II. Introduction

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Open justice is a concept for the ages, a constant in the common law tradition and since 1982 a constitutional principle under the Canadian Charter of Rights and Freedoms.1 As classically stated, “[p]ublicity is the very soul of justice”, meaning that the integrity of justice depends on its administration in open court.2 Another way of putting it, in the words of Justice Dickson, is that “covertness [in the justice system] is the exception and openness the rule”.3 The Supreme Court of Canada constitutionalized those values under the Charter, stating that “[i]t is also essential to a democracy and crucial to the rule of law that the courts are seen to function openly”, and that the courts are “in fact, seen by all to operate openly in the penetrating light of public scrutiny.4 Meanwhile, the privacy rights of victims, witnesses and participants in the justice system lagged in status, but have accelerated in recent years and are now a principal concern of the law.5

To recapitulate, the first twenty years under the Chartersaw the introduction of a constitutional standard to determine limits on open court, a strong evidentiary threshold to define and constrain limits on the principle, and rigorous enforcement of openness in the jurisprudence. At the same time, the law of sexual assault was a battleground, as contests erupted between criminal defendants who invoked the Charter’s legal rights, and complainants who cited its protections of privacy and equality. These issues were often but not exclusively focused on evidentiary matters, and engaged questions about the scope and limits of openness. When an earlier version of this report, Victim Privacy and the Open Court Principle, was completed in 2003, the open court principle was constitutionally protected, and co-existed alongside statutory and doctrinal limits aimed at protecting the privacy rights of sexual offence complainants, as well as those of young offenders, victims, and witnesses.6

Fifteen years later, though the status quo has been maintained, the dynamics of open court have shifted. For instance, legislative initiatives have significantly enhanced protection for victims, witnesses and participants in criminal proceedings. These measures take the form, primarily, of amendments to s. 486 of the Criminal Code and enactment of the Canadian Victims Bill of Rights.7 These reforms were animated by access to justice and law enforcement objectives, namely, the insight that accommodating participants who are vulnerable advances accessible justice by encouraging the reporting of offences and participation of victims and witnesses in the criminal process. The panoply of testimonial aids that now form part of the Criminal Code unquestionably alter the calculus of open court and participant privacy.

In addition, the law cannot be isolated from technological change, and in fact, must respond to it. Another dynamic that is therefore complex, fluid, and perplexing concerns technology and its impact on the administration of justice. Internet and electronic technologies have blasted the world open, including the justice system; in doing so, these technologies give new meaning and attach fresh risks to the open justice principle. Issues of particular significance to questions of privacy include access to court records and documents in an online age, and their implications for civil and criminal litigants, the presence and use of technology, live and in the courtroom; and the role and efficacy of publication bans in an online world of seamless connecting and re-connecting.

Finally, the culture of sexual transgression has undergone and continues to face transformative change. While victim privacy remains an imperative of criminal justice, especially in specified settings such as sexual assault and youth justice, the wider landscape has experienced tectonic shifts in recent years. The social and political culture of sexual assault – and more broadly harassment short of criminal conduct – was dramatically affected by three watershed events.

First is the #BeenRapedNeverReported movement, and an entire public discourse that accompanied Jian Ghomeshi’s criminal trial and acquittal on sexual assault charges.8 Second, The Globe and Mail’s investigative report on sexual assault complaints dismissed by police as “unfounded” catalyzed police services across the country to change their practices, which led to an increase in reporting of these offences.9 Finally, the global #MeToo movement, which was grounded in its victims pushing back against sexual harassment, was a phenomenon that grew to incorporate many forms of sexual misconduct, including criminal behaviour.10 While not immediately focused on the issues of victim privacy at the centre of this update to the 2003 Report, each has played a monumental role in altering the broader discourse and culture of sexual transgression. For that reason, each invites reconsideration of the way victim privacy in this area should be conceptualized.

The foremost goal of this paper is to situate open justice and privacy today in the broader context of these currents of change. The discussion begins with an update to the 2003 Report that outlines developments in the jurisprudence and discusses amendments to the criminal law. From there, this paper examines the challenges to privacy protection in the world of open justice – second generation, with particular reference to online court records, the “electronic” courtroom, and how “publication” bans work in a post-technological world. Finally, it considers the three signal events mentioned above, and their impact on sexual assault offences and the experiences of victims. In short, the process of de-stigmatizing these offences has led to increased reporting and the reform of police practices in responding to sexual assault complaints. In addition, many victims and witnesses now choose not to remain anonymous in public discussions or criminal proceedings; increasingly, they self identify and stand in solidarity with others.

To summarize, the context in which long-held assumptions of open justice have operated has shifted, with attention to access to justice for victims, witnesses, and participants in criminal justice, with the onset of radical technological change, and with spontaneous movements to challenge and resist conventional views of sexual transgression. Whether the conventional conception of open justice remains robust and is sustainable, in the face of change, must now be confronted. What follows does not promise answers, but can set the parameters of discussion and frame the issues that should or must be considered.

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