Open Courts and Publication Bans

Canada inherited the open court tradition of Great Britain. The open court serves many functions. It ensures that all are treated equally before the law. It acts as an incentive for all involved in the process to do their best. It operates to encourage witnesses to tell the truth for fear that members of the public hearing their testimony will be able to notice and correct any lie. In the end, it satisfies the public need for justice in individual cases, and enhances public confidence in the judicial process itself.

With certain limited exceptions, courts are open to the public. Proceedings such as those involving trade secrets may be closed because it is felt in that in these circumstances, a public hearing is not in the interests of justice.

Role of Media

The media have a special place in court. It is recognized that without the media the public would not be informed about what happens in our courts. As legal philosopher, Jeremy Bentham put it, "Where there is no publicity there is no justice."

The courts have held that public access to the courts is implicit in the guarantee to everyone in s2(b) of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS of "freedom of expression, including freedom of the press and other media of communication."

Canadian courts have held that anyone can have access to search warrant documentation if a search has been made and something has been found. They have also held that public access to court documents is important to public understanding of the court process.

Publication of Court Proceedings

The Canadian legal system has treated public access to the courtroom differently than publication of the proceedings. Both civil and criminal statutes provide that courts can be closed to the public for the maintenance of order or the proper adminstration of justice. The law rarely permits courts to be closed, and even then only permits closure of the court for the necessary portion of the proceeding. Publication of public court proceedings is restricted, however, far more frequently.

In the criminal context, for example, the Criminal Code provides that publication of much of what transpires at pretrial bail hearings and preliminary inquiries can be banned at the instigation of the defence, the prosecutor or the judge. There is an automatic ban on the publication of a report that any confession was admitted in evidence at a preliminary inquiry. Such bans last until the trial is over, or the accused is earlier discharged. There is often a permanent ban on the publication of any information which would serve to identify victims of certain offences, such as sexual assault. During a trial, there is a ban on the publication of information heard in the absence of the jury if the jury is not sequestered during the trial.

There are other statutory publication bans built into other federal and provincial statutes. In young offenders' criminal trials, for example, no information serving to identify a young accused, a young witness or a young victim can be published without the permission of the judge. In child protection legislation there are often limits on the ability to publish such identifying information within report of proceedings involving children in need of protection.

Common-Law Test

Where bans are not provided for by statute, the Supreme Court has articulated a new common-law test to determine if a publication ban should be granted. "A ban should only be ordered when a) such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and b) the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban." The court indicates that publication bans are not available as protection against remote and speculative dangers. The court adds that in light of recent technological advances such as the Internet, courts should consider the efficacy of the bans they might wish to issue. Freedom of expression and fair trial rights are now treated as equal in the analysis.

Despite the openness of our courts generally, and the protection afforded various court participants from identifying publicity, Canadian courts have not permitted the routine use of a camera and microphone to enhance court reporting and improving public access to court.

See CAMERAS IN THE COURT.