Essay Sample on Information and Privacy Law

The open justice principle according to Bosland and Gill (2014) p483-484 dictates that it is not only a matter of doing justice, but it should also be shown that it is being done manifestly and with no doubt. The principle lies at the core of common law administration of justice. The principle guides the aspects of procedure and process of making decisions and from there, results in the rules of open justice which the court is required to follow in ordinary circumstances. Usually, it is a requirement that the proceedings are conducted systematically and the decision of the court be made in an open court. It is also required that all the evidence be presented publicly to those in open court. No acts should be done to prevent or discourage the process of making judicial proceedings and reports which also include reports by the media. In some circumstances, courts can back off the open court in some matters that are sensitive for example family matters and sexual offense matters. It is only regarding some proceedings where the court states that it is required to have some concealment of evidence and gives strict non-publication orders. This paper seeks to argue in support of the protection of the identities of the parties to family law matters with publication bans.In the Court Services Division (2019) par. 2.2.8 gives a provision for publicly excluded proceedings that states that with authority from various sections of the Criminal Code. The members of the public may be wholly or in some part be excluded from the court proceedings which is also called 'in camera proceedings.' When the public is excluded from such a matter, they then cannot access any information or records in relation to the proceeding apart from when there is a court order. In my opinion, denial of the media to have access to some of these proceedings should not be a critical issue because a family matter is a private matter. Discussing it with other members of the society would only leave an individual who has been exposed to that extent with more stress and emotional suffering than they had before they decided to proceed to the court for remedy. Instead of acquiring that which they intended, they get more problem and suffering to that which existed before. It is like adding salt to injury.

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In the case Edmonton Journal v. Alberta (Attorney General)Where La Forest, L' Heuruex and Sopinka JJ who were of the dissenting part stated that the freedom of expression just like other rights is subject to having some limitations that in a democratic society they can be justified. The first issue that they addressed was about the privacy of an individual which is inclusive of their children and the witnesses involved in the matter, and the protection of the access to courts are part of the objectives that are in support of having a limitation on publishing the details of a marital dispute. The individual who goes to court is due to unavoidable circumstances forced to reveal quite a significant part of their private life. The media is allowed to attend such a matter which they have no interest or any relation to all that it will cause is harm that is incalculable to the individual and the rest of the members of his family. As opposed to the opinion by the other judges that it would help to raise discussions about how the court is dealing with various issues, since justice should be served openly, this would lead to the discouragement of people from seeking court relief in their matrimonial causes. The judges state that it would be a significant failure if the people who need a solution are not able to access it because the intimate private affairs would become known needlessly to the public for the sake of freedom of media, association and open access to justice.

Cameron J (2003) in her article where she referred to the case of Scott v Scott Lord Shaw of Dunfermline stated the reasons for privacy in proceedings of wardship. The three exceptions as to publicity in a matter were reported as where there is lunatic involved, suits affecting wards and where the court thinks that secrecy is of the essence in the proceeding. He said that it was needless to quote authority from legal, philosophical or historical writers. Earl Loreburn then came handy to support the third test and noted that where the public has been excluded with an admitted propriety, the principle underlying is that the administration of justice would not be practicable in the presence of the members of the public. The reason being that the case could not be effectively tried or the parties entitled to access justice would be hindered from doing so in court. The Court dealing with the matter should be bound by the general rile which they should apply using it as an exception. In the same matter, Viscount Haldane states that the divorce court inherited the power to conduct hearings in camera from Ecclesiastical Courts. He contended with the opinion of Bramwell B in H v C (1859) 29 LJ that the paramount objective id administering justice. He also stated that where a court hears a matter in camera, the reason is that it would be impracticable in the presence of public members. Lord Atkinson says that it is painful and humiliating to both witnesses and the parties in criminal matters. That because the right to access information and ensuring the administration of justice and that it is the best means to win public confidence and respect thus has to be endured. Concerning this it is only the public being considered but how about the victim?

Considering the ruling that was made in the case of A.T. v. Globe24h.comWhere it was held in court that the respondent had gone against the Personal Information Protection and Electronics Documents Act after he had used some information obtained from the Canadian Court on his website. This is a clear indication that allowing the press in a courtroom where personal matters are being discussed would lead to other issues arising. It was also discovered that the respondent had also used other information obtained from other courtrooms on his websites which were then left for view by all persons from all parts of the world since they were available for view by almost all individuals. It leaves a person then wondering whether banning the press from accessing the courtroom as various matters are being discussed especially family matters amounts to freedom of the press being infringed. They are abusing the right granted to them and using it for other purposes which then makes it unnecessary for them to be present. Howland stated that there are unspoken matters on the concept of open court and publicity, the right media to report what they have heard in the courtroom so that the public will have access to information that is going on in court to criticize should any impropriety occur. It was also considered that some offenses like committing sexual offenses are superordinate and would merit prohibition of the identity of the victim.

Having read the different opinions from the various judges, because most times it is the opinion of the public that is being considered t help in the determination of how the law is being applied. It is essential to look at the matters that are being exposed to the public as various judges have stated, exposing a matrimonial matter to the public would only worsen the situation other than making it better. What business does the public have in another person's matrimonial cause? It would only be a matter of making the two parties become the cause of ill talk in society. As a matter of fact what knowledge or information regarding how the court administers justice in matrimonial issues will only make people have fear to approach the courts where they have an issue that the court is required to determine. Where the court thinks that hearing the matter in open court is impracticable in administering justice and for the individual consideration of the right to privacy, family matters should not be heard in open court nor should the identity of the parties be exposed to have precedents.

Reference

A.T. v. Globe24h.com, [2017] 4 FCR 310, 2017 FC 114 (CanLII).Retrieved from https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html

Bosland and Gill (2014) The Principle of Open Justice and the Judicial Duty to Give Public Reasons.Retrieved from https://law.unimelb.edu.au/__data/assets/pdf_file/0010/1586989/382BoslandandGill2.p

Court Services Division (2019). Retrieved from https://www.attorneygeneral.jus.gov.on.ca/english/courts/policies_and_procedures/public_access/public_access_to_court_documentsEN.html

https://www.attorneygeneral.jus.gov.on.ca/english/courts/policies_and_procedures/public_access/public_access_to_court_documents-EN.html

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 retrieved from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/555/index.do

Scott V Scott: HL 5 May 1913.Retrieved from https://swarb.co.uk/scott-v-scott-hl-5-may-1913/

A.T. v. Globe24h.com, [2017] 4 FCR 310, 2017 FC 114 (CanLII).Retrieved from https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html