How Open Is an Open Court Online?

In 2015, Shauna Hall-Coates wrote in the Dalhousie Journal of Legal Studies,

Walk into any courtroom today, critics venture, and it will look stunningly similar to those of the past; the judge will be sitting behind the bench, the jury in its box, and the witness on the stand.1 As everyone settles into his or her place selected by centuries of ritual and status quo, the courtroom may even appear as a sanctuary from the trappings of digital technology, so doggedly pursued outside its walls.

This segregation between the courtroom and digital technology is nonetheless collapsing, as trial spectators increasingly arrive to court expecting that they will be able to use their digital devices inside to publish information about the trial in real-time through social media such as Twitter and other liveblogging platforms. Moreover, despite the judicial system’s wariness of digital media technologies, their integration into the courtroom is strongly supported on the basis of the “open court” principle—that venerated ideal within the English justice system that holds court proceedings must be open to the public and that publicity as to those proceedings must be unconstrained. As a result, courts across
Canada have been forced to grapple with what role, if any, digital media technology is to play within the modern casting of the open court principle, and who, if anyone, is given recourse to its use in the courtroom.

Nobody at that time could have envisioned how every hearing and trial during the pandemic his conducted through digital devices, or the challenges this poses to established concepts like the open court principle.

Hall-Coates provides an overview of the principles behind the open court system, including Jeremy Bentham’s insistence that public scrutiny was essential to keep the unelected court system accountable, checking what would otherwise “be the untrammeled and unaccountable exercise of power by unelected judges.”

She also describes how the open court principle has a broader collective social function in the democratic order. She cites Jeremy Waldron to explain how public scrutiny fosters civil engagement in a manner that ensures the justice system is a matter of constant interpretation and debate, thereby imbuing upon it greater credibility,

…people who live under [law] as bearers of reason and intelligence. They are thinkers who can grasp and grapple with the rationale of the way they are governed and relate it in complex but intelligible ways to their own view of the relation between their actions and purposes and the actions and purposes of the state.
[emphasis in original]

The inaccessibility of the law, or at least a proper comprehension or full acceptance of the public policy rationales behind it, frequently fuels civil discontent and even protest. Contemporary examples of this may include protests of public health measures such as masks or vaccines during the pandemic.

Facilitating an open court therefore centers the great social issues of a democratic society around the judicial proceedings, rather than encouraging these grievances to be expressed elsewhere, and often in venues with no possibility of a receptive audience or ability to enact change. It is for these reasons that the judiciary, and its accessibility to the public, remains one of the core and critical institutions of a democracy.

Although the courts have some success in achieving this during the pandemic, they still face numerous and significant challenges, which include privacy concerns that precede the pandemic.

The Supreme Court of Canada’s most recent pronouncement on the open court principle in MediaQMI inc. v. Kamel doesn’t emerge in the context of the unique online trials or hearings we are undergoing, but may assist in understanding this concept better.

The case involves a media company seeking access under the 2016 Quebec Code of Civil Procedure to court records in a civil action where the entire record had been sealed by the court. This request was initially granted under the Dagenais/Mentuck test, but did not extend to specific affidavits, which were not provided under the following provision,

108. The parties and the lawyers, or in non-contentious proceedings, the notaries representing the parties, must see to it that exhibits and other documents that contain identifying particulars generally held to be confidential are filed in a form that protects the confidentiality of the information.
Any document or real evidence that is filed in the record as an exhibit must remain in the record until the end of the proceeding, unless all the parties consent to its being removed. Once the proceeding has ended, the parties must retrieve the exhibits they have filed; otherwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading terminating the proceeding. In either case, the chief justice or chief judge, if of the opinion that the exhibits can still be useful, may stay their destruction.
However, in reviewable or reassessable matters and, in non-contentious cases, notices, certificates, minutes, inventories, medical and psychosocial evidence, affidavits, statements, declarations and documents made enforceable by a judgment, including any child support determination form attached to a judgment, cannot be removed from the record or destroyed.
[emphasis added]

The Quebec Code of Civil Procedure has its own statutory reference to the open court principle, which is included in art. 11 in the 2016 amendment. However, this concept goes back to all of the previous codes of civil procedure, in 1965 and 1897, primarily on the basis of oral submissions within the civil law system. On this basis, the Quebec Court of Appeal dismissed the media company’s appeal, indicating that Quebec courts cannot make their own rules of civil procedure, especially where it would conflict with the Code.

The majority at the Court continued this theme, led by Justice Côté, emphasized the primacy of the civil law in handling this dispute, stating,

[20] In the context of Quebec civil procedure, it is therefore impossible, in my view, to give the principle of open proceedings the interpretative scope given to it by MediaQMI and my colleagues without also rewriting several rules expressly set out in the Code of Civil Procedure. But as former Chief Justice Fauteux wrote, [translation] “[t]he Constitution contemplates only one system for making laws, not two systems that can function simultaneously, in a diverging manner”: Le livre du magistrat (1980), at p. 125. Whatever protection the principle of open proceedings may have under the charters, the legislature remains free to fix the scope of that principle in the rules it enacts. It is not the role of the courts to conduct that exercise in its place. Accordingly, in the absence of a constitutional challenge, the rules clearly stated in the Code of Civil Procedure are what apply.

[21] In Lac d’Amiante, the Court noted that in Quebec, “[t]he fundamental law concerning civil procedure is the law enacted by the National Assembly . . . in a code that is expressed in general terms”: para. 35. In the civil law context, creating the law remains the legislature’s prerogative: ibid. The courts perform “only . . . a secondary or interstitial function” in this regard by making rules of practice or exercising the inherent or ancillary powers provided for in arts. 25 and 49 C.C.P.: paras. 36‑38.

[57] Articles 11 and 108 C.C.P. do not give rise to any judicial discretion. This is why the Dagenais/Mentuck test should not be used to decide an application under art. 11 C.C.P. That test was developed in a very different context from the one in question here, a context in which a comprehensive scheme enacted by Parliament served as a framework for the principle of openness.
[emphasis added]

To assist its interpretation, Justice Côté referred to the Court’s decision in

62 Statutory enactments embody legislative will. They supplement, modify or supersede the common law. More pointedly, when a statute comes into play during judicial proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator. In this regard, although it is sometimes suggested that “it is appropriate for courts to prefer interpretations that tend to promote those [Charter] principles and values over interpretations that do not” (Sullivan, supra, at p. 325), it must be stressed that, to the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.

63 This Court has striven to make this point clear on many occasions: see, e.g., Hills v. Canada (Attorney General)1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513, at p. 558, per L’Heureux-Dubé J.; Slaight Communications Inc. v. Davidson1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078, per Lamer J. (as he then was); R. v. Zundel1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731, at p. 771, per McLachlin J. (as she then was); R. v. Nova Scotia Pharmaceutical Society1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at p. 660; Mossopsupra, at pp. 581-82, per Lamer C.J.; R. v. Lucas1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, at para. 66per Cory J.; Millssupra, at paras. 22 and 56; Sharpesupra, at para. 33.

64 These cases recognize that a blanket presumption of Charter consistency could sometimes frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction. Moreover, another rationale for restricting the “Charter values” rule was expressed in Symes v. Canada1993 CanLII 55 (SCC), [1993] 4 S.C.R. 695, at p. 752:

[T]o consult the Charter in the absence of such ambiguity is to deprive the Charter of a more powerful purpose, namely, the determination of a statute’s constitutional validity. If statutory meanings must be made congruent with the Charter even in the absence of ambiguity, then it would never be possible to apply, rather than simply consult, the values of the Charter. Furthermore, it would never be possible for the government to justify infringements as reasonable limits under s. 1 of the Charter, since the interpretive process would preclude one from finding infringements in the first place. [Emphasis in original.]

(See also Willick v. Willick1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at pp. 679-80, per Sopinka J.)

These weighty issues not only speak to the core of federalism, especially in a country that utilizes both common law and civil law on a provincial basis, but also the proper function of the courts in promoting democratic values. The Court in Vriend v. Alberta stated,

138 As I view the matter, the Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a “dialogue” by some (see e.g. Hogg and Bushell, supra). In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches. As has been pointed out, most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives (see Hogg and Bushell, supra, at p. 82). By doing this, the legislature responds to the courts; hence the dialogue among the branches.

139 To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.

Where the Quebec legislature had carefully crafted a procedure for court documents and open access, as they have under the 2016 Code, the courts readily departing from these principles would appear to be out of step from this dynamic.

In contrast, the dissent in MediaQMI inc., written jointly by the Chief Justice and Justice Kasirer, insisted that the cases shoudl be remanded back to the trial level court to apply the Dagenais/Mentuck test, thereby affirming the primacy of the courts in reviewing this issue. However, they rely heavily on the structure of the Quebec Code itself in doing so,

[104] It is important to emphasize that the fundamental principle of open proceedings is not concerned solely with scrutiny of judicial action, as the respondents argue, but also extends to the subject matter of disputes. Article 11 C.C.P. expressly provides that “[a]nyone may . . . have access to court records and entries in the registers of the courts”. In Canadian Broadcasting Corp. v. The Queen2011 SCC 3, [2011] 1 S.C.R. 65, this Court in fact explained that “[a]ccess to exhibits is a corollary to the open court principle” (para. 12). The media and members of the public do not have to justify their presence at court hearings or their desire to consult a court record. The burden of satisfying the criteria set out in DagenaisMentuck and Sierra Club lies on the party applying for an order to limit the principle of open proceedings (Canadian Broadcasting Corp. v. New Brunswick (Attorney General)1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at para. 71).

[141] In short, the CIUSSS and Mr. Kamel cannot, even by mutual consent, prevent MediaQMI from having its application for access to exhibits decided, circumvent the principle of open proceedings and extinguish a right not held by them. With respect for those who hold the contrary view, we believe that to conclude otherwise would allow parties to remove their exhibits, even in the course of a proceeding, despite the fact that a prior application has been made. This could undermine the fundamental principle of public access to court records affirmed by the legislature in art. 11 C.C.P. In the circumstances of this case, art. 108 C.C.P. cannot have this effect.

The right to access the affidavit records were not found in the Quebec Code itself, and the control of the parties over their case and the documents involved must still comply with established rules and principles of the judicial process, including judicial discretion to ensure the principle of open proceedings found within the Code itself,

[102] The public, and in particular the news media, have the interest required to seek the application of the principle of open proceedings set out in art. 11 C.C.P., and thereby put the rights guaranteed by the Quebec and Canadian charters into play. As Cory J. noted in Edmonton Journal v. Alberta (Attorney General)1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, “members of the public have a right to information pertaining to public institutions and particularly the courts” (p. 1339). As “surrogates for the public”, the media therefore play a vital role in the exercise of this right (p. 1360, per Wilson J., citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), at p. 573). For example, in 3834310 Canada Inc. v. R.C.2004 CanLII 4122 (Que. C.A.), the Court of Appeal recognized that the interests of the press are affected by a judgment authorizing a party to institute a proceeding anonymously. The appellant, a daily newspaper publisher, could avail itself of the rules on revocation of a judgment on application by a third person (art. 349 C.C.P.), because the impugned judgment affected its interests with respect to the openness of proceedings and the public’s right to be informed (paras. 13, 18 and 33).

Both the majority and the dissent referred to the Quebec Charter to support their interpretation. The dissent also relied on the Court in Sierra Club of Canada v. Canada (Minister of Finance) which confirmed at para 51 that the DagenaisMentuck was applicable to civil proceedings. This is especially true where the public and judicial interests in seeking the truth and achieving a just result in civil proceedings are engaged, and is appropriate to ensure that any judicial discretion to deny public access to courts still exercises Charter of Rights principles.

However, the dissent effectively imports the common law into the interpretation of the Quebec Code, which civil law purists would understandably resist. Conversely, the ability of a legislature to codify the law without incorporation of the common law under Charter would create its own challenges. It is a challenge that reflects the unique tensions of Canadian bijural system, described in 2018 by Marie-Claude Gervais,
Legal Counsel of the Department of Justice, as follows,

Bijuralism is defined as the coexistence of two legal traditions within a single state. Since the common law and civil law coexist in Canada in both official languages, Canada is said to be a bijural country.

Although many countries are also governed by a combination of two or more systems of law, the combination of civil and common law is much rarer. It is found in scarcely fifteen states and the face of bijuralism differs in each of those countries.

What makes Canada unique even among those 15 states is a significant constitutional amendment in 1982, intended to reflect modern realities, and experienced in very different ways between those two legal traditions.

In Ontario, the open court principle is also enshrined in statute, found in the Courts of Justice Act,

Public Access

Public hearings

135 (1) Subject to subsection (2) and rules of court, all court hearings shall be open to the public.

Exception

(2) The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

This principle is constrained though under s. 136, which prohibits photographs, videos, and audio recordings, which has been necessary to ensure decorum and control of the courts. In recent years there have been litigants who have violated this principle deliberately, and posted excerpts of proceedings online, without the full context of of the proceedings. Contraventions of this section are therefore liable for fines of $25,000 or imprisonment for up to 6 months, or both.

The greatest concern with virtual hearings is the compete inability of courts to ensure that members of the public refrain from taking screenshots or video captures of legal proceedings. While YouTube videos of counsel appearing as cats in American proceedings have kept us all amused, this is not the approach that Canadian courts have chosen. These concerns should not prevent court staff from preventing the public from attending, and there are many members of the public who express frustration about their ability to attend virtual hearings during the pandemic.

The complete inability of the public to scrutinize proceedings, and to capture evidence of procedural unfairness, irregularities in proceedings, or alleged miscarriages of justice, creates its own problems. This might be most evident in administrative tribunals, who are dealing with a high volume of cases, almost all held online, and with a high number of self-represented parties.

Because of some of the advocacy of members of the public in this regard, the government of Ontario has introduced Schedule 27 to Bill 276, Supporting Recovery and Competitiveness Act, 2021, which adds a new section 29 to the Statutory Powers Procedure Act,

Prohibition on photographs, recordings, dissemination

29 (1) No person shall,

(a) take or attempt to take a photograph, audio or video recording or other record capable of producing or transmitting visual or aural representations by electronic means or otherwise,

(i) at a hearing,

(ii) of any person entering or leaving the room in which a hearing is to be or has been convened, or

(iii) of any person in the building in which a hearing is to be or has been convened if there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing, other than in an area of the building designated by the tribunal for the purpose and with the person’s consent;

(b) publish, broadcast, reproduce or otherwise disseminate a photograph, recording or record taken in contravention of clause (a); or

(c) broadcast, reproduce or otherwise disseminate an audio recording described in clause (2) (b).

Offence and penalty

(3) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $25,000.

The general consensus seems to be that this was introduced due to issues around the Landlord Tenant Board during the pandemic, with a high number of tenants being evicted, often without even knowing that they had a hearing. In our submissions to the Standing Committee on Justice Policy on Bill 276 we stated,

11. The transition to virtual hearings during the pandemic, in combination with a five-month shutdown, has caused the LTB to fall behind, with thousands of cases resulting in a fast-tracked catch-up attempt.16 The efforts to address this backlog has resulted in questionable tactics by adjudicators. Tenants with language barriers or disabilities are not being provided with proper support, the LTB often prevents tenants from obtaining adequate legal advice from Tenant Duty Counsel, and adjudicators are failing to fully consider the impact of COVID-19 on tenants.17

12. In response to many of these challenges, community members, supporters and attendees started releasing video footage of the hearings, to expose the injustice they believe are experienced by tenants. These videos show adjudicators evicting tenants within 60 seconds, refusing to hear cases that may take more than an hour, and kicking out observers from virtual hearing rooms.18 Schedule 27 was purportedly introduced specifically in response to these videos, disseminated on social media. In some circumstances, these videos of LTB proceedings are the only evidence of the incidents that have occurred, and are a response of desperation from the most vulnerable members of our community. The appropriate response to these reactions is to strengthen the LTB and its processes, including ensuring adequate in-person hearings, and not through a punitive reaction.

Whether such a fine would uphold judicial scrutiny, especially where it could be demonstrated that an administrative tribunal was violating its own processes or a fundamental principle of procedural fairness, would indeed engage the ideals behind the open court principle in a way we have never seen before. While the common law in Ontario would not necessarily have the same challenges with importing the Charter common law in the interpretation of this Act, it would also be novel review of legislative power by the judiciary.

During the pandemic, the segregation between the courtroom and digital technology has vanished completely. The justice system has continued to move forward, but in order for it to continue to have legitimacy it will have to find a way to ensure that expediency does not give way to accountability.

Comments

  1. I’m not going to comment on the issues arising from the justice system’s attempts to compensate for the impact of the pandemic. My experiences with courtroom proceedings were in-person, in a courtroom, and I have no experience at all with Zoom or any remote meeting technology. That is, unless one includes telephone conference calls. I was forced by a tribunal to participate on two occasions in telephone conference calls, the other participants being two lawyers I had already faced in court. I don’t know what the law said then or says now about recording such conference calls. I should have made recordings on those two occasions.

    I am however very interested in the open court principle, and one failure in particular to deliver on its promise.

    In April of this year I discovered an open court issue that needs to be dealt with in court. In concluding an appeal court decision issued in August 2015 – 2015 BCCA 354 – the judgment says, at paragraph 88, “The arbitrator found that the open court principle applies to labour arbitrations. I find it unnecessary to decide this issue, as I have concluded that PIPA has no application based on statutory interpretation. I would leave this interesting issue for another day.”

    The full record of litigation of this case is very interesting. There are five decisions, only that one by a court. Two were issued by the BC Labour Relations Board and the other three by the arbitrator, a former chair of the labour board. To review all six go to the B.C. domain on CanLII and search on the party name “Sunrise Poultry Processors” with “open court” in the Document text field.

    It is nearly six years since the BCCA said that deciding whether labour arbitrations are subject to the open court principle could be left for another day. Perhaps it’s time for a court to make that determination.

Leave a Reply

(Your email address will not be published or distributed)