Criminal Law Notebook

Excluding People From Court

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General Principles

See also: Role of Trial Judge and Open Court Principle

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.[1] 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.

  1. ↑ see Public and Media Restrictions

Exclusion of Parties

The trial judge can order the exclusion of the accused where his conduct makes the proceedings impractical.[1]

The accused can likewise voluntarily be absent from the trial with the court's consent.[2] However, depending on how the proceedings go in the absence of the accused, there may be a ground of appeal.[3]

  1. ↑ See s.650(2)(8)
    R v Pawliw, 1985 CanLII 656 (BCSC), per Murray J
  2. ↑ R v Drabinsky, 2008 CanLII 40225 (ONSC), per Benotto J
  3. ↑ R v Valeanu, 1995 CanLII 614 (ONCA), per Arbour JA

Excluding Witnesses

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.[1]

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.[2]

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.[3]

Where a current witness was present for the testimony of a previous witness, the current witness's evidence should be given less weight.[4]

  1. ↑ R v Hoyt, 1949 CanLII 391 (NB CA), CCC 306, per Richards CJ
    R v Dobberthien, 1974 CanLII 184 (SCC), [1975] 2 SCR 560, per Martland J
    R v Leitner, 1998 CanLII 13871 (SKQB), [1998] 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), per Kolenick J, at para 3
  2. ↑ Re Learn and The Queen, 1981 CanLII 3205 (ONSC), 63 CCC (2d) 191 (Ont. H.C.J.), per Hollingworth J
    Re Collette and the Queen; Re Richard and the Queen, 1983 CanLII 3509 (ONSC), 6 CCC (3d) 300 (Ont. H.C.), per Carruthers J
    BLWD, supra, at para 3
  3. ↑ R v Smuk, 1971 CanLII 1197 (BCCA), 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
  4. ↑ BLWD, supra, at para 3
    R v Spark, 2000 CanLII 19619SK PC), [2000] 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.

Exclusion of public

486 (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

Application

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

Factors to be considered

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider

(a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(e) the protection of justice system participants who are involved in the proceedings;
(f) whether effective alternatives to the making of the proposed order are available in the circumstances;
(g) the salutary and deleterious effects of the proposed order; and
(h) any other factor that the judge or justice considers relevant.
Reasons to be stated

(3) If an accused is charged with an offence under section 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled] or 155 [incest], subsection 160(2) [compelling bestiality] or (3) [bestiality in presence of or by child] or section 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 171.1 [making sexually explicit materials available to child], 172 [corrupting children], 172.1 [child luring], 172.2 [agree or arrange sexual offence against child], 173 [Indecent acts], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault], 279.01 [trafficking in persons], 279.011 [trafficking in persons, under 18], 279.02 [material benefit from trafficking], 279.03 [withholding or destroying docs], 286.1 [comm. to obtain sexual services for consideration], 286.2 [material benefit from sexual services provided] or 286.3 [procuring] and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

No adverse inference

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27 (1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.), s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, s. 15, c. 43, ss. 4, 8; 2010, c. 3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21; 2019, c. 25, s. 189.

[annotation(s) added]

– CCC

Note up: 486(1), (1.1), (2), (3), and (4)

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.[1] Or simply because the offence is of a sexual nature.[2] 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.[3]

Where a jury is being vetted for bias, the public may be excluded.[4]

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.[5]

Publication

Should the publication of names of witnesses may endanger them, the judge may prohibit their publication under s. 486(2).[6]

There is no power to prohibit the publication of the accused's name unless it is to protect the identity of another party.[7]

  1. ↑ R v Quesnel, 1979 CanLII 2883 (ONCA), 51 CCC (2d) 270, per Brooke JA
  2. ↑ R v Warawuk, 1978 ALTASCAD 228 (CanLII), per Clement JA
  3. ↑ R v Lefebvre, 1984 CanLII 3601 (QC CA), 17 CCC (3d) 277, per Turgeon JA
    Warawuk, supra
  4. ↑ R v Musitano, 1985 CanLII 1983 (ONCA), per curiam
  5. ↑ 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.
  6. ↑ e.g. see R v McArthur, 1984 CanLII 3478 (ONSC), 13 CCC (3d) 152 (Ont. H.C.J.), per Dupont J
  7. ↑ R v London Free Press Printing Co, 1990 CanLII 6653 (ONSC), per Granger J
    Re R. and Unnamed Person, 1985 CanLII 3501 (ONCA), 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.[1]

An in camera hearing is similar but different from a voir dire.[2] It is a trial of a single issue.[3] The judge has the discretion to decide whether written or oral evidence is needed.[4]

Evidence that may reveal the identity of confidential informers will sometimes held in camera, such as in the review of affidavits for wiretaps.[5] 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.[6]

During an in camera hearing it may be desirable for the judge to conduct an inquisitorial-style examination.[7]

Once evidence is given in camera, it is rare that the accused will ever get access to any information provided.[8]

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.[9]

  1. ↑ R v Seaboyer, 1991 CanLII 76 (SCC), 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.")
  2. ↑ R v McCartie, 2013 BCPC 221 (CanLII), per Gouge J, at para 36
  3. ↑ McCartie, ibid., at para 37
  4. ↑ McCartie, ibid., at para 38 - oral evidence should be given where credibility is an issue
  5. ↑ Described in R v Garofoli, 1990 CanLII 52 (SCC), per Sopinka J
    affirmed in R v Leipert, 1997 CanLII 367 (SCC), per McLachlin J
    R v Basi, 2009 SCC 52 (CanLII), per Fish J
  6. ↑ Leipert, supra
    Basi, supra
    R v Edwards Books and Art Ltd, 1986 CanLII 12 (SCC), [1986] 2 SCR 713, per Dickson CJ, at para 117
  7. ↑ R v McCartie, 2013 BCPC 289 (CanLII), per Gouge J
  8. ↑ R v McLellan, 2013 BCSC 175 (CanLII), per Willcock J, at paras 36 to 38
  9. ↑ e.g. McCartie, supra, at paras 22 to 32

Exclusion by a Youth Court Justice

Exclusion from hearing

132 (1) Subject to subsection (2), a court or justice before whom proceedings are carried out under this Act may exclude any person from all or part of the proceedings if the court or justice considers that the person’s presence is unnecessary to the conduct of the proceedings and the court or justice is of the opinion that

(a) any evidence or information presented to the court or justice would be seriously injurious or seriously prejudicial to
(i) the young person who is being dealt with in the proceedings,
(ii) a child or young person who is a witness in the proceedings, or
(iii) a child or young person who is aggrieved by or the victim of the offence charged in the proceedings; or
(b) it would be in the interest of public morals, the maintenance of order or the proper administration of justice to exclude any or all members of the public from the court room.
Exception

(2) Subject to section 650 (accused to be present) of the Criminal Code and except if it is necessary for the purposes of subsection 34(9) (nondisclosure of medical or psychological report) of this Act, a court or justice may not, under subsection (1), exclude from proceedings under this Act

(a) the prosecutor;
(b) the young person who is being dealt with in the proceedings, the counsel or a parent of the young person or any adult assisting the young person under subsection 25(7);
(c) the provincial director or his or her agent; or
(d) the youth worker to whom the young person’s case has been assigned.
Exclusion after adjudication or during review

(3) A youth justice court, after it has found a young person guilty of an offence, or a youth justice court or a review board, during a review, may, in its discretion, exclude from the court or from a hearing of the review board any person other than the following, when it is being presented with information the knowledge of which might, in its opinion, be seriously injurious or seriously prejudicial to the young person:

(a) the young person or his or her counsel;
(b) the provincial director or his or her agent;
(c) the youth worker to whom the young person’s case has been assigned; and
(d) the Attorney General.
Exception

(4) The exception set out in paragraph (3)(a) is subject to subsection 34(9) (nondisclosure of medical or psychological report) of this Act and section 650 (accused to be present) of the Criminal Code.

– YCJA

Note up: 132(1), (2), (3), and (4)

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