Victim Privacy and Open Justice: 2.0

The purpose of this report, commissioned by the Research and Statistics Division of the Department of Justice, is to review and update changes to open court and victim privacy principle since 2003, which was the year that Victim Privacy and the Open Court Principle report was written (hereinafter referred to as the 2003 Report). This update maintains symmetry with the structure of the 2003 Report in its review of Supreme Court of Canada jurisprudence and legislative changes since then. By 2003, the Supreme Court strongly endorsed and protected open court, adopting a strong standard of justification that required a sound evidentiary basis to warrant limits to the principle. The “second generation” jurisprudence is consistent with that conception of openness, but notable for accepting restrictions more readily and, in some instances, explicitly on grounds of a victim or participant’s vulnerability.

Meanwhile, that rationale is both pronounced and explicit in significant legislative reforms that introduced a complex framework of testimonial aids in the Criminal Code – for victims, witnesses, and some “justice system participants” – and a Canadian Victims Bill of Rights. Section 486’s testimonial aids subtract, in ways, from a pristine concept of open justice, but do so to serve goals of accessible justice for criminal process participants and effective law enforcement. Significantly, the discretionary availability of some accommodations is contingent on multi-factor balancing, set out in the Criminal Code, which must take into account competing interests, including openness and the rights of the accused.

The update would not be complete without discussion of two “frontier” developments: the impact of technology, and transformation of public and cultural discourse about sexual offending. First, the challenges to openness posed by technology are briefly identified and analyzed: this includes electronic court records and documents, the electronic courtroom, as well as electronic publicity and publication bans. It is unclear at present whether technology is a threat or boon to openness and access to justice values, and it may be both at once. Of course, the law will have to respond to ongoing technological change.

Second, unexpected and major shifts in the narrative of sexual transgression represent a game-changing development for victims of such offences and their role in the criminal justice system, including their privacy interests. Frustration with the typical justice system response to sexual assault have led some advocates to lobby for changes within the criminal justice system and sanctions that may fall outside the formal justice system. One of the more obvious and interesting points about the three watershed events discussed – #BeenRapedNeverReported, Unfounded, #MeToo – is that the transformation in discourse is for the most part driven by forces connected to, but outside the formal processes of law. Social media activism and investigative journalism have been at the forefront of change. Through the momentum of these broad-based movements, the social, psychological and cultural environment of sexual transgression has undergone fundamental change, with positive results for the reporting of offences, their handling by Canadian police forces, and victim perceptions of their status in criminal justice and willingness to step forward on their own and in solidarity with others, whether anonymously or not.

While the basic concept of open justice remains static, the legislative forum, technology, and an alternative narrative of sexual transgression have shifted. For now, the underlying values and doctrinal standards in place under the early Charter jurisprudence have stood the test of time. Whether and in what ways open justice must adapt, in an environment of unpredictable change, remains to be seen.