Principe de la publicité des débats judiciaires

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Principes généraux

At common law, court proceedings must be open and public.

The "open court principle" provides the public the right to observe the court process and access court records, including filings and exhibits.

Purpose and Importance of Principle

The openness of the court process is necessary to achieve justice. It is "one of the hallmarks of a democratic society."

The open courts principle intends "to illuminate the avenue of accountability for the judicial system." Every stage of a proceeding should have "public accessibility and concomitant judicial accountability." Reduction of "public accessibility can only be justified where there is present the need to protect social values of superordinate importance.”

The right to a open court includes access "to the court’s proceedings, records and exhibits" as well as the right to copy and distribute the information.

All examinations of witnesses must be done in open court.

Burden and Presumptions

The burden will be upon the person who attempts to deny access to court information.

The open court principle imposes a presumption against all discretionary judicial decisions that limit access to the court.

The burden requires Crown to provide "sufficient evidentiary basis in favour of granting the ban."

There is a presumption that Courts are open including their exhibits and records.

The evidence must be "convincing" and "subject to close scrutiny and meet rigorous standards."

Standard

At common law, a publication ban should only be ordered where the Dagenais-Mentuck test is satisfied which requires:

1. 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
2. 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.

Restrictions will be in the public interest where it is necessary to:

• protect the innocent from unnecessary harm
• prevent significant harm to the victim or to witnesses
• "safeguarding privacy interests" of victims to encourage reporting of sexual offences

"Purely personal interests" cannot justify non-publication or sealing orders. Emotional distress or embarrassment of a litigant will not suffice.

Variable Standard

The Dagenais/Mentuck test is to be applied in a "flexible and contextual manner."

There is more likely to be a serious risk to the administration of justice at the investigative stage that would warrant less openness. However, the interest may swing the other way to openness by the time of trial.

Search Warrants

After a search warrant is executed openness is "presumptively favoured."

UK Experience

The United Kingdom also has an "open court principle" that it describes as "an essential requisite of the criminal justice system" and the "embodiment of the principle of open justice in a free country."

The need for open court includes the need to know the identity of the accused.

Sub Judice

The common law principle of contempt sub judice prevents parties from making statements to the public that are calculated to interfere with the court proceedings.

Voir également

• [[Interdiction légale de publication d'informations sur l'identité

]]

• Statutory Publication Ban on Evidence
• Excluding People From Court