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Civil Litigation - Public Access - General
MORE CASES
Part 2
. Canadian Broadcasting Corporation v. Canada (Parole Board)
In Canadian Broadcasting Corporation v. Canada (Parole Board) (Fed CA, 2023) the Federal Court of Appeal considered an appeal from a JR of a Parole Board of Canada decision to refuse access to audio recordings of several parole hearings on the basis that "the open court principle invoked by the CBC did not apply since the Parole Board is not a quasi-judicial body [SS: upheld] and that the public interest in the hearings did not outweigh the privacy interests of the Offenders" [SS: remitted back].
In these quotes the court considers the 'open court' issue, which went in favour of the Parole Board:[2] The Board declined to provide the requested audio recordings on the grounds that the open court principle invoked by the CBC did not apply since the Parole Board is not a quasi-judicial body and that the public interest in the hearings did not outweigh the privacy interests of the Offenders.
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[6] The CBC is able to attend parole hearings and to report on them without being restrained by the Board as to what it can report. To state the obvious, this case is not about the CBC’s access to Board hearings. The CBC’s request is that it be given the same rights to the recordings as it enjoys with respect to exhibits filed in open court. Thus, while the CBC’s memorandum of fact and law refers to access to or disclosure of the audio recordings, its request to the Board was that it be given a physical copy of the recordings.
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III. Statement of Issues
[26] The CBC based its demand for copies of the audio recordings of parole hearings on the open court principle, which is nourished by the Charter’s section 2(b) protection of “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. The CBC based its position that the open court principle is fortified by section 2(b) on Canadian Broadcasting Corp. v. Ferrier, 2019 ONCA 1025, 441 D.L.R. (4th) 632 [Ferrier]: see paragraphs 43, 62. In the end, the CBC relied upon both the open court principle and section 2(b) to support its demand for copies of the audio recordings. The CBC also relied on the limits on a court’s ability to withhold information from the public, as set out in the Dagenais/Mentuck framework.
[27] In the event that its primary argument was unsuccessful, the CBC invoked the balancing provision found at subparagraph 8(2)(m)(i) of the Privacy Act which provides as follows:8 (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
8 (2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est autorisée dans les cas suivants :
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(m) for any purpose where, in the opinion of the head of the institution,
m) communication à toute autre fin dans les cas où, de l’avis du responsable de l’institution :
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(i) des raisons d’intérêt public justifieraient nettement une éventuelle violation de la vie privée,
(ii) disclosure would clearly benefit the individual to whom the information relates.
(ii) l’individu concerné en tirerait ....
B. Is the Board subject to the open court principle?
[35] As indicated earlier in these reasons, the CBC framed its argument about access to copies of the audio recordings of Board hearings in terms of the open court principle:The open court principle, including the presumption of open access to adjudicative records, applies to administrative tribunals as well as to courts. This presumption extends to providing access to audio recordings of past hearings to members of the public and the media, similar to those available in the courts. This is also in line with the fact that Parole Board hearings are presumptively open to the public.
AB at p. 5574 [36] As can be seen from this passage, the CBC alleges that the open court principle applies to Board hearings, which is confirmed by the fact that Board hearings are presumptively open to the public. The CBC then posits that the open court principle, as applied to tribunals, includes the right of access to adjudicative records, which includes audio recordings: CBC’s memorandum of fact and law at para. 26.
[37] An examination of subsection 140(4) of the Act shows that Board hearings are presumptively open to the public, subject to appropriate restrictions arising from the subject matter of the hearing and the locations at which Board hearings are held. Subsection 140(4) of the Act provides as follows (underline added):140 (4) Subject to subsections (5) and (5.1), the Board or a person designated, by name or by position, by the Chairperson of the Board shall, subject to such conditions as the Board or person considers appropriate and after taking into account the offender’s views, permit a person who applies in writing therefor to attend as an observer at a hearing relating to an offender, unless the Board or person is satisfied that
140 (4) Sous réserve des paragraphes (5) et (5.1), la Commission, ou la personne que le président désigne nommément ou par indication de son poste, doit, aux conditions qu’elle estime indiquées et après avoir pris en compte les observations du délinquant, autoriser la personne qui en fait la demande écrite à être présente, à titre d’observateur, lors d’une audience, sauf si elle est convaincue que, selon le cas :
(a) the hearing is likely to be disrupted or the ability of the Board to consider the matter before it is likely to be adversely affected by the presence of that person or of that person in conjunction with other persons who have applied to attend the hearing;
(a) la présence de cette personne, seule ou en compagnie d’autres personnes qui ont demandé d’assister à la même audience, nuira au déroulement de l’audience ou l’empêchera de bien évaluer la question dont elle est saisie;
(b) the person’s presence is likely to adversely affect those who have provided information to the Board, including victims, members of a victim’s family or members of the offender’s family;
(b) sa présence incommodera ceux qui ont fourni des renseignements à la Commission, notamment la victime, la famille de la victime ou celle du délinquant;
(c) the person’s presence is likely to adversely affect an appropriate balance between that person’s or the public’s interest in knowing and the public’s interest in the effective reintegration of the offender into society; or
(c) sa présence compromettra vraisemblablement l’équilibre souhaitable entre l’intérêt de l’observateur ou du public à la communication de l’information et l’intérêt du public à la réinsertion sociale du délinquant;
(d) the security and good order of the institution in which the hearing is to be held is likely to be adversely affected by the person’s presence. (my emphasis)
(d) sa présence nuira à la sécurité ou au maintien de l’ordre de l’établissement où l’audience doit se tenir. [38] The wording of the subsection is clear that a person who applies in writing to attend a hearing as an observer shall be permitted to attend unless the Board or its designate is satisfied the admission of that person will give rise to one or more of the circumstances set out in paragraphs (a) to (d). While the courts do not have a pre-screening process like the Board has, limits can be placed on attendance at a court hearing. For example, in Ontario, subsections 135(1) and (2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provide:135 (1) Subject to subsection (2) and rules of court, all court hearings shall be open to the public.
135 (1) Sous réserve du paragraphe (2) et des règles de pratique, les audiences des tribunaux sont publiques.
(2) The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.
(2) Le tribunal peut ordonner le huis clos si la possibilité qu’une personne subisse un préjudice important ou une injustice grave justifie une dérogation au principe général de la publicité des audiences des tribunaux. [39] There is a similar provision in the Criminal Code, R.S.C. 1985, c. C-46 at subsections 486(1) and (2):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.
486 (1) Les procédures dirigées contre l’accusé ont lieu en audience publique, mais si le juge ou le juge de paix qui préside est d’avis qu’il est dans l’intérêt de la moralité publique, du maintien de l’ordre ou de la bonne administration de la justice ou que cela est nécessaire pour éviter toute atteinte aux relations internationales ou à la défense ou à la sécurité nationales, il peut, sur demande du poursuivant ou d’un témoin ou de sa propre initiative, ordonner que soit exclu de la salle d’audience l’ensemble ou tout membre du public, pour tout ou partie de l’audience, ou que le témoin témoigne derrière un écran ou un dispositif lui permettant de ne pas être vu du public.
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(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider
(2) Pour décider si l’ordonnance est dans l’intérêt de la bonne administration de la justice, le juge ou le juge de paix prend en considération les facteurs suivants :
(a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;
(a) l’intérêt de la société à encourager la dénonciation des infractions et la participation des victimes et des témoins au processus de justice pénale;
(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;
(b) la sauvegarde de l’intérêt des témoins âgés de moins de dix-huit ans dans toute procédure;
(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;
(c) la capacité d’un témoin, si l’ordonnance n’est pas rendue, de fournir un récit complet et franc des faits sur lesquels est fondée l’accusation;
(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
(d) la nécessité de l’ordonnance pour assurer la sécurité d’un témoin ou le protéger contre l’intimidation et les représailles;
(e) the protection of justice system participants who are involved in the proceedings;
(e) la protection des personnes associées au système judiciaire qui prennent part à la procédure;
(f) whether effective alternatives to the making of the proposed order are available in the circumstances;
(f) l’existence dans les circonstances d’autres moyens efficaces que celui de rendre l’ordonnance;
(g) the salutary and deleterious effects of the proposed order; and
(g) les effets bénéfiques et préjudiciables de l’ordonnance demandée;
(h) any other factor that the judge or justice considers relevant.
(h) tout autre facteur qu’il estime pertinent. [40] The point of drawing attention to these statutory provisions is simply to show that, even before the courts where it is applied most rigorously, the open court principle is not absolute. As a result, the conditions set out at paragraphs 140(4)(a) to (d) of the Act do not, in and of themselves, mean that Board hearings are not presumptively open to the public.
[41] But the fact that Board hearings are open to the public, while relevant, does not resolve the issue of the application of the open court principle. The following paragraph sets out the core of the Board’s reasoning on the open court principle:It is also important to note that the function of the Board is significantly different from a court in a number of ways. A parole hearing is inquisitorial in nature, not adversarial and although counsel may be present at a hearing, they have a very limited function. Put another way, the state’s interests are not represented and there are no contending parties. The Board does not have powers to summons, examine witnesses or to apply traditional rules of evidence. There is no determination of rights, but rather, an assessment of risk predicated on criteria set out in law. The information reviewed is highly personal, involving third parties, and is often medical or psychological in nature. Although observers can apply to attend, hearings are not open to the public. This also makes sense when one considers the correctional environment within which parole hearings are conducted.
AB at p. 352 [42] The key point in the Board’s reasoning is that its proceedings are inquisitorial, not adversarial in nature, as evidenced by the fact that the state’s interests are not represented and there are no contending parties: AB at p. 352. The conclusion that the Board does not act quasi-judicially flows from the Supreme Court’s decision in Mooring, which was relied upon by the Federal Court as well. The balance of the Board’s justification rests on the fact that the proceedings are not adversarial.
[43] The debate before the Federal Court on the open court principle turned on whether the Board is a quasi-judicial body. In Mooring, the issue was whether the Board was a court of competent jurisdiction so as to have jurisdiction to award remedies under subsection 24(2) of the Charter. In the course of its reasoning, the Supreme Court noted that the Board did not act in a judicial or quasi-judicial manner. This conclusion was founded, in part, on the fact that the Board did not hear evidence but, instead, proceeded on the basis of the information available to it: Mooring at paras. 25-26. The Supreme Court went on to observe that:The language of the Corrections and Conditional Release Act confers on the Board a broad inclusionary mandate. Not only is it not bound to apply the traditional rules of evidence, but it is required to take into account “all available information that is relevant to a case”. No mention is made of any power to apply exclusionary rules of evidence. Indeed, such a provision would conflict with its duty to consider “all available information that is relevant”.
Mooring at para. 29 (emphasis in original) [44] The Supreme Court concluded that:I conclude from the foregoing that the Board does not have jurisdiction over the remedy sought [the exclusion of evidence]. It is not, therefore, a court of competent jurisdiction within the meaning of s. 24 of the Charter.
Mooring at para. 30 [45] The Supreme Court found that the Board was not a court of competent jurisdiction in that it did not have the power to reject evidence, given that it was required to take into account “all available information that is relevant” to a case. The characterization of the Board’s proceedings as neither judicial nor quasi-judicial, while a consideration, was not determinative of the Supreme Court’s conclusion as to whether the Board was a court of competent jurisdiction for the purposes of section 24 of the Charter. The only link between Mooring and the application of the open court principle to the Board is its determination that the Board was not a quasi-judicial tribunal.
[46] While this Court’s focus is on the Board’s decision, it is worth noting that in the course of its analysis of Mooring’s relevance, the Federal Court held that the Supreme Court’s decision in Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495, 92 D.L.R. (3d) 1 [Coopers and Lybrand] was of no assistance. That case dealt with this Court’s jurisdiction in judicial review which, at the time, applied only to a “… decision or order other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis …”: Coopers and Lybrand at p. 499.
[47] Notwithstanding the fact that the Supreme Court changed its position in R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 [Bird] and found that the Board was a court of competent jurisdiction for the purpose of subsection 24(2) of the Charter, the Federal Court considered that Bird served only to distinguish Mooring on that issue. The Federal Court held that Bird did not overrule or displace Mooring on the issue of whether the Board is a quasi-judicial tribunal: Decision at para. 88.
[48] With all due respect, the judicial/quasi-judicial distinction has outlived its usefulness in its application to the open court principle. The difficulty with relying on the characterization of a tribunal as quasi-judicial is that it focuses on the Board’s processes and formal characteristics rather than its function. The public interest in court proceedings does not arise from a court’s procedural characteristics but from the fact that it decides questions of rights and duties as between citizens and as between citizens and the state.
[49] Much of the jurisprudence on the open court principle and administrative tribunals is based on the decision of the Federal Court of Canada in Southam Inc. v. Canada Minister of Employment and Immigration, 1987 CanLII 9001 (FC), [1987] 3 F.C. 329, 13 F.T.R. 138 (T.D.) [Southam], where the following appears at page 336:That decision [Re Southam Inc. and The Queen (No. 1) (1983), 1983 CanLII 1707 (ON CA), 1 O.R. (2d) 113, 146 D.L.R. (3d) 408 (C.A.)] arose in the context of a court proceeding. The detention review hearing in this case involves a statutory body exercising its functions and it is to be determined if they are judicial or quasi-judicial in nature and by implication subject to accessibility; does the openness rule apply to their proceedings. Mr. Justice Dickson, as he then was, in Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495 determined that a proceeding can be found to be judicial or quasi-judicial if it met certain tests. ...
(emphasis added) [50] The rationale for focusing on judicial or quasi-judicial tribunals was laid out in Travers v. Canada (Chief of Defence Staff), 1993 CanLII 2986 (FC), [1993] 3 F.C. 528, 18 C.R.R. (2d) 135 (T.D.) [Travers]:Since the adoption of the Charter, it is true that the open door doctrine [the open court principle] has been applied to certain administrative tribunals. While the bulk of precedents have been in the context of court proceedings, there has been an extension in the application of the doctrine to those proceedings where tribunals exercise quasi-judicial functions, which is to say that, by statute, they have the jurisdiction to determine the rights and duties of the parties before them.
This more extensive doctrine would appear to be entirely consistent with its original purpose. If justice is to be patently and evidently done in the courts, there is no reason why it should not also be done when a tribunal exercises substantially the same judicial functions.
Travers at p. 532 [51] There are two threads in this explanation. The first follows from the observation in Southam, quoted above, that the tribunal in that case was “a statutory body exercising its functions”. Travers completes this by noting that tribunals to whom the open court principle had been extended were tribunals where “by statute, they have the jurisdiction to determine the rights and duties of the parties before them”. The second is that the legitimacy of tribunals whose function closely resembles that of the courts rests on the same public oversight of their work by the media. This is consistent with the conclusion reached by the Court in Southam:After all, 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.
Southam at p. 336 (emphasis added) [52] As these passages demonstrate, the application of the open court principle, while linked to a tribunal’s quasi-judicial status, rests on a broader footing. If the quasi-judicial distinction has outlived its usefulness, the question that arises is what will replace it as an indicator of the applicability of the open court principle.
[53] It appears that, whatever other distinctions may exist between different kinds of administrative tribunals, the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle. It is the fact of adjudicating competing interests that imposes the duty of fairness and impartiality which gave rise to the description of some tribunals as quasi-judicial. In Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, such tribunals were described as adjudicative tribunals. The characteristic that gives rise to the application of the open court principle to an administrative tribunal is the presence of an adversarial process, as opposed to the formalities by which that adversarial process is conducted. In short, the open court principle applies to adjudicative tribunals.
[54] Is the Board an adjudicative tribunal? The Board says that it is not because its proceedings are inquisitorial – not adversarial – in that the Board is engaged in a risk assessment process in the course of which it receives information from Corrections Canada and submissions from the offender and victims. The offender is not opposed by a representative of the state, as is the case, for example, in a sentencing hearing. Similarly, the offender’s counsel, if they have one, has a limited role in Board hearings.
[55] The CBC argues that the open court principle applies (or should apply) because of the public interest in the subject matter of a hearing. At paragraph 32 of its memorandum of fact and law, the CBC argues that the open court principle, as recognized in section 2(b) of the Charter, arises from “the public’s right to express ideas about public institutions and obtain information about their functioning”, sentiments that are expressed in Southam and Travers quoted earlier in these reasons. This casts a wider net than does the categorization of a tribunal as “quasi-judicial” or “adjudicative”. While the public has an interest in knowing about the functioning of all public bodies, the open court principle has to date been limited to those public bodies whose resemblance to courts invites the same degree of public oversight represented by the open court principle. It may be that, at some point, a broader foundation for the “openness” will be articulated, but the facts of this case do not justify that change.
[56] In the result, the Board and the Federal Court did not err in concluding that the open court principle does not apply to the Board’s proceedings. This creates the anomalous situation in which a tribunal whose hearings are presumptively open to the public is not subject to the open court principle. There are many public agencies whose meetings are open to the public but that are not subject to the open court principle. This is not to say that section 2(b) of the Charter does not apply to them, simply that openness is more nuanced and may not be as fulsome as it is in relation to adjudicative tribunals that are subject to the open court principle. The fact that an administrative body opens its doors to the public is not sufficient, in and of itself, to trigger the application of the open court principle.
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