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

• Canadas legal system is based largely on English
  and French law
• Quebecs 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, judges
  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, Queens Bench)
• File search by file number or partys 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
Justice Information Management System (JIMS)

• Alberta project, now in early stages
• Data-sharing between justice system entities
• Public and media access
• Remote access to docket and judgments
• Parties, remote access to file
• Other users register and track?
• Bulk access?
• Education
• Personal data identifiers
• No more practical obscurity
• Legislative amendments will be needed

25
Court Records Accessin Canada

• Kate Welsh
• Courts Advisory Counsel
• Alberta Courts