Chapter XII


Last updated : 22/01/01

CHAPTER XII

ACCESS TO PROCEEDINGS

A. INTRODUCTION XII-2

B. ACCESS TO JUDICIAL PROCEEDINGS XII-3

Canadian Broadcasting Corp. v. A-G New Brunswick [Re R. v. Carson] XII-3

C. ACCESS TO OTHER PROCEEDINGS XII-13

Pacific Press Ltd. v. Canada XII-14

Travers v. Canada XII-19

Southam Inc. v. A-G Canada XII-23

D. ACCESS TO DOCUMENTS AND EXHIBITS XII-25

Vickery v. Nova Scotia Supreme Court (Prothonotary) XII-25

Leader Post v. Neuls XII-34

Dr. A v. C XII-36

E. ACCESS BY ELECTRONIC OR AUDIO MEDIA XII-39

Kingston Whig-Standard v. Ontario (A-G) XII-39

R. v. Squires XII-43

New Brunswick Broadcasting Co. v. Nova Scotia XII-49

F. AMERICAN JURISPRUDENCE XII-53

Richmond Newspapers, Inc. v. Virginia XII-53

Globe Newspaper Co. v. Superior Court XII-56

A. INTRODUCTION

Access to court proceedings is one of the foundational principles of the common law system of justice. Even so, the Charter's arrival raised a host of questions about the scope and content of that principle.

Like the presumption in favour of expressive freedom, openness at common law was also subject to many exceptions. Under the Charter, the status of many of those exceptions remains unclear. In addition, the courts have had to deal with novel claims seeking access to quasi-judicial proceedings [such as immigration and refugee hearings], inquiries and even the political process. Another question is whether the principle of openness creates a right of access to the record -- documents, exhibits and other forms of evidence. Last but not least, the Charter has triggered debate about cameras in the court.

This Chapter introduces the early jurisprudence on these issues. Questions that arise in the course of the materials include the following:

1. What is the relationship, if any, between the access issues raised in this Chapter, and those which were discussed earlier, in Chapter III? Is access different in this context because of pre-existing tradition of openness? As a result, should access to hearings be easier or harder to establish than access to other types of government property (i.e. airports)?

2. What is the relationship between limitations on access, and limitations on publication, which are the subject of the next chapter? Is it useful to grant access if a publication ban is imposed? Why or why not? Is one a more serious infringement of the Charter than the other? How should limitations be dealt with under section 1 - the same way or according to different criteria?

3. Does the media play a distinctive role in validating the concept of open justice? If so, how should that role be recognized? Is it inevitable that the media be granted access on occasions and in ways that do not apply to the general public?

B. ACCESS TO JUDICIAL PROCEEDINGS

In the United States, the watershed was Richmond Newspapers, decided in 1980. Despite a similar rhetoric of openness, the American decisions apply a more stringent standard of justification than their counterparts under the Charter, which has resulted in fewer restrictions on access and publication. Early decisions under the Charter, like Re Southam Inc. and the Queen (No. 1) (1983), 146 D.L.R. (3d) 408 (O.C.A.), expressed the Charter's commitment to public accessibility and found mandatory exclusion, as under the old Juvenile Delinquents Act, unjustifiable. The Supreme Court of Canada did not consider the general principles of access and openness until C.B.C. v. A-G New Brunswick [Re: R. v. Carson], where the issue arose under s.486 of the Criminal Code (permitting the public to be excluded from court proceedings). The Court's discussion of s.2(b), which is set out in Chapter XI, focused on newsgathering and openness values. Set out below is its s.1 analysis.

Canadian Broadcasting Corp. v. A-G New Brunswick [Re R. v. Carson]

[1996] S.C.J. No. 38

La Forest J.

B. Does Section 486(1) ... Infringe Section 2(b)?

At common law, the rule of public access to the courts was subject to certain exceptions, primarily where it was deemed necessary for the administration of justice....

The common law is effectively reflected in the current Canadian statutory form of the rule, s. 486(1) of the Code, which begins with "[a]ny proceedings against an accused shall be held in open court", thereby preserving and giving statutory effect to the general rule of openness. It then vests in a trial judge the discretion to make an exclusionary order for, among other reasons, the furtherance of the proper administration of justice....

By its facial purpose, s. 486(1) restricts expressive activity, in particular the free flow of ideas and information, in providing a discretionary bar on public and media access to the courts. This is sufficient to ground a violation....

Admittedly, s. 486(1) only permits such restriction on freedom of expression and freedom of the press where values of superordinate importance so require. To this end, the respondents argue that s. 486(1) supports, as opposed to violates, the values of the Charter, in that it permits the courts to maintain control over their own processes, as well as advancing core values including the protection of victims and witnesses, privacy interests and inherent limitations on freedom of expression such as public order and decency. In answer to the respondents' submissions, however, it is to be noted that this Court has repeatedly favoured a balancing of competing interests at the s. 1 stage of analysis....

C. Section 1 Analysis

[I]n undertaking this task, it must be remembered, a formalistic approach must be avoided. Regard must be had to all circumstances.... Having affirmed the flexible and contextual approach to be taken [in Ross and R.J.R.], it is apposite to examine the context within which this appeal arises in light of the specific values engaged.

The first such value is the power vested in courts of criminal jurisdiction to control their own process in furtherance of the rule of law. This was recognized in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, where McLachlin J. noted that "[t]he rule of law

is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect" (p. 931). Similarly, in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, ... Dickson C.J. affirmed the power of courts to act in furtherance of the proper administration of justice. While said in the context of discussing contempt of court, the principle of permitting a court to control its own process may be said to extend to situations, such as the one

at bar, where the court is granted a discretion to act in the interests of the proper administration of justice to exclude the public from criminal proceedings.

Related to a court's power to control its own process is the power to regulate the publicity associated with its proceedings. As such, it has been held that a legislative provision mandating a publication ban upon request by the complainant or prosecutor in sexual assault cases is constitutional []. This Court has also recognized a common law discretion on the part of courts

to order a publication ban [].

The court's power to regulate the publicity of its proceedings serves, among other things, to protect privacy interests, especially those of witnesses and victims....

While the social interest in protecting privacy is long standing, its importance has only recently been recognized by Canadian courts. Privacy does not appear to have been a significant factor in the earlier cases which established the strong presumption in favour of open courts. That approach has generally continued to this day.... It must be remembered that a criminal trial often involves the production of highly offensive evidence.... Its aim is to uncover the truth, not to

provide a sanitized account of facts.... The criminal court is an innately tough arena.

Bearing this in mind, mere offence or embarrassment will not likely suffice for the exclusion of the public from the courtroom....

Nonetheless, the right to privacy is beginning to be seen as more significant.... This is

particularly so of sexual assault cases. As L'Heureux-Dubé J. recently put it in R. v. O'Connor, [1995] 4 S.C.R. 411, a case involving the production of complainants' medical records in relation to charges of sexual offences (at para. 158):

This Court has already recognized that society has a legitimate interest in encouraging the reporting of sexual assault and that this social interest is furthered by protecting the privacy of complainants[].

Similar views had earlier been expressed by Lamer J., ... in Canadian Newspapers [].

So far as s. 486(1) of the Code is concerned, then, exclusion of the public is a means by which the court may control the publicity of its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the under-reporting of sexual offences.

Having set forth the relevant context, the s. 1 analysis developed in Oakes may now be undertaken....

1. Legislative Objective

The appellant CBC maintains that the legislative objective of s. 486(1) is "to allow the exclusion of the public in criminal proceedings if it is in the interests of: (1) the safeguard of public

morals; (2) the maintenance of order; or (3) the proper administration of justice". I have already indicated my intention to confine this appeal to consideration of the third branch for exclusion, the "proper administration of justice". As to this branch, the CBC concedes its pressing and substantial nature, but notes its imprecision.

I would characterize the objective somewhat differently. Section 486(1) aims at preserving the general principle of openness in criminal proceedings to the extent that openness is consistent with and advances the proper administration of justice. There are situations where openness conflicts with the proper administration of justice. The provision purports to further the proper administration of justice by permitting covertness where necessary. This recharacterization of the objective leaves intact that which the appellant conceded was of a pressing and substantial nature: the exclusion of the public from criminal proceedings in three specific cases. In light of the appellant's concession, I do not intend to say more than that this objective clearly passes the first step of the s. 1 analysis....

2. Proportionality

(a) Rational Connection

In an attempt to discern whether the legislative means are rationally connected to the legislative objective, McLachlin J., in R.J.R.-MacDonald [], noted that in some cases, the relationship between the infringement of the rights and the benefit sought to be achieved may not be "scientifically measurable". In such cases, she continued, "this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective". It was also my view in [R.J.R.] that a common-sense analysis was sufficient to satisfy the rational connection branch. In the present case, where the benefit sought to be realized by the operation of s. 486(1) is the furtherance of the administration of justice, the benefit is not scientifically measurable; nor is the relationship between the benefit and the infringement....

Whether s. 486(1) is rationally connected to the legislative objective requires a determination of whether the particular legislative means adopted -- a discretionary power in the trial judge to exclude the public where it is in the interests of the proper administration of justice -- serves the legislative objective.

The discretionary element of s. 486(1) is crucial to the analysis. In this respect, the Court has held discretion to be an essential feature of the criminal justice system....

In Dagenais [], Lamer C.J. discussed the common law discretion to order a publication ban and held that a discretionary power cannot confer the power to infringe the Charter. The discretion must be exercised within boundaries set by the Charter; an exercise of discretion exceeding these

boundaries would result in reversible error....

In applying s. 486(1), then, a court must exercise its discretion in conformity with the Charter. In this way, the judicial discretion guarantees that any order made pursuant to s. 486(1) will be rationally connected to the legislative objective of furthering the proper administration

of justice. Once we accept the importance of discretion as an integral aspect of our criminal justice system, then the case for discretion in the hands of the courts is perhaps the strongest. In R. v. Nova Scotia Pharmaceuticals Society, [1992] 2 S.C.R. 606, Gonthier J. discussed the need for limitations on law enforcement discretion. This need is met where the discretion is vested in the courts, because the exercise of discretion is reviewable.

Thus, the grant of judicial discretion in s. 486(1) necessarily ensures that any order made will be rationally connected to the legislative objective. If it is not, then the order will constitute an error of law; the proper course in such a case is to review the particular exercise of discretion and provide an appropriate remedy. Section 486(1) sets up a means, logically connected to the legislative objective of furthering the proper administration of justice, which permits a court to order the exclusion of the public where an open court would impede this objective....

(b) Minimal Impairment

In examining whether s. 486(1) impairs the rights under s. 2(b) as little as reasonably possible in order to achieve its objective, I begin by referring to McLachlin J.'s articulation of this requirement in [R.J.R.]: "The impairment must be 'minimal', that is, the law must be carefully tailored so that rights are impaired no more than necessary." However, she qualified this somewhat by noting that the tailoring process will rarely admit of perfection and thus, if the law "falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement".

I have noted the appellant's submission that the discretion conferred on trial judges by s. 486(1) ... is vague. ...

Allegations of overbreadth, of which allegations of vagueness are said to be an aspect, are more appropriately dealt with in relation to minimal impairment []. In the present case, the appellant's submission as to vagueness relates more to imprecision and generality, than to an allegation that s. 486(1) is incapable of interpretation with any degree of precision and thus not a

limit prescribed by law. ...

In [Osborne], Sopinka J. discussed vagueness in relation to the granting of wide discretionary powers and held that "[m]uch of the activity of government is carried on under the aegis of laws which of necessity leave a broad discretion to government officials"[]. He then cited a passage

from [Irwin Toy], in which this Court held that the law is rarely an exercise in absolute precision and

that the question is whether there is an intelligible standard to guide the judiciary in doing its work.

Section 486(1) provides an intelligible standard -- the proper administration of justice -- according to which the judiciary can exercise the discretion conferred. The phrase "administration of justice" appears throughout legislation in Canada, including the Charter. Thus, "proper administration of justice", which of necessity has been the subject of judicial interpretation, provides the judiciary with a workable standard.

Section 486(1) arms the judiciary with a useful and flexible interpretative tool to accomplish its goal of preserving the openness principle, subject to what is required by the proper administration of justice, and the discretionary aspect of s. 486(1) guarantees that the impairment is minimal. Again relying upon the fact that the discretion must be exercised in a manner that conforms with the Charter, the discretion bestowed upon the court by s. 486(1) ensures that a particular exclusionary order accomplishes just what is necessary to advance the interests of the proper administration of justice and no more. An order may be made to exclude certain members of the public, from part or all of the proceedings, and for specific periods of time. As such, an order that fails to impair the rights at stake as little as possible will constitute an error....

The order should be limited as much as possible. In [Dagenais] Lamer C.J. stated that a publication ban should only be ordered where it is necessary, and where reasonably available alternatives would not accomplish the same result. The same is true of the discretion accorded by

s. 486(1)....

(c) Proportional Effects

The "proportional effects" stage of the analysis requires a consideration of whether the deleterious effects of s. 486(1) outweigh the salutary effects of excluding the public from the courts where it is required by the proper administration of justice. Parliament has attempted to balance the different interests affected by s. 486(1) by ensuring a degree of flexibility in the form of judicial discretion, and by making openness the general rule and permitting exclusion of the public only when public accessibility would not serve the proper administration of justice. The discretion necessarily requires that the trial judge weigh the importance of the interests the order seeks to protect against the importance of openness and specifically the particular expression that is limited. In this way, proportionality is guaranteed by the nature of the judicial discretion.

It is important to stress that the particular expression that is limited in a given case may impact upon the s. 1 balancing. In [R.J.R.], I noted that the evidentiary requirements of a s. 1 analysis will vary substantially with the nature of the right infringed. In the case of freedom of expression, this Court has consistently held that the level of constitutional protection to which

expression will be entitled varies with the nature of the expression. More specifically, the protection afforded freedom of expression is related to the relationship between the expression and the fundamental values this Court has identified as being the "core" values underlying s. 2(b)....

This Court has subjected state action that jeopardizes these "core" values to a "searching degree of scrutiny". Where, on the other hand, the expression in question lies far from the "centre core of the spirit" of s. 2(b), state action restricting such expression is less difficult to justify.

In the case of s. 486(1), the type of expression impaired will vary from case to case. This makes it difficult to consider the extent to which the expression restricted by s. 486(1) relates to the "core" values under a s. 1 analysis, in light of the fact that the expression will not always be of the same type. For example, some expression that is restricted by s. 486(1) may be connected to the "core" values. The expression may relate to the ability of the public to participate in and contribute to the democratic system. By restricting public access to the expressive content of court proceedings, s. 486(1) inhibits informed public criticism of the court system, thereby directly impeding public participation in our democratic institutions, one of the "core" values protected by s. 2(b).... However, in other cases, s. 486(1) may be used to exclude the public from proceedings where the presence of the public would impede a witness's ability to testify, thereby impairing the

attainment of truth, another "core" value []. On the other hand, exclusion may be ordered from that part of the proceedings where the most lurid or violent details of the offence are recounted, such that the restricted expression would lie far from the core of s. 2(b). In the end, the important point is

that in deciding whether to order exclusion of the public ..., a trial judge should bear in mind whether the type of expression that may be impaired by the order infringes upon the core values sought to be protected.

In sum, it is my view that the means enacted pursuant to s. 486(1) are proportionate to the legislative objective. It must be recalled that the appropriate means of remedying a particular exclusionary order having deleterious effects outweighing its salutary effects is through judicial

review ...

V. The Discretion

A. Manner of Exercise

Much of my s. 1 analysis has turned on the fact that s. 486(1) vests a discretion in the trial judge. In view of the reliance I have placed on discretion in assessing constitutional validity, I think the manner in which this discretion is to be exercised warrants some discussion beyond the simple assertion that it must comply with the Charter. In doing so, I will restrict my comments to exclusion in the interest of the "proper administration of justice".

In [Dagenais] this Court reviewed the constitutionality of a publication ban ordered pursuant to the common law rule. As I have already mentioned, Lamer C.J. stated that the common law rule governing the issuance of publication bans must comply with the principles of the Charter. ... Holding that the exercise of discretion must be consistent with the Charter, Lamer C.J. set out a list of general guidelines for future cases....

The same directives are equally useful in assisting the trial judge in exercising his or her discretion ... to order exclusion of the public under s. 486(1). Stated in the context of such an order, the trial judge should, therefore, be guided by the following:

(a) the judge must consider the available options and consider whether there are any other reasonable and effective alternatives available;

(b) the judge must consider whether the order is limited as much as possible; and

(c) the judge must weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate.

Additionally, I provide the following for guidance on the procedure to be undertaken upon an application for a s. 486(1) order.

The burden of displacing the general rule of openness lies on the party making the application.... [T]he applicant bears the burden of proving: that the particular order is necessary, in terms of relating to the proper administration of justice; that the order is as limited as possible; and, that the salutary effects of the order are proportionate to its deleterious effects. In relation to the proportionality issue, if the order is sought to protect a constitutional right, this must be considered.

There must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially. In some cases in which the facts are not in dispute the statement of counsel will suffice. If there is insufficient evidence placed before the trial judge, or there is a dispute as to the relevant facts, the applicant should seek to have the evidence heard in camera. This may be done by way of a voir dire, from which the public is excluded. For example, in the present case, a voir dire could have been held to permit the Crown to disclose the facts not known to Rice Prov. Ct. J. in an effort to provide him with a more complete record from which to make his decision. The decision to hold a voir dire will be a function of what is necessary in a given case to ensure that the trial judge has a sufficient evidentiary basis upon which to act judicially.

A sufficient evidentiary basis permits a reviewing court to determine whether the evidence is capable of supporting the decision....

The information available to the trial judge must also allow a determination as to whether the order is necessary in light of reasonable and effective alternatives, whether the order has been limited as much as possible and whether the positive and negative effects of the order are proportionate.

Finally, I must address the exercise of judicial discretion in this case ....

B. Review of Judicial Discretion

In reviewing the trial judge's decision to exclude the public from part of the proceedings, it must be remembered that the trial judge is usually in the best position to assess the demands of the given situation....

Where the record discloses facts that may support the trial judge's exercise of discretion, it should not lightly be interfered with. The trial judge is in a better position to draw conclusions from the facts he or she sees and hears... This, however, presupposes that the trial judge has a sufficient evidentiary or factual basis to support the exercise of discretion and that the evidence is not misconstrued or overlooked.

In the present case, Rice Prov. Ct. J. had this to say in support of his decision to exclude the public from part of the sentencing proceedings:

The application made under 486(1) and the ban -- I granted the order on the third ground that is for the proper administration of justice. The reason for that is that I am privy, due to documentation which I have before me, and did have before me prior to the application being made before -- by request -- I had it delivered to me prior to today's hearing.... On the opinion that the proper administration of justice -- in order for the court to have at least on the court record the exact nature of the events including some of the details with regard to those events -- ... it was necessary to do these, to -- sorry, to have these facts presented to me in the manner in which they subsequently were and that was the basis of the order. I quite often make orders in this regard.... [I]f these facts were to be presented for the exposure to the public, it would cause I think a great undue hardship on the persons involved, both the victims and the accused, although no representations were made on behalf of the accused other than Mr. Letcher's consent to Mr. Wood's application for the exclusion....[S]ome of the facts I knew beforehand or some I had some idea, I didn't know exactly what the facts were thus the order.

With respect to concerns relating to undue hardship, ... where the circumstances and evidence support such concerns, "undue hardship to persons involved" may, in the interests of the proper administration of justice, amount to a legitimate reason to order exclusion. The question is whether this reason is valid in the circumstances here. My conclusion with respect to this question is that the validity of these concerns is fatally impaired both in relation to the victims and to the accused.

... Neither the record nor the reasons provided by the Crown support a finding that the proper administration of justice required the exclusion of the public from part of the sentencing proceedings. In making his order, Rice Prov. Ct. J. had the benefit of victim impact statements and a pre-sentence report. The latter, however, was not included in the record before this Court. The victim impact statements did not disclose evidence of undue hardship that would ensue as a result of public attendance during the sentencing proceedings, nor did they disclose the circumstances of the sexual offences that were ultimately divulged during sentencing. Indeed, Rice Prov. Ct. J. expressly stated that he did not have all the facts before him in making the order...

In its submission, the Crown gave the following in support of his application for a s. 486(1) order:

The nature of the evidence, of which the court hasn't heard, that constitutes the offence is very delicate. It involves young persons, female persons....

Most sexual assault cases involve evidence that may be characterized as "very delicate". The evidence did not establish that this case is elevated above other sexual assaults. This point was conceded by the Crown....

The mere fact that the victims are young females is not, in itself, sufficient to warrant exclusion. There were other effective means to protect them. Indeed, the privacy of the victims was already protected by a non-publication order by which their identities were withheld from the public. There was no evidence that their privacy interests required more protection. The victims were not

witnesses in the proceedings, the evidence of particulars of the offences having been read in by the Crown. As such, no stress could be said to emanate from their having to testify, and the protection of witnesses was in no way jeopardized. While the criminal justice system must be ever vigilant in

protecting victims of sexual assault from further victimization, it is my view that the record ... did not establish that undue hardship would befall the victims in the absence of a s. 486(1) order. Nor did the record reveal that there were any other reasons to justify an exception to the general rule of openness.

The importance of a sufficient factual foundation upon which the discretion in s. 486(1) is exercised cannot be overstated, particularly where the reasons given by the trial judge in support of an exclusion order are scant. In this case, the record does not reveal that such a foundation existed or that the facts known to Rice Prov. Ct. J. established that the proper administration of justice required exclusion of the public in the interests of the victims....

As to the concern expressed for undue hardship to the accused, barring exceptional cases, I cannot think there is any issue of hardship to the accused arising from prejudicial publicity once the accused has pleaded guilty....

The fact that closure of the court was only ordered during the sentencing proceedings bears considerably upon my determination that the accused was not likely to suffer undue hardship in this case. [T]he deterrence and public denunciation functions of sentencing are not to be undervalued. Public scrutiny of criminal sentencing advances both these functions by subjecting the process to the public gaze and its attendant condemnation. The type of expression restricted in this case, expression relating to the sentencing process, weighs in favour of maintaining open court. In any

criminal case, the sentencing process serves the critically important social function of permitting the public to determine what punishment fits a given crime, and whether sentences reflect consistency and proportionality. In sexual assault cases, the importance of subjecting sentencing to public scrutiny is especially strong. "Sexual assault" in law encompasses a wide array of different types of activities, with varying penalties. It is, therefore, essential to inform the public as to what is encompassed in the term "sexual assault" and the range of punishment it may attract.

In this case, there was insufficient evidence to support a concern for undue hardship to the accused or to the complainants. The order was not necessary to further the proper administration of justice and the deleterious effects of the order were not outweighed by its salutary effects....

VI. Disposition

I find that [the judge] improperly exercised his discretion in the circumstances of this case....

I would quash the exclusion order and order access to the media and the public to the transcript of that part of the proceedings held in camera....

C. ACCESS TO OTHER PROCEEDINGS

At common law, the openness of proceedings protected the fairness and integrity of a system that was, and still is, adversarial in nature. According to that rationale, openness was required in the case of judicial, but not other, kinds of proceedings. Even before the Charter's arrival, however, certain principles of fairness had been extended to quasi-judicial and administrative hearings. One question which has arisen under the Charter is whether openness should extend to a variety of proceedings, including refugee or discipline hearings, coroner's or other public inquiries, and aspects of the political process.

In Re Edmonton Journal and A.-G. Alberta (1983), 5 D.L.R. (4th) 240 (Alta. Q.B.), Mr. Justice McDonald held, early in the Charter's history, that "there is no constitutional compulsion" for proceedings under the Fatality Inquiries Act to be held in open. There, in the course of an inquiry arising from the death of a prisoner at the Edmonton Detention Centre, the Attorney General introduced evidence concerning his diagnosis and treatment at a treatment centre. When the judge proposed to receive the evidence in private, the inquiry was adjourned pending determination of the access issue. In rejecting the claim of access, McDonald J. stated:

... It is true that the Fatality Inquiries Act contemplates, generally, a "public inquiry"[]. It does not therefore follow that the inquiry is a judicial one in the sense that, as in courts of law, the proceeding shall be accessible to members of the public, including the press. A fatality inquiry may be "judicial" or "quasi-judicial" in the sense that, to come within the rules as to the availability of certain forms of judicial review of its conduct, and to be required to comply with the standards of natural justice, its functions may, for those purposes, be described as "judicial" or "quasi-judicial". It would be a non sequitur to conclude that for other purposes, the standard of procedure to be exacted of a commissioner conducting a fatality inquiry is, as a matter of either common law privilege or constitutional doctrine, to be on the same plane as that demanded by a court of law....

In the case of hearings before bodies that are not courts but exercise functions which in a sense are judicial, much will depend upon the kind of inquiry, the scheme created by the statute, and the practice that has preceded the statute. ...

See also McKenzie v. Canadian Human Rights Commission (1985), 85 C.L.L.C. 16,144 (F.C.T.D.) [denying access, on similar grounds, to an in camera Human Rights Commission meeting].

The next cases consider whether an alternative conception of openness, which would extend beyond "judicial" proceedings traditionally accessible to the public at common law, is required by the Charter.

Pacific Press Ltd. v. Canada

[1991] 2 F.C. 327 (C.A.)

[Pacific Press applied to set aside a decision requiring an inquiry and detention review to be held in camera. The adjudicator held that the stress generated by the presence of the media and the resultant publicity would adversely affect the health of the individual whose status was being reviewed. The applicant argued that s. 29(3) of the Immigration Act violated s. 2(b).]

MacGuigan J.

... The statutory provision principally in question is s. 29 of the Act:

29 (1) An inquiry by an adjudicator shall be held in the presence of the person with respect to whom the inquiry is to be held wherever practicable.

(2) At the request or with the permission of the person with respect to whom an inquiry is to be held, an adjudicator shall allow any person to attend an inquiry if such attendance is not likely to impede the inquiry.

(3) Except as provided in subsection (2), an inquiry by an adjudicator shall be held in camera unless it is established to the satisfaction of the adjudicator, on application by a member of the public, that the conduct of the inquiry in public would not impede the inquiry and that the person with respect to whom the inquiry is to be held or any member of that person's family would not be adversely affected if the inquiry were to be conducted in public.

[The purpose of this legislation] was to prevent access to immigration inquiries by the press and the public, except in limited circumstances, in order to enable Convention refugees to speak freely of their experiences, without danger of reprisals from those from whom they have fled. ...

Although no party raised the issue in argument, I believe we must address the question I referred to at the outset of this part, viz., as to the extent to which inquiries under the Act should be analogized to judicial proceedings. Immigration adjudicators are not judges as such, and immigration inquiries are not Courts. To what extent does the right of the citizen and of the press to access apply to adjudicators engaged in inquiries?

This issue arose before Rouleau J. in Southam Inc. v. Minister of Employment and Immigration, [1987] 3 F.C. 329, where he ordered an open hearing with respect to detention review hearings under the Act... . [There, he] raised the question [and then concluded]:

...The detention review hearing in this case involves a statutory body exercising its functions and it is to be determined if they are judicial or quasi-judicial in nature and by implication subject to accessibility; does the openness rule apply to their proceedings.

I am satisfied that... it is not at all unreasonable to extend to proceedings of such decision-makers the application of this principle of public accessibility. After all, 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.

In my view Rouleau J. was entirely correct in his analysis, both as to the quasi-judicial nature of the adjudicator's role in an inquiry and as to the consequences with respect to access....

[T]he principle of openness must be deemed to apply to every "exercise of judicial powers," and therefore even to that of an adjudicator under the Act.

It also appears that the respective policy considerations founding the reluctance of our law to inhibit the accessibility of immigration inquiries and Court proceedings are analogous. The principal thrust, for example, of Cory J.'s argument for access in Edmonton Journal [], is to ensure what he termed "the penetrating light of public scrutiny" []. This penetrating light is, I believe, equally required in respect of inquiries under the Immigration Act, 1976....

... Where the purpose of the impugned government action is to restrict freedom of expression, the s. 2 guarantee will necessarily be infringed....

The objective of the legislative provision in the case at bar may fairly, I believe, be set out in the words of Parliamentary Secretary Speyer ...:

[W]e want to do nothing to jeopardize a refugee at a hearing when he might be adversely affected by testimony that is given; and it is important to understand the nature of a refugee hearing and what the refugee has to demonstrate. We do not want relatives of the refugees, or the refugee himself, in any way to be put in peril....

If this were not convincing on its face as establishing an objective of pressing and substantial concern, the Government has supplemented this objective in its s. 1 brief with documentary evidence from the United States, the United Kingdom, Australia, New Zealand, and Sweden, all showing a general awareness in democratic countries of the need for confidentiality in the processing of convention refugee claims.... I have no hesitation in finding that the objective here is of sufficient stature to warrant overriding freedom of expression and of the press....

The second feature of the Oakes test is the proportionality of means to end....

The first element to be established is that the means are rationally connected to the end.

The problem here arises from the fact that McVey has not claimed Convention refugee status, and it might even be thought to be difficult for him to do so, coming from a country like the United States .... []. More important, the legislation is not limited to immigration inquiries of refugees, but applies to all inquiries of every kind whatsoever. How can such a provision of universal application be rationally connected to the admitted need to protect refugees?

If there is an answer, it is found in the scheme of the Act. In some of the other countries surveyed, refugee claims are handled in a special stream and are always dealt with in camera.... But the scheme of the Canadian Act is different. All inquiries begin in the same way, but s. 43(1) provides that a person who is the subject of an inquiry must be given an opportunity to claim refugee status "before any substantive evidence is given at an inquiry." In the case at bar, when the issue as to an open or closed hearing was raised at the very outset of the inquiry, as it had to be, the opportunity to make a refugee claim had not yet arisen. As of that moment, I believe the respondents are right that the provision has to apply to all subjects of an inquiry in order to adequately protect potential refugee claimants.

It is harder to justify the limitation of the ambit of protection to the claimant himself and to his family. What of any other person who, in the words of Mahoney J.A., in McVey No. 1 at 423 "through friendship, bribery or sympathy, has facilitated a refugee claimant's escape and what of resident foreigners, perhaps missionaries or business people, willing to testify only if their opportunity to return is not prejudiced?" Since the focus of the provision is not the safety of such other persons, but rendering the claimant secure in his testimony, perhaps it might be argued that he would care less about their fate than about that of family members, but such a contention is too cynical to constitute legislative motivation.

A better justification is that the underinclusiveness of the ambit of adverse effect should not be found to be fatal, even if the cut-off is irrational, so long as those included (the claimant and his family) themselves have a rational connection to the goal. That they do is undeniably true, but I do not find it necessary to resolve this point since in my view the fate of the legislation is decided by the next two criteria: minimal impairment of the right and proportionality of effect. I intend to consider these two elements together since they tend to overlap in their excess of inclusiveness.

One respect in which they do so is the reverse onus of s.29(3) which puts on the member of the public seeking to open the hearing a burden of proof which is impossible to discharge.... Another overinclusive feature was remarked by the Adjudicator[]:

It appears that if a ban could be imposed on publication it might be conceivable to conduct the inquiry in public but as I do not have power it is not possible to consider this as a potential solution.

This very absence of alternatives for the Adjudicator is a mark of legislative overreach.

A third deficiency was drawn to the Court's attention by the applicants, who pointed out that the effect of s. 29(3), combined with s. 29(2), is to give the person who is the subject of the inquiry a "licence" to determine which members of the public, including possibly the media, would have exclusive access to the hearing. However, since we were not invited to interpret s. 29(2) in this case, I come to no final determination on this point.

Perhaps the greatest flaw is that to allow a final decision to be made on access, before a refugee claim is actually made, is an extreme instance of overinclusiveness. It would be enough to allow a temporary decision to be made on access or publication, to remain in place only until a refugee claim had been made or declined, after which time a final decision could be made.

The respondents claimed that the procedure chosen by the Act was necessary to protect claimants in an adequate way, because otherwise it could be assumed by watchers badly motivated towards a claimant that his was a refugee hearing since every in camera hearing was a refugee hearing. But since other persons besides refugees can also claim in camera status .... I cannot see this as a practical danger. Moreover, the system in place is far from a watertight one. Anyone can have access to court refugee files, which are not closed even when a hearing is, and review decisions of this Court are published under the real names of the claimants, allowing hostile watchers to gather information in that fashion. It would in my view at the very least require a legislated system of watertight security to make a convincing case on this basis....

The interference in the case at bar cannot in my view be said to be "of a minimal nature." While less maximal than a total prohibition of access, it nevertheless wrongly reverses the onus of proof, makes no provision for anything between total access and total prohibition, and applies not only to the refugee class Parliament aimed to protect but to all inquiries for whatever purpose....

I would emphasize that the legislative intention of protecting refugee claimants cannot be defended beyond the moment at which claimants must indicate whether they are making refugee claims or not; for those who are not, no further general denial of public access is justifiable. In my opinion s. 29(3), as written, is seriously excessive legislation, and should be held to be of no force or effect ....

Given the invalidity of s. 29(3), the effect of s. 29(2) might well be to require all inquiries to be conducted in camera, except with the specific permission of the claimant. If it were not to have that effect, it might have the contrary effect of leaving refugee claimants without any possibility of protection. However, s. 29(2) of the Immigration Act, 1976, as amended, was not challenged by the applicants and is not therefore under review on this s. 28 application. The invalidity of s. 29(3), therefore, coupled with the continuance of s. 29(2), gives rise to a real possibility of confusion and even chaos in the administration of the refugee program.

Since it appears to me necessary, in order to preserve the rule of the law in this area, that Parliament be allowed sufficient time to amend the law in accordance with this decision, I would deem s. 29(3) temporarily valid and effective, ... for a period of one year, a time frame that I believe would normally provide Parliament with adequate time to amend the law, subject to the right in the respondent Minister to apply to this Court for a longer period of temporary validity if special circumstances should arise.

Notes and questions

1. In a brief note at the end of his judgement in Pacific Press MacGuigan J. agreed with the following four guidelines as a basis for the interpretation of the words "adversely affected" in s. 29(3):

a) inquiry subjects cannot show that they will be adversely affected by a public hearing merely by establishing that they will be embarrassed or humiliated by publication of information disclosed at the hearing;

b) an inquiry subject cannot rely upon a privacy interest to establish adverse effect, since privacy has only been found to be compelling in matrimonial cases involving allegations of cruel, immoral or aberrant behaviour; (Edmonton Journal);

c) inquiry subjects may establish adverse effect by showing that their concerns are consistent with the purpose of s. 29(3) and consistent with Charter principles; and

d) there must be some direct link between the publicity and personal danger to inquiry subjects or their families.

Do you agree with these criteria?

2. MacGuigan J. concluded that immigration hearings should be analogized to judicial proceedings, for purposes of access. Does the distinction retain any validity? If not, can proceedings of any kind ever be closed - when and on what grounds?

3. Do the public and press have a legitimate interest in the outcome of immigration hearings? If so, what limitations on access are acceptable? Can they be defined by statute, or are they only capable of being articulated on a case-by-case basis?

Travers v. Canada

[1993] 3 F.C. 528 (T.D.)

Joyal J.

The challenge concerns a decision by the defendant Chief of Defence Staff that the proceedings of a Board of Inquiry on the subject of the Canadian Airborne Regiment Battle Group not be open to the public. The appellants contend that this decision is a breach of [s.2(b)] and that the public, which of course includes the media, be given access to the proceedings.

It seems to me, as a preamble, that [s. 2(b)] particularly in regard to freedom of the press, has most often been analyzed in the context of a system of justice being conducted in an open court....

Since the adoption of the Charter, it is true that the open door doctrine has been applied to certain administrative tribunals. While the bulk of precedents have been in the context of court proceedings, there has been an extension in the application of the doctrine to those proceedings where tribunals exercise quasi-judicial functions, which is to say that, by statute, they have the jurisdiction to determine the rights and duties of the parties before them.

This more extensive doctrine would appear to be entirely consistent with its original purpose. If justice is to be patently and evidently done in the courts, there is no reason why it should not also be done when a tribunal exercises substantially the same judicial functions. Again, however, by way of exception, proceedings before administrative tribunals may in certain circumstances be permitted behind closed doors.

Is the enquiry currently conducted by the defendants of a nature to have the doctrine applied to it? ... It is not a court of record, it has no power to summon witnesses by way of subpoena or otherwise, nor does it determine rights or impose obligations. Further, nothing it does is executory or enforceable. Its powers are determined by its Terms of Reference and in that regard, it can only issue recommendations which in due course are submitted to the Chief of Defence Staff who may adopt or reject all or any part of them....

It is clear to me that the Terms of Reference of The Board of Inquiry limit the hearings to a review of the various principles, policies and practices of the Canadian Airborne Regiment Battle Group, an elite battle group which was recently called upon to exercise a peacekeeping role in a distraught environment called Somalia. Incidents there have received copious attention from the media and it is of record that criminal charges have been filed against four members of the Regiment. These incidents are of a nature to attract the attention of the public and to merit even more the attention of the media which, with respect, feel obliged to make sure that the attention of the public does not wane.

It is clear on the evidence before me that the mandate given to the Board must be exercised within a very short time. When first established on April 28, 1993, it was given a 90-day life span. Yet it was bestowed with a wide generic field of enquiry, which would necessarily involve in its proceedings the kind of communication which might be classified or might be prejudicial to any one or more of the named accused, or which might otherwise be contrary to public interest to disclose or which would constrain the proper exercise of Canada's international peacekeeping role. No serious observer would conclude that these are not at least plausible grounds for a discreet approach. As elaborated by the respondent, Major-General deFaye, in the course of his cross-examination by the applicants, an open policy would have required a series of voir dire's on what evidence was to be adduced, on what was classified or not, on what was directly or by implication prejudicial to individuals. These voir dire's would of course have had to be conducted behind closed doors....

It is further noted ... that the report of the Board of Inquiry will be made public, subject to such constraints as are noted in the Board's Terms of Reference or as imposed by law.

An analysis of the statutory and regulatory framework under the National Defence Act indicates to me that a Board of Inquiry is far more an in-house procedure than a public forum which citizens may freely attend or on which the media may freely report. Whether or not it is constituted under a particular provision of the National Defence Act and its constitution made public, or simply organized by ministerial directive, the function of the Board, on a reading of its Terms of Reference, is such that, in my view, it does not necessarily or automatically trigger a concomitant right to sit in on the collection or collation of the evidence or on the deliberations of the members of the enquiry.... To suggest otherwise is to propound the right to information in absolute terms and to effectively metamorphose a process of an internal enquiry into an adjudication function characteristic of judicial proceedings....

The question may then be asked: what is a judicial proceeding? Mr. Justice Dickson ... suggested the following tests in Minister of National Revenue v. Coopers and Lybrand (1979), 1 S.C.R. 495, at page 504:

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in the broad sense?

... [T]he right of access to information, as a corollary to the freedom of the press, has been consistently recognized when the right is claimed to cover judicial or quasi-judicial proceedings. That right, however, is no more than the expression of the "open court" doctrine. If open courts are to be the rule, there is no issue as to the press generally having access to them and to the information their proceedings disclose.

I should nevertheless seriously doubt that the right of access to information applies to hearings of committees, board of enquiries, study groups, task forces or any similar group which might be entrusted to hear evidence and submissions, and make recommendations thereon to the authority which appointed them. If I should express this thought in doubtful terms, it is to eschew the temptation to make any kind of generalized statement on the issue. It is not the name given to an enquiry which determines its judicial or quasi-judicial characteristics; it is rather the nature of its function which would either meet or not meet the test [of] Coopers & Lybrand (supra)....

The enquiry before me ...[involved] [n]o impropriety or wrongdoing.... No individual rights or duties are made subject to scrutiny. No general determination of rights and duties is part of its mandate. An analysis of its Terms of Reference indicates to me that it is much more an internal affair by which the Chief of Defence Staff, faced with certain anomalies in the conduct of a crack battle group in Somalia, wishes to obtain findings and recommendations in respect of the leadership, discipline, operations, actions and procedures of that group and ... the appropriateness of its particular training, conditioning and disciplinary methods in the conduct of peace-keeping operations.

In my view, it is the kind of enquiry which goes on within the National Defence establishment and which, in normal circumstances, is conducted as a matter of course. The fact that the constitution of the enquiry was made public does not change its nature. The purpose behind such public announcements is not for this Court to decide nor is it material to a finding as to the nature of the enquiry. It is not, I repeat, not involved in the individual conduct of certain members of the battle group which ... is what provoked the media's attention and what in turn created a highly politicized atmosphere both inside and outside Parliament.

Pursuant to its mandate, the enquiry could have been open to the public. The Convening Authority, for the reasons stated, decided otherwise. Many would not agree that the reasons advanced are sufficient or appropriate. Many would suggest that they are spurious, facile or essentially self-serving. A continuing public debate might flow from all this, [but it raises] policy issues and not legal issues.

In this light, the forceful arguments advanced [the applicants] deal not so much with constitutional guarantees as with a policy decision.... As it is not the kind of enquiry to which the intended "right of access to information" can apply, I fail to see that the closed door policy is in breach of [s.2(b)]....

[Note: On June 14, 1994, the Federal Court of Appeal affirmed, stating, per Hugesson J.A. [the Chief Justice and Mahoney J.A., concurring] that, "[s]ince the Board manifestly has no dispositive or decision-making role, the judge's conclusion whether to hold the inquiry in private or in public was purely a matter of policy was also clearly right".]

Notes and questions

1. Whether the proceeding involves "adjudication" continues to be determinative in determining access under s.2(b). How important is that, and do you think the courts are too fixed, in addressing access issues, on concepts and definitions that predate the Charter and are used, primarily for other purposes? [i.e., the distinction between judicial and quasi-judicial proceedings traditionally determined whether there was a right to a hearing.] What difference should it make whether the proceeding is judicial or quasi-judicial? Is public interest a sufficient reason to compel an open process? Why or why not?

2. This inquiry arose from allegations that the military in Somalia had violated codes of conduct and otherwise done Canada a disservice through its participation in an international operation. Does the public have a legitimate interest in wrongdoing by the military and, if so, did the court adequately take it into account in denying access to the press?

3. The Court noted that the "constitution of the inquiry was made public", and then noted that the purpose behind that announcement "is not for this Court to decide nor is it material to a finding as to the nature of the enquiry". Do you agree? Can the military have it both ways: publicize the inquiry to create a process of accountability, and then close that inquiry to the public?

Southam Inc. v. Canada (Attorney General)

[1990] 3 F.C. 465 (F.C.A.)

Iacobucci C.J.

... The corporate Respondent, Southam Inc., is the publisher and proprietor of The Ottawa Citizen, a daily newspaper, and the individual Respondent, Mr. Charles Rusnell, is a reporter for that newspaper. In about June, 1988, the Senate Committee started to investigate allegations against Senator Hazen Argue involving his use of Senate funds and services in the nomination campaign of his wife as a candidate in the federal riding of Nepean. In early July, 1988, the Senate established a sub-committee to examine and report upon the allegations of misuse of public funds, and the sub-committee submitted a report, dated July 29, 1988, to the Senate Committee. The sub-committee heard from fourteen witnesses at meetings held prior to submitting its report which was considered by the Senate Committee at least once at a meeting held on August 18, 1988.

All of the meetings of the Senate Committee and its sub-committee were held in camera. Mr. Rusnell requested at various times that he be allowed to attend the hearings of the Senate Committee or its sub-committee and such requests were refused. He also requested the opportunity to have his counsel present oral representations as to why he should be allowed to attend the hearings. On June 23, 1988 and on August 18, 1988, Mr. Rusnell and his counsel waited outside closed meetings of the Senate Committee. On June 24, 1988, Mr. Rusnell was allowed through counsel to make a written submission supporting his request for access to the hearings, but the Senate Committee did not change its position; and he was advised on two occasions by Senator Royce Frith, the Deputy Chairman of the Senate Committee, that the Committee would continue to meet in camera. ...

As a result of the refusals, the Respondents commenced this action on August 22, 1988... .

The main argument advanced by the Appellant and Respondents in the hearing of the appeal related to the question of the jurisdiction of the Federal Court....

I do not find clear language in the Federal Court Act assigning jurisdiction to the Court in an action of the kind before us. In fact, I find the opposite to be the case...

At this point I would in the normal case close... But this is not the normal case, and I would like to offer some comments about the question of the jurisdiction of the courts generally to apply constitutional restraints to the exercise of privileges by the Senate or one of its committees....

Strayer, J. [in the court below] was of the opinion that courts had such a jurisdiction and found, in particular, that the adoption of the Charter fundamentally altered the nature of the Canadian Constitution such that it is no longer "similar in principle to that of the United Kingdom" as is stated in the preamble to the Constitution Act, 1867 []. Accepting as we must that the adoption of the Charter transformed to a considerable extent our former system of Parliamentary supremacy into our current one of constitutional supremacy,... the sweep of Strayer, J.'s comment that our constitution is no longer similar in principle to that of the United Kingdom is rather wide. Granted much has changed in the new constitutional world of the Charter. But just as purists of federalism have learned to live with the federalist constitution that Canada adopted in 1867 based on principles of parliamentary government in a unitary state..., so it seems to me that the British system of constitutional government will continue to co-exist alongside the Charter if not entirely, which it never did, but certainly in many important respects....

Strayer, J. was of the view that paragraph 32(1)(a) of the Charter [] makes it clear that in referring expressly to Parliament, the restraints of the Charter are imposed on the constitutional elements of Parliament in the same way as the reference to "government" in the same section makes the Charter binding on every component and officer of government while acting as such []. Strayer J. noted that the Supreme Court of Canada... finding the Charter applicable to the exercise of the royal prerogative in Operation Dismantle v. Her Majesty the Queen []. In this connection, one learned commentator has stated that the supremacy of the Charter applies to the Senate and the House of Commons with respect to every action taken by them....

However, there are questions and arguments to the contrary. For example, as noted already, paragraph 32(1)(a) of the Charter applies to Parliament, which by section 17 of the Constitution Act, 1867 means all three components of the House of Commons, the Senate and Her Majesty the Queen. But does paragraph 32(1)(a) apply where only one of the House of Commons and the Senate (or one of its committees) is involved?[] Do the provisions of the Charter not apply because another pre-existing section of the Constitution Act, 1867, namely section 18, expressly confers privileges, powers and immunities on the House of Commons and the Senate? What is the relevance in the Charter era of the jurisprudence to the effect that courts have been reluctant to interfere with the internal proceedings of Parliament...?

Obviously this issue is very important; but because it was not the focus of argument before us and is not necessary to the disposition of the appeal, I shall say no more on the matter....

Notes and questions

1. How should the courts respond to a claim of this kind? Should they defer to the "internal proceedings" of Parliament, or compel openness, precisely because such proceedings are at the heart of democratic governance, and therefore most amenable to Charter review?

2. Can you reconcile this case with the N.W.A.C. decision, which follows? Can N.W.A.C. be reconciled with the S.C.C. decision in New Brunswick Broadcasting, infra.?

D. ACCESS TO DOCUMENTS AND EXHIBITS

Access to the testimony of witnesses and argument of counsel is inherent in the concept of openness, and the right of the public [including the media] to attend proceedings. What about the documents, exhibits and evidence produced during the course of a court proceeding? Should the public and members of the press likewise be entitled to assert a right of access to the evidence that is produced in open court during the course of a trial? If such a right exists, what is its scope and what restrictions can legitimately be imposed on it? Vickery is based on common law principles, despite being decided after the Charter.

Vickery v. Nova Scotia Supreme Court (Prothonotary)

[1991] 1 S.C.R. 671

Stevenson J. (Lamer C.J. and Wilson, La Forest, Sopinka and Gonthier JJ. concurring)

The appellant appeals a judgment ... refusing him access to electronic tapes filed as exhibits in [a] criminal trial.... The issue is whether the appellant, a journalist, is entitled to have access and copy those tapes which, while admitted at a trial, were held to be inadmissible by that Appeal Division, which acquitted Nugent.

In May 1987, Nugent was convicted, at trial, of second degree murder. At that trial, two forms of electronic tapes, prepared by the R.C.M.P., were admitted into evidence. One form of tape was audio cassettes, containing an alleged confession.... The other form was a video cassette of an alleged re-enactment of the killing by Nugent. These tapes became the basis of the Crown's case against Nugent and, ultimately, the basis of his conviction. The trial, the admission of the tapes into evidence, and information of their content, were reported in the media.

On May 10, 1988, in a four-to-one decision, the Appeal Division allowed Nugent's appeal of his conviction, set the conviction aside, and entered an acquittal....

On May 16, 1988, the appellant [requested] a copy of the audio and video tapes.... This refusal on the part of the Registrar eventually led to the appellant's bringing an application, as a member of the public, to obtain the tapes from the Registrar....

Glube C.J.T.D. heard the application... She concluded that the appellant was entitled to access, including the right to make copies.... Nugent was given party status in order to appeal the judgment of Glube C.J.T.D. Macdonald J.A. speaking for the Appeal Division reversed the judgment.... In the hearing before us the appellant sought to argue that the prohibition of access was an infringement of his rights under s. 2(b).... That point was not pursued in the courts below.... In my view this Court should not entertain the Charter argument at this stage.

I turn then to the matters to be considered in judging whether to grant access to filed exhibits. In my view, the Appeal Division was correct in concluding that Nugent's privacy interests as a person acquitted of a crime outweigh the public right of access to exhibits judicially determined to be inadmissible against him....

In MacIntyre, ... the press sought access to search warrants and supporting material. Dickson J. ... noted that it was unwise to attempt any comprehensive definition of the right of access [], and pointed out the competing policy considerations of respect for individual privacy and the need for "openness".... This Court concluded that protection of the innocent would override public access, but that where the warrant was executed and something found the parties affected and the public should have access to the material upon which the warrant had been issued. Because a search warrant is issued in camera, allowing access to the materials in those circumstances serves public accessibility and concomitant judicial accountability [].

In this appeal, the exhibits were presented at an open trial to which there was public access and, indeed, information relating to them was publicly discussed.

I have already noted that the heart of MacIntyre is public accessibility as an important ingredient of judicial accountability. The applicant ... makes no claim to serve that interest. He does not indicate that these tapes are to be used to engage in some scrutiny of the judicial process. Public access to the trial and appellate process in which these exhibits were discussed was in no way impeded and there is no basis on the material before us for concluding that unrestricted dissemination of them would make any meaningful contribution to scrutiny. ... In my view, the chambers judgment fails to recognize four significant factors...

1) The nature of exhibits as part of the court "record".

2) The right of the court to inquire into the use to be made of access, and to regulate it.

3) The fact that the exhibits were produced at trial and open to public scrutiny and discussion so that the open justice requirement had been met.

4) That those subjected to judicial proceedings must undergo public scrutiny of what is said at trial or on appeal and contemporaneous discussion is protected, but different considerations may govern when the process is at an end....

The nature of exhibits as part of the court "record"

An exhibit is not a court record of the same order as records produced by the court, or pleadings and affidavits prepared and filed to comply with court requirements. Exhibits are frequently the property of non-parties and there is, ordinarily, a proprietary interest in them....

Once exhibits have served their purpose in the court process, the argument based on unfettered access as part of the open process lying at the heart of the administration of justice loses some of its pre-eminence.

The right of the court to inquire into the use to be made of access, and to regulate it

It follows that the court, as the custodian of the exhibits, is bound to inquire into the use that is to be made of them and, in my view, is fully entitled to regulate that use.... Nugent has put forward a genuine interest in the disposition of the tapes. He was a participant in their creation, a creation found to have been a violation of his constitutional rights, and the court ought to take steps to protect his legitimate interests.

In an application of this nature the court must protect the respondent and accommodate the public interest in access. This can only be done in terms of the actual purpose and, in the face of obvious prejudice and the absence of a specific purpose, the order for unrestricted access and reproduction should not have been made.

The fulfillment of the open justice requirement

The exhibits were produced at trial and open to public scrutiny and discussion so that the open justice requirement had been met....

I am not persuaded that the court appealed from erred in its conclusion that the chambers judge had given insufficient weight to Nugent's privacy rights, rights he holds after a judicial acquittal. He surrendered that privacy during the trial process, but he did not surrender it for all time.

Non-contemporaneous public scrutiny

... Nugent's privacy was surrendered to the judicial process. Public access to and reporting of those proceedings is a price that he and any other accused must pay in the interests of ensuring the accountability of those engaged in the administration of justice. This principle is reflected in the special privilege that our law has traditionally accorded those who report judicial proceedings. Yet, modern defamation statutes restrict that privilege to contemporaneous reporting.... The subsequent release and publication of selected exhibits is fraught with risk of partiality, with a lack of fairness. Those policy considerations which form our attitude towards the openness of the administration of justice are relevant to an application such as this. Nugent cannot escape from proceedings in which he was involved, nor from the fair and accurate reporting of them, but the courts must be careful not to become unwitting parties to his harassment by facilitating the broadcasting of material which was found to have been obtained in violation of his fundamental rights.

Conclusion

While MacIntyre did not address access to or copying of exhibits, the principles discussed there must, a fortiori, apply to them.

In MacIntyre, Dickson J. said this []:

In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent. ...

I find it difficult to fathom how Nugent could be considered anything other than an innocent person within MacIntyre. Someone who has been accused and convicted of a serious crime on the basis of self-incriminating evidence obtained in violation of his Charter rights should not be made to bear the stigma resulting from unrestricted repetition of the very same illegally obtained evidence....

Cory J. dissenting (L'Heureux-Dubé and McLachlin JJ. concurring)

There are two principles of fundamental importance to our democratic society which must be weighed in the balance.... The first is the right to privacy which inheres in the basic dignity of the individual. This right is of intrinsic importance to the fulfilment of each person....

The second principle is that courts must, in every phase and facet of their processes, be open to all to ensure that ... justice is done and seen by all to be done. If court proceedings, and particularly the criminal process, are to be accepted, they must be completely open so as to enable members of the public to assess both the procedure followed and the final result obtained. Without public acceptance, the criminal law is itself at risk....

The American courts have for many years recognized a common-law right of access to judicial records. All courts have held this right to include a ... right of access to taped evidence introduced at trial. There is also a consensus that the decision as to whether to grant access is within the discretion of the trial court, which must balance the relevant interests at stake....

All courts considered the media to be the representatives of the public with regard to judicial proceedings. The cases recognize the right and responsibility of the media to keep the public informed of the workings of the courts, particularly in the criminal context. The courts have acknowledged that the media play an essential role in furnishing the information upon which public scrutiny and criticism of court proceedings can properly be based, and that in fulfilling this role the media make a substantial contribution to the democratic process of government. It is the media which make the courts truly accessible and "public".

The American cases indicate that there are several factors weighing in favour of public access to evidentiary tapes. First, ... audio and video tapes provide additional meaning to the written word or eyewitness account. Gestures, facial expressions, voice patterns and voice intensity are all modes of communication ... that are lost in transcripts. Second, all persons present in the courtroom at trial witness the tapes as they are introduced into evidence for the benefit of the triers of fact. Broadcasting the tapes publicly would give effect and meaning to the open court principle by allowing members of the public who are unable to be physically present in the courtroom to witness all that privileged members of the public have been able to see for themselves. Third, public broadcasting ... allows those who cannot be present at the trial to weigh the evidence and form their own opinion. This, it is said, satisfies both the appearance and the reality of justice within the community. Finally, public access to judicial records permits the public to keep an eye on all branches of government, including the judiciary.

On the other side of the balance, certain interests are put forward as militating against media access to audio and video tapes. In the American cases, the primary countervailing concern is the possible prejudice to the right of an accused to a fair trial. Other interests weighing against access are concerns relating to admissibility and privacy.

It must be remembered that the balancing in the American cases is far different from that required in the case at bar. In the American decisions the common law right of access had to be balanced against the constitutional right ... to a fair trial.... In those cases where access was denied, [that] right .... was considered to outweigh the common law right of access....

In the case at bar, the fair trial interest simply does not arise. Nugent stands in no criminal jeopardy. He has been acquitted ... and the time for any further appeal has long since elapsed. He cannot claim any prejudice to a present or future right to a fair trial. Thus, the primary concern weighing in the balance against access in the American jurisprudence is not present in this case.

It is worth bearing in mind that some of the American cases suggest that the right to a fair trial is the only countervailing interest which could overcome the strong presumption in favour of access....

There can be no doubt that there exists in Canada a common law right of access to court documents. The nature and extent of that right will determine the outcome of this appeal. The common law right of access is of fundamental importance to the functioning of courts and to the preservation of public confidence in court processes....

It is important that the public have confidence in the workings and proceedings of the courts. There can be a cathartic effect to a criminal trial. When a serious crime has been committed, the community quite naturally is outraged. In earlier times that sense of outrage sometimes led to vengeful acts.... The criminal trial has pre-empted violence by providing an outlet and a means of sublimating the community's sense of outrage.... It provides both a stage and a forum whereby the alleged crime can be explored and, if the accused is found to be guilty, the appropriate penalty imposed. An open trial process demonstrates to all, whether the family of the victim, the family of the accused, or the members of the community in general, that the entire criminal process has been conducted fairly and that those accused of crimes have been dealt with justly.

To operate effectively, the criminal law must have the support of the community. The public has traditionally, and very properly, had a compelling interest in the criminal trial process. In simpler days gone by, a significant segment of the community could attend criminal proceedings....

Obviously times have changed....

The public has accepted the media as their representatives at the unfolding of the criminal process. However, it necessarily follows that the modern community must rely upon the media for a fair and accurate depiction of the proceedings in order to facilitate the public right to comment on and criticize that process. This simply cannot be done without the degree of openness which would provide the media with full access to court documents, records and exhibits. The more barriers that are placed in the way of access, the more suspect the proceedings become and the greater will be the irrational criticism of the process. It is through the press that the vitally important concept of the open court is preserved.

The open court principle has been clearly recognized by this Court....

The rationale of the open court principle is important to the balancing exercise whether under the Charter or, as in the present case, at common law.

Appeals are the natural and frequent continuation of the criminal trial process. What is the community to make of a situation where an accused has been found guilty and the decision reversed by a court of appeal? No matter how right and proper that appellate decision may be, it will always be difficult for a community to accept. These difficulties will be magnified if the appellate court decision is based upon material which is not made accessible to the public's representative, the media.

Therefore, like the criminal trial, the criminal appeal should be as open as possible. The media, as the public's representative, should have access to all the exhibits which are part of the appeal proceedings.... There can be no confidence in the criminal law process unless the public is satisfied with all court proceedings from the beginning of the process to the end of the final appeal. Of the three levels of government, it is the courts above all which must operate openly. While what is done in secret is forever suspect, what is done openly, whether susceptible to praise or condemnation, is more likely to meet with acceptance. There cannot be reasonable comment or criticism unless all aspects of the proceedings are known to the public....

[T]here should, in my view, be access to the tapes filed as exhibits at trial and on appeal.

In arguing that access to the tapes should be denied, Nugent emphasized that the tapes had been ruled inadmissible.... Should the issue of admissibility in itself prohibit access to the tapes? I think not. The media as the agent of the public ought to have access to the tapes and be able to make copies of them. The public has a right to know what was excluded by the appellate court and the reason for its exclusion. To prohibit access to all evidence which has been ruled inadmissible would permit the courts to operate in secret.

Although it is necessary and appropriate that rulings [on admissibility] be made at the trial level ..., the trial is now over. The principal issue in the Court of Appeal was the admissibility of the taped evidence. There should not be a priestly cult of the law whereby lawyers and judges exclusively determine those items of the appeal record which can be seen and heard by members of the public. What evidence is admitted or excluded usually determines the outcome of a trial. Appeal court decisions on this issue are important to the public. Anything that prevents light being shed upon the subject can only lead to dark suspicion of the process....

In this case, judicial opinion differed on the issue of admissibility. The trial judge admitted all the tapes. Four members of the Court of Appeal held all of the tapes to be inadmissible. The dissenting member of the court would have admitted the video tape and most of the audio tapes. This diversity of views on the issue of admissibility further supports the case for access, since the public is entitled to know the actual evidence that was the subject of differing judicial opinion. I therefore conclude that the fact that the tapes were ruled inadmissible should not constitute a bar to their accessibility by the media. The public has a right to know what was ruled admissible and the reason for that ruling.

It was argued that the production and playing of the tapes during the trial satisfied the common law right of access and the underlying open court principle.

It may be that in some cases the production of audio or video tapes in open court would satisfy the public's right of access to those tapes. However, it cannot be forgotten that the ruling as to their inadmissibility determined the outcome of the appeal. So far as the community in which Nugent lived was concerned, he had been found guilty by a jury of his peers. The community and the public in general had a right to know the basis for the reversal of that decision by the Court of Appeal.

In my view, it cannot be said that the production of the tapes at trial satisfies the principle of open courts. The appellate proceeding must be as open as the trial.... The fact that the tape has been played before should not weaken any claim for access. Indeed, the fact that the tape has been publicly viewed, renders the privacy interest less compelling....

Developments in Canada since 1982 have raised the common law right of access and the open court principle ... to even greater prominence. With the advent of the [Charter], courts are playing a far wider role in the affairs of all Canadians than ever before.... With this widening judicial role, there is an increased public interest in judicial decisions and their effects. As a result, the principle of open courts has attained ever-greater significance. When the balancing of competing rights and interests is undertaken, due weight must be given to the added importance of open courts. What is done by the courts away from the clear light of public scrutiny fosters public suspicion, no matter how ill-founded that suspicion might be. Suspicion nurtures the cancerous growth of mistrust which must, if possible, be avoided.

In this case, on balancing the privacy considerations of Nugent against the principle of open courts, the openness of the courts must prevail. This result is necessary to avoid illfounded suspicion of the courts and to maintain public confidence in the administration of justice. It is openness which maintains both the integrity of the court system and public confidence in it....

Summary

There is a common law right of access to judicial records and this right includes the opportunity to inspect and to copy such records.

It is not necessary ... to consider whether that right is guaranteed by s. 2(b).... Nevertheless, the right of access plays an important role in promoting openness of the courts and accountability of the judiciary, and clearly advances the values enshrined in s. 2(b)....

There is a very strong presumption in favour of access. That presumption must be balanced against other important rights and interests.

The balancing exercise must be conducted on a case-by-case basis. ... If access is to be denied, the trial court should outline the opposing interests which have been deemed sufficient to overcome the strong presumption in favour of the common law right of access.

In considering and balancing the right of Nugent to privacy, it must be remembered that Nugent has undergone a trial and the tapes were played in public. In those circumstances the right to privacy ... is of less weight than it would be had the tapes never been played. Further, the importance of the openness of the courts and judicial accountability weighs heavily in favour of access....

Notes and questions

1. Is access to documents, evidence and exhibits as important as access to the hearing itself? Why or why not?

2. Note that, in cases dealing with access and publication bans, the right to a fair trial is often juxtaposed with the public's right to know. In Vickery, however, that element was not present, and the Court's denial of access therefore required an alternative rationalization. Why did Stevenson J. deny access, and do you agree with his reasons?

3. More specifically, do you agree that the open justice requirement was satisfied because the exhibits had been produced at trial? Do you agree that different considerations should apply when the process is at an end? What if the accused had been convicted, and the press was seeking access to the exhibits to expose his wrongful conviction?

4. In dissent, Cory J. stated that appeals should be as open as the trial process. He also found that the prior publication of the exhibits at trial diminished the accused's privacy interest. Do you agree?

5. Do you accept that "[o]f the three levels of government, it is the courts above all which must operate openly"? Note, as well, that Cory J. repeatedly referred to the media as the "public's representatives". If he is right, what limits on openness, if any, could be justified?

6. See also Nixon v. Warner Communications Inc., 98 S.Ct. 1306 (1978) (denying access to Nixon's Watergate tapes). That case may have been decided on its special facts, including the claim of presidential immunity.

7. See also National Bank of Canada v. Melnitzer (1991), 84 D.L.R. (4th) 315 (Gen. Div.) (denying access to sealed minutes of a meeting between a receiver and a lawyer accused of civil and criminal fraud); and Kingston Whig-Standard v. A.G. Ontario, infra, (dealing with press access to exhibits in a murder trial on a case-by-case basis).

Leader-Post (The) v. Neuls

(1992), [1993] 3 W.W.R. 538 (Sask. Q.B.)

Barclay J.

This is an application by two Saskatchewan daily newspapers namely, The Leader-Post and The Star Phoenix [] for access to information with respect to criminal charges that had been laid against Otto Cutts, former President of the Saskatchewan Property Management Corporation (SPMC), Harry Stienwand, SPMC's former security service manager and special Constable Robert LaPorte.... The three accused face a total of seven charges including conspiracy to commit fraud and fraud.

The informations had been filed with the Provincial Court in Regina.

This application was made after the informations had been laid and filed with the appropriate public official and served on the accused, but prior to their first court appearance. Although the accused have now appeared in Court and therefore the matter is academic, the parties, in view of the importance of the issues raised, requested the Court to decide when a criminal information becomes a document open to public inspection.

... [E]very court has a supervisory and protecting power over its own records and that access can be refused when the ends of justice would be subverted by disclosure. The Supreme Court of Canada in MacIntyre [] however, have made it very clear "that the presumption is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right".

As it is now settled by ... MacIntyre,[] that a search warrant and the supporting documents can be made public prior to a charge being laid, it would seem unreasonable that the charging document not be part of the public record until the first court appearance. Clearly, appearance in court by the accused, is not the factor which determines when a document becomes part of the public record. The question there is: What is the critical factor that determines when the document is part of the public record? The answer again was determined by ... MacIntyre []. The presumption of accessibility applies to judicial documents. Clearly, documents can be judicial in nature prior to the accused's appearance.

I conclude in this case that as the informations after having been sworn, were presented to a justice of the peace who determined that a process should issue, which is a judicial act, and that the accused were subsequently served, the ends of justice would not be subverted by disclosure. Therefore, the public in this case would have the right to inspect the informations prior to the first court appearance.

There are probably many cases, however, where the ends of justice could be subverted by disclosure. By way of just one example, if an accused is charged with a sexual offence disclosure of his name may identify the complainant if the public has access to that document. Once the trial has commenced, the presiding justice has power to make an order, where an accused is charged with a sexual offence, directing that the identity of the complainant not be published together with any information that could disclose her identity. If that order can be made at the trial it would seem unreasonable that the public would have access to that information prior to the trial without any restrictions.

Therefore, each case must be determined on its own set of facts and the Provincial Court, which has supervisory and protecting power over its records, must decide whether or not access can be denied when justice would not be served by disclosure. However, the Court must bear in mind in making that decision that the presumption is in favour of making the criminal court process an open one, and the burden of contrary proof lies upon the person who would deny the exercise of the

right.

I therefore declare that in this case, as the informations have been presented to a justice who issued a process and as the accused were served, a member of the public is entitled to inspect the informations even though the accused has not made their first court appearance....

Dr. A v. C

89 B.C.L.R. (2d) 92 (S.C.)

[The headnote summarized the facts:

The plaintiff physician brought a defamation action against the parents of a 5-year-old patient. The defendants alleged the plaintiff had sexually abused the child and they had made complaints to the College of Physicians and Surgeons and to the police. In March 1993 the plaintiff obtained an ex parte order sealing the court file and requiring all pleadings and other documents to describe the parties and the infant by pseudonyms. The order also enjoined the defendants from disclosing to the media the identities of the individuals involved in the action. The defendants applied to set the order aside. Their application was supported by the publisher of two newspapers. The parties agreed that the identity of the infant and her parents should not be revealed in order to protect the infant.]

Esson C.J.S.C.

The defendants in this defamation action apply to set aside an order made ex parte on March 10, 1993....

The operative provisions of the order [are]:

1. THIS COURT ORDERS that the Court file in respect of this action be sealed and access limited to counsel of record.

2. THIS COURT FURTHER ORDERS that all references to the Plaintiff, the Defendants and the infant X in the pleadings or any other documents hereafter filed in this action refer to the parties by pseudonyms as follows:

- to the Plaintiff, as Dr. A - to the infant as Infant X - to the Defendants, as Mr. C and Mrs. C

3. THIS COURT FURTHER ORDERS that the Defendants be restrained and enjoined from referring to the Plaintiff, themselves or the infant X in any action they may commence against the Plaintiff except by pseudonym as set out above, and that they be restrained and enjoined from otherwise identifying the Plaintiff, themselves or the infant in any such action, whether directly or indirectly;

4. THIS COURT FURTHER ORDERS that the Defendants be restrained and enjoined from disclosing to the media the identities of the individuals involved in this action or in any action they may commence against the Plaintiff, and that they be restrained and enjoined from making statements to the media which allege or imply that the Plaintiff sexually molested the infant X or sexually assaulted the Defendant Mrs. C;

5. THIS COURT FURTHER ORDERS that the Defendant have liberty to apply to vary or set aside the Order on two clear days notice.

... I turn to the provision requiring the parties to be identified by pseudonyms. Counsel for the "C"s and Pacific Press contend that, in protecting the identity of Dr. "A" and Mrs. "B", persons alleged to have committed sexual assault, the court acted beyond its jurisdiction. The submission is that, as a matter of law, those who claim to have been victimized are entitled to protection if they seek it, but that those alleged to be the victimizers are entitled to no protection. None of the cases cited in support of this novel proposition, on examination, will be found to provide such support....

... I find no merit in the contention that this court, in a civil action, has no inherent jurisdiction to order that the identity of a person alleged to have committed sexual assault be protected. The question ... is to be decided on the ordinary principles applicable to granting interim injunctions with due regard to the presumption that court proceedings should not be concealed from the public without strong grounds for so doing.[]The test is whether on balance the need to apply an exception to the general rule is imperative.

Applications by physicians to disguise their identity in appeals against adverse decisions of the College are not uncommon but have not generally been successful in recent years. In most such cases, the presumption in favour of openness has prevailed. There are important distinctions between the circumstances of those proceedings, and those in the present case....

It is of course well established under our law that the principle of openness should be applied to all aspects of court proceedings unless there is sufficient reason to limit access. But there are differences of degree depending on the stage and nature of the proceeding. Clearly, there is much more scope for properly limiting access at preliminary and interlocutory stages or, as was the case in [Vickery] after the trial is over.

What is in issue in this case is whether a measure of confidentiality should apply at the initial and interlocutory stage of the action. In considering this question, regard must be had to the potential for abuse which is created by our practice in respect of pleadings. A statement of claim is accepted for filing with no check upon its contents and is then available for public inspection. The contents of the document are determined unilaterally by whoever drafts the document. Absolute privilege attaches to anything said in pleadings, as it does to all utterances and communications in the course of court proceedings, and that even if the words are totally false, spoken in bad faith and with actual malice....

In this case, the court has no way of knowing at this stage whether there is any truth in the dreadful allegations set out in unnecessary detail in para. 10 of the statement of claim.... At this point, these are allegations only. The Crown has laid no charge and the College has not suspended the physician's right to practice. There is no evidence in support of the allegations about Infant "X". These circumstances do not of course establish that Dr. "A" is innocent, but they can support treating him at this stage as an "innocent" as that term is used in the leading case of [MacIntyre].

The word "innocent" is used there in the rather narrow sense of a person whose property was searched and nothing found. That does not mean that the person is innocent of the crime under investigation but merely that he is entitled to be treated as such in relation to the search warrant. Similarly, someone in Dr. "A's" position may be entitled to be treated as such in relation to unsubstantiated allegations in the pleadings....

I conclude that the orders in paras. 2 and 3 were properly made [], in the exercise of the court's jurisdiction to ensure that its own process is not used for an improper purpose. In the ensuing eleven months there have been further developments which, it is argued, provide a basis for setting aside the order. But none, on the basis of the evidence before me, amounts to substantiation of the allegations in respect of Infant "X". I am not persuaded that a sufficient basis has been established for setting aside those terms of the order. The parties will continue to be at liberty to apply to set aside or vary on the basis of any additional change in circumstances.

That leaves for consideration the matter of the order sealing the file. That order was essential as ancillary to the order protecting identity and enjoining communication with the media. Even if the order protecting the identity of Dr. "A" and Mrs. "B" was not being maintained, it would be essential to partially maintain the sealing order in order to protect the interests of the infant. However, I see no reason to maintain the sealing order except to the extent necessary to protect identities which are disclosed by the early documents. I request counsel to consider how the file can be opened without disclosing identities. That likely will require keeping the early documents in a sealed file but keeping the more recent and future documents, along with expurgated versions of the earlier documents, in a separate open file. If counsel cannot agree on suitable terms to effect that purpose, the matter may be spoken to. Paragraph 1 of the order remains in effect until further order.

E. ACCESS BY ELECTRONIC OR AUDIO MEDIA

Since the Charter's arrival, the public has unquestionably become more aware, and interested in, the justice system. Whether cameras should be allowed in courts (and whether taking this step is inevitable) has stirred considerable controversy. Cameras in the court present access and the openness principle from a different angle.

How different is that angle? Does the presence of tape or video recording equipment change the nature of the claim? In other words, can access be granted without conferring "special privileges" on the media? Or, are access and openness meaningless unless the media are entitled to use the equipment that facilitates their coverage of and commentary on judicial proceedings?

Should the judiciary be reluctant to permit access in these circumstances? What concerns, if any, should they have?

Kingston Whig-Standard v. Ontario (Attorney General)

[1992] O.J. No. 1162 (unreported) (Gen. Div.)

MacLeod J.

... This application arises from orders made by me on May 4th, 1992, at the opening of [a first degree murder trial] ... prohibiting the unobtrusive use of a tape recording device by a reporter from "The Kingston Whig-Standard" and denying access to the exhibits for the purpose of photocopying.

... What then are the proper limits to be imposed with respect to tape recording of proceedings by a journalist and accessibility to and photocopying of exhibits? That question must be considered in relation to several broad policy considerations; namely, the protection of the administration of justice; a strong public policy in favour of openness in respect of judicial proceedings; a public policy in favour of maximum accountability and accessibility; respect for the right of every accused person to receive a fair trial; and the guarantee of fundamental freedoms in s. 2(b)... Any limitation in respect of freedom of the press can only be justified where there is present the need to protect social values of superordinate importance....

The Kingston "Whig-Standard" is not before the court having been denied access to the court proceedings... They have had full access to all of the court proceedings and are able to take notes of the proceedings and freely report the events of each day of trial as they deem appropriate. The applicant submits that in order to meet its crucial role of informing the public about court proceedings, that representatives of the media must be permitted to cover the proceedings as accurately and completely as possible. In that regard they seek to unobtrusively use a tape recorder to assist their reporter in taking accurate and complete notes. It is submitted that this is as much a part of the right to gather information about the court proceedings as taking handwritten notes themselves.... The applicant submits that the desirability of representatives of the media using audio recordings of the proceedings to supplement their handwritten notes has been recognized by statute in the Courts of Justice Act. Further, they submit that no approval need be sought from a judge in order for a journalist to unobtrusively make an audio recording of court proceedings for that purpose.

Section 136(2)(b) of the Courts of Justice Act (formerly s. 146(2)(b)) states that nothing in that section of the Courts of Justice Act which is a general prohibition against photography, audio recording or other electronic recording, prohibits a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes. That section is followed by a practice direction as follows:

Recording of court proceedings by a solicitor, a party acting in person or a journalist

Subject to any order made by the presiding judge as to non-publication of court proceedings, and to the right of the presiding judge to give such directions ... as to the manner in which an audio recording may be made ..., the unobtrusive use of a recording device from the body of the courtroom by a solicitor, a party acting in person, or a journalist for the sole purpose of supplementing or replacing handwritten notes may be considered as being approved without an oral or written application to the presiding judge. []

Section 95 of the Courts of Justice Act (formerly s.108) provides that s.136 applies to criminal proceedings under the Criminal Code (Canada) except insofar as they are inconsistent with that act. There is no specific provision dealing with public access to records concerning the court's proceedings, however, access for viewing of exhibits at an appropriate time during the trial has been allowed by many courts to assist the media in providing complete information concerning court proceedings to the public....

I find on the particular facts before me that the order ... should not be set aside. The media are permitted to view the exhibits during appropriate adjournments. I will deal with requests for photocopying of any exhibits on an exhibit by exhibit basis.... The limitation which I have placed on the Kingston "Whig-Standard" is amply, demonstratively justified in a free and democratic society....

The right of an accused to a fair and impartial trial is paramount to the freedom of the press. My order does not deny any member of the public or any member of the media or any journalist access to the courtroom ... to hear all of the testimony of the witnesses and all of the argument of the trial proceedings....

Counsel for the accused persons ... strenuously object to the tape recording of the proceedings. All of the respondents strenuously object to the photocopying of the exhibits in this trial. The basis of their objection has persuasive merit. ... [T]he applicant's request would interfere with the conduct of the criminal trial. It would pose a significant risk to counsel in representing their clients. Their private conversations within the courtroom setting could be taped. Witnesses evidence may be effected.[sic] Conversations between themselves as counsel could be recorded. Solicitor and client privilege in our system of justice is paramount to the freedom of the press. There is a real risk that these private communications would be recorded.... It would be unnecessarily disruptive to require the court to adjourn each and every time such an inquiry or conversation was desired between counsel and their clients or from one counsel to another. In my view the recording sought directly impacts on the right of these accused persons to receive a fair trial....

There is only a moderate restriction being placed on the freedom of the press. The press are ... free to take detailed handwritten notes.

In the same view the exhibits and access to the exhibits must also be regulated by the court. The interests of the owners of the exhibits outweigh that of the press. An exhibit is not a court record such as a pleading or an affidavit. The exhibits are frequently property of other citizens who have a proprietary interest in them. [T]hey are ordinarily returned to the person who produced them and who has a proprietary interest in them. While those exhibits are in the court's custody there is a duty imposed upon the court to scrutinize any request for access....

Photocopying of exhibits shall be dealt with on an exhibit by exhibit basis. If a journalist or any member of the media wishes a photocopy of any particular exhibit, they shall advise the court clerk. I will review the exhibit and determine whether or not photocopying will be permitted....

In summary, the order prohibiting the unobtrusive use of a tape recording device will not be set aside.... Viewing of the exhibits will be permitted during appropriate court adjournments. Requests for photocopying of any particular exhibit shall be made to the court clerk who will relay those requests to me for consideration and decision.

Notes and questions

1. On the question of access to exhibits, see Vickery v. Nova Scotia Supreme Court (Prothonotary), above.

2. MacLeod J. referred to the "broad policy considerations" at stake in addressing a press request for audio access to his courtroom. Are you satisfied with the way those considerations were balanced? More specifically, what was the risk to a fair trial in this case? Was it concrete or merely speculative? Was it sufficient to defeat the strong policies (which the judge endorsed) in favour of openness, maximum accountability and accessibility?

3. The judge also stated that only a "moderate restriction" was placed on the press. It was a restriction just the same. Did it satisfy the requirement of minimal impairment? In the absence of any evidence, why should the judge assume that the press will violate the accuseds' privacy or fair trial rights, or otherwise engage in eavesdropping? In any event, could this risk be addressed by less restrictive means, or was an absolute ban on audio equipment the only solution?

The Queen v. Squires

(1992), 11 O.R. (3d) 385; [1993] 3 S.C.R. ix (denying leave to appeal)

Tarnopolsky J.A., dissenting (Krever J.A., concurring)

... This appeal raises the question whether a television crew may film people entering or leaving court proceedings, contrary to s. 67(2)(a)(ii) of the Judicature Act [][now s. 136 of the Courts of Justice Act []]....

(2) Facts

The appellant, Catherine Squires, is a television reporter with the Canadian Broadcasting Corporation ("C.B.C."). On May 7, 1984, Ms. Squires was assigned to cover a preliminary hearing into charges that several persons attempted to murder a Turkish diplomat in Ottawa. After the victim of the attempted murder had testified at the preliminary hearing, he left the courtroom in his wheelchair. When he proceeded into the courthouse corridor just outside the courtroom, Ms. Squires had her cameraman film him. The footage was later aired by the C.B.C.

Squires was charged, under s. 67(2)(a) ..., with having directed the taking of a film of a person leaving a room in which judicial proceedings were being conducted....

(5) Does s. 67(2)(a)(ii) of the Judicature Act infringe the appellant's Charter s. 2(b) right?

Subsection 67(2) is patently directed to limiting expression by means of visual representations -- in our case, "of any person entering or leaving the room in which ... [a] judicial proceeding is to be or has been convened". Paragraph (2)(a) prohibits the taking of or attempting to take an image for producing the visual representations, while paragraph (2)(b) prohibits their transmission or communication.

... In applying Irwin Toy to the facts in this case, one must first determine whether the activity in question, that is, the filming of participants as they enter and leave judicial proceedings, has any expressive content. The answer must be: What else could it possibly be? ...

... The trial judge's opinion was that the purpose of s. 67(2)(a)(ii) is to maintain courtroom decorum, to provide for a fair trial, and to protect the rights, dignity and privacy of trial participants. I agree with him that these constitute a valid purpose beyond merely restricting television coverage, although I question whether privacy, apart from limited exceptions, can be or is being protected in the context of another prime object of the due administration of justice, namely, open and public trials.

... Viewing, then, our case in the light of [precedent] one could suggest that freedom of expression in this case should be determined under ss. 2(b) and 1 of the Charter in the following manner:

1) Is the particular action expressive and not violent? Obviously it is....

2) Is the purpose or is the effect of the statutory provision to limit expression? It is clearly intended to limit expression by way of visual representation on video or film. Whether its purpose or object is ... to be one of safeguarding a fair trial or dignity and decorum in the courtroom and courthouse, or the dignity and privacy of trial participants, cannot matter in this case for purposes of determining whether s. 2(b) ... has been violated. The reason is that, although its purpose is content-neutral, its effect is to limit the kind of expression that is an inherent part of television reporting.

3) Since the limitation here is on government property, is the form of expression incompatible with the principal function of the place where it occurs? The answer here must be given in the light of what was said [in Re Southam #1], i.e. that free access to the courts "is an integral and implicit part of the guarantee given to everyone of freedom of opinion and expression which, in terms, includes freedom of the press".... Thus, reporting as such is not considered to be incompatible with the function of a courthouse. Even visual representations of courtroom scenes, by way of hand drawings, are permitted. As all judges know, these are never flattering and seldom accurate. Could that be why they are permitted instead of the more accurate image of a television camera? In any case, recognition of who goes in and out of courtrooms is possible, even intended, in newspaper coverage. Can one say that the more evident image on television is somehow less compatible with the function of a courthouse? It is said that with television reporting there can be a "scramble" which could be disturbing. But, if so, these are matters of disturbance, or even violence, which are not compatible with the use of courthouses. If there is violence, it is not expression for s. 2(b) purposes. If there is a disturbance, there can be controls of time and place, which are aspects of s. 1, not s. 2(b).

4) As an alternative to the previous question, which one would ask if following the "compatibility of function" approach of Lamer C.J.C. in [Commonwealth], one could pose the question a la "definitional" approach of McLachlin J., i.e., is the expression related to one of the three purposes of the free expression guarantee noted in Irwin Toy? I have already asserted that it is. In any balance with the important function of the press and other media ..., one would have to conclude, as McLachlin J. did in [Commonwealth] that there has been a violation of s. 2(b)....

[After finding that the legislation had sufficiently important objectives, Tarnopolsky applied the proportionality test.]

... In surveying the entirety of the evidence, I find it difficult to find a rational link between banning the televising of participants entering and leaving judicial proceedings and the fairness of the trial process. [...] If televising has caused no reported problem, then it would appear that permitting television outside the courtroom, that is, in the corridors and rotundas of the province's courthouses, where any threat to the judicial process is obviously more remote, would not compromise the justice rendered.

Taking this requirement into consideration, I fail to see any actual demonstration of harm and only a remote, and as yet unproven, possibility of harm should filming be allowed in the vicinity of courtrooms. The majority of evidence heard in this case pertained to television cameras in courtrooms. However, we are not concerned with that in this case....

Even if I am wrong in my conclusion on the "rational connection" branch of the proportionality test, I find that the restriction in s. 67 does not meet the "minimal impairment" [test].

... What could be a better illustration of an overbroad restriction than a total ban? That is what para. 67(2)(a) amounts to. Sub-paragraph (i) thereof prohibits the taking of visual representations "at a judicial proceeding"; sub-para. (ii), as we have seen, prohibits such representations of persons entering or leaving courtrooms; and sub-para. (iii) prohibits the taking of a visual representation "of any person in the precincts of the building in which the judicial proceeding is to be or has been convened" and there are reasonable grounds for believing that the person is there for the purpose of attending or leaving the proceeding.

... Sub-paragraph 67(2)(a)(ii) is not a reasonable and demonstrably justified limit....

Houlden J.A.

Since s. 67(2)(ii) violates [s. 2(b)], it is necessary to determine if it is a reasonable limit....

Under the Oakes test, the first matter to be addressed is whether the objective of the legislation is of sufficient importance to warrant overriding the freedom guaranteed by s. 2(b).

... Section 67(2)(a)(ii) is designed to preserve the calm, quiet atmosphere which is essential for the proper administration of justice. A courthouse is not a place of entertainment or education; it is a place where people come to obtain a just resolution of their legal disputes.

[A]nother legitimate objective of the legislation is the protection of unimpeded access to and from the courtroom by participants in court proceedings. If it were not for s. 67(2)(a)(ii), parties and witnesses entering and leaving the courtroom would be fair game for photographers. Once a party or witness leaves the courthouse, he or she can be photographed but, in entering or leaving the courtroom, parties and witnesses at the present time are free from that kind of activity.

... The two objectives, I have accepted, are of sufficient importance ... to justify overriding the freedom conferred on the appellant by s. 2(b).... Accordingly, it is necessary to turn to the second half of the Oakes test, the matter of proportionality.

The first issue ... is whether there is a rational connection between the objectives of the legislation and the means chosen to achieve those objectives. Unlike Tarnopolsky J.A., I believe that there is a rational connection between the restrictions in s. 67(2)(a)(ii) and the objectives of the legislation. The prohibition of the taking of photographs or film of persons entering or leaving the courtroom will maintain order and decorum in the courthouse and protect unimpeded access to and from the courtroom.

... The last two parts of the Oakes test ... can be conveniently considered together. In my opinion, the legislation meets these requirements.

Section 67(2)(a)(ii) does not absolutely prohibit the taking of photographs or televising of participants in court proceedings. Such activities can and do take place outside the courthouse.

The fair and impartial administration of justice requires a calm, dignified atmosphere. If photographing and televising is permitted of persons entering or leaving the courtroom, that atmosphere will, I believe, be disrupted.

Furthermore, the taking of photographs of persons entering or leaving the courtroom, can ... lead to "wolf-pack" journalism in which photographers and cameramen descend en masse on the person that they wish to photograph. Without s. 67(2)(a)(ii) the photographers would be able to stalk the hallways of the courthouse, waiting to pounce on participants as they move in and out.... This can lead to shoving and shouting outside the courtroom door and the consequent disruption of proceedings in the courtroom.

... In my opinion, the prohibition against taking photographs of persons entering or leaving the courtroom is [reasonable]. The prohibition is necessary to preserve the conditions that are essential for a fair and impartial hearing....

Osborne J.A.

... The issue to be determined is the constitutional validity of the legislation prohibiting the production of electronic visual representations of persons entering and leaving a courtroom in which a judicial proceeding is or is about to be convened. We did not consider, and these reasons do not address, in a constitutional or other context, the issues whether cameras should be permitted in courtrooms, or whether the electronic media should or should not be permitted in the corridors of courthouses.

... If a contextual approach is taken... it becomes necessary... to answer the following question: What is lost as a result of the statutory prohibition against filming persons entering and leaving a courtroom?

... I do not share Tarnopolsky J.A.'s view that what is lost as a result of the prohibition ... impairs the electronic media's ability to perform its function of providing the public with access to judicial proceedings. I do not think the [] prohibition compromises the public's right to know, the media's concurrent right to inform, or the principle of open justice, in any significant way. Filming an accused, a witness, a lawyer, a judge or juror, or an administrative official entering or leaving a courtroom may complete or enhance a visual story, but manifestly not in a significant way.

... In his s. 2 analysis, Tarnopolsky J.A. has referred to what expressive content is lost.... I agree with him that visual representations (drawings) are inferior to the real thing. I do not agree that it follows that the electronic images taken in courtroom entrance and exit areas constitute an important contribution to the public's understanding of court proceedings generally. On the continuum of what contributes to the public's understanding ..., it seems to me that the absence of electronic images of persons going into and out of a courtroom does not represent a significant electronic media handicap....

... In my opinion, electronic media access to those entering and leaving a courtroom cannot, in practice, be regulated in such a way as to achieve a degree of control which would be viewed as reasonable and workable. It is imperative that a reasonable degree of dignity and decorum be preserved. That goes to the heart of the public's confidence in the administration of justice and to the public's willingness to participate in it. The trial judge will not be able to control ... what occurs once a witness, a victim or a juror leaves or enters a courtroom. ...[A]buses will inevitably occur if television is allowed to operate in that part of the courthouse. Any system of regulation would have to be workable in all courthouses, in most circumstances. Thus, it seems to me that in the face of benefits (emerging from the form of expression prohibited ... which [is] of distinctly limited value), the prohibition ... passes the test required to be imposed by s. 1 itself, and by Oakes. In my opinion, the statutory prohibition ... is a reasonable limit....

I would not wish to be taken to have expressed, in a constitutional context, the same views with respect to television in courtrooms and in courthouse hallway areas....

Dubin C.J.O.

... I agree with the conclusion of my colleagues, Houlden and Osborne JJ.A..... However, ... I have a reservation as to whether the activity prohibited ... is compatible with the principal function or intended purpose of a courthouse and thus within the ambit of s. 2(b).... Since all my colleagues are of the contrary view on this issue, nothing is to be gained ... by my exploring that issue further here. However, if s. 67(2)(a)(ii) infringes s. 2(b)..., I agree ... that [it] is a reasonable limit....

Notes and questions

1. Note that the Court split in Squires, by 3 to 2, in favour of the statutory prohibition against filming directly outside court room proceedings. Also note that, in doing so, it avoided the question of cameras in the courtroom. Should the Supreme Court of Canada have granted leave? Why or why not?

2. Dubin C.J.O. was reluctant to concede the breach of s.2(b). Is it clear to you there was a breach in this instance? Why or why not?

3. Under s.1, Osborne J.A stated that filming outside courtrooms does not constitute an "important contribution"" to the public's understanding of the justice system. What is the basis for that conclusion, and do you agree with it? In addition, he stated that restrictions were necessary because a trial judge could not control what occurs once participants leave the courtroom. Once they have left the court, how much power should judges have to control the s.2(b) activities of participants and members of the press?

4. Houlden J.A. likewise was concerned about disruption and "wolf-pack" journalism taking place outside courtrooms. Was there any evidence that disruption would be inevitable if the absolute ban was lifted? Once again, how can an absolute ban satisfy the requirement of minimal impairment, particularly where the majority made no effort to explore the viability of less restrictive alternatives?

5. Cameras have been present in a variety of public inquiries and discipline proceedings in recent years [i.e., the Grange inquiry into the deaths of children at Sick Children's Hospital; the Dubin inquiry into the use of drugs in athletics; the Patricia Starr inquiry; and the conduct of Provincial Judge Hryciuk]. In each case, the presence of cameras made the proceedings accessible to the public. In one case, further witnesses were prompted to come forward. Do the courts have anything to learn from those experiences? Are the courts different?

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)

[1993] 1 S.C.R. 319

[New Brunswick Broadcasting applied for an order allowing it "to film the proceedings of the House of Assembly with its own cameras". The media have access to the public gallery in the House and also have access to Hansard, but the House of Assembly, in the exercise of its parliamentary privileges, has prohibited the use of television cameras, except on special occasions. The respondent claimed that it was possible to film the proceedings from the public gallery with modern hand-held cameras which were both silent and required no special lighting or electrical equipment. In his evidence, the Speaker indicated that the respondent's proposal would interfere with the decorum and orderly proceedings of the House. Apart from controlling decorum, the House would have no control over the production and use of the film. At the Supreme Court of Canada, a majority, comprising Lamer C.J., McLachlin, LaForest, L'Heureux-Dubé, Gonthier and Iacobucci JJ. held that the Charter does not apply to the Legislative Assembly of Nova Scotia. Sopinka J. held that the Charter does apply to the Assembly but concluded that the infringement of s. 2(b) was saved by s.1; Cory J. alone dissented.]

Per McLachlin J. (L'Heureux-Dubé, Gonthier and Iacobucci JJ. concurring)

A textual and purposive approach to s. 32(1) ... does not support the conclusion that a legislative assembly can never be subject to the Charter.... Without deciding that the legislative assembly is a government actor for all purposes, as a public body it might be capable of impinging on individual freedoms in areas not protected by privilege. The legislative assembly could, therefore, fall within the rationale for regarding such bodies as government actors subject to the Charter. Absent specific Charter language to the contrary, however, the long history of curial deference to the independence of the legislative body ... cannot be lightly set aside, even conceding that our notions of what is permitted to government actors have been significantly altered by the enactment and entrenchment of the Charter.

The Charter does not apply to the House of Assembly's action at issue in this appeal. The privilege of the legislative assembly to exclude strangers enjoys constitutional status as part of the Constitution of Canada, and hence cannot be abrogated by another part of the Constitution. The House of Assembly has the constitutional power to exclude strangers from its chamber by virtue of the preamble to the Constitution Act, 1867, which proclaims an intention to establish "a Constitution similar in Principle to that of the United Kingdom". This preamble constitutionally guarantees the continuance of Parliamentary governance and, given Canadian federalism, this guarantee extends to the provincial legislatures in the same manner as to the federal Parliament....

From an historical perspective, Canadian legislative bodies had, from their inception, those privileges which were necessary for the maintenance of order and discipline during the performance of their duties. These privileges are part of the fundamental law of our land, and hence are constitutional. While courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, they have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

Finally, from a practical point of view, a legislative body must possess such constitutional powers as are necessary for its proper functioning. An absolute right to exclude strangers from its chamber, when it deems them to be disruptive of its efficacious operation, is a valid category of privilege founded on necessity. This privilege is as necessary to modern Canadian democracy as it has been to democracies here and elsewhere in past centuries.

Here, the Speaker of the House of Assembly ruled against the media's demands because he was of the view that they would interfere with the decorum and efficacious proceedings of the House. In doing so, he acted within the ambit of his constitutional power to control attendance in the House. It follows that this constitutional power cannot be abrogated by the Charter. At issue is a valid constitutional power. To subject this power to the Charter would be to negate this power. Were the issue here an action taken pursuant to a valid power, that action might be subject to Charter scrutiny....

Sopinka J. (concurring in result only)

... Both the Chief Justice and McLachlin J. find that the impugned rule or practice of the legislative assembly is immune from scrutiny under the [Charter] but on different grounds....I have concluded that no such immunity exists....

With respect to the reasons of my colleague, Cory J., while I agree that s. 2(b) may be engaged, I would allow the appeal because, in my view, any restriction on s. 2(b) is justified.... In this regard, the restriction on s. 2(b) must be dealt with on the basis of the current situation. As a result of a special study conducted by the legislative assembly, the original prohibition was relaxed in favour of the installation of the "electronic Hansard". The cameras of the "electronic Hansard" are in the control of the Assembly. They record the member recognized by the Speaker as having the floor. A direct feed of the "electronic Hansard" is available to the media who are thus enabled to broadcast the proceedings live or tape them.

Viewed in light of this development, the effect of the impugned restriction is that members of the media are not allowed to have their hand-held cameras in the public gallery. The effect on the publication of news is that they are prevented from obtaining the reaction of the members who are not speaking. Presumably this may on occasion detract from the atmosphere of what is going on and no doubt may from time to time deprive the public of a considerable source of amusement.

I accept that the inability to gather news can occasion a restriction on freedom of expression if it interferes with disseminating the news. The respondent alleges that it is prevented from determining the focus of the camera and hence is precluded from showing the atmosphere of the chamber including the non-verbal conduct of the members. This Court has not determined whether the protection of s. 2(b) extends not only to the gathering and dissemination of news but to the means by which that is done. That determination will have implications far beyond the facts of this case.... Assuming that [s.2(b) is violated], I am satisfied that it is justified....

... I accept the submission of the appellant that the objective is to maintain order and decorum and ensure the smooth functioning of the legislative assembly. I cannot accept the respondent's submission that the real purpose of the rule is to limit public scrutiny. The present restriction is also rationally connected to this objective.... While some other method might have been equally effective, the procedure which has been adopted appears eminently sensible and I am not prepared to second guess the legislative assembly who studied the matter and adopted a method which ensures that in essence the proceedings of the Assembly are made available to the television viewing audience. While I reject the submission that the exercise of this privilege is beyond the reach of judicial review, I cannot ignore that this is an area in which the Court should not dictate the precise method in which the Assembly should keep order in its own house. Finally, given the importance of preserving the decorum of the House of Assembly, the alleged intrusion on the freedom of the press is not out of proportion to this objective....

Cory J. (dissenting)

... In this case, we are dealing with access by a branch of the news media to the public sessions of the legislative assembly. The television media seek access to those sessions in order to gather information and report upon the democracy in action. Obviously that access must be subject to reasonable control by the legislative assembly. This is essential to prevent the television media becoming too intrusive and adversely affecting the efficient operation of the Assembly. Yet access is not only appropriate but essential. What better way is there for citizens to be informed of the work of the legislature than by an independent media? What better manner exists for [citizens] to be assured that their elected representatives are conscientiously striving to achieve results that are in the best interests of Nova Scotians?...

... In my view, the protection of news gathering does not constitute a preferential treatment of an elite or entrenched group, the media, rather it constitutes an ancillary right essential for the meaningful exercise of the Charter. Although the language of the section may not specifically grant special rights to a defined group it does include freedom of the press.... It is obvious that a prohibition on television cameras is by definition a restriction on freedom of the press. Whether such a restriction is justified will depend on s. 1....

... The television media constitute an integral part of the press. Reporting in all forms has evolved over the ages.... It is not long ago that the quill pen was the sole means of transcribing the written word. Surely today neither the taking of notes in shorthand or the use of unobtrusive tape recording devices to ensure accuracy would be banned from the press gallery. Nor should the unobtrusive use of a video camera. The video camera provides the ultimate means of accurately and completely recording all that transpires. Not only the words spoken but the tone of voice, the nuances of verbal emphasis together with the gestures and facial expressions are recorded. It provides the nearest and closest substitute to the physical presence of an interested observer.

So long as the camera is neither too pervasive nor too obtrusive, there can be no good reason for excluding it. How can it be said that greater accuracy and completeness of reporting are to be discouraged? Perhaps more Canadians receive their news by way of television than by any other means. If there is to be an informed opinion ..., it will be informed in large part by television reporting. Nor should we jump to the conclusion that if the media is granted broader rights that they will be abused. Hand in hand with increased rights go increased responsibilities. The responsibility of the press is to report accurately, fairly, and completely, that which is relevant and pertinent to public issues. It may be argued that the television media will only broadcast that which is sensational. That same argument could be advanced with regard to all forms of media. Yet no one would consider barring the print media from a public session of the Assembly on the grounds that they tended to be sensationalist. The public today is too intelligent, too discerning and too well informed to accept unfairly slanted or sensational reporting.

Clearly, the legislative assembly has a right in appropriate circumstances to exclude or remove visitors [to preserve decorum], including the members of the press.... What the Assembly cannot do is to exclude television entirely by means of regulation without infringing s. 2(b)....

I would repeat that a balance must be kept between efficient and dignified operation of the legislative assembly and the right of freedom of expression. It seems that the regulation which is now in force with agreement of all parties with regard to the television cameras, limiting their number and position, is eminently fair and suitable and would be justifiable under s. 1 of the Charter. However the refusal to permit any television cameras contravenes the provisions of s. 2(b) of the Charter and cannot be justified under s. 1.

Notes and questions

1. Six of eight members of the panel concluded that the question of access to parliamentary proceedings does not even engage the Charter. Yet the courts have acknowledged the role free expression and a free press have traditionally played in democratic self-government, even prior to the Charter. Is the decision in Donohoe extraordinary, an aberration, or one you consider perfectly appropriate?

2. If you agree with the decision, on what grounds do you think the respondent's claim should have failed: that the Charter does not apply or alternatively, that the limit was a reasonable one?

3. If the purpose of the Charter is to prohibit the state from infringing certain rights, how can the government in this case claim an absolute prerogative to exclude the public from its house of debate? Should the Court show "curial deference" in such circumstances? Why or why not?

F. AMERICAN JURISPRUDENCE

Richmond Newspapers, Inc. v. Virginia

100 S.Ct. 2814 (1980)

[The appellant sent two reporters to the accused's fourth trial (which had been preceded by one conviction and two mistrials). The judge granted the defendant's request that the trial be closed. The case reached the U.S. Supreme Court on the question whether the Constitution guarantees a right of access.]

Burger J.

[T]he historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality. ... Jeremy Bentham not only recognized the therapeutic value of open justice but regarded it as the keystone:

Without publicity, all other checks are insufficient: in comparison to publicity all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.[] ...

Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done -- or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." ...

Looking back, we see that when the ancient "town meeting" form of trial became too cumbersome, 12 members of the community were delegated to act as its surrogates, but the community did not surrender its right to observe the conduct of trials. The people retained a "right of visitation" which enabled them to satisfy themselves that justice was in fact being done.

People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case....

From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice. This conclusion is hardly novel....

The First Amendment, in conjunction with the Fourteenth, prohibits government from "abridging the freedom of speech, or of the press.... These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. Plainly it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted....

The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials "before as many of the people as chose to attend" was regarded as one of "the inestimable advantages of a free English constitution of government."[] In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees. ...

The State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that accordingly no such right is protected. The possibility that such a contention could be made did not escape the notice of the Constitution's draftsmen; they were concerned that some important rights might be thought disparaged because not specifically guaranteed. It was even argued that because of this danger no Bill of Rights should be adopted. ...

But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees....

We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated."[]

Having concluded there was a guaranteed right of the public under the First and Fourteenth Amendments to attend the trial of Stevenson's case, we return to the closure order challenged by appellants. [A]lthough the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial. 443 U.S., at 382, 99 S.Ct., at 2907. Despite the fact that this was the fourth trial of the accused, the trial judge made no findings to support closure; no inquiry was made as to whether alternative solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial. In contrast to the pretrial proceeding dealt with in Gannett, there exist in the context of the trial itself various tested alternatives to satisfy the constitutional demands of fairness. ... Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public....

[Brennan, Stewart, and Blackmun JJ. concurred but delivered separate judgements, and Rehnquist J. dissented.]

Notes and questions

1. How does the Court rationalize the right to access - is Richmond Newspapers a case about freedom of the press, or the public's right to know? Does it matter where the emphasis is placed?

2. What are the competing interests at stake in this case, and how does the Court balance them? In what circumstances could closure be justified?

3. What alternative solutions could be employed to ensure the fairness of this trial? Can closure ever be justified where alternative solutions are available? What role should alternative solutions play in the analysis?

4. Should different considerations apply at different stages of the process? Should trials be treated differently than pretrial proceedings, i.e., preliminary inquiries, bail hearings? Why or why not?

Globe Newspaper Co. v. Superior Court

457 U.S. 596 (1982)

[Globe challenged a statutory provision that required trial judges to exclude the press and public from the courtroom during the testimony of minor victims at trials for certain sexual offences.]

Brennan J.

... The Court's recent decision in Richmond Newspapers firmly established for the first time that the press and general public have a constitutional right of access to criminal trials. Although there was no opinion of the Court in that case, seven Justices recognized that this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment. ...

Two features of the criminal justice system, emphasized in the various opinions in Richmond Newspapers, together serve to explain why a right of access to criminal trials in particular is properly afforded protection by the First Amendment. First, the criminal trial historically has been open to the press and general public. ... And since that time, the presumption of openness has remained secure. Indeed, at the time of this Court's decision in In re. Oliver, 333 U.S. 257,[](1948), the presumption was solidly grounded that the Court was "unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country."Id.[] at 504. This uniform rule of openness has been viewed as significant in constitutional terms not only "because the constitution carries the gloss of history," but also because "a tradition of accessibility implies the favorable judgement of experience."[]

Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process -- an essential component in our structure of self-government. In sum, the institutional value of the open criminal trial is recognized in both logic and experience.

Although the right of access to criminal trials is of constitutional stature, it is not absolute.[]. But the circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. ... We now consider the state interests advanced to support Massachusetts' mandatory rule barring press and public access to criminal sex-offense trials during the testimony of minor victims.

The state interests ... are reducible to two; the protection of minor victims of sex crimes from further trauma and embarrassment; and the encouragement of such victims to come forward and testify in a truthful and credible manner. We consider these interests in turn.

We agree with appellee that the first interest - safeguarding the physical and psychological well-being of a minor - is a compelling one. But as compelling as that interest is, it does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary.... In the case before us, for example, the names of the minor victims were already in the public record, and the record indicates that the victims may have been willing to testify despite the presence of the press. If the trial court had been permitted to exercise its discretion, closure might well have been deemed unnecessary. In short, [the legislation] cannot be viewed as a narrowly tailored means of accommodating the State's asserted interest: That interest could be served just as well by requiring the trial court to determine on a case-by-case basis whether the State's legitimate concern for the well-being of the minor victim necessitates closure. Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State's interest.

Nor can [the legislation] be justified [to encourage] victims of sex crimes to come forward and provide accurate testimony. The Commonwealth has offered no empirical support for the claim that... automatic closure... will lead to an increase in the number of minor sex victims coming forward and cooperating with state authorities. Not only is the claim speculative in empirical terms, but it is also open to serious question as a matter of logic and common sense. Although [the law] bars the press and general public from the courtroom during the testimony of minor sex victims, the press is not denied access to the transcript, court personnel, or any other possible source that could provide an account of the minor victim's testimony. Thus [the legislation] cannot prevent the press from publicizing the substance of a minor victim's testimony, as well as his or her identity. If the Commonwealth's interest in encouraging minor victims to come forward depends on keeping such matters secret, [the legislation] hardly advances that interest in an effective manner. And even if [the law] effectively advanced the State's interest, it is doubtful that the interest would be sufficient to overcome the constitutional attack, for that same interest could be relied on to support an array of mandatory closure rules designed to encourage victims to come forward: Surely it cannot be suggested that minor victims of sex crimes are the only crime victims who... are reluctant to come forward and testify.

[Chief Justice Burger and Justice Stevens wrote dissenting opinions.]

Notes and questions

1. What standard of justification does Brennan J. apply to determine the constitutionality of this provision? Could legislation mandating closure ever be upheld under this standard? Can mandatory closure be justified without reference to the circumstances of particular cases?

2. Compare the Supreme Court of Canada's decision in Canadian Newspapers, Chapter XIII, upholding a mandatory publication ban in sexual assault proceedings. Should different criteria apply to criminal proceedings involving sexual offences? Why or why not? Is a more deferential version of Oakes appropriate in such cases?