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Federal Court - Open Court. Quebec Inc. v. Canada (Privacy Commissioner)
In Quebec Inc. v. Canada (Privacy Commissioner) (Fed CA, 2024) the Federal Court of Appeal considered 'open court' doctrine - here commenting on the care that courts, tribunals and the legal profession must exercise to ensure compliance with relatively new 'openness' law:[15] This is sufficient to determine this appeal and the motions. However, a few words need to be said about the challenges posed by the open court principle in appeals such as this. Our words are not specifically directed to the counsel in this case but rather to courts and the legal profession at large.
[16] The open court principle is of constitutional force, essential in a democratic state, and has been described as the “very soul of justice”: Sierra Club at paras. 36, 52 and 86; Sherman Estate at para. 1; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480 at para. 22. The guidance in these cases is firm, binding and clear, a prescription for all participants in the justice system to follow.
[17] This appeal presented an unusual challenge. Before us was a difficult chicken-and-egg situation: under appeal was an order denying parties’ request for confidentiality based on evidence that itself was said to be confidential. But undue openness and disclosure in the appeal would render moot the appellants’ appeal seeking confidentiality. Despite this, in the end, after eight directions and orders issued by this Court in the last month, much openness was achieved, making it possible for public observers to appreciate the nature of what was taking place.
[18] As for the hearing in this case, we emphasized the need to keep it as open as possible and the closed session as short as possible. To this end, only a five-minute portion was held in closed session.
[19] In cases like this, all in the justice system must keep the open court principle front of mind. For example, counsel must remember that they are officers of the court, ethically bound to further the administration of justice and the public’s confidence in it. Counsel must work with the Court to ensure that the Court’s proceedings are as open as possible.
[20] In particular, all must follow strictly the guidelines—open to interpretation and occasional difficulties of application—as they are set out in Sierra Club and Sherman Estate. Among other things, in exceptional cases—and truly exceptional they must be—where the need for confidentiality has an important public dimension as explained in these cases, confidentiality must nevertheless be minimized. In this regard, where possible—and it almost always is—public versions of confidential material must be filed alongside confidential material and the redactions in the confidential material must be minimized in accordance with a strict reading of the governing confidentiality order.
[21] This Court regularly reviews its practices in cases involving confidential evidence—especially in particularly challenging cases such as this—to ensure that our proceedings are as open as possible, in accordance with Sierra Club, Sherman Estate and the fundamental constitutional imperatives that underlie them. . Blank v. Canada (Justice)
In Blank v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an interlocutory appeal in an ATIA (Access to Information Act) JR, here of orders allowing the respondent "to file a confidential affidavit and confidential exhibits":[2] The context is an application to the Federal Court for judicial review under section 41 of the Access to Information Act, R.S.C. 1985, c. A-1 [Access Act] of the respondents’ refusal to disclose certain records requested by the appellant.
[3] The respondents released a total of 24,730 pages with 20,111 pages redacted in whole or in part. The redactions were made pursuant to various provisions of the Access Act, including subsection 16(2), subsection 19(1), section 23 and paragraph 68(a).
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[5] In connection with the section 41 application, the respondents brought a motion pursuant to Rule 151 of the Federal Courts Rules, S.O.R./98-106 [Rules] seeking to file a confidential affidavit with unredacted copies of the relevant records.
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[9] The confidentiality order was issued pursuant to Rule 151 and subsection 47(1) of the Access Act. Rule 151 provides that the Court may order that material be treated as confidential, provided the Court is satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
[10] Subsection 47(1) of the Access Act directs the Court, in the context of a section 41 application, to take precautions to avoid premature disclosure of information. Subsection 47(1) provides:Court to take precautions against disclosing
47 (1) In any proceedings before the Court arising from an application under section 41 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part; or
(b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Part, does not indicate whether it exists.
Précautions à prendre contre la divulgation
47 (1) Dans les procédures découlant des recours prévus aux articles 41 et 44, la Cour prend toutes les précautions possibles, notamment, si c’est indiqué, par la tenue d’audiences à huis clos et l’audition d’arguments en l’absence d’une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :
(a) des renseignements qui, par leur nature, justifient, en vertu de la présente partie, un refus de communication totale ou partielle d’un document;
(b) des renseignements faisant état de l’existence d’un document que le responsable d’une institution fédérale a refusé de communiquer sans indiquer s’il existait ou non. [11] The essence of a section 41 application is to determine whether statutory exemptions apply that were relied on by the government in withholding information: Blank v. Canada, 2005 FCA 405 at para. 18 [Blank 2005]. The Court’s process should not result in disclosure before the Court makes a substantive ruling on the availability of these exemptions.
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[14] The appellant does not oppose the filing of a confidential affidavit altogether. Consistent with this Court's guidance in Blank 2005, the appellant acknowledges that the Confidential Affidavit should include all of the records at issue in the section 41 application.
[15] In Blank 2005 at paragraph 18, the Court stated that section 47 must apply not only to the record that is the subject of the section 41 (or section 42) proceeding, but to other material or information which, if disclosed in the course of the proceeding, would disclose some or all of the contents of the record itself.
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