Open Court Principle

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General Principles

The "open court principle" provides the public the right to observe the court process and access court records, including filings and exhibits.

Purpose and Importance of Principle

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]

The burden requires Crown to provide "sufficient evidentiary basis in favour of granting the ban".[10]

There is a presumption that Courts are open including their exhibits and records.[11]

The evidence must be "convincing" and "subject to close scrutiny and meet rigorous standards".[12]

Standard

At common law, a publication ban should only be ordered where the Dagenais-Mentuck test is satisfied which requires:[13]

  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:[14]

  • 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

"Purely personal interests" cannot justify non-publication or sealing orders. Emotional distress or embarrassment of a litigant will not suffice.[15]

Variable Standard

The Dagenais/Mentuck test is to be applied in a "flexible and contextual manner".[16]

There is more likely to be a serious risk to the administration of justice at the investigative stage that would warrant less openness.[17] However, the interest may swing the other way to openness by the time of trial.[18]

Search Warrants

After a search warrant is executed openness is "presumptively favoured".[19]

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".[20]

The need for open court includes the need to know the identity of the accused.[21]

  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 O.N.E. 2001 SCC 77(complete citation pending) at para 9
  11. ↑ R v Mentuck, 2001 SCC 76 (CanLII), [2001] 3 SCR 442, per Iacobucci J
  12. ↑ MEH v Williams, 2012 ONCA 35 (CanLII), {{{4}}}, per Doherty JA, at para 34(complete citation pending)
  13. ↑ Mentuck, ibid. 462
    R v CBC, [2010] OJ No. 4615 (CA)(*no CanLII links)
  14. ↑ CBC v New Brunswick (A.G.), supra
  15. ↑ MEH, supra at para 25
  16. ↑ Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41 (CanLII), [2005] 2 SCR 188, per Fish J, at para 8 ("The Dagenais/Mentuck test, although applicable at every stage of the judicial process, was from the outset meant to be applied in a flexible and contextual manner.")
  17. ↑ Toronto Star, ibid. ("...serious risk to administration of justice at the investigative stage, for example, will often involve considerations that have become irrelevant by the time of trial. On the other hand, the perceived risk may be more difficult to demonstrate in a concrete manner at an early stage.")
  18. ↑ Toronto Star, ibid.
  19. ↑ Toronto Star, ibid. at para 21
  20. ↑ 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
  21. ↑ 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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