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 produced.
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.