|
Open Court - Closed Hearings (In Camera). Chin v. Canada (Attorney General)
In Chin v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a fairness argument on an appeal from a JR challenging a Privacy Act (Privacy Commissioner) decision, here where the appellant argued that the Federal Court JR hearing should have been held in camera:[8] On appeal, Ms. Chin also submits her procedural fairness rights were violated because the hearing was not held in camera. Court proceedings are presumptively open to the public: Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361. The Supreme Court of Canada has consistently said the power to impose limits on open and accessible court proceedings must be exercised with care and restraint: Rémillard v. Canada (National Revenue), 2022 FCA 63 at para. 49, and cases there cited. An in camera hearing is exceptional. . LifeLabs LP v. Information and Privacy Commr. (Ontario)
In LifeLabs LP v. Information and Privacy Commr. (Ontario) (Div Court, 2024) the Divisional Court dismisses a JR from an Ontario Privacy Commissioner's interlocutory order during an investigation which ruled against the applicant's privilege claims.
The court rules against a motion to close it's proceeding, here on 'open court' principles:THE OPEN COURT PRINCIPLE AND CLOSING THE COURTROOM
[28] The parties jointly requested that this hearing be closed to the public, largely to facilitate counsel’s oral submissions if they needed to refer to certain materials that formed part of the private record.
[29] Counsel submitted that a closed hearing would expedite their submissions.
[30] The Panel deliberated on this preliminary issue and found that this was not an adequate reason to close the hearing.
[31] Section 135 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that all court hearings shall be open to the public, subject to subsection (2) and the rules of the Court. Section 135(2) empowers the Court to exclude the public from a hearing “where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.”
[32] Court proceedings are generally open to the public, in accordance with this open court principle. In Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361, at para. 30 the Supreme Court affirmed that “openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy”.
[33] Courts must take care to “narrowly circumscribe” any restrictions to the open court principle: see Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at para. 83.
[34] Recently, in a motion concerning the filing of confidential material and a related request for a closed session, the Federal Court of Appeal cited Sherman Estate; Sierra Club Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; and Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 489 for the proposition that the open court principle as discussed in this line of cases is “firm, binding and clear, a prescription for all participants in the justice system to follow”: 9219-1568 Quebec Inc. and MG Freesites Ltd. v. Privacy Commissioner of Canada, 2024 FCA 38, at para. 16.
[35] Counsel often file confidential and/or privileged material under sealing orders. Counsel can navigate privacy issues in open court with reference to page numbers or using general descriptions. The fact that the Court has sealed part of the record does not presume that an oral hearing will necessarily raise the potential for serious harm or injustice.
[36] For these reasons, the Panel dismissed the motion to close the courtroom during oral argument.
|
