Jeremy Bentham Open Court Principle

The spirit of Jeremy Bentham's words is embodied today in what we call the open court principle. According to this principle, public trust in the legal system can be established only when there is transparency and court proceedings are open to both the media and members of the public. (https://www.canlii.org/en/ca/scc/doc/2004/2004scc43/2004scc43.html) While few hold the belief that the courts always ought to operate in camera, or behind closed doors out of the public eye. However, there are certain circumstances where the value of open justice appears to conflict with an individual's rights.

On July 23, 2015, the Canadian Victims Bill of Rights was enacted, (http://laws-lois.justice.gc.ca/eng/acts/C-23.7/FullText.html) which has as its primary aim the protection of the dignity and privacy of victims of crime throughout criminal justice proceedings. One component of this bill, that which is most interesting with regards to sexual assault law, is that victims are given the right to request that their identity be concealed from the public via a publication ban. The intention of publication bans, according to the Department of

Justice, (http://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/publication.html) is “to allow victims, witnesses, and others to participate in the justice system without suffering negative consequences.” The department provides a list of reasons why publication bans might be granted:
encourage witnesses who are afraid to testify;
protect vulnerable witnesses, including children and victims of crime;
encourage victims and others to report offences that are usually under-reported, such as sexual offences; and
protect the privacy of justice system participants.

A more thorough list of the factors which determine whether a publication ban will be granted can be found in sections 486.4 and 486.5 of the Criminal Code. (http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html) The Department of Justice's factsheet on publication bans leaves out a number of other important considerations that must be taken, namely “the impact of the proposed order on the freedom of expression of those affected by it” and also the accused's “right to a fair and public hearing.”

It is important to remember that publication bans are not always implemented for the benefit of the complainant. There are cases where protecting the presumption of innocence of the defendant may necessitate a ban. (https://www.attorneygeneral.jus.gov.on.ca/english/pub_ban.php) For instance, a publication ban may be ordered at a bail or preliminary hearing to ensure that the public, media, and/or potential jurors will not be exposed to inadmissible evidence that may cause bias against the accused.

Why should we care about the openness of the courts and whether or not this objective competes with the interests of complainants (and sometimes the accused)? In 2013, York University law professor Jamie Cameron authored a very detailed report for the Department of Justice called “Victim Privacy and the Open Court Principle.” (http://publications.gc.ca/collections/Collection/J2-212-2003E.pdf) While the evolution of victims rights is very interesting, more importantly this publication explains how victims' privacy rights, which is a relatively new concept, came to be.

As Cameron explains, the open court principle strengthens the integrity and fairness of the criminal justice system because “a free flow of information encourages feedback and debate among members of the public, thereby promoting the accountability of institutions which exercise coercive powers against individuals.” (http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr03_vic1/p4.html) This principle is supported by Section 2(b) of the Charter (http://laws-lois.justice.gc.ca/eng/Const/page-15.html), which guarantees the freedom of expression and opinion of the public and the press.

However, this freedom, like all those enshrined in the Charter, is subject to Section 1's qualifier (http://laws-lois.justice.gc.ca/eng/Const/page-15.html) that rights can be limited if such limitations can be “demonstrably justified in a free and democratic

society.”

Clearly some limits placed on the freedom of the press are indeed reasonable, such as when publishing information revealed pre-trial may threaten the presumption of innocence of the accused. It is less obvious that publication bans on the identities of complainants can similarly be justified. The publication of inadmissible evidence heard in a preliminary hearing will always compromise the fairness of a trial, whereas it is questionable whether the publication of the identities of parties involved in the trial will have a similar effect. The identities of the accused and of the accuser will always be relevant facts in the case.

According to Cameron, (http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr03_vic1/p4_1.html) there is no specific section of the Charter which provides the rationale for a complainant's right to privacy. Instead, this right is viewed as the conjunction (http://laws-lois.justice.gc.ca/eng/Const/page-15.html) of Section 7's promise of “the right to life, liberty and security of the person” and Section 15's vow that all are “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”

Following his analysis of the case law which has shaped the rights of victims in sexual assault cases, Cameron comes to the conclusion that complainants “are granted preferential or special treatment by the system” over complainanats of other crimes. (http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr03_vic1/p5_2.html) He poses the question of whether sexual assault is so unique a crime that it warrants “distinctive rules for the benefit of victim privacy.”

Given that the rights of complainants, defendants, and the public and press can all be constrained by “reasonable limits,” another relevant question is how to determine, when these rights conflict, which party's rights can most justifiably be limited.

The openness of the courts and the freedom of the press are undoubtedly fundamental components of a free society. When individuals within institutions are given significant power over others, and such is the case with the criminal justice system, transparency is a necessarily check on judicial activism. The press and the public must have access to proceedings of the court so that what constitutes justice remains a matter of dialogue and public debate rather than arbitrary rulings.

The press's freedom should be limited and the courts allowed to operate privacy if, and only if, to do otherwise would pose an evident threat to the integrity of the criminal justice process. Consider the aforementioned example of a potential juror reading a media piece containing evidence that was deemed inadmissible. Since this very well might hinder their ability to be impartial towards the accused, a publication ban on the hearing where this inadmissible evidence was first heard is justified on the grounds that it protects the fairness of the trial and encourages journalistic responsibility.

Certainly, the right of the accused to a fair trial is of paramount importance because it is their reputation and their freedom that is at stake in the process. The harm against the complainant, whether it was of a perceived or factual criminal nature, has already occurred. No matter how traumatizing the court process is for complainants, throughout the trial it is only the accused who fears for their continued liberty.

On the other hand, the privacy rights of complainants is a more complicated matter. Although a complainant is entitled to the same dignity and respect as the accused, it is not blatantly clear that privacy is a necessary component for preserving the dignity of the former but not the latter party. American lawyer and former Harvard professor Alan Dershowitz articulates this doubt well:
“People who have gone to the police and publicly invoked the criminal process and accused somebody of a serious crime such as rape must be identified ... If your name is in court it is a logical extension that it should be printed in the media. How can you publish the name of the presumptively innocent accused but not the name of the accuser?” (https://www.nytimes.com/1991/04/21/weekinreview/nation-should-media-name-accuser-when-crime-being-charged-rape.html) Because the court process is intended to be in the public eye, to bring a grievance before a court is to bring that grievance into the public eye.