Court Records Access in Canada

1. Court Records Access in Canada Prepared for the 6th Conference on Privacy and Public Access to Court Records Williamsburg, Virginia November 6-7, 2008 Kate Welsh Alberta Courts Courts Advisory Counsel

2. Historical Context • Canada’s legal system is based largely on English and French law • Quebec’s Civil Code is based on the French Code Napoléon • British North America Act, 1867 • Enacted by British Parliament at request of founders • Created the Dominion of Canada • United the British colonies of Upper Canada (Ontario), Lower Canada (Quebec), Nova Scotia and New Brunswick • Other colonies joined later; last one in 1949 (Newfoundland)

3. The Constitution • The supreme law of Canada; laws that are inconsistent are, to the extent of the inconsistency, of no force and effect: s. 52 • Division of powers • Federal government has a general power to make laws for the peace, order and good government of Canada (the “POGG power”) • Except for subjects assigned exclusively to the provinces • As amended and consolidated: Constitution Act, 1867 (formerly the British North America Act)

4. Federal powers • Criminal law, including procedure • Marriage and divorce • (and 27 other classes of subjects) • Section 91 • Appointment of judges • The superior courts of the provinces and territories (trial courts of plenary jurisdiction) • Federal Courts • Supreme Court of Canada, Federal Court Trial Division, Tax Court of Canada, Courts Martial • Appellate Courts • Section 96

5. Provincial powers • Property and civil rights • Imposition of punishment to enforce provincial laws • Administration of justice in the province, including • Civil and criminal courts • Civil procedure • Appoint judges of provincial and territorial courts (statutory jurisdiction) • Section 92 • (and other powers)

6. The Charter • Canadian Charter of Rights and Freedoms • Incorporates both common law and principles developed in earlier statutes including the Canadian Bill of Rights (1960) and the Canadian Human Rights Act (1977) • Entrenched in the constitution • Privacy and access rights are recognized in the Charter • The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

7. Fundamental freedoms, including • Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication – 2(b) • “The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.” – Canadian Broadcasting Corp. v. New Brunswick (A.G.), [1996] 3 S.C.R. 480

8. Legal rights, including • The right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice – s. 7 • The liberty interest: “respect for individual privacy is an essential component of what it means to be free” – R. v. O'Connor, 1995 SCC

9. Legal rights, including • The right to be secure against unreasonable search or seizure – 8 • Protects a reasonable expectation of privacy – Hunter v. Southam Inc., 1984 SCC • The right of individuals to determine when, how, and to what extent they will release personal information about themselves – R. v. Dyment, 1988 SCC

10. Legal rights, including • If charged with an offence, the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal – s. 11(d) • Balance with other rights and freedoms - Dagenais v. Canadian Broadcasting Corp., 1994 SCC • Reasonable limitation, order to close courtroom when necessary for proper administration of justice (Criminal Code s. 486.1) – Canadian Broadcasting Corp. v. New Brunswick (A.G.), 1996 SCC

11. Charter challenge • Attacker proves facts showing a prima facie violation • Onus shifts to government to show the limitation of the right is • reasonable • prescribed by law (statute, common law, judge’s order) • demonstrably justified in a free and democratic society. • Guarantee of Rights and Freedoms (s. 1)

12. The Oakes text • There is a strong evidentiary burden; government must show • A sufficiently important objective • The means are rationally connected to the objective • Proportionality between the objective and the means taken to achieve it. • Minimal impairment of the right or freedom • R. v. Oakes, 1996 SCC • Modification and adaptation of the test over time

13. Starting point is full access • Public accessibility and judicial accountability • Curtailed only when necessary to protect ‘social values of superordinate importance’, such as protection of the innocent • Privacy interests of litigants are normally insufficient to overcome the rule • Nova Scotia (A.G.) v. MacIntyre, 1982 SCC(pre-Charter)

14. Privacy legislation: N/A • Freedom of Information and Protection of Privacy Act [FOIP] (Alberta, 1984) • Court records and judges’ records are excluded • Similar legislation in other provinces • Privacy Act and Information Act (Canada) • Personal Information and Electronic Documents Act [PIPEDA] (Canada, 2001) • Public records regulation under the Act • Consent not required when collection, use and disclosure are consistent with the purpose for which the record was created. (?) • But many provincial and federal provisions do affect court records access

15. The court controls its records and process • Every court has a supervisory and protecting power over its own records • Nova Scotia (A.G.) v. MacIntyre, 1982 SCC • The clerk or any person wishing to deny public access to court files must first obtain leave of the court • Solomon v. McLaughlin, 1982 ABQB

16. Current state of access • Closed courtrooms are rare. • Supreme Court provides live video feed; CPAC broadcasts later. Other courts not televised. • In Alberta, accredited media may record for accuracy, but not for broadcast (Audio Recording Policy, Queen’s Bench) • File search by file number or party’s name; fees apply • Documents in the file; transcripts • Exhibits are a special case; court will enquire into purpose and may require an application on notice • Free judgments databases on court websites, CanLII • Docket information online in British Columbia, Manitoba, Federal Court, Supreme Court • Supreme Court documents online soon.

17. Full access may be limited • Protection of the innocent • Search warrants where nothing found (MacIntyre, 1982 SCC) • Inadmissible exhibits (Vickery, 1991 SCC) • Interim publication bans (bail, preliminary hearing, etc.) • Persons under a disability • Administration of justice • Complainants and witnesses (often in sexual assault matters) –Criminal Code, s. 486.4 • Young accused, offenders and witnesses – Youth Criminal Justice Act • Confidential commercial information (Sierra Club,2002 SCC) • And so on…

18. Forms of restrictions on access • Closed hearings and exclusion orders • Sealing all or part of court file • Confidentiality • Permanent or interim ban on publication • Use of pseudonym, screens, etc. • Ban on identification • Source of authority • Statutory, either discretionary or mandatory • Common law – exercise of discretion

19. Common statutory protections • Records closed, identity not to be published • Youth criminal justice • Child protection • Adoption • Publication bans • Identity of sexual assault complainants • Pre-trial criminal proceedings (bail, preliminary inquiry)

20. Discretionary restriction on access • A court order made at common law or when a statute allows for exercise of discretion (“may”) • Evidentiary burden on applicant • Charter analysis • The order is necessary to prevent risk to a recognized value, and no reasonable alternative measure will prevent the risk • Beneficial effects outweigh harmful effects on the right or freedom • Notice is normally required – to other parties, to media • Dagenais v. Canadian Broadcasting Corp., 1994 SCC; many subsequent Supreme Court decisions

21. Canadian Judicial Council • The Chief Justice of Canada is chair; members are chief and associate chief justices of federally-appointed courts. • Objectives are to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in all superior courts of Canada. • Has developed a number of technology-related model policies, including the Model Policy for Access to Court Records (2005).

22. Model Policy for Access to Court Records • Personal data identifiers and personal information should be included in the record only when required for the disposition of the case. • Parties are responsible for documents in the file; judges are responsible for judgments. • Systems should allow PDI to be excluded from public access. • Public may have remote access to judgments and docket information. • Parties and registered users may have remote access to documents. • CJC, 2005

23. Use of Personal Information in Judgments and Recommended Protocol • Authoring judge, not publisher, is responsible for contents of judgment. • Courts should post judgments on court websites or provide them to other freely accessible sites. • Personal data identifiers should be excluded from judgments. • Judgments should comply with bans on publication or identification required by law or a court order. • In exceptional cases, identification may be omitted where its inclusion would harm minor children or innocent non-parties, or where the ends of justice might be subverted. • CJC, 2005

24. Court Records Accessin Canada Kate Welsh Courts Advisory Counsel Alberta Courts