Vancouver Sun (Re)

Vancouver Sun (Re)
Collection
Supreme Court Judgments
Date
2004-06-23
Neutral citation
2004 SCC 43
Report
[2004] 2 SCR 332
Case number
29878
Judges
McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 29878
Decision Content
Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43
The Vancouver Sun Appellant
v.
Attorney General of Canada,
Attorney General of British Columbia,
“The Named Person”, Ajaib Singh Bagri and
Ripudaman Singh Malik Respondents
and
Attorney General of Ontario Intervener
Indexed as: Vancouver Sun (Re)
Neutral citation: 2004 SCC 43.
File No.: 29878.
2003: December 10; 2004: June 23.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.
on appeal from the supreme court of british columbia
Criminal law — Terrorism — Investigative hearings — Open court principle — Level of secrecy applicable to judicial investigative hearing proceedings — Whether Crown’s application for order for investigative hearing properly heard in camera — Whether existence of order for investigative hearing ought to have been secret — Whether hearing for determining constitutional validity of investigative hearing provision and validity of order for investigative hearing should have been conducted in camera — Whether investigative hearing must be held in camera — Applicability of Dagenais/Mentuck test — Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
B and M were jointly charged with several offences in relation to the explosion of Air India Flight 182 and the intended explosion of Air India Flight 301. Shortly after the beginning of their trial, the Crown brought an ex parte application seeking an order that a Named Person, a potential Crown witness at the Air India trial, attend a judicial investigative hearing for examination pursuant to s. 83.28 of the Criminal Code . The application judge granted the order and set a number of terms and conditions to govern the conduct of the investigative hearing, among others, the hearing was to be conducted in camera and notice of the hearing was not to be given to the accused in the Air India trial, to the press or to the public. Counsel for the accused became aware of the proceedings and the application judge held that they could make submissions on the validity of the initial order to the judge presiding over the s. 83.28 hearing. The presiding judge began to hear the accused’s submissions and a challenge to the constitutional validity of s. 83.28 by the Named Person in camera. A reporter of the Vancouver Sun, who had recognized lawyers from the Air India trial entering a closed courtroom, was denied access to the proceedings. The Vancouver Sun filed a notice of motion before the hearing judge seeking an order that the court proceedings be open to the public and that its counsel and a member of its editorial board, upon filing an undertaking of confidentiality, be provided with access to the pleadings and all materials from the proceedings to date. Prior to hearing the motion, the hearing judge concluded, in camera, that the initial s. 83.28 order had been validly issued and that s. 83.28 was constitutionally sound. She varied the initial order to permit counsel for the accused to attend the investigative hearing and examine the Named Person under certain conditions. She ordered that her judgment was to be sealed until the conclusion of the hearing or the making of any contrary order of the court. When the courtroom was finally opened to the public, the hearing judge delivered, in open court, a synopsis of her reasons for judgment. The Vancouver Sun then made its motion, which was dismissed. The Vancouver Sun was granted leave to appeal to this Court from the order dismissing its motion.
Held (Bastarache and Deschamps JJ. dissenting in part): The appeal should be allowed in part and the order made by the hearing judge varied.
Per McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and Fish JJ.: Section 83.28 of the Criminal Code must be interpreted consistently with the Preamble to the Anti-terrorism Act and the fundamental characteristics of a judicial process, including the open court principle. This principle, a hallmark of democracy and a cornerstone of the common law, guarantees the integrity of the judiciary and is inextricably linked to the freedom of expression guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms . The open court principle, which should not be presumptively displaced in favour of an in camera process, extends to all judicial proceedings, and the Dagenais/Mentuck test should be applied to all discretionary judicial decisions that limit freedom of expression by the press.
In the context of s. 83.28 , one must distinguish between an application for an investigative hearing and the holding of that hearing. The application for an order that such a hearing be held to gather information is procedurally similar to the application for a search warrant or for a wiretap authorization. Section 83.28(2) provides that applications are ex parte, and by their nature, they must be in camera. There is no express provision, however, for any part of the investigative hearing to be in camera. This hearing requires full judicial participation in the conduct of the hearing itself, and the proper balance between investigative imperatives and openness will best be achieved through the discretion granted to judges to impose terms and conditions on the conduct of a hearing under s. 83.28(5)(e). In exercising that discretion, judges should reject the presumption of secret hearings. Parliament chose hearings of a judicial nature and they must contain as many of the guarantees and indicia that come from judicial involvement as is compatible with the task at hand. The presumption of openness should thus be displaced only upon proper consideration of the competing interests at every stage of the process. The existence of an order, and as much of its subject‑matter as possible, should be made public unless, under the balancing exercise of the Dagenais/Mentuck test, secrecy becomes necessary.
In this case, the level of secrecy was unnecessary. While the s. 83.28(2) application was properly heard ex parte and in camera, there was no reason to keep secret the existence of the order or its subject-matter. The identity of the Named Person was properly kept confidential in light of the position taken by the Named Person at that stage, but that should have been subject to revision by the hearing judge. Since a potential Crown witness in the Air India trial was the subject of the investigative order, third party interests ought to have been considered and notice should have been given promptly to counsel for the accused in the Air India trial. As much information about the Named Person’s constitutional challenge as could be revealed without jeopardizing the investigation should have been made public, subject, if need be, to a total or partial publication ban. The constitutional challenge should not have been conducted in camera since much of it could have been properly argued without the details of the information submitted to the application judge being revealed.
The Named Person now takes the position that the investigative hearing should be public, and the only factors now favouring secrecy relate to the protection of an ongoing investigation or other vital but unstated reasons. In a case in which so much of the information relating to the offence is already in the public domain, and in which recourse to an investigative hearing is sought in the midst of an ongoing non‑jury trial, the case for extensive secrecy is a difficult one to make and was not made out here. Accordingly, the name of the Named Person should be made public and the order made by the hearing judge should be varied so that the investigative hearing is held in public, subject to any order of the hearing judge that the public be excluded and/or that a publication ban be put in place regarding aspects of the anticipated evidence to be given by the Named Person. At the end of the investigative hearing, the hearing judge should review the need for any secrecy and release publicly any gathered information that can be made public without unduly jeopardizing the interests of the Named Person, third parties or the investigation.
Per LeBel J.: Subject to the comments in Application under s. 83.28 of the Criminal Code (Re), there is agreement with the reasons of the majority and with their proposed disposition.
Per Bastarache and Deschamps JJ. (dissenting in part): Although openness of judicial proceedings is the rule and covertness the exception, where the rights of third parties would be unduly harmed and the administration of justice rendered unworkable by the presence of the public, a court may sit in camera. Such is normally the case for investigative proceedings under s. 83.28 of the Criminal Code . There is a legitimate law enforcement interest in maintaining the confidentiality of a witness’s identity and testimony, since the premature disclosure of information about a terrorism offence would compromise and impede the very investigation of the information gathered at the hearing and would normally render the s. 83.28 proceedings ineffective as an investigative tool. The police cannot gather information and act upon it at the same time it is disseminated to the public and the media. With respect to third parties, the confidentiality of the investigative hearing will protect the innocent from unreliable and untruthful testimony, and confidentiality will encourage witnesses to come forward and be honest. Furthermore, the disclosure of a witness’s identity may place that person at serious risk of harm from suspects or their allies. The same can be said for third parties identified by the witness as having information to provide. Without knowing what information will be revealed at the investigative hearing, it is not possible to evaluate the risk to third parties’ rights and to the proper administration of justice. Consequently, the Dagenais/Mentuck test cannot guide a judge’s discretion under s. 83.28 to order an in camera investigative hearing. Under that test, a convincing evidentiary basis for denial of access is generally necessary to rebut the presumption of open courts. This framework is not appropriate because it is only after the information and evidence has been gathered by the Crown at the investigative hearing that the presiding judge will be able to balance the competing interests at stake and release non-prejudicial information. Since openness is the presumption, the person who wishes to deny the right of public access after the investigative hearing has the burden of proof and must satisfy the Dagenais/Mentuck test.
The fact that the investigative hearing was about the constitutional validity of s. 83.28 did not make the open court principle more compelling, because the constitutional challenge could not realistically be separated from the actual investigative hearing. Nor would advance notice to the media have served any useful purpose.
Cases Cited
By Iacobucci and Arbour JJ.
Referred to: Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42, aff’g [2003] B.C.J. No. 1749 (QL), 2003 BCSC 1172; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76; R. v. Reyat, [1991] B.C.J. No. 2006 (QL); Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Scott v. Scott, [1913] A.C. 417; Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Oakes, [1986] 1 S.C.R. 103; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002 SCC 41; R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75.
By LeBel J.
Referred to: Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42.
By Bastarache J. (dissenting in part)
Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Southam Inc. v. Coulter (1990), 60 C.C.C. (3d) 267; R. v. A, [1990] 1 S.C.R. 992; Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60; Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42.
Statutes and Regulations Cited
Anti-terrorism Act, S.C. 2001, c. 41 , Preamble.
Canadian Charter of Rights and Freedoms, ss. 2 (b), 7 .
Criminal Code, R.S.C. 1985, c. C-46, ss. 2 , 83.28 [ad. 2001, c. 41, s. 4], 83.31, 83.32(1), 486(1).
Authors Cited
Burton, John Hill, ed. Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham, With an Outline of His Opinions on the Principal Subjects Discussed in His Works. Edinburgh: William Tait, 1843.
APPEAL from a judgment of the British Columbia Supreme Court, [2003] B.C.J. No. 1992 (QL), 2003 BCSC 1330, dismissing an application for access to the proceedings and for a declaration that proceedings should not be in camera. Appeal allowed in part, Bastarache and Deschamps JJ. dissenting in part.
Robert S. Anderson and Ludmila B. Herbst, for the appellant.
George Dolhai and Bernard Laprade, for the respondent the Attorney General of Canada.
Dianne Wiedemann and Mary T. Ainslie, for the respondent the Attorney General of British Columbia.
Kenneth Westlake, Howard Rubin and Brian A. Crane, Q.C., for the respondent the “Named Person”.
William B. Smart, Q.C., and Brock Martland, for the respondent Ripudaman Singh Malik.
Michael A. Code and Jonathan Dawe, for the respondent Ajaib Singh Bagri.
Michael Bernstein and Sandy Tse, for the intervener.
The judgment of McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and Fish JJ. was delivered by
Iacobucci and Arbour JJ. —
I. Introduction
1 This appeal is a companion to Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42 (the “constitutional appeal”), released concurrently. For a comprehensive review of all of the issues on the constitutionality and application of s. 83.28 of the Criminal Code, R.S.C. 1985, c. C-46 (as amended by the Anti-terrorism Act, S.C. 2001, c. 41 ), the constitutional appeal should be read first.
2 The judicial investigative hearing provided for in s. 83.28 of the Code is a procedure with no comparable history in Canadian law. It provides essentially that a peace officer, with the prior approval of the Attorney General, may apply ex parte to a judge for an order for “the gathering of information”. The gathering of information is in relation to a terrorism offence, which is described in s. 2 of the Code. The information to be gathered relates both to the circumstances of the offence and the whereabouts of possible suspects. If satisfied that proper grounds have been established, the court may order the attendance of a person for examination under oath before a judge, and the person must remain in attendance and answer questions put to him or her by the Attorney General or his agent. Although the person who is the subject of the order cannot refuse to answer a question on the ground that it may incriminate him or her or subject him or her to any proceeding or penalty, his or her answers receive full direct and derivative use immunity. The person has the right to retain and instruct counsel, and the judge has a wide discretion to impose terms and conditions to protect the person named in the order, third parties, as well as the integrity of ongoing investigations.
3 In our view, this unique judicial procedure must be interpreted and applied in light of the two following principles:
1. The interpretation of s. 83.28 must be guided by the Preamble to the Anti-terrorism Act , which amended the Criminal Code to include s. 83.28 . The Preamble stresses the imperatives of an effective response to terrorism as well as a continued commitment to the values and constraints of the Canadian Charter of Rights and Freedoms ;
2. Section 83.28 should be interpreted in a manner consistent with the fundamental characteristics of a judicial process insofar as the section contemplates a judicial proceeding.
4 The issue in this appeal deals with the level of secrecy with which the judicial investigative hearing was conducted. We have concluded that the open court principle is a fundamental characteristic of judicial proceedings, and that it should not be presumptively displaced in favour of an in camera process. The need to close the courtroom doors for the whole or parts of the judicial investigative hearing is governed by the principles expressed in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76.
II. The Facts
5 The judicial investigative hearing relates to two alleged acts of terrorism that occurred on June 23, 1985. An explosion caused the deaths of two baggage handlers and injured four others at the Narita Airport in Japan. A second explosion caused Air India Flight 182 to crash off the west coast of Ireland, causing the death of all 329 passengers and crew.
6 On February 4, 1988, the first accused, Inderjit Singh Reyat, was arrested in England where he was living with his family. Mr. Reyat was extradited to Canada on December 13, 1989, to face a number of charges relating to the explosion at Narita Airport. On May 10, 1991, he was convicted on seven counts: R. v. Reyat, [1991] B.C.J. No. 2006 (QL) (S.C.).
7 On October 27, 2000, Ripudaman Singh Malik and Ajaib Singh Bagri were jointly charged with respect to both explosions and the intended explosion of Air India Flight 301. A few months later, on March 8, 2001, a direct indictment was filed against the accused, Mr. Malik and Mr. Bagri, and on June 5, 2001, a new indictment was filed, adding a third accused, Mr. Reyat. Mr. Reyat plead guilty on February 10, 2003, to a new indictment that charged him with aiding or abetting the construction of the explosive device that was placed on Air India Flight 182. He was sentenced to five years imprisonment in addition to the time already spent in custody.
8 Following Mr. Reyat’s guilty plea to a charge of manslaughter in February 2003, Mr. Malik and Mr. Bagri re-elected, before Josephson J. of the Supreme Court of British Columbia, to be tried by a judge alone. The trial of Mr. Malik and Mr. Bagri (the “Air India Trial”) commenced on April 28, 2003 and continues to this date.
9 On May 6, 2003, the Crown applied to a judge ex parte for a s. 83.28 order to gather information regarding the Air India offences from the Named Person. Dohm A.C.J. of the British Columbia Supreme Court issued the s. 83.28 order for a judicial investigative hearing on the strength of an affidavit by a member of the RCMP’s Air India Task Force. He directed the hearing to be held in camera and no notice was given to the accused in the Air India Trial, to the press, or to the public. He also prohibited the Named Person from disclosing any information or evidence obtained at the hearing.
10 Sometime prior to May 20, 2003, when the hearing was to be held, counsel for Mr. Malik and Mr. Bagri fortuitously became aware of the order and advised Dohm A.C.J. that they wished to make submissions. The Named Person retained counsel, and on June 16, 2003, Dohm A.C.J. was advised that the Named Person wished to challenge the constitutional validity of s. 83.28 . Dohm A.C.J. directed that, seven days later, all submissions be heard by Holmes J. The constitutional challenge to s. 83.28 and the application to have the hearing order of Dohm A.C.J. set aside commenced on June 23, 2003. Neither the public nor the press was informed.
11 On June 27, 2003, the Air India Trial adjourned for the summer. That same day, Ms. Bolan from the Vancouver Sun recognized lawyers from the Air India trial and attempted to follow them into a closed courtroom where in camera proceedings were taking place. The trial list disclosed that “R v. I.*(conference)” was taking place before Holmes J. in courtroom 33. Ms. Bolan contacted counsel for the Vancouver Sun who knocked on the door of courtroom 33. Counsel was informed by a sheriff that the judge would not entertain a motion at that time for the proceedings to be opened to the public.
12 The Vancouver Sun then filed a Notice of Motion and a letter setting out the background with the Supreme Court of British Columbia and asked for an early date for its motion to be heard. The motion sought an order that counsel for the appellant and a member of the Vancouver Sun’s editorial board, upon filing an undertaking of confidentiality, be provided with access to the pleadings and all materials from the proceedings to date and for an order that the court proceedings be open to the public. The Vancouver Sun was informed, on July 3, 2003, that Holmes J. would hear its application on July 23, 2003.
13 The hearing before Holmes J. continued in camera, and on July 21, 2003, she issued her reasons dismissing the application to set aside the s. 83.28 judicial investigative hearing. She did, however, vary the order of Dohm A.C.J. to allow counsel for Malik and Bagri to attend the investigative hearing with the right to cross-examine the Named Person, subject to the restriction that any information received was to be kept confidential by counsel and was not to be shared with the two accused. The Named Person immediately applied to Holmes J., who, on July 22, 2003, stayed the investigative hearing to September 2, 2003, so that the Named Person could seek leave to appeal to this Court. None of this was known to the public or press.
14 On July 22, 2003, the Vancouver Sun received a call from the registry of the British Columbia Supreme Court indicating that the hearing of its application had been delayed to 10 a.m. the following day, apparently to allow the s. 83.28 proceedings to continue in camera earlier in the morning. When the courtroom was finally opened to the public, the Vancouver Sun made its application to be allowed further access to pleadings and proceedings on the filing of an undertaking of confidentiality and for a declaration that s. 83.28 proceedings should not be in camera. The application was dismissed by Holmes J. on July 24, 2003: [2003] B.C.J. No. 1992 (QL), 2003 BCSC 1330.
15 Immediately prior to Vancouver Sun’s application, Holmes J. delivered, in open court, a synopsis of her reasons for judgment dated July 21, 2003 in which she set out that the hearing before her had involved the constitutional validity of s. 83.28 and the validity of a s. 83.28 order for a judicial investigative hearing. Holmes J. gave a synopsis because the reasons for judgment were sealed. She also revealed that the questioning of the Named Person had not yet commenced. It was at this point that the appellant learned that the British Columbia Supreme Court had been involved in the first-ever application by the Crown under s. 83.28 of the Criminal Code for an order requiring a witness to attend a judicial investigative hearing. The appellant contends that but for serendipity and their persistence, no “synopsis” would have been released and the existence of proceedings under s. 83.28 would not have been made public.
16 The synopsis of reasons for judgment dated July 21, 2003, [2003] B.C.J. No. 1749 (QL), 2003 BCSC 1172, set out that “[t]he proceedings concerned the interpretation, application, and constitutionality of the new s. 83.28 of the Criminal Code , which provides for investigative hearings in relation to terrorism offences, as now defined in s. 2 of the Code” (para. 1). Holmes J. then explained that an order had been issued under s. 83.28 for a judicial investigative hearing as part of the ongoing Air India Investigation but that the Named Person who was required to attend was neither a suspect nor an accused. She summarized her findings that the order was validly issued and constitutionally sound; that counsel for Mr. Malik and Mr. Bagri would participate in the investigative hearing because of the unusual circumstance that the Air India Trial was underway; the hearing might have an incidental effect on the Air India Trial but the predominant purpose of the hearing is to further the ongoing investigation; the hearing is subject to restrictions protecting the privacy and other rights and interests of the Named Person and the integrity of the investigation.
17 After delivering her synopsis, Holmes J. stated that the s. 83.28 proceeding had been adjourned so that the Named Person could seek leave to appeal to this Court. On July 25, 2003, LeBel J. ordered that the Supreme Court of Canada file be sealed and that the application for leave be expedited. Leave was granted on August 11, 2003, to appeal the order of Holmes J. of July 21, 2003.
18 On October 6, 2003, the Vancouver Sun was granted leave to appeal the July 24, 2003 order of Holmes J. dismissing its application for access to the materials in the courts below: [2003] 2 S.C.R. xi. The Vancouver Sun, the National Post, and Global Television Network Inc. were also given intervener standing in the constitutional appeal, limited to issues of media access. Submissions were also made at the October 6 hearing on whether all or part of the constitutional appeal could be opened to the public and the media.
19 At the October 6, 2003 leave hearing, the Named Person indicated the constitutional appeal could be conducted in public. The Attorney General of British Columbia took the position that parts of the appeal, constituting stand-alone issues, could be held in public: the constitutionality of s. 83.28 of the Criminal Code , the role of the judge, and retrospective application of the provision. Mr. Bagri submitted that grounds of appeal relating to self-incrimination and privacy under s. 7 of the Charter , judicial independence, and retrospectivity could be heard in public.
20 This Court heard the constitutional appeal on December 10 and 11, 2003, in its entirety in open court subject to a number of restrictions specified at the start of the oral hearing by the Chief Justice. During the oral arguments, counsel refrained from mentioning the name and gender of the Named Person, any facts that could identify this person, and any material supporting the order for an investigative hearing. In addition, the hearing was not broadcast, contrary to the usual practice of the Court.
III. Analysis
21 The issue on appeal is the level of secrecy that should apply to the application for and conduct of a judicial investigative hearing under s. 83.28 of the Criminal Code .
A. The Parameters of the Open Court Principle
22 Section 83.28 of the Criminal Code , which provides for the judicial investigative hearing, will cease to apply at the end of the fifteenth sitting day of Parliament after December 31, 2006, unless its application is extended by resolution passed by both Houses of Parliament: Criminal Code, s. 83.32(1) . Until that time, the Attorney General must make accessible to the public an annual report on its use: Criminal Code, s. 83.31 . The sunset clause and annual reporting requirements underscore the unusual and serious nature of the judicial investigative hearing. It is therefore important to allow the public to scrutinize and discuss the reasoning and deliberations of a Court when it deals with a challenge to the constitutionality of that proceeding. It is also important to allow the legal profession and the public at large to observe how such a procedure is actually used, as long as this can be done, in full or in part, without undue injury to the administration of justice or without frustrating the purpose of s. 83.28 .
23 This Court has emphasized on many occasions that the “open court principle” is a hallmark of a democratic society and applies to all judicial proceedings: Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at p. 187; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at paras. 21-22; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326. “Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized”: Edmonton Journal, supra, at p. 1336.
24 The open court principle has long been recognized as a cornerstone of the common law: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 21. The right of public access to the courts is “one of principle . . . turning, not on convenience, but on necessity”: Scott v. Scott, [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438. “Justice is not a cloistered virtue”: Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 (P.C.), per Lord Atkin, at p. 335. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”: J. H. Burton, ed., Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115.
25 Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22. 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. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.
26 The open court principle is inextricably linked to the freedom of expression protected by s. 2 (b) of the Charter and advances the core values therein: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 17. The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Edmonton Journal, supra, at pp. 1339-40. The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions: Edmonton Journal, at pp. 1339-40. Consequently, the open court principle, to put it mildly, is not to be lightly interfered with.
27 Furthermore, the principle of openness of judicial proceedings extends to the pretrial stage of judicial proceedings because the policy considerations upon which openness is predicated are the same as in the trial stage: MacIntyre, supra, at p. 183. Dickson J. found “it difficult to accept the view that a judicial act performed during a trial is open to public scrutiny but a judicial act performed at the pretrial stage remains shrouded in secrecy”: MacIntyre, at p. 186.
28 This Court has developed the adaptable Dagenais/Mentuck test to balance freedom of expression and other important rights and interests, thereby incorporating the essence of the balancing of the Oakes test: Dagenais, supra; Mentuck, supra; R. v. Oakes, [1986] 1 S.C.R. 103. The rights and interests considered are broader than simply the administration of justice and include a right to a fair trial: Mentuck, supra, at para. 33, and may include privacy and security interests.
29 From Dagenais and Mentuck, this Court has stated that a publication ban should be ordered only 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.
(Mentuck, supra, at para. 32)
30 The first part of the Dagenais/Mentuck test reflects the minimal impairment requirement of the Oakes test, and the second part of the Dagenais/Mentuck test reflects the proportionality requirement. The judge is required to consider not only “whether reasonable alternatives are available, but also to restrict the order as far as possible without sacrificing the prevention of the risk”: Mentuck, supra, at para. 36.
31 While the test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter , whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuck, supra); is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002 SCC 41). The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), at para. 71.
B. The Nature of the Judicial Investigative Hearing Under Section 83.28
32 We have reproduced the relevant statutory provisions of the Criminal Code in the appendix to these reasons. From the perspective of the open court principle, the proceedings under s. 83.28 can be usefully broken down into three steps:
(a) the ex parte application under s. 83.28(2) for an order for the gathering of information;
(b) the hearing itself, under the terms and conditions contemplated in s. 83.28(5)(e); and
(c) the post‑hearing stage, at which non‑public information may be released publicly, again subject to the terms and conditions in s. 83.28(5)(e).
Section 83.28 does not expressly provide for any part of the judicial investigative hearing to be held in camera.
33 Competing views about the proper interpretation of the provision as a whole are as follows: on the one hand, the appellant argues that the open court principle applies to the entire process and should only be displaced in accordance with the Dagenais/Mentuck test. The respondents, on the other hand, submit that when Parliament enacted the section, it was entitled to rely on this Court’s jurisprudence to the effect that investigative processes, even if they involve a judicial officer, are presumptively held in camera (referring, for example to an application for a search warrant: MacIntyre, supra).
34 The validity of the respondents’ submission rests on the assumption that the s. 83.28 hearing is an investigative measure akin to the issuance of a search warrant. This assumption is only partly accurate because one must distinguish between an application for a s. 83.28 judicial investigative hearing and the holding of the judicial investigative hearing. The application for an order that a judicial investigative hearing be held is procedurally similar to the application for a search warrant or for a wiretap authorization. Section 83.28(2) provides that the application, made by a peace officer with prior consent of the Attorney General (83.28(3)), is ex parte. By its very nature, this application must be presented to a judge in camera.
35 In that in camera procedure, the judge is directed to determine, for a past offence under s. 83.28(4)(a), whether (1) there are reasonable grounds to believe that a terrorism offence has been committed; and (2) information about the offence, or about a suspect, is likely to be obtained by the holding of a judicial investigative hearing. The judge may also determine, for a future offence under s. 83.28(4)(b), whether (1) there are reasonable grounds to believe that a terrorism offence will be committed; (2) that the person has information about the offence or a third party who may commit that offence; and (3) reasonable attempts have already been made to obtain that information from the person.
36 This first step of the process is akin to the application for the issuance of a search warrant. Although that application is heard by a judge, the imperatives of the investigation require that it not be made public: MacIntyre, supra, at pp. 177-78. The same is true of a wiretap application, and, in most cases, of an application for a DNA warrant (although, in R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60, we left open the discretion of a judge to hold a contested hearing on the appropriateness of issuing a DNA warrant). In any event, since that process must be held ex parte, it follows that in that context it could not be held in open court: see Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75.
37 The real issue is whether, because of the investigative nature of the judicial hearing, it too must, by necessity, be presumptively held in secret. In that respect, the analogy to the execution of search warrants, as opposed to their issuance, is not particularly helpful. It is true that search warrants are not only issued, but executed in secret. On the other hand, they are not executed by judges. The judicial role consists of ensuring that there are reasonable grounds to authorize a particular police action. In contrast, the judicial investigative hearing requires full judicial participation in the conduct of the hearing itself.
38 The proper balance between the investigative imperatives and the judicial assumption of openness is best achieved by a proper exercise of the discretion granted to judges to impose terms and conditions on the conduct of the hearing under s. 83.28(5)(e). In exercising that discretion, judicial officers should reject the notion of presumptively secret hearings. This conclusion is supported by the choice of Parliament to have investigative hearings of a judicial nature; these hearings must contain as many of the guarantees and indicia that come from judicial involvement as is compatible with the task at hand.
39 One such guarantee is a presumption of openness, which should only be displaced upon proper consideration of the competing interests at every stage of the process. In that spirit, the existence of an order made under s. 83.28, and as much of its subject‑matter as possible should be made public unless, under the balancing exercise of the Dagenais/Mentuck test, secrecy becomes necessary. Similarly, once a search warrant has been executed and something has been found, the necessity for secrecy has abated and continued limits on public accessibility should only be “undertaken with the greatest reluctance”: MacIntyre, supra, at p. 189.
40 If the existence of the order is made public, the issuing judge, acting under s. 83.28(5)(e), would determine, still under the guidance of the Dagenais/Mentuck test, whether any information ought to be withheld from the public. For example, even though there may be no reason to hide an order for a judicial investigative hearing in relation to an identified alleged terrorist act,