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Courts - Implied Jurisdiction. R. v. T.W.W.
In R. v. T.W.W. (SCC, 2024) the Supreme Court of Canada considers the criminal code 'Evidence of complainant’s sexual activity' provisions [CCC 276], previously used commonly in sex offence charges. The case also involves related 'open court' issues where such evidence may be publically-disclosed.
Here the court considers the 'open court' doctrine as an aspect of it's 'implied jurisdiction':(3) The Court Has Implied Jurisdiction To Make Orders Limiting Court Openness
[68] The Court’s power to make an order limiting court openness in this case is derived from the implied jurisdiction of courts to control their own processes and records (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480 (“C.B.C. v. New Brunswick”), at para. 37; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1457; Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 189). Pursuant to this implied jurisdiction, a court may exercise its discretion to make orders for the conduct of a hearing, including orders that a hearing proceed in camera, and for the sealing of filed materials. Accordingly, this Court may consider whether this is an appropriate case to exercise its discretion in this manner.
[69] I note at the outset that a court’s discretion to make orders that limit court openness is not to be exercised lightly. This Court has long recognized the importance of the open court principle as a vehicle to give effect to freedom of expression and fair trial rights under the Canadian Charter of Rights and Freedoms, as well as to promote confidence and integrity in the administration of justice (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at pp. 876-77 and 882; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 29; MacIntyre, at p. 185; C.B.C. v. New Brunswick, at paras. 21-22; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at paras. 30 and 39). But while court openness is the rule, it is not an absolute or overriding principle. It is balanced against other interests that are worth protecting, such as the legislative objectives underlying the s. 276 regime. The exercise of this Court’s discretion must give effect to these legislative objectives, notwithstanding that, in this case, they do not operate through the vehicle of s. 278.95. In this regard, I echo the observation by the court in R. v. Davies, 2022 BCCA 103, 412 C.C.C. (3d) 375, that while the legislative provisions governing the disclosure and use of personal and private information in sexual offence cases do not apply on appeal, their “substantive purpose, protecting the dignity and privacy of complainants, is not limited to the trial process” (para. 18 (emphasis added)). The complainant’s personal interest in privacy and dignity, and the public’s shared interest in the same, are still present on appeal, though the interests of justice that are weighed against privacy and dignity interests are informed by the particular function of this Court as the apex appellate court.
[70] Further, when considering restrictions on appellate court openness, a court of appeal should also consider what orders were previously made in relation to the trial. As courts of second or third instance, appellate courts act in sequence and have a unique position: not only do they have the ability to uphold or overturn prior decisions about court openness restrictions, but whether and what restrictions were imposed in the proceedings below may impact an appellate court’s decision to add, remove, or modify such restrictions on appeal. This may be especially salient when Parliament has imposed mandatory restrictions at the trial level in an attempt to encourage the reporting of sexual offences (see Canadian Newspapers Co. v. Canada (Attorney General), 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122, at para. 15).
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