Canada: Open Courts In The Digital Era: Contextualizing The Toronto Star's Legal Challenge To Alleged Tribunal Secrecy

Last Updated: March 16 2017
Article by Devry Smith Frank LLP

In recent weeks, the Toronto Star has embarked on a legal challenge against what it describes as "blanket secrecy" within Ontario's administrative tribunal system.  At the core of their claim is today's topic: the open court principle.  The Star seeks, inter alia, a declaration that this principle applies to quasi-judicial tribunals in the same way as it does to courts, particularly with regard to tribunal records (namely, "pleadings, exhibits, legal briefs and all other documents on which adjudication is based"; see the Statement of Claim).

The case raises interesting questions about the place of open courts in an era where access to information – including the very personal and very private – is more or less instantaneous and all but indifferent to geography.  Open courts have long been held up as a fundamental component of not only our justice system, but of the very rule of law on which our society is built.  Yet when the open court principle of was first articulated, its authors could not have foreseen what "openness" would mean in 2017.  To the principle's great advocates, from Jeremy Bentham to Louis Brandeis, today's world would seem truly alien.

So, do the rationales for open courts still hold up?  Should we rethink the open court principle?  Thinking about these questions requires a closer look at the open court principle, and it's underlying objectives.

The Principle

In simple terms, the open court principle holds that court proceedings, "including the evidence and documents tendered," must be open to the public, and that juries' verdicts and judge's decisions must be publicly delivered or publicly available ( Lukács v. Canada (Canadian Transportation Agency), FCA 2015, at para 27).

The principle enjoys a strong legal foundation in Canada.  The common law has long regarded the principle as integral to the rule of law.  Further, as Michel Bastarache (formerly) of the Supreme Court of Canada wrote, "the open court principle gains importance from its clear association with free expression protected by s. 2(b) of the Charter" ( Named Person v. Vancouver Sun, SCC 2007 at para 33).  In Ontario, the Courts of Justice Act states that "all court hearings shall be open to the public", subject to court rules, and unless "the possibility of serious harm or injustice to any person justifies a departure from [that] general principle".

Open courts also get a good press in philosophy circles.  Jeremy Bentham famously wrote that,

'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' (as quoted by the Supreme Court, here)

Some, like Patricia Kosseim of the Office of the Privacy Commissioner of Canada (OPC), would argue that Bentham's emphasis on disciplining the judiciary serves a yet more fundamental societal value: public confidence in the justice system.  To Chief Justice Beverley McLachlin, in turn, this value is  "a cornerstone ... one of the features of all societies sharing a cultural commitment to the rule of law" (see her Honour's 2012 speech here).  Absent this public confidence, she argues, people will neither settle their disputes in courts nor obey court orders.

"Practical Obscurity" and the Digital Era

This rationale begs the question: what if the openness of a court or tribunal proceeding can, in fact, undermine the public's confidence in the administration of justice?  Especially in the digital era, argues Kosseim, open courts present novel privacy concerns which may discourage the public from asserting their legal rights and remedies in the first place.

Consider this example: An employee is considering bringing a harassment claim before the Ontario Human Rights Tribunal.  She works in a specialized field with very few potential employers.  Some of the details of the incident underlying her claim might prove embarrassing if publicized and easily accessed online, and might even affect her ability to secure future employment.  She reasons that if pursuing the claim might make public that information, it is not worth the risk.

Those advocating a rethinking of the open court principle often raise this type of scenario alongside the concept of "practical obscurity" (see, e.g., here).  This concept refers to the "built-in privacy protection" that exists when trying to access court or tribunal records involves considerable effort, regardless of the fact that the records are technically open to the public.  Under such circumstances, nefarious uses of one's information will be less likely.  Some view this as a practical compromise between openness and respect for privacy.

Today, web-based case law databases have thrown a wrench in the cogs.  While these services serve many laudable aims, "practical obscurity" cannot operate the way it used to.  Notably, both pay-for-use and free databases – e.g. Westlaw and Canlii, respectively – intentionally prevent direct searches through search engines like Google.  But this is a small obstacle, and some less scrupulous entrepreneurs have found ways around.  If practical obscurity ever struck a balance, it's been skewed towards publicity.

From this perspective, the Star's goal of securing easier access to tribunal records might represent a further imbalance.

On the other hand, we should be mindful that open courts are not an absolute demand on the justice system.  There were always exceptions, something that would appear appropriate in the context of both courts and administrative tribunals.  In fact, the legal test applicable to "all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings" expressly requires balancing the harm and benefit of such action (see the "Dagenais/Mentuck" test, here, as affirmed and broadened here).  One might argue, then, that the open court principle should apply presumptively to tribunals as well, but subject to a similar test.

This is essentially the Star's position; that this test should be applied to any restriction on access to tribunal records.  Whether this is the right approach, and how exactly it might be applied, are questions we'll have to leave to the courts.  The status quo, wherein inconsistent, ad hoc rules apply to access these records, certainly leaves room for improvement.  Traditional courts and tribunals are different by design, but they occupy much the same space in Canadians' lives, and much of the same tension, namely between openness and privacy, would appear applicable to both.  How differently should they be treated?

Generally speaking, the Star is on to something: there is nothing trivial about secrecy sewing itself into the fabric of our justice system, or even appearing to.  If the recent jump in sales of George Orwell's 1984 are any indication, the public remains very much alive to matters of transparency and public accountability.  Whether the newspaper's position is validated will be interesting to see.  In any case, with so many basic values at stake – privacy, openness, the rule of law, freedom of expression, and many others – the courts would do well to tread carefully.  An important question has been put to them, and their response will echo into the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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