Freedom of expression v. right to privacy: striking the right balance in Canada's court system

Farris' Erica Miller on the open courts principle of Canadian law and its future in the digital age

The open nature of court proceedings, the accessibility of court filings, and the right to comment on the operation of the judiciary are the triad upon which Canada’s freedom of expression is realized in its judicial system. This right – though occasionally curtailed in certain cases such as in sexual assault cases or when there are youth offenders – has been a hallmark of the Canadian court system for generations. However, recent years have seen a backlash against this accessibility, with privacy the main concern. In an era where social media is more ubiquitous and potent than traditional news sources, where information can “live” on the internet, potentially forever, and where hacking and cybercrime is increasing yearly, the open courts principle is under greater pressure than at any time before. Erica Miller of Farris explains the reasons behind the challenge to this long-cherished pillar of the courts and the debate between freedom of expression and privacy rights that is building to a crescendo.

What is the open courts principle in Canadian law, and what function does it serve? Does it operate differently depending on the type of court action or the specifics of the case, or is it a blanket principle that can only be curtailed in limited circumstances?

The open court principle is the principle that court proceedings are presumptively open and accessible to the public. It guards the public’s right to attend court hearings and access court filings, and the press’ right to comment on the inner workings of the courts. The principle stems from the Constitutionally-protected right of freedom of expression, and operates to keep the Canadian justice system transparent, fair and accountable.

The open court principle is a blanket principle: it is “engaged by all judicial proceedings, whatever their nature”.[1] However, the open court principle provides only that courts are presumptively open and, in exceptional circumstances, the courts have discretion to curtail it. The test for exercising this discretion, discussed in more detail below, considers whether there is an important public interest that competes with the open court principle. In this sense, certain specifics of the case or the type of action will sometimes be relevant to determining if openness will be limited. As an example, the Supreme Court of Canada has recognized that protecting a sexual assault victim’s privacy encourages reporting of assaults, which may support limiting court openness in appropriate circumstances.[2]

 To what extent do courts have the ability to limit personal information relevant to the legal record of a case from public access and scrutiny? While some information is limited by law (e.g., in sexual assault cases or where the offenders are minors), have Canadian courts expanded their discretionary power over the release of information in recent years? If so, what has been their rationale for doing so?

As noted above, while the starting presumption is openness, the courts have a discretion to limit the open court principle. For the Court to do so, the party seeking to limit openness must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.[3] Satisfying the test is a high bar.

Where the test is satisfied, a court has several options for limiting openness, and must select the least intrusive option necessary to prevent the serious risk. These options include issuing a sealing order (preventing access to the relevant court filings), issuing a publication ban (preventing the media from publishing information), ordering a closed hearing (to exclude the public from the hearing), redacting portions of the court filings, or allowing a party to proceed anonymously (using initials as opposed to a full name). If ordered, these measures could act to limit the personal information publicly available with respect to a proceeding.

While the test for placing discretionary limits on court openness has been refined over the past few decades, it has, in substance, remained largely unchanged. Where there has been some expansion is in determining what constitutes a sufficient competing interest that is placed at risk by court openness – presently, this extends to all important, public interests. However, as it is the public interest in freedom of expression and openness of the courts, it remains that any competing interest must also be an important public interest, as opposed to an interest that is merely private in nature. To use the example of a sexual assault case described above, it is the public interest of encouraging reporting by victims and conviction of offenders, as opposed to a personal privacy interest.

In other jurisdictions, there has been an expanding interpretation of the scope of privacy rights to include concepts such as the “right to be forgotten”. Have you observed this trend emerging within Canadian jurisprudence?

While privacy has been recognized as a fundamental consideration for some time in Canada, we do not have the type of “right to be forgotten” legislation that is being seen in other jurisdictions. However, there have been some trends towards recognition of privacy rights (as well as some concern with respect to the Constitutionally of such developments).

As an example, the Canadian Personal Information and Protection of Electronic Documents Act, SC 2000, c. 5 (“PIPEDA”) applies to the collection of personal information by commercial entities, and allows an individual to challenge the “accuracy and completeness” of his or her personal information. A challenge was made under this provision by an individual to the Office of the Privacy Commissioner of Canada (the “OPC”), alleging that the Google search results for his name contained outdated, inaccurate and sensitive information, and that he had the “Right to be Forgotten”. A recent decision of the Federal Court considered a preliminary issue relevant to this complaint – whether Google LLC had collected, used or disclosed personal information in the course of commercial activities, by indexing webpages and presenting search results.[4] The court concluded that yes, Google had utilized the information in the course of commercial activities and, as a result, it was subject to PIPEDA. With this preliminary determination in hand (unless Google appeals), the matter will return to the OPC to hear further arguments on the scope of the PIPEDA provision.

However, this interpretation of PIPEDA – as well as other discussions of introducing “right to be forgotten” statutes in Canada – has raised serious concerns over whether such privacy legislation is unconstitutional for infringing on the Charter protected right of freedom of expression. In contrast, in Europe where “right to be forgotten” laws have become more prevalent, there are also express constitutional protections in place for privacy.

What are some of the challenges with the open courts principle, and how have Canadian judges attempted to address any shortcomings?

There is a concern that the open court principle could have a chilling effect, in terms of dissuading people from wishing to participate in the legal system. In A.B. v. Bragg Communications, this concern arose as a fear that children would be discouraged from reporting cyberbullying, or cooperating with authorities to bring perpetrators to justice, if the victim’s personal information would be public.[5] There is also a concern that court openness could bar a party’s meaningful participation in a court proceeding altogether, such as in cases where key information to the matter is subject to confidentiality obligations, as was considered in Sierra Club of Canada v. Canada (Minister of Finance).[6]

The type of exceptional circumstances that arose in those cases was addressed by classifying the competing interests as public interests - encouraging reporting of abuse, and protecting contractual obligations of confidentiality, respectively. Under the test for placing discretionary limits on court openness, this allowed the Courts to exercise its discretion and put in place certain limits on openness, having found that an order was necessary to prevent a serious risk to these public interests, and that the benefits outweighed the negative effects of the order.

However, these circumstances are not only exceptional, but also in situations where the competing interest was something important to the public generally. The Court has repeatedly confirmed that a degree of privacy loss is inherent in court proceedings, and that this loss may cause inconvenience, upset, and even embarrassment. However, neither individual sensibilities nor mere personal discomfort associated with participation in judicial proceedings are likely to justify limiting the fundamental principle of openness.[7]

How has the transition from in-person hearings to largely virtual or hybrid court sessions affected the openness of the courts? What new questions has it raised for the privacy of the parties involved?

Access to hearings by members of the public and by the media has been impacted by the many changes to hearing modes as a result of the COVID-19 pandemic. The courts in British Columbia have continued to recognize that the open court principle is of critical importance and have made efforts to facilitate access: for example, there are processes in place where the public or media can make a request to obtain the “dial-in information” to attend a telephone hearing or the link to attend a video hearing, and there is some limited space for attendance at hearings. However, gone are the days (for now, at least) where a member of the public could wander the hallways of the courthouse, popping into various courtrooms and picking up tidbits from different proceedings. Further, a virtual participant may encounter a problem acquiring attendance details for a last-minute hearing, or technology limits (including on the number of attendees for certain hearings) could hamper access.

With that said, the use of virtual platforms could also make access easier in certain circumstances. For example, for those that wish to attend a hearing but would have faced challenges with making it to an in-person court hearing. This may open up the Courts to those living further afield from a hearing. It may also make it harder to control the dissemination of information, which could be easier to record surreptitiously, despite prohibitions regarding the same. This could give rise to new privacy concerns for the parties involved.

How can the courts adapt to protect privacy concerns in the age of social media and the “surveillance economy”? Have Canadian courts been effective in maintaining the integrity of their proceedings, or are they struggling to keep up with the current digital revolution?

Overall, it has always been a challenge for both the laws, and the Canadian courts to stay on top of rapidly changing technology, and the vast impacts of these changes on Canadian society.

The open court principle itself is a bedrock of Canadian law. However, the corresponding test to place limits on this openness is discretionary and allows the Court to take into account various surrounding factors in determining whether an exceptional circumstance has arisen where limits should be imposed. This makes the test relatively well suited to keep up with digital change. For example, in the recent decision of Sherman Estate, supra, the Supreme Court of Canada noted that information disclosed in court proceedings could be subject to broad and immediate dissemination, by utilizing technology.

In some limited circumstances, this information would strike at an individual’s “biographical core” in a manner that would threaten their integrity and pose a serious risk to the dignity of the impacted individual. In such circumstances, this threat to dignity is a public interest that may be balanced against the open court principle, in the test for placing discretionary limits on openness. This demonstrates that the court framework has some ability to adapt, including to take into account technology changes.

Do you have any other insights on helping clients navigate the legal nexus of privacy and access to courts post/during COVID?

Overall, the COVID-19 pandemic has shown, in many different ways, that the legal system and the legal profession can adapt to accommodate changing situations - though there are likely to be some growing pains along the way!

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Erica Miller is a litigator at Farris LLP, having initially joined the firm as a summer articled student in 2010.

Erica assists clients in a broad range of litigation matters, with a focus on commercial disputes. Her practice includes various administrative and regulatory matters, construction disputes, contractual disputes, international trade matters and general civil litigation matters. Erica has assisted clients in a variety of matters before the British Columbia Provincial Court, Supreme Court and Court of Appeal, the Supreme Court of Canada, as well as before various administrative tribunals, including the Canadian International Trade Tribunal, the BC Utilities Commission, the Hospital Appeal Board.

[1] Sherman Estate v. Donovan, 2021 SCC 25, para. 44 (“Sherman Estate”)

[2]  See, for example, Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122

[3] Sherman Estate, para. 38.

[4] Reference re Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723

[5] A.B. v. Bragg Communications Inc., 2012 SCC 46, paras. 23, 26-27.

[6] Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41

[7] Sherman Estate, supra, para. 31.

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