Open Courts, Privacy and Equality in a Digital Era: The Supreme Court of Canada’s 2021 Open Court Jurisprudence

Abstract

This article analyzes the Supreme Court of Canada’s 2021 open court jurisprudence: Sherman Estate v. Donovan, Canadian Broadcasting Corp. v. Manitoba, and MediaQMI v. Kamel.

At the heart of our analysis is the exploration of several more latent dynamics found in the cases which, in our view, pose foundational and continuing challenges for open court jurisprudence. Underlying MediaQMI are concerns about the appropriate level of party control over court records. CBC v. Manitoba invites questions about who constitutes the “media” with the increasing democratization and digitalization of information exchange. In Sherman, the concept of privacy—rooted in the section 8 notion of a “biographical core”— encounters tensions with the “default to openness” and potential fluidity that characterizes the open court context.

We also identify two broader themes. First, we raise questions as to whether the Court’s open court jurisprudence is “fit for purpose” in an increasingly digitized world of court operations and information exchange. Second, notwithstanding a body of scholarship advocating for equality-infused concepts of privacy, we contend that the Court does not sufficiently address how decisions about court record control, media access and privacy protections are likely to have a disproportionate impact on marginalized people, particularly in an increasingly digital context. We conclude that ultimately, the Court will need to squarely address the challenges posed by digitization and equality-related dynamics in its open court jurisprudence.

Keywords: open courts, privacy, equality, digitization, courts, Supreme Court of Canada