURT OF JUSTICE

Proceeding commenced at Kitchener

ORDER

Stockwoods LLP Barristers The Sun Life Tower Suite 2512, 150 King Street West Toronto, ON M5H 119

Patricia Latimer LSUC#: 49843L Tel: 416-593-2498 Fax: 416-593-9345

Lawyers for the Applicant, Canadian

Broadcasting Corporation