“It is essential that our courts remain open in order that members of the public and the media may observe, critique, publish or share information concerning the workings of the Justice system. The open court principle is a crucial aspect of our democracy and is protected by the right to freedom of expression under section 2(b) of the Charter.
The law does recognize rare occasions when the open court principle must give way to other important interests related to the administration of justice. The test for determining whether a sealing order should be granted was stated by the Supreme Court of Canada in Sierra Club of Canada versus Canada Minister of Finance, [2002] S.C.R. 522 at paragraph 46:
A publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.”