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| James McGrath |
Our democracy is founded, among other tenets, on an open court system. This is the only method of ensuring a fair and just court system. The days of the Star Chamber, where the state conducted secret trials based on secret charges were rightly ended and seen as an impediment to a free and democratic society.
The principle of an open court system is well recognized by our government and our courts. For example, the Ministry of the Attorney General’s policy document for the Court Services Division and revised April 2019 makes this point. See the Attorney General’s Court Services Division Policies and Procedures.
Clause 2.4 states:
“2.4.1 Pre-Court Docket and Case Event List
… Pre-enquête, Youth Criminal Justice Act and Prevention of and Remedies for Human Trafficking Act, 2017 restraining order dockets must remain confidential and are not publicly accessible. All other pre-court dockets are publicly available.
Court staff must make pre-court dockets or case event lists available to the public at no charge, by either posting the docket or list in a location convenient to the public or by making it available at the court counter. A copy of the docket can be provided on payment of the prescribed copy fee (see Section 7 for applicable fees).” (emphasis added)
While it is true that the daily court lists are posted online, it is also true that these do not contain the complete information concerning the cases listed. It seems clear from the above statement of policy that upon request, a complete court docket must be provided. It would be a simple matter to simply post the dockets online, which is certainly a “location convenient to the public.” This makes eminent sense in a free, open and democratic society. This principle also clearly applies to the post-court docket. The above referenced policy statement states:
“The post-court docket or case event list is the same as the pre-court docket or list, with notes outlining the judicial decisions for each charge listed.
The post-court docket or list is intended to be publicly accessible, except to the extent that it includes cases that:
- have been sealed;
- are subject to a specific court order restricting access;
- are applications for restraining orders under the Prevention of and Remedies for Human Trafficking Act, 2017;
- pertain to youth matters; or
- are outside legislated disclosure periods (e.g., access to some matters are time limited, including absolute and conditional discharges, as outlined in section 2.2.13).
Court staff must make post-court dockets or lists available to the public for viewing at no charge. If a copy of the docket or list is requested, staff should charge the prescribed copy fee.”
Clearly the Ministry of the Attorney General agrees that knowing what happened in court at any particular time is important to the proper oversight of the court system and ensures it is run in a fair and open manner. There are exceptions and these have been enshrined in legislation, but they are specific and few.
Further, this is not merely Ministry policy but is part of our legal structure as determined by several Canadian courts. Public confidence in the integrity of the court system and understanding of the administration of justice requires openness and public awareness. In my research I discovered the following statement:
“The objectives include: (1) maintaining an effective evidentiary process; (2) ensuring a judiciary and juries that behave fairly and that are sensitive to the values espoused by society; (3) promoting a shared sense that our courts operate with integrity and dispense justice; and (4) providing an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them. Accordingly, personal embarrassment or financial prejudice to an accused or to a witness is generally not a valid basis for publication ban.”
This seems an articulate description of the principles and is better worded than I could have done.
In Toronto Star Newspapers Ltd. v. Ontario 2005 SCC 41 the Supreme Court of Canada set out the “Dagenais/Mentuck” test. That case made it clear that the onus of proving a publication ban is required and proper, is on the party seeking the ban. If the onus is not met, no ban can be imposed. The court stated at paragraph 32: “(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.” This makes it clear that refusing full information has a deleterious effect on the rights and interests of the public and should only be implemented in the most exceptional of cases.
The principle was reaffirmed in Canadian Broadcasting Corp. v. The Queen 2011 SCC 3. At paragraph 13 the court endorsed an earlier decision and quoted with approval the following:
“While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuck, supra); is authorized by statute, for example under s. 486(1)of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41(CanLII), [2002] 2 S.C.R. 522, 2002 SCC 41). The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), at para. 71. [para. 31]”
I have added the emphasis.
The Ontario Court of Appeal made it clear that these principles apply even after the court proceeding and therefore must apply to the post-court docket showing the results of the day’s decisions. R v. Canadian Broadcasting Corporation 2010 ONCA 726. Is on point. The headnote of that case states:
“The application judge erred by limiting the CBC’s right of access to only those portions of the exhibits that were played in open court. The application judge also erred by refusing to permit the CBC to copy the portion of the exhibit showing the actual circumstances of S’s death. The application judge’s perception that “[t]he gruesome image of a person dying is not something that I feel needs to be broadcast to the general public” was not based upon a finding of potential harm or injury to a recognized legal interest. Absent such a finding, there is nothing in the law that permits a judge to impose his or her opinion about what does not need to be broadcast to the general public.”
That case involved the circumstance where the Crown had withdrawn the charges, and still the public right to view and copy evidence, even evidence that was not displayed in open court, was acknowledged. For fear of making this article unmanageably long I will not quote from the case, but recommend its reading to you. It may be found at R. v. Canadian Broadcasting Corporation. It is not a long case.
The principle of open courts has also been reaffirmed in the Supreme Court case Sherman Estate v. Donovan 2021 SCC 25. This was a civil case concerning publication of an estate file, but stands for all the same principles. At paragraph 30 Justice Nicholas Kasirer states, “Limits on openness in service of other public interests have been recognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed in public view.”
With COVID-19 restrictions this access becomes even more important and fundamental as the public’s ability to attend court in person is highly restricted. In view of the well-established right to the information and the recognition of this principle by the Ministry of the Attorney General, I now suggest that the full court docket, especially the post-court docket, be posted. As these items are all digital in any event, they could be easily posted online where the public could view them.
I note, that at no point in any of the legislation, cases or Ministry policy is it required that an individual enunciate a reason entitling them to this information. It should already be public.
James McGrath has been a lawyer for over 30 years and is currently practising in Cobourg, Ont. He can be reached at 905-373-1999 or by e-mail: info@jmcgrathlaw.ca.
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