The Importance of the Principle of Open Court

St._Peter_and_St._Paul's_Church_1,_Vilnius,_Lithuania_-_Diliff

In the decision, Danso v Bartley, 2018 ONSC 4929, Justice Myers discusses the law regarding publication bans. Publication bans are rarely granted.

In Danso v Bartley, Ms. Bartley was claiming that Mr. Danso was the father of her child. In response, Mr. Danso launched a lawsuit. Mr. Danso claimed that he did not have sex with her. He requested a paternity test and a publication ban on the lawsuit, amongst other things. He claimed that publication of this lawsuit would damage his reputation. Danso is a religious leader. He operates 17 churches, including a chapter in Toronto.

At para 30, Justice Myers writes that when someone asks to seal court records or to prevent publication of court proceedings, it affects the principle of open courts. “The open courts principle protects the public’s right to know about court proceedings in Canada.” A public trial allows the public to scrutinize a court proceeding.  It is difficult for people to attend court. Those who cannot attend often rely on the press to inform them about the evidence presented, the arguments made, and the comments by the judge.  “The open court principle has been described as ‘the very soul of justice’, guaranteeing that justice is administered in a non-arbitrary manner”.

Justice Myers did not grant a publication ban. At para 42, he explains that it is in the public interest that discussions be based on facts rather than rumours and allegations. “Suppression of truth and public court proceedings after widespread attention across the county does not protect anyone. Mr. Danso should be free to respond to whatever is already affecting his reputation in his congregations. If members of a congregation know of the paternity issue, I cannot see any harm to the members or to the congregation of knowing that Mr. Danso sued for a DNA test and the DNA test proves the allegation of paternity is true.”

Justice Myers further explains that preventing the proceedings from being public undermines why courts have the power to make orders. Part of the reason courts’ have the power to make orders is to allow the public to review and scrutinize court proceedings. Myers J. eloquently writes that “Preventing this use of court proceedings deprives the public of a vital benefit that underpins society’s tacit agreement to empower civil courts.”

(Views are my own and do not represent the views of any organization.)

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