Most businesses eventually face an ungovernable litigant.
Typically, this litigant launches endless frivolous proceedings and
ties up legal resources. Of concern is if (or when) these types of
litigants post confidential litigation materials on the Internet.
Businesses are caught between their disclosure obligations and the
need to protect confidential information.
Businesses that have faced this situation will welcome the
decision in R v. Kelly, which confirms that courts
may curb access to trial documents if the documents are being used
for an improper purpose, such as posting on the Internet to further
a campaign of harassment.
In 2003, Mr. Kelly filed complaints with the police about a
local soccer federation and one of its officials, but no charges
were laid. Frustrated by the lack of police action, Mr. Kelly
initiated a campaign of harassment against the investigating police
officer that spanned nearly a decade. Mr. Kelly's campaign
consisted of repeated communications (including posting on the
Internet) and threatening conduct that caused the officer to take
measures to protect himself, his wife and son.
Mr. Kelly was ultimately charged with and convicted of criminal
harassment for his unending behaviour. He was self-represented for
most of the 36-day trial. During trial, the judge restricted Mr.
Kelly's access to Crown disclosure documents. The reason for
this decision is important: Mr. Kelly was found to be
inappropriately publishing previously provided Crown disclosure on
the Internet. As a consequence, the judge ordered that rather
than providing Mr. Kelly with copies of the Crown's disclosure,
he could access the disclosure by attending the Crown's
offices, viewing it in private and making notes of what he wished.
At trial, the Crown's disclosure was kept in the courtroom and
could be accessed by Mr. Kelly any time while the court was in
session, as well as before and after the court was in session. Mr.
Kelly was also given copies of the transcripts as they were
Mr. Kelly appealed his convictions on multiple grounds,
including that he had received an unfair trial on account of the
judge's decision to limit his access to the Crown's
disclosure documents. The Court of Appeal considered this decision
and held that the case management judge imposed a reasonable limit
on Mr. Kelly's access to the Crown's disclosure in the
circumstances and did not result in an unfair trial.
The facts of this case are quite unique because the posting on
the Internet of Crown disclosure documents (in the context of a
criminal proceeding) was consistent with Mr. Kelly's prior
harassing behaviour. However, the case suggests that, in
circumstances where court documents are being publicized on the
Internet, courts may give due weight to the purpose and effect of
the posting when deciding whether to limit access.
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