• Text Size
• Print
• Email

  From:
  

  To:
  

  Hey! Check out this news page: https://www.thebackgroundinvestigator.com/Articles/Quebec-Bill-Subverts-Open-Court-Pronciple-/656/index.php.

  SendCancel

International News

Quebec Bill Subverts Open-Court Pronciple

February 01, 2012 posted by Steve Brownstein

Quebec Justice Minister Jean-Marc Fournier has tabled a bill to enact a new Code of Civil Procedure, the code containing the rules of procedure for civil suits in Quebec.

As a starting point, the new code would recognize the "open-court principle," that civil justice administered by the courts is public. Anyone can attend court hearings wherever they are held and have access to the court records.

The Supreme Court of Canada has often said that it is essential to a democracy and crucial to the rule of law that courts are seen to function openly. The courts must be open to public scrutiny and to public criticism.

The Supreme Court has therefore set strict guidelines for any exception to the open-court principle. It has held that a publication ban or order excluding the public from the courtroom can be imposed only when the following conditions are met (the so-called Mentuck test):

Such an order is necessary to prevent a serious risk to the proper administration of justice, because reasonable alternative measures will not prevent the risk.

And 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.

Unfortunately, the minister's draft bill does not respect these guidelines.

The new code proposed by the minister would give judges much wider discretion to impose such exclusionary orders. This greater latitude would undermine the open-court principle.

For example, the draft bill would give judges the power to exclude the public or to impose a publication ban "to protect the dignity of the persons involved." The case law has been consistent: The "sensitivity" of the people involved is generally not a sufficient ground to justify a publication ban or exclusion of the public. The person seeking such an order must demonstrate that his or her interest, which must be defined in terms of a public interest in confidentiality, takes precedence over the open-court principle. The interest that is strictly personal to the party does not justify a publication ban or an order excluding the public.