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Administrative - Openness of Proceedings

. CBC v. Chief of Police

In CBC v. Chief of Police (Div Ct, 2021) the Divisional Court reviews the 'open court' doctrine of public access to court records. Here it is applied to tribunal records, at a police disciplinary proceeding:
Open Justice is a Core Democratic Principle

[23] It is trite to say that the “open court” principle is a central feature of democratic society. As Justice Fish stated succinctly for the Supreme Court in Toronto Star Newspapers Ltd. v. Ontario, “[I]n any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy”.[4] Open justice is a “cornerstone of the common law” and a “hallmark of a democratic society”.[5]

[24] An open justice system ensures that justice is done and, importantly, that it is seen to be done. As the Court stated in Vancouver Sun:
Openness is necessary to maintain the independence and impartiality of the courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.[6]
[25] Part and parcel of the right to access exhibits is the right to access them in a timely manner.[7]

Openness for Tribunals

[26] The same rationale informing the open court principle informs openness for tribunals.[8]

[27] In Southam v. Minister of Employment and Immigration, the Federal Court noted that:
“…statutory tribunals exercising judicial or quasi-judicial functions involving adversarial type processes which result in decisions affecting rights truly constitute part of the ‘administration of justice’. The legitimacy of such tribunals’ authority requires that confidence in their integrity and understanding of their operations be maintained, and this can be effected only if their proceedings are open to the public.[9]
[28] It follows that quasi-judicial hearings, are presumptively open and that any limit on openness must be justified through application of the Dagenais/Mentuck test.[10]

Openness Principles Apply to Police Discipline Hearings

[29] As openness principles apply to all quasi-judicial proceedings, they apply to police discipline hearings, which are quasi-judicial proceedings governed by the Statutory Powers and Procedures Act. In the pre-Dagenais decision, Ottawa (City) Commissioners of Police v. Lalande, the District Court dismissed an application to hold a police disciplinary hearing in camera stating:
The public has a vital interest in the performance of police officers who are given great powers in order to protect the public. It is obvious that personal and embarrassing matters will or may be divulged during this hearing. I believe the right of the parties, there are two here, the public and the person charged, to a public and open hearing is a safeguard to the proper state of justice.[11]
[30] In both Southam Inc. v. Canada[12] and in Canadian Broadcasting Corp. v. The City of Summerside[13], courts held that holding police disciplinary hearings in private violated s. 2(b) of the Charter.

Access to Exhibits

[31] It is well established that open proceedings require that the public be able to obtain copies of exhibits. The Supreme Court has described the ability to access exhibits as a corollary to the open court principle.[14] It has similarly held that the state “must not interfere with an individual’s ability to ‘inspect and copy public records and documents including judicial records and documents’’. Thus, where access to exhibits is denied, as with any other restriction on openness, it must be justified through application of the Dagenais/Mentuck test.[15]

....

[36] The Dagenais/Mentuck test was recently reformulated by the Supreme Court in Sherman Estate v. Donovan.[18] The Court recast the formerly two-part test as a three-part test, stating that any person asking the court to limit the open court principle must establish that: (a) court openness in the case at hand poses a serious risk to an important public interest; (b) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (c) as a matter of proportionality, the benefits of the order outweigh its negative effects.[19]

....

[46] As noted in Ottawa (City) Commissioners of Police v. Lalande[26], the public has a vital interest in the performance of the police officers that yield significant power in our society. This interest requires that the public have a full understanding of all relevant information when this performance is being evaluated by a tribunal. When consenting to its introduction by the prosecution, defence counsel stated that it was “part and parcel of this case.” The public ought to be able to consider for itself whether the video was important or not.

....

S.9(1) of the Statutory Powers Procedure Act does not override Dagenais-Mentuck test

[50] The respondents rely on s.9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which states:
9 (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public.
[51] The respondents submit that the effect of s.9 (1) of the Statutory Powers Procedure Act is that the Dagenais-Mentuck test and the openness principle do not apply to police board hearings. There is no merit to this submission where, as was the case here, the hearing was a quasi-judicial professional misconduct hearing.[27]



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