Victim Privacy and the Open Court Principle

Chapter Two: The open court principle and the Charter


Open court is a venerated ideal of justice in common law systems, and a principle that is regarded as indispensable. Generally, the principle requires that court proceedings be open to the public, and that publicity as to those proceedings be uninhibited. No less than the legitimacy of criminal justices depends on it; the fairness of criminal process and public confidence in the system are at stake. Of signal importance as well, a free flow of information encourages feedback and debate among members of the public, thereby promoting the accountability of institutions which exercise coercive powers against individuals.

Yet the rule is one matter and its exceptions, another. Despite the rhetoric, the common law's commitment to open court has yielded a variety of exceptions from the rule. As fundamental as its underlying values are, securing the fair trial of the accused at times requires a ban on the publication of information which could prejudice his right to be presumed innocent. In Canada, many such exceptions are found in the Criminal Code , which was enacted for the first time in 1892. [xxxv] For instance, publication bans today prevent the disclosure of information revealed in pre-trial proceedings, such as bail hearings [xxxvi] and preliminary inquiries. [xxxvii] Such information can impair fair trial rights by revealing evidence that is inadmissible or by undermining the presumption that an accused is innocent until proven guilty. In default of a Code provision, the judge can order a publication ban at trial, as an aspect of his or her common law jurisdiction to prevent bias against the accused. [xxxviii] Bans safeguard the integrity of the process in other ways as well; for example, the identity of a juror or jurors is protected, [xxxix] as is the confidentiality of jury proceedings. [xl]

In s.794, the 1892 Code endorsed the common law principle that every court "shall be an open public court", and added, in s.848, that the hearing "shall be deemed an open and public court, to which the public may generally have access so far as the same [room] can conveniently contain them". [xli] Even so, the Code has, since its earliest days, authorized judges to exclude the public from the courtroom in specified circumstances. [xlii] Up until 1953's revision, the Code preserved the judge's common law power to exclude the public in any case where such exclusion was deemed "necessary or expedient". [xliii] That year saw the introduction of s.428, which is substantially the same as the present s.486(1), the latter which reads as follows:

486(1). Exclusion of public in certain cases - Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the courtroom for all or part of the proceedings, he may do so. [xliv]

This provision codifies the general rule and then sets out the grounds on which the public can be excluded by way of exception. [xlv]

Today, the Code encompasses hundreds of provisions which prescribe the substantive and procedural details of Canada's criminal law. Though it is the primary source, the Code is not the only source of criminal law, and is supplemented in its coverage by drug and firearms legislation, as well as by the former Young Offenders Act, and now the Youth Criminal Justice Act . [xlvi] Further exceptions to the principle of openness are found in these and other statutes. Yet the Criminal Code and criminal law legislation do not completely oust the common law. To the extent statute law is silent, the judiciary retains a discretion at common law to consider and determine limits on the open court principle. [xlvii]

Exceptions to the principle of open court are prima facie vulnerable under the Charter of Rights and Freedoms [xlviii] . Given that such exceptions from principle had been accepted in the past, it was difficult to predict what difference the Charter would make. From one perspective, the status quo represented a fair balance between the rule and its exceptions. From another, it appeared that the Charter had re-calibrated that balance in favour of expressive freedom, and had the potential, therefore, to defeat existing limits on openness. In this regard it should also be noted that Canada's system of constitutional rights permits exceptions or limits which are considered "reasonable" from the perspective of a "free and democratic society". [xlix]

Today, more than twenty years later, the Supreme Court of Canada has had the opportunity to consider whether and in what ways the open court principle has been altered by the Charter . This Chapter highlights four of the Court's decisions on this issue: Canadian Newspapers Co. v. Canada (A.G.) ; [l] Edmonton Journal v. Alberta (A.G.) ; [li] Dagenais v. Canadian Broadcasting Corp. ; [lii] and Canadian Broadcasting Corp. v. New Brunswick (A.G.) (Re: R. v. Carson) . [liii] While three affect privacy concerns, a fourth - which is Dagenais - discusses the accused's right to a fair trial; meanwhile, three of the four consider the permissibility of a publication ban and a fourth, C.B.C. (Re: R. v. Carson) invalidates an order excluding the public from a court room. Once again, three are set in the criminal justice system and a fourth, Edmonton Journal , arises in a civil context. Finally, Canadian Newspapers and C.B.C. (Re: R. v. Carson) place open court in conflict with the interests of a complainant in sexual assault proceedings. First, it is worthwhile noting, in a general way, the pre- Charter status of open court and privacy.

The open court principle at common law

Until recently, and with the exception of young offender legislation, the statute law did not protect the privacy of crime victims. Nor did the common law, as the two key pre- Charter decisions reveal.

Scott v. Scott was a precedent-setting decision of the House of Lords, which held that open court does not defer to the privacy concerns of individuals who are participants in judicial proceedings. [liv] There, the issue arose, in a civil context, from an annulment hearing which was held in camera . After the court granted the petitioner an order annulling her marriage, on grounds of her spouse's impotence, she obtained transcripts of the hearing and circulated them to his father, his sister, and a third party. Thereafter, he sought an order that she be held in contempt of court for publicizing information that had been revealed in a closed hearing. The annulment proceedings raised inherently private matters at a time when sensitive problems, like male impotence, were not widely discussed. Even so, the House of Lords quickly rejected the suggestion that litigants should be spared the humiliation, pain or embarrassment of having private matters publicly disclosed.

As Earl Loreburn explained, "[t]he inveterate rule is that justice shall be administered in open court"; [lv] the traditional law, "that English justice must be administered openly in the face of all men", he described as "an almost priceless inheritance." [lvi] For his part, Lord Atkinson acknowledged that the hearing of a case in public may be "painful, humiliating, or deterrent both to parties and witnesses", and that in many cases, especially those of a criminal nature, "the details may be so indecent as to tend to injure public morals". [lvii] He concluded, nonetheless, that "all this is tolerated and endured", because a public trial is "the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect". [lviii]

Lord Shaw added to the rhetoric of openness, in passages which have been cited with frequency over the years. In doing so, he invoked and relied on the well-known words of Jeremy Bentham, among others. As Lord Shaw declared:

It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice." "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." "The security of securities is publicity." But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise." [lix]

Leaving aside the criminal process, which is subject to the requirement of a fair trial, the House of Lords could only identify three exceptions to the Earl of Loreburn's "inveterate rule": litigation affecting wards, lunacy proceedings, and disputes over trade secrets. Specifically, Lord Shaw rejected the suggestion that openness should be diluted to preserve access to justice. After inquiring whether the fear of giving evidence in public would deter witnesses of delicate feeling from giving testimony, and provide a sound reason for administering justice in such cases behind closed doors, he replied that "this ground is very dangerous ground". [lx] He agreed that the reluctance to intrude one's private affairs upon public notice induces many citizens to forgo their just claims, and acknowledged that many such cases might have been brought before tribunals which met in secret. Yet he concluded that "the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keep us secure…" [lxi] On its face an uneventful matrimonial case, Scott v. Scott provided an exegesis on the open court principle.

Some years before Scott v. Scott , Duff J., of Canada's Supreme Court, had written that "[t]he general advantage to the country in having [] proceedings open more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings." [lxii] And in the wake of Scott v. Scott , Lord Blaneburgh confirmed in McPherson v. McPherson , which was likewise a matrimonial case, that publicity is the "authentic hall-mark of judicial as distinct from administrative procedure." [lxiii] If openness prevailed over privacy in a hearing of private interest to the spouses in a failed marriage, it was difficult to imagine how privacy could prevail in a criminal case of the highest public interest.

Many years later, the Supreme Court of Canada addressed the clash between the private and public in Nova Scotia v. MacIntyre . [lxiv] Decided in 1982, the year of the Charter 's arrival, MacIntyre fell for resolution under common law. Though not a Charter decision, Dickson J.'s opinion nonetheless anticipated the competing interests which would arise under a regime of constitutional rights. There, the contest was between the ex parte and in camera status of a search warrant hearing, and the public's access to information about the investigative process. MacIntyre was a journalist who raised the question whether search warrants are documents which he was entitled to examine, as a member of the public.

Mr. Justice Dickson, who wrote the Court's majority opinion, accommodated them by forging a compromise between the interests at stake. Thus he denied the journalist access to the warrants at the time of their issue, but held that the documents became public upon being executed. When a warrant is issued, protecting a potentially innocent subject and safeguarding an investigative process which could be compromised by disclosure are the priorities. Once an investigation is undertaken, however, he concluded that the public was entitled to know the details, in the interests of accountability. Through that approach, Dickson J. protected the search warrant process without sacrificing public access to information about the system.

His discussion of the underlying values in MacIntyre also provided guidance for the future. Citing Bentham, he endorsed a "strong public policy in favour of 'openness' in respect of judicial acts". [lxv] On the question of warrants, Dickson J. held that "[t]he concern for accountability is not diminished by the fact that the search warrants might be issued by a justice in camera ". [lxvi] To the contrary, he went on, "this fact increases the policy argument in favour of accessibility", because "[i]nitial secrecy surrounding the issuance of warrants may lead to abuse, and publicity is a strong deterrent to malversation". [lxvii] Though he spoke in favour of "maximum accountability and accessibility", he found that those values could not be pursued at the expense of harming the innocent or of impairing the efficiency of the search warrant" as a weapon in law enforcement. [lxviii]

Mr. Justice Dickson's analysis did not ignore privacy concerns. After recognizing that such interests are unavoidably compromised by court proceedings, he declared that "[i]t is now well established, however, that covertness is the exception and openness the rule". [lxix] He noted that the public's confidence in the integrity of the court system and its understanding of the administration of justice are fostered by a rule in favour of openness. When pitted against the very integrity of the justice system, the privacy concerns of individuals do not weigh heavily in the scales. Accordingly, Dickson J. stated that the "sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings". [lxx] At the same time, though, he introduced a qualification which would later be cited to support a right of victim privacy under the Charter . Significantly, he announced that public accessibility could be curtailed to protect "social values of superordinate importance". [lxxi] In the circumstances, he left the task of determining which social values are of that magnitude to future judicial consideration.

To summarize, MacIntyre is not a Charter decision and has little to say directly on the question of victim privacy. In the circumstances of a journalist seeking information about search warrants, Dickson J. was concerned about individuals who might be publicly exposed to suspicion in the course of an investigation but vindicated, in at least some cases, upon its conclusion. Yet his conception of the openness rule and its exceptions would have broader applications. By combining the principle that "covertness is the exception and openness the rule" with the prospect of exceptions to protect "social values of superordinate importance", he introduced a methodology which was flexible enough to accommodate competing values in a range of settings and circumstances.