III. The Supreme Court and the Open Court Principle: The Second Generation

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In the Charter’s first twenty years, the open court principle jurisprudence was dynamic and formative of s. 2(b)’s guarantee of expressive freedom, establishing constitutional protection and, under the agency of the Dagenais/Mentuck test, a strong evidentiary threshold for any derogations from principle.11 The Supreme Court of Canada’s foundational doctrine on open court doctrine served, in the main, to monitor publication bans and limits on access to proceedings. In doing so, the Court’s methodology balanced principle against competing interests in the administration of justice, such as the right to a fair trial and the privacy of victims and other participants in justice processes. By 2005, Fish J. would speak of an “unbroken line of authority” that “inextricably incorporated” the open court rule into s. 2(b)’s core values. A few years later, Abella J. described the precepts of a free press and open court as “tenaciously embedded” in the jurisprudence.12

In the period since the 2003 Report, the open court principle stayed its course even as the Court’s priorities began to shift.13 Since 2004 and 2005, when it last received strong vindication, the principle’s progress in the jurisprudence has been more checkered.14 In eight decisions, the Court upheld the principle twice, reached a mixed or equivocal result two other times, and rejected the claim on four occasions.15 The Court divided in four of the nine decisions and the privacy interests of young persons in the justice system were at the fore in two cases.16

Some themes emerge in what is a relatively small sample of decisions. First, the years when the principle was steadily rising under the Charterhave been left behind, with the Court taking no steps in recent years to deepen or extend its concept of openness in judicial proceedings. Second, the Dagenais/Mentuck test and the vigilant protection of principle it required also lost vitality in this period. Third, in upholding limits on openness, the Court turned more explicitly to the vocabulary of vulnerability and invoked a concern for the serenity of hearings. Finally, it is curious that the challenges for open court arising from technological change have not materialized in Supreme Court decision making. In this regard, the jurisprudence has lagged behind significant and even transformative changes in perceptions of victim and witness privacy and open justice in the 2.0 world. For that reason, the Court’s decisions serve more as backdrop to developments in statute law, technology and the courtroom, and to the broader culture of sexual transgression.

Two decisions in 2004 and 2005 confirmed and followed the pattern of the foundational jurisprudence. Decisions Re: Vancouver Sun and Toronto Star Newspapers Ltd. v. Ontario strongly endorsed the open court principle, emphasizing again that sufficient evidence is required to displace the presumption of openness. Vancouver Sun’s decision to enforce open proceedings in the context of an investigative hearing under anti-terrorism provisions may well represent a highwater mark for open court.

The issue there concerned an investigative hearing that was conducted in secret under Parliament’s post-9/11 anti-terrorism provisions.17 Describing the judicial investigative hearing under s.83.28 of the Criminal Code as a “procedure with no comparable history in Canadian law”, Justices Iacobucci and Arbour held that open court is a “fundamental characteristic” of judicial proceedings and should not be displaced in favour of an in camera process.18 Firm that the presumption of openness can only be rebutted after considering the competing interests at every stage of the process, the joint majority opinion found that the level of secrecy imposed from the outset was unnecessary, and held that the Court should proceed with “as little departure as possible from the basic tenets of judicial proceedings”.19 In reaching that conclusion, Justices Iacobucci and Arbour showed little sympathy for open court’s impact on investigative hearings. As Bastarache J. pointed out in dissent, it would be difficult at the outset of an information-gathering process to provide a “convincing evidentiary basis” for closing the proceedings.20 After declaring that secret hearings are the antithesis of judicial process, the Court set a standard for openness that made it challenging, if not impossible, for investigative hearings to be undertaken.

Although the outcome in Toronto Star Newspaper v. Ontario was relatively clear, Fish J.’s majority opinion gave the open court principle explicit and unstinting vindication. In this instance, an ex parte application to seal search warrants, ostensibly to protect a confidential informant, was at issue.21 Fish J. was clear, in finding against the orders, that public access to proceedings – including investigative materials – could only be barred when disclosure would “subvert the ends of justice or unduly impair its proper administration”.22The Crown’s generalized assertion that publicity could compromise investigative efficacy favoured secrecy rather than openness and that, in Fish J.’s view, was a “plainly unacceptable result”.23 In strongest terms he emphasized, to the contrary, that information subject to a presumption of openness can only be sealed pursuant to the terms of the Dagenais/Mentuck test. In other words, such orders cannot be granted in the absence of “particularized grounds” explaining how publicity would imperil an investigation.24

Toronto Star (2005) stressed the presumption and value of openness, and confirmed several times that Dagenais/Mentuck applies to all discretionary judicial orders that limit openness, freedom of the expression, or freedom of the press.25 In addition, Justice Fish stated, rather unconditionally, that any other argument would be “doomed to failure by more than two decades of unwavering decisions” – an “unbroken line of authority” in the Court – and would undermine the open court principle that is “inextricably incorporated into the core values” of s.2 (b).26 His reasons are derivative of and bear the hallmarks of the early jurisprudence. As such, this decision marks the end of that first generation of open court decision making. From that point on, the Court’s attachment to principle lessened, the Dagenais/Mentuck test was held in check, and limits on openness were upheld in decisions on informer privilege, publicity in bail hearings, and access to the administration of justice.27

The next two decisions, Named Person and Toronto Star (2010), went against openness in the context, respectively, of a confidential informant and bail proceedings. In both instances, members of the Court who were unwilling to depart from principle wrote dissenting opinions.

Openness arose in Named Person with an informer’s involvement in extradition proceedings. Though the trial judge sought a careful balance between the administration of justice’s need to protect the informer and the demands of openness, the Court’s response was clear and categorical. In particular, the Court stated in no uncertain terms that informer privilege places “a complete and total bar” on any disclosure of an informant’s identity.28 Justice Bastarache’s majority opinion struck a tone suggestive of a shift in direction, pronouncing that open courts are “undoubtedly” a vital part of the legal system, but cannot be allowed to “fundamentally compromise the criminal justice system”.29 He declared that the Dagenais/Mentuck test should not be widened beyond its “proper scope”, and did not apply because informer privilege is subject to the narrowest of exceptions – where innocence is at stake – and is not a matter of judicial discretion.30

It is instructive that LeBel J., who would also write separately to vindicate openness in R. v. N.S., dissented in part in Named Person.31 He objected to the unconditional approach of the majority opinion which, in his view, failed to give “due consideration to the constitutional status of the open court principle”.32 Justice LeBel reclaimed the open court tradition, providing a reminder that the Court had previously “acted with reserve and circumspection” in imposing limits, reviewing the underlying values of the principle and role of the press, and explaining why the public’s right to open court was more “directly affected” in the extradition proceedings at issue than in the classic scenario.33 In the circumstances, he urged the Court not to apply the informer privilege in a mechanistic or automatic way.34 In an 8-1 split, Justice LeBel was the only member of the Court to adopt a protective view of open court.

Named Person was followed by Toronto Star v. Canada (2010), upholding the Criminal Code’s publication ban at bail proceedings, which is mandatory at the accused’s request.35 Once again, the Court found that the Dagenais/Mentuck test did not apply because the ban was mandatory under s.517 of the Criminal Code. Otherwise, Deschamps J. concluded that the statutory provision was justifiable under Oakes;under minimal impairment, she rejected the lesser option of a discretionary ban because of the vulnerability of the accused at that stage of the criminal process. In her view, an offender’s vulnerability could be aggravated when publicity is an issue and a hearing is necessary to determine whether a ban should be ordered.36 Meanwhile, Abella J.’s sole dissent highlighted the link between public confidence in the justice system and timely access to relevant information.37 Given that a ban on bail hearings affected information when it was of highest concern and interest to the public, she found that the salutary effects of the ban were not proportional to harmful effects on the open court principle.38

Named Person and Toronto Star (2010) were followed by two Canadian Broadcasting Corporation (CBC) cases from Quebec (CBC #1; CBC #2), both of which directly engaged questions about the rights of the media to be present on the premises of courthouses and to use them for reporting, as well as to broadcast certain evidentiary material.39 CBC #1 challenged restrictions on the media’s freedom to use open spaces in courthouses for interviews, among other things, and a prohibition on the broadcast of any recording of a hearing.40 Notably, the hearing, including witnesses and argument, spanned an impressive 17 days in the Quebec Superior Court. On further appeal to the Supreme Court of Canada, the claim failed on both issues. Justice Deschamps rejected the media’s argument that Dagenais/Mentuck set a higher standard of justification and should apply to determine the permissibility of limits, holding instead that the test is “equivalent” to the Oakes test.41 She went on to find that the restrictions on media use of courthouse space were aimed at upholding the “fair administration of justice” and the serenity of hearings. In doing so, she noted specifically that a media presence caused stress for witnesses and their family, and referred as well to “the vulnerability of many of those involved”.42 Although restrictions are by definition less impairing, Deschamps J. found that minimal impairment was satisfied because the rules for access were not as restrictive as a complete ban.43 On the second issue, she upheld the broadcast ban of official court recordings to protect the integrity of the truth-seeking process and privacy of witnesses.44 What stands out in the decision, and especially against the backdrop of the earlier jurisprudence, is Deschamps J.’s negative characterization of the press, and the emphasis she placed on the stress to participants arising from a press presence at courthouses and in the courtrooms.45

Her reasons in CBC #2, the companion case, were equally unsympathetic to open justice. The issue there concerned the permissibility of a broadcast ban on a video recording that was an exhibit and was shown at trial.46 In this instance, Deschamps J. agreed that Dagenais/Mentuck applied, but found that the offender’s acquittal rendered the appeal moot. She nonetheless held that broadcasting his courtroom statement would have a “particularly dire” impact because of his “intellectual disability” and “particular vulnerability”.47 In reaching this conclusion, Deschamps J. did not consider it necessary to explain the evidentiary basis of that finding. In place of a robust application of Dagenais/Mentuck – as modelled in the earlier jurisprudence – CBC #2 simply stated its conclusion.48 Even the Court’s decision in Nova Scotia Supreme Court (Prothonotary) v. Vickery was more rigorous; though decided under the common law rather than the Charter, the Court’s opinions gave serious consideration to issues that were similar in nature.49

What stands out in CBC #1 and CBC #2 are Deschamps J.’s negative characterization of the press; her lack of rigour in applying Dagenais/Mentuck; her emphasis on the serenity of hearings, vulnerability of participants and other rationales for limiting open justice; and the lack of any dissenting or concurring reasons in either case. In the circumstances, it is difficult to avoid the conclusion that by 2011, the open court principle was no longer the priority it once was, and that the balance had shifted toward limits on the principle.

The Court also had the opportunity to consider the participation of young persons in the justice system. Both times, Abella J.’s majority opinion confirmed and reinforced the need to protect minors who are involved in legal proceedings.50 Although not per se an open justice case, D.B. held that provisions of the Youth Criminal Justice Act (YCJA) that placed onuses on young offenders in relation to presumptive adult sentences and publication bans violated s.7’s principles of fundamental justice. Justice Abella found that the diminished moral blameworthiness of young offenders is a principle of fundamental justice, and that YCJA provisions placing an onus on them to establish the appropriateness of a youth sentence were unconstitutional.51 The publication ban was a collateral issue arising through the operation of these provisions; though open court was not at issue, the Court vindicated the underlying privacy values embedded in the YCJA and invalidated the onus provision under s.7.52

A.B. v. Bragg Communications was not decided under the YCJA, but engaged the open justice principle when a minor sought an order in civil proceedings requiring an internet provider to disclose the identity of her online bully (or bullies).53 In pursuing her claim, A.B. applied for anonymity to protect her identity, and a publication ban on the content of a fake Facebook profile. After prioritizing A.B.’s request for anonymity, Abella J. found that a publication ban – which would have been more intrusive of open court – was not necessary.54 Referencing sources, including the MacKay Report, she highlighted the inherent vulnerability of children and the distinctive harm of revictimization that can accompany publication of a victim’s identity.55 As she explained, not protecting privacy, in the face of “the relentlessly intrusive humiliation of sexualized online bullying”, could deter victims such as A.B. from seeking therapeutic assistance.56 In addition, and citing literature on point, Abella J. noted that publicizing the identities of young victims could also have implications for access to justice and law enforcement when transgressions are not reported.57 It is notable that here, as well, the more rigorous requirements of Dagenais/Mentuck were relaxed; in a departure from authority, Abella J. held that evidence was not required because harm was an inherent and undisputed feature of A.B.’s age. Finally, in concluding that anonymity was essential, Abella J. stated that the “relative unimportance” of a sexual assault victim’s identity was a complete answer to the open court claim in A.B.’s case.58

There were no further decisions on “openness” until 2018 and a decision that touched on the interface between technology and Criminal Code publication bans. R. v. CBC (2018) asked whether the Corporation could be cited for criminal contempt for not removing articles posted before a publication ban issued under s. 486(4)(2.2.) of the Criminal Code.59 Though the CBC was clearly entitled to initially post information identifying a 14-year-old murder victim, the question was whether the media Corporation was in contempt for not removing the posts after the ban was issued. The answer turned on whether the words “published” and “transmitted in any way” under s.486 include pre-ban articles that remain online, passively, or are limited in application to materials that that are posted after a publication ban is ordered.60

More narrowly, the question for the Court was whether the Crown was entitled to a mandatory interlocutory injunction requiring the CBC to remove articles that violated the ban. In the absence of “a strong prima facie case”, the Court found against the Crown. Rather than consider what “published” under s. 486 means, the Court found, in the face of alternative interpretations, that the Crown had not met the exacting standard for an order of this kind.61 An issue that did not crystallize sufficiently for the Court to resolve is vital to the scope and efficacy of publication bans. As discussed below, the interpretive question the Court chose not to address has now been answered by the Alberta Court of Appeal’s recent decision acquitting the CBC.62

Otherwise, and to complete the review, two further notes can be made. First, the Court denied leave to appeal in R. v. McClintic, leaving in place a partial publication ban on the sensational murder details of a young female victim.63 Second, its decision in R. v. N.S. is of interest; there, the Court proposed a test to determine whether and in what circumstances a niqab-wearing witness’s s.2(a) rights must yield to the s.7 and other legal rights of a criminal defendant.64 While Chief Justice McLachlin applied Dagenais/Mentuck to resolve the competing interests of religious freedom and an accused’s legal rights, Justice LeBel cited the open court principle to dismiss the s.2(a) claim. In his view, the request for witness accommodation under s.2(a) was patently inconsistent with the fundamental principles and values of criminal process, including and, namely, an open court process.65

To summarize, the open court jurisprudence since 2005 has for the most part been unremarkable. While the Court accepted that the principle is “tenaciously embedded” in Canadian law, the limits that were challenged in this period did not, in the Court’s view, strike at its underlying values. As noted, the Court explicitly cited the vulnerability of participants and serenity of hearings to uphold restrictions on open court. In addition, it resisted the invitation to extend the Dagenais/Mentuck test, and relaxed the evidentiary standard that defined its application in the earlier jurisprudence.

While the jurisprudence maintained the status quo and the Court chose not to deepen its commitment to openness, the legislative process, in combination with systemic shifts both technological and cultural in nature, became prominent. The pressure for change – whether in response to perceptions of participation in the justice system, the impact of technology, or radical shifts in the popular and online culture, broadly speaking, of sexual offences and misconduct – was centered in other quarters.

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