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 (cont'd)

Dagenais v. C.B.C.

Dagenais v. C.B.C. is also a landmark, not only for s.2(b) and the open court principle, but for the rights of third parties in the criminal process too. [cxv] There, conflict arose between the fair trial rights of priests accused of sexual offences, and the C.B.C.'s right, under s.2(b), to broadcast a controversial docudrama on that subject. Four members of a religious order, who were accused of physical and sexual abuse in Catholic training schools, obtained a publication ban which prevented the C.B.C. from broadcasting The Boys of St. Vincent . Speaking through Chief Justice Lamer, the Supreme Court found that the order was unconstitutional; the evidence did not disclose any threat to fair trial rights which could only be averted by banning the docudrama.

Among the numerous Code provisions which permit publication bans and closed proceedings, there is none which addresses the threat to fairness that publicity can pose during the trial itself. In default of a statutory rule, the issue reverted to the common law. As noted above, common law rules which apply in criminal proceedings generally must comply with the Charter . Under those rules, publication bans were traditionally granted to prevent a real and substantial risk that publicity might interfere with the right to a fair trial. [cxvi] Although the common law standard accorded freedom of expression some deference, the Chief Justice questioned whether the rule provided " sufficient protection" for s.2(b)'s guarantee of expressive freedom. [cxvii] In his view, a pre- Charter rule that favoured fair trial over free expression was inconsistent with the principles of the Charter . [cxviii] Accordingly, Lamer C.J. concluded that it would be "inappropriate" to "continue to apply a common law rule that automatically favoured the rights protected by s.11(d) over those protected by s.2(b)." [cxix]

He indicated that the power to grant a publication ban may be discretionary, but its exercise "cannot be open-ended" and must observe "the boundaries set by the principles of the Charter." [cxx] To direct the exercise of discretion Chief Justice Lamer constitutionalized the common law rule. In doing so, he modified the Oakes test and proposed a standard which would limit the availability of a ban to circumstances in which:

The Dagenais framework has since served as a model for determining the reasonableness of other restrictions on open court. [cxxii] On the central question of fair trial versus freedom of the press, Dagenais represented an important vindication of openness. Though it failed to discuss and reinforce the underlying values of open court, the majority opinion established a concrete standard which rejected the assumption that virtually any risk to fair trial was sufficient to warrant restrictions on publicity.

It is also significant, in terms of this study, that Dagenais advanced the rights of crime victims in two ways. One, which is procedural, altered the status of third parties in criminal proceedings. In an adversarial contest between the state and the accused, third parties, such as victims, witnesses and the C.B.C., had little or no status. Not surprisingly, the Criminal Code did not grant such parties a statutory right of appeal from orders affecting their rights under the Charter . In Dagenais , this meant that unless the Supreme Court addressed its claim, the C.B.C. would forfeit its rights under s.2(b) of the Charter . To avoid that prospect, Chief Justice Lamer

found that the Supreme Court had jurisdiction, under its own statutory powers, to hear C.B.C.'s appeal. [cxxiii] As this avenue of appeal is not exclusive to the press, Dagenais effectively granted third parties unprecedented access to justice at the Supreme Court of Canada.

Second, Dagenais introduced a principle of Charter interpretation which inadvertently provided the impetus for the recognition of victim privacy under s.7 of the Charter . Discussing the competing interests at stake, the Chief Justice observed in Dagenais that the Charter draws no distinction between ss.2(b), which guarantees expressive and press freedom, and 11(d), which guarantees a fair trial. This led him to conclude that it was inappropriate for the common law to privilege one constitutional right at the expense of another, when the two have "equal status". [cxxiv] More generally, Lamer C.J. stated that "[a] hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when interpreting the common law". [cxxv] In cases of conflict between two rights, he indicated, Charter principles require "a balance to be achieved that fully respects the importance of both sets of rights". [cxxvi] If it was unclear how conflicting rights could both be fully respected, the key point is that Dagenais endorsed a non-hierarchical approach to Charter rights. How Dagenais contributed to the evolution of victim privacy through its rejection of a hierarchy of values is traced, in detail, in Chapter Three.

C.B.C. v. New Brunswick (Re: R. v. Carson) [cxxvii]

C.B.C. v. New Brunswick (Re: R. v. Carson) combined Edmonton Journal 's strong endorsement of openness values with a doctrinal standard that built on the methodology of Dagenais . In doing so, the Court emphasized the importance of the newsgathering function and its relationship to an informed public and democratic values. Unlike previous cases, C.B.C. (Re: R. v. Carson) raised the question of access to the courtroom. Under s.486(1) of the Criminal Code , which permits proceedings to be closed to protect the proper administration of justice, the trial judge had excluded the public from a portion of the sentence hearing which disclosed the acts of sexual assault and interference the accused had committed against two young females. Though LaForest J., for the majority, found the order unconstitutional in the circumstances, he upheld s.486(1). In doing so, he accepted that privacy is a valid exception to the rule in favour of openness.

Section 486(1) declares that proceedings shall be held in open court, except when the judge concludes 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 court room for all or part of the proceedings." [cxxviii] Rather than invalidate the provision, LaForest J. stated that in applying its exclusionary criteria, a court must exercise its discretion "in conformity with the Charter." [cxxix] In his view, s.486(1) armed the judiciary with a useful and flexible interpretive tool to preserve the openness principle, subject to whatever exceptions or limits the proper of administration of justice might require. The fact that the discretion must be exercised within constitutional parameters would ensure that the terms of a particular exclusionary order would accomplish what was necessary to achieve s.486(1)'s goals, and no more. When an exercise of discretion did not conform with the Charter , it would be appropriate for the Court to quash the order.

To provide guidance in determining the validity of an exclusionary order, LaForest J. drew on the Dagenais standard. Stating that the "same directives" are equally useful in determining when a court room may be closed under s.486(1), he held that an exclusion order can only be issued once the following steps have been taken:

In addition, he indicated that the burden of displacing the rule of openness rests on the party making the application, and stressed, repeatedly, the need for a sufficient evidentiary basis for the order. [cxxxi]

In the result, the trial judge's order was inconsistent with s.2(b) of the Charter , not only because embarrassment alone is not a sufficient reason to protect witnesses from a public presence in the courtroom but also, because there was no evidence that the two victims would suffer "undue hardship" were the public permitted to attend a twenty-minute segment of the hearing on sentence. The victim impact statements did not indicate any basis for such hardship and nor did they disclose the circumstances of the offences. Most sexual offences involve evidence that is "very delicate", La Forest J. observed, and there was nothing to indicate that this case should be "elevated" above other sexual assaults. [cxxxii] The mere fact that the victims were young females was not sufficient in itself, and there were other effective means to protect them. [cxxxiii] Excluding the public was unnecessary because the victims' identities were protected by a non-publication order, they were not witnesses at the hearing, and there was no evidence that their privacy required more protection. [cxxxiv]

Though reluctant to criticize, LaForest J. was not impressed that the trial judge made the exclusionary order without first confirming that all the facts had been placed before the court. [cxxxv] He agreed that the criminal justice system must be "ever vigilant in protecting victims of sexual assault from further victimization", but cautioned that the importance of a sufficient factual foundation for s.486(1)'s exercise could not be overstated. [cxxxvi] In this instance, the trial judge's reasons for excluding were no better than "scant". [cxxxvii]

The Court's concern with a factual foundation and sufficient evidentiary basis arise from its perception of the s.2(b) values at stake. In that regard, C.B.C. (Re: R. v. Carson) is noteworthy for its insights on and endorsement of the open court principle. First, LaForest J. recognized that access to the courts is "integrally linked to the concept of representative democracy and the corresponding importance of public scrutiny of the criminal courts." [cxxxviii] In addition, he acknowledged that through the gathering and dissemination of information, the media plays an "integral role" in informing the public about the courts. As he explained, "the democratic function of public criticism of the courts" would not be possible without a public informed by the press, and the press could not discharge its responsibility to the public without access to the courts. [cxxxix] In his own words, "[d]ebate in the public domain is predicated on an informed public, which is in turn reliant on a free and vigorous press." [cxl] Though the Court upheld s.486(1), including its discretion to exclude the public from the court room, La Forest J. regarded openness, access to information, and the newsgathering function as essential aspects of Canadian democracy.

At the same time, LaForest J. had dissented earlier in Edmonton Journal , and was sympathetic to the protection of privacy. Though openness prevailed in the circumstances of C.B.C. (Re: R. v. Carson) , he did not ignore the privacy concerns of crime victims. Noting that earlier case law had established a strong presumption in favour of open courts, he added that the importance of privacy "has only recently been recognized by Canadian courts." [cxli] Citing MacIntyre , Edmonton Journal , and R. v. O'Connor , [cxlii] LaForest J. stated that "he right to privacy is beginning to be seen as more significant." [cxliii] And though openness "appears inherent to the nature of a criminal trial," [cxliv] he added that "the court's power to regulate the publicity of its own proceedings serves … to protect privacy interests, especially those of witnesses and victims." [cxlv] His majority opinion concluded that excluding the public under s.486(1) is permissible to protect the innocent and safeguard privacy interests, and "thereby provide a remedy to the under reporting of sexual offences." [cxlvi]

C.B.C. (Re: R. v. Carson) gave the principle of open court strong vindication under the Charter . At the same time, LaForest J. accepted that privacy interests could justify an exclusion order, providing that a sufficient factual foundation was established. Though the public should not have been excluded in the circumstances of that sentence hearing, exclusion orders are constitutionally available under C.B.C. (Re: R. v. Carson) when supported by a "sufficient evidentiary basis". Despite the common law's reluctance in this regard, the Court showed its willingness, under the Charter , to recognize privacy as a valid exception to the open court principle.


Prior to the Charter , open court was a principle that was highly prized but subject to exceptions nonetheless. Though the privacy of participants in the justice system was not an exception the common law recognized, the legislatures were free to modify that position and protect privacy by statutory measures. With the Charter 's arrival the relationship between the principle and its exceptions remained constant in some ways, and was altered in others.

Open court has been given especially strong recognition in the s.2(b) jurisprudence. Traditionally, the principle has been linked to the fairness of proceedings, as well as to the legitimacy of criminal justice and the public's confidence in the system. What the Charter has added are a recognition of the link between open court and democratic accountability, and the distinctive role the press plays in providing the public the information it requires to scrutinize and debate the operations of the justice system. These values received strong endorsement under the Charter in Edmonton Journal and C.B.C. (Re: R. v. Carson) .

As to results, the open court claims succeeded in three of the four decisions reviewed in this Chapter, and others could be added to the list. [cxlvii] In that regard, it is important to note that the evidentiary threshold for a limit or an exception to the principle has changed dramatically. The common law treated open court and fair trial as important values, but assumed that open court should yield to fair trial whenever that value might be threatened. Statutory provisions created blanket or mandatory exceptions, or granted judges almost unfettered discretion to place limits on access or publicity. Under the doctrinal framework introduced in Dagenais , and developed in the subsequent case law, that would change. Limits on the principle remain permissible, but must now satisfy particular and more onerous requirements under the Charter. Dagenais , C.B.C. (Re: R. v. Carson) , and the more recent Mentuck/O.N.E. cases demonstrate that it has become difficult to justify limits on the open court principle. [cxlviii] Looking back at Canadian Newspapers today, one wonders whether the result would have been the same, had the case been decided under the standards established by the subsequent jurisprudence.

While enhancing the status of open court, the Charter jurisprudence also granted privacy concerns important protection. As seen above, Canadian Newspapers employed a law enforcement rationale under s.1 of the Charter to protect the identity of sexual assault complainants. Subsequently, however, and though it did not prevail, the privacy interest was considered and weighed by the judges in the majority in Edmonton Journal , and was the deciding factor for those who dissented. Finally, C.B.C. (Re: R. v. Carson) discussed privacy in some detail and treated it as a reasonable limit on open court which failed because it was not established, as a matter of evidence, in the circumstances of that case. Without serving as the determining factor or changing the result in any of these cases, privacy nonetheless travelled a considerable distance from Scott and MacIntyre , and in a relatively short time, under the Charter.