““Democracy Dies in Darkness” is the masthead motto of the American newspaper, The Washington Post. Our Supreme Court has expressed identical tenets in the context of the openness of our courts.
In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.
Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 1.
Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice.
Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 25
The concept of open courts is deeply embedded in the common law tradition. The principle was described in the early English case of Scott v. Scott, [1913] A.C. 419 (H.L.). A passage from the reasons given by Lord Shaw of Dunfermline is worthy of reproduction for its precise articulation of what underlies the principle. He stated at p. 477:
… “… Where there is no publicity there is no justice.” “Publicity is the very soul of justice….”
Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at para. 21.
This is not to suggest that the openness principle is absolute. It is not. But the principle is now well-established – court proceedings are presumptively “open” in Canada subject only to when it is shown that “disclosure would subvert the ends of justice or unduly impair its proper administration.” Toronto Star, at para. 4. [Emphasis in original.]