Open court principle

The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.[1]

In contrast, in camera describes court proceedings where the public and press are not allowed to observe the procedure or process.

Purpose

The virtues of openness were discussed by the Supreme Court of Canada in A.G. Nova Scotia v. MacIntyre which quoted eighteenth-century philosopher Jeremy Bentham:

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. [emphasis added] [2]

As noted by the Supreme Court of Canada in Vancouver Sun (Re), the open court principle enhances the public's confidence in the justice system:

Public access to the courts guarantees the integrity of judicial processes by demonstrating "that justice is administered in a non-arbitrary manner, according to the rule of law". Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public's understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.[3]

The open court principle is linked to the freedom of expression and freedom of the press which include the right of the public to receive information. The press plays a vital role as the conduit through which the public receives information regarding the operation of public institutions.[4][5]

Canadian legislation

Section 135(1) of the Courts of Justice Act (Ontario) states the general principle that "all court hearings shall be open to the public".

Canadian jurisprudence

Vancouver Sun (Re)

In 2004, the Vancouver Sun newspaper successfully argued that certain court proceedings in relation to the Air India terrorist attack should be open to the public. Section 83.28 of the Criminal Code allows the exclusion of the public and media from certain court proceedings in relation to terrorism offences.[6]

United States

In the United States, the term "in open court" means the appearance by a party or their attorney in a public court session such as during a trial.

United Kingdom

The open court principle has long been recognized as a cornerstone of the common law. As noted in its 1913 decision in Scott v. Scott, the House of Lords noted the right of public access to the courts is “one of principle ... turning, not on convenience, but on necessity". Viscount Haldane L.C., noted that “Justice is not a cloistered virtue”. [7]

In the 1936 decision of Ambard v. Attorney-General for Trinidad and Tobago, Lord Atkin noted “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity.”[8]

See also

References

  1. ↑ "A.B. v. Bragg Communications Inc., [2012] 2 SCR 567, 2012 SCC 46". Paragraph 11: Supreme Court of Canada. September 27, 2012. Retrieved 19 November 2016.
  2. ↑ "R. v. C.B.C. et al., 2013 ONCJ 164 (CanLII)". CanLii.org. Para. 13. Retrieved 27 December 2017.
  3. ↑ "Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43". www.canlii.org. Paragraph 24: Supreme Court of Canada. Retrieved 19 November 2016.
  4. ↑ "Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43". www.canlii.org. Paragraph 26: Supreme Court of Canada. Missing or empty |url= (help); |access-date= requires |url= (help)
  5. ↑ "R. v. Canadian Broadcasting Corporation, 2010 ONCA 726". Paragraph 24: Ontario Court of Appeal. Retrieved 19 November 2016.
  6. ↑ "Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43". Paragraph 16: Supreme Court of Canada. Retrieved 19 November 2016.
  7. ↑ "Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43". www.canlii.org. Paragraph 24: Supreme Court of Canada. Retrieved 19 November 2016.
  8. ↑ "Vancouver Sun (Re), [2004] 2 SCR 332, 2004 SCC 43". www.canlii.org. Paragraph 24: Supreme Court of Canada. Retrieved 19 November 2016.
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