What are we even doing here?

In CBC v. Named Person, 2024 SCC 21, a unanimous Supreme Court of Canada explained that, under the open court principle, “every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content” (¶28). While it may be “a hallmark of democracy and a cornerstone of the common law” (Re Vancouver Sun, 2004 SCC 43, ¶23), the constitutional status of the open court principle is murky. Despite the Court’s professed concern for the transparency of judicial proceedings, its own methods ensure that important constitutional questions remain obscure.

For decades, the Court has withheld from the open court principle the mantle of “unwritten constitutional principle” and has relied instead on indirect formulations, according to which it:

• “is protected by the constitutionally-entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy” (Sherman Estate v. Donovan, 2021 SCC 25, ¶1) or 
• “is understood to be constitutionalized under the right to freedom of expression at s. 2(b) of the Charter” (Sherman Estate, 2021 SCC 25 ¶39). 

These statements suggest a sort of reflected glory or heightened status by association, as if the open court principle has acquired a constitutional aura due not to its own merits but to its proximity to other, brighter lights in the constitutional firmament, such as freedom of expression, the rule of law, or democracy.

This uncertain status has not prevented the Court from invoking the open court principle in many cases across a wide range of issues, from informer privilege (CBC v. Named Person; Named Person v. Vancouver Sun, 2007 SCC 43) and publication bans (R. v. Mentuck, 2001 SCC 76; CBC v. Manitoba, 2021 SCC 33; Dagenais v. CBC, [1994] 3 SCR 835) to criminal court proceedings (Re Vancouver Sun, CBC v. New Brunswick (AG), [1996] 3 SCR 480) and various other journalistic matters (Edmonton Journal v. Alberta (AG), [1989] 2 SCR 1326; Lavigne v. Canada, 2002 SCC 53; Attorney General (Nova Scotia) v. Macintyre, [1982] 1 SCR 175; Denis v. Côté, 2019 SCC 44). 

In those cases, the Court has used the open court principle much like an unwritten constitutional principle: to modify the common law (Dagenais), to overturn court orders (CBC v. New Brunswick), to interpret the Criminal Code (Re Vancouver Sun), and even to interpret s. 2(b) of the Charter in a case that invalidated provincial legislation (Edmonton Journal). 

However, the Court has studiously avoided characterizing the open court principle as “constitutional” while also refraining from applying any other categorical label. For example, while the Court has described both privacy (Sherman Estate, ¶51) and the Official Languages Act (Lavigne, ¶23) as “quasi-constitutional,” it has not granted the open court principle even that peripheral rank. 

So what is the open court principle? And what difference does it make? The Court’s caginess suggests something serious (or at least interesting) is at stake. 

Perhaps more important than characterizing and classifying the open court principle is what this inquiry could reveal about the Court’s constitutional methods and models. For example, is constitutional status stretched across a spectrum or stacked in a hierarchy? The Court’s reasons suggest at least four possible constitutional states: not constitutional, quasi-constitutional, constitutionalized (i.e. protected by other entrenched rights), and constitutional. The boundary cases may seem familiar but the infra-marginal categories and their implications for the others remain mysterious.

In CBC v. Named Person, the Court described the open court principle as a “cardinal principle” (¶4) of “paramount importance to our democracy – an importance that is also reflected in the constitutional protection afforded to it in Canada” (¶1). The Court also acknowledged that it “has repeatedly affirmed that the open court principle, which is protected by the constitutionally entrenched right of freedom of expression, is a pillar of our free and democratic society” (¶27). Despite multiple references to constitutional protection and entrenchment, the Court did not refer to s. 2(b) of the Charter or any other provision of the Constitution. 

The Court was engaged in pure structural analysis, not constitutional interpretation. Structural analysis is a kind of gestalt theory according to which constitutional text simultaneously obscures and reveals the true Constitution. Justices performing structural analysis are like sculptors. They divine the purest form of the Constitution beneath its rough textual surface and then carve away the encrustations of history and politics to expose its essence. Structural analysis purports to reveal what was always there: the truth of our Constitution – principled, coherent, eternal? – implied imperfectly by the text, awaiting the patient eye and skilled hand of an expert. And thus the “basic structure” of our constitution emerges from 301 Wellington Street.

As demonstrated by Beetz J. in OPSEU v. Ontario: “There is no doubt in my mind that the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. In the words of Duff C.J. in Reference re Alberta Statutes, at p. 133, “such institutions derive their efficacy from the free public discussion of affairs….” and, in those of Abbott J. in Switzman v. Elbling, at p. 328, neither a provincial legislature nor Parliament itself can “abrogate this right of discussion and debate”. Speaking more generally, I hold that neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure” (¶157).

The open court principle also implicates “the free public discussion of affairs” and “this right of discussion and debate” which animate “this basic constitutional structure” that, prior to adoption of the Charter, was known as the implied bill of rights. For example:

• “There can be no doubt that the courts play an important role in any democratic society.  They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations.  The more complex society becomes, the more important becomes the function of the courts.  As a result of their significance, the courts must be open to public scrutiny and to public criticism of their operation by the public” (Edmonton Journal, p. 1336).
• “Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians” (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, ¶2).
• “Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings…The full and fair discussion of public institutions, which is vital to any democracy, is the raison d’être of the s. 2(b) guarantee. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press” (CBC v. New Brunswick, ¶23).
• “In opposition to the confidentiality order lies the fundamental principle of open and accessible court proceedings.  This principle is inextricably tied to freedom of expression enshrined in s. 2(b) of the Charter…The importance of public and media access to the courts cannot be understated, as this access is the method by which the judicial process is scrutinized and criticized.  Because it is essential to the administration of justice that justice is done and is seen to be done, such public scrutiny is fundamental. The open court principle has been described as “the very soul of justice”, guaranteeing that justice is administered in a non-arbitrary manner.” (Sierra Club, ¶52).

When expounding the open court principle, the Justices even refer to the same foundational “implied bill of rights” cases as Beetz J. cited in OPSEU:

• In Mentuck, a publication ban case, Iacobucci J. wrote for the Court: “As this Court recognized in Irwin Toy, “participation in social and political decision-making is to be fostered and encouraged,” a principle fundamental to a free and democratic society. See Switzman v. Elbling…Such participation is an empty exercise without the information the press can provide about the practices of government, including the police…there has always been and will continue to be a concern about the limits of acceptable police action.  The improper use of bans regarding police conduct, so as to insulate that conduct from public scrutiny, seriously deprives the Canadian public of its ability to know of and be able to respond to police practices that, left unchecked, could erode the fabric of Canadian society and democracy.” (¶51; see also Named Person v. Vancouver Sun, ¶87 (Lebel J., dissenting but not on this point)).
• Dissenting (but not on this point) in Edmonton Journal, La Forest J. wrote: “I am, of course, in agreement with the general sentiments of my colleague regarding the importance in a free and democratic society of freedom of expression as well as the concept of open courts.  I share with Duff C.J. the view that the “right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions”; see Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, at p. 133.  Equally, public scrutiny of the judicial branch of government is essential to a free society.  In all of this, I recognize as well the critical role of the press and other media in the broad dissemination of information and ideas in a complex modern society.  The Charter indeed expressly includes “freedom of the press and other media of communication” in its guarantee of freedom of expression.”

The Court’s analysis in these cases is tethered loosely – at best – to constitutional text. Irony flourishes absent that textual constraint: the reasons in Named Person v. CBC and so many other cases involving the open court principle are explicitly concerned with “maintaining the legitimacy of the justice system” (¶30):

• “What is in issue in this case is the maintenance of public confidence in the administration of justice and respect for the rule of law” (Named Person v. CBC, ¶89)
• “openness fosters the fair administration of justice and, like a watchdog, protects citizens from arbitrary state action…It therefore helps to maintain and to enhance public confidence in, and serves in a way as a guarantee of, the integrity of the court system.  To be able to provide adequate support for this multifaceted role of openness, journalists must have access to information relating to the courts and must be able to broadcast it as freely as possible.” (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, ¶28)

In each of these “open court principle” cases, the Justices used the Charter as a pretext to speculate on the nature of Canadian society and the role of institutions, from the courts to the press (Denis v. Côté, ¶¶45-47), in our democracy. 

Of course, Macintyre was decided in 1982 before the Charter took effect, but the majority of the Court invoked the same issues (“subject to a few well-recognized exceptions…all judicial proceedings must be held in public”, p. 186), values (per Bentham, “Where there is no publicity, there is no justice”, p. 183), and concerns (e.g. increasing social complexity, p. 180). The presence (or absence) of constitutional text made no difference because the Court was not interpreting the Constitution: it was elaborating an esoteric structure, accessible only to the elect, and it continues to do so. 

The Court earnestly expresses a deep commitment to using the transparency of the open court principle to promote democracy (Edmonton Journal, p. 1339) and maintain “the legitimacy of the exercise of judicial power” (CBC v. Manitoba, 2021 SCC 33, ¶82) while embracing an approach to structural analysis that lacks transparency and evades the constraints and limitations of constitutional text. To double down on psychological metaphors, the Court’s fixation sounds like classic displacement: the Justices are redirecting anxiety about the profound implications of their reliance on structural analysis to the more quotidian and concrete challenge of implementing the open court principle. 

It is also ironic, in a deeply formal sense, that the Court seeks to address concerns about the legitimacy of the exercise of judicial power via lengthy and intricate reasons…which presume the legitimacy of judicial power. The people the Court purportedly wants to persuade – it refers to “the public” seven times in the first six paragraphs of CBC v. Named Persons – do not read its reasons. Nearly half of adult Canadians are functionally illiterate (i.e. they struggle with daily tasks, like reading instruction manuals or obtaining health information, because of poor literacy skills). Of course, the Court isn’t actually addressing “the public.” It is addressing us: the initiated, those who accept and perpetuate its legitimacy.

Since Macintyre, the Court’s concern for legitimacy in the context of the open court principle has undergone two subtle and related shifts. 

First, the Court has expanded the scope of its concern from the legitimacy of the judicial process and the administration of justice to democracy writ large. In Macintrye (1982), the majority declared that openness fosters “[p]ublic confidence in the integrity of the court system and understanding of the administration of justice” (p. 185) but did not once refer to democracy. In Re Vancouver Sun (2004), the Court wrote that “openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts” (¶25). 

But in more recent cases involving the open court principle, the Justices have taken pains to demonstrate their democratic bona fides. For example:

• In Named Person v. Vancouver Sun (2007), Lebel J. (dissenting, but not on this point) wrote: “More recently, stress has been laid on the relationship between open courts and the promotion of democracy…The courts play a key role in a democracy, not only because they are where disputes between citizens can be resolved peacefully, but also — and perhaps most importantly — because they are where citizens’ disputes with the state are decided. Furthermore, there is no denying that the importance of the courts’ role is accentuated by the constantly increasing complexity of contemporary societies. It is therefore essential that what the courts do be open to public scrutiny in order both to improve the operation of the courts and to maintain public confidence in them” (¶85).
• In CBC v. Canada (2011), Deschamps J. wrote for the Court: “The open court principle is of crucial importance in a democratic society” (¶1).
• In Sherman Estate (2021), Kasirer J. wrote for the Court: 
  • “This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy” (¶1);
  • “virtually every court proceeding entails some disquiet for the lives of those concerned and these intrusions on privacy must be tolerated because open courts are essential to a healthy democracy” (¶5);
  • “Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy” (¶30).
• In Named Person v. CBC (2024), the Court wrote: “When justice is rendered in secret, without leaving any trace, respect for the rule of law is jeopardized and public confidence in the administration of justices may be shaken. The open court principle allows a society to guard against such risks, which erode the very foundations of democracy” (¶1).

Overall, the Court has taken a broader view and now strives to provide a more contextual account of judicial legitimacy. This approach obliges the Court to employ at least a basic model of our society, our democracy, and the role of courts in it. 

As demonstrated by the following excerpt from Edmonton Journal, this model need not have much content or detail: “There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between the citizens and the state in all its manifestations. The more complex society becomes, the more important becomes the function of the courts. As a result of their significance, the courts must be open to public scrutiny and to public criticism of their operation by the public” (p. 1337). These claims about the complexity of society and the judicial function have nothing to do with constitutional text or interpretation. The Court is expounding a theory of democracy, elaborating ideas about institutional design, and entrenching them as the “basic architecture” of our Constitution.

Second, and consistent with that first shift, the Court has turned its attention from the rule of law and the administration of justice toward the public perception of the rule of law and the administration of justice. In other (somewhat informal and reductive) words, the Court has zoomed out and shifted its focus from the intrinsic standards of law to the extrinsic standards of democracy.

This is a relative shift in emphasis. Some earlier cases invoked both the intrinsic and the extrinsic standards. The Justices’ arguments in those cases were nuanced, in part because of the close relationship between the open court principle and freedom of expression (discussed in more detail below). But they acknowledged the interplay between both facets of legitimacy: yes, justice must be seen to be done, but justice must also actually be done (which, of course, requires that it be seen to be done). 

Consider these lengthier excerpts.

In CBC v. New Brunswick, La Forest J. wrote: “The importance of ensuring that justice be done openly has not only survived: it has now become “one of the hallmarks of a democratic society…The open court principle, seen as “the very soul of justice” and the “security of securities”, acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law.  In Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, openness was held to be the rule, covertness the exception, thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice” (¶22; see also Endean, ¶66). Here, openness defines justice. Justice does not exist without openness, and that relationship both promotes the rule of law and supports public understanding of the administration of justice. Openness has an intrinsic and an instrumental value.

In Re Vancouver Sun, Iacobucci and Arbour JJ. wrote for the majority: “The right of public access to the courts is “one of principle . . . turning, not on convenience, but on necessity”: Scott v. Scott, [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438. “Justice is not a cloistered virtue”: Ambard v. Attorney-General for Trinidad and Tobago, 1936 CanLII 385 (UK JCPC), [1936] A.C. 322 (P.C.), per Lord Atkin,  at p. 335. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”:  J. H. Burton, ed., Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115. Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22. Openness is necessary to maintain the independence and impartiality of courts.  It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.” (¶¶24-25). Again, openness has an intrinsic value: it defines justice, which “is not a cloistered virtue.” It also happens to serve a clutch of related public goods, including judicial independence, judicial legitimacy, and public confidence in the justice system.

More succinctly, in CBC v. Canada, Deschamps J. wrote for the Court: “Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law” (¶1). Here, openness ensures justice accords with the rule of law. This is not about what the public perceives or understands. This is about whether justice is actually done. 

By contrast, in its most recent judgments involving the open court principle, the Justices have been concerned primarily – even exclusively – with satisfying external standards: those arising from “the public” and its expectations (aka “democracy”).

• In Endean (2016), Wagner J. (concurring) wrote: “The open court principle fosters public confidence in the court system and furthers public understanding of the administration of justice” (¶84).
• In CBC v. Manitoba (2021), Kasirer J. wrote for the majority: “Court openness serves to maintain the legitimacy of the exercise of judicial power…by allowing the public to scrutinize this exercise in service of ensuring that justice is being dispensed fairly” (¶82).
• In Named Person v. CBC (2024), the Court wrote: “What is in issue in this case is the maintenance of public confidence in the administration of justice and respect for the rule of law” (¶89).

By emphasizing this external perspective on judicial legitimacy, the Court accedes to terms it can never know fully or satisfy conclusively: it renders the legitimacy of judicial power perpetually and fundamentally uncertain. The legitimacy of the judiciary is always at stake. There is no definitive source for the expectations of “the public” or the standards “the public” will apply to the judiciary. Further, the standards adopted by the Court are open-ended: “the public” can always have more confidence in the court system, better understanding of the administration of justice, and more respect for the rule of law.

This external perspective on judicial legitimacy assumes the primary mode of legitimation is democratic: somehow provided by or found in “the public.” While that typically leads the Justices to prioritize written texts that have actually received some form of democratic approval (e.g. Quebec (Attorney General) v. 9147-0732 Québec inc., ¶¶8-13; Toronto (City), ¶¶49-60), this approach can also inspire strange structural contortions, like claiming the courts are the crucible for the public. For example, in his Endean concurrence, Wagner J. cited one academic article and wrote: “In fact, through courts and discussions about their processes, ‘private persons come together to form a public’” (¶91). Members of “the public,” if they spent any time reading concurring judgments from the Supreme Court of Canada (instead of doing everything except that), likely would not agree. 

However, this formulation makes an otherwise awkward position somewhat admirable. Sure, the courts need some sort of democratic legitimacy, but they get to define what that legitimacy entails because – surprise! – the courts not only write the reasons that contain that definition but also somehow constitute the very public which can bestow that legitimacy. The courts, the rule of law, and “the public” are inextricably (even alchemically) linked.

Structural analysis keeps courts at the centre of the action, even if the Court claims to focus its attention elsewhere. As a result, structural analysis often tells us more about itself (and the Court) than it reveals about the purported object. 

The open court principle itself can be stated succinctly: 

• “Court proceedings are presumptively open to the public” (Sherman Estates, ¶37; CBC v. Manitoba, ¶77); 
• “the open court principle…provides that court proceedings should presumptively be a matter of public record” (Named Person v. Vancouver Sun, ¶2). 

Of course, this formulation begs the question: under what circumstances can that presumption be displaced? The cases considered in this essay explore and answer that question in various contexts, from publication bans to criminal proceedings involving police informers. While its implementation and implications vary across those domains, we can say: the open court principle applies to all materials made available to the court (CBC v. Manitoba, ¶83) at every stage (Toronto Star, ¶29) of every legal proceeding (Named Person v. Vancouver Sun, ¶81).

These broad statements have been true since the open court principle was a mere common law doctrine.

• “It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered.” (Macintyre, p. 185)
• “The concept of open courts is deeply embedded in the common law tradition” (CBC v. New Brunswick(1996), ¶21).

As suggested above, the open court principle was arguably already part of the “basic constitutional structure” when Macintyre was decided, because it is critical to the free public debate that our elected legislatures require. 

• “The Court was nonetheless alert in that case [Macintyre] to the principles of openness and accountability in judicial proceedings that are now subsumed under the Charter’s guarantee of freedom of expression and of the press” (Toronto Star, ¶19).

Since the Charter took effect, the general constitutional character of the open court principle has been recognized, but its specific constitutional status has remained obscure. Only Lebel J., dissenting in Named Person v. Vancouver Sun, has explicitly acknowledged the “constitutional nature of this principle” (¶81; see also ¶68). The majority’s statement in that case is less definitive and more representative of the Court’s approach: “In addition to its longstanding role as a common law rule required by the rule of law, the open court principle gains importance from its clear association with free expression protected by s. 2(b) of the Charter” (¶33).  

According to the Court, this constitutional text, right, freedom and principle fit together like nesting dolls: s. 2(b) of the Charter entrenches the freedom of expression in the Constitution, and the freedom of expression in turn protects the open court principle.

• CBC v. New Brunswick (1996): “The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b)…While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place” (¶23).
• Sierra Club: “the fundamental principle of open and accessible court proceedings…is inextricably tied to freedom of expression enshrined in s. 2(b)” (¶52).
• Re Vancouver Sun: “The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein. The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression.” (¶26).

The precise terms of these relationships are not always clear or consistent. For example:

• How can the open court principle advance the core values of s. 2(b) (Re Vancouver Sun, ¶26) if it is also “inextricably incorporated into the core values of s. 2(b) of the Charter” (Toronto Star, ¶7)? As we have seen in the cases following from Doré, Charter values can have serious constitutional and administrative consequences.
• Is there a hierarchy between the freedom of expression and the open court principle, since the former protects the latter, or are they formal equals, as suggested in CBC v. Canada (“The right to freedom of expression is just as fundamental in our society as the open court principle…” (¶2))?

The Court has brushed aside such questions and settled on a formula that allows the open court principle to be “constitutionalized” or “constitutionally-protected” without necessarily becoming a constitutional principle:

• “the open court principle…is understood to be constitutionalized under the right to freedom of expression at s. 2(b) of the Charter” (Sherman Estates, ¶39);
• “courts must ensure compliance with the robust and constitutionally-protected principle of court openness” (CBC v. Manitoba, ¶37);
• “the open court principle, which is protected by the constitutionally entrenched right of freedom of expression, is a pillar of
• our free and democratic society” (CBC v. Named Person, ¶27).

After more than 40 years, we still don’t know the constitutional status of the open court principle or the exact nature of its relationship with the freedom of expression. We don’t even know what it means for the open court principle to be a principle, since the Court has repeatedly resorted to describing it as a rule:

• “Seeking the truth is not only at the core of freedom of expression, but it has also been recognized as a fundamental purpose behind the open court rule.” (Sierra Club, ¶76; also ¶79)
• “As a general rule, the public can attend hearings and consult court files and the press – the eyes and ears of the public – is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.” (Sherman Estate, ¶1)
• “every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content” (Named Person v. CBC, ¶28)

The Constitution includes both rules and principles (Patriation Reference, p. 874; Reference re Secession of Quebec, ¶32). Perhaps, as these quotations suggest, the difference between a rule and a principle is the degree of abstraction (and therefore the extent of elaboration required to adapt and apply the norm to specific circumstances). That difference would be quantitative rather than qualitative, such that constitutional rules and constitutional principles could exist on a continuous spectrum. It is similar – and possibly related – to the difference between “unwritten” and “written” elements of the Constitution, which are better understood as lying on a continuous spectrum between tacit and explicit.

In the Court’s most recent judgments, the open court principle has yielded to interests, which may constitute a more fundamental building block of constitutional norms and render values, principles, and rules commensurable (e.g. “Nor are these appeals concerned with balancing the open court principle against other interests such as the privacy of litigants or whether the court can conduct an in camera hearing” (Endean, ¶68)). However, even at this more granular level, consistency eludes us.

Sometimes, the Justices have described the open court principle as serving or protecting certain interests (much as the open court principle is itself protected by the freedom of expression). For example:

• In CBC v. Named Person, the Court wrote: “recognition of the non-discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by informer privilege” (¶42); and
• In CBC v. Manitoba, Abella J. wrote in dissent: “It is a balancing exercise…between the interests underlying finality and the interests in support of the open court principle” (¶116).

Elsewhere, they have characterized the open court principle itself as one among many “fundamental public interests” (CBC v. Manitoba, ¶38). Similarly, in Sherman Estates, Kasirer J. confirmed: “The public has a stake in openness, to be sure, but it also has an interest in the preservation of dignity” (¶85).

We seem to have entered the quantum realm. Just as light can be both a wave and a particle, perhaps our commitment to open courts can be a principle, a rule, and an interest. Maybe it can be constitutionalized and constitutionally-protected without being constitutional. 

Or maybe law isn’t physics, and such metaphors are misguided, even misleading. We’re through the looking glass, and it is not at all clear how this talk about constitutional status helps, except to demonstrate that the Court can be just as confused as we are. 

So what do we know? As Wagner J. wrote in his Endean concurrence: the open court principle is an “ensemble of practices and principles.” OK. Sure. Why not leave it at that?