The Right To Privacy Versus The Right To Information From Administrative Tribunals

"Openness fosters the fair administration of justice and, like a watchdog, protects citizens from arbitrary state action."

- Justice Deschamps for the majority in Canadian Broadcasting Corp. v Canada (Attorney General) [2011] 1 SCR 19.

1. Introduction

   The principle of open justice has long been required by the common law. It is also entrenched in section 2(b) of the Charter of Rights and Freedoms ("Charter") ("[e]veryone has the following fundamental freedoms: ...(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media communication."). The press and the public enjoy rights of free speech and expression under the Charter and can rely on the Charter to pursue access to criminal and regulatory hearings and to information related thereto.

   It is important to remember, however, that the right to free speech and expression must be interpreted in a manner that does not interfere with the right to a fair trial found in section 11(d) of the Charter and the right to privacy encompassed in sections 7 and 8 of the Charter.

   Section 24 of the Charter sets forth the remedy available to anyone if a breach of their Charter rights is established. However, Canadian jurisprudence is still struggling to establish the appropriate remedy under the Charter in regulatory and administrative environments.

2. Common Law & Charter of Rights and Freedoms

   Much of the judicial dialogue regarding one's right to privacy in a litigation environment arises in criminal and family law proceedings. The courts and the legislature have consistently upheld the importance of protecting and concealing victim identities or information that could have reputational implications during a family law proceeding. However, a more controversial area of this debate is whether regulatory and administrative tribunals should bear similar obligations and limitations.

   Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835 ("Dagenais") and R v Mentuck, [2001] 3 SCR 442 ("Mentuck")

   Arguably the most significant decisions in the debate between privacy and open justice are the opinions of the Supreme Court of Canada in Dagenais and Mentuck. Both cases involved requests for publication bans by the defendants in criminal trials. Chief Justice Lamer, for the majority, wrote that judges have a common law discretionary authority to impose publication bans on information revealed in a criminal trial, but, first, must balance competing rights such as freedom of expression and the right to a fair trial. In these cases, the Supreme Court of Canada developed the following two-part test:

   Is the ban necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alterative measures will not prevent the risk? Do the salutary effects of the ban outweigh the deleterious effects of the free expression of those affected by the ban? Vancouver Sun (Re), 2004 SCC 43 ("VancouverSun ")

   This Supreme Court of Canada further developed the Dagenais/Mentuck test in Vancouver Sun. This case involved an application by a newspaper for access to all materials filed in relation to an in camera examination of a potential Crown witness pursuant to section 83.28 of the Criminal Code. The Court held that proper balance between investigative objectives and the value of openness should be achieved through a discretion granted to judges to impose terms and conditions on the conduct of a hearing. The Court further declared that as much information about the nature of the order as could be revealed without jeopardizing the prosecution should be revealed to all parties subject to the total or partial publication ban, as applicable.

   The Supreme Court of Canada noted that the test outlined in Dagenais/Mentuck was not just applicable to publication bans, but also to discretionary judicial decisions or orders that threaten an infringement of a Charter right. Consequently, any decision of a regulatory or administrative tribunal that limits access to documents can trigger a Charter challenge based on the open courts principle. However, there is some Canadian jurisprudence that suggests administrative tribunals and regulatory bodies are not always required to maintain the same level of openness as a superior court.

   Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner), 2014 SCC 31

   This Supreme Court of Canada case involved a request for disclosure from the Ministry of Community Safety and Correctional Services of the number of registered sex offenders residing within the area designated by the first three digits of Ontario's postal codes. The...