Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
Closed Mixed Outcome
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The Supreme Court of Canada held that the open court principle – the public and the media’s access to courtroom proceedings – cannot be displaced by in camera proceedings. The decision came after a Vancouver Sun reporter was denied access to an investigative hearing which involved video communications with a witness to a terrorist attack on Air India Flight 182 and a planned attack on Air India Flight 301. The Court reasoned that the open court principle extends to all judicial proceedings including investigative hearings, and stated that the Dagenais/Mentuck test should be used in all cases that limit the press’ freedom of expression.
A reporter from the Vancouver Sun was denied access to an investigative hearing regarding the terrorist attacks surrounding Air India. The criminal proceedings were against two suspected terrorists responsible for the attack on Air India Flight 182, which resulted in the death of over 3oo individuals, and the failed attack on Air India Flight 301. Shortly after the criminal proceedings began, the Crown petitioned the court to grant the witness’s statement through an in camera interview. The court granted the Crown’s petition and the judge enacted s. 83.28 of the Criminal Code under the condition that notice of hearing would not be granted to the defendants, public, or media.
On the day of the interview, a reporter from the Vancouver Sun attempted to follow the defense attorney into the investigative hearing and was denied access. The Vancouver Sun filed a notice of motion to open the court proceedings, in which the judge responded by ordering her decision to be sealed until after the conclusion of the hearings or any contrary order of the court. After the judgement was issued, when the court was open to the public, the judge gave a synopsis of the reasoning behind the ruling. The Vancouver Sun then filed their motion, their motion was dismissed, and then granted leave for the Supreme Court to rule on the dismissal of the claim.
The Court held in favor of Vancouver Sun through their protection of the open court principle. The majority held that s. 83.28 of the Criminal Code can only be enacted in compliance with the Anti-Terrorism Act, which includes the open court principle. The open court principle is directly linked to freedom of expression and thus protected by s. 2(b) of the Canadian Chart of Rights and Freedoms. The open court principle applies to all court proceedings, cannot be displaced by in camera proceedings, and meets the requirements of the Dagenais/Mentuck test. The Dagenais/Mentuck test requires that the open court principle be respected unless a real and substantial risk outweighs the deleterious effects limiting access will have on freedom of expression (and other rights). The proceedings and findings of the court should be as publicly accessible as possible unless the standard of secrecy set out by the Dagenais/Mentuck test is met. Therefore, while s. 83.28 of the Criminal Code is constitutional, the majority held it was applied incorrectly here. Because the proper steps were taken to protect the identity of the witness, the Court held that all the court materials could be released to the public without jeopardizing the identity of the witness, third parties, and without interfering with the investigation.
The dissent argued that investigative hearings fall outside of the open court principle because advanced notice to the media would serve no useful purpose and the protection of the witness’s identification could potentially outweigh the open court principle. The dissent also emphasized that the burden of proof for the standard of secrecy falls on the court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision upheld a law that limits the open court principle. However, the decision highlights what must be proven in order for the court to invoke the level of secrecy. In this case, the burden the court must meet to employ that level of secrecy was not met, further establishing a threshold of when the court system can block public access from court proceedings and information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The case employs the Dagenais/Mentuck test. Please see the explanation provided by the Mcconchie Law Corporation:
The “Dagenais/Mentuck” Test
A person seeking to deny public access to and publicity of court proceedings and court records in Canada must satisfy the so-called “Dagenais/Mentuck” test which is described in the judgment of the Supreme Court of Canada in Toronto Star Newspapers Ltd. v Ontario, 2005 SCC 41:
|The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:
|(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
|(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. [para. 32]
|Iacobucci J., writing for the Court, noted that the “risk” in the first prong of the analysis must be real, substantial, and well grounded in the evidence: “it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained” (para. 34).
The constitutional protection for freedom of expression reflected in s. 2(b) of the Charter requires that the “Dagenais/Mentuck” test be applied to all discretionary Court actions or decisions that may limit the publicity of judicial proceedings in any case and at any stage of those proceedings.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is binding throughout Canada and states when the open court principle can be limited or obscured.
Let us know if you notice errors or if the case analysis needs revision.