Victim Privacy and the Open Court Principle

Chapter Four: Comparative, transnational and international perspectives (cont'd)

The United States of America (cont'd)

Access to the courts

On access to the courtroom, the landmark U.S. decision is Richmond Newspapers v. Virginia . [cccxxxviii] The issue for decision there was whether a criminal trial could be closed to the public, at the defendant's request, and without any evidence of a threat to his right to a fair trial, or of some other overriding consideration. Citing an "unbroken, uncontradicted history", which is supported by reasons "as valid today as in centuries past", Chief Justice Burger held that, " a presumption of openness inheres in the very nature of a criminal trial." [cccxxxix] Not only does openness provide assurance that the proceedings are conducted fairly, it discourages perjury, the misconduct of participants, and decisions based on secret bias or partiality. [cccxl] In addition, the U.S. Chief Justice maintained that public trials have "significant community therapeutic value". [cccxli] That is to say, the open processes of justice serve the important prophylactic purpose of providing "an outlet for community concern, hostility, and emotion"; public trials also vindicate "the fundamental, natural yearning to see justice done", as well as "the urge for retribution". [cccxlii]

The Court's lengthy discussion of openness led to the principle that "[a]bsent an overriding interest articulated in findings", criminal trials must be open to the public. [cccxliii] The problem in Richmond Newspapers was that the trial judge made no findings of fact to support the closure order, and failed to consider whether alternative measures would have met the need to ensure fairness. As a result, the two prerequisites for an order excluding the public are the presence of an overriding interest, and the absence of any viable alternative means to protect that interest, short of closure. The Richmond Newspapers standard is more demanding, but at the same time is not unlike the criteria La Forest J. proposed under s.486(1) of the Criminal Code in C.B.C. v. New Brunswick (Re: R. v. Carson) ). [cccxliv]

Conflict between the privacy of sexual assault victims and the open court principle arose shortly thereafter in Globe Newspaper Co. v. Superior Court . [cccxlv] The question in Globe Newspaper was whether the First Amendment prohibited the mandatory closure of trials, for certain sexual offences, during the testimony of victims under age 18. After reviewing the underlying values of openness, Brennan J. indicated that to deny access to inhibit the disclosure of sensitive information, the state must show that the denial is "necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest". [cccxlvi] In other words, an order to close a courtroom is subject, in American constitutional terminology, to strict scrutiny. Practically speaking, it would be very difficult, if not impossible, for a closure order to survive once strict scrutiny is applied. The statutory provision at issue in Globe Newspaper failed because Brennan J. concluded for a majority that mandatory closure was not necessary; a trial court could instead determine whether closure would protect the welfare of a minor on a case to case basis. Note, parenthetically, that this is what occurs in Canada through the combination of s.486(1) of the Criminal Code and the C.B.C. (Re: R. v. Carson) criteria.

Significantly, Brennan J. rejected the suggestion that mandatory closure was permissible because it would encourage victims of sex crimes to come forward and provide accurate testimony. In doing so, he noted that the state provided no empirical support for its claim that automatic closure would lead to an increase in the number of minor victims coming forward and cooperating with state authorities. Not only did he view the proposition as speculative, he stated that it is "also open to serious question as a matter of logic and common sense," because the press was not denied access to the transcript or other sources of information about the victim's testimony. [cccxlvii] As well, Brennan J. was reluctant to recognize any exception which would run contrary to the right of access recognized in Richmond Newspapers . In any case, he noted that even if mandatory closure encouraged these victims to come forward, the same could be said of other crime victims.

Surely it cannot be suggested that minor victims of sex crimes are the only crime victims who, because of publicity attendant to criminal trials, are reluctant to come forward and testify. The State's argument based on this interest therefore proves too much, and runs contrary to the very foundation of the right of access recognized in Richmond Newspapers[cccxlviii]

In comparing sex crime victims to the victims of other crimes, Brennan J. at least implicitly rejected the proposition that the victims of these offences are vulnerable in ways that set them apart. Meanwhile, in dissent Rehnquist J. complained of the majority opinion's "wooden application" of a "rigid standard". [cccxlix] Given that the press and public would have access to the victim's testimony through transcripts, he claimed that "[t]heir additional interest in actually being present during the testimony is minimal". [cccl] As far as he was concerned, the law had a minimal impact on First Amendment rights. Moreover, he characterized the Court's dismissal of the under reporting rationale as an instance of "cavalier disregard for the reality of human experience". [cccli]

Albeit on a question of closure, Globe Newspaper is reminiscent of the debate that took place in Canadian Newspapers v. Canada , between the Ontario Court of Appeal and the Supreme Court of Canada, on the question of a mandatory versus a discretionary publication ban. [ccclii] In Globe Newspaper , Rehnquist J. was unwilling to "leave the closure determination to the idiosyncrasies of individual judges". [cccliii] Like Lamer J. in Canadian Newspapers , he referred to the uncertainties in the victim's mind prior to the trial, and noted that "[t]he mere possibility of public testimony may cause parents and children not to report these heinous crimes". [cccliv] Though in dissent, Rehnquist J. concluded that it was within the state's power to provide for mandatory closure to alleviate understandable fears and encourage the reporting of such crimes. In Canadian Newspapers , however, Mr. Justice Lamer wrote the Supreme Court of Canada's majority opinion.

Both the United States and Canada contemplate that proceedings can be closed in some circumstances. Under the American jurisprudence, however, the case for closure must be close to invincible; the state interest must be compelling, it must be supported by empirical evidence, and the Court must be satisfied that the interest cannot be satisfied in any other way but closure. Though C.B.C. v. New Brunswick (Re: R. v. Carson) also set a high threshold, it is not as strict as the doctrine that has emerged under the First Amendment. The American jurisprudence also endorses a broader conception of what the public interest is and how it is protected by the First Amendment. Whether the public has a sufficient interest in being physically present in the courtroom or in knowing a victim's identity raise policy questions that are pursued in Chapter Five.

Conclusion

Comparative and transnational perspectives are of some assistance in understanding the choices that are presented when the principle of open court conflicts with the demands of victim privacy. In that regard, differences in practice from one system to another can be as revealing as similarities. For instance, even a limited review of civilian and other models of criminal justice demonstrates that victims are not, by unavoidable definition, third parties in the trial process. They can be and are treated as participants in some jurisdictions; under Germany's institution of Nebenklage , the victim-plaintiff can play a role as secondary or subsidiary prosecutor.

According the victims of crime such status would, however, be inconsistent with the governing assumptions of criminal justice in common law jurisdictions.

On first impression, the British and Commonwealth systems might be expected to provide the closest analogy for Canada. And it is true that many of the CriminalCode's reforms, which enhance the status of victims and complainants in sexual assault proceedings, will also be found in British, Australian and New Zealand law. Yet the same debate between victim privacy and other values, such as open court and the accused's right of full answer and defence, has not taken place in that jurisprudence. Unlike Canada, these countries lack a system of constitutional rights. Yet as Chapters Two and Three explained, conflicts between victim privacy and competing values intensified and assumed new form, analytically, under Canada's Charter of Rights and Freedoms . For that reason, the resolution of those conflicts in common law systems without constitutional rights is less relevant than it would have been in Canada's pre- Charter era.

By the same token, the American jurisprudence also fails to provide a precise analogue. Though the issues are addressed under a regime of constitutional rights, the assumptions of American constitutionalism may not apply, or may apply with less force in Canada. A good example, which was mentioned above, is the presumption against publication bans, which is deeply rooted in First Amendment doctrine. Meanwhile, the Supreme Court of Canada has not yet held that the element of prior restraint in such bans raises particular issues of concern under s.2(b) of the Charter . As well, the First Amendment jurisprudence can be militant when confronted by measures, whether criminal or civil in nature, which interfere with the watchdog role of the press. In contests between the press and the state, the press tends to win. Meanwhile, provisions which are aimed at protecting the privacy of victims are more likely to be seen in Canada as a reasonable compromise or balance between competing values.

Despite assuming a harder line on the principle of open court, the American jurisprudence and literature offers a vigorous debate of the policies on both sides. That debate is taken up in Chapter Five.