The “Open Court” Principle in Canada
At common law, the onus rests upon a person seeking to deny public access to and publicity of court proceedings and court records to prove that extraordinary circumstances justify departure from the fundamental constitutional principles of: (a) the “open court”; and (b) freedom of expression, including freedom of the press and other media of communication to publicize court proceedings established by the common law and guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. It is not enough for party seeking secrecy or a ban on publicity to say that, on a balance of convenience, the Court should exercise an ad hoc discretion to close the Court or deny access to Court records.
The “open court” principle assumes that public confidence in the integrity of the court system and understanding of the administration of justice is fostered by openness and full publicity. The objectives include: (1) maintaining an effective evidentiary process; (2) ensuring a judiciary and juries that behave fairly and that are sensitive to the values espoused by society; (3) promoting a shared sense that our courts operate with integrate and dispense justice; and (4) providing an on-going opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them. Accordingly, personal embarrassment or financial prejudice to an accused or to a witness is generally not a valid basis for publication ban.
The Canadian Charter of Rights and Freedoms
Sections 1 and 2(b) of the Canadian Charter of Rights and Freedoms, R.S.C. 1985, Appendix II, No. 44 provide:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
- Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
Section 24(1) of the Charter provides:
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Section 52(1) of the Constitution Act, 1982 provides:
52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The “Dagenais/Mentuck” Test
A person seeking to deny public access to and publicity of court proceedings and court records in Canada must satisfy the so-called “Dagenais/Mentuck” test which is described in the judgment of the Supreme Court of Canada in Toronto Star Newspapers Ltd. v Ontario, 2005 SCC 41:
The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:
(a) 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
(b) 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. [para. 32]
Iacobucci J., writing for the Court, noted that the “risk” in the first prong of the analysis must be real, substantial, and well grounded in the evidence: “it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained” (para. 34).
The constitutional protection for freedom of expression reflected in s. 2(b) of the Charter requires that the “Dagenais/Mentuck” test be applied to all discretionary Court actions or decisions that may limit the publicity of judicial proceedings in any case and at any stage of those proceedings.
This proposition was re-affirmed in Canadian Broadcasting Corp. v The Queen, 2011 SCC 3, where the Supreme Court of Canada stated:
The analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect the openness of proceedings. In Vancouver Sun (Re), 2004 SCC 43 (CanLII), 2004 SCC 43,  2 S.C.R. 332, Iacobucci and Arbour JJ. wrote the following:
While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuck, supra); is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII),  2 S.C.R. 522, 2002 SCC 41). The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), at para. 71. [para. 31]
(See also Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), 2005 SCC 41,  2 S.C.R. 188, at para. 7; Named Person v. Vancouver Sun, 2007 SCC 43 (CanLII), 2007 SCC 43,  3 S.C.R. 253, at para. 35; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21 (CanLII), 2010 SCC 21,  1 S.C.R. 721, at paras. 15-16; R. v. Canadian Broadcasting Corporation, at para. 21)
Access to Exhibits
The analytical approach reflected in the “Dagenais/Mentuck” test applies to requests for access to exhibits. Access to exhibits is a corollary to the open court principle. Canadian Broadcasting Corporation v The Queen, 2011 SCC 3 at paragraph 12; see also R v Canadian Broadcasting Corporation, 2010 ONCA 726.
Access following the conclusion of proceedings
An application for access may be made even when the legal proceedings have concluded: R v Canadian Broadcasting Corporation, 2010 ONCA 726.
The federal and provincial governments have enacted a number of legislative restrictions on the open court principle.
Perhaps the most important are those found in the federal Criminal Code. Read more…