Court proceedings, by their nature, often deal with intensely personal facts and events. And court proceedings in our democracy are presumptively open. Transparency and privacy are unnatural partners.

This brief article looks at the three pillars of court openness: (1) the ability to attend court proceedings “live” (in person or over telephone or video), (2) media reporting and (3) access to the court record.¹ In the absence of a governing statute or regulation, what discretionary tools are available for clients or witnesses who are loath to provide evidence that will form part of a public record, potentially in perpetuity?

Sealing orders

A sealing order serves to restrict public access to the court record. For viva voce witnesses or affiants, it ensures that the court — and, almost invariably, the parties — have access to the witness’ evidence, but that the public has only a redacted version (or no access at all). Redactions can protect names, identifying information, details about a particularly sensitive topic, etc.

Justice Kasirer, in Sherman Estate v Donovan, held that “protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest” capable of satisfying the first prong of the test for a sealing order for the purposes of the test.² In B.C., counsel must follow the procedure set out in PD-58 when attempting to meet this test.

A practical issue, in cases where it might be difficult to meet the strict test for a publication ban, is whether it might be possible to lead the evidence in a manner that avoids “naming names,” but nevertheless conforms to orthodox procedure (e.g., permits free-ranging cross examination). Can the evidence be presented in general terms, or by using pseudonyms or initials in place of full names? Such steps will not always be appropriate, but where they are, one can achieve the same ends as a sealing order, but without the need to amass a record and apply for one.

Publication bans

The publication ban shares similarities with the sealing order.³ It does not, however, take aim at the court record, but rather at reporting on them — either for a specific duration or in perpetuity. In Dagenais,⁴ the Court articulated a common law test for cases where publication poses a risk to trial fairness. In Mentuck,⁵ Justice Iacobucci reformulated the test, in terms of risks to the proper administration of justice, where the prosecution sought a ban (to protect publication of the “Mr. Big” investigative practice, among other things), but the accused opposed. Notice of an application for a publication ban must be given to the media, and our court has PD-56 to govern the procedure.

Proceeding in camera

A third method to protect privacy — for reasons of practicality, typically used in combination with a sealing order — is to request that the court proceed in camera. This has the effect of excluding the public from the courtroom. Proceedings are conducted in secret. It is difficult to conceive of circumstances in civil proceedings where concerns of privacy might justify proceeding in camera — an acute (and temporary) need for secrecy is easier to foresee in certain Mareva injunction and other ex parte contexts — but counsel should nevertheless be aware that there is a possibility of proceeding in camera in the event circumstances are so extraordinary to justify the request.

---

1. Supreme Court of British Columbia, Policy on Access to the Court Record, (accessed 8 July 2024). | ↩
2. 2021 SCC 25 at para 73. | ↩
3. See Sierra Club v Canada (Minister of Finance), 2002 SCC at para 37. | ↩
4. Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835. | ↩
5. R v Mentuck, 2001 SCC 76. | ↩