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Criminal - Open Court
MORE CASES
Part 2
. Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege:(2) The Interests Protected by the Open Court Principle Yield to Those Protected by Informer Privilege
[37] Informer privilege is of such importance that it has repeatedly been characterized as “absolute” or “near absolute”. This characterization can be explained by the fact that the privilege is non‑discretionary, in the sense that its recognition does not depend on any balancing of interests. This means that once informer status is established, courts are not permitted to weigh the maintenance or scope of the privilege on a case‑by‑case basis in light of the circumstances of the case and competing legitimate interests, such as the level of risk faced by the informer, the pursuit of truth or the preservation of public confidence in the administration of justice (see Vancouver Sun, at paras. 4, 22, 26 and 55; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at paras. 12 and 14; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at paras. 22 and 37; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42; Barros, at paras. 1, 30 and 35; Durham, at paras. 1, 11 and 14‑15; Brassington, at para. 36; Canada (Transportation Safety Board) v. Carroll‑Byrne, 2022 SCC 48, at paras. 6 and 8; J. Fournier, “Les privilèges en droit de la preuve: un nécessaire retour aux sources” (2019), 53 R.J.T.U.M. 461, at pp. 489, 491‑92 and 495).
[38] The informer privilege rule applies in civil, administrative and criminal proceedings and admits but one exception, under the criminal law, in cases where this is “necessary to establish innocence in a criminal trial” (Vancouver Sun, at para. 27). The exception is a narrow one that is distinct from the broader right of an accused to make full answer and defence (see Basi, at paras. 22, 37 and 43; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at pp. 93 and 107; Barros, at paras. 28 and 34; Durham, at para. 14; Brassington, at para. 36; Vancouver Sun, at para. 26; Hubbard and Doherty, at §§ 2:7 and 2:13).
[39] This privilege belongs “both to the Crown and to the informer and neither can waive it without the consent of the other” (Durham, at para. 11, citing Vancouver Sun, at para. 25). As long as its application has not been validly waived, the police, the Crown and the courts have a duty to keep the identity of informers confidential. These three actors are part of the very limited circle of privilege, which the courts have refused to widen to include, for example, defence counsel or the syndic of the Barreau du Québec (see Vancouver Sun, at paras. 21 and 25‑26; Basi, at paras. 44‑45; Barros, at para. 37; Bilodeau v. Directeur des poursuites criminelles et pénales, 2020 QCCA 1267; D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 334).
[40] In the case of the courts, the duty to keep a police informer’s identity confidential means that they do not have “any discretion to disclose . . . information [that might tend to identify the informer] in any proceeding” (Vancouver Sun, at para. 30), even where limiting the scope of the privilege in a particular case would allow “more complete justice” to be done (Bisaillon, at p. 102). The application of the privilege is not subject to any formal requirement, and judges must even ensure respect for it of their own motion (see Bisaillon, at p. 93). Therefore, contrary to the arguments made by the Canadian Broadcasting Corporation et al. (A.F., at paras. 68 and 79), the test developed in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, and reformulated in Sherman is of no assistance, because a judge has no discretion once it is shown that informer privilege applies (Vancouver Sun, at paras. 34‑37).
[41] As the Court of Appeal correctly pointed out, non‑discretionary privileges must [translation] “take precedence over any other consideration, even of public order or public interest, with some limited exceptions” (2022 QCCA 984, at para. 53). Relying on this Court’s decision in National Post (at para. 42) and quoting Beetz J. in Bisaillon (at pp. 97‑98), the Court of Appeal then made the following comments, which are worth reproducing:[translation] It is a privilege that produces its effects “without regard to the particulars of the situation” (thus without regard to the facts of each case) and without it being necessary to establish harm, which is in fact presumed, or an increase in the risk of harm. Indeed, this is how it differs from privilege recognized on a case‑by‑case basis, which calls for such a balancing of the interests of those who claim confidentiality and must show that it is necessary against the interests of those who oppose it or seek access to information. As Beetz J. explained in Bisaillon, comparing Crown privilege and informer privilege:This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers’ identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice. [Bold added; para. 53.] [42] In short, recognition of the non‑discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by informer privilege. This is a difficult societal choice in the sense that it may, in some circumstances, prevail over other very important public interest objectives — for example, promoting the accountability of the judiciary through open justice, favouring adversarial proceedings and ensuring the pursuit of truth — but it is a choice that is essential in guaranteeing the effectiveness of police investigations, the maintenance of public order and the protection of the Canadian public. . Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege.
Here the court usefully summarizes the open court principle:[26] It will be helpful to begin the analysis by reviewing the importance of the open court principle and the rules surrounding informer privilege.
A. Court Openness: A Pillar of Our Free and Democratic Society
[27] This Court has repeatedly affirmed that the open court principle, which is protected by the constitutionally entrenched right of freedom of expression, is a pillar of our free and democratic society (Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at paras. 1 and 30; C.B.C. v. Manitoba, at para. 78; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, at paras. 66 and 84; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23‑26; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480 (“C.B.C. v. N.B.”), at para. 23).
[28] The open court principle has two aspects: first, the public nature of hearings and court records, and second, the right to report on court proceedings. Under this principle, every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content (see Sherman, at paras. 1‑2; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, at pp. 1338‑40; S. Menétrey, “L’évolution des fondements de la publicité des procédures judiciaires internes et son impact sur certaines procédures arbitrales internationales” (2008), 40 Ottawa L. Rev. 117, at p. 120, quoting A. Popovici, “Rapport sur le secret et la procédure en droit canadien”, in Travaux de l’Association Henri Capitant, vol. 25, Le secret et le droit (Journées Libanaises) (1974), 735, at p. 742).
[29] Coupled with the existence of free, robust and independent news media, the open court principle performs a number of important social and democratic functions. Among other things, it allows for informed debates and conversations in civil society about the courts and their workings, which helps ensure the accountability of the judiciary. As a result, this principle promotes both judicial independence and an administration of justice that is impartial, fair and in accordance with the rule of law. Open justice also facilitates the public’s understanding of the administration of justice and enhances public confidence in the integrity of the justice system and all of its participants (see Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at pp. 183 and 185; Edmonton Journal, at pp. 1337‑40; C.B.C. v. N.B., at para. 23; Vancouver Sun (Re), at paras. 23‑25; Vancouver Sun, at para. 32; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19 (“C.B.C. v. Canada”), at para. 28; Denis v. Côté, 2019 SCC 44, [2019] 3 S.C.R. 482, at para. 45; Menétrey, at pp. 124‑27).
[30] Bailey and Burkell eloquently describe some of the important functions of open and transparent justice, including in maintaining the legitimacy of the justice system:The very legitimacy of the legal system depends on “public acceptance of process and outcome,” and the open court system promotes this acceptance by ensuring the accountability of the justice system. ...
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It is not just judges who are presumably held to account by the open court principle. The principle is also said to support positive results with respect to other justice system players and functions outside of the courtroom, including police officers and warrants. The openness of trials has been held to be an expression of the judge’s confidence that what happens in the courtroom is “beyond reproach.” Transparency in the processes of justice is not only thought to act as a “powerful disinfectant” for exposing and remedying abuses; by acting in public view, the courts can demonstrate that fair trials (rather than show trials where conviction is a foregone conclusion) are still happening.
The open court principle, therefore, can clearly be understood to be a means of assuring the public accountability of the court system and its key actors, particularly judges. [Footnotes omitted.]
(J. Bailey and J. Burkell, “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2016), 48 Ottawa L. Rev. 143, at pp. 152‑53)
Their comments clearly underscore how court openness helps to maintain and enhance public confidence in, and serves “in a way as a guarantee of”, the integrity of the justice system, including all of its participants (C.B.C. v. Canada, at para. 28). [31] When it comes to the social and democratic functions of the open court principle, the key role played by the news media cannot be overemphasized. Indeed, without free, robust and independent news media to inform the Canadian public of what is happening in courtrooms, and in the justice system more broadly, open justice is of only limited social and democratic utility. The reason for this is that, in the vast majority of cases, it is the media that serve as “the eyes and ears of a wider public which would be absolutely entitled to attend [proceedings under way] but for purely practical reasons cannot do so” (Sherman, at para. 30, quoting Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16; see also Edmonton Journal, at pp. 1339‑40). As Cory J. wrote in Edmonton Journal, “[i]t is only through the press that most individuals can really learn of what is transpiring in the courts” (p. 1340). It is only the presence of free, robust and independent news media that actually enables the public to understand and form an opinion on the justice system, to hold it accountable and to have confidence in it (see Edmonton Journal, at p. 1340, quoted in C.B.C. v. N.B., at para. 23).
[32] Because of the fundamental importance of court openness, confidentiality orders limiting it can be made by the courts only in rare circumstances. These exceptions, which may be either statutory or judicial in nature, are predicated on the idea that openness cannot prevail if the ends of justice, or the interests that openness is meant to protect, would be better served in some other way (see Scott v. Scott, [1913] A.C. 417 (H.L.); MacIntyre; Edmonton Journal; C.B.C. v. N.B.; see also Menétrey, at p. 126). One of these exceptions is informer privilege, which is the one in question in this case. . 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 aspects of the case, here particularly the statutory CCC 278.95 ['Assaults - Publication prohibited'] - which it finds inapplicable to appeal courts:[18] The Court must also determine the Crown’s motion to conduct the hearing before this Court in camera, to seal the filed materials, and to make any other order necessary to protect the information protected by ss. 276 and 278.93 to 278.95 of the Criminal Code. This requires the Court to consider its authority to do so and whether this appeal warrants additional orders that would limit court openness in this case.
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C. Limitations on Court Openness on Appeals of Section 276 Determinations
[55] The Crown brought a motion before this Court requesting orders “necessary in light of sections 278.93 to 278.95 of the Criminal Code” (p. 1), namely that the appeal proceed in camera, that the parties’ factums be sealed and only redacted versions made public, and any other order deemed necessary. The appellant opposed only the obligation to further redact his factum beyond information covered under ss. 276 and 278.93 to 278.95, arguing that certain unredacted information was already published in the judgment of the Court of Appeal. On an interim basis, the Court accepted the filed materials under seal and held the hearing in camera pending its final disposition of the motion.
[56] The Crown’s motion requires this Court to consider the source of its powers to make orders limiting court openness on appeals of s. 276 determinations. This issue engages an exercise in statutory interpretation. The modern approach to be taken is well known: “. . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, as cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21).
[57] The Crown argues that s. 278.95 and the discretion it affords applies to this Court; or, if it does not, then this Court can make certain orders for the conduct of the hearing and publication of their reasons pursuant to its implied jurisdiction. Section 278.95 reads as follows:Publication prohibited
278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under subsection 278.93;
(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;
(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under subsection 278.94(4), unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction. Section 278.95 thus prohibits the publication of information and evidence adduced for applications and admissibility hearings pursuant to ss. 278.93 and 278.94, but provides trial judges with a discretion to permit the publication of their decision or determination under s. 278.93(4) or 278.94 by others after considering the complainant’s right of privacy and the interests of justice.
[58] As I will explain, this Court’s implied jurisdiction grants it authority to make orders for the conduct of its hearings and publication of its reasons, not s. 278.95. I begin first by summarizing the history and purpose of the prohibition on publication under s. 278.95 before considering its application to this Court.
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(2) Text and Legislative Scheme of Section 278.95
[63] The Crown suggests that the mandatory ban under s. 278.95 of the Criminal Code extends to appellate proceedings and allows the Court to order that this appeal hearing proceed in camera (as it did at trial, pursuant to s. 278.94) and to seal the filed materials. The corollary of this argument is that the Court may also displace the presumptive prohibition on publication under s. 278.95 and permit the publication, broadcast or transmission of the trial judge’s decision under s. 278.93 or determination under s. 278.94, after balancing the complainant’s privacy and dignity and the interests of justice.
[64] In my view, there are several reasons s. 278.95 does not support the Crown’s proposition. First, a plain reading of the text suggests that it is aimed not at courts but at other entities who would otherwise publish a court’s decisions, such as law reporters, media outlets and reporters, and the general public. Section 278.95(1) prohibits publication by “[a] person” while s. 278.95(2) creates an offence for “[e]very person” who contravenes subs. (1). The definition of “every person” in the Criminal Code, while specifically including His Majesty and organizations, does not mention courts (see s. 2). “Person” is not a defined term in the Criminal Code, and is defined in the Interpretation Act, R.S.C. 1985, c. I-21, simply as including a corporation (s. 35(1)). Applying the ordinary sense of the word “person”, this clearly would not include a court. It is notable that some neighbouring provisions to s. 278.95 make specific reference to a “judge, provincial court judge or justice” (see ss. 278.92 and 278.93) and that a “court of appeal” is a defined term in the Criminal Code that is used throughout (s. 2). Importantly, a court cannot be found guilty of the offence created by s. 278.95(2). It is thus not evident on a plain reading that “a person” could reasonably be expanded to include judges, justices, or courts of appeal. The wording of s. 278.95 also states that it is only “the judge or justice” who made a decision under s. 278.93(4) or 278.94(4) who may order the publication, broadcast or transmission of otherwise prohibited information. This indicates that the power to displace the presumptive statutory prohibition is limited to trial judges who have the ability to make such orders in trial proceedings.
[65] The scope and application of s. 278.95 must also be interpreted in light of its scheme and object. Section 278.95 is situated among a series of provisions dictating the procedural requirements where the accused seeks to obtain or adduce evidence relating to a complainant in which there is a privacy and personal dignity interest (see Criminal Code, ss. 278.1 to 278.98). These issues are matters of evidentiary admissibility, an issue which does not typically arise in appellate proceedings. The purpose of these procedural provisions as a whole is to provide a means of ensuring that the substantive protections against improper use of other sexual activity evidence are enforced (Darrach, at para. 20); their primary focus is aimed at thwarting attempts to bring distorting evidence into the trial in the first place. Read in this context, the objects of s. 278.95 can be understood as furthering the goal of keeping improper evidence out of trial proceedings by restricting the publication of evidence and information that would ordinarily occur in the normal course of a trial, and entrusting the decision as to whether publication of the s. 278.93(4) decision or s. 278.94(4) determination is appropriate to the judge or justice who has had the benefit of hearing all submissions on the admissibility of the proposed information or evidence. In this respect, too, s. 278.95 seems primarily concerned with the conduct of trial proceedings.
[66] Finally, the provisions relating to the admissibility of other sexual activity evidence contemplate the appeal of such determinations (see s. 278.97) but do not explicitly extend the trial protections to appellate proceedings or otherwise indicate the appropriate procedure on appeal. Had Parliament intended for s. 278.95 to apply to reviewing courts, it could have explicitly stated so.
[67] For these reasons, I am not convinced that s. 278.95 applies to this appeal, as the Crown suggests. In the absence of a legislatively imposed exception to the open court principle, the presumption of court openness persists.
(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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