Judge in Matthew Hines case orders access to exhibits related to his prison death

A provincial court judge has ordered that CBC News be allowed to access and copy exhibits introduced at a preliminary inquiry for two correctional officers charged in the death of Matthew Hines.

CBC News was denied access to the exhibits in the fall and had to file an application to ask provincial court Judge Ronald LeBlanc to grant access, which he agreed to do at a hearing on Monday.

• Judge to decide in April whether prison guards will stand trial for manslaughter

Julie Kirkpatrick, a lawyer for the Hines family, spoke in favour of the CBC News application to access the exhibits.

"Matthew's family feels very strongly that the open court principle is more important than any concern or worry or feeling that they have about the protection of Matthew's privacy and Matthew's dignity with respect to what is shown in that particular exhibit," Kirkpatrick said.

Mathieu Bourgoin and Alvida Ross have pleaded not guilty to charges ofmanslaughter and criminal negligence causing the death of the 33-year-old Hines, died on May 27, 2015.

The Cape Breton man was in custody of Dorchester Penitentiary, serving a sentence for robbery, at the time of his death.

On April 5, Bourgoin and Ross will find outwhether they will go to trial on those charges.

The evidence presented at the preliminary inquiry, including the exhibits, is protected bya publication ban until the end of that trial or, if the case does not go to trial, until Bourgoin and Ross are discharged.

Judge concerned about'risk'of publication

At a hearing on Monday, David Coles, a lawyer for CBC News, argued the publication ban does not prevent access to exhibits.

"Unless otherwise ordered by the court, anyone may access a file and obtain copies where a publication ban is in effect," the province's adult criminal court records manual says.

Coles argued the open court principle, where court proceedings are open and accessible to the public by default, should apply.

Anyone who wants to limit those rights must present evidence that satisfies the burden of a two-part legal test, which includes showing there is a "serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk."

Lawyers for Ross and Bourgoin didn't take a position on the CBC News application, nor did the Crown.

But the judge expressed concern about the "risk" of allowing someone to copy evidence that remains under a publication ban.

If evidence from the preliminary inquiry is disclosed or published in some way prior to a trial, it could affect the guards' right to a fair trial, the judge said.

"The issue is what are the possible ramifications of a mistake being made?" LeBlanc said.

Access a matter of'timeliness'

Coles argued that concern was not strong enough to limit access to the exhibits.

"An exhibit feels sort of tangible," Coles said.

"I think there's a natural human nature to say I want to protect this thing. But with respect, in accord with what the Criminal Code says, the courtroom is open and people attend subject to a publication ban."

There is just as much risk that someone could attend the preliminary inquiry and reveal details of evidence under a publication ban, Coles said.

Crown prosecutor Pierre Gionet echoed Coles, saying members from the public attended the preliminary inquiry in the fall, and no one violated the publication ban.

"Anybody could have published something on their Facebook page, Twitter," Gionet said. "It could have been shared and then shared again."

LeBlanc also questioned why CBC News wanted the exhibits now, while the publication ban is still in place. He asked whether it was a "matter of convenience" to get copies of the exhibits now, saying it would make the journalist's job easier to review the material in advance.

Coles said it wasn't just a matter of conveniencebut timeliness.

"Having a copy of the exhibit certainly aids in robust, timely, presumably better understood publication," he said.

LeBlanc ultimately granted access to the exhibits, saying he agreed with Coles's position.

The judge said he just wanted "to be comforted" that risk didn't outweigh the advantages of free expression.

An internal Correctional Service Canada investigation found that correctional officers used "inappropriate" force on Hines by beating and repeatedly pepper spraying him after he refused to return to his cell at Dorchester Penitentiary, CBC News has previously reported.

Less than two hours after the encounter with guards began, Hines was pronounced dead at the Moncton Hospital, the CSC investigation found.

New Brunswick RCMP initially ruled out foul play in Hines's death but later reopened the investigation and transferred it out of province to Nova Scotia RCMP.

Charges were laid against Bourgoin and Ross in 2018.