Victim Privacy and the Open Court Principle

Chapter One


Privacy may be an ancient concept that is linked in fundamental ways to the dignity and integrity of individuals, but it is a relative newcomer to the law just the same. Though aspects of property and defamation law, as well as some rules of evidence, are related to it, privacy, until recently, lacked status as an independent right or concept. At least in the North American tradition, the development of a legal entitlement began with a watershed article, written in 1890, by Samuel D. Warren and Louis D. Brandeis. Their perception of excesses by the American press prompted Warren and Brandeis to demand that privacy be recognized and protected by the law. In one of their more colourful passages the authors of "The Right to Privacy" described the pathology of what they saw, as follows:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.[i]

Warren and Brandeis argued that the "intensity and complexity of life" rendered "some retreat from the world" necessary at the same time that "modern enterprise and invention" created new ways and means of invading privacy. The result, they concluded, was that individuals could be subjected to mental pain and distress "far greater than could be inflicted by mere bodily injury".[ii]

The inventions Warren and Brandeis had in mind included typewriters, which were introduced to newsrooms in 1876, telephones which dated to the early 1880s, and news photography which arrived in 1897.[iii] More than one hundred years later, privacy as a legal concept has evolved in a number of directions, especially in the United States, where it is a viable cause of action in the law of tort. Today, modern enterprise and invention have developed sophisticated broadcast and electronic technologies which dramatically accelerate the possibilities for the invasion of privacy. Not only that, the media promotes a culture of publicity which thrives on the details of private lives, whether the object of attention is a celebrity, a public figure, or an unlucky individual whose life has taken a turn which can be sensationalized for profit. There can be no doubt that the victims of crime are among those who are unwillingly thrown onto the public stage. While leaving larger questions about the privacy from unwanted media attention to another time and place, this study focuses on the privacy of crime victims, and of complainants in sexual assault proceedings, in particular.

"The history of criminal justice is almost synonymous with the decline of the victim's influence."[iv] Historically, the common law treated the victims of crimes as witnesses, not as parties to criminal proceedings. Though the victim initiated proceedings as the prosecutor in the earliest days, the foundations of modern criminal justice were laid when the state undertook that responsibility in the name of the victim and the community at large. From then on, the central elements of the criminal trial, which was conceived as a contest between those accused of offences and the state, began to evolve. Over time, substantive principles, rules of evidence, and procedures which protected the defendant's right to a fair trial would offset the considerable powers, advantages and resources the state enjoyed in prosecuting those accused of crime.

How the frequently competing interests in law enforcement and due process should be calibrated is an issue of ongoing adjustment and debate. Thus, it could be expected that those accused of criminal offences would be key beneficiaries when constitutional rights arrived in Canada, some twenty years ago. Today, the process of adjusting the balance between law enforcement and fairness to the accused is channelled, for the most part, through the Charter of Rights and Freedoms.[v]

Meantime, the victims and witnesses who were participants in criminal trials were not only visible to the public but were often the objects of sympathy as well. Still, as third parties, they lacked status or standing in the system, in their own right. As LeSage A.C.J.O explained, in The Queen v. Bernardo :

Historically, there was a period when all crimes were personal to the victim. Over the years, the criminal law evolved toward a recognition that crimes are transgressions of societal order and values. This evolution continued until we reached a point where the state interest appeared to be total and the individual victim was given little recognition. The only recognized interest, at that point, was the broader interest of the state.[vi]

The Crown could not secure convictions without the assistance of the victims and witnesses of crime. Yet the interests of the victim and the Crown often diverged and, in any case, prosecutors lacked the authority to promise victims that their interests, including privacy concerns, would be protected. Nor were the courts willing, or able, institutionally, to reform the criminal justice system in ways that responded to the concerns of victims. For that to happen, legislative intervention was necessary.

For many years now, victims' rights groups have been active and effective participants in the political and legal processes of government. As a result of their efforts, the status of crime victims has changed in many ways. Victims' charters have been enacted in, for example, the province of Ontario. The 1995 Victims' Bill of Rights declares that "[t]he people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness."[vii] In addition, the Preamble states that "[t]he people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice system." [viii] The Bill establishes principles, which include a declaration that victims should have access to information on a variety of points about the criminal justice system and the proceedings in which they are involved. [ix] As well, s.2(1)1 announces that "'q"[v]ictims should be treated with courtesy, compassion and respect for their personal dignity and privacy by justice system officials.'é" [x] Meanwhile, victim impact statements are now admissible at sentence hearings [xi] and steps have been taken to address victims' needs for compensation and restitution. [xii]

Following his statement above, regarding the traditional role of the victim, LeSage A.C.J.O.C. observed, "[d]uring recent years, there has been a gradual shift, or evolution … to a recognition of the concerns, interests and involvement of the individual who has suffered as a result of crime." [xiii] Describing this as a "healthy evolution", he stated that "[v]ictims should have a participation in the criminal law process that is greater than was recognized twenty or thirty years ago." [xiv] The proviso he added is that their participation and involvement "can never interfere with or be seen to interfere with the accused's right to a fair trial." [xv] That, of course, is when the criminal justice system confronts conflicts between the rights of defendants and their accusers. There, the question is whether the victims of crime can claim entitlements and rights of participation in the criminal process, or will remain as third parties, whose recognition in the system is limited to the "soft", or unenforceable, declarations set out in charters and bills of rights.

Conflicts between the rights of the accused and their victims have been brought to the forefront by women's organizations, which have directed their energies over the years to the problems of sexual assault and domestic violence. In Canada and elsewhere, organizations have lobbied effectively for legislative reforms and have participated in high profile court cases. At home, the law has been modified in important ways as a result. For example, the Criminal Code 's offence of rape was repealed in 1982 and replaced by sexual assault, which is a broader and more encompassing offence. [xvi] In addition, the Supreme Court of Canada recognized battered wife syndrome as a valid aspect of self-defence in answer to a murder charge. [xvii] Moreover, through a combination of judge-made law and Criminal Code revisions, it is more difficult now for the accused to claim that he mistakenly thought a complainant consented to a sexual assault, when she in fact did not. [xviii] As well, and in response to a controversial decision by the Supreme Court, Parliament has removed intoxication as an available defence to offences which interfere with a person's bodily integrity, including sexual assault. [xix]

Historically, sexual assault victims were treated poorly in criminal proceedings. For instance, it was once commonplace for defence counsel to question a complainant about her previous sexual history, not only with the accused, but with other partners too. [xx] It was presumed that this evidence was relevant to the question of consent: a complainant with a history of sexual activity was deemed more likely to have consented or, alternatively, to have led the accused to believe, mistakenly, that she had given permission. Debate about the permissibility of this line of inquiry, as well as on access to other sources of information about the complainant, initially centred less on a right of victim privacy than on the question whether the evidence was relevant to the defence. While counsel for the accused maintained that such evidence was relevant to the credibility of the complainant and her story, others challenged that view on the ground that information, which was extraneous to the offence itself, was irrelevant. Moreover, they argued that assumptions about the relevance of such evidence were based on stereotypical views about who gets raped, by whom, for what reason, and in what circumstances.

Through its constitutionalization of the presumption of innocence and other elements of procedural fairness, the Charter of Rights and Freedoms guaranteed defence access to evidence which advanced the accused's right of full answer and defence. In the circumstances, conflicts between the criminal defendant's new found constitutional rights and the countervailing demands that sexual assault complainants be treated fairly were inevitable. The victims of sexual offences reacted by asserting their own constitutional entitlements in the criminal process. As a result, the focus gradually shifted away from the question whether private information was relevant, and turned toward the establishment of privacy and equality rights for the victims of sexual offences. In due course, the Supreme Court of Canada and Criminal Code set evidentiary boundaries around the defendant's access to personal information about the complainant. [xxi]

The recognition of victims' rights generally, and the establishment of privacy and equality rights for sexual assault complainants are not unrelated to the more specific purpose of this study, which is to consider the relationship between victim privacy and the open court principle. Despite the common law's reluctance to recognize privacy as a permissible exception to the presumptions of access and publicity, the Supreme Court of Canada has explicitly weighed victim privacy in balancing the interests for and against open court. Thus, in C.B.C. v. New Brunswick (Re: R. v. Carson) , the Supreme Court of Canada was asked to close a courtroom during part of a sentence hearing for a sexual offence the defendant had committed against two young women. [xxii] La Forest J. acknowledged that "[w]hile the social interest in protecting privacy is long standing, its importance has only recently been recognized by Canadian courts." [xxiii] He noted that privacy "does not appear to have been a significant factor in the earlier cases which established the strong presumption in favour of open courts." [xxiv] Though that approach had generally continued and may be inherent to the nature of a criminal trial, he stated that the right of privacy "is beginning to be seen as more significant." [xxv] Ultimately, the Court concluded that the public can be excluded from the court room, as a way of controlling publicity to protect the innocent and safeguard privacy interests. [xxvi]

In C.B.C. (Re: R. v. Carson) and other decisions, privacy has received new and increased recognition in relation to the open court principle. At the same time, the Supreme Court of Canada has given that principle strong endorsement. In a series of decisions, the Court has made it clear that access to the courts and their proceedings enables public criticism of the justice system and encourages public participation in one of Canada's democratic institutions. Excluding the public from court proceedings or banning the publication of information about the trial process undercuts one of the "core" values that is protected by s.2(b) of the Charter 's guarantee of expressive freedom.

The presumption in favour of open court is strong but not absolute, and exceptions are permissible. The rationale, which traditionally was most frequently invoked to support a publication ban, was the accused's right to a fair trial. Proceedings could also be closed, in some instances, to protect the proper administration of justice. Under the Charter , the Supreme Court of Canada has articulated doctrines which place significant restrictions on derogations from the open court principle. In other words, exceptions remain available, but must satisfy the Court's multi-criteria standards of justifiability. Even so, the open court Charter doctrines are flexible enough to accommodate exceptions which are necessary, in particular circumstances, to protect fair trial, privacy, or other compelling interests. [xxvii]

With a doctrinal framework for open court in place, it remains somewhat unclear how it will be applied as the jurisprudence evolves. Whether the Supreme Court enforces a presumption in favour of access and publicity, or is generous in its interpretation of exceptions will vary on a case-to-case basis. It is difficult to predict the direction conflicts between open court and victim privacy will take under a methodology that is so contextual in nature. In that regard it should be noted, however, that the Supreme Court's recognition of a right of victim privacy under s.7 of the Charter is certain to affect its appreciation of the balance between privacy and open court under s.2(b).

With these introductory remarks as background, the plan for the study can now be outlined. Chapter Two introduces the constitutionalized concept of open court and traces its evolution in four of the Supreme Court of Canada's important decisions on these issues: Canadian Newspapers Co. v. Canada (A.G.) [xxviii] ; Edmonton Journal v. Alberta (A.G.) [xxix] ; Dagenais v. C.B.C. [xxx] ; and C.B.C. v. New Brunswick (Re: R. v. Carson) [xxxi] . Two of the four raise privacy questions, and two others pose open court issues in the context of sexual assault proceedings. Next is Chapter Three, and though it does not address the open court principle, it is a vital part of this study. The objective of that Chapter is to link the invasion of privacy that sexual assault victims experience, throughout the process , from the initial complaint to the final appeal, and to demonstrate how privacy concerns which are pervasive in sexual prosecutions key back to the open court principle. Chapter Three explains how a right of victim privacy emerged in the court of three Supreme Court of Canada decisions of the 1990s; they are R. v. Seaboyer [xxxii] ; R. v. O'Connor [xxxiii] ; and R. v. Mills [xxxiv] .

Chapter Four ranges beyond Canada's borders to see how victim privacy is treated in other jurisdictions. Limited information was available on civilian and other non-common law systems. As well, the Commonwealth countries, which lack a constitutional framework for conflicts between these competing interests, contributed little in the way of new insight. More provocative in this Chapter, then, is the analysis of victim privacy and the First Amendment of the U.S. Constitution, which guarantees freedom of speech and of the press. If the American jurisprudence fails to supply answers, it at least does not shy from asking the difficult questions.

Simply enough, Chapter Five is titled "Perspectives." Its purpose is to step away from an emphasis on statutory provisions and case law, and to try and flush out what is at stake in pitting open court against victim privacy. While it does not claim to provide answers, the discussion identifies the rationales which are strongly advanced on each side of the ledger. It also attempts to articulate the difficult choices which lie ahead in deciding which of two cherished values should be preferred, both generally and in particular circumstances. In doing so, it draws on a substantial secondary literature to discuss the merits of victim anonymity, as well as the arguments in favour of identifying the victims of crime. That analysis is followed by a comment on the Homolka-Bernardo proceedings and the conflicting values those proceedings generated.

Chapter Six is relatively brief. At the conclusion of a lengthy Report, its purpose is to summarize and highlight the key elements of the study. Thus it crystallizes the findings and conclusions reached, as well as points up unanswered questions and issues for the future. It is followed by Chapter Seven, which provides a Bibliography of constitutional, statutory and case law materials, as well as a list of the secondary literature that was consulted in the preparation of this Report.