On July 27th, the Federal Court of Appeal held that the Parole Board of Canada erred in denying the media access to recordings of its hearings.
The matter was about an application for copies of recordings of parole hearings involving notorious convicted criminals Paul Bernardo, William Shrubsall and Craig Monro. The Corrections and Conditional Release Act provides for parole hearings that the Supreme Court of Canada has said are inquisitorial in that the Board is bound to consider all evidence put before it in conducting a form of risk assessment. The Act also gives the public a presumptive right to attend hearings. The media can therefore (presumptively) attend and report on hearings, though the Act deems personal information in the recordings (and other documents on the record) not to be publicly available for for the purpose of the Access to Information Act and the Privacy Act.
The CBC relied on the open courts principle, though the Court ultimately determined the matter on administrative law grounds. It held the Board unreasonably reckoned with the odd scenario – that the media had already heard and reported on everything recorded even though it was deemed not to be publicly available – and erroneously refused to disclose the recordings “outright” based on an unreasonable amplification of the privacy risk. It suggested that there may be some privacy risks in providing access, but that they could be satisficed by imposing conditions on storage and republication.
As for the open courts principle, the Court accepted the following Board argument against application:
The Board says that it is not because its proceedings are inquisitorial – not adversarial – in that the Board is engaged in a risk assessment process in the course of which it receives information from Corrections Canada and submissions from the offender and victims. The offender is not opposed by a representative of the state, as is the case, for example, in a sentencing hearing. Similarly, the offender’s counsel, if they have one, has a limited role in Board hearings.
It also, however, modified and expanded the test for application, noting that the test should focus on the degree to which a tribunal presides over an adversarial proceeding rather than the procedural trappings of the proceeding. It explained:
It appears that, whatever other distinctions may exist between different kinds of administrative tribunals, the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle. It is the fact of adjudicating competing interests that imposes the duty of fairness and impartiality which gave rise to the description of some tribunals as quasi-judicial. In Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, such tribunals were described as adjudicative tribunals. The characteristic that gives rise to the application of the open court principle to an administrative tribunal is the presence of an adversarial process, as opposed to the formalities by which that adversarial process is conducted. In short, the open court principle applies to adjudicative tribunals.
The Court ordered the matter to be returned to the Board for reconsideration.
Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166 (CanLII).
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