Toronto Star Newspapers Ltd v Ontario

The Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, including orders to seal search warrant materials made upon application by the Crown. Court proceedings are presumptively “open” in Canada and public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. Though applicable at every stage of the judicial process, the Dagenais/Mentuck test must be applied in a flexible and contextual manner, and regard must be had to the circumstances in which a sealing order is sought by the Crown, or by others with a real and demonstrated interest in delaying public disclosure.^[5]

In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy. ... The issue in this case is whether [the Dagenais/Mentuck] test, developed in the context of publication bans at the time of trial, applies as well at the precharge or “investigative stage” of criminal proceedings. More particularly, whether it applies to “sealing orders” concerning search warrants and the informations upon which their issuance was judicially authorized. ... [T]he Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter... [The Court below] emphasized the importance of freedom of expression and of the press, and noted that applications to intrude on that freedom must be “subject to close scrutiny and meet rigorous standards”