|
Open Court - Criminal Statutory. 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.
....
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.
....
(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). . La Presse inc. v. Quebec [jury separation publication ban - CCC 648(1)]
In La Presse inc. v. Quebec (SCC, 2023) [Court's Case in Brief] the Supreme Court of Canada considered the (temporary) pre-jury-empanelment application of the CCC s.648 prohibition on publication of any criminal proceedings conducted in the absence of a jury (the 'automatic publication ban').
In these quotes the court comments on the 'open court principle':[5] The open court principle has been recognized by this Court as fundamental throughout the entirety of criminal proceedings, that is, both at the “pre-trial” or pre‑empanelment stage and during the trial (Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 27, citing Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at pp. 183 and 186). ...
....
[7] There is no irreconcilable conflict between the open court principle and trial fairness. They both serve to instill public confidence in the justice system. The public can understand the work of the courts, and thus come to trust the judicial process and its outcomes, only if informed of “what a judge decides” and “why the particular decision is made” (Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 65 (emphasis in the original)). Needless to say, the media play a crucial role in making this possible (Sherman Estate v. Donovan, 2021 SCC 25, at para. 30, citing Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161, at para. 16; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, at pp. 1339-40). The protection of fair trial interests, such as the right to an independent, impartial, and representative jury, is also essential to public confidence in the administration of justice (R. v. Chouhan, 2021 SCC 26, at para. 12, citing R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at pp. 523-24; see also R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 55, citing Sherratt, at pp. 523-25, and R. v. Church of Scientology (1997), 1997 CanLII 16226 (ON CA), 33 O.R. (3d) 65 (C.A.), at pp. 118-20).
....
[37] Section 648(1) operates alongside numerous other provisions establishing publication bans, particularly ss. 517(1), 539(1) and 542(2), and the inherent jurisdiction of a judge to impose a discretionary ban under the Dagenais/Mentuck/Sherman framework. Section 517 allows a judge to prohibit the publication of “the evidence taken, the information given or the representations made and the reasons, if any, given or to be given” at a bail hearing. Section 539 allows a judge to prohibit the publication of “the evidence taken” at the preliminary inquiry. The bans in ss. 517 and 539 are mandatory when requested by the accused but discretionary when requested by the Crown. Section 542(2) creates an automatic publication ban with respect to “any admission or confession [that] was tendered in evidence at a preliminary inquiry”. Discretionary bans are those that may be ordered at the discretion of the court; mandatory bans are those that must be imposed at the request of a particular party, and automatic bans are bans that apply by operation of statute. See generally J. Rossiter, Law of Publication Bans, Private Hearings and Sealing Orders (loose-leaf), at §§ 1:7 and 4:48-4:58.
....
(2) Interest in an Efficient System of Trial by Jury
[51] Parliament in 1972 intended to protect another interest falling within the right to a fair trial, namely, the interest of both the accused and society in the efficiency of our system of trial by jury. Parliament made information which would otherwise have been covered by discretionary publication bans subject to an automatic publication ban and, in so doing, demonstrated a clear concern for speedy trials and the proper expenditure of judicial resources.
[52] Historically, the media were expected not to prejudice judicial proceedings, such that “the publication of improper information before a case is heard or the dissemination of improper information about a case which is to be heard or is not fully heard” was punishable as contempt of court (see Steiner v. Toronto Star Ltd., 1955 CanLII 100 (ON SC), [1956] O.R. 14 (H.C.J.), at p. 20, quoting with approval R. v. Evening Standard Co. Ld., [1954] 1 Q.B. 578, at p. 584; see also St. James’s Evening Post Case (1742), 2 Atk. 469, 26 E.R. 683). In other words, publication could be punished, at the remedy stage, even in the absence of an express publication ban. Eventually, it became the practice for courts to issue publication bans as an exercise of their inherent jurisdiction (see, e.g., R. v. Jansen, 1976 CanLII 1547 (BC SC), [1976] 4 W.W.R. 277 (B.C.S.C.); Scott v. Scott, [1913] A.C. 417 (H.L.); R. v. Clement (1821), 4 B. & Ald. 218, 106 E.R. 918).
[53] Under s. 648(1), information about a specific subset of matters which would otherwise have been prohibited from publication by way of discretionary bans was made subject to an automatic publication ban. The latter requires no action to be taken by the parties and the judge; it applies automatically when the stipulated conditions are met. Clearly, Parliament must have had delays and judicial resources in mind when it removed judicial discretion relating to the publication of information about matters dealt with in the absence of the jury.
[54] An absurd interpretation of s. 648(1) that would defeat this objective of efficiency must be avoided. Authors Côté and Sullivan note, respectively, that the label of absurdity can be attached to interpretations that are “incompatible” with the object of the legislative enactment or that “defeat the purpose” of the statute in question (P.‑A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 378-80, and R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 88, both cited in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27).
[55] While no evidence has been provided to that effect, one can reasonably expect that an interpretation confining the application of s. 648(1) to the post‑empanelment stage would lead to a multiplication of applications for discretionary Dagenais/Mentuck/Sherman bans. This, in turn, would most likely result in further delays in the criminal justice system and the diversion of scarce resources of the accused and the court. Such a result would be antithetical to the objective of efficiency pursued by Parliament in enacting s. 648(1) and completely at odds with the teachings of this Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[56] Conversely, an interpretation of s. 648(1) as applying before the jury is empanelled can be expected to further the efficiency interest. Plainly, by shielding information arising at many types of hearings from publication, s. 648(1) gives courts the confidence to hold such hearings prior to the empanelment of the jury. This flexibility and ability to hold such hearings earlier in time can be expected to reduce delays. It may also allow the parties to gain certainty about contested matters, such as the admissibility of evidence, in advance of when rulings on those matters would historically have been made, leading to earlier resolution by way of pleas or withdrawal of charges. . R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of statutory 'open court' orders, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".
Here the court summarizes common law 'open court' principles:[44] The open court principle is a cornerstone of democratic society and the common law: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-24; Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 187; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at paras. 21-22. Public access to the courts is fundamental to our justice system and our democracy: Sierra Club v. Canada (Minister of Finance), 2002 SCC 41, at para. 36. The open court principle requires not only that members of the public have “real-time transparency” through an ability to attend at hearings, but also access to the court record and the freedom to publicly discuss and engage in debate about court proceedings: Jérémy Boulanger-Bonnelly, “Public Access to Online Hearings” (2022) 45:2 Dal LJ 303, at pp. 307-8.
[45] Media participation is critical to the exercise of the open court principle. Although most court proceedings are open to the public, most people necessarily depend on media reports to understand what matters are being heard and how they are decided. The freedom of press to report on judicial proceedings is protected under s. 2(b) of the Charter: Vancouver Sun, at para. 26, and Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326 at pp. 1339-40.
[46] In Dagenais, the Supreme Court of Canada emphasized the importance of the open court principle and the freedom of the press to report on judicial proceedings. In Mentuck, the Court affirmed the principles set out in Dagenais and, at para. 32, directed that any discretionary judicial order limiting the openness of court proceedings should only be ordered when:(a) Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweighs the deleterious effects on the rights and interests of the parties and the public, including the effects in the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [47] The discretion to limit the open court principle was recently revisited in Sherman Estate. At para. 42, Kasirer J. emphasized that “courts must be ‘cautious’ and ‘alive to the fundamental importance of the open court rule’ even at the earliest stage when they are identifying important public interests.”
[48] The Dagenais-Mentuck test is subject to an important qualification, however. It ensures that the open court principle is respected where a party asks a court to limit access to hearings or court records through the exercise of the court’s inherent discretion to manage its own proceedings. It does not displace or negate the effect of a statutory exception to the open court principle. As held in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22, and reiterated in Sherman Estate at paras. 38 and 40, the test “applies to all discretionary limits on court openness, subject only to valid legislative enactments”. The constitutionality of such an enactment may be challenged. In that case, any limit it imposes on the open court principle must be shown to be a reasonable and justified limitation in a free and democratic society under the Oakes test: Sherman Estate, at para. 40, citing Dagenais, at p. 878, and Vancouver Sun, at para. 30.
|
