Victim Privacy and Open Justice 2.0: At the Frontiers of Change

The purpose of this update, commissioned by the Research and Statistics Division of the Department of Justice, is to review and report on changes to open court and victim privacy since 2003, the year of the Report. The update maintains symmetry with the structure of the Report in its review of Supreme Court of Canada jurisprudence and legislative changes since then. By 2003, the Supreme Court strongly endorsed and protected open court, adopting a strong standard of justification that required a sound evidentiary basis to warrant limits to principle. The “second generation” jurisprudence is consistent with that conception of openness, but notable for accepting restrictions more readily and, in some instances, explicitly on grounds of a victim or participant’s vulnerability.\nMeanwhile, that rationale is both pronounced and explicit in significant legislative reforms that introduced a complex framework of testimonial aids in the Criminal Code – for victims, witnesses, and some “justice system participants’ – and a Canadian Victims Bill of Rights. Section 486’s testimonial aids subtract, in ways, from a pristine concept of open justice, but do so to serve goals of accessible justice for criminal process participants and effective law enforcement. Significantly, the discretionary availability of some accommodations is contingent on multi-factor balancing, set out in the Code, that must take into account competing interests, including openness and the rights of the accused.\nThe update could have ended there, but would not be complete without discussion of two “frontier” developments: the impact of technology, and transformation of public and cultural discourse about sexual offending. First, the challenges to openness posed by technology are briefly identified and analyzed: electronic court records and documents; the electronic courtroom; and electronic publicity and publication bans. It is unclear, at present, whether technology is a threat or boon to openness and access to justice values, and it may be both at once. This interface is and will continue to be a rapidly evolving area, requiring the law to respond to ongoing technological change.\nSecond, unexpected and major shifts in the narrative of sexual transgression must be seen as a game-changing development for victims of such offences and their role in the criminal justice system, including their privacy interests. One of the more obvious and interesting points about the three watershed events discussed – #BeenRapedNeverReported, Unfounded, #MeToo – is that the transformation in discourse was for the most part driven by forces connected to but outside the formal processes of law. Communications in the form of social media activism and investigative journalism were at the forefront of change. Through the momentum of these broad-based movements, the social, psychological and cultural environment of sexual transgression underwent fundamental change, with positive results for the reporting of offences, their handling by Canadian police forces, and victim perceptions of their status in criminal justice and willingness to step forward on their own and in solidarity with others, whether anonymously or not.\nWhile the basic concept of open justice remains static, the legislative forum, technology, and an alternative narrative of sexual transgression have shifted. For now, the underlying values and doctrinal standards in place under the early Charter jurisprudence have stood the test of time. Whether and in what ways open justice must adapt, in an environment of unpredictable change, remains to be seen.

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