Open Court Principle

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General Principles

Openess of the court process is necessary to achieve justice. [1] It is "one of the hallmarks of a democratic society".[2]

The open courts principle intends "to illuminate the avenue of accountability for the judicial system".[3] Every stage of a proceedings should have "public accessibility and concomitant judicial accountability".[4] Reduction of "public accessibility can only be justified where there is present the need to protect social values of superordinate importance.”[5]

The right to a open court includes access "to the court’s proceedings, records and exhibits" as well as the right to copy and distribute the information.[6]

All examinations of witnesses must be done in open court.[7]

Burden or Onus
The burden will be upon the person who attempts to deny access to court information.[8]

There is a presumption that Courts are open including their exhibits and records.[9]

At common law, a publication ban should only be ordered where the Dagenais-Mentuck test is satisfied which requires:[10]

  1. such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
  2. the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

Restrictions will be in the public interest where it is necessary to:[11]

  • protect the innocent from unnecessary harm
  • prevent significant harm to the victim or to witnesses
  • "safeguarding privacy interests" of victims to encourage reporting of sexual offences

UK Experience
The United Kingdom also has an "open court principle" that it describes as "an essential requisite of the criminal justice system" and the "embodiment of the principle of open justice in a free country".[12]

The need for open court includes the need to know the identity of the accused.[13]

  1. A.G. (Nova Scotia) v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175 per Dickson CJ ("Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.")
  2. CBC v New Brunswick (A.G.), 1996 CanLII 184 (SCC), [1996] 3 SCR 480
  3. Coltsfoot Publishing Ltd. v Foster-Jacques, 2012 NSCA 83 (CanLII), at Para. 85
    See also Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43 (CanLII), at para 25
    Vickery v Nova Scotia Supreme Court (Prothonotary), per Cory J. in dissent on other issue ("If court proceedings, and particularly the criminal process, are to be accepted, they must be completely open so as to enable members of the public to assess both the procedure followed and the final result obtained. Without public acceptance, the criminal law is itself at risk.")
  4. A.G. (N.S.) v MacIntyre, ibid.
  5. A.G. (N.S.) v MacIntyre, supra
  6. E.g. R v Canadian Broadcasting Corporation, 2010 ONCA 726 (CanLII)
    Lac Amiante du Quebec Ltee v 2858-0702 Quebec Inc., 2001 SCC 51 (CanLII), [2001] 2 SCR 743
  7. Re Krakat, 1965 CanLII 358 (ON SC)
  8. MacIntyre, supra, at p. 189
  9. R v Mentuck, [2001] 3 SCR 442, 2001 SCC 76 (CanLII)
  10. R v Mentuck, 2001 SCC 76 (CanLII), [2001] 3 SCR 442, 462
    R v CBC, [2010] OJ No. 4615 (CA)(*no CanLII links)
  11. CBC v New Brunswick (A.G.)
  12. R v Pearce, (December 7, 2017 Nottingham Crown Court) [1]
    Re Trinity Mirror and others (A and another intervening) [2008] QB 770 at para 32
  13. Pearce, supra at para 16
    Re S (FC) (a child) [2005] 1 AC 593 at para 34

Sub Judice

The common law principle of contempt sub judice prevents parties from from making statements to the public that are calculated to interfere with the court proceedings.[1]