Breaking the seal: BCCA recommends a procedure for media challenges to private proceedings
The open court principle requires court proceedings to be open and accessible to the public. It is essential to the rights of freedom of expression and freedom of the press under section 2(b) of the Charter. The open court principle assumes that public confidence in the court system is fostered by openness and full publicity. However, the presumption of full publicity must be balanced with the protection of privacy rights and the proper administration of justice.
In exceptional circumstances, the courtroom may be closed to the public to protect those interests. In such situations, a court’s reasons for such a decision will be part of the protected information.
This was the scenario in the recent case of Postmedia Network Inc. v. Named Persons, 2022 BCCA 431. In this case, the British Columbia Court of Appeal (BCCA) considered the proper procedure courts should follow when the media seeks standing in a sealed and in camera (i.e., private) proceeding for the purpose of making an application to vary orders restricting court openness.
The factual background
The Vancouver Sun was denied access to a court proceeding in which the judge had granted restrictive orders sealing the court file, banning publication of information and requiring the action to proceed in camera.
Postmedia Network Inc. (Postmedia), the Vancouver Sun’s publisher, filed an application and sought access to the materials that had led the lower court to restrict court openness. Postmedia sought these materials because it intended to make a further application to vary or terminate the restrictive orders.
The lower court dismissed the application with brief oral reasons.
Postmedia appealed and alleged that
- the Court’s reasons for dismissing its application were inadequate; and
- the Court’s reasons disclosed an error of law
Postmedia submitted that the Court’s reasons must contain sufficient details about its analytical process so as to permit appellate review.
Postmedia also claimed the Court committed an error of law by stating the Dagenais-Mentuck principles do not apply to the sealed action. The Dagenais-Mentuck principles require the party opposing public access to demonstrate that the order is necessary. Postmedia argued that the Dagenais-Mentuck framework applies to every discretionary order displacing court openness.
The BCCA reviewed the sealed record and ultimately dismissed the appeal. The BCCA held that the lower court did not commit an error in law and that the matter was one of those rare and exceptional cases where Dagenais-Mentuck principles do not apply. It noted that the Supreme Court of Canada has been clear that there are types of confidentiality to which the Dagenais-Mentuck framework does not apply, and that this framework is only one application of the open court principle to a completely sealed proceeding.
The BCCA acknowledged that the “adequacy of reasons” issue was more complex. It stated that, generally, reasons should justify the result, inform the unsuccessful party as to why they lost, provide for informed consideration of the grounds of appeal and satisfy the public that justice has been done.
The BCCA acknowledged that in the majority of cases where the open court is restricted, at least some information can be shared about the nature of the interests to provide a comprehensible basis for the limitation. However, the present case was the rare and exceptional circumstance where not even that was possible. The BCCA noted that the disclosure of even the most basic information about the case would put the very nature of the privilege at stake and would be tantamount to a disclosure of the protected information itself. Therefore, the BCCA could not provide detailed reasons to explain the decision.
The BCCA recognized that this was an unsatisfactory result. It noted that both Postmedia and the public at large were being forced to accept the word of two courts that their Charter rights to freedom of expression and freedom of the press had been justifiably limited on the basis of a record that they could not see.
The BCCA acknowledged that where reasons cannot fulfill the functional role of justifying and explaining the result to the public (because that explanation would defeat the confidentiality in issue), some other procedure must be in place. This would provide at least some assurance to the public that a legitimate process has been followed.
The BCCA made the following procedural recommendations for media challenges to entirely sealed proceedings:
- A judge should appoint an amicus curiae to make arguments about how to properly protect the privilege at issue and satisfy the open court principle.
The BCCA noted that the result may still be a complete sealing of the file and an entirely in camera proceeding, but the public and the parties will at least know that the matter has been fully argued and considered.
- An application brought by the media should, at first instance, be an application to vary or vacate the orders restricting court openness, rather than a preliminary application for access to materials.
The BCCA noted that in a case like this, the applications amount to the same thing: allowing access to the materials would effectively be a variation of the restrictive orders. The BCCA stated that a decision of the court below should be a substantive decision as to the need for, and scope of, the orders themselves, with the benefit of the arguments of the amicus. This will result in a better use of court resources.
This case was a rare example of a proceeding where, due to the highly sensitive nature of the protected information and the likelihood of harm as a result of its disclosure, the courts were unwilling and unable to disclose any information about the proceeding to the public.
This case illustrates that although the open court principle is a fundamental constitutional protection, it is not unassailable. Restrictions on access are justified where serious risks to privacy or other important interests, such as the proper administration of justice, outweigh a presumptive right of access. Specifically, the case demonstrated that
- the Daigenais-Mentuck test has a wide area of application, but it must not be used beyond its proper scope. The test was never intended to apply to all discretionary court actions that affect the openness of judicial proceedings.
- in rare and extraordinary circumstances, the open court principle can be legitimately limited to the extent that a proceeding is conducted in near-total secrecy.
The decision ultimately provided the BCCA with the opportunity to recommend procedures when the media challenges a completely sealed file.
Companies should be aware of the open court principle and the procedures used to challenge private proceedings when requesting or opposing a sealing order.
 Sherman Estate v. Donovan, 2021 SCC 25.
 The Supreme Court of Canada has closely guarded the open court concept over the years and has set out the test for when a publication ban is to be granted in Dagenais v. Canadian Broadcasting Corporation, 1994 3 S.C.R. 835, and R. v. Mentuck, 2001 3 S.C.R. 442, known as the "Dagenais-Mentuck" test.
 An amicus curiae (also known as a “friend of the court”) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise or insight that has a bearing on the issues in the case.