The open court principle has repeatedly been confirmed by the Supreme Court as a “hallmark of a democratic society” (Vancouver Sun,  2 S.C.R. 332, at para. 23), most recently in A.B. v. Bragg Communications Inc., 2012 SCC 46. However, the exclusion of witnesses from a hearing is a routine exception to this principle. In this column I will explore some of the history of the exclusion of witness order, its purpose, the exceptions and consequences of a breach. The larger question that I will address is whether we can sustain an exclusionary rule in an age of instant technology and social media.
A routine request and a routine order in administrative tribunal hearings is the exclusion of witnesses from the hearing room until the witness has given his or her testimony. The order goes beyond the hearing room. Under the exclusion order a witness is not permitted to discuss his or her testimony with anyone who will be testifying or has testified at the hearing.
In He v. Yeung, 2010 BCSC 557, the judge refers to the origins of exclusion orders in the Book of Daniel. Who knows if the line can be drawn between the story and the present-day practice. In any event, the story is a good illustration of the reason for granting such an order:
Two judges have "lustful feelings" toward Susanna (a married woman) and conspire to entrap her. They find her alone in the garden and try to coerce her into sexual relations by saying that unless she does so, they will testify that she sent her maids away in order to be with a young lover (the penalty for adultery was death). She refuses and the lustful judges follow through with their threat. Because of their credibility within the community, Susannah is condemned to death.
She appeals to God, and he in turn inspires Daniel to speak up. Daniel asks to cross-examine the judges. He insists on separating them. The first judge identifies the mastic tree as the site of the illicit "coupling" while the other identifies the evergreen tree. Once their deceit is exposed, the judges are sentenced to death.
The judge in He v. Yeung, articulated the traditional reasons for an exclusion order as including:
(a) if the hearing of opposing witnesses were permitted, the listening witnesses could ascertain the points of difference between their testimonies and could shape their own testimony to better advantage; and
(b) regarding witnesses on the same side of the litigation, it deprives the later witness of the opportunity of shaping his or her testimony to correspond with the testimony of the earlier witness.
This is critical when a dispute involves an assessment of credibility. This is a protection against deliberate falsification but is also a protection against the normal trait of memories changing based on post-event information.
In the courts, the exclusion of witnesses is set out in the Rules of Civil Procedure in some provinces. (As noted in He v. Young, courts have the inherent jurisdiction to exclude witnesses). For example, the Ontario Rules at section 52.06 sets out the following general rule: at the request of either party a judge may order that a witness be excluded until called to give evidence. The Rules also state that a party or witness who is instructing counsel cannot be excluded. However, a judge can require witnesses who are instructing counsel or who are parties to testify before any witnesses called on behalf of that party.
This is the general approach taken by tribunals as well. A quick CanLII search shows that there are few tribunal rules that refer to the exclusion of witnesses. The Military Police Complaints Commission Rules of Procedure sets out the following rule:
36. (1) The Complaints Commission may, at the request of a party or on its own initiative, order that witnesses be excluded from the hearing until they are called to testify.
(2) No person shall communicate to a witness who has been excluded from the hearing any evidence or testimony that is given during the course of a hearing until after the witness has testified.
One of the key differences between the approach of the courts and tribunals, is the express authority of the tribunal to exclude witnesses on its own initiative. If, as the court in He v. Young stated, "the exclusion of witnesses should be essential to the discovery of the truth", it makes sense that an adjudicator should routinely consider whether an exclusion order is necessary.
Parties who intend to testify have an absolute right to attend the whole hearing because of the fundamental right to know the case against you. Advisors to counsel or representatives are also permitted to stay, in the interests of fairness to all parties. A representative cannot speak for a party without being properly advised. A party has a right to choose its advisor and the opposing party cannot suggest an alternate advisor: Vanstone v. Mid-Huron Landfill Site Board, 2012 HRTO 694.
It is common for parties to agree to call their advisor as their first witness. A failure to call the advisor as the first witness may lead to an adjudicator drawing an adverse inference against that witness’ testimony: United Steelworkers of America v. Royalguard Vinyl Co., OLRB Rep. August 1057 at para. 19. The Public Servants Disclosure Protection Tribunal Rules of Procedure contains the following additional power of the tribunal over witnesses who are parties or advisors:
43. (2) … but the Tribunal may require the witness to give evidence before any other witnesses are called to give evidence on behalf of that party.
Even without such an express provision, in the event that a party does not agree to call the advisor as their first witness, it may be appropriate for a tribunal to order it. This may depend on the tribunal’s views on party autonomy – is it the tribunal’s role to ensure the discovery of the truth, or is that the role of the parties?
What happens if the order is breached? Exclusion orders can be breached when a witness attends the hearing or is told about testimony of a witness. When faced with allegations of a breach, a tribunal may be required to hear evidence (in the absence of agreement of the other party that there was a breach). That evidence is sometimes obtained through the cross examination of a witness or it may come to the attention of a party through other sources.
Once established, the tribunal must determine if the breach has had any effect on the testimony provided. In one hearing I conducted, a witness who was unaware of the exclusion of witness order sat in the back of the hearing room just prior to being called as a witness. I determined that the evidence she had heard did not relate to her testimony, so there were no consequences of the breach. However, there may be other cases where it is obvious that discussion of evidence outside of the hearing room makes the evidence of those witnesses suspect. In CAW-Canada v. Volkswagen Canada Inc.,  OLRB Rep. December 1423 the Board concluded that the testimony of four witnesses was “so weakened that its probative value is negligible and that testimony is discounted” (at para. 7).
An order excluding witnesses and the attempt to prevent witnesses from learning about testimony that has already been given may be a futile attempt to insulate proceedings from outside influence. The ease with which people can relay information to their friends or the world through texting, Facebook, Twitter and other social media, makes it much more difficult to prevent information from leaking out. The issue has been noted in high profile criminal cases by defence counsel. Michael Edelson and Vince Clifford represented former Ottawa mayor Larry O’Brien at his influence peddling trial. In an Ottawa Citizen report, Mr. Edelson is quoted as saying:
Traditionally when we do trials we have an order excluding witnesses so the next witness can’t tailor their evidence to the previous witness. We do that so they don’t hear the evidence of the previous witness.
With this new media you have a situation where people could literally follow the trial on Twitter and discover exactly what we are excluding them from the courtroom to prevent them from discovering. And I know for a fact they did.
It was a big issue with O’Brien and it will be a big issue again.
Mr. Edelson issued a challenge to law societies and the judiciary to have a transparent and straightforward dialogue about social media and the appropriate ground rules: “.. it would be a fantastic thing for Canada to discuss it in a serious and comprehensive way.”
A start to the discussion would be for counsel and representatives to have serious conversations with their clients about the importance of respecting exclusion orders and the self-interest inherent in respecting them. Tribunals also need to educate parties and witnesses about the purpose of exclusion orders by including provisions in their Rules and explaining the reason for exclusion orders in guides for participants in hearing processes.