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Open Court Principle

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General Principles

The openness 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 and Presumptions

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

The open court principle imposes a presumption against all discretionary judicial decisions that limit access to the court.[9]

There is a presumption that Courts are open including their exhibits and records.[10]

Standard

At common law, a publication ban should only be ordered where the Dagenais-Mentuck test is satisfied which requires:[11]

  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:[12]

  • 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".[13]

The need for open court includes the need to know the identity of the accused.[14]

  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 SCC 43 (CanLII), [2004] 2 SCR 332, per Iacobucci and Arbour JJ, at para 25
    Vickery v Nova Scotia Supreme Court (Prothonotary), 1991 CanLII 90 (SCC), [1991] 1 SCR 671, 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, ibid.
  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 (ONSC), {{{4}}}, per Hughes J
  8. ↑ MacIntyre, supra, at p. 189 ("The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercice of the right.")
  9. ↑ R v Bagri, 2004 SCC 43 (CanLII), [2004] 2 SCR 332
  10. ↑ R v Mentuck, 2001 SCC 76 (CanLII), per Iacobucci J
  11. ↑ Mentuck, ibid. 462
    R v CBC, [2010] OJ No. 4615 (CA)(*no CanLII links)
  12. ↑ CBC v New Brunswick (A.G.), supra
  13. ↑ R v Pearce, (December 7, 2017 Nottingham Crown Court) [1]
    Re Trinity Mirror and others (A and another intervening) [2008] QB 770 (UK), at para 32
  14. ↑ Pearce, supra, at para 16
    Re S (FC) (a child) [2005] 1 AC 593 (UK), 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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