Charter’s s. 2(b) applies to Parole Board, other non-adjudicative tribunals: Federal Court of Appeal

While it found that the open court principle did not apply to Parole Board hearings, the Federal Court of Appeal ruled that s. 2(b) of the Charter’s protection for press freedom, animated by the public’s “right to know,” applies to those hearings and other non-adjudicative proceedings.

In Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, the CBC appealed the Federal Court decision denying judicial review of the Parole Board’s refusal to provide audio recordings of the parole hearings of convicted murderers Paul Bernardo, Ethan Simon Templar MacLeod, and Craig Munro.

The court set aside the Federal Court’s judgment, allowed CBC’s application for judicial review, and set aside the Parole Board’s decision to deny CBC the audiotapes. The decision sends the matter back to the Parole Board for reconsideration.

The decision confirms that the open court principle applies to federal adjudicative tribunals, which means their hearings and hearing records are presumptively accessible, says Iris Fischer, counsel for the CBC and a partner at Blake Cassels & Graydon LLP.

“The case also identifies that even non-adjudicative tribunals are subject to s. 2(b) of the Charter,” she says. “Federal tribunals are going to have to be careful when they consider requests for hearing records, to make sure they're aligning with this decision and taking into account the right factors. In essence, it's not so easy to just say no to these kinds of requests.”

The CBC had argued that the Parole Board was obligated to hand over the recordings because “as an administrative tribunal exercising judicial or quasi-judicial functions,” it was subject to the open court principle. In rejecting the request, the Parole Board said the open court principle only applied to bodies that “act in a quasi-judicial capacity,” which it did not. The Parole Board said it does not function like a court, its hearings are not adversarial, and it does not determine rights; it assesses risk based on statutory criteria.

The Federal Court agreed that the Parole Board was not quasi-judicial; its proceedings were not adversarial but “inquisitorial in nature,” and therefore, it was not required to release the recordings under the open court principle.

In addition to the applicable standard of review, the issues for the Federal Court of Appeal were whether the Parole Board was subject to the open court principle and whether the CBC was “otherwise entitled” to the recordings.

Justice Denis Pelletier wrote the reasons for the Federal Court of Appeal and said that the distinction between judicial and quasi-judicial proceedings had “outlived its usefulness in its application to the open court principle.” This reliance focuses on the Parole Board’s “processes and formal characteristics rather than its function.” The public is not interested in a court’s procedural characteristics. He said it is interested in a court’s decision-making power over rights and duties.

A “reliable indicator” that a tribunal is subject to the open court principle is when it is “adjudicating competing interests,” which impose “the duty of fairness and impartiality,” said Pelletier. Essentially, the open court principle applies to adjudicative tribunals. Since the parole board was not one, the court found that neither it nor the Federal Court had erred in finding that the principle did not apply.

As to whether the CBC was “otherwise entitled” to the recordings, the Parole Board had argued that under the Privacy Act, there is a presumption of non-disclosure of personal information unless the individual consents or the disclosure is authorized under ss. 8(2) of the Act.

Pelletier noted that the information in the audio recordings had already been publicly disclosed because the parole hearings were open to the public. He said the Board’s reaction to the audio-recording requests overstated the “threats and dangers” of discretionary disclosure. “[I]t does not require a prolonged stay on a Tibetan mountaintop to realize that whatever risk attaches to the discretionary release of an audio recording has already arisen when the information was disclosed to the public, including members of the media, in the hearing itself.”

Pelletier said that allowing access to the recordings has the same objective of allowing the press to attend the hearings: addressing the public’s “right to know.” He cited R. v. Vice Media Canada Inc., 2018 SCC 53, which stated that s. 2(b) of the Charter “sets out generous protections designed to facilitate the healthy functioning of our democracy. But they are incomplete if s. 2(b) is viewed only as an individual right to freedom of expression, reading out the protection of ‘freedom of the press’… It is the public’s ‘right to know’ that explains and animates the distinct constitutional protection for freedom of the press.”

“Even though it found the open court principle didn't strictly apply,” says Fischer, “the Federal Court of Appeal did acknowledge that section 2(b) of the charter more broadly applies to the parole board.”

Fischer is co-leader of the firm’s Toronto litigation group and specializes in media and defamation matters.