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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions