Victim Privacy and the Open Court Principle

Chapter Six: Conclusions

At least in common law systems, the sensibilities of crime victims have historically not been granted consideration in the trial process. Though their participation was vital to the outcome, victims and witnesses were third parties who lacked independent standing or status in what was a two-way contest between the state and the accused. In many ways, which include an increasing recognition of their privacy concerns, that conception of the victim has been changing. Today, the victims of crime, and of sexual assaults in particular, are more visible in the criminal justice system than ever before.

The commission of a crime not only robs an individual of his or her integrity, its investigation and prosecution may unavoidably entail an invasion of that person's privacy. In a system that focused attention on the commission of an offence against the community, the individual who suffered the violation was an object of sympathy in most cases; even so, vindicating his or her personal suffering was secondary to the objective of the system. That view of criminal justice, and the importance of vindicating the offence against the community, supported a particular conception of open court. Granting access to courtrooms and permitting the evidence and outcomes of proceedings to be widely publicized was an essential part of maintaining the public's confidence in the legitimacy, justness and fairness of the system.

Chapter Two of this Report explained the relationship between three sources of law that have defined Canada's conception of the open court principle over the years. Those sources are the common law, statute law, and - since 1982 - the Charter of Rights and Freedoms . The common law principle of open court protected the twin concepts of access to proceedings and publicity. Exceptions to the principle were also recognized mainly, but not exclusively, to preserve the fairness of a criminal trial. For a variety of reasons, the common law was relatively unresponsive to the privacy concerns of victims or witnesses in the criminal trial process.

The common law is subject to modification by the legislature, and exceptions to the open court principle increased in number as the Criminal Code and other criminal law measures were amended. Though many measures were introduced to protect the fairness of the trial and thereby preserve the presumption of innocence, some addressed the status of victims and witnesses.

As Chapter Two explained, the Charter created uncertainty about the status of common law and statutory exceptions to the open court principle. Yet the Supreme Court of Canada has, in its s.2(b) jurisprudence, strongly endorsed that principle. In doing so, the Court has linked open court to the fundamental values it supports: public confidence in the justice system; the legitimacy of criminal justice; and the accountability of courts and judges. What the Charter has added to the common law conception of openness is a deeper awareness of the connection between an open process, and the legitimacy of the justice system as one of the central institutions of Canadian democracy .

Chapter Two also traced the evolution of doctrine under s.2(b) of the Charter , which guarantees freedom of expression and the press. To summarize briefly, the three most important features of that jurisprudence are: first, the establishment of constitutional "tests" in Dagenais v. C.B.C. and the subsequent case law; second, the requirement that exceptions to the principle rest on a sound evidentiary basis; and third, the recognition that open court should in some cases be limited to protect victim privacy.

With that foundation in place, Chapter Three took a closer looked at the status of victim privacy in sexual assault proceedings. In that context, privacy concerns were raised in answer to rules of evidence, which in the past permitted an accused to probe the details of a complainant's private life or allowed the defence, more recently, to gain access to confidential medical and counselling records. Chapter Three explained how the Supreme Court of Canada responded by introducing a right of victim privacy under s.7 of the Charter , and placing it on an equal plane with the rights of the accused. For purposes of this Report, the point of Chapter Three was to demonstrate that for complainants, the privacy issues at stake are not limited to the open court issues of anonymity and closure or the definition of "relevant" evidence; the privacy concerns which arise in sexual assault proceedings are instead linked throughout the process of investigation and trial.

In other words, victim privacy has multiple dimensions. The incursion begins when the complainant makes a decision to report the offence, and continues during the process of investigation, when authorities consider whether the allegation is credible enough to warrant charges and prosecution. The loss of privacy can then only be magnified during the trial process, when the victim must testify and then submit to cross-examination. Traditionally, the proceedings took place in public, under rules of evidence, which were based on a concept of relevance that permitted counsel for the accused to probe the details of a complainant's sexual history, or to demand access to private records created in the course of a confidential relationship. The loss of privacy that is inherent in the open court principle could only be aggravated by investigatory practices and evidentiary rules which exposed the victims of sexual assault to scrutiny and doubt that is not experienced, generally, by other victims of crime.

Chapters Four and Five added further dimensions to the Report by offering comparative perspectives from other countries and systems of law, as well as by providing reflections on the deeper issues at stake. For instance, the importance of victim anonymity will depend on the degree to which those who suffer a sexual assault are considered the same as, or different than, other victims of crime. That issue in turn raises other questions which remain unanswered at present. Specifically, it is unclear whether anonymity is granted as a remedial response to the under reporting of sexual offences, as the Supreme Court claimed in Canadian Newspapers v. Canada (AG) . On that view, anonymity is necessary to promote enforcement of the law but not, in particular, because there are privacy interests at stake. It follows from that position that sexual assault victims are in principle no different from other victims of crime, with this qualification: the history of myths and stereotypes which accompanies the law of sexual offences has made it imperative to rectify the invasions of privacy that occurred in the past. Once the myths and stereotypes have been eliminated, the remedy will no longer be needed. Determining when past

patterns have been eliminated and the victims of these offences are "normalized", vis-a-vis other victims of crime, is an exercise that does not lend itself to precision.

Under another view, sexual assault victims are fundamentally different because the nature of the offence that has been committed against them is unique. The underlying assumption there is that special measures to protect the privacy of these victims are justifiable on an ongoing and permanent basis. As the discussion in Chapter Five revealed, however, opinions vary on the question whether the stigma that is associated with these offences is increased or decreased by an anonymity rule. While some maintain that protective measures perpetuate that stigma, others argue that it is unfair to place the burden of de-stigmatizing this offence on individual victims.

It is one of the Report's themes that the relationship between the practices and beliefs, which were rejected by the Supreme Court, and the open court principle, is important. As long as prejudicial beliefs about sexual assault persist and are reflected, not only in the rules and protocols of the justice system but in the media coverage of sexual offences as well, the vulnerability of its victims may require or justify exceptions to the open court principle. As noted above, however, access and publicity do not reflect any bias against or discriminatory beliefs about the victims of sexual assaults. The problem, instead, is that the system around these offences, and the cultural attitudes which are attached to sex, have resulted in measures which protect the anonymity of victims and allow proceedings to be closed, though only on a discretionary basis which is fettered by standards that must comply with the Charter .

In the past, the victims of sexual assault did not readily place their trust in the criminal justice system. Against the need to secure their confidence that complaints will be treated fairly, and that any proceedings undertaken will be reported with some objectivity, the exceptions to open court that are in place at present appear modest. Perhaps for that reason and in recognition, as well, of the ways sexual offences have been mismanaged, the derogations have not been particularly controversial. The guarantee of anonymity is linked to the complainant's decision to report, but the decision to report is also linked to fears about the other invasions of privacy that will necessarily occur during the processes of investigation and prosecution. Eliminating or minimizing these unpleasant elements of the process will take time, and whether steps taken in that direction have been successful will in any event be a matter of perception.

In principle, and with an exception for young victims, those who suffer sexual assaults should be treated the same way as other victims of crime. Assuming that discriminatory beliefs about the "looseness" or "availability" of women who have been assaulted can be overcome, the remaining argument for a special rule of anonymity is that these offences are uniquely private in nature. For that reason, it can be argued that the identity of those who are its victims should be protected. The difficulty in responding to that claim is that it remains almost impossible to separate the nature of the offence from societal attitudes about sexual offences, which have been systemically expressed and entrenched both in the justice system and in the press. Yet it is unclear why anonymity should attach to the victim of an offence that causes shame because it is private or intimate, and not to the victim of an offence who suffers deep pain arising from an offence that is violent or disfiguring .

Another issue which might be reconsidered is the guarantee or promise of anonymity, no matter what the circumstances. Under the current Criminal Code provision and judicial interpretation, sexual assault can be committed in a number of ways which are not all that intimate or private, and which fall short of the violation that was required to establish the predecessor offence of rape. In other words, the invasion of privacy that is inherent in sexual assault varies significantly with the facts and circumstances of the case. From that perspective, the necessity of an absolute promise of anonymity is less compelling than in the past. It is also less justifiable under the evolving s.2(b) jurisprudence, and its disapproval of absolute prohibitions, than it was in 1988, when Canadian Newspapers v. Canada (AG) was decided.

As to closed proceedings, the Supreme Court of Canada's standard in C.B.C. v. New Brunswick (Re: R. v. Carson) reflects a healthy suspicion of decisions to exclude the public from the courtroom. There, Mr. Justice La Forest made it clear that it is in the nature of criminal process that the victim's circumstances must be exposed, and that exclusion orders will not be justifiable unless a sufficient evidentiary basis is present to demonstrate why an exception to openness is permissible in the circumstances of a particular case. Though trial judges have the discretion to make that decision, the Supreme Court has indicated that the exercise of that discretion must comply with the Charter .

Access to evidence raises problematic issues. If LeSage A.C.J.O.C.'s Bernardo video order felt right in the circumstances, it is more difficult to defend as a matter of principle. The troubling question there was whether the public was entitled to know what was on those tapes, and who, to the contrary, could be considered a victim for purposes of defending the privacy and dignity interests which were at stake. Though his was a dissenting opinion, it is doubtful that LeSage A.C.J.O.C.'s compromise between the audio and video components of the tapes was consistent with Cory J.'s comments on access to evidence in Vickery v. N.S.S.C. (Prothonotary) . For the time being though, the Bernardo video order can be viewed as a decision which was based on its exceptional facts. But the questions it raised, on points of principle, will surface again.

Open court and victim privacy have received strong endorsement in the Charter jurisprudence. Yet only one of the two can be protected in any given case. As Wilson J. noted in Edmonton Journal v. Alberta (AG) , the open court principle and privacy cannot both prevail at the same time; a choice must be made when the two are in conflict. The Supreme Court of Canada has put doctrines in place which are designed to reinforce the open court principle, and accommodate exceptions at the same time. Whether the Court holds more strictly to the principle in the future, or instead grants exceptions generously, to protect the privacy of victims, remains to be seen.