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Civil Litigation - Public Access - Open Court (4). La Presse inc. v. Quebec
In La Presse inc. v. Quebec (SCC, 2023) [Court's Case in Brief] the Supreme Court of Canada considered the (temporary) pre-jury-empanelment application of the CCC s.648 prohibition on publication of any criminal proceedings conducted in the absence of a jury (the 'automatic publication ban').
In these quotes the court comments on the 'open court principle':[5] The open court principle has been recognized by this Court as fundamental throughout the entirety of criminal proceedings, that is, both at the “pre-trial” or pre‑empanelment stage and during the trial (Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 27, citing Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at pp. 183 and 186). ...
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[7] There is no irreconcilable conflict between the open court principle and trial fairness. They both serve to instill public confidence in the justice system. The public can understand the work of the courts, and thus come to trust the judicial process and its outcomes, only if informed of “what a judge decides” and “why the particular decision is made” (Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 65 (emphasis in the original)). Needless to say, the media play a crucial role in making this possible (Sherman Estate v. Donovan, 2021 SCC 25, at para. 30, citing Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, at pp. 1339-40). The protection of fair trial interests, such as the right to an independent, impartial, and representative jury, is also essential to public confidence in the administration of justice (R. v. Chouhan, 2021 SCC 26, at para. 12, citing R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at pp. 523-24; see also R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 55, citing Sherratt, at pp. 523-25, and R. v. Church of Scientology (1997), 1997 CanLII 16226 (ON CA), 33 O.R. (3d) 65 (C.A.), at pp. 118-20).
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[37] Section 648(1) operates alongside numerous other provisions establishing publication bans, particularly ss. 517(1), 539(1) and 542(2), and the inherent jurisdiction of a judge to impose a discretionary ban under the Dagenais/Mentuck/Sherman framework. Section 517 allows a judge to prohibit the publication of “the evidence taken, the information given or the representations made and the reasons, if any, given or to be given” at a bail hearing. Section 539 allows a judge to prohibit the publication of “the evidence taken” at the preliminary inquiry. The bans in ss. 517 and 539 are mandatory when requested by the accused but discretionary when requested by the Crown. Section 542(2) creates an automatic publication ban with respect to “any admission or confession [that] was tendered in evidence at a preliminary inquiry”. Discretionary bans are those that may be ordered at the discretion of the court; mandatory bans are those that must be imposed at the request of a particular party, and automatic bans are bans that apply by operation of statute. See generally J. Rossiter, Law of Publication Bans, Private Hearings and Sealing Orders (loose-leaf), at §§ 1:7 and 4:48-4:58.
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(2) Interest in an Efficient System of Trial by Jury
[51] Parliament in 1972 intended to protect another interest falling within the right to a fair trial, namely, the interest of both the accused and society in the efficiency of our system of trial by jury. Parliament made information which would otherwise have been covered by discretionary publication bans subject to an automatic publication ban and, in so doing, demonstrated a clear concern for speedy trials and the proper expenditure of judicial resources.
[52] Historically, the media were expected not to prejudice judicial proceedings, such that “the publication of improper information before a case is heard or the dissemination of improper information about a case which is to be heard or is not fully heard” was punishable as contempt of court (see Steiner v. Toronto Star Ltd., 1955 CanLII 100 (ON SC), [1956] O.R. 14 (H.C.J.), at p. 20, quoting with approval R. v. Evening Standard Co. Ld., [1954] 1 Q.B. 578, at p. 584; see also St. James’s Evening Post Case (1742), 2 Atk. 469, 26 E.R. 683). In other words, publication could be punished, at the remedy stage, even in the absence of an express publication ban. Eventually, it became the practice for courts to issue publication bans as an exercise of their inherent jurisdiction (see, e.g., R. v. Jansen, 1976 CanLII 1547 (BC SC), [1976] 4 W.W.R. 277 (B.C.S.C.); Scott v. Scott, [1913] A.C. 417 (H.L.); R. v. Clement (1821), 4 B. & Ald. 218, 106 E.R. 918).
[53] Under s. 648(1), information about a specific subset of matters which would otherwise have been prohibited from publication by way of discretionary bans was made subject to an automatic publication ban. The latter requires no action to be taken by the parties and the judge; it applies automatically when the stipulated conditions are met. Clearly, Parliament must have had delays and judicial resources in mind when it removed judicial discretion relating to the publication of information about matters dealt with in the absence of the jury.
[54] An absurd interpretation of s. 648(1) that would defeat this objective of efficiency must be avoided. Authors Côté and Sullivan note, respectively, that the label of absurdity can be attached to interpretations that are “incompatible” with the object of the legislative enactment or that “defeat the purpose” of the statute in question (P.‑A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 378-80, and R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 88, both cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27).
[55] While no evidence has been provided to that effect, one can reasonably expect that an interpretation confining the application of s. 648(1) to the post‑empanelment stage would lead to a multiplication of applications for discretionary Dagenais/Mentuck/Sherman bans. This, in turn, would most likely result in further delays in the criminal justice system and the diversion of scarce resources of the accused and the court. Such a result would be antithetical to the objective of efficiency pursued by Parliament in enacting s. 648(1) and completely at odds with the teachings of this Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[56] Conversely, an interpretation of s. 648(1) as applying before the jury is empanelled can be expected to further the efficiency interest. Plainly, by shielding information arising at many types of hearings from publication, s. 648(1) gives courts the confidence to hold such hearings prior to the empanelment of the jury. This flexibility and ability to hold such hearings earlier in time can be expected to reduce delays. It may also allow the parties to gain certainty about contested matters, such as the admissibility of evidence, in advance of when rulings on those matters would historically have been made, leading to earlier resolution by way of pleas or withdrawal of charges. . Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al.
In Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. (Fed CA, 2023) the Federal Court of Appeal considers an appeal from an unusual multi-party Access to Information Act (AIA) statutory de novo 'review' [under s.44(1)] (neither an appeal nor a JR) at the Federal Court.
In these quotes, the court makes the important point that the 'open court' principle does not apply to AIA-scheduled institutions [see para 55] (a principle which may apply to Ontario FIPPA/MFIPPA as well):D. If the Withheld Information does contain personal information, did the Federal Court fall into palpable and overriding error in not disclosing those documents pursuant to the open court principle?
[54] The Families argued that the material in the Parole Board’s hands, including audio recordings and the documents that the Board considered in dealing with Mr. Munro’s and Mr. Bernardo’s applications for parole, should have been released pursuant to the open court principle.
[55] The open court principle does not apply to Corrections Canada as it is a government institution listed in Schedule 1 to the AIA. Its mission is to operate correctional institutions for offenders with a view to returning them to society as law-abiding citizens. In the course of that mandate, it collects information and creates records about the persons in its charge for the purpose of managing their experience so as to achieve its ultimate mission. As the list of the records it creates and maintains set out in paragraph 45 above indicates, most if not all of that information is personal information. It is not a tribunal, let alone an adjudicative tribunal, and is therefore not subject to the open court principle.
[56] This Court dealt with the application of the open court principle to the Parole Board in Canadian Broadcasting Corporation v. Parole Board of Canada, 2023 FCA 166, [CBC] released contemporaneously with these reasons. In that decision, the Court examined the jurisprudence underlying the application of the open court principle to administrative tribunals. The Court found that the application of that principle to a tribunal based on whether it was quasi-judicial was no longer relevant. It decided instead that a better indicator of whether the open court principle applied was whether the tribunal in question was an adjudicative tribunal, that is, a tribunal that presided over adversarial proceedings in which questions of rights and obligations were decided.
[57] The Federal Court agreed with the Parole Board when it said that it was not subject to the open court principle because the proceedings before it were not adversarial but inquisitorial. The fact that the state’s interest was not represented before the Board was indicative of the absence of adversarial proceedings. In addition, the Board argued that it did not adjudicate rights but rather assessed risk.
[58] In their memorandum of fact and law, the Families write at length about the open court principle, but their submissions are unpersuasive. For example, they argue that the open court principle has equal application to all administrative tribunals, including the Parole Board, as the legitimacy of their proceedings can be effectively monitored only if their proceedings are open to the public, citing Southam Inc. v. Canada Minister of Employment and Immigration, 1987 CanLII 9001 (FC), [1987] 3 F.C. 329, 13 F.T.R. 138 (T.D.) [Southam]. Of course, Board hearings are open to the public. As for Southam, it dealt with the application of the open court principle to quasi-judicial tribunals. The Families go on to rely on Justice Morgan’s learned decision in Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, but that case concerned 13 adjudicative tribunals, all of which are designated as “institutions” in the Schedule to the Freedom of Information and Protection of Privacy Act, a designation which created the conflict between those tribunals and the freedom of information legislation.
[59] Other cases which the Families relied on all dealt with the application of the open court principle to courts of law: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 (application in the Ontario Court of Justice), Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 (application in the Federal Court of Canada), CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 2002 CanLII 41398 (ON CA), 59 O.R. (3d) 18, 5 C.R. (6th) 189 (C.A.) (application in the Ontario Superior Court of Justice), Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20, [1989] 2 S.C.R 1326, (Alberta Judicature Act), Sherman Estate (application in the Ontario Superior Court of Justice).
[60] In addition, none of those cases holds that privacy interests must always be subordinated to the open court principle. The Sherman Estate case says the opposite:... Further, in assessing the constitutionality of a legislative exception to the open court principle, this Court has recognized that the protection of individual privacy can be a pressing and substantial objective (Edmonton Journal, at p. 1345, per Cory J.; see also the concurring reasons of Wilson J., at p. 1354, in which “the public interest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process” was explicitly noted). …
... In F.N. (Re), this was the personal interest that young offenders had in remaining anonymous in court proceedings as a means of encouraging their personal rehabilitation (para. 11). All of society had a stake, according to Binnie J., in the young person’s personal prospect for rehabilitation. This same idea from F.N. (Re) was cited in support of finding the interest in Sierra Club to be a public interest. …
Sherman Estate at paras. 52–53 [61] In the result, the Families have not shown that the open court principle applies to the Parole Board or to Corrections Canada. In CBC, this Court found that the CBC was not entitled to copies of audio recordings of Parole Board hearings pursuant to the open court principle.
[62] In light of the conclusion that the Parole Board is not an adjudicative tribunal, the question of the production of adjudicative records does not arise. As a result, the Families are not entitled to what they seek from the Parole Board pursuant to the open court principle.
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