Open Court Principle: Difference between revisions

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Openess of the court process is necessary to achieve justice.
Openess of the court process is necessary to achieve justice.
<ref>
<ref>
A.G. (Nova Scotia) v MacIntyre, [http://canlii.ca/t/1lpbn 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.")
A.G. (Nova Scotia) v MacIntyre, [http://canlii.ca/t/1lpbn 1982 CanLII 14] (SCC), [1982] 1 SCR 175 {{perSCC|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.")
</ref>
</ref>
It is "one of the hallmarks of a democratic society".<ref>
It is "one of the hallmarks of a democratic society".<ref>
CBC v New Brunswick (A.G.), [http://canlii.ca/t/1fr65 1996 CanLII 184] (SCC), [1996] 3 SCR 480
CBC v New Brunswick (A.G.), [http://canlii.ca/t/1fr65 1996 CanLII 184] (SCC), [1996] 3 SCR 480{{perSCC|La Forest J}}
</ref>
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The open courts principle intends "to illuminate the avenue of accountability for the judicial system".<ref>
The open courts principle intends "to illuminate the avenue of accountability for the judicial system".<ref>
Coltsfoot Publishing Ltd. v Foster-Jacques, [http://canlii.ca/t/fsbr7 2012 NSCA 83] (CanLII), at Para. 85<br>
Coltsfoot Publishing Ltd. v Foster-Jacques, [http://canlii.ca/t/fsbr7 2012 NSCA 83] (CanLII){{perNSCA|Fichaud JA}}, at Para. 85<br>
See also Vancouver Sun (Re), [2004] 2 SCR 332, [http://canlii.ca/t/1hbl8 2004 SCC 43] (CanLII), at para 25 <br>
See also Vancouver Sun (Re), [2004] 2 SCR 332, [http://canlii.ca/t/1hbl8 2004 SCC 43] (CanLII){{perSCC| Iacobucci and Arbour JJ}}, at para 25 <br>
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.")<Br>
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.")<Br>
</ref>
</ref>
Every stage of a proceedings should have "public accessibility and concomitant judicial accountability".<ref>
Every stage of a proceeding should have "public accessibility and concomitant judicial accountability".<ref>
A.G. (N.S.) v MacIntyre{{ibid}}</ref> Reduction of "public accessibility can only be justified where there is present the need to protect social values of superordinate importance.”<ref>
A.G. (N.S.) v MacIntyre{{ibid}}</ref> Reduction of "public accessibility can only be justified where there is present the need to protect social values of superordinate importance.”<ref>
A.G. (N.S.) v MacIntyre{{supra}}</ref>
A.G. (N.S.) v MacIntyre{{supra}}</ref>


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.<ref>
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.<ref>
E.g. R v Canadian Broadcasting Corporation, [http://canlii.ca/t/2d4c5 2010 ONCA 726] (CanLII) <br>  
E.g. R v Canadian Broadcasting Corporation, [http://canlii.ca/t/2d4c5 2010 ONCA 726] (CanLII){{perONCA|Sharpe JA}} <br>  
Lac Amiante du Quebec Ltee v 2858-0702 Quebec Inc., [http://canlii.ca/t/520p 2001 SCC 51] (CanLII), [2001] 2 SCR 743<br>
Lac Amiante du Quebec Ltee v 2858-0702 Quebec Inc., [http://canlii.ca/t/520p 2001 SCC 51] (CanLII), [2001] 2 SCR 743{{perSCC|LeBel J}}<br>
</ref>
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All examinations of witnesses must be done in open court.<ref>
All examinations of witnesses must be done in open court.<ref>
Re Krakat, [http://canlii.ca/t/g134n 1965 CanLII 358] (ON SC)
Re Krakat, [http://canlii.ca/t/g134n 1965 CanLII 358] (ON SC){{perONSC|Hughes J}}
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There is a presumption that Courts are open including their exhibits and records.<ref>
There is a presumption that Courts are open including their exhibits and records.<ref>
R v Mentuck, [2001] 3 SCR 442, [http://canlii.ca/t/51x5 2001 SCC 76] (CanLII)
R v Mentuck, [2001] 3 SCR 442, [http://canlii.ca/t/51x5 2001 SCC 76] (CanLII){{perSCC| Iacobucci J}}
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'''Standard'''<Br>
'''Standard'''<Br>
At common law, a publication ban should only be ordered where the Dagenais-Mentuck test is satisfied which requires:<ref>
At common law, a publication ban should only be ordered where the Dagenais-Mentuck test is satisfied which requires:<ref>
R v Mentuck, [http://canlii.ca/t/51x5 2001 SCC 76] (CanLII), [2001] 3 SCR 442, 462<br>
Mentuck{{ibid}} 462<br>
R v CBC, [2010] OJ No. 4615 (CA){{NOCANLII}}<br>
R v CBC, [2010] OJ No. 4615 (CA){{NOCANLII}}<br>
</ref>  
</ref>  
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# 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.
# 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:<ref>CBC v New Brunswick (A.G.)</ref>
Restrictions will be in the public interest where it is necessary to:<ref>CBC v New Brunswick (A.G.){{supra}}</ref>
* protect the innocent from unnecessary harm
* protect the innocent from unnecessary harm
* prevent significant harm to the victim or to witnesses
* prevent significant harm to the victim or to witnesses
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==Sub Judice==
==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.<ref>
The common law principle of contempt ''sub judice'' prevents parties from making statements to the public that are calculated to interfere with the court proceedings.<ref>
See also [[Contempt of Court (Offence)]]
See also [[Contempt of Court (Offence)]]
</ref>
</ref>


{{reflist|2}}
{{reflist|2}}

Revision as of 08:02, 26 November 2018

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 proceeding 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]

Standard
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, per La Forest J
  3. ↑ Coltsfoot Publishing Ltd. v Foster-Jacques, 2012 NSCA 83 (CanLII), per Fichaud JA, at Para. 85
    See also Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43 (CanLII), per Iacobucci and Arbour JJ, 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), per Sharpe JA
    Lac Amiante du Quebec Ltee v 2858-0702 Quebec Inc., 2001 SCC 51 (CanLII), [2001] 2 SCR 743, per LeBel J
  7. ↑ Re Krakat, 1965 CanLII 358 (ON SC), per Hughes J
  8. ↑ MacIntyre, supra, at p. 189
  9. ↑ R v Mentuck, [2001] 3 SCR 442, 2001 SCC 76 (CanLII), per Iacobucci J
  10. ↑ Mentuck, ibid. 462
    R v CBC, [2010] OJ No. 4615 (CA)(*no CanLII links)
  11. ↑ CBC v New Brunswick (A.G.), supra
  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 making statements to the public that are calculated to interfere with the court proceedings.[1]

  1. ↑ See also Contempt of Court (Offence)
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