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Stratas JA - 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.
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