The Application of the Open Court Principle to Administrative Tribunals: Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166
In an interesting recent decision, the Federal Court of Appeal grappled with the scope of the ‘open court’ principle.
In Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, the CBC sought judicial review of the Board’s refusal to release copies of the audio recordings of parole hearings of three offenders, amongst them Paul Bernardo. Ultimately, the Board’s decision was quashed as it reasons “were incoherent, relying on risks that had already materialized affecting opportunities that were unlikely to arise in a foreseeable future” (at para. 85). This was standard Vavilovian reasonableness review fare.
Of greater interest is Pelletier JA’s approach to the CBC’s more ambitious argument: that it had a constitutional right to the recordings because the Board is subject to the ‘open court’ principle underpinned by s. 2(b) of the Charter. Notably, the CBC pressed this argument even though the Board’s parent statute contains a provision requiring the Board to permit anyone who applies to attend a hearing as an observer, save in defined circumstances (Corrections and Conditional Release Act, SC 1992, c 20, s. 140(4)). The significance of the CBC’s argument is that, had it been successful, it would also have had access to the audio recordings. And the logic of the argument would go much further: any information in an administrative tribunal’s public record (filings, evidence and so on) would have to be made available to the public, subject only to the possibility of a confidentiality order being made in respect of sensitive information consistent with the test set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41,  2 SCR 522 and subsequent cases.
Writing reasons that were at once thoughtful and thought-provoking, Pelletier JA held that the open court principle does not apply to the Board.
Previously, the test for the application of the open court principle to a non-court was whether the body was exercising a quasi-judicial function (see e.g. Southam Inc. v. Canada Minister of Employment and Immigration,  3 F.C. 329 (T.D.), at p. 336). However, Pelletier JA held, the concept of a “quasi-judicial” function has “outlived its usefulness” in this context, because it focuses on a tribunal’s “processes and formal characteristics rather than its function” whereas the “public interest in court proceedings does not arise from a court’s procedural characteristics but from the fact that it decides questions of rights and duties as between citizens and as between citizens and the state” (at para. 48). This is a lucid and powerful statement about the rationale for the open court principle and appropriately ties openness to the substance of the issue being decided rather than the formal concept of a quasi-judicial function.
What should replace the concept of a quasi-judicial function? The CBC argued that the open court principle, underpinned by s. 2(b), arises from the right of the public to express ideas about public institutions and obtain information about their functioning (at para. 55). For Pelletier JA, this cast the net too wide: “While the public has an interest in knowing about the functioning of all public bodies, the open court principle has to date been limited to those public bodies whose resemblance to courts invites the same degree of public oversight represented by the open court principle” (at para. 55).
Instead, Pelletier JA held, the touchstone should be whether the tribunal is adversarial in nature: “the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle” (at para. 53). Pelletier JA did not elaborate but presumably the idea here is that where a tribunal is adjudicating between the citizen and the state, or between citizen and citizen, it is performing a court-like role and properly subject to the full glare of publicity. The evident difficulty here is that relying on “resemblance to courts”, which looks suspiciously like the concept of a quasi-judicial function under a different label, puts the focus back on form rather than substance. Another difficulty is that the substantive case for the open court principle is quite weak in respect of some adversarial proceedings, where there is little public interest in the details of the matter. Disputes between landlords and tenants would be a good example: undoubtedly adversarial but typically not of importance to the public at large and thus poor candidates for the strongest form of the open court principle.
It may be that the analysis here was influenced by the nature of the decision-maker at issue. Here, the Board could not be characterized as adversarial in nature. It performs its functions inquisitorially, performing a risk assessment based on information received from Corrections Canada and submissions from the offender and victims. There is no “representative of the state” on the other side of the table from the offender (at para. 54). Moreover, the offender’s counsel (if any) will play only a limited role at the hearing. As a matter of form, the Board is plainly not court-like. In addition, however, as a matter of substance, the Board is not the most obvious candidate for application of the open court principle, given the sensitive nature of its task and the risk that its work might be distorted by sensationalistic media coverage (by outlets other than the CBC, of course, which, if nothing else, can hardly be accused of sensationalism). Perhaps, then, the tail wagged the dog in the sense that a sensible outcome – no open court principle for the Board – drove the choice of test.
To drive home the point, it seems to me that the case for the open court principle would be much stronger in respect of a regulatory tribunal tasked with fixing licence conditions or setting rates for an important sector of the economy. Such decisions cut right to the heart of the community’s ability to understand vitally important economic issues and express itself about the direction of the polity. Such a tribunal would evidently not qualify as “adversarial” but equally evidently engages the values underpinning s. 2(b) of the Charter. A test focused on those values – is the tribunal addressing an issue of importance to the community and worthy of public discussion? – would be superior to the concepts of quasi-judicial and adversarial functions, in my view. It would capture the country’s regulatory tribunals in all fields, which the ‘adversarial function’ test does not.
Regulatory tribunals are (in my experience) strongly committed to transparency, such that the practical effect of the choice of test does not greatly matter. As far as principle is concerned, however, an open justice test that excludes bodies that form a significant part of the economic and political fabric of Canadian life seems to me to fall short.
This content has been updated on January 12, 2024 at 17:05.