|This page was last substantively updated or reviewed January 2020. (Rev. # 85719)|
The "open court principle" creates a rebuttable presumption that all proceedings in Court, as well as all filings with the court, are to be open to the public. There exist circumstances where other interests will overide this principle, resulting in limitations on the public's access to the Courts. Witnesses who are to testify in trial are regularly excluded from the trial Court before they testify. Members of the public are excluded from Court where the evidence before the judge are of a particularly sensitive character. In the most extreme example, there is also the ability to exclude the accused and defence counsel from the proceedings where any public knowledge of the contents could be dangerous, such as when dealing with confidential informers.
Exclusion of Parties
The trial judge can order the exclusion of the accused where his conduct makes the proceedings impractical.
The accused can likewise voluntarily be absent from the trial with the court's consent. However, depending on how the proceedings go in the absence of the accused, there may be a ground of appeal.
Before the commencement of trial it is normally expected that all prospective witnesses will be excluded from the courtroom. On application of either party, the judge has discretion to order the exclusion of witnesses.
The judge does not need to give reasons for ordering the exclusion of witnesses, however, the refusal to grant the order must include grounds for making such an order.
The reason for excluding witnesses is because a witness's ability to hear the evidence of other witnesses before testifying can negatively affect the credibility of the witness.
Where a current witness was present for the testimony of a previous witness, the current witness's evidence should be given less weight.
R v Hoyt, 1949 CanLII 391 (NB CA), CCC 306, per Richards CJ
R v Dobberthien, 1974 CanLII 184 (SCC),  2 SCR 560, per Martland J
R v Leitner, 1998 CanLII 13871 (SK QB),  S.J. No 735 (Sask. Q.B.), per Dawson J
The Law of Evidence in Canada, Sopinka Lederman & Bryant, Butterworths, 2nd edition, at pp. 826‑827
Canadian Criminal Evidence, McWilliams (3d edition) Canada Law Book, at pp. 36‑2.1 - 36‑3
R v BLWD, 2008 SKPC 56 (CanLII), 317 Sask R 247, per Kolenick J, at para 3
Re Learn and The Queen, 1981 CanLII 3205 (ON SC), 63 CCC (2d) 191 (Ont. H.C.J.), per Hollingworth J
Re Collette and the Queen; Re Richard and the Queen, 1983 CanLII 3509 (ON SC), 6 CCC (3d) 300, per Carruthers J
BLWD, supra, at para 3
R v Smuk, 1971 CanLII 1197 (BC CA), 3 CCC (2d) 457 (BCCA), per McFarlane JA
R v Grabowski, 1983 CanLII 3579 (QC CA), 8 CCC (3d) 78, per McCarthy JA
Re Collette and the Queen, supra, at p. 306
BLWD, supra, at para 3
R v Spark, 2000 CanLII 19619SK PC),  S.J. No 492 (Sask. Prov. Ct.), per Whelan J
Excluding Public from Court
Section 486 sets out the basic premise that all criminal proceedings are held in open court but persons can be excluded where it is "in the interest of public morals, the maintenance of order, the proper administration of justice" or injury to international relations or national defence/security.
These provisions can be used at any time in a proceeding, including trial and sentencing.
- Courtroom Access
The public cannot be excluded under s. 486(1) on the mere basis that the witness must give evidence of sexual behaviour that is embarrassing. Or simply because the offence is of a sexual nature. However, where a complainant in a sexual offence has difficulty giving evidence due to embarrassment, it may be in the interest of justice to exclude the public.
Where a jury is being vetted for bias, the public may be excluded.
Absent an order from the court, it is improper to lock any of the doors to the courtroom normally used by the public to access the court while a witness is testifying. Actions of this nature that impede public access to the courts can result in a mistrial.
Should the publication of names of witnesses may endanger them, the judge may prohibit their publication under s. 486(2).
There is no power to prohibit the publication of the accused's name unless it is to protect the identity of another party.
R v Quesnel, 1979 CanLII 2883 (ON CA), 51 CCC (2d) 270, per Brooke JA
- R v Warawuk, 1978 ALTASCAD 228 (CanLII), 42 CCC (2d) 121, per Clement JA
R v Lefebvre, 1984 CanLII 3601 (QC CA), 17 CCC (3d) 277, per Turgeon JA
- R v Musitano, 1985 CanLII 1983 (ON CA), 24 CCC (3d) 65, per curiam
- R v PDT, 2010 ABQB 37(*no CanLII links) - crown locked one of two doors for public access to the court in order to make complainant more comfortable.
- e.g. see R v McArthur, 1984 CanLII 3478 (ON SC), 13 CCC (3d) 152, per Dupont J
R v London Free Press Printing Co, 1990 CanLII 6653 (ON SC), 75 OR (2d) 161, per Granger J
Re R. and Unnamed Person, 1985 CanLII 3501 (ON CA), 22 CCC (3d) 284, per Zuber JA, at p. 288
In Camera Hearings
An in camera hearing prohibits the accused from being present in court during the evidence. These hearings are not under legislation but are a judge-created procedure.
Evidence that may reveal the identity of confidential informers will sometimes held in camera, such as in the review of affidavits for wiretaps. The rationale for such an in camera hearing is that the risk posed to informers far outweighs the right to full answer and defence and the exception to privilege for innocence at stake.
During an in camera hearing it may be desirable for the judge to conduct an inquisitorial-style examination.
Once evidence is given in camera, it is rare that the accused will ever get access to any information provided.
For the sake of trial fairness, it may be necessary for a judge who is not the trial judge to preside over the in camera hearing.
- R v Seaboyer, 1991 CanLII 76 (SCC),  2 SCR 577, per McLachlin J, at para 96 ("Such procedures do not require legislation. It has always been open to the courts to devise such procedures as may be necessary to ensure a fair trial. The requirement of a voir dire before a confession can be admitted, for example, is judge-made law.")
- R v McCartie, 2013 BCPC 221 (CanLII), per Gouge J, at para 36
- McCartie, ibid., at para 37
- McCartie, ibid., at para 38 - oral evidence should be given where credibility is an issue
Described in R v Garofoli, 1990 CanLII 52 (SCC),  2 SCR 1421, per Sopinka J
affirmed in R v Leipert, 1997 CanLII 367 (SCC),  1 SCR 281, per McLachlin J
R v Basi, 2009 SCC 52 (CanLII),  3 SCR 389, per Fish J
R v Edwards Books and Art Ltd, 1986 CanLII 12 (SCC),  2 SCR 713, per Dickson CJ, at para 117
- R v McCartie, 2013 BCPC 289 (CanLII), per Gouge J
R v McLellan, 2013 BCSC 175 (CanLII), per Willcock J, at paras 36 to 38
e.g. McCartie, supra, at paras 22 to 32