Amy Rose
March 25, 2010

Abstract

The following is an abstract of a paper written for Environment Probe by University of Toronto Faculty of Law student Amy Rose, in partnership with Pro Bono Students Canada. Ms. Rose drew on research conducted in 2008-9 by law students Benjamin Myers and Nuha Abunada. For the full text of the paper, please click here.

Introduction

While there is no common law right to open justice, transparency in the administration of justice is treated by the courts in most common law jurisdictions as fundamental to a fair trial. Some form of open justice is constitutionally protected in the American Bill of Rights, the Canadian Charter of Rights and Freedoms, the Constitution of the Republic of South Africa and recognized in both the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

Functions and rationales: What does open justice mean? Why is it important?

A justice system in a democratic society requires legitimacy to work. Legitimacy is achieved only when the public has faith in the fairness and effectiveness of the legal system, and when each individual has the power to challenge laws (s)he does not believe in. Open justice creates and preserves public confidence in the administration of justice and ensures a meaningful appeals process. In this way, open justice is critical to the legitimacy – and thus the proper functioning – of a democratic justice system.

Open justice as the public’s right to know
Freedom of information and expression “is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indispensable tool to regulate what the public may and what they may not know.” A democratic society requires a justice system that is open, transparent, and accountable to the public.

Open justice as learning about one’s legal system
Public trials mean exposure to how and why our legal system functions. If we know how legal proceedings work, we learn about our rights and obligations as members of society, and about the underlying values that inform them.

Open justice as creating judicial accountability
An open court “keeps the judge himself while trying under trial.” Without public access to trial records, the judiciary may exercise power arbitrarily and without legitimacy.

Open justice as a community exercise
Justice should not only be done but be seen to be done. If the community does not witness the sanctioning of criminal or harmful behavior, its sense of security and fairness is jeopardized. Individuals may also be more inclined to take justice into their own hands, or even to participate in the illegal conduct themselves.

Open justice as justice for the parties to a dispute
“Open justice is therapeutic justice.” A party to a dispute is often in court because he or she is seeking vindication, repudiation, or exoneration – all of which require publicity to be truly effective.

Open justice as ensuring an effective appeals process
If members of the public are expected to accept and abide by laws that restrict their freedom, they must also be endowed with the power to understand and challenge them. A meaningful appeals process is only possible when the records of proceedings and reasons for decisions are available to the applicants.

Open justice as developing the common law
In common law jurisdictions, the courts make law as they apply it. Where each case has the potential to contribute to the larger body of law governing society, the coherence of the justice system requires that trial records are made available to future litigants, justices, legal scholars, and general members of the public.

Procedural protections: What specific rights and processes ensure that open justice functions properly?

The open court principle
“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice…” Judicial proceedings should take place in open court, except where the proper administration of justice requires otherwise. Only exceptional circumstances, for example where a public trial would undermine the very object of the claim, will justify a closed court.

Freedom and access of the press
“Liberty of the press…is no more than the liberty of any member of the public to criticize temperately and fairly, but freely, any episode in the administration of justice.” The courts have widely acknowledged that open justice in modern society demands media access to trials. Where people cannot attend judicial proceedings in person, the press is the only means by which publicity and transparency can be achieved. However, like the open court principle, the freedom of the press cannot be allowed to distort the administration of justice. Courts have restricted media access only in exceptional circumstances, such as where constitutionally protected rights to privacy and to a fair trial are at stake.

Timely access to trial records
Trial records should be made available as quickly as possible, subject only to the constitutional rights of parties. The accessibility of public records should also be designed in a way that is alert to the realities of modern life. The availability of documents on the internet, for instance, would provide true access for many individuals who could not otherwise attain them.

The right to reasons
A record of the reasons a judge made a decision or applied a principle in a certain way is critical to the coherent development of the common law and the right to an effective appeal of that decision. In the last thirty years, the Canadian courts have developed a common law requirement of reasons under certain circumstances in criminal and administrative proceedings. While there is neither a statutory nor common law right to reasons in civil proceedings in Canada, the absence of reasons or an omission of certain considerations in reasons has long been recognized as grounds for appeal.

The “costs” of open justice: In what ways can transparency come into conflict with individual, social, and political values?

Privacy
Privacy has come to have constitutional dimensions in most common law societies, and is a significant component of individual autonomy. Both the courts and the legislatures have become increasingly sensitive to specific circumstances where open justice must give way to protecting the dignity of the individual.

Fair trial
Publicity may distort the fairness of judicial proceedings by threatening the objectivity of the jury. The right of individuals on trial to impartial decision-makers may supersede the public right to access where there is no alternative way to shield the jury from media distortion or sensationalism.

Technology
Advances in technology have both enhanced and complicated the role of open justice in modern societies. The internet in particular has increased the potential for the violation of privacy and the distortion of due process as risks associated with open justice. On the other hand, the modern media and communication networks may facilitate the transparency of the justice system in unprecedented ways. Balancing these two roles will be an ongoing challenge for courts and legislatures.

Administrative efficiency
In many societies, the administrative state is taking over many of the traditional roles played by the courts. Transparency in this context is both more and less relevant, in that it ensures the democratic accountability of our elected officials but must be balanced against the political realities of governing. Where these bodies and tribunals are functioning in a judicial capacity, it is important for them to move towards the standards of open justice that have for centuries governed the resolution of disputes.

Conclusion

The principle of open justice is among the foundational legal values in common law jurisdictions across the world. That courts and tribunals actively participating in both the development and the implementation of law be accessible to the public is in keeping with what are now recognized as fundamental principles of justice in free and democratic societies. While the scope of transparency required for the proper administration of justice will invariably differ from context to context and over time, its status as an essential element of equitable adjudication should, and must, endure.

For the full text of Open Justice in the Common Law, please click here.