Victim Privacy and the Open Court Principle

Executive Summary

This Report analyzes the tension between victim privacy and the open court principle, and especially in the context of sexual assault proceedings. It explains that the open court principle is one of the most highly prized values in the Anglo-Canadian common law tradition. Not only has the jurisprudence under the Charter of Rights and Freedoms reinforced this value, it has set more onerous requirements for exceptions to the open court principle to meet. The Report provides an analysis of open court's transition from common law to constitutional principle.

Historically, the victims of crime have not played a central role in a trial process that is conceptualized as a bipolar contest between the state and the accused. Even before the Charter of Rights and Freedoms was adopted in 1982, however, the status of victims had begun to improve. The law relating to sexual offences was one area in which reforms were most forcefully sought, and most frequently secured as a result. Though statutory measures had taken some steps in this direction, protecting the privacy of victims was not recognized, at common law, as one of the permissible exceptions to open court's twin elements of access and publicity.

Almost exclusively in the context of sexual assault proceedings, the status of crime victims changed radically under the Charter . Albeit in the context of conflict between the rights of the accused and the complainant, the Supreme Court of Canada recognized a right of victim privacy under s.7 of the Charter , and placed it on an equal plane with the defendant's right of full answer and defence. The Report views this as a critical development because of the importance of linking the privacy concerns which arise at different times and for different reasons in sexual assault proceedings. The open court jurisprudence weighs the salutary benefits of protecting victim privacy against the deleterious consequences of derogating from open court. The invasion of privacy elsewhere in the process, and the steps that have been taken to address it, may influence the judiciary's perception of proportionality in contests between victim privacy and open court.

The Report adds perspectives from other jurisdictions and provides a discussion of the values which are at stake when victim privacy is set against open court. In doing so, it raises but does not answer the question whether victim privacy, and the need for anonymity in particular, is justified by the nature of the offence, or should instead be regarded as a remedial measure to address the chronic under reporting of sexual offences and encourage victims to trust the system. In essence, the question is whether these offences are different and should, from a privacy perspective, always be treated differently. An alternative approach would treat sexual assault victims differently, but only for the time being, and because the unfair treatment they have suffered in the past has not yet been eliminated.