Victim Privacy and the Open Court Principle

Chapter Two: The open court principle and the Charter (cont'd)

The open court, principles, and the Charter

With the enactment of the Charter of Rights and Freedoms in 1982, restrictions on openness were challenged under s.2(b), which guarantees freedom of expression and of the media. [lxxii] Publication bans directly infringe the right to communicate information that is disclosed in the course of criminal proceedings. Meanwhile, orders which exclude the public from courtrooms deny access to information about the justice system and, in the case of the press, interfere in the newsgathering function.

At the least, the Charter has changed the way open court issues are analyzed. Before turning to the decisions, it may be helpful to review some key points of Charter analysis. Whether and to whom the Charter applies is a central issue that need only be noted here. According to s.32, the Charter applies to the federal, provincial, and territorial governments; as most of the issues in this study arise under the Criminal Code and other criminal law statutes, the Charter applies without argument. [lxxiii] Even so, it should be noted that although the Charter does not apply per se to the common law, the rules of criminal law and process which remain grounded in the common law must comply with the Charter .

In any discussion of open court and privacy, the key Charter provisions are ss. 2(b), 8, 7 and 1. As noted above, s. 2(b)'s guarantee of expressive and press freedom is the source of challenges to restrictions on open court. By comparison and, in the absence of an explicit textual guarantee, the Charter 's protection of privacy is less straightforward. Section 8, which guarantees individuals the right to be secure against unreasonable search and seizure, is related to privacy but is concerned, directly, with the rights of the accused in the investigative process. [lxxiv] As Chapter Three explains, the Supreme Court drew on s.8 to incorporate protection for privacy into s.7 of the Charter , which prohibits the state from denying an individual's life, liberty, or security of the person in any way that violates the principles of fundamental justice. [lxxv] Section 7, in combination with s.15's guarantee of equality, provided the basis for the Supreme Court's protection of victim privacy in sexual assault proceedings. As the discussion in this Chapter shows, the privacy rights of complainants played a less significant role in the open court cases decided under s.2(b) of the Charter.

Of central importance to the Charter is s.1, which allows the government to "save" legislation which violates a constitutional guarantee, by demonstrating that the infringement is reasonable by reference to democratic values. It is axiomatic that the Charter does not guarantee rights absolutely, but sets up an equation; on one side of the equation are the rights and freedoms that are guaranteed and, on the other, is s.1 and its concept of reasonable limits. Specifically, s.1 states that the Charter 's rights are subject only to "such reasonable limits as can be demonstrably justified in a free and democratic society". The equation achieves balance by weighing the rights and freedoms in question against the limits placed on them by government. In simple terms, a limit is justifiable under s.1 when the government establishes that it is reasonable to infringe an individual's constitutional rights. The result there is that democratic limits prevail over individual rights. If the government cannot demonstrate that its limit is justifiable, the right will prevail and the violation will be declared unconstitutional.

The Supreme Court encased the question of reasonable limits under s.1 in a doctrinal framework which was introduced in R. v. Oakes . [lxxvi] The Oakes test proposed a complex and structured series of requirements for the government to meet in satisfying its burden that a limit on Charter rights was demonstrably justified. Though it has generated variations in application over the years, the standard's fundamentals have remained constant. The test is cumulative, and if the government's measure fails any part, the infringement is unconstitutional. The first part of Oakes seeks evidence of a government objective that is pressing and substantial enough to warrant the infringement of a constitutional right.

Once that hurdle has been cleared, the second part, which is divided into three elements that are known collectively as the proportionality test, must be applied. The object of proportionality analysis is to ensure that the statutory provision is drafted with sufficient precision to avoid the needless or gratuitous violation of rights. In summary, the Oakes proportionality test demands that the limit be carefully drawn, be no broader than necessary, and maintain proportionality between the measure's salutary benefits and its deleterious consequences. At the time Oakes was decided, the Supreme Court intended to set up a strict and rigorous standard of justification under s.1. Applied literally, and especially under the terms of

proportionality, the test proved rigid and inflexible. As a result, its components have been adjusted over time to fit the circumstances of particular facts and issues.

This brief overview of Charter analysis serves as an introduction to the Supreme Court's four key decisions on the open court principle. The discussion below presents them chronologically, in order of decision.

Canadian Newspapers Co. v. Canada (AG) [lxxvii]

The Supreme Court of Canada addressed the principle of open court for the first time under the Charter in Canadian Newspapers Co. v. Canada (A.G.) . The issue there was whether s.442(3) of the Criminal Code (now s.486(3)) violated s.2(b) of the Charter . That provision allowed a trial judge to impose a ban on the publication of the victim's identity, as well as on information which might identify the victim in sexual assault proceedings; in addition, s.442(3) made a publication ban mandatory at the request either of the complainant or the prosecutor. [lxxviii] In the Ontario Court of Appeal, Chief Justice Howland held under s.1 of the Charter that s.442(3)'s imperative element was unnecessary. The government's interest in protecting the complainant's identity could be served, he thought, by making a ban available on an as needed, case-by-case basis. [lxxix]

There was no dispute that s.442(3) violated s.2(b) of the Charter . The only question was whether the violation was reasonable under s.1. In answering that question, Howland C.J.O. acknowledged the connection between freedom of the press and the principle of open court, in these terms:

The freedom of the press to report what transpires in our courtrooms is one of the fundamental safeguards of our democratic society. Justice is not a cloistered virtue and judicial proceedings must be subjected to careful scrutiny in order to ensure that every person is given a fair trial… Openness of the courts is essential for the maintenance of public confidence in the administration of justice and to further a proper understanding of the judicial system… It gives the public an opportunity to see that justice is done. There is necessarily implicit in the concept of an open court the concept of publicity; the right of the media to report what they have heard in the courtroom so that the public can be informed about court proceedings, and public criticism, if necessary, engendered should any impropriety occur. [lxxx]

At the same time, he also recognized and endorsed the objective of s.442(3). Relying on MacIntyre , which permitted exceptions to openness when social values of superordinate importance were at stake, Howland C.J.O. came to this conclusion:

… it has been clearly established that the social value to be protected, namely, the bringing of those who commit such sexual offences to justice, is of superordinate importance and can merit a prohibition against publication of the victims' identity or of any information that could disclose it. It is a reasonable limitation on the freedom of the press. [lxxxi]

Section 442(3)'s social value was established through evidence from the co-ordinator of a Sexual Assault Crisis Centre, whose trial testimony was excerpted in the Court's reasons, as follows:

Q. All right, what questions do they ask you about whether to report it or not?
A. Victims are very hesitant. I think the bottom line is they don't want people to know what happened. They check us out to see if we are connected with the police or hospitals. They are concerned about privacy, because rape to them, or sexual assault, is embarrassing. They feel ashamed and they are very hesitant to report -
Q. - hesitant to report, all right. What apparent degree of importance is attached by them to the issue of publicity of their identity?
A. They are concerned that if they do report, who is it going to be reported to. Will it be printed in the paper? They are very hesitant to come to court because that is part and parcel of their concern that other people will find out that [they] have been rape victims and there are a number of factors that influence that. They don't feel they will be believed. They feel that they will be blamed for what happened and they are very frightened about going to court - very frightened about other people finding out in the papers and fearful of retribution by the accused …
Q. … where on the concerns raised with you would the concern over publicity rank, from the concerns they disclose to you?
A. From the information I obtain from them, I would say very high on their list of concerns, very high.
Q. In light of your experience … what effect do you feel it would have on the rate at which they report the offence to the authorities, should section 442(3) be struck down?
A. The rate of reporting would drop even lower than it is now … [lxxxii]

Despite that evidence the Ontario Court of Appeal concluded that s.442(3)'s valid interest in the prosecution of sexual assaults would be adequately served by the availability of a ban on victim identity, at the discretion of the judge. In doing so, the Court acknowledged its concern that in some instances the complainant might have made false allegations, or might have previously accused other persons without justification. In such cases, publishing her name might bring forth other witnesses to testify on behalf of the accused. [lxxxiii] Given that prospect, and the fact that the trial judge retained discretion on this issue in other countries, Howland C.J.O. found for the Court that the government failed to show the need for a mandatory prohibition. The Supreme Court of Canada disagreed with that conclusion and upheld the provision in its entirety.

The Court's decision was written by Lamer J., who would later become the Chief Justice of Canada. After noting the infringement of freedom of the press, he indicated that "the main issue before us is whether the impugned provision can be salvaged under s.1." [lxxxiv] In terms of s.442(3)'s objective, he found that the measure "purports to foster complaints by victims of sexual assault by protecting them from the trauma of widespread publication resulting in embarrassment and humiliation." [lxxxv] In such circumstances, Lamer J. did not hesitate to conclude that "[e]ncouraging victims to come forward and complain facilitates the prosecution and conviction of those guilty" and satisfies the requirement of a pressing and substantial government objective. [lxxxvi]

The second part of the s.1 analysis, which consists of the Oakes test's three part proportionality test, focussed on the question whether a mandatory ban was necessary when a discretionary ban would also protect the complainant's identity, with less intrusive consequences for freedom of the press. Lamer J. also rejected that argument, for the following reasons. As he noted, "fear of treatment by police or prosecutors, fear of trial procedures and fear of publicity or embarrassment " are the main reasons sexual assault is underreported. [lxxxvii] In the circumstances, a guarantee of anonymity could play a vital role in influencing a complainant's decision whether to report the offence: at the critical moment, the complainant may require a promise that her identity will not be disclosed. A discretionary ban, which might or might not subsequently be granted at trial, would be less intrusive of s.2(b), but more unpredictable from the complainant's perspective. Morever, he found that the limits imposed by s.442(3) on the media's rights were minimal. [lxxxviii]

The Supreme Court's decision in Canadian Newspapers was not a foregone conclusion. Reasons, which were framed in the language of law enforcement, protected victim anonymity. The Court may have emphasized that rationale because, as seen above, the judiciary had not previously been sympathetic to the privacy concerns of participants in the justice system. [lxxxix] By upholding s.442(3)'s mandatory ban, then, Canadian Newspapers to some extent represented a break with the past. Moreover, as the s. 2(b) jurisprudence evolved, it would become clear that blanket prohibitions on expressive freedom, such as the one at stake in Canadian Newspapers , are difficult to justify. [xc] Less intrusive means, such as discretionary bans, are normally more desirable because they enable courts to balance interests, rather than choose, absolutely, between them. Canadian Newspapers concluded that an automatic ban was necessary, essentially on the strength of one witness's testimony, [xci] and failed to consider the underlying rationales of openness, including the Ontario Court of Appeal's suggestion that publicity might encourage undiscovered witnesses to come forward. Though its reasoning, arguably, was flawed, the Supreme Court invoked a law enforcement rationale to uphold s.442(3) and thereby protect the privacy of complainants.

Edmonton Journal v. Alberta (AG) [xcii]

Not long after the decision in Canadian Newspapers , the Supreme Court issued a landmark in the s.2(b) jurisprudence. In Edmonton Journal v. Alberta (A.G.) , a majority of four judges concluded that a statutory provision banning the publication of certain information about matrimonial proceedings was unconstitutional. Citing a countervailing interest in privacy, three other members of the Court disagreed and would have upheld the provision. [xciii]

Writing in support of the majority result, Cory J. strongly advocated values of openness, accessibility, and accountability. Thus, he wrote that "a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions". [xciv] In his view, the vital importance of free and uninhibited speech could not be over-emphasized. Given that the Charter framed s.2(b) in "absolute terms", the rights enshrined in the guarantee could "only be restricted in the clearest of circumstances". [xcv] Mr. Justice Cory spoke of the connection between freedom of expression, democracy, and open courts. For instance, he emphasized that "the courts must be open to public scrutiny and to public criticism of their operation by the public". [xcvi] In one of the well known passages from his opinion, he stated that "freedom of expression is of fundamental importance to a democratic society", and continued that "[i]t is also essential to a democracy and crucial to the rule of law that the courts are seen to function openly." [xcvii] Turning to the press, Cory J. added that those who bring the news to the public "must be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny." [xcviii]

At the same time, Cory J. was not unsympathetic to the privacy of individuals. He noted that society has cherished and given protection to privacy, and indicated that the Court had on a number of occasions "underlined the importance of the privacy interest in Canadian law." [xcix] The problem, though, was that the courts must function openly and the public's need to know cannot be denied. He concluded that in contrast to the ban at issue in Canadian Newspapers , Alberta's restrictive ban on publication significantly reduced the openness of courts and was more sweeping than necessary to protect the privacy of witnesses and children. [c] For those reasons, it could not be justified under s.1.

Meanwhile, Wilson J. came to the same conclusion by a different route. In what she referred to as a contextual approach, she juxtaposed the two values at stake. Like Cory J., she strongly advocated the open court principle, and concluded that "there would have to be very powerful considerations in order to justify inroads into the open court process." [ci] Though Wilson J. gave some attention to the privacy interest, she characterized the concern at issue as being the "personal anguish and loss of dignity that may result from having embarrassing details of one's life printed in the newspapers." [cii] She turned to Scott v. Scott for "a stern reminder of the importance of not allowing one's compassion … to undermine a principle which is fundamentally sound in its application." [ciii] In her view, there was little in matrimonial disputes to warrant a special immunity from publicity in court proceedings.

She concluded that the two values - the right of the press to publish, and the right of litigants to the protection of their privacy in matrimonial disputes - could not both be fully respected. In the circumstances she found it unnecessary for the statute to ban the publication of information in all matrimonial cases, to protect the privacy of litigants in the small number of cases which might cause trauma or humiliation. [civ]

LaForest J.'s dissent would have upheld the statute's privacy provision. Prior to the Charter, there was no constitutional basis on which to challenge a publication ban which nonetheless was contrary to Scott 's open court principle. Nor, as noted above, does the Charter explicitly guarantee privacy rights. Despite the absence of a textual guarantee, La Forest J. stated that personal privacy has "been recognized by this court as having constitutional significance". [cv] Though the Court's protection of privacy was limited to s.8's concept of reasonable search and seizure, he suggested that privacy might also be an aspect of s.7's liberty or security of the person. "However that may be", he went on, "there can be no doubt that in this modern age, it ranks high in the hierarchy of values meriting protection in a free and democratic society". [cvi] Against the weight of Scott and MacPherson , both of which dealt with a closed hearing rather than a publication ban, La Forest J. voted to uphold the statutory provision. In doing so, he concluded that privacy prevailed because of the "very limited character of the restriction as compared with the serious deleterious effects on the important values sought to be protected by the legislation." [cvii]

Mr. Justice La Forest also cited Canadian Newspapers in support of his conclusion. A mandatory ban was acceptable to members of the Court in that setting, however, because victim anonymity served law enforcement objectives and not because privacy prevailed over the open court principle. By contrast, the statutory ban in Edmonton Journal could not invoke an objective apart from the protection of privacy. Though La Forest J. saw Canadian Newspapers and Edmonton Journal as analogous, the majority on that panel did not.

Unlike Canadian Newspapers , Edmonton Journal discussed and emphasized the open court principle and its relationship to s.2(b) of the Charter . Moreover, Edmonton Journal confronted the conflict between open court and privacy, which Canadian Newspapers did not mention. Finally, the Court recognized in Edmonton Journal that the challenge was one of balancing the two values. According to the majority, the statute's protection of privacy failed the requirement of proportionality that the infringement be no greater than necessary in the circumstances. Despite that conclusion, Edmonton Journal is significant because seven members of the Court accepted that privacy has constitutional implications. As well, and against the weight of a common law tradition that valued open court above privacy, three members of the Court treated the privacy of litigants as a justifiable limit on s.2(b)'s guarantee of expressive freedom.

The discussion of Edmonton Journal concludes by mentioning Vickery v. N.S.S.C. (Prothonotary) , in which a majority of the Court denied a television producer access to a videotape confession which had been submitted as evidence in a murder case. [cviii] The confession was inadmissible, the accused was acquitted, and in response to a request for a copy of the confession, the Court held that the defendant's privacy interests "as a person acquitted of a crime outweigh the public right of access to exhibits judicially determined to be inadmissible against him." [cix] Vickery was not decided under the Charter , and nor did it concern a publication ban, as was the case in Edmonton Journal .

It is worth noting, nonetheless, for Cory J.'s dissenting opinion, which was joined by Justices L'Heureux Dubé and McLachlin JJ. Though he expressed respect for the accused's right to privacy and weighed it in the balance, Mr. Justice Cory's adherence to the open court principle was passionate and unbending. Quoted below are a few of the passages which demonstrate that, for him, the principle was almost unconditional. Thus, he expressed the value of openness in these terms:

[C]ourts must, in every phase and facet of their processes , be open to all to ensure that so far as is humanly possible, justice is done and seen by all to be done. If court proceedings, and particularly the criminal process, are to be accepted they must be completely open so as to enable members f the public to assess both the procedure followed and the final result obtained. Without public acceptance, the criminal law is itself at risk . [cx]

After discussing American experience at some length, Cory J. stated that "[a]s a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings." [cxi]

Under the heading "some general policy considerations", Mr, Justice Cory declared that an open trial process demonstrates " to all , whether the family of the victim, the family of the accused, or the members of the community in general, that the entirecriminal process has been conducted fairly and that those accused of crimes have been dealt with justly." [cxii] And, though he emphasized the role of the media, as the public's representative in court proceedings, it is the value Cory J. attached to openness that is striking. On that he claimed the following:

There can be no confidence in the criminal law process unless the public is satisfied with all court proceedings from the beginning of the process to the end of the final appeal. Of the three levels of government, it is the courts above all which must operate openly . While what is done in secret is forever suspect, what is done openly, whether susceptible to praise or condemnation, is more likely to meet with acceptance. There cannot be reasonable comment or criticism unless all aspects of the proceedings are known to the public. [cxiii]

In the end he cautioned against a "priestly cult of the law whereby lawyers and judges exclusively determine" what can be seen and heard by members of the public; in his view, "anything that prevents light being shed" on the subject of a trial "can only lead to a dark suspicion of the process." [cxiv]

Mr. Justice Cory's comments on open court appeared in a dissenting opinion but are significant nonetheless. Through the combination of Edmonton Journal , the Vickery dissent, and the majority opinion in C.B.C. v. New Brunswick (Re: R. v. Carson) , a strong endorsement of the value of the open court principle emerged in the Supreme Court jurisprudence.

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