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Open Court - 'Dignity'. Turner v. Death Investigation Council et al.
In Turner v. Death Investigation Council et al. (Div Ct, 2021) the Divisional Court considered the 'open court' doctrine:Recent Law Governing the Open Court Principle
[35] In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada affirmed that it “has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable”: Sherman Estate para. 1.
[36] The substance of the approach to the open court principle articulated in cases such as Sierra Club, 2002 SCC 41 was affirmed. The analytical method, however, for the consideration of requests for sealing orders and the like was clarified and restated. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects. [37] Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22): Sherman Estate, para 38.
[38] The discretion is structured and controlled in this way to protect the open court principle, which is constitutionalized under the right to freedom of expression at s. 2(b) of the Charter ((Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at para. 23). Sustained by freedom of expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental to newsgathering: Sherman Estate, para. 39.
[39] The strong presumption in favour of open courts allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press: Sherman Estate, para. 2.
[40] However, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest relevant under Sierra Club. Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns society at large. A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information. The question is not whether the information is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting: Sherman Estate, para.33.
[41] This public interest in privacy focuses the analysis on the impact of the dissemination of sensitive personal information, rather than the mere fact of distribution, which is frequently risked in court proceedings and is necessary in a system that privileges court openness. It is a high bar. This public interest will only be seriously at risk where the information in question strikes at the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings: Sherman Estate, para. 34.
[42] Applicants for an order making exception to the open court principle cannot content themselves with an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claim that their physical integrity is endangered. The applicant must show on the facts of the case that, as an important interest, this dignity dimension of their privacy is at “serious risk”. For the purposes of the test for discretionary limits on court openness, this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity: Sherman Estate, para. 35.
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[62] In Canada (Commissioner of Competition) v Parrish & Heimbecker Limited, 2021 CanLII 82 (CT), the Competition Tribunal rejected a similar argument put forth by the Commissioner of Competition. In that case, the Commissioner proposed that farmers who provided signed witness statements, but who feared economic retaliation from the grain elevator owner for their participation in the investigation, should have their identities redacted. The Tribunal held that this proposal bordered on allegations of witness tampering and witness intimidation. Compelling evidence would be required to support such an approach. However, the Commissioner’s evidence fell well short of the mark in that case. See also: Adult Entertainment Association of Canada the Nuden v. Ottawa (City), 2005 CanLII 16571 where Hackland J. rejected a request for anonymity on behalf of female adult entertainment performers seeking to challenge a bylaw.
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