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Open Court - Application (2). 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]
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[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]
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[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.
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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] . Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. [IMPORTANT re Access to Info Act]
In Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. (Fed CA, 2023) the Federal Court of Appeal considers an appeal from an unusual multi-party Access to Information Act (AIA) statutory de novo 'review' [under s.44(1)] (neither an appeal nor a JR) at the Federal Court.
In these quotes, the court makes the important point that the 'open court' principle does not apply to AIA-scheduled institutions [see para 55] (a principle which may apply to Ontario FIPPA/MFIPPA as well):D. If the Withheld Information does contain personal information, did the Federal Court fall into palpable and overriding error in not disclosing those documents pursuant to the open court principle?
[54] The Families argued that the material in the Parole Board’s hands, including audio recordings and the documents that the Board considered in dealing with Mr. Munro’s and Mr. Bernardo’s applications for parole, should have been released pursuant to the open court principle.
[55] The open court principle does not apply to Corrections Canada as it is a government institution listed in Schedule 1 to the AIA. Its mission is to operate correctional institutions for offenders with a view to returning them to society as law-abiding citizens. In the course of that mandate, it collects information and creates records about the persons in its charge for the purpose of managing their experience so as to achieve its ultimate mission. As the list of the records it creates and maintains set out in paragraph 45 above indicates, most if not all of that information is personal information. It is not a tribunal, let alone an adjudicative tribunal, and is therefore not subject to the open court principle.
[56] This Court dealt with the application of the open court principle to the Parole Board in Canadian Broadcasting Corporation v. Parole Board of Canada, 2023 FCA 166, [CBC] released contemporaneously with these reasons. In that decision, the Court examined the jurisprudence underlying the application of the open court principle to administrative tribunals. The Court found that the application of that principle to a tribunal based on whether it was quasi-judicial was no longer relevant. It decided instead that a better indicator of whether the open court principle applied was whether the tribunal in question was an adjudicative tribunal, that is, a tribunal that presided over adversarial proceedings in which questions of rights and obligations were decided.
[57] The Federal Court agreed with the Parole Board when it said that it was not subject to the open court principle because the proceedings before it were not adversarial but inquisitorial. The fact that the state’s interest was not represented before the Board was indicative of the absence of adversarial proceedings. In addition, the Board argued that it did not adjudicate rights but rather assessed risk.
[58] In their memorandum of fact and law, the Families write at length about the open court principle, but their submissions are unpersuasive. For example, they argue that the open court principle has equal application to all administrative tribunals, including the Parole Board, as the legitimacy of their proceedings can be effectively monitored only if their proceedings are open to the public, citing 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]. Of course, Board hearings are open to the public. As for Southam, it dealt with the application of the open court principle to quasi-judicial tribunals. The Families go on to rely on Justice Morgan’s learned decision in Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, but that case concerned 13 adjudicative tribunals, all of which are designated as “institutions” in the Schedule to the Freedom of Information and Protection of Privacy Act, a designation which created the conflict between those tribunals and the freedom of information legislation.
[59] Other cases which the Families relied on all dealt with the application of the open court principle to courts of law: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 (application in the Ontario Court of Justice), Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 (application in the Federal Court of Canada), CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 2002 CanLII 41398 (ON CA), 59 O.R. (3d) 18, 5 C.R. (6th) 189 (C.A.) (application in the Ontario Superior Court of Justice), Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20, [1989] 2 S.C.R 1326, (Alberta Judicature Act), Sherman Estate (application in the Ontario Superior Court of Justice).
[60] In addition, none of those cases holds that privacy interests must always be subordinated to the open court principle. The Sherman Estate case says the opposite:... Further, in assessing the constitutionality of a legislative exception to the open court principle, this Court has recognized that the protection of individual privacy can be a pressing and substantial objective (Edmonton Journal, at p. 1345, per Cory J.; see also the concurring reasons of Wilson J., at p. 1354, in which “the public interest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process” was explicitly noted). ...
... In F.N. (Re), this was the personal interest that young offenders had in remaining anonymous in court proceedings as a means of encouraging their personal rehabilitation (para. 11). All of society had a stake, according to Binnie J., in the young person’s personal prospect for rehabilitation. This same idea from F.N. (Re) was cited in support of finding the interest in Sierra Club to be a public interest. …
Sherman Estate at paras. 52–53 [61] In the result, the Families have not shown that the open court principle applies to the Parole Board or to Corrections Canada. In CBC, this Court found that the CBC was not entitled to copies of audio recordings of Parole Board hearings pursuant to the open court principle.
[62] In light of the conclusion that the Parole Board is not an adjudicative tribunal, the question of the production of adjudicative records does not arise. As a result, the Families are not entitled to what they seek from the Parole Board pursuant to the open court principle.
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