Justice department backs down on request to keep evidence secret in N.B. murder trial

The federal Department of Justice has backed down from a request it made to keep the testimony of a Crown witness secret from the public in an upcoming jury trial for two people accused of murder near Fredericton three years ago.

A lawyer for Canada's attorney general had filed an application in the Court of King's Bench earlier this month seeking to have the witness testify behind closed doors during the jury trial of Joshua McIsaac and Erica Blyth, who are jointly charged with murdering Brandon Donelan in the first degree.

The application, if granted, would effectively have allowed only the jury, the judge, lawyers and their clients to hear the testimony of the Crown witness and would have kept that testimony sealed even after the trial concluded.

However, following objections from defence lawyer Nathan Gorham, as well as reporters with CBC News and the Fredericton Independent, Patricia MacPhee, a lawyer for Justice Canada, reneged on her initial request.

"There's now a tentative resolution," said MacPhee, in court, following private discussions she had with Gorham and TJ Burke, who is representing Blyth.

That resolution, as described by Gorham, would only go as far as imposing a publication ban on any information that would identify the Crown witness and their family.

Trial scheduled for April 23

Wednesday's court appearance was part of pre-trial proceedings ahead of its scheduled April 23 start date.

It comes more than three years after Donelan's body was found in a wooded area between Minto and Chipman on March 31, 2022, after being reported missing two months earlier.

Due to a publication ban on any evidence discussed prior to the trial, CBC News cannot report why the Department of Justice wanted to keep the evidence of one of the Crown witnesses secret.

Defence's challenge to application

In a brief filed in response to Justice Canada's original application, Gorham argued there was no factual or legal basis to have "vast portions" of the trial held in private and that it would undermine the fairness of his client's trial.

"This alone is a drastic, unprecedented request," Gorham wrote. "It is made even more outlandish by the claim that the evidence should be sealed in perpetuity."

Wednesday's proceedings were adjourned until April 9, when media outlets will be allowed to make submissions related to the proposed publication ban.

Justice Richard Petrie will have the final say on whether to grant it.